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EXHIBIT 10.1
VENTURE HOLDINGS TRUST
CREDIT AGREEMENT
dated as of May 27, 1999
THE LENDERS PARTY HERETO,
THE FIRST NATIONAL BANK OF CHICAGO, as Administrative Agent
THE BANK OF NOVA SCOTIA, as Syndication Agent
MORGAN STANLEY SENIOR FUNDING, INC., as Documentation Agent
Arranged by:
BANC ONE CAPITAL MARKETS, INC.
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EXHIBITS
EXHIBIT A BORROWING BASE CERTIFICATE
EXHIBIT B FOREIGN SUBSIDIARY OPINIONS
EXHIBIT C GUARANTY
EXHIBITS D-1 AND D-2 PLEDGE AGREEMENTS
EXHIBIT E REVOLVING CREDIT NOTE
EXHIBIT F SECURITY AGREEMENTS
EXHIBITS G-1, G-2 AND G-3 TERM NOTES
EXHIBIT H DOMESTIC LEGAL OPINIONS
EXHIBIT I TRANSFER AND FUNDING INSTRUCTIONS
EXHIBIT J COMPLIANCE CERTIFICATE
EXHIBIT K ASSIGNMENT AGREEMENT
EXHIBIT L NOTICE OF ASSIGNMENT
SCHEDULES
SCHEDULE 1.1-A PRICING GRID
SCHEDULE 1.1-B COMMITMENTS
SCHEDULE 1.1-C PEGUFORM RESTRUCTURING
SCHEDULE 5.6 TAXES
SCHEDULE 5.7 LITIGATION
SCHEDULE 5.8 SUBSIDIARIES
SCHEDULE 5.14 OWNERSHIP OF PROPERTIES EXCEPTIONS
SCHEDULE 5.26 INTELLECTUAL PROPERTY
SCHEDULE 5.30 1999 SENIOR UNSECURED AND
SUBORDINATED DEBT DOCUMENTS
SCHEDULE 5.32 FOREIGN SUBSIDIARY DIVIDEND RESTRICTIONS
SCHEDULE 6.11 PERMITTED INDEBTEDNESS
SCHEDULE 6.14 PERMITTED INVESTMENTS
SCHEDULE 6.15 PERMITTED LIENS
SCHEDULE 6.19 SUBSIDIARY DIVIDEND RESTRICTIONS
SCHEDULE 6.20 ADDITIONAL COVENANT EXCLUSION
SCHEDULE 6.24 NEGATIVE PLEDGE LIMITATIONS
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CREDIT AGREEMENT
This Agreement, dated as of May 27, 1999, is among Venture Holdings Trust,
a grantor trust organized under the laws of Michigan, the Lenders, The First
National Bank of Chicago, as Administrative Agent.
1. DEFINITIONS
a. As used in this Agreement:
"Acquisition" means any transaction, or any series of related transactions,
consummated on or after the date of this Agreement, by which the Borrower or any
of its Subsidiaries (i) acquires any going business or all or substantially all
of the assets of any Person, or division thereof, whether through purchase of
assets, merger or otherwise or (ii) directly or indirectly acquires (in one
transaction or as the most recent transaction in a series of transactions) at
least a majority (in number of votes) of the Capital Stock of a Person.
"Additional Subordinated Debt" means additional senior subordinated notes
(in addition to the 1999 Subordinated Notes) in the face amount of at least
$125,000,000, issued pursuant to agreements and documents, and on terms and
provisions, reasonably satisfactory to the Administrative Agent.
"Administrative Agent" means The First National Bank of Chicago in its
capacity as Administrative Agent for the Lenders pursuant to Article X, and not
in its individual capacity as a Lender, and any successor Administrative Agent
appointed pursuant to Article X.
"Advance" means an advance hereunder (or conversion or continuation
thereof) consisting of the aggregate amount of the several Revolving Credit
Loans, Interim Term Loan, Term Loan A, Term Loan B, Swing Loans or Facility
Letters of Credit made on the same Borrowing Date (or date of conversion or
continuation) by the Lenders to the Borrower of the same Type and, in the case
of Eurodollar Advances and Eurocurrency Advances, for the same Interest Period.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of stock, by contract or otherwise.
"Aggregate Available Multicurrency Revolving Credit Commitments" means at
any date of determination with respect to all Multicurrency Revolving Credit
Lenders, an amount equal to the Available Multicurrency Revolving Credit
Commitments of all Multicurrency Revolving Credit Lenders on such date.
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"Aggregate Available Revolving Credit Commitments" means as at any date of
determination with respect to all Lenders, an amount equal to the Available
Revolving Credit Commitments of all Lenders on such date.
"Aggregate Interim Term Loan Commitment" means the aggregate amount of
Interim Term Loan Commitments of all the Interim Term Loan Lenders, not to
exceed $125,000,000, as reduced from time to time pursuant to the terms hereof.
"Aggregate Interim Term Loan Outstandings" means at any date of
determination with respect to any Lender, the aggregate unpaid principal amount
of such Lender's Interim Term Loan on such date.
"Aggregate Multicurrency Revolving Credit Commitment" means the aggregate
amount, stated in Dollars, of the Multicurrency Revolving Credit Commitments of
all the Multicurrency Revolving Credit Lenders, not to exceed $75,000,000, or
such greater or lesser amount as determined by the Administrative Agent from
time to time, as reduced from time to time pursuant to the terms hereof.
"Aggregate Multicurrency Revolving Credit Outstandings" means on any date
of determination with respect to any Multicurrency Revolving Credit Lender, the
aggregate unpaid principal amount of such Lender's Multicurrency Revolving
Credit Loans on such date.
"Aggregate Revolving Credit Commitment" means the aggregate of the
Revolving Credit Commitments of all the Revolving Credit Lenders, not to exceed
the Dollar Equivalent of $200,000,000, as reduced from time to time pursuant to
the terms hereof.
"Aggregate Revolving Credit Outstandings" means as at any date of
determination with respect to any Revolving Credit Lender, the Dollar Equivalent
of the sum of the aggregate unpaid principal amount of such Lender's Revolving
Credit Loans on such date and the amount of such Lender's Pro Rata Share of the
Facility Letter of Credit Obligations and Swing Loans to the Borrower on such
date and without duplication the amount of such Lender's participation in other
Revolving Credit Loans pursuant to Section 2.25 on such date.
"Aggregate Term Loan A Commitment" means the aggregate amount of the Term
Loan A Commitment of all Term Loan A Lenders, not to exceed $100,000,000, as
reduced from time to time pursuant to the terms hereof.
"Aggregate Term Loan B Commitment" means the aggregate amount of Term Loan
B Commitments of all the Term Loan B Lenders, not to exceed $150,000,000, as
reduced from time to time pursuant to the terms hereof.
"Aggregate Term Loan A Outstandings" means at any date of determination
with respect to any Lender, the sum of the aggregate unpaid principal amount of
such Lender's Term Loan A on such date.
"Aggregate Term Loan B Outstandings" means as at any date of determination
with respect to any Lender, the aggregate unpaid principal amount of such
Lender's Term Loan B on such date.
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"Aggregate Term Loan Outstandings" means as at any date of determination
with respect to any Lender, the sum of the Aggregate Term Loan A Outstandings,
the Aggregate Interim Term Loan Outstandings and Aggregate Term Loan B
Outstandings of such Lender.
"Aggregate Total Outstandings" means as at any date of determination with
respect to any Lender, the Dollar Equivalent of an amount equal to the sum of
(a) the Aggregate Revolving Credit Outstandings of such Lender on such date and
(b) the Aggregate Term Loan Outstandings of such Lender on such date.
"Agreed Currencies" means Dollars and Eurocurrencies.
"Agreement" means this credit agreement, as it may be amended or modified
and in effect from time to time.
"Agreement Accounting Principles" means generally accepted accounting
principles as in effect from time to time, applied in a manner consistent with
that used in preparing the financial statements referred to in Sections 5.4 and
subject to Section 9.9.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (i) the Corporate Base Rate for such day and (ii) the sum
of the Federal Funds Effective Rate for such day plus 1/2% per annum.
"Applicable Margin" is defined on Schedule 1.1-A.
"Arranger" means Banc One Capital Markets, Inc.
"Asset Sale" means the sale, transfer or other disposition by the Borrower
or any Subsidiary of any asset of any kind to any Person.
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Authorized Officer" means the Principal and, subject to the revocation by
either the Principal or the Board of Directors, Michael G. Torakis or James E.
Butler, or any other person designated in writing by the Board of Directors, the
Principal or Michael G. Torakis, or, with respect to any Borrowing Notice or
Conversion/Continuation Notice, the controller or assistant controller of the
Borrower, in each case acting singly.
"Available Multicurrency Revolving Credit Commitment" means at any date of
determination with respect to any Multicurrency Revolving Credit Lender (after
giving effect to the making and payment of any Revolving Credit Loans required
on such date pursuant to Section 2.6(b)), the lesser of (a) the excess, if any,
of (i) the Dollar Equivalent of such Multicurrency Revolving Credit Lender's
Multicurrency Revolving Credit Commitment in effect on such date over (ii) the
Aggregate Multicurrency Revolving Credit Outstandings of such Multicurrency
Credit Lender on such date and (b) the Available Revolving Credit Commitment of
such Lender on such date.
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"Available Revolving Credit Commitment" means at any date of determination
with respect to any Revolving Credit Lender (after giving effect to the making
and payment of any Revolving Credit Loans required on such date pursuant to
Section 2.6(b)), an amount in Dollars equal to the excess, of (a) the amount of
such Lender's Revolving Credit Commitment in effect on such date over (b) the
Aggregate Revolving Credit Outstandings of such Lender on such date.
"Beneficial Owner" has the meaning assigned to such term in Rule 13d-3 and
Rule 13d-5 under the Exchange Act, except that in calculating the beneficial
ownership or any particular "person" (as that term is used in Section 13(d)(3)
of the Exchange Act), such "person" shall be deemed to have beneficial ownership
of all securities that such "person" has the right to acquire by conversion or
exercise of other securities, whether such right is currently exercisable or is
exercisable only upon the occurrence of a subsequent condition. The terms
"Beneficially Owns" and "Beneficially Owned" shall have a corresponding meaning.
"Beneficiary" means (i) any beneficiary of the Borrower while it is a trust
or (ii) any shareholder or member, as the case may be, of a successor
corporation or limited liability company to the Borrower after a Trust
Contribution.
"Board of Directors" means:
(1) either the board of directors, general partners or manager(s) of
the Borrower's Subsidiaries or any duly authorized committee of such board; or
(2) in the case of the Borrower, the Principal; provided that (a) in
the event the Principal's rights, duties and powers are assumed by the Successor
Special Advisor Group, "Board of Directors" means the Successor Special Advisor
Group and (b) in the event the Borrower is reorganized as a corporation or
limited liability company or a Trust Contribution shall occur, "Board of
Directors" means the board of directors or manager(s) of the successor
corporation or limited liability company.
"Borrower" means (i) Venture Holdings Trust, a grantor trust organized
under the laws of Michigan or (ii) any successor Person to the Borrower in
accordance with the provisions of Section 6.12.
"Borrowing Base" means, as of any date, the sum of (a) an amount equal to
70% of the amount of Eligible Accounts Receivable, plus (b) an amount equal to
40% of the amount of Eligible Inventory.
"Borrowing Base Certificate" for any date means an appropriately completed
report as of such date and substantially in the form of Exhibit A hereto,
certified as true and correct as of such date by an Authorized Officer of the
Borrower.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing Notice" is defined in Section 2.10.
"British Pound Sterling" or "(pound)" means the lawful currency of the
United Kingdom.
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"Business Day" means (i) with respect to any borrowing, payment or rate
selection of Eurodollar Advances, a day (other than a Saturday or Sunday) on
which banks generally are open in Detroit, Chicago and New York for the conduct
of substantially all of their commercial lending activities and on which
dealings in United States dollars are carried on in the London interbank market
(ii) with respect to any borrowing, payment or rate selection of Eurocurrency
Advances, a day (other than a Saturday or Sunday) on which banks generally are
open in Detroit, Chicago and New York for the conduct of substantially all of
their commercial lending activities and on which dealings in Dollars and
Eurocurrencies are carried on in the London interbank market (and, if the
Eurocurrency Advances which are the subject of such borrowing, payment or rate
selection are denominated in Euros, a day upon which such clearing or settlement
of the Euro is open for business), and (iii) for all other purposes, a day
(other than a Saturday or Sunday) on which banks generally are open in Detroit,
Chicago and New York for the conduct of substantially all of their commercial
lending activities.
"Capital Expenditures" means, without duplication, any expenditures for any
purchase or other acquisition of any asset which would be classified as a fixed
or capital asset on a consolidated balance sheet of the Borrower and its
Subsidiaries prepared in accordance with Agreement Accounting Principles.
"Capital Stock" means (i) in the case of any corporation, all capital stock
and any securities exchangeable for or convertible into capital stock and any
warrants, rights or other options to purchase or otherwise acquire capital stock
or such securities or any other form of equity securities, (ii) in the case of
an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock, (iii) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited) and (iv) any
other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distribution of assets of, the issuing
Person, including without limitation trust beneficiary interests, but excluding
commissions and incentive compensation plans in the ordinary course of business.
"Capitalized Lease" of a Person means any lease of Property by such Person
as lessee which would be capitalized on a balance sheet of such Person prepared
in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Cash Equivalents" means:
(1) cash;
(2) securities issued or directly and fully guaranteed or insured by the
United States of America or any agency or instrumentality thereof (provided that
the full faith and credit of the United States of America is pledged in support
thereof);
(3) time deposits and certificates of deposit and commercial paper issued
by the parent
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corporation of any domestic commercial bank of recognized standing having
capital and surplus in excess of $250,000,000;
(4) commercial paper issued by others rated at least A-1 or the equivalent
thereof by Standard & Poor's Corporation or at least P-1 or the equivalent
thereof by Moody's Investors Service, Inc;
(5) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clause (1) above entered into
with any bank meeting the qualifications specified in clause (3) above;
(6) any money market deposit accounts issued or offered by a domestic
commercial bank having capital and surplus in excess of $250,000,000;
(7) investments in money market funds which invest substantially all their
assets in securities of the type described in clauses (1), (2) (3) and (4) above
and in the case of (1), (2) and (3) maturing within one year after the date of
acquisition.
"Change in Control" means the occurrence of any of the following:
(1) the direct or indirect sale, transfer, conveyance or other
disposition (other than by way of merger or consolidation), in one transaction
or a series of related transactions, of all or substantially all of the
properties or assets of the Borrower and its Subsidiaries, taken as a whole, to
any "person" (as that term is used in Section 13(d)(3) of the Exchange Act)
other than a Principal or a Related Party of a Principal;
(2) the adoption of a plan relating to the liquidation or dissolution
of the Borrower;
(3) the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is that any
"person" (as defined above), other than the Principal and his Related Parties,
becomes the Beneficial Owner, directly or indirectly, or more than 40% of the
Capital Stock of the Borrower or the total voting power in the aggregate
normally entitled to vote in the election of directors, managers, or trustees,
as applicable, of the transferee(s) or surviving entity or entities, measured by
voting power rather than number of shares, but only if the Principal and his
Related Parties are the Beneficial Owners, directly or indirectly, of less than
a majority of the total voting power in the aggregate normally entitled to vote
in the election of directors, managers, or trustees, as applicable, of the
Borrower or the transferee(s) or surviving entity or entities, measured by
voting power rather than number of shares; or
(4) during any 12 consecutive months after the Effective Date,
individuals who at the beginning of any such 12 month period constituted the
Board of Directors of the Borrower (together with any new directors or managers
whose election by such Board or whose nomination for election by the equity
holders of the Borrower, (A) with respect to Venture Holdings Trust was made
pursuant to the terms of the Venture Trust Instrument and (B) with respect to
Venture Holding Corporation or another successor to the Borrower, or their
respective successors, after the occurrence of a Trust Contribution, (x)
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was approved by the Beneficiary of Venture Holdings Trust on or before the date
of the Trust Contribution, or (y) was approved by a majority of the Board of
Directors of the Borrower whose appointment, election or nomination to the Board
of Directors was approved in accordance with the preceding clause (x) or by this
clause (y)) cease for any reason to constitute a majority of the Board of
Directors of the Borrower then in office.
(5) the occurrence of any "Change of Control", "Change in Control" or
similar term or event under the 1997 Senior Unsecured Debt Document, the 1999
Senior Unsecured Debt Documents or the 1999 Senior Subordinated Debt Documents.
Notwithstanding anything in this definition to the contrary, a "Change in
Control" shall not be deemed to have occurred solely as a result of a
transaction pursuant to which the Borrower is reorganized or reconstituted as a
corporation or limited liability company or a Trust Contribution occurs in
accordance with the provisions described herein and no event which is otherwise
a "Change in Control" shall have occurred.
"Change in Control Notice" is defined in Section 2.23.1.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Collateral" means all Property of the Borrower and of the Guarantors.
"Collateral Documents" means, collectively, the Security Agreements, the
Mortgages, the Pledge Agreements and all other agreements granting a Lien in
favor of the Administrative Agent for the benefit of the Lenders, as any of the
foregoing may be amended or modified from time to time.
"Collateral Shortfall Amount" is defined in Section 8.1.
"Condemnation" is defined in Section 7.8.
"Consolidated" or "consolidated" means, when used with reference to any
financial term in this Agreement, the aggregate for two or more persons of the
amounts signified by such term for all such persons determined on a consolidated
basis in accordance with Agreement Accounting Principles.
"Consolidated Current Assets" means the consolidated current assets of the
Borrower and its Subsidiaries determined in accordance with Agreement Accounting
Principles.
"Consolidated Current Liabilities" means the consolidated current
liabilities of the Borrower and its Subsidiaries determined in accordance with
Agreement Accounting Principles.
"Consolidated Interest Expense" means, for any period, total net interest
and related expense owed to Persons other than the Borrower and its Wholly Owned
Subsidiaries (including, without limitation or duplication, that portion of any
Capitalized Lease Obligation attributable to interest expense in conformity with
Agreement Accounting Principles, amortization of debt discount, all capitalized
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interest, the interest portion of any deferred payment obligations, all
commissions, discounts and other fees and charges owed with respect to letter of
credit and bankers acceptance financing, the net costs and net payments under
any interest rate hedging, cap or similar agreement or arrangement, agency fees
and capitalized transaction costs allocated to interest expense) paid, payable
or accrued during such period, without duplication for any other period or
otherwise, with respect to all outstanding Indebtedness of the Borrower and its
Subsidiaries, all as determined for the Borrower and its Subsidiaries on a
consolidated basis for such period in accordance with Agreement Accounting
Principles.
"Consolidated Net Income" means, for any period, the net income (or loss)
of the Borrower and its Subsidiaries on a consolidated basis for such period
taken as a single accounting period, determined in accordance with Agreement
Accounting Principles; provided that in determining Consolidated Net Income
there shall be excluded, without duplication: (a) the income of any Person
(other than a Subsidiary of the Borrower) in which any Person other than the
Borrower or any of its Subsidiaries has a joint interest or partnership
interest, except to the extent of the amount of dividends or other distributions
actually paid in cash to the Borrower or any of its Subsidiaries by such Person
during such period, and all such cash dividends and distributions shall be
included in Consolidated Net Income for the period in which such dividends or
other distributions were actually paid, (b) the income of any Person accrued
prior to the date it becomes a Subsidiary of the Borrower or is merged into or
consolidated with the Borrower or any of its Subsidiaries or that Person's
assets are acquired by the Borrower or any of its Subsidiaries, (c) gains and
losses from the sale, exchange, transfer or other disposition of property or
assets not in the ordinary course of business of the Borrower and its
Subsidiaries, and related tax effects in accordance with Agreement Accounting
Principles, (d) any extraordinary or non-recurring gains and losses, and related
tax effects in accordance with Agreement Accounting Principles, (e) any other
income not from the continuing operations of the Borrower or its Subsidiaries,
and related tax effects in accordance with Agreement Accounting Principles, (f)
the income of any Subsidiary of the Borrower that is not a Guarantor to the
extent that the declaration or payment of dividends or similar distributions by
that Subsidiary of that income is not at the date of determination permitted by
operation of the terms of its charter or of any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to that
Subsidiary, or its owners; provided, that if such declaration or payment is not
permitted at such date, such income shall nevertheless be included to the extent
of the amount of dividends or other distributions are actually paid in cash,
directly or indirectly, to the Borrower during such period if such declaration
and payment were made during the applicable period without the prior required
approval of any Person or governmental authority and were not made in violation
of its charter or any agreement, instrument, judgment, decree, order, statute,
rule or governmental resolution applicable to that Restricted subsidiary or its
stockholders, (g) any non-cash items added to income, excluding any such
non-cash items to the extent it represents the reversal of an accrual or reserve
for potential cash items in any prior period, and (h) Permitted Tax
Distributions to the extent not already deducted.
"Consolidated Net Worth" means the aggregate amount of trust equity (i.e.,
consolidated trust principal) and common shareholders' or members' equity, as
applicable, as determined from a consolidated balance sheet of the Borrower and
its Subsidiaries, prepared in accordance with Agreement Accounting Principles.
"Contingent Obligation" of a Person means, without duplication, any
agreement, undertaking or
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arrangement by which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any comfort letter, operating
agreement or takeorpay contract, but excluding the endorsement of instruments
for deposit or collection in the ordinary course of business.
"Conversion/Continuation Notice" is defined in Section 2.11.
"Controlled Group" means all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common control
which, together with the Borrower or any of its Subsidiaries, are treated as a
single employer under Section 414(b) of the Code.
"Corporate Base Rate" means a rate per annum equal to the corporate base
rate of interest announced by First Chicago from time to time or, when used in
connection with any Advance denominated in any Eurocurrency, means the
correlative floating rate of interest customarily applicable to similar
extensions of credit to corporate borrowers denominated in such currency, as
determined by the Administrative Agent, changing when and as said corporate base
rate or correlative rate changes.
"Cost Rate" means
1. The cost of compliance with existing requirements of the Bank of England
Act 1998 (the "Act") and/or Bank of England and/or the Financial Services
Authority (or any authority which replaces all or any of their functions)
of a requirement to place non-interest-bearing or Special Deposits (whether
interest bearing or not) with the Bank of England and/or pay fees to the
Financial Services Authority in respect of liabilities used to fund
Advances denominated in British Pounds Sterling will be calculated by the
Administrative Agent in relation to each Advance on the basis of rates
supplied by the Administrative Agent by reference to the circumstances
existing on the first day of each Interest Period in respect of such
Advance and, if any such Interest Period exceeds three months, at three
calendar monthly intervals from the first day of such Interest Period
during its duration calculated in accordance with the following formula:
AB +C(B-D) + E x 0.01 per cent per annum
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100 - (A+C)
Where:
A. is the percentage of eligible liabilities (assuming these to be in
excess of any stated minimum) which the Administrative Agent is from
time to time required pursuant to the Act to maintain as an interest
free cash ratio deposit with the Bank of England to comply with cash
ratio requirements.
B. is the percentage (expressed as a decimal) rate per annum at which
sterling deposits are offered by the Administrative Agent in
accordance with its normal practice, for a period equal to (a) the
relevant Interest Period (or, as the case may be, remainder of such
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Interest Period) in respect of the relevant Advance or (b) three
months, whichever is the shorter, to a leading bank in the London
Interbank Market at or about 11:00 a.m. in a sum approximately equal
to the amount of such Advance.
C. is the percentage of eligible liabilities which the Administrative
Agent is required from time to time to maintain as interest bearing
special deposits with the Bank of England.
D. is the percentage (expressed as a decimal) rate per annum payable by
the Bank of England to the Administrative Agent on interest bearing
special deposits.
E. is the rate payable by the Administrative Agent to the Financial
Services authority pursuant to the Fees Regulations (but, for this
purpose, the figure at paragraph [2.02b]/[2.03b] of the Fees
Regulations shall be deemed to be zero) and calculated in pounds per
(pound)1,000,000 of the Fee Base of the Administrative Agent.
2. For the purposes of this definition:
(a) "ELIGIBLE LIABILITIES" and "SPECIAL DEPOSITS" shall bear the meanings
ascribed to them from time to time under or pursuant to the Bank of
England Act 1998 or (as appropriate) by the Bank of England;
(b) "FEE REGULATIONS" means the Banking Supervision (Fees) Regulations
1998 or such other regulations as may be in force from time to time in
respect of the payment of fees for banking supervision; and
(c) "FEE BASE" shall bear the meaning ascribed to it, and shall be
calculated in accordance with, the Fees Regulations.
3. The percentages used in A and C above shall be those required to be
maintained on the first day of the relevant period as determined in
accordance with B above.
4. In application of the above formula, A, B, C and D will be included in the
formula as figures and not as percentages e.g. if A is 0.5 per cent and B
is 12 per cent, AB will be calculated as 0.5 x 12 and not as 0.5 per cent x
12 per cent.
5. Calculations will be made on the basis of a 365 day year (or, if market
practice differs, in accordance with market practice).
6. A negative result obtained by subtracting D from B shall be taken as zero.
7. The resulting figures shall be rounded upwards, if not already such a
multiple, to the nearest whole multiple of one-thirty second of one percent
per annum.
8. Additional amounts calculated in accordance with this definition are
payable on the last day of the Interest Period to which they relate.
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9. The determination of the relevant Cost Rate by the Administrative Agent in
relation to any period shall, in the absence of manifest error, be
conclusive and binding on all of the parties hereto.
10. The Administrative Agent may from time to time, after consultation with the
Borrower and the Lenders, determine and notify to all parties any
amendments or variations which are required to be made to the formula set
out above in order to comply with any requirements from time to time
imposed by the Bank of England or the Financial Services Authority (or any
other authority which replaces all or any of their functions) in relation
to Advances denominated in British Pounds Sterling (including any
requirements relating to sterling primary liquidity) and, any such
determination shall, in the absence of manifest error, be conclusive and
binding on all the parties hereto.
"Default" means an event described in Article VII.
"Defaulting Lender" means any Lender that (i) on any Borrowing Date fails
to make available to the Administrative Agent such Lender's Loans required to be
made to the Borrower on such Borrowing Date, (ii) shall not have made a payment
to the Administrative Agent required under Section 2.1(d) or (iii) shall not
have made a payment to the Issuer pursuant to Section 2.2.5(b). Once a Lender
becomes a Defaulting Lender, such Lender shall continue as a Defaulting Lender
until such time as such Defaulting Lender makes available to the Administrative
Agent, the amount of such Defaulting Lender's Loans and/or to the Issuer, such
payments requested by the Issuer together with all other amounts required to be
paid to the Administrative Agent and/or the Issuer pursuant to this Agreement.
"Disqualified Capital Stock" means (a) with respect to a Person, except as
to any Subsidiary of such Person, any Capital Stock of such Person that, by its
terms or by the terms of any security into which it is convertible, exercisable
or exchangeable, is, or upon the happening of an event or the passage of time
would be, required to be redeemed or repurchased (including at the option of the
holder thereof) by such Person or any of its Subsidiaries, in whole or in part,
on or prior to the latest of the Term Loan A Maturity Date, the Term Loan B
Maturity Date or the Termination Date and (b) with respect to any Subsidiary of
such Person (including with respect to any Subsidiary of the Borrower), any
Capital Stock other than any common equity with no preference, privileges, or
redemption or repayment provisions.
"Documentation Agent" means, Morgan Stanley Senior Funding, Inc., in its
capacity as Documentation Agent hereunder and not in its individual capacity as
a Lender.
"Dollar Equivalent" means, with respect to any currency, at any date, the
equivalent thereof in 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 currency at 11:00 a.m., London time, on the date on or as of which such
amount is to be determined.
"Dollar Revolving Credit Lender" means any Lender which has a Dollar
Revolving Credit Commitment.
"Dollar Revolving Credit Loans" means Revolving Credit Loans denominated in
Dollars made to the Borrower pursuant to Section 2.1(a).
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"Dollar Revolving Credit Commitment" means, with respect to each Lender,
the commitment of each such Lender to make Revolving Credit Loans in Dollars
under Section 2.1(a), and to participate in Facility Letters of Credit and Swing
Loans denominated in Dollars, in amounts not exceeding in the aggregate
principal or face amount outstanding at any time the Dollar Revolving Credit
Commitment amount for such Lender set forth opposite such Lender's name in
Schedule 1.1-B under the heading "Dollar Revolving Credit Commitment" or as
otherwise established, reduced, or modified pursuant to the provisions hereof.
"Dollars" and "$" means the lawful money of the United States of America.
"Domestic Subsidiary" means any Subsidiary which is organized under
the laws of any State of the United States of America or the District of
Columbia.
"EBITDA" means, for any period, Consolidated Net Income for such
period plus all amounts deducted in determining such Consolidated Net Income on
account of (a) Consolidated Interest Expense, (b) taxes based on income or
profits of the Borrower and its Subsidiaries and, without duplication, payments
of the State of Michigan single business tax and Permitted Tax Distributions,
(c) depreciation expense and non-cash amortization expense, and (d) other
non-cash items (excluding any such non-cash item to the extent it represents an
accrual or reserve for potential cash items in any future period), all as
determined for the Borrower and its Subsidiaries on a consolidated basis in
accordance with Agreement Accounting Principles.
"Effective Date" means the date inserted by the Administrative Agent
in the last paragraph of this Agreement.
"Eligible Accounts Receivable" means, as of any date, those accounts
receivable of the Borrower and its Subsidiaries, on a consolidated basis, valued
at the face amount thereof less, without duplication, such reserves as may be
established by the Borrower or on the books and records of the Borrower and less
such reserves as the Administrative Agent elects to establish in its credit
judgment; but shall not include any such account receivable (a) that is
outstanding more than 90 days after the earlier of the date of the related
invoice or the date the related goods were shipped or services provided, or (b)
that for any other reason is at any time deemed by the Administrative Agent to
be ineligible in its reasonable credit judgment.
"Eligible Currency" means any currency other than Dollars (i) that is
readily available, (ii) that is freely traded, (iii) in which deposits are
customarily offered to banks in the London interbank market, (iv) which is
convertible into Dollars in the international interbank market and (v) as to
which a Dollar Equivalent may be readily calculated.
"Eligible Inventory" means, as of any date, that inventory (including raw
materials, work in process and finished goods) of the Borrower and its
Subsidiaries, on a consolidated basis, less, without duplication, such reserves
as may be established by the Borrower or on its books and records and less such
reserves as the Administrative Agent elects to establish in its credit judgment;
but shall not include any such inventory (a) that does not constitute inventory
readily salable or usable in the business of the
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Borrower or any Subsidiary, or (b) that for any other reason is at any time
deemed by the Administrative Agent to be ineligible in its reasonable credit
judgment.
"Environmental Certificate" means an appropriately completed environmental
certificate, substantially in the form approved by the Administrative Agent,
delivered by each of the Borrower and Guarantors, certified as true and correct
as of such date by an Authorized Officer of the Borrower and each Guarantor.
"Environmental Laws" means any and all federal, state, local and foreign
statutes, laws, judicial decisions, regulations, ordinances, rules, judgments,
orders, decrees, plans, injunctions, permits, concessions, grants, franchises,
licenses, agreements and other governmental restrictions relating to (i) the
protection of the environment, (ii) the effect of the environment on human
health, (iii) emissions, discharges or releases of pollutants, contaminants,
hazardous substances or wastes into surface water, ground water or land, or (iv)
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, hazardous substances or
wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"Euro" and/or "EUR" means the euro referred to in Council Regulation (EC) No.
1103/97 dated June 17, 1997 passed by the Council of the European Union, or, if
different, the then lawful currency of the member states of the European Union
that participate in the third stage of Economic and Monetary Union.
"Eurocurrency" means (i) so long as such currencies remain Eligible Currencies,
British Pounds Sterling and the Euro, and (ii) any other Eligible Currency which
the Borrower requests the Administrative Agent to include as a Eurocurrency
hereunder and which is acceptable to all of the Multicurrency Revolving Credit
Lenders and the Administrative Agent. If, after the designation by the
Multicurrency Revolving Credit Lenders of any currency as a Eurocurrency, (x)
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, (y) such currency is, in the determination of the
Administrative Agent, no longer readily available or freely traded or (z) in the
determination of the Administrative Agent, a Dollar Equivalent of such currency
is not readily calculable, the Administrative Agent shall promptly notify the
Lenders and the Borrower, and such currency shall no longer be a Eurocurrency
until such time as all of the Lenders agree to reinstate such currency as an
Eurocurrency and promptly, but in any event within five Business Days of receipt
of such notice from the Administrative Agent, the Borrower shall repay all Loans
in such affected currency or convert such Loans into Loans in Dollars or another
Eurocurrency, subject to the other terms set forth in Article II.
"Eurocurrency Advance" means a Multicurrency Advance which bears interest
at the Eurocurrency Rate.
"Eurocurrency Reference Rate" means, with respect to each Interest Period
for a Multicurrency Loan:
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(a) the rate per annum quoted at or about 11:00 a.m. (London time) on the
Quotation Date for such period on that page of the Bloombergs' or
Reuters' Screen which displays British Bankers Association Interest
Settlement Rates for deposits in the relevant Eurocurrency for such
period or, if such page or service shall cease to be available, such
other page or such other service (as the case may be) for the purpose
of displaying British Bankers Association Interest Settlement Rates
for such currency as the Administrative Agent, in its discretion,
shall select.
(b) If no such rate is displayed for the relevant currency and the
relevant period and there is no Eurocurrency alternative service on
which two or more such quotations for the Eurocurrency are displayed,
"Eurocurrency Reference Rate" will be the rate at which deposits in
the Eurocurrency of that amount are offered by the Administrative
Agent for that period to prime banks in the London inter bank market
at or about 11:00 a.m. (London time) on the Quotation Date for such
period.
Plus, in each case in which the Eurocurrency Advance is to be made in
British Pounds Sterling, the Cost Rate.
"Eurocurrency Loan" means a Multicurrency Loan which bears interest at the
Eurocurrency Rate.
"Eurocurrency Rate" means, with respect to a Eurocurrency Loan for the
relevant Interest Period, the sum of (a) the quotient of (i) the Eurocurrency
Reference Rate applicable to such Interest Period, divided by (ii) one minus the
Reserve Requirement (expressed as a decimal) applicable to such Interest Period,
plus (b) the Applicable Margin.
"Eurodollar Advance" means an Advance which bears interest at a Eurodollar
Rate.
"Eurodollar Base Rate" means, with respect to a Eurodollar Advance for the
relevant Interest Period, the rate determined by the Administrative Agent to be
the rate at which deposits in Dollars are offered to First Chicago by prime
banks in the London interbank market at approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period, in the
approximate amount of First Chicago's relevant Eurodollar Loan and having a
maturity approximately equal to such Interest Period.
"Eurodollar Loan" means a Loan which bears interest at a Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Advance for the
relevant Interest Period, the sum of (i) the quotient of (a) the Eurodollar Base
Rate applicable to such Interest Period, divided by (b) one minus the Reserve
Requirement (expressed as a decimal) applicable to such Interest Period, plus
(ii) the Applicable Margin. The Eurodollar Rate shall be rounded to the next
higher multiple of 1/16 of 1% if the rate is not such a multiple.
"Excess Cash Flow" means for any period, the total of the following for the
Borrower and its
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Subsidiaries on a consolidated basis: (a) EBITDA, plus (b) increases in deferred
income taxes, plus (c) decreases in Working Capital, less (d) Capital
Expenditures, less (e) Interest Expense, less (f) all principal payments on the
Advances (other than Revolving Credit Advances) during such period and all
mandatory principal payments on any other Indebtedness of the Borrower and its
Subsidiaries during such period, less (g) decreases in deferred incomes taxes
resulting from tax payments actually made during, or to be made with respect to,
such period, less (h) increases in Working Capital, less (i) taxes bases on
income or profits of the Borrower and its Subsidiaries and, without duplication,
payments of the State of Michigan single business tax and Permitted Tax
Distributions. It is acknowledged and agreed that cash being held pursuant to
Asset Sales which is expected to be reinvested in fixed assets shall be excluded
from Excess Cash Flow.
"Exchange Act" means the securities Exchange Act of 1934, as amended from
time to time, and the rules, regulations and interpretations thereunder.
"Facility Letter of Credit" means a Letter of Credit issued by the Issuer
pursuant to Section 2.2.
"Facility Letter of Credit Obligations" means, as at the time of
determination thereof, all liabilities, whether actual or contingent, of the
Borrower with respect to the Facility Letters of Credit, including the sum of
(a) Reimbursement Obligations and (b) the aggregate undrawn face amount of the
outstanding Facility Letters of Credit.
"Fairness Committee" means a committee duly established pursuant to the
Venture Trust Instrument and the bylaws or other organizational documents of
each other Guarantor, Subsidiary and any successor to the Borrower in accordance
with the terms hereof without whose approval (and without the approval of a
majority of its Independent members) the Borrower, a Guarantor or a Subsidiary
shall not be authorized to enter into any transaction or take any action which
pursuant to the terms hereof requires approval of the Fairness Committee.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10 a.m. (Detroit
time) on such day on such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by the
Administrative Agent in its sole discretion or, when used in connection with any
Advance denominated in any Eurocurrency, "Federal Funds Effective Rate" means
the correlative rate of interest with respect to such Eurocurrency as determined
by the Administrative Agent in its sole discretion for such day.
"Financial Contract" of a Person means (i) any exchange-traded or
over-the-counter futures, forward, swap or option contract or other financial
instrument with similar characteristics, and (ii) any agreements, devices or
arrangements providing for payments related to fluctuations of interest rates,
exchange rates or forward rates, including, but not limited to, interest rate
exchange agreements, forward currency exchange agreements, interest rate cap or
collar protection agreements, forward rate currency or interest rate options.
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"First Chicago" means The First National Bank of Chicago, a national
banking association, including any of its branches and Affiliates, and its
successors and assigns.
"Fixed Charges" means, for any period, without duplication, the sum of the
following amounts for such period (i) Consolidated Interest Expense, (ii) taxes
based on income or profits of the Borrower and its Subsidiaries and, without
duplication, payments of the State of Michigan single business tax payable by
the Borrower or any of its Subsidiaries and Permitted Tax Distributions, and
(iii) all scheduled principal payments paid or payable on Indebtedness, all
calculated for the Borrower and its Subsidiaries on a consolidated basis in
accordance with Agreement Accounting Principles.
"Fixed Charge Coverage Ratio" means, as of the end of any fiscal quarter,
the ratio of (a) EBITDA minus Capital Expenditures to (b) Fixed Charges, in each
case calculated for the four consecutive fiscal quarters then most recently
ended for the Borrower and its Subsidiaries on a consolidated basis in
accordance with Agreement Accounting Principles consistently applied. Any
purchase of fixed assets paid for with the Net Cash Proceeds from the sale of
any other fixed assets within 360 days of such sale shall not be considered a
Capital Expenditure under this definition to the extent such Net Cash Proceeds
were used for such payment.
"Floating Rate" means, for any day, a rate per annum equal to (i) the
Alternate Base Rate for such day plus (ii) the Applicable Margin, in each case
changing when and as the Alternate Base Rate changes.
"Floating Rate Advance" means an Advance which bears interest at the
Floating Rate.
"Floating Rate Loan" means a Loan which bears interest at the Floating
Rate.
"Foreign Plan" means any employee pension or welfare plan as described in
Section 3(3) of ERISA which (i) is maintained or contributed to for the benefit
of employees of the Borrower, any of its subsidiaries or any other member of the
Controlled Group, and (ii) is not covered by ERISA pursuant to Section 4(b)(4)
of ERISA.
"Foreign Subsidiary" means each Subsidiary of the Borrower other than a
Domestic Subsidiary.
"Foreign Subsidiary Opinion" means with respect to any Foreign Subsidiary,
a legal opinion of counsel to such Foreign Subsidiary addressed to the
Administrative Agent and the Lenders with respect to the matters listed on
Exhibit B, with such assumptions, qualifications and deviations therefrom as the
Administrative Agent shall approve.
"Governmental Authority" means any nation or government, any state, or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government, whether foreign or domestic.
"Guarantor" means each present and future Domestic Subsidiary of the
Borrower and each present and future Foreign Subsidiary of the Borrower required
by the Administrative Agent to enter into a Guaranty, which Guaranty is not
prohibited by applicable law or existing contractual restrictions or
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determined by the Administrative Agent to be impractical or cost prohibitive.
"Guaranty" means, collectively, that certain Guaranty in the form of
Exhibit C hereto, executed by the Guarantors in favor of the Administrative
Agent, for the ratable benefit of the Lenders, and any other guaranty executed
at any time by any Guarantor in connection herewith, as any of the foregoing may
be amended or modified from time to time.
"Indebtedness" of a Person means, without duplication, such Person's (i)
obligations for borrowed money or similar monetary obligations, (ii) obligations
representing the deferred purchase price of Property or services (other than
accounts payable arising in the ordinary course of such Person's business
payable on terms customary in the trade), (iii) obligations of others, whether
or not assumed, secured by Liens or payable out of the proceeds or production
from property now or hereafter owned or acquired by such Person, (iv)
obligations which are evidenced by notes, acceptances, bonds, indentures or
other instruments, (v) Capitalized Lease Obligations, (vi) obligations under
Financial Contracts, provided that any obligation under any specific Financial
Contract shall be net of amount owing to such Person under such Financial
Contract, (vii) all reimbursements obligations under outstanding Letters of
Credit in respect of drafts which (A) may be presented or (B) have been
presented and have not yet been paid, (viii) monetary obligations under any
receivables factoring, receivable sales or similar transactions and all monetary
obligations under any synthetic lease, tax ownership/operating lease,
off-balance sheet financing or similar financing, and (ix) Contingent
Obligations of such Person for any of the obligations of other Persons of the
type described in the foregoing clauses (i) through (viii).
"Independent" shall have the meanings ascribed thereto in the 1999 Senior
Unsecured Indenture as in effect on the date hereof.
"Interim Term Loan" means the term loans made on the Effective Date to the
Borrower by the Interim Term Loan Lenders pursuant to Section 2.5.
"Interim Term Loan Lenders" means the Lenders from time to time parties
hereto as lenders of the Interim Term Loan.
"Interim Term Loan Maturity Date" means November 27, 2000.
"Interim Term Loan Commitment" means with respect to each Interim Term Loan
Lender, the commitment of such Lender to make the Advance of the Interim Term
Loan on the Effective Date in an amount not exceeding the Interim Term Loan
Commitment amount for such Lender set forth on Schedule 1.1-B, or as otherwise
established, reduced or modified pursuant to the provisions hereof.
"Interim Term Loan Percentage" means with respect to each Interim Term Loan
Lender, its percentage share of Interim Term Loan.
"Interest Coverage Ratio" means, as of the end of any fiscal quarter, the
ratio of (a) EBITDA for the four fiscal quarters then ending to (b) to the sum
of Consolidated Interest Expense, in each case calculated for the four
consecutive fiscal quarters then most recently ended for the Borrower and its
Subsidiaries on a consolidated basis in accordance with Agreement Accounting
Principles consistently
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applied, provided, however, that (i) Consolidated Interest Expense as calculated
for the period ending September 30, 1999 shall be deemed equal to the amount of
Consolidated Interest Expense for the fiscal quarter ending September 30, 1999
times four, (ii) Consolidated Interest Expense calculated for the period ending
December 31, 1999 shall be deemed equal to the amount of Consolidated Interest
Expense for the two consecutive fiscal quarters ending December 31, 1999 times
two and (iii) Consolidated Interest Expense as calculated for the period ending
March 31, 2000 shall be deemed equal to the amount of Consolidated Interest
Expense for the three consecutive fiscal quarters ending March 31, 2000 times
four thirds.
"Interest Period" means, with respect to a Eurodollar Advance or a
Eurocurrency Advance, a period of one, two, three or six months commencing on a
Business Day selected by the Borrower pursuant to this Agreement. Such Interest
Period shall end on the day which corresponds numerically to such date one, two,
three, or six months thereafter, provided, however, that if there is no such
numerically corresponding day in such next, second, third or sixth succeeding
month, such Interest Period shall end on the last Business Day of such next,
second, third, or sixth succeeding month. If a Interest Period would otherwise
end on a day which is not a Business Day, such Interest Period shall end on the
next succeeding Business Day, provided, however, that if said next succeeding
Business Day falls in a new calendar month, such Interest Period shall end on
the immediately preceding Business Day.
"Issuer" means First Chicago and any other Lender designated at any time in
writing to the parties to the Agreement as an Issuer by the Borrower and the
Administrative Agent.
"Investment" of a Person means any loan, advance (other than commission,
travel and similar advances to officers, employees and independent contractors
made in the ordinary course of business), extension of credit (other than
accounts receivable arising in the ordinary course of business on terms
customary in the trade) or contribution of capital by such Person; stocks,
bonds, mutual funds, partnership interests, notes, debentures or other
securities owned by such Person; any deposit accounts and certificate of deposit
owned by such Person; and structured notes, derivative financial instruments and
other similar instruments or contracts owned by such Person.
"Joint Venture" means a limited purpose corporation, partnership, limited
liability company, joint venture or similar legal arrangement (whether created
by contract or conducted through a separate legal entity) now or hereafter
formed by the Borrower or any of its Subsidiaries with another Person or Persons
in order to conduct a common venture or enterprise with such Person or Persons.
"Lenders" means the lending institutions listed on the signature pages of
this Agreement and their respective successors and assigns.
"Lending Installation" means, with respect to a Lender or the
Administrative Agent, any office, branch, subsidiary or Affiliate of such Lender
or the Administrative Agent with respect to each Eurocurrency listed on the
administrative information sheets provided to the Administrative Agent in
connection herewith or otherwise selected by such Lender or the Administrative
Agent pursuant to Section 2.18.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon
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the application of such Person or upon which such Person is an account party or
for which such Person is in any way liable.
"Letter of Credit Collateral Account" is defined in Section 2.2.7.
"Leverage Ratio" means, at any time, the ratio of Total Debt at such time
to EBITDA calculated for the four most recently ended fiscal quarters as of such
time.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement benefiting a
third party of any kind or nature whatsoever (including, without limitation, the
interest of a vendor or lessor under any conditional sale, Capitalized Lease or
other title retention agreement).
"Loan" means, with respect to a Lender, such Lender's loan made pursuant to
Article II (or any conversion or continuation thereof), and, with respect to the
Administrative Agent, the Swing Loans.
"Loan Documents" means this Agreement, the Notes, the Collateral Documents,
the Guaranty, the Environmental Certificate, Rate Hedging Agreements with any
Lender or its Affiliates and all other agreements and documents contemplated
hereby or otherwise executed in connection herewith by the Borrower or any
Guarantor.
"Margin Stock" means "margin stock" as such term is defined in Regulation
T, U or X.
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property, condition (financial or otherwise), results of operations,
or prospects of the Borrower and its Subsidiaries taken as a whole, (ii) the
ability of the Borrower or any Guarantor to perform its obligations under the
Loan Documents, or (iii) the validity or enforceability of any of the Loan
Documents or the rights or remedies of the Administrative Agent or the Lenders
thereunder.
"Mortgages" means each mortgage, deed of trust or similar document granting
a Lien on real property entered into by the Borrower or any Guarantor for the
benefit of the Administrative Agent and the Lenders pursuant to this Agreement,
substantially in the forms as approved by the Administrative Agent, as amended
or modified from time to time.
"Multicurrency Advance" means a borrowing hereunder (or continuation or a
conversion thereof) consisting of the several Multicurrency Loans made on the
same Borrowing Date (or date of conversion or continuation) by the Lenders to a
Borrower of the same Type, in the same Eurocurrency and for the same Interest
Period.
"Multicurrency Revolving Credit Commitment" means, as to any Multicurrency
Revolving Credit Lender at any time, its obligation to make Revolving Credit
Loans to the Borrower in Eurocurrencies under Section 2.1.(b) in an aggregate
amount not to exceed at any time outstanding the Dollar Equivalent of the amount
set forth opposite such Lender's name in Schedule 1.1-B under the heading
"Multicurrency Revolving Credit Commitment" or as otherwise established, reduced
or
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modified pursuant to the provisions hereof.
"Multicurrency Revolving Credit Lender" means a Revolving Credit Lender
which has a Multicurrency Revolving Credit Commitment or holds a Multicurrency
Revolving Credit Loan.
"Multicurrency Revolving Credit Loans" means Revolving Credit Loans
denominated in Eurocurrencies made to the Borrower pursuant to Section 2.1(b).
"Multiemployer Plan" means a plan defined in Section 4001(a)(3) of ERISA to
which the Borrower or any member of the Controlled Group has an obligation to
contribute.
"Net Cash Proceeds" means, without duplication (a) in connection with any
sale or other disposition of any asset or any settlement by, or receipt of
payment in respect of, any property insurance claim or condemnation award, the
cash proceeds (including any cash payments received by way of deferred payment
of principal pursuant to a note or installment receivable or purchase price
adjustment receivable or otherwise, but only as and when received) of such sale,
settlement or payment, net of reasonable and documented attorneys' fees,
accountants' fees, investment banking fees, amounts required to be applied to
the repayment of Indebtedness secured by a Lien expressly permitted hereunder on
any asset which is the subject of such sale, insurance claim or condemnation
award (other than any Lien in favor of the Administrative Agent for the benefit
of the Administrative Agent and the Lenders) and other customary fees and
expenses actually incurred in connection therewith, taxes paid or reasonably
estimated to be payable as a result thereof, and any cash reserves required to
be maintained for liabilities associated with the sale (provided that such cash
reserves shall become Net Cash Proceeds when no longer required to be held as
reserves), and (b) in connection with any issuance or sale of any equity
securities or debt securities or instruments or the incurrence of loans, the
cash proceeds received from such issuance or incurrence, net of investment
banking fees, reasonable and documented attorneys' fees, accountants' fees,
underwriting discounts and commissions and other reasonable and customary fees
and expenses actually incurred in connection therewith.
"1997 Credit Agreement" means the Credit Agreement dated as of July_9,
1997, as amended, among the borrowers named therein, the lenders party thereto
and NBD Bank, as agent.
"1997 Senior Unsecured Indenture" means the Indenture dated as of July 1,
1997 among the Borrower and certain of its Subsidiaries, as Issuers and The
Huntington National Bank, as Indenture Trustee, under which the 1997 Senior
Unsecured Notes were issued.
"1997 Senior Unsecured Debt Documents" means the 1997 Senior Unsecured
Indenture, together with all agreements, documents and instruments executed in
connection therewith at any time related to the 1997 Senior Unsecured Notes.
"1997 Senior Unsecured Notes" means the $205,000,000 9 1/2% Senior Notes
due 2005 issued by the Borrower and certain of its Subsidiaries on July 9, 1997.
"1999 Senior Unsecured Indenture" means that certain Indenture dated as of
the Effective Date among the Borrower, as issuer, and The Huntington National
Bank, as Indenture Trustee, under which
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the 1999 Senior Unsecured Notes were issued.
"1999 Senior Unsecured Debt Documents" means the 1999 Senior Unsecured
Indenture, together with all agreements, documents and instruments executed in
connection therewith at any time related to the 1999 Senior Unsecured Notes.
"1999 Senior Unsecured Notes" means the $125,000,000 Senior Notes due 2007
issued by the Borrower on the Effective Date.
"1999 Subordinated Debt" means all Indebtedness owing pursuant to the 1999
Subordinated Debt Documents.
"1999 Subordinated Debt Documents" means the 1999 Subordinated Indenture,
together with all agreements, documents and instruments executed in connection
therewith at any time related to the 1999 Subordinated Notes.
"1999 Subordinated Indenture" means that certain Indenture dated as of the
Effective Date among the Borrower, as issuer, and The Huntington National Bank,
as Indenture Trustee, under which the 1999 Subordinated Notes were issued.
"1999 Subordinated Notes" means the $125,000,000 Senior Subordinated Notes
due 2009 issued by the Borrower on the Effective Date.
"Note" means the Swingline Note, any Revolving Credit Note or any Term
Note.
"Notice of Assignment" is defined in Section 12.3.2.
"Obligations" means, without duplication, all unpaid principal of and
accrued and unpaid interest on the Loans, all accrued and unpaid fees, all
Facility Letter of Credit Obligations and all other obligations of any of the
Borrower or Guarantors to the Lenders or to any Lender or the Issuer or the
Administrative Agent arising under the Loan Documents, in each case whether now
or hereafter owing.
"Operating Expense or Cost Reduction" means, with respect to the
calculation of any financial ratio under this Agreement on a Pro Forma Basis, an
operating expense or cost reduction with respect to an Acquisition, which, in
the good faith estimate of management, will be realized as a result of such
Acquisition, provided that the foregoing eliminations of operating expenses and
realizations of cost reductions shall be of the types permitted to be given
effect to in accordance with Article 11 of Regulation S-X under the Exchange Act
and the rules and regulations promulgated by the Securities and Exchange
Commission thereunder, as in effect on the Effective Date and such reduction is
subject to negative comfort by the Borrower's independent public accountants.
"Operating Lease" of a Person means any lease of Property (other than a
Capitalized Lease) by such Person as lessee which has an original term
(including any required renewals and any renewals effective at the option of the
lessor) of one year or more.
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"Overdue Rate" means (a) in respect of principal of Floating Rate Loans, a
rate per annum that is equal to the sum of three percent (3%) per annum plus the
Floating Rate, (b) in respect of principal of Eurodollar Loans or Eurocurrency
Loans, a rate per annum that is equal to the sum of three percent (3%) per annum
plus the per annum rate in effect thereon until the end of the then current
Interest Period for such Loan and, thereafter, a rate per annum that is equal to
the sum of three percent (3%) per annum plus the Floating Rate, and (c) in
respect of other amounts payable by the Borrower hereunder (other than
interest), a per annum rate that is equal to the sum of three percent (3%) per
annum plus the Floating Rate.
"Participants" is defined in Section 12.2.1.
"Pass Through Entity" is defined in Section 6.10.
"Payment Date" means the last Business Day of each March, June, September
and December.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Peguform" means Peguform GmbH, a limited liability company organized under
the laws of Germany.
"Peguform Acquisition" means the Acquisition to be completed pursuant to
the Peguform Acquisition Documents.
"Peguform Acquisition Documents" means the agreements dated on March 8,
1999 between the Borrower and those companies listed in the agreements for the
Acquisition of Peguform, together with all agreements, documents and instruments
executed in connection therewith or otherwise pursuant thereto.
"Peguform Restructuring" means the restructuring to be completed following
the Peguform Acquisition as described on Schedule 1.1-C hereto.
"Permitted Tax Distributions" is defined in Section 6.10.
"Person" or "person" means any natural person, corporation, firm, limited
liability company, joint venture, partnership, association, enterprise, trust or
other entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by Title IV
of ERISA or subject to the minimum funding standards under Section 412 of the
Code as to which the Borrower or any member of the Controlled Group may have any
liability.
"Pledge Agreements" means each Pledge Agreement entered into by the
Borrower or any Guarantor for the benefit of the Administrative Agent and the
Lenders pursuant to this Agreement substantially in the forms attached hereto as
Exhibits D-1 and D-2, as amended or modified from time to time.
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"Principal" means Larry J. Winget.
"Pro Forma Basis" means, for purposes of calculating compliance with any
financial ratio under this Agreement, giving pro forma effect to certain
transactions such that, (i) Acquisitions which occurred during the four full
fiscal quarters ended immediately preceding any date upon which any
determination is to be made pursuant to this Agreement (the "Reference Period")
or subsequent to the Reference Period and on or prior to the determination date
shall be assumed to have occurred on the first day of the Reference Period and
any Operating Expense or Cost Reduction with respect to such Acquisition shall
be deducted from such calculation, (ii) transactions giving rise to the need to
calculate any financial ratio under this Agreement shall be assumed to have
occurred on the first day of the Reference Period, (iii) the incurrence of any
Indebtedness or issuance of any Disqualified Capital Stock during the Reference
Period or subsequent to the Reference Period and on or prior to the
determination date (and the application of the proceeds therefrom, including to
refinance or retire other Indebtedness) shall be assumed to have occurred on the
first day of such Reference Period (except that, in making such computation, the
amount of Indebtedness under any revolving credit facility shall be computed
based on the average daily balance during the Reference Period), and (iv) the
Consolidated Fixed Charges of such person attributable to interest on any
Indebtedness or dividends on any Disqualified Capital Stock bearing a floating
interest (or dividend) rate shall be computed on a pro forma basis as if the
average rate in effect from the beginning of the Reference Period to the
determination date had been the applicable rate for the entire period, unless
such person or any of its Subsidiaries is a party to any Rate Hedging Agreement
(which shall remain in effect for the 12-month period immediately following the
determination date) that has the effect of fixing the interest rate on the date
of computation, in which case such rate (whether higher or lower) shall be used.
"Pro Forma Financial Statements and Projections" mean the pro forma
financial statements giving effect to the Acquisition and projections of the
financial results of the Borrower previously furnished by the Borrower to the
Administrative Agent and the Lenders.
"Pro Rata Share" means, for each Lender, the ratio such Lender's Revolving
Credit Commitment bears to the Aggregate Revolving Credit Commitment, or, if the
Revolving Credit Commitments have been terminated, the ratio such Lender's
Revolving Credit Commitment bore to the Aggregate Revolving Credit Commitment
immediately prior to such termination, subject to Section 2.5(b).
"Property" of a Person means any and all property, whether real, personal,
tangible, intangible, or mixed, of such Person, or other assets owned, leased or
operated by such Person.
"Purchasers" is defined in Section 12.3.1.
"Quotation Date" in relation to any period for which a Eurocurrency
Reference Rate is to be determined hereunder, means the date on which quotations
would ordinarily be given by prime lenders in the London inter-bank market for
deposits in the Eurocurrency in relation to which such rate is to be determined
for delivery on the first day of that period, provided that, if, for such
period, quotations would ordinarily be given on more than one date, the
Quotation Date for that period shall be the last of those dates.
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"Rate Hedging Agreement" means an agreement, device or arrangement
providing for payments which are related to fluctuations of interest rates,
commodity prices, exchange rates or forward rates, including, but not limited
to, dollardenominated or crosscurrency interest rate exchange agreements,
forward currency exchange agreements, interest rate cap or collar protection
agreements, forward rate currency or interest rate options, puts and warrants.
"Rate Hedging Obligations" of a Person means any and all obligations of
such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all Rate
Hedging Agreements, and (ii) any and all cancellations, buy backs, reversals,
terminations or assignments of any Rate Hedging Agreement.
"Reimbursement Obligations" means, at any time, without duplication, the
aggregate of the obligations of the Borrower to the Lenders and the Issuer in
respect of all unreimbursed payments or disbursements made by the Issuer and the
Lenders under or in respect of the Facility Letters of Credit.
"Regulation D" means Regulation D of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor thereto or other
regulation or official interpretation of said Board of Governors relating to
reserve requirements applicable to member banks of the Federal Reserve System.
"Regulation T" means Regulation T of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors.
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors.
"Regulation X" means Regulation X of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors.
"Related Party" means the Principal's estate or legal representative,
members of his immediate family and all lineal descendants of the Principal and
all spouses of such lineal descendants (or any trust(s) or entity(ies) whose
sole beneficiaries or holders of Capital Stock, or the holders of a majority of
the outstanding Voting Stock are any one or more of the foregoing).
"Reportable Event" means a reportable event as defined in Section 4043 of
ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days of
the occurrence of such event, provided, however, that a failure to meet the
minimum funding standard of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such waiver of the
notice requirement in accordance with either Section 4043(a) of ERISA or Section
412(d) of the Code.
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"Required Lenders" at any time means Lenders holding at least 51% of the
Revolving Credit Commitments, the Aggregate Interim Term Loan Outstandings of
all Lenders, the Aggregate Term Loan A Outstandings of all Lenders and the
Aggregate Term Loan B Outstandings of all Lenders (or 51% of the Aggregate Total
Outstandings at such time if the Revolving Credit Commitments have been
terminated).
"Required Multicurrency Revolving Credit Lenders" at any time means
Multicurrency Revolving Credit Lenders holding at least 51% of the Multicurrency
Revolving Credit Commitments (or 51% of the Aggregate Multicurrency Revolving
Credit Outstandings at such time if the Revolving Credit Commitments have been
terminated).
"Required Revolving Credit Lenders" means Revolving Credit Lenders holding
not less than 51% of the Revolving Credit Commitments (or 51% of the Revolving
Credit Loans and Reimbursement Obligations if the Revolving Credit Commitments
have been terminated).
"Required Term Loan A Lenders" means Term Loan A Lenders holding not less
than 51% of the Term Loan A Commitments (or 51% of the Aggregate Term Loan A
Outstandings if the Term Loan A Commitments have been terminated.)
"Required Term Loan B Lenders" means Term Loan B Lenders holding not less
than 51% of the Term Loan B Commitments (or 51% of the Aggregate Term Loan B
Outstandings if the Term Loan B Commitments have been terminated.)
"Requirement of Law" means, as to any Person, any law (statutory or
common), treaty, rule or regulation or determination of an arbitrator or of a
Governmental Authority, in each case applicable to or binding upon the Person or
any of its property or to which the Person or any of its property is subject.
"Reserve Requirement" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on Eurocurrency
liabilities and/or under any applicable requirements of any Governmental
Authority in the country in which such Eurocurrency circulates in the case of
any Multicurrency Loan, without duplication of the effect of the Cost Rate in
the determination of applicable interest rates and costs hereunder.
"Revolving Credit Commitments" means, with respect to each Lender, the
commitment of each such Lender to make Revolving Credit Loans, and to
participate in Facility Letters of Credit and Swing Loans, in amounts not
exceeding in the aggregate principal or face amount outstanding at any time the
Revolving Credit Commitment amount for such Lender set forth next to the name of
such Lender on the signature pages hereof, or, as to any Lender becoming a party
hereto after the Effective Date, as set forth in the applicable assignment, in
each case as reduced or modified pursuant to this Agreement.
"Revolving Credit Lenders" means those Lenders which have Revolving Credit
Commitments or, if such Revolving Credit Commitments shall have been terminated,
have outstanding Revolving Credit Loans or Facility Letters of Credit
Obligations.
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"Revolving Credit Loan" means any borrowing under Section 2.1(a) or (b).
"Revolving Credit Notes" means the promissory notes, if any, of the
Borrower in substantially the form of Exhibit E hereto evidencing the Revolving
Credit Loans, respectively, as amended or modified from time to time and
together with any promissory note or notes issued in exchange or replacement
therefor.
"Same Day Funds" means (i) with respect to disbursements and payments in
Dollars, immediately available funds, and (ii) with respect to disbursements and
payments in any Eurocurrency, same day or other funds as may be determined by
the Administrative Agent to be customary in the place of disbursement or payment
for the settlement of international banking transactions in the relevant
Eurocurrency.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Secured Obligations" means, collectively, (i) the Obligations and (ii) all
Rate Hedging Obligations owing to one or more Lenders or their Affiliates.
"Securities Act" means the Securities Act of 1993, as amended from time to
time, and the rules, regulations and interpretations thereunder.
"Security Agreement" means each security agreement in substantially the
form of Exhibit F hereto entered into by the Borrower or any Guarantor for the
benefit of the Administrative Agent and the Lenders pursuant to this Agreement,
as amended or modified from time to time.
"Single Employer Plan" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
"Significant Subsidiary" means any one or more Subsidiaries of the Borrower
which, if considered in the aggregate as a single Subsidiary, (i) represent more
than 5% of the consolidated assets of the Borrower and its Subsidiaries as would
be shown in the consolidated financial statements of the Borrower and its
Subsidiaries as at the beginning of the twelve month period ending with the
month in which such determination is made, or (ii) are responsible for more than
10% of the consolidated net sales or of the consolidated net income of the
Borrower and its Subsidiaries as reflected in the financial statements referred
to in clause (i) above.
"Subordinated Indebtedness" of a Person means any Indebtedness of such
Person the payment of which is subordinated to payment of the Secured
Obligations to the written satisfaction of the Required Lenders.
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(ii) any partnership, limited liability company, association, joint venture or
similar business
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organization more than 50% of the ownership interests having ordinary voting
power of which shall at the time be so owned or controlled. Unless otherwise
expressly provided, all references herein to a "Subsidiary" means a Subsidiary
of the Borrower.
"Substantial Portion" means, with respect to the Property of the Borrower
and its Subsidiaries, property which (i) represents more than 5% of the
consolidated assets of the Borrower and its Subsidiaries as would be shown in
the consolidated financial statements of the Borrower and its Subsidiaries as at
the beginning of the twelve month period ending with the month in which such
determination is made, or (ii) is responsible for more than 10% of the
consolidated net sales or of the consolidated net income of the Borrower and its
Subsidiaries as reflected in the financial statements referred to in clause (i)
above.
"Swing Loans" is defined in Section 2.1(d).
"Swingline Note" means the promissory note of the Borrower evidencing the
Swing Loans, in form satisfactory to the Administrative Agent, as amended or
modified from time to time and together with any promissory note or notes issued
in exchange or replacement therefor.
"Syndication Agent" means The Bank of Nova Scotia as Syndication Agent
hereunder, and not in its individual capacity as a Lender.
"Term Loan A" means the term loans made on the Effective Date to the
Borrower by the Term Loan A Lenders pursuant to Section 2.3.
"Term Loan A Lenders" means the Lenders from time to time parties hereto as
lenders of Term Loan A.
"Term Loan A Commitment" means with respect to each Term Loan A Lender, the
commitment of such Lender to make an Advance of Term Loan A in an amount not
exceeding the Term Loan A Commitment amount for such Lender set forth on
Schedule 1.1-B, or as otherwise established, reduced or modified pursuant to the
provisions hereof.
"Term Loan A Maturity Date" means May 27, 2004.
"Term Loan A Percentage" means with respect to each Term Loan A Lender, its
percentage share of Term Loan A.
"Term Loan Lenders" means collectively the Interim Term Loan Lenders, the
Term Loan A Lenders and the Term Loan B Lenders.
"Term Loan B" means the term loans made on the Effective Date to the
Borrower by the Term Loan B Lenders pursuant to Section 2.4.
"Term Loan B Commitment" means with respect to each Term Loan B Lender, the
commitment of such Lender to make Advances of Term Loans B on the Effective Date
in an amount not exceeding
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the Term Loan B Commitment amount for such Lender set forth on Schedule 1.1-B,
or as otherwise established, reduced or modified pursuant to the provisions
hereof.
"Term Loan B Lenders" means the Lenders from time to time parties hereto as
lenders of Term Loan B.
"Term Loan B Maturity Date" means April 1, 2005.
"Term Loan B Percentage" means with respect to each Term Loan B Lender, its
percentage share of Term Loan B.
"Term Notes" means the term notes, if any, made by the Borrower to each of
the applicable Lenders in the form attached as Exhibits G-1, G-2 and G-3 to this
Agreement to evidence Term Loan A, Term Loan B and the Interim Term Loan,
respectively, as such notes may be amended or supplemented from time to time,
and any notes issued in substitution,_renewal or replacement thereof from time
to time.
"Termination Date" means the earlier to occur of (a) May 27, 2004, and (b)
the date on which the Revolving Credit Commitments shall be terminated pursuant
hereto.
"Total Debt" as of any date, means all of the following for the Borrower
and its Subsidiaries on a consolidated basis and without duplication: (i) all
debt for borrowed money and similar monetary obligations evidenced by bonds,
notes, debentures, Capitalized Lease Obligations or otherwise, including without
limitation obligations in respect of the deferred purchase price of properties
or assets and all monetary obligations and other amounts financed pursuant to
any receivables factoring, receivable sales or similar transactions, any
synthetic lease, tax ownership/operating lease, off-balance sheet financing or
similar financing, in each case whether direct or indirect; (ii) all liabilities
of others secured by any Lien existing on property owned or acquired subject
thereto, whether or not the liability secured thereby shall have been assumed;
(iii) all reimbursement obligations under outstanding letters of credit, bankers
acceptances or similar instruments in respect of drafts which (A) may be
presented or (B) have been presented and have not yet been paid and are not
included in clause (i) above; and (iv) all guarantees and other Contingent
Obligations relating to indebtedness or liabilities of the type described in the
foregoing clauses (i), (ii) or (iii).
"Transferee" is defined in Section 12.4.
"Trust Contribution" is defined in Section 6.12.
"Type" means, with respect to any Advance, its nature as a Floating Rate
Advance, Eurodollar Advance or Eurocurrency Advance.
"Unfunded Liabilities" means the amount (if any) by which the present value
of all vested and unvested accrued benefits under all Single Employer Plans
exceeds the fair market value of all such Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Plans using PBGC actuarial assumptions for single employer plan terminations.
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"United Kingdom" or "U.K." means the United Kingdom of Great Britain and
Northern Ireland.
"United States" or "U.S." means the United States of America.
"Unmatured Default" means an event which but for the lapse of time or the
giving of notice, or both, would constitute a Default.
"Venture Trust Instrument" means the Agreement, dated December 28, 1987, as
amended and restated on February 16, 1994, as amended, among the Principal, as
Trustee, and the Principal, as Settlor, Beneficiary and Special Advisor, as such
agreement may be amended in accordance with the terms hereof.
"VHT Trustee" means the Principal, as trustee under the Venture Trust
Instrument, and any successor or replacement trustee or any co-trustee appointed
pursuant to the terms of the Venture Trust Instrument.
"Voting Stock" of a Person means all classes of Capital Stock of such
Person then outstanding and normally entitled (without regard to the occurrence
of any contingency) to vote in the election of directors, managers, trustees or
similar persons thereof.
"WhollyOwned Subsidiary" of a Person means any Subsidiary of such Person
for which at least 99% of the outstanding Voting Stock of such Subsidiary shall
at the time be owned or controlled, directly or indirectly, by such Person.
"Working Capital" means, as of any date, the amount, if any, by which
Consolidated Current Assets exceeds Consolidated Current Liabilities.
"Year 2000 Issues" means anticipated costs, problems and uncertainties
associated with the inability of certain computer applications to effectively
handle data including dates on and after January 1, 2000, as such inability
affects the business, operations and financial condition of the Borrower and its
Subsidiaries and of the Borrower's and its Subsidiaries' material customers,
suppliers and vendors.
"Year 2000 Program" is defined in Section 5.28.
The foregoing definitions shall be equally applicable to both the singular
and plural forms of the defined terms.
2. THE CREDITS
a. Revolving Credit Commitments of the Lenders
(1) Dollar Revolving Credit Loans. Each Revolving Credit Lender
agrees, for itself only, subject to the terms and conditions
of this Agreement, to make Dollar Revolving Credit Loans to
the Borrower from time to time from and including the
Effective Date to but excluding the Termination
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Date, not to exceed in aggregate principal amount at any
time outstanding the amount determined pursuant to Section
2.1(c). Dollar Revolving Credit Loans or any portion thereof
at the Borrower's option, may be Floating Rate Loans or
Eurodollar Loans or any combination thereof subject to the
terms thereof, with the initial selection by the Borrower in
accordance with procedures acceptable to the Administrative
Agent and the subsequent selections in accordance with
Sections 2.10 or 2.11 .
(2) Multicurrency Revolving Credit Loans Each Multicurrency
Revolving Credit Lender agrees, for itself only, subject to
the terms and conditions of this Agreement, to make
Multicurrency Revolving Credit Loans to the Borrower from
time to time from and including the Effective Date to but
excluding the Termination Date, not to exceed in aggregate
principal amount at any time outstanding the amount
determined pursuant to Section 2.1(c). Multicurrency
Revolving Credit Loans shall be Eurocurrency Loans, with the
initial selection by the Borrower in accordance with
procedures acceptable to the Administrative Agent and any
subsequent selections in accordance with Sections 2.10 and
2.11.
(3) Limitation on Amount of Advances. Notwithstanding anything
in this Agreement to the contrary, (i) the Dollar Equivalent
of the aggregate principal amount of the Revolving Credit
Loans, the Swing Loans and the Facility Letter of Credit
Obligations at any time outstanding to the Borrower shall
not exceed the lesser of (A) the amount of the Borrowing
Base as of the most recently received Borrowing Base
Certificate and (B) the Aggregate Revolving Credit
Commitment as of the date any such Advance is made,
provided, however, that the Dollar Equivalent of the
aggregate Facility Letter of Credit Obligations at any time
shall not exceed $50,000,000 and the Dollar Equivalent of
the aggregate of Swing Loans at any time outstanding shall
not exceed $15,000,000, (ii) the Dollar Equivalent of the
Aggregate Revolving Credit Outstandings of any Revolving
Credit Lender shall not exceed the Revolving Credit
Commitment of such Lender, and (iii) the Dollar Equivalent
of the Aggregate Multicurrency Revolving Credit Outstandings
of any Multicurrency Revolving Credit Lender shall not
exceed the Multicurrency Revolving Credit Commitment of such
Lender.
(4) Swing Loans.
(a) Making of Swing Loans. The Administrative Agent may
elect in its sole discretion to make revolving loans
(the "Swing Loans") to the Borrower from time to time
prior to the Termination Date in Dollars or any
Eligible Currency up to an aggregate Dollar Equivalent
at any one time outstanding not to exceed the lesser of
(i) $15,000,000 or (ii) the amount allowable
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under Section 2.1(c). The Administrative Agent may make
Swing Loans (provided that the Administrative Agent has
received a request in writing or via telephone from an
Authorized Officer for funding of a Swing Loan) no
later than noon, Detroit time, on the Business Day on
which such Swing Loan is requested to be made, or 11:00
a.m., London time, on such Business Day, in the case of
any Swing Loan in an Eligible Currency. Each
outstanding Swing Loan shall be payable on the Business
Day following demand therefor and in any event no later
than five Business Days after the Borrowing Date for
such Swing Loan, with interest at such rate as the
Borrower and the Administrative Agent shall agree,
shall be secured as part of the Secured Obligations by
the Collateral and shall otherwise be subject to all
the terms and conditions applicable to Loans, except
that all interest thereon shall be payable to the
Administrative Agent solely for its own account.
(b) Swing Loan Borrowing Requests. The Borrower agrees to
deliver promptly to the Administrative Agent a written
confirmation of each telephonic notice for Swing Loans
signed by an Authorized Officer. If the written
confirmation differs in any material respect from the
action taken by the Administrative Agent, the records
of the Administrative Agent shall govern, absent
manifest error.
(c) Repayment of Swing Loans. At any time after making a
Swing Loan, the Administrative Agent may request the
Borrower to, and upon request by the Administrative
Agent the Borrower shall, promptly request a Revolving
Credit Loan from all the Revolving Credit Lenders and
apply the proceeds of such Revolving Credit Loan to the
repayment of any Swing Loan owing by the Borrower not
later than three Business Days following the
Administrative Agent's request. Notwithstanding the
foregoing, upon the earliest to occur of (a) 12 noon,
Detroit time, on the sixth Business Day after a Swing
Loan is made, (b) three Business Days after demand is
made by the Administrative Agent, (c) the date a Swing
Loan is to be refunded with a Revolving Credit Loan,
and (d) the Termination Date, the Borrower agrees that
each Swing Loan outstanding in an Eligible Currency
shall be immediately and automatically converted to and
redenominated in Dollars equal to the Dollar Equivalent
of each such Swing Loan determined as of the date of
such conversion, and each Revolving Credit Lender
(other than the Administrative Agent) shall irrevocably
and unconditionally purchase from the Administrative
Agent, without recourse or warranty, an undivided
interest and participation in such Swing Loan in an
amount equal to such
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Lender's Pro Rata Share of such Swing Loan and promptly
pay such amount to the Administrative Agent in
immediately available funds. Such payment shall be made
by the other Lenders whether or not a Default or
Unmatured Default is then continuing or any other
condition precedent set forth in Section 4.2 is then
met and whether or not the Borrower has then requested
an Advance in such amount; and such Swing Loan shall
thereupon be deemed to be a Floating Rate Advance
hereunder made on the date of such purchase (except, as
aforesaid, with respect to the existence of any Default
or Unmatured Default or the meeting of any condition
precedent specified in Section 4.2 on such date). If
any Lender fails to make available to the
Administrative Agent any amounts due to the
Administrative Agent pursuant to this Section, the
Administrative Agent shall be entitled to recover such
amount, together with interest thereon at the Federal
Funds Effective Rate for the first three Business Days
after such Lender receives notice of such required
purchase and thereafter, at the Floating Rate, payable
(i) on demand, (ii) by setoff against any payments made
to the Administrative Agent for the account of such
Lender or (iii) by payment to the Administrative Agent
by the Administrative Agent of amounts otherwise
payable to such Lender under this Agreement. The
failure of any Revolving Credit Lender to make
available to the Administrative Agent its Pro Rata
Share of any unpaid Swing Loan shall not relieve any
other Revolving Credit Lender of its obligation
hereunder to make available to the Administrative Agent
its Pro Rata Share of any unpaid Swing Loan on the date
such payment is to be made, but no Lender shall be
responsible for the failure of any other Lender to make
available to the Administrative Agent its Pro Rata
Share of any unpaid Swing Loan.
b. Facility Letters of Credit.
i. Obligation to Issue. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of
the Borrower and the Guarantors in the Loan Documents, the Issuer
hereby agrees to issue for the account of the Borrower through such of
the Issuer's Lending Installations as the Issuer and the Borrower may
jointly agree, one or more Facility Letters of Credit in accordance
with this Section 2.2, from time to time during the period, commencing
on the Effective Date and ending on the Business Day prior to the
Termination Date.
ii. Conditions for Issuance. In addition to being subject to the
satisfaction of the conditions contained in Section 4.2, the
obligation of the Issuer to issue any Facility Letter of Credit is
subject to the satisfaction in full of the following conditions:
(a) the aggregate maximum amount then available for drawing
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under Letters of Credit issued by the Issuer, after giving
effect to the Facility Letter of Credit requested hereunder,
shall not exceed any limit imposed by law or regulation upon
the Issuer;
(b) after giving effect to the requested issuance of any
Facility Letter of Credit, the sum of (a) the Facility
Letter of Credit Obligations and (b) the total aggregate
unpaid principal balance of the Revolving Credit Loans and
Swing Loans does not exceed the amount permitted under
2.1(c).
(c) the requested Letter of Credit has an expiration date prior
to the earlier of the Termination Date or the date one year
after the issuance of such Letter of Credit;
(d) the Borrower shall have delivered to the Issuer at such
times and in such manner as the Issuer may reasonably
prescribe such documents and materials as may be required
pursuant to the terms of the proposed Letter of Credit and
the proposed Letter of Credit shall be reasonably
satisfactory to the Issuer as to form and content; and
(e) as of the date of issuance, no order, judgment or decree of
any court, arbitrator or governmental authority shall
purport by its terms to enjoin or restrain the Issuer from
issuing the Facility Letter of Credit and no law, rule or
regulation applicable to the Issuer and no request or
directive (whether or not having the force of law) from any
governmental authority with jurisdiction over the Issuer
shall prohibit or request that the Issuer refrain from the
issuance of Letters of Credit generally or the issuance of
that Facility Letter of Credit.
iii. Procedure for Issuance of Facility Letters of Credit.
(1) The Borrower shall give the Issuer two Business Day's prior
written notice of any requested issuance of a Facility Letter of
Credit under this Agreement (except that, in lieu of such written
notice, the Borrower may give the Issuer (x) notice of such
request by tested telex or other tested arrangement satisfactory
to the Issuer or (y) telephonic notice of such request if
confirmed in writing by delivery to the Issuer (i) immediately
(A) of a telecopy of the written notice required hereunder which
has been signed by an Authorized Officer of the Borrower or (B)
of a telex containing all information required to be contained in
such written notice and (ii) promptly (but in no event later than
the requested time of issuance) of a copy of the written notice
required hereunder containing the original signature of an
Authorized Officer of the Borrower); such notice shall be
irrevocable and shall specify the stated amount of the Facility
Letter of Credit requested, the effective date (which day shall
be a Business Day) of issuance of such requested Facility Letter
of Credit, the date on which such requested Facility Letter of
Credit is to expire (which date shall be a Business Day and shall
in no event be later than the earlier of Termination Date or the
date one year after the issuance of
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such Letter of Credit), the purpose for which such Facility
Letter of Credit is to be issued, and the Person for whose
benefit the requested Facility Letter of Credit is to be issued.
At the time such request is made, the Borrower shall also provide
the Issuer with a copy of the form of the Facility Letter of
Credit it is requesting be issued. Such notice, to be effective,
must be received by the Issuer not later than 2:00 p.m. (Detroit
time) or the time agreed upon by the Issuer and the Borrower on
the last Business Day on which notice can be given under this
Section 2.2.3(a). The Issuer shall promptly forward to the
Lenders a copy of the Borrower's request for the issuance of a
Letter of Credit hereunder.
(2) Subject to the terms and conditions of this Section 2.2.3 and
provided that the applicable conditions set forth in Sections 4.2
and 2.2.2 hereof have been satisfied, the Issuer shall, on the
requested date, issue a Facility Letter of Credit on behalf of
the Borrower in accordance with the Issuer's usual and customary
business practices.
(3) The Issuer shall not extend or amend any Facility Letter of
Credit unless the requirements of this Section 2.2.3 are met as
though a new Facility Letter of Credit was being requested and
issued.
iv. Reimbursement Obligations.
(1) The Borrower agrees to pay to the Administrative Agent, without
duplication, the amount of all Reimbursement Obligations,
interest and other amounts payable to the Administrative Agent
under or in connection with any Facility Letter of Credit
immediately when due, irrespective of any claim, setoff, defense
or other right which the Borrower or any Subsidiary may have at
any time against the Issuer or any other Person, under all
circumstances, including without limitation, any of the following
circumstances:
(a) any lack of validity or enforceability of this Agreement or
any of the other Loan Documents;
(b) the existence of any claim, setoff, defense or other right
which the Borrower or any Subsidiary may have at any time
against a beneficiary named in a Facility Letter of Credit
or any transferee of any Facility Letter of Credit (or any
Person for whom any such transferee may be acting), the
Issuer, any Lender, or any other Person, whether in
connection with this Agreement, any Facility Letter of
Credit, the transactions contemplated herein or any
unrelated transactions (including any underlying
transactions between the Borrower or any Subsidiary and the
beneficiary named in any Facility Letter of Credit);
(c) any draft, certificate or any other document presented under
the Facility Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect
(provided that, if all Reimbursement Obligations have been
paid in full and there is no Default or Unmatured Default,
the Issuer shall assign,
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without recourse, representation or warranty, to the
Borrower any claim, if any, it may have against any person
that has drawn on a Facility Letter of Credit pursuant to a
draft, certificate or other document which was forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being true or inaccurate in any respect
pursuant to such Facility Letter of Credit);
(d) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the
Loan Documents;
(e) the occurrence of any Default or Unmatured Default.
(2) The Issuer shall promptly notify the Borrower of any draw under a
Facility Letter of Credit. The Borrower shall reimburse the
Issuer for drawings under a Facility Letter of Credit issued by
it no later than the Business Day after the payment by the
Issuer. Any Reimbursement Obligation with respect to any Facility
Letter of Credit shall bear interest from the date of the
relevant drawings under the pertinent Facility Letter of Credit
until paid at the Overdue Rate.
v. Participation.
(1) Immediately upon issuance by the Issuer of any Facility Letter of
Credit in accordance with the procedures set forth in Section
2.2.3 each Revolving Credit Lender shall be deemed to have
irrevocably and unconditionally purchased and received from the
Issuer, without recourse or warranty, an undivided interest and
participation equal to its Pro Rata Share in such Facility Letter
of Credit (including, without limitation, all obligations of the
Borrower with respect thereto) and any security therefor or
guaranty pertaining thereto; provided, that a Letter of
Credit issued by the Issuer shall not be deemed to be a Facility
Letter of Credit for purposes of this Section 2.2.5 if the Issuer
shall have received written notice from any Revolving Credit
Lender on or before one Business Day prior to the date of its
issuance of such Letter of Credit that one or more of the
conditions contained in Section 4.2 is not then satisfied, and,
in the event the Issuer receives such a notice, it shall have no
further obligation to issue any Letter of Credit until such
notice is withdrawn by that Revolving Credit Lender or such
condition has been effectively waived in accordance with the
provisions of this Agreement.
(2) In the event that the Issuer makes any payment under any Facility
Letter of Credit and the Borrower shall not have repaid such
amount to the Issuer pursuant to Section 2.2.4, the Issuer shall
promptly notify each Revolving Credit Lender of such failure, and
each Revolving Credit Lender shall promptly and unconditionally
pay to the Administrative Agent for the account of the Issuer the
amount of such Revolving Credit Lender's Pro Rata Share of the
unreimbursed amount of any such payment. If any Revolving Credit
Lender fails to make available to the
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Issuer, any amounts due to the Issuer pursuant to this Section
2.2.5(b), the Issuer shall be entitled to recover such amount,
together with interest thereon at the Federal Funds Effective
Rate, for the first three Business Days after such Revolving
Credit Lender receives such notice and thereafter, at the
Floating Rate, payable (i) on demand, (ii) by setoff against any
payments made to the Issuer for the account of such Revolving
Credit Lender or (iii) by payment to the Issuer by the
Administrative Agent of amounts otherwise payable to such
Revolving Credit Lender under this Agreement. The failure of any
Revolving Credit Lender to make available to the Administrative
Agent its Pro Rata Share of the unreimbursed amount of any such
payment shall not relieve any other Revolving Credit Lender of
its obligation hereunder to make available to the Administrative
Agent its Pro Rata Share of the unreimbursed amount of any
payment on the date such payment is to be made, but no Revolving
Credit Lender shall be responsible for the failure of any other
Revolving Credit Lender to make available to the Administrative
Agent its Pro Rata Share of the unreimbursed amount of any
payment on the date such payment is to be made.
(3) Whenever the Issuer receives a payment on account of a
Reimbursement Obligation, including any interest thereon, it
shall promptly pay to each Revolving Credit Lender which has
funded its participating interest therein, in immediately
available funds, an amount equal to such Revolving Credit
Lender's Pro Rata Share thereof.
(4) The obligations of a Revolving Credit Lender to make payments to
the Administrative Agent with respect to a Facility Letter of
Credit shall be absolute, unconditional and irrevocable, not
subject to any counterclaim, setoff, qualification or exception
whatsoever and shall be made in accordance with the terms and
conditions of this Agreement under all circumstances.
(5) In the event any payment by the Borrower or any Subsidiary
received by the Administrative Agent with respect to a Facility
Letter of Credit and distributed by the Administrative Agent to
the Revolving Credit Lenders on account of their participations
is thereafter set aside, avoided or recovered from the
Administrative Agent in connection with any receivership,
liquidation, reorganization or bankruptcy proceeding, each
Revolving Credit Lender which received such distribution shall,
upon demand by the Administrative Agent, contribute such
Revolving Credit Lender's Pro Rata Share of the amount set aside,
avoided or recovered together with interest at the rate required
to be paid by the Administrative Agent upon the amount required
to be repaid by it.
vi. Compensation for Facility Letters of Credit.
(1) The Issuer shall have the right to receive from the Borrower,
solely for the Issuer's own account, an issuance fee of 0.25% per
annum on the average daily undrawn amount under each Facility
Letter of Credit
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issued by it as well as the Issuer's reasonable and customary
costs of issuing and servicing the Facility Letters of Credit.
(2) The Borrower shall pay to the Administrative Agent, for the
benefit of the Revolving Credit Lenders, a fee computed at the
Applicable Margin calculated on the maximum amount available to
be drawn from time to time under each Facility Letter or Credit,
which fee shall be paid annually in advance at the time each
Facility Letter of Credit is issued for the period from and
including the date of issuance thereof to and including the
stated expiry date thereof.
vii. Letter of Credit Collateral Account. The Borrower hereby agrees that
it will, until the final expiration date of any Facility Letter of
Credit and thereafter as long as any amount is payable to the Lenders
in respect of any Facility Letter of Credit, maintain a special
collateral account (the "Letter of Credit Collateral Account") at the
Administrative Agent's office at the address specified pursuant to
Article XIII, in the name of the Borrower but under the sole dominion
and control of the Administrative Agent, for the benefit of the
Lenders and in which the Borrower shall have no interest other than as
set forth in Section 8.1. The Borrower is not required by this Section
2.2.7 to deposit any funds in the Letter of Credit Collateral Account,
and the obligation to make deposits into the Letter of Credit
Collateral Account are described in Section 8.1. The Administrative
Agent will invest any funds on deposit from time to time in the Letter
of Credit Collateral Account in certificates of deposit of the
Administrative Agent having a maturity not exceeding 30 days. Nothing
in this Section 2.2.7 shall either obligate the Administrative Agent
to require the Borrower to deposit any funds in the Letter of Credit
Collateral Account or limit the right of the Administrative Agent to
release any funds held in the Letter of Credit Collateral Account
other than as required by Section 8.1.
viii. Nature of Obligations. As among the Borrower, the Issuer and the
Lenders, the Borrower assumes all risks of the acts and omissions of,
or misuse of the Facility Letters of Credit by, the respective
beneficiaries of the Facility Letters of Credit. In furtherance and
not in limitation of the foregoing, the Issuer and the Lenders shall
not be responsible for (i) the forms, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any party in
connection with the application for and issuance of any Facility
Letter of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (ii)
the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Facility Letter of
Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any
reason; (iii) failure of the beneficiary of a Facility Letter of
Credit to comply fully with conditions required in order to draw upon
such Facility Letter of Credit; (iv) errors, omissions, interruptions
or delays in transmission or delivery of any messages, by mail, cable,
telegraph, telex or otherwise; (v) errors in interpretation of
technical terms; (vi) misapplication by the beneficiary of a Facility
Letter of Credit of the proceeds of any drawing under such Facility
Letter of Credit; (vii)
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any consequences arising from causes beyond the control of the
Issuer or the Lenders. In furtherance and extension and not in
limitation of the specific provisions hereinabove set forth, any
action taken or omitted by the Issuer or any Lender under or in
connection with the Facility Letters of Credit or any related
certificates, if taken or omitted in good faith, shall not put
the Issuer or such Lender under any resulting liability to the
Borrower or relieve the Borrower of any of its obligations
hereunder to the Issuer, the Administrative Agent or any Lender.
Notwithstanding anything to the contrary contained in this
Section 2.2, the Borrower shall not have any obligation to
indemnify an Issuer under this Section 2.2 in respect of any
liability incurred by such Issuer arising primarily out of the
gross negligence or willful misconduct of such Issuer, as
determined by a court of competent jurisdiction.
c. Term Loan A. Subject to the terms and conditions hereof, each Term
Loan A Lender, severally and for itself alone, agrees to make an
Advance of Term Loan A to the Borrower in Dollars, in a single
disbursement on the Effective Date, in an aggregate amount not to
exceed such Lender's Term Loan A Commitment. Term Loan A, or any
portion thereof at the Borrower's option, may be Floating Rate Loans
or Eurodollar Loans, or a combination thereof subject to the terms
hereof, with the initial selection by the Borrower in accordance with
procedures acceptable to the Administrative Agent and any subsequent
selections in accordance with Sections 2.10 or 2.11.
d. Term Loan B. Subject to the terms and conditions hereof, each Term
Loan B Lender, severally and for itself alone, agrees to make an
Advance of Term Loan B to the Borrower in a single disbursement on the
Effective Date, in Dollars in an aggregate amount not to exceed such
Lender's Term Loan B Commitment. Term Loan B or any portion thereof at
the Borrower's option, may be Floating Rate Loans or Eurodollar Loans,
or any combination thereof in accordance with the terms hereof, with
the initial selection by the Borrower in accordance with procedures
acceptable to the Administrative Agent and any subsequent selections
in accordance with Sections 2.10 or 2.11.
e. Interim Term Loan. Subject to the terms and conditions hereof, each
Interim Term Loan Lender, severally and for itself alone, agrees to
make an Advance of the Interim Term Loan to the Borrower in a single
disbursement on the Effective Date, in Dollars in an aggregate amount
not to exceed such Lender's Interim Term Loan Commitment. The Interim
Term Loan or any portion thereof at the Borrower's option, may be
Floating Rate Loans or Eurodollar Loans, or any combination thereof in
accordance with the terms hereof, with the initial selection by the
Borrower in accordance with procedures acceptable to the
Administrative Agent and any subsequent selections in accordance with
Sections 2.10 or 2.11.
f. Ratable Loans. (a) Subject to Section 2.6(b), each Dollar Revolving
Credit Advance hereunder shall consist of Dollar Revolving Credit
Loans made from the several Revolving Credit Lenders ratably in
proportion to the ratio that their respective Dollar Revolving Credit
Commitments bear to the Aggregate Dollar Revolving Credit Commitment.
Each Multicurrency Revolving Credit Advance hereunder shall consist of
Multicurrency Revolving Credit Loans made from the several
Multicurrency Revolving Credit Lenders ratably in proportion to the
ratio that their respective Multicurrency
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Revolving Credit Commitments bear to the Aggregate Multicurrency
Revolving Credit Commitment. Each Term Loan A Advance hereunder shall
consist of Term Loan A Loans made from the several Term Loan A Lenders
ratably in proportion to the ratio that their respective Term Loan A
Commitments bear to the Aggregate Term Loan A Commitments. Each Term
Loan B Advance hereunder shall consist of Term Loans B made from the
several Term Loan B Lenders ratably in proportion to the ratio that
their respective Term Loan B Commitments bear to the Aggregate Term
Loan B Commitments.
(b) If on any Borrowing Date on which the Borrower has requested
Multicurrency Revolving Credit Loans (the "Requested Multicurrency Loans"), (i)
the Dollar Equivalent of the aggregate principal amount of the Requested
Multicurrency Revolving Credit Loans exceeds the Aggregate Available
Multicurrency Revolving Credit Commitments on such Borrowing Date (before giving
effect to the making and payment of any Loans required to be made pursuant to
this clause (b) on such Borrowing Date) and (ii) the Dollar Equivalent of the
amount of such excess is less than or equal to the Aggregate Available Revolving
Credit Commitments of all Multicurrency Revolving Credit Lenders (before giving
effect to the making and payment of any Loans pursuant to this clause (b) on
such Borrowing Date), each Dollar Revolving Credit Lender shall make a Dollar
Revolving Credit Loan to the Company on such Borrowing Date, and the proceeds of
such Loans shall be simultaneously applied to repay outstanding Dollar Revolving
Credit Loans of the Multicurrency Revolving Credit Lenders, in amounts such
that, after giving effect to (1) such borrowings and repayments and (2) the
borrowing from the Multicurrency Revolving Credit Lenders of the Requested
Multicurrency Loans, the Aggregate Revolving Credit Outstandings of each Lender
will equal (as nearly as possible) its Pro Rata Share. To effect such borrowings
and repayments, (x) not later than 11:00 A.M., Detroit time, on such Borrowing
Date, the proceeds of such Dollar Revolving Credit Loans shall be made available
by each Dollar Revolving Credit Lender to the Administrative Agent at its
applicable Lending Installation in immediately available funds and the
Administrative Agent shall apply the proceeds of such Dollar Revolving Credit
Loans toward repayment of outstanding Dollar Revolving Credit Loans of the
Multicurrency Revolving Credit Lenders and (y) concurrently with the repayment
of such outstanding Dollar Revolving Credit Loans of such Multicurrency
Revolving Credit Lender on such Borrowing Date, (1) such Multicurrency Revolving
Credit Lenders shall, in accordance with the applicable provisions hereof, make
the Requested Multicurrency Loans in an aggregate amount equal to the amount so
requested (but not in any event greater than the amount allowed under Section
2.1(c)) after giving effect to the making of such repayment of any Loans on such
Borrowing Date and (2) the Borrower shall pay to the Administrative Agent for
the account of the Lenders whose Loans to such Borrower are paid on such
Borrowing Date pursuant to this clause (b) all interest accrued on the amounts
repaid to the date of such repayment, together with any amounts payable pursuant
to Section 3.4 in connection with such repayment. If any borrowing of Dollar
Revolving Credit Loans is required pursuant to this clause (b), the Borrower
shall notify the Administrative Agent in the manner provided for Dollar
Revolving Credit Loans in Section 2.10.
g. Revolving Credit Commitment Fee; Reductions in Aggregate Revolving
Credit Commitment. The Borrower agrees to pay to the Administrative
Agent for the account of each Revolving Credit Lender a commitment fee
at the Applicable Margin on the daily unborrowed portion of such
Lender's Revolving Credit Commitment from the date
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hereof to and including the Termination Date, payable on each Payment
Date hereafter and on the Termination Date. For purposes of computing
the commitment fee payable hereunder, Swing Loans shall not be
considered usage of a Lender's Revolving Credit Commitment until such
time as such Lender shall be required to fund its Pro Rata Share of
such Swing Loans pursuant to Section 2.1(d)(iii). The Borrower may
permanently reduce the Aggregate Revolving Credit Commitment in whole,
or in part ratably among the Revolving Credit Lenders in amounts of
not less than $5,000,000 and integral multiples of $1,000,000
thereafter, upon at least five Business Days' written notice to the
Administrative Agent, which notice shall specify the amount of any
such reduction, provided, however, that the amount of the Aggregate
Revolving Credit Commitment may not be reduced below the aggregate
principal amount of the outstanding Revolving Credit Loans, Swing
Loans and Facility Letters of Credit.
h. Types of Advances; Minimum Amount of Each Advance. Advances
denominated in Dollars may be Floating Rate Advances or Eurodollar
Advances and Advances denominated in Eurocurrencies may be
Eurocurrency Advances, or a combination thereof, selected by the
Borrower in accordance with Sections 2.10 and 2.11 Each Eurodollar
Advance shall be in the minimum amount of $5,000,000 (and in multiples
of $1,000,000 if in excess thereof), and each Floating Rate Advance
shall be in the minimum amount of $5,000,000 (and in multiples of
$1,000,000 if in excess thereof), provided, however, that any Floating
Rate Advance may be in the amount of the unused Aggregate Revolving
Credit Commitment. Each Eurocurrency Advance shall be in the minimum
Dollar Equivalent of $5,000,000 (and in multiples of $1,000,000 if in
excess thereof or such other lesser multiple as the Administrative
Agent deems appropriate)
i. Principal Payments.
i. Revolving Credit Advances. Unless earlier payment is required
under this Agreement, the Borrower shall pay to the Revolving
Credit Lenders on the Termination Date the entire outstanding
principal amount of the Revolving Credit Loans and Facility
Letters of Credit outstanding to it. If the Revolving Credit
Loans and Facility Letters of Credit at any time exceed the
amount allowed pursuant to Section 2.1(c), the Borrower shall
prepay the Revolving Credit Loans and Facility Letters of Credit
by an amount equal to or greater than such excess.
ii. Term Loan A. The Borrower hereby unconditionally promises to pay
to the Administrative Agent for the pro rata account of each Term
Loan A Lender in Dollars the unpaid principal amount of each Term
Loan A of such Lender in twenty quarterly principal payments as
follows:
Payment Date Principal Installment
- ------------ ---------------------
September 30, 1999 $700,000
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Payment Date Principal Installment
- ------------ ---------------------
December 31, 1999 $700,000
March 31, 2000 $700,000
June 30, 2000 $700,000
September 30, 2000 $4,500,000
December 31, 2000 $4,500,000
March 31, 2001 $4,500,000
June 30, 2001 $4,500,000
September 30, 2001 $5,500,000
December 31, 2001 $5,500,000
March 31, 2002 $5,500,000
June 30, 2002 $5,500,000
September 30, 2002 $6,500,000
December 31, 2002 $6,500,000
March 31, 2003 $6,500,000
June 30, 2003 $6,500,000
September 30, 2003 $7,800,000
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Payment Date Principal Installment
- ------------ ---------------------
December 31, 2003 $7,800,000
March 31, 2004 $7,800,000
May 27, 2004 $7,800,000
On the Term Loan A Maturity Date each Term Loan A shall be paid in full.
iii. Term Loan B. The Borrower hereby unconditionally
promises to pay to the Administrative Agent for the pro
rata account of each Term Loan B Lender in Dollars the
unpaid principal amount of Term Loan B of such Lender
in twenty-three quarterly principal payments on the
last day of each calendar quarter and at the Term Loan
B Maturity Date as follows:
Payment Dates Principal Installment
- ------------- ---------------------
September 30, 1999-June 30, 2004 $375,000
September 30, 2004 $7,800,000
December 31, 2004 $7,800,000
April 1, 2005 $126,900,000
On the Term Loan B Maturity Date, Term Loan B shall be paid in full.
iv. Interim Term Loan. The Borrower hereby unconditionally
promises to pay to the Administrative Agent for the pro
rata account of each Interim Term Loan Lender in
Dollars the unpaid principal amount of the Interim Term
Loan of such Lender in full on the Interim Term Loan
Maturity Date.
j. Method of Selecting Types and Interest Periods for New
Advances. The Borrower shall select the Type of Advance and,
in the case of each Eurodollar Advance and Eurocurrency
Advance, the Interest Period applicable to each Advance from
time to time, provided, however, that unless the
Administrative Agent in its sole discretion shall have
consented, the Borrower may not select an Interest Period of
longer than 7 days until the first to occur of (a) the date
90 days after the Effective Date, and (b) the date the
Administrative Agent shall have determined that the
syndication of the Commitments
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under this Agreement is complete. The Borrower shall give
the Administrative Agent irrevocable notice (a "Borrowing
Notice") not later than noon (Detroit time) at least one
Business Day before the Borrowing Date of each Floating Rate
Advance, three Business Days before the Borrowing Date for
each Eurodollar Advance, and four Business Days before the
Borrowing Date for each Eurocurrency Advance (which in each
case the Agent will promptly forward to the appropriate
Lenders), specifying:
(a) the Borrowing Date, which shall be a Business
Day, of such Advance,
(b) the aggregate amount of such Advance,
(c) the Type of Advance selected,
(d) in the case of each Eurodollar Advance or
Eurocurrency Advance, the Interest Period
applicable thereto,
(e) in the case of each Eurocurrency Advance, the
Eurocurrency of such Advance; and
(f) payment and wiring instructions.
Not later than 2:00 p.m. (Detroit time) on each Borrowing Date, each Lender
shall make available its Loan or Loans, in funds immediately available in
Detroit to the Administrative Agent at its address specified pursuant to Article
XIII, provided, however, that in the case of Eurocurrency Loans, each Lender
shall make available its Loan not later than noon, local time, at the
Administrative Agent's Lending Installation for such currency, in such funds as
may then becustomary for the settlement of international transactions in such
currency in the city of and at the address of the Administrative Agent's Lending
Installation for such currency. Unless the Administrative Agent determines that
any applicable condition specified in Article IV has not been satisfied, the
Administrative Agent will make the funds so received from the Lenders available
to the Borrower at the Administrative Agent's aforesaid address.
k. Conversion and Continuation of Outstanding Advances.
Floating Rate Advances shall continue as Floating Rate
Advances unless and until such Floating Rate Advances are
converted into Eurodollar Advances. Each Eurodollar and
Eurocurrency Advance shall continue as a Eurodollar or
Eurocurrency Advance until the end of the then applicable
Interest Period therefor, at which time such Advance shall
be automatically converted into a Floating Rate Advance in
the case of Eurodollar Advances and converted to a
Eurocurrency Advance in the same currency and with an
Interest Period of one month in the case of Eurocurrency
Advances, unless the Borrower shall have given the
Administrative Agent a Conversion/Continuation Notice
requesting that, at the end of such Interest Period, such
Eurodollar or Eurocurrency Advance either continue as a
Eurodollar Advance for the same or another Interest Period
or be converted into an Advance of another Type. Subject to
the terms of Sections 2.8 and 2.10, the Borrower may elect
from time to time to convert all or any part of anAdvance of
any Type into any other Type or Types of Advances; provided
that any conversion of any Eurodollar and Eurocurrency
Advance shall be made on, and only on, the last day of the
Interest Period applicable thereto. The Borrower shall give
the Administrative Agent irrevocable notice (a
"Conversion/Continuation Notice") of each conversion of an
Advance or continuation of a Eurodollar and Eurocurrency
Advance not later than noon (Detroit time) at least one
Business Day, in the case of a conversion into a Floating
Rate Advance, three Business Days, in the case of a
conversion into or continuation of a
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Eurodollar Advance, or four Business Days, in the case of a
conversion into or continuation of a Eurocurrency Advance,
prior to the date of the requested conversion or
continuation, specifying:
(a) the requested date which shall be a Business
Day, of such conversion or continuation,
(b) the aggregate amount and Type of the Advance
which is to be converted or continued, and
(c) the amount and Type(s) of Advance(s) into
which such Advance is to be converted or
continued and, in the case of a conversion
into or continuation of a Eurodollar Advance,
the duration of the Interest Period
applicable thereto.
l. Changes in Interest Rate, etc. Each Floating Rate Advance
shall bear interest on the outstanding principal amount
thereof, for each day from and including the date such
Advance is made or is converted from a Eurodollar Advance
into a Floating Rate Advance pursuant to Section 2.11 to but
excluding the date it becomes due or is converted into a
Eurodollar Advance pursuant to Section 2.11 hereof, at a
rate per annum equal to the Floating Rate for such day.
Changes in the rate of interest on that portion of any
Advance maintained as a Floating Rate Advance will take
effect simultaneously with each change in the Alternate Base
Rate. Each Eurodollar and Eurocurrency Advance shall bear
interest on the outstanding principal amount thereof from
and including the first day of the Interest Period
applicable thereto to (but not including) the last day of
such Interest Period at the interest rate determined as
applicable to such Eurodollar or Eurocurrency Advance. No
Interest Period (a) with respect to any Revolving Credit
Loan may end after the Termination Date, (b) with respect to
any Term Loan A may end after the Term Loan A Maturity Date,
and (c) with respect to any Term Loan B may end after the
Term Loan B Maturity Date. Additionally, the Borrower shall
select Interest Periods with respect to the Term Loans to
avoid breaking any Interest Period with respect to any
principal installment due on the Term Loans.
m. Rates Applicable After Default. Notwithstanding anything to
the contrary contained in Section 2.10 or 2.11, during the
continuance of a Default or Unmatured Default the Required
Lenders may, at their option, by notice to the Borrower
(which notice may be revoked at the option of the Required
Lenders notwithstanding any provision of Section 8.2
requiring unanimous consent of the Lenders to changes in
interest rates), declare that no Advance may be made as,
converted into or continued as a Eurodollar or Eurocurrency
Advance. During the continuance of a Default the Required
Lenders may, at their option, by notice to the Borrower
(which notice may be revoked at the option of the Required
Lenders notwithstanding any provision of Section 8.2
requiring unanimous consent of the Lenders to changes in
interest rates), declare that each Advance (including each
Multicurrency Advance) shall bear interest at the Overdue
Rate, provided that each Advance (including each
Multicurrency Advance) shall automatically bear interest at
the Overdue Rate in connection with any Default pursuant to
Section 7.6 or 7.7.
n. Method of Payment. (i) All payments of the Obligations
hereunder shall be made, without setoff, deduction, or
counterclaim, in Same Day Funds to the Administrative Agent
at the Administrative Agent's address specified pursuant to
Article XIII, or at any other Lending Installation of the
Administrative Agent specified in writing by the
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Administrative Agent to the Borrower, by 11:00 a.m. (local
time) on the date when due and shall be applied ratably by
the Administrative Agent among the Lenders. All payments to
be made by the Borrower hereunder in any currency other than
Dollars shall be made in such currency on the date due in
Same Day Funds for the account of the Administrative Agent,
at its Lending Installation for such currency and shall be
applied ratably by the Administrative Agent among the
Lenders. Each payment delivered to the Administrative Agent
for the account of any Lender shall be delivered promptly by
the Administrative Agent to such Lender in the same type of
funds that the Administrative Agent received at its address
specified pursuant to Article XIII or at any Lending
Installation specified in a notice received by the
Administrative Agent from such Lender. The Administrative
Agent is hereby authorized to charge the account of the
Borrower maintained with the Administrative Agent or any of
its Affiliates for each payment of principal, interest and
fees as it becomes due hereunder.
(ii) Notwithstanding the foregoing provisions of this Section, if, after
the making of any Advance in any currency other than Dollars, currency control
or exchange regulations are imposed in the country which issues such currency
with the result that the type of currency in which the Advance was made (the
"Original Currency") no longer exists or the Borrower is not able to make
payment to the Administrative Agent for the account of the Lenders in such
currency, then all payments to be made by the Borrower hereunder in such
currency shall instead be made when due in Dollars in an amount equal to the
Dollar Equivalent (as of the date of repayment) of such payment due, it being
the intention of the parties hereto that the Borrower take all risks of the
imposition of any such currency control or exchange regulations.
o. Noteless Agreement; Recordation; Telephonic Notices. (i)
Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness
of the Borrower to such Lender resulting from each Loan made
by such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from
time to time hereunder.
(ii) The Administrative Agent shall also maintain accounts in which it will
record (a) the amount of each Loan made hereunder, the Type thereof and the
Interest Period and currency with respect thereto, (b) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (c) the amount of any sum received by the
Administrative Agent hereunder from the Borrower and each Lender's share
thereof.
(iii) The entries maintained in the accounts maintained pursuant to paragraphs
(i) and (ii) above shall be prima facie evidence of the existence and amounts of
the Obligations therein recorded; provided, however, that the failure of the
Administrative Agent or any Lender to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Obligations in accordance with their terms.
(iv) Any Lender may request that its Loans be evidenced by the appropriate
Note(s). In such event, the Borrower shall prepare, execute and deliver to such
Lender Note(s) payable to the order of such Lender in a form supplied by the
Administrative Agent. Thereafter, the Loans evidenced by such Note(s) and
interest thereon shall at all times (including after any assignment pursuant to
Section 12.3) be represented by one or more Notes payable to the order of the
payee named therein or any assignee
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pursuant to Section 12.3, except to the extent that any such Lender or assignee
subsequently returns any such Note(s) for cancellation and requests that such
Loans once again be evidenced as described in paragraphs (i) and (ii) above.
Each Lender is hereby authorized to record the principal amount of each of its
Loans and each repayment on the schedule attached to its Note(s), provided,
however, that neither the failure to so record nor any error in such recordation
shall affect the Borrower's obligations under such Note(s).
(v) The Borrower hereby authorizes the Lenders and the Administrative Agent to
extend, convert or continue Advances, effect selections of Types of Advances and
to transfer funds based on telephonic or facsimile notices made by any person or
persons the Administrative Agent or any Lender in good faith believes to be an
Authorized Officer or authorized to act on behalf of an Authorized Officer. The
Borrower agrees to deliver promptly to the Administrative Agent a written
confirmation, if such confirmation is requested by the Administrative Agent or
any Lender, of each telephonic notice signed by an Authorized Officer. If the
written confirmation differs in any material respect from the action taken by
the Administrative Agent and the Lenders, the records of the Administrative
Agent and the Lenders shall govern absent manifest error.
p. Interest Payment Dates; Interest and Fee Basis. Interest accrued on each
Floating Rate Advance shall be payable on each Payment Date, commencing with the
first such date to occur after the date hereof, on any date on which the
Floating Rate Advance is prepaid, whether due to acceleration or otherwise, and
at maturity. Interest accrued on that portion of the outstanding principal
amount of any Floating Rate Advance converted into a Eurodollar Advance on a day
other than a Payment Date shall be payable on the date of conversion. Interest
accrued on each Eurodollar Advance and Eurocurrency Advance shall be payable on
the last day of its applicable Interest Period, on any date on which the
Eurodollar Advance or Eurocurrency Advance is prepaid, whether by acceleration
or otherwise, and at maturity. Interest accrued on each Eurodollar Advance and
Eurocurrency Advance having an Interest Period longer than three months shall
also be payable on the last day of each three-month interval during such
Interest Period. Interest and commitment fees shall be calculated for actual
days elapsed on the basis of a 360-day year, except that interest on any Loan
denominated in British Pounds Sterling shall be calculated for actual days
elapsed on the basis of a 365 day-year. Interest shall be payable for the day an
Advance is made but not for the day of any payment on the amount paid if payment
is received prior to noon (local time) at the place of payment. If any payment
of principal of or interest on an Advance shall become due on a day which is not
a Business Day, such payment shall be made on the next succeeding Business Day
and, in the case of a principal payment, such extension of time shall be
included in computing interest in connection with such payment.
q. Notification of Advances, Interest Rates, Prepayments and Revolving Credit
Commitment Reductions. Promptly after receipt thereof, the Administrative Agent
will notify each Lender of the contents of each Aggregate Revolving Credit
Commitment reduction notice, Borrowing Notice, Conversion/Continuation Notice,
and repayment notice received by it hereunder. The Administrative Agent will
notify each Lender of the interest rate applicable to each Eurodollar and
Eurocurrency Advance promptly upon determination of such interest rate and will
give each Lender prompt notice of each change in the Alternate Base Rate.
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r. Lending Installations. Subject to the terms of this Agreement, each Lender
may book its Loans at any Lending Installation selected by such Lender and may
change its Lending Installation from time to time. All terms of this Agreement
shall apply to any such Lending Installation and the Notes and Loans shall be
deemed held by each Lender for the benefit of such Lending Installation. Each
Lender may, by written or telex notice to the Administrative Agent and the
Borrower, designate a Lending Installation through which Loans will be made by
it and for whose account Loan payments are to be made.
s. NonReceipt of Funds by the Administrative Agent. Unless the Borrower or a
Lender, as the case may be, notifies the Administrative Agent prior to the date
on which it is scheduled to make payment to the Administrative Agent of (i) in
the case of a Lender, the proceeds of a Loan or (ii) in the case of the
Borrower, a payment of principal, interest or fees to the Administrative Agent
for the account of the Lenders, that it does not intend to make such payment,
the Administrative Agent may assume that such payment has been made. The
Administrative Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such assumption. If
such Lender or the Borrower, as the case may be, has not in fact made such
payment to the Administrative Agent, the recipient of such payment shall, on
demand by the Administrative Agent, repay to the Administrative Agent the amount
so made available together with interest thereon in respect of each day during
the period commencing on the date such amount was so made available by the
Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to (i) in the case of payment by a Lender, the
Federal Funds Effective Rate for the first five such days and at the interest
rate applicable to the relevant Loan for each such day thereafter, or (ii) in
the case of payment by the Borrower, the interest rate applicable to the
relevant Loan for each such day.
t. Market Disruption. Notwithstanding the satisfaction of all conditions
referred to in Article II and Article IV with respect to any Advance in any
Eurocurrency, if there shall occur on or prior to the date of such Advance any
change in national or international financial, political or economic conditions
or currency exchange rates or exchange controls which would in the reasonable
opinion of the Administrative Agent or the Required Multicurrency Revolving
Credit Lenders make it impracticable for the Eurocurrency Loans comprising such
Advance to be denominated in the Eurocurrency specified by the Borrower, then
the Administrative Agent shall forthwith give notice thereof to the Borrower and
the Lenders, and such Loans shall not be denominated in such Eurocurrency but
shall be made on such Borrowing Date in Dollars, in an aggregate principal
amount equal to the Dollar Equivalent of the aggregate principal amount
specified in the related Borrowing Notice as Floating Rate Loans, unless the
relevant Borrower notifies the Administrative Agent at least two Business Days
before such date that (i) it elects not to borrow on such date or (ii) it elects
to borrow on such date in a different Eurocurrency, as the case may be, in which
the denomination of such Loans would in the opinion of the Administrative Agent
and the Required Multicurrency Revolving Credit Lenders be practicable and in an
aggregate principal amount equal to the Dollar Equivalent of the aggregate
principal amount specified in the related Borrowing Notice.
u. Judgment Currency. If for the purposes of obtaining judgment in any court
it is necessary to convert a sum due from the Borrower hereunder in the currency
expressed to be payable herein (the "specified currency") into another currency,
the parties hereto agree, to the fullest extent that they may effectively do so,
that the rate of exchange used shall be that at which in accordance with normal
banking procedures the Administrative Agent could purchase the specified
currency with such other currency at
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the Administrative Agent's main office on the Business Day preceding that on
which final, non-appealable judgment is given. The obligations of the Borrower
in respect of any sum due to any Lender or the Administrative Agent hereunder
shall, notwithstanding any judgment in a currency other than the specified
currency, be discharged only to the extent that on the Business Day following
receipt by such Lender or the Administrative Agent (as the case may be) of any
sum adjudged to be so due in such other currency such Lender or the
Administrative Agent (as the case may be) may in accordance with normal,
reasonable banking procedures purchase the specified currency with such other
currency. If the amount of the specified currency so purchased is less than the
sum originally due on the judgment to such Lender or the Administrative Agent,
as the case may be, in the specified currency, the Borrower agrees, to the
fullest extent that they may effectively do so, as a separate obligation and
notwithstanding any such judgment, to indemnify such Lender or the
Administrative Agent, as the case may be, against such loss, and if the amount
of the specified currency so purchased exceeds (a) the sum originally due on the
judgment to any Lender or the Administrative Agent, as the case may be, in the
specified currency and (b) any amounts shared with other Lenders as a result of
allocations of such excess as a disproportionate payment to such Lender under
Section 11.2, such Lender or the Administrative Agent, as the case may be,
agrees to remit such excess to the relevant Borrower.
v. Optional Prepayments. The Borrower may at any time and from time to time
prepay Floating Rate Loans, in whole or in part, without penalty or premium,
upon at least one Business Day's irrevocable notice to the Administrative Agent,
specifying the date and amount of prepayment. If any such notice is given, the
amount specified in such notice shall be due and payable on the date specified
therein. Partial prepayment of Floating Rate Loans shall be in a minimum
aggregate amount of $2,500,000 or any integral multiple of $1,000,000 in excess
thereof.
i. The Borrower may at any time and from time to time prepay, without premium
or penalty (but together with payment of any amount payable pursuant to Section
3.4), its Eurodollar Loans and its Multicurrency Loans in whole or in part, upon
at least three Business Days' irrevocable notice to the Administrative Agent
specifying the date and amount of prepayment. Partial payments of Eurodollar
Loans shall be in a minimum aggregate amount of $5,000,000 or any integral
multiple of $1,000,000 in excess thereof. Partial prepayments of Multicurrency
Loans shall be in an aggregate principal amount in the relevant Eurocurrency of
5,000,000 units or any integral multiple of 1,000,000 units in excess thereof,
or such lesser principal amount as may equal the outstanding Multicurrency Loans
or such lesser amount as may be agreed to by the Administrative Agent.
ii. Each prepayment pursuant to this Section 2.22 and each conversion pursuant
to Section 2.11 shall be accompanied by accrued and unpaid interest on the
amount prepaid to the date of prepayment and any amounts payable under Section
3.4 in connection with such payment.
iii. Prepayments pursuant to this Section 2.22 shall be applied as the Borrower
may direct, provided that all prepayments of the Term Loans, will be applied to
the maturities thereof in inverse order and prepayments of Term Loan B shall be
subject to Section 2.23.3.
w. Mandatory Prepayments.
i. Within 30 Business Days prior to the consummation of any transaction which
would cause a Change in Control, the Borrower shall notify (a "Change in Control
Notice") the Administrative Agent and each
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Lender of such expected transaction, including as to such Change in Control
Notice the expected closing date of such transaction. Within 15 Business Days of
receipt of such Change in Control Notice by any Lender, such Lender may, at its
option, give notice to the Administrative Agent and the Borrower that such
Lender elects to terminate its Commitments hereunder. Unless an earlier date is
otherwise agreed upon between the Borrower, the Administrative Agent and the
terminating Lender, such Lender's Commitments shall terminate simultaneously
with the closing of such transaction and the Borrower shall repay at such time
all Obligations owing to such Lender, together with accrued interest thereon,
any accrued fees with respect to such Lender's Revolving Credit Commitment, any
costs, losses or expenses incurred by such Lender in connection with such
prepayment payable by the Borrower pursuant to Section 3.4 and any other
obligations of the Borrower to such Lender hereunder.
ii. In addition to all payments of the Term Loans required hereunder, the
Borrower shall prepay the Term Loans by an amount equal to:
(1) 100% of the Net Cash Proceeds after the Effective Date of any capital
contribution to the Borrower (other than a capital contribution by the
Principal) or issuance of any Capital Stock of the Borrower or any of its
Subsidiaries (excluding the issuance of any Capital Stock of any Subsidiaries to
the Borrower or to a Wholly Owned Subsidiary);
(2) 100% of the Net Cash Proceeds of the issuance of any Indebtedness for
borrowed money, asset securitizations or similar obligations incurred at any
time after the Effective Date, other than Indebtedness permitted by Section
6.11(i)-(vi) or (viii);
(3) 100% of the Net Cash Proceeds from any Asset Sale in excess of
$10,000,000 in aggregate amount in any fiscal year of the Borrower (excluding
the Net Cash Proceeds from any Asset Sale permitted by Section 6.13(i), (iii),
(iv), (v) or (vi) and other than such Net Cash Proceeds from the sale of fixed
assets to the extent permitted by Section 6.13(ii) which are used within 360
days of the date received for the purposes allowed by Section 6.13(ii), and
provided that if, but only if, any cash proceeds are received pursuant to any
condemnation award or casualty insurance in connection with any loss or damage
to any Property which are not used to repair or replace such Property within 360
days, they shall be considered Net Cash Proceeds from an Asset Sale) which
payments shall be due (subject to the terms of the following sentence) 20 days
after the end of each month for all such sales and other dispositions during
such month. The Borrower shall provide a certificate to the Administrative Agent
within 20 days after each sale of assets which, but for the above parenthetical
as to Section 6.13(ii), would cause a prepayment under this Section 2.23.2(c),
which certificate shall describe such sale of assets and estimate when such Net
Cash Proceeds will be used to purchase assets of a comparable value, and if such
Net Cash Proceeds are not used within 360 days after such sale or such earlier
date when the Borrower has determined not to purchase assets of comparable value
with such Net Cash Proceeds, the Borrower will then prepay the Loans with such
Net Cash Proceeds; and
(4) 75% of Excess Cash Flow for any fiscal year ending after December 31,
1999, in which the ratio of Total Debt to EBITDA was 3.0 to 1.0 or higher.
iii. The Borrower shall give the Administrative Agent at least ten Business
Days' notice of each prepayment that the Borrower expects to make on Term Loan
B, in each case specifying the amount of such prepayment and a brief description
of the event or events which cause such prepayment to be made.
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(i) At least five Business Days before the date (an "Unscheduled
Prepayment Date") on which any prepayment of the Term Loan B (a "Term Loan B
Unscheduled Prepayment") would, but for the provisions of this subsection (i),
become payable hereunder, the Borrower shall deliver a notice conforming to the
requirements of paragraph (ii) below (a "Term Loan B Prepayment Notice") to the
Administrative Agent and on or before such Unscheduled Prepayment Date, the
Borrower shall deposit in a cash collateral account with the Administrative
Agent an amount equal to such Term Loan B Unscheduled Prepayment (together with
interest accrued thereon to but excluding the Deferred Term Loan B Prepayment
Date specified in such Term Loan B Prepayment Notice). Such Term Loan B
Unscheduled Prepayment shall not be made on such Unscheduled Payment Date but
shall instead be deferred as provided in this subsection (i). Upon receipt of
any Term Loan B Prepayment Notice, the Administrative Agent shall promptly
notify each Term Loan B Lender of the contents hereof.
(ii) Each Term Loan B Prepayment Notice shall (w) set forth the amount
of the relevant Term Loan B Unscheduled Prepayment and the portion thereof that
each Term Loan B Lender will be entitled to receive if it accepts prepayment of
its Term Loan B Loans in accordance with this subsection, (x) contain an offer
to prepay on a specified date (a "Deferred Term Loan B Prepayment Date"), which
shall not be less than 10 days or more than 25 days after the date of such Term
Loan B Prepayment Notice, the Term Loan B Loans of such Term Loan B Lender by an
aggregate principal amount equal to such Term Loan B Lender's share of such Term
Loan B Unscheduled Prepayment, (y) request such Term Loan B Lender to notify the
Borrower and the Administrative Agent in writing, no later than the fifth
Business Day before the Deferred Term Loan B Prepayment Date, of such Term Loan
B Lender's acceptance or rejection (in each case, in whole and not in part) of
such offer of prepayment and (z) inform such Term Loan B Lender that, if it
fails to reject such offer in writing on or before the fifth Business Day before
such Deferred Term Loan B Prepayment Date, it shall be deemed to accept such
offer. Each Term Loan B Prepayment Notice shall be given by facsimile and
confirmed by hand delivery or overnight courier service, in each case addressed
to the Administrative Agent and each Term Loan B Lender as provided herein.
(iii) On each Deferred Term Loan B Prepayment Date, the Administrative
Agent shall withdraw from such cash collateral account the amount deposited
therein with respect to the relevant Term Loan B Unscheduled Prepayment (and any
interest earned thereon) and shall apply such amount as follows:
(x) to prepay a portion of the principal of the Term Loan B Loans of
each Term Loan B Lender that shall have accepted (or be deemed to have
accepted) such prepayment in accordance with the related Term Loan B
Prepayment Notice (an "Accepting Term Loan B Lender") equal to the portion
of the relevant Term Loan B Unscheduled Prepayment initially allocated to
such Accepting Term Loan B Lender;
(y) to prepay a portion of the principal of the Term Loan A and the
Term Loan B Loans of the Accepting Term Loan B Lenders, ratably in
proportion to the then outstanding principal amounts thereof, in an
aggregate amount equal to the portion of the relevant Term Loan B
Unscheduled Prepayment initially allocated to the Term Loan B Lenders that
rejected such prepayment; and
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(z) to pay interest accrued on the principal amounts so prepaid to the
date of prepayment in the case of optional prepayments.
If the amount withdrawn from such cash collateral account is not sufficient to
make the foregoing payments, the Borrower shall pay to the Administrative Agent
on such Deferred Term Loan B Prepayment Date an amount equal to the shortfall.
Notwithstanding anything herein to the contrary, if Term Loan A is paid in full,
the Term Loan B Lenders may not refuse a prepayment on Term Loan B.
iv. Notwithstanding anything herein to the contrary, each
mandatory prepayment of the Term Loans pursuant to
Section 2.23.2 shall be applied first to the Interim
Term Loan. After payment in full of the Interim Term
Loan, each mandatory prepayment under Section 2.23.2
shall be applied ratably to Term Loan A and Term Loan B
and applied to the outstanding principal installments
thereof ratably, subject to Section 2.23.3.
x. Prepayment Premium; Sublimits. In the event that the
Borrower makes any prepayment of Term Loan B at any time on
or prior to the date one year after the Effective Date the
Borrower shall pay to each Term Loan B Lender a prepayment
premium equal to 1.00% of the amount prepaid to such Lender.
The Borrower agrees that the amounts payable pursuant to
this Section are a reasonable preestimate of loss and not a
penalty. Such amounts are payable as liquidated damages for
the loss of bargain and payment of such amounts shall not in
any way reduce, affect or impair any other obligations of
the Borrower under this Agreement.
i. In addition to all other payments required hereunder,
as of the last Business Day of each month and as of the
date each Advance is made or continued or converted
hereunder, if the Dollar Equivalent of the Aggregate
Revolving Credit Outstandings of all Revolving Credit
Lenders exceeds the Aggregate Revolving Credit
Commitment, the Borrower shall prepay (or cash
collateralize in the case of Letters of Credit) the
Revolving Credit Advances, in such order as determined
by the Borrower, in an amount such that the Dollar
Equivalent of the Aggregate Revolving Credit
Outstandings of all Revolving Credit Lenders does not
exceed the Aggregate Revolving Credit Commitment as of
such date, together with all amounts owing to the
applicable Banks under Section 3.4.
ii. In addition to all other payments required hereunder,
as of the last Business Day of each month and as of the
date each Revolving Credit Advance is made or continued
or converted hereunder, if the Dollar Equivalent of all
Revolving Credit Advances denominated in Eurocurrencies
exceeds $75,000,000, the Borrower shall prepay the
Advances, in such order as determined by the Borrower,
in an amount equal to such excess as of such date,
together with all amounts owing to the applicable
Lenders under Section 3.4.
y. Multicurrency Participation. Immediately and automatically
upon the occurrence of a Default under Sections 7.2, 7.6 or
7.7, (A) each Dollar Revolving Credit Lender shall be
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deemed to have unconditionally and irrevocably purchased
from each Multicurrency Revolving Credit Lender, without
recourse or warranty, an undivided interest in and
participation in each Multicurrency Revolving Credit Loan
ratably in accordance with such Lender's Pro Rata Share, (B)
immediately and automatically all Multicurrency Revolving
Credit Loans shall be converted to and redenominated in
Dollars equal to the Dollar Equivalent of each such
Multicurrency Loan determined as of the date of such
conversion, (C) each Multicurrency Revolving Credit Lender
shall be deemed to have unconditionally and irrevocably
purchased from each Dollar Revolving Credit Lender, without
recourse or warranty, an undivided interest in and
participation in each Dollar Revolving Credit Loan ratably
in accordance with such Multicurrency Revolving Credit
Lender's Revolving Credit Commitment Percentage. Each of the
Dollar Revolving Credit Lenders shall pay to the applicable
Multicurrency Revolving Credit Lender not later than two (2)
Business Days following a request for payment from such
Lender, in Dollars, an amount equal to the undivided
interest in and participation in the Multicurrency Revolving
Credit Loan purchased by such Dollar Revolving Credit Lender
pursuant to this Section 2.25, and each of the Multicurrency
Revolving Credit Lenders shall pay to the applicable Dollar
Revolving Credit Lender not later than two (2) Business Days
following a request for payment from such Revolving Credit
Lender, in Dollars, an amount equal to the undivided
interest in and participation in the Dollar Revolving Credit
Loan purchased by such Multicurrency Revolving Credit Lender
pursuant to this Section 2.25, it being the intent of the
Revolving Credit Lenders that following such equalization
payments, each Revolving Credit Lender shall hold its Pro
Rata Share of the Aggregate Revolving Credit Outstandings.
z. Contribution Among Borrower and Guarantors. In order to
provide for just and equitable contribution among the
Borrower and the Guarantors, the Borrower and the Guarantors
shall execute a subrogation and contribution agreement
(which shall be deemed a Loan Document) in form and
substance satisfactory to the Required Lenders.
aa. Financial Condition of Borrower. Neither the Administrative
Agent nor any Lender shall have any obligation to the
Borrower or any Guarantor to disclose or discuss with such
Borrower or any Guarantor the Administrative Agent's or any
Lender's assessment of the financial condition of the
Borrower or any Guarantor, and the Borrower and each
Guarantor hereby waives any obligation of any Lender to
disclose any matter, fact or thing relating to the business,
operations or conditions of the Borrower or any Guarantor
now or hereafter known by the Administrative Agent or any
Lender. The Borrower and each Guarantor assumes the
responsibility for being and keeping informed of the
financial condition of each other Borrower and each
Guarantor and of all circumstances bearing upon the risk of
nonpayment of the Secured Obligations by any other Borrower.
No Lender shall have any obligation to the Borrower or any
Guarantor arising from any Lender's assessment of, or
failure to assess, the Borrower's or any Guarantor's
financial condition in connection with the granting of any
Loans or other extensions of credit hereunder.
bb. Collateral Security; Further Assistance.
(1) As security for the payment of the Obligations, the
Borrower shall cause to be granted to the
Administrative Agent, for the ratable benefit of the
Lenders, a Lien on and security interest in all of
the
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following, whether now or hereafter existing or
acquired: (i) all of the shares of Capital Stock
of each Subsidiary now or hereafter directly
owned by the Borrower or any Guarantor and all
proceeds thereof, all as more specifically
described in the Pledge Agreements; (ii) all
other Property now or hereafter owned by the
Borrower or any Domestic Subsidiary of the
Borrower; (iii) all other Property of each
Foreign Subsidiary which is a Guarantor to the
extent the obtaining of such collateral is
determined to be practical, cost effective and
not unduly burdensome; and (iv) all other
Property described in the Collateral Documents.
(2) Concurrently with the consummation of any
Acquisition or the formation of any new
Subsidiary of the Borrower which is permitted
hereunder, the Borrower shall:
(a) in the case of an Acquisition of Capital
Stock by the Borrower or a Subsidiary or
the formation of a new Subsidiary: (A)
deliver or cause to be delivered to the
Administrative Agent, for the ratable
benefit of the Lenders, (I) in the case
of the Acquisition of the stock of a
Domestic Subsidiary or the formation of
a Domestic Subsidiary, all of the
certificates representing the capital
stock (or other instruments or
securities evidencing ownership) of such
new Domestic Subsidiary which is being
acquired or formed, and (II) in the case
of the Acquisition of the stock of a
Foreign Subsidiary or the formation of a
Foreign Subsidiary, now or hereafter
directly owned by the Borrower or any
Guarantor, all of the shares of Capital
Stock of such new Foreign Subsidiary
which is being acquired or formed, as
additional collateral for the Secured
Obligations, to be held by the
Administrative Agent; (B) cause each new
Subsidiary which qualifies as a
Guarantor hereunder and which is being
acquired or formed to deliver to the
Administrative Agent a Guaranty and
Collateral Documents, granting to the
Administrative Agent, for the ratable
benefit of the Lenders, a Lien on and
security interest in all of the Property
now or hereafter owned by such new
Subsidiary; and (C) deliver to the
Administrative Agent such other
documents as the Administrative Agent,
individually or on behalf of the
Lenders, may have reasonably requested;
(b) in any case, provide such other
documentation to the Administrative
Agent, including, without limitation,
one or more opinions of counsel
satisfactory to the Administrative
Agent, environmental surveys, articles
of incorporation, bylaws and
resolutions, which in the reasonable
opinion of the Administrative Agent is
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necessary or advisable in connection
with such Acquisition or formation of
such new Subsidiary.
cc. Liability of Grantor, Beneficiary or Trustee. The
grantor or Beneficiary or the Special Advisor or
Successor Special Advisor Group of the Borrower shall
not be subject to any personal liability whatsoever
under the Loan Documents. The Loan Documents and each
representation, warranty, undertaking and agreement
herein made on the part of the Borrower is made and
intended not as a personal representation, warranty,
undertaking and agreement by the VHT Trustee or for the
purpose or with the intention of binding the VHT
Trustee personally but is made and intended for the
purpose of binding only the trust estate held pursuant
to the Venture Trust Instrument and this Agreement is
executed and delivered by the VHT Trustee solely in the
exercise of the powers expressly conferred upon it as
VHT Trustee; and no personal liability or
responsibility is assumed hereunder by nor shall this
Agreement at any time be enforceable against the VHT
Trustee or its successor in trust on account of this
Agreement or any representation, warranty, covenant,
undertaking or agreement hereunder of the VHT Trustee,
either express or implied, all such personal liability,
if any, being expressly waived. Except as expressly
provided in the preceding sentence, all liability
hereunder of the Borrower shall be limited solely to
recourse against the assets of the trust estate held
pursuant to the Venture Trust Instrument or otherwise
of the Borrower.
dd. Application of Payments with Respect to Defaulting
Lenders. No payments of principal, interest or fees
delivered to the Administrative Agent for the account
of any Defaulting Lender shall be delivered by the
Administrative Agent to such Defaulting Lender.
Instead, such payments shall, for so long as such
Defaulting Lender shall be a Defaulting Lender, be held
by the Administrative Agent, and the Administrative
Agent is hereby authorized and directed by all parties
hereto to hold such funds in escrow and apply such
funds as follows:
(a) First, if applicable to any payments due to the
Administrative Agent pursuant to Section 2.1(d)
and to the Issuer under Section 2.2.5; and
(b) Second, to Loans required to be made by such
Defaulting Lender on any Borrowing Date to the
extent such Defaulting Lender fails to make such
Loans.
Notwithstanding the foregoing, upon the termination of the Aggregate Revolving
Credit Commitment and the payment and performance of all of the Obligations
(other than those owing to a Defaulting Lender), any funds then held in escrow
by the Administrative Agent pursuant to the preceding sentence shall be
distributed to each Defaulting Lender, pro rata in proportion to amounts that
would be due to each Defaulting Lender but for the fact that it is a Defaulting
Lender.
3. CHANGE IN CIRCUMSTANCES
a. Yield Protection. (a) If, on or after the date of this Agreement, the
adoption of any law or any governmental or quasi-governmental rule,
regulation, policy, guideline or directive (whether or not having the
force of law), or any change in the interpretation or
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administration thereof by any governmental or quasi-governmental
authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender
or applicable Lending Installation with any new or changed request or
directive (whether or not having the force of law) of any such
authority, central bank or comparable agency,
(a) subjects any Lender or any applicable Lending
Installation to any tax, duty, charge or withholding on
or from payments due from the Borrower (excluding
federal, state and local taxation of the overall net
income of any Lender or applicable Lending
Installation), or changes the basis of taxation of
payments to any Lender in respect of its Loans or other
amounts due it hereunder, or
(b) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or
similar requirement against assets of, deposits with or
for the account of, or credit extended by, any Lender
or any applicable Lending Installation (other than
reserves and assessments taken into account in
determining the interest rate applicable to Eurodollar
Advances), or
(c) imposes any other condition the result of which is to
increase the cost to any Lender or any applicable
Lending Installation of making, funding or maintaining
loans or reduces any amount receivable by any Lender or
any applicable Lending Installation in connection with
loans, or requires any Lender or any applicable Lending
Installation to make any payment calculated by
reference to the amount of loans held or interest
received by it, by an amount deemed material by such
Lender, then, within 15 days of demand by such Lender,
the Borrower shall pay such Lender that portion of such
increased expense incurred or reduction in an amount
received, without duplication of any other amount
claimed pursuant to this Section 3.1 or any other
provision herein, which such Lender determines is
attributable to making, funding and maintaining its
Loans and its Commitments.
(b) If any law or any governmental or quasi-governmental rule,
regulation, policy, guideline or directive of any jurisdiction outside of the
United States of America or any subdivision thereof (whether or not having the
force of law) imposes or deems applicable any reserve requirement against or fee
with respect to assets of, deposits with or for the account of, or credit
extended by, any lender or any applicable Lending Installation, and the result
of the foregoing is to increase the cost to such lender or applicable Lending
Installation of making or maintaining its Multicurrency Loans to the Borrower or
its Commitment or to reduce the return received by such Lender or applicable
Lending Installation in connection with such Multicurrency Loans or Commitment,
then within 15 days of demand by such Lender, the Borrower shall pay such Lender
such additional amount or amounts as will compensate such Lender for such
increased cost or reduction in amount received, provided that the Borrower shall
not be required to compensate any lender for such reserve costs or fees to the
extent that
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an amount equal to such reserve costs or fees is received by such lender as a
result of the calculation of the interest rate applicable to Multicurrency
Advances.
b. Changes in Capital Adequacy Regulations. If a Lender determines the
amount of capital required or expected to be maintained by such
Lender, any Lending Installation of such Lender or any corporation
controlling such Lender is increased as a result of a Change, then,
within 15 days of demand by such Lender, the Borrower shall pay such
Lender the amount necessary, without duplication of any other amount
claimed pursuant to this Section 3.2 or any other provision of this
Agreement, to compensate for any shortfall in the rate of return on
the portion of such increased capital which such Lender determines is
attributable to this Agreement, its Loans or its obligation to make
Loans hereunder (after taking into account such Lender's policies as
to capital adequacy). "Change" means (i) any change after the date of
this Agreement in the RiskBased Capital Guidelines or (ii) any
adoption of or change in any other law, governmental or
quasigovernmental rule, regulation, policy, guideline, interpretation,
or directive (whether or not having the force of law) after the date
of this Agreement which affects the amount of capital required or
expected to be maintained by any Lender or any Lending Installation or
any corporation controlling any Lender. "RiskBased Capital Guidelines"
means (i) the riskbased capital guidelines in effect in the United
States on the date of this Agreement, including transition rules, and
(ii) the corresponding capital regulations promulgated by regulatory
authorities outside the United States implementing the July 1988
report of the Basle Committee on Banking Regulation and Supervisory
Practices Entitled "International Convergence of Capital Measurements
and Capital Standards," including transition rules, and any amendments
to such regulations adopted prior to the date of this Agreement.
c. Availability of Types of Advances. If any Lender determines that
maintenance of its Eurodollar Loans or Eurocurrency Loans at a
suitable Lending Installation would violate any applicable law, rule,
regulation, or directive, whether or not having the force of law, or
if the Required Lenders or, with respect to Eurocurrency Loans, the
Required Multicurrency Revolving Credit Lenders, determine that (i)
deposits of a type and maturity appropriate to match fund Eurodollar
Advances or Eurocurrency Advances are not available or (ii) the
interest rate applicable to a Type of Advance or a Eurocurrency
Advance does not accurately reflect the cost of making or maintaining
such Advance, then the Administrative Agent shall suspend the
availability of the affected Type of Advance or Eurocurrency Advance
and require any Eurodollar Advances of the affected Type or affected
Eurocurrency Advances to be repaid.
d. Funding Indemnification. If any payment of a Eurodollar Advance or
Eurocurrency Advance occurs on a date which is not the last day of the
applicable Interest Period, whether because of acceleration,
prepayment or otherwise, or a Eurodollar Advance or Eurocurrency
Advance is not made on the date specified by the Borrower for any
reason other than default by the Lenders, the Borrower will indemnify
each Lender for any loss or cost incurred by it resulting therefrom,
including, without limitation, any loss or cost in liquidating or
employing deposits acquired to fund or maintain the Eurodollar Advance
or Eurocurrency Advance.
e. Alternative Lending Installation; Lender Statements; Survival of
Indemnity. To the
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extent reasonably possible, each Lender shall designate an alternate
Lending Installation with respect to its Eurodollar Loans or
Eurocurrency Loans to reduce any liability of the Borrower to such
Lender under Sections 3.1 and 3.2 or to avoid the unavailability of a
Type of Advance or a Eurocurrency Advance under Section 3.3 or 2.20,
so long as such designation is not disadvantageous to such Lender.
Each Lender shall deliver a written statement of such Lender to the
Borrower (with a copy to the Administrative Agent) as to the amount
due, if any, under Section 3.1, 3.2 or 3.4. Such written statement
shall set forth in reasonable detail the calculations upon which such
Lender determined such amount and shall be final, conclusive and
binding on the Borrower in the absence of manifest error.
Determination of amounts payable under such Sections in connection
with a Eurodollar or Eurocurrency Loan shall be calculated as though
each Lender funded its Eurodollar or Eurocurrency Loan through the
purchase of a deposit of the type and maturity corresponding to the
deposit used as a reference in determining the Eurodollar or
Eurocurrency Rate applicable to such Loan, whether in fact that is the
case or not. Unless otherwise provided herein, the amount specified in
the written statement of any Lender shall be payable on demand after
receipt by the Borrower of such written statement. The obligations of
the Borrower under Sections 3.1, 3.2 and 3.4 shall survive payment of
the Obligations and termination of this Agreement.
f. Taxes.
i. (a) All payments of principal and interest made by the Borrower
under this Agreement and any Note, if any, and all Reimbursement
Obligations shall be made free and clear of, and without
deduction or withholding for or on account of, any present or
future income, stamp or other taxes, levies, imposts, duties,
charges, fees, deductions or withholdings, now or hereafter
imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding income taxes and franchise
taxes and State of Michigan single business tax (imposed in lieu
of income taxes) imposed on the Administrative Agent or any
Lender as a result of a present or former connection between the
Administrative Agent or such Lender and the jurisdiction of the
Governmental Authority imposing such tax or any political
subdivision or taxing authority thereof or therein (other than
any such connection arising solely from the Administrative Agent
or such Lender having executed, delivered or performed its
obligations or received a payment under, or enforced, this
Agreement or any other Loan Document). If any such non-excluded
taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") are required to be withheld
from any amounts payable to the Administrative Agent, any Issuer
or any Lender hereunder or under any Note or Facility Letter of
Credit, the amounts so payable to the Administrative Agent, such
Issuer or such Lender shall be increased to the extent necessary
to yield to the Administrative Agent or such Lender (after
payment of all Non-Excluded Taxes) interest or any such other
amounts payable hereunder at the rates and in the amounts
specified in this Agreement provided, however, that (i) with
respect to any Loan or Facility Letter of Credit in Dollars to or
for the account of the Borrower, the Borrower shall not be
required to increase any such amounts payable to any Lender that
is not organized under the laws of the United States of America
or a state thereof if
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such Lender fails to comply with the requirements of Section 3.6.2,
and (ii) with respect to any Loan in any Eurocurrency, the Borrower
shall not be required to increase any such amounts payable to any
Lender if such Lender fails to comply with the requirements of Section
3.6.3. Whenever any Non-Excluded Taxes are payable by the Borrower, as
promptly as possible thereafter the Borrower shall send to the
Administrative Agent for its own account or for the account of such
Lender, as the case may be, a certified copy of an original official
receipt received by the Borrower showing payment thereof. If the
Borrower fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative
Agent the required receipts or other required documentary evidence,
the Borrower shall indemnify the Administrative Agent, the Issuer and
the Lenders for any incremental taxes, interest or penalties that may
become payable by the Administrative Agent, the Issuer or any Lender
as a result of any such failure. The agreements in this Section shall
survive the termination of this Agreement and the payment of the Loans
and all other amounts payable hereunder.
(b) If any Lender or the Administrative Agent shall become aware that
it is entitled to receive a refund or credit (such credit to include any
increase in any foreign tax credit as a result of Non-Excluded Taxes) as to
which it has been indemnified by the Borrower pursuant to this Section 3.6.1, it
shall promptly notify the Borrower of the availability of such refund or credit
and shall, within 45 days after receipt of a request by the Borrower, apply for
such refund or credit at the Borrower's expense, and in the case of any
application for such refund or credit by the Borrower, shall, if legally able to
do so, deliver to the Borrower such certificates, forms or other documentation
as may be reasonably necessary, and reasonably acceptable to the Lender or the
Administration Agent, to assist the Borrower in such application. If any Lender
or the Administrative Agent receives a refund or credit (such credit to include
any increase in any foreign tax credit) in respect to any Non-Excluded Taxes as
to which it has been indemnified by the Borrower pursuant to this Section 3.6.1,
it shall promptly notify the Borrower of such refund or credit and shall, within
45 days after receipt of such refund or the benefit of such credit, repay the
amount of such refund or benefit of such credit (with respect to the credit, as
determined by the Lender or the Administrative Agent in its sole judgment) to
the Borrower (to the extent of amounts that have been paid by the Borrower under
this Section 3.6.1 with respect to Non-Excluded Taxes giving rise to such refund
or credit), net of all reasonable out-of-pocket expenses of such Lender or the
Administrative Agent and without interest (other than interest actually received
from the relevant taxing authority or other Governmental Authority with respect
to such refund or credit); provided however, that the Borrower, upon the request
of such Lender or the Administrative Agent, agrees to return the amount of such
refund or benefit of such credit to such Lender or the Administrative Agent in
the event such Lender or the Administrative Agent is required to repay the
amount of such refund or benefit of such credit to the relevant taxing authority
or other Governmental Authority.
ii. Each Lender that is not organized under the laws of the United
States of America or a state thereof shall:
(1) at least five Business Days before the date of the initial
payment to be made by the Borrower under this Agreement to
such
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Lender, deliver to the Borrower and the Administrative Agent
(A) if such Lender is a "bank" within the meaning of Section
881 (c) (3) (A) of the Code, deliver to the Borrower and the
Administrative Agent two duly completed copies of United
States Internal Revenue Service Form 1001 or 4224 (or other
appropriate form), certifying in either case that such
Lender is entitled to receive payments under the Loan
Documents without deduction or withholding of any United
States federal income taxes or (B) if such Lender is not a
"bank within the meaning of Section 881 (c) (3) (A) of the
Code and intends to claim exemption from U.S. Federal
withholding tax under Section 871 (h) or 881 (c) of the Code
with respect to payments of "portfolio interest", a Form
W-8, or any subsequent versions thereof or successors
thereto (and, if such non-U.S. Lender delivers a Form W-8, a
certificate representing that such non-U.S. Lender is not a
bank for purposes of Section 881 (c) of the Code, is not a
10-percent shareholder (within the meaning of Section 871
(h) (3) (B) of the Code of the Borrower and is not a
controlled foreign corporation related to the Borrower
(within the meaning of Section 864 (d) (4) of the Code)),
properly completed and duly executed by such non-U.S. Lender
claiming complete exemption from U.S. Federal withholding
tax on payments of interest by the Borrower under the Loan
Documents. Each Lender which so delivers a Form 1001 or 4224
further undertakes to deliver to the Borrower and the
Administrative Agent two additional copies of such form (or
a successor form) on or before the date that such form (or a
replacement of an expired form) expires (currently, three
successive calendar years for Form 1001 and one calendar
year for Form 4224) or becomes obsolete or after the
occurrence of any event requiring a change in the most
recent forms so delivered by it, and such amendments thereto
or extensions or renewals thereof as may be reasonably
requested by the Borrower or the Administrative Agent, in
each case certifying that such Lender is entitled to receive
payments under the Loan Documents without deduction or
withholding of any United States federal income taxes,
unless an event (including without limitation any change in
treaty, law or regulation) has occurred prior to the date on
which any such delivery would otherwise be required which
renders all such forms inapplicable or which would prevent
such Lender from duly completing and delivering any such
form with respect to it and such Lender promptly advises the
Borrower and the Administrative Agent that it is not capable
of receiving payments without any deduction or withholding
of United States federal income tax.
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iii. If any payments by the Administrative Agent or the Borrower to
any Multicurrency Revolving Credit Lender are subject to any
withholding tax, such Multicurrency Revolving Credit Lender shall
file such forms and take such other actions to avoid the payment
of the withholding tax by the Administrative Agent or the
Borrower to the extent the Multicurrency Revolving Credit Lender
is able to do so.
4. CONDITIONS PRECEDENT; WITHHOLDING TAX EXEMPTION
a. Effectiveness of Agreement. This Agreement shall become effective only
upon receipt by the Administrative Agent of all of the documents and
other materials described below, with sufficient copies for the
Lenders, and satisfaction of all of the other conditions set forth
below, to wit:
(1) Copies of the trust agreement, articles of incorporation or
other organizational documents of the Borrower and each
Guarantor, and in the case of any corporation or limited
liability company a certificate of good standing.
(2) Copies, certified by the secretary or assistant secretary or
trustee, as the case may be, of the Borrower and each
Guarantor, of its bylaws or operating agreement and of its
Board of Directors' resolutions (and resolutions of other
bodies, if any are deemed necessary by the Administrative
Agent) authorizing the execution of the Loan Documents.
(3) An incumbency certificate, executed by the secretary or
assistant secretary or trustee, as the case may be, of the
Borrower and each Guarantor, which shall identify by name
and title and bear the signature of the officers or other
Person of the Borrower and each Guarantor authorized to sign
the Loan Documents and to make borrowings hereunder, upon
which certificate the Administrative Agent and the Lenders
shall be entitled to rely until informed of any change in
writing by the Borrower.
(4) A certificate, signed by the chief financial officer of the
Borrower, stating that on the Effective Date no Default or
Unmatured Default has occurred and is continuing.
(5) The written opinion of the Borrower's and Guarantors'
counsel, addressed to the Lenders, in substantially the form
of Exhibit H hereto.
(6) The Foreign Subsidiary Opinions and such other legal
opinions as may be required by the Administrative Agent.
(7) Written money transfer instructions, in substantially the
form of Exhibit I hereto (to the extent required by the
Administrative Agent), addressed to the Administrative Agent
and signed by an Authorized Officer, together with such
other related money transfer authorizations as the
Administrative Agent may have reasonably requested.
(8) The Collateral Documents duly executed on behalf of the
Borrower and
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the Guarantors, as the case may be, or amendments thereto,
confirming the continuing effectiveness of such documents,
granting to the Lenders and the Administrative Agent the
collateral and security intended to be provided pursuant to
Section 2.28, together with:
(a) Recordation, filing and other action (including payment
of any applicable taxes or fees) in such jurisdictions
as the Lenders or the Administrative Agent may deem
necessary or appropriate with respect to the Security
Documents, including the filing of financing statements
and similar documents which the Lenders or the
Administrative Agent may deem necessary or appropriate
to create, preserve or perfect the liens, security
interests and other rights intended to be granted to
the Lenders or the Administrative Agent thereunder,
together with Uniform Commercial Code record searches
in such offices as the Lenders or the Administrative
Agent may request;
(b) Policies of mortgage title insurance issued by an
insurer and in amounts satisfactory to the Lenders and
the Administrative Agent, insuring the interest of the
Lenders and the Administrative Agent under the
Mortgages without standard exceptions and without any
special exceptions not acceptable to the Lenders and
the Administrative Agent and containing such further
endorsements, affirmative coverage and other terms as
the Lenders and the Administrative Agent may request;
(c) Surveys of the property subject to the Mortgages made
by a land surveyor licensed in the State in which such
property is located and acceptable to the Lenders and
the Administrative Agent complying with the Minimum
Standard Detail Requirements for Land Title Surveys as
adopted by the American Title Association and the
American Congress on Surveying and Mapping and showing
such details as the Lenders and the Administrative
Agent may request, certified to the Lenders and the
Administrative Agent and the issuer of such mortgage
title insurance policy in form acceptable to the
Lenders and the Administrative Agent, or such surveys
recertified by such a surveyor sufficient to permit the
issuers of all mortgage title insurance policies to
remove their standard exceptions;
(d) A schedule setting forth all real property leased by
the Borrower, together with copies of the related
leases, certified as true and correct as of the
Effective Date by a duly authorized officer of such
Borrower, and an agreement of each landlord under such
leases, in form and substance acceptable to the Lenders
and the Administrative Agent, waiving its distraint,
lien and similar rights with respect to any property
subject to the Security Documents and agreeing to
permit the Lenders and the Administrative Agent to
enter such premises in connection
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therewith; and
(e) Evidence that the casualty and other insurance required
pursuant to the Loan Documents is in full force and
effect.
(9) The terms and provisions of the 1999 Subordinated Debt
Documents, and the 1999 Senior Unsecured Debt Documents
shall have been approved by the Administrative Agent and the
Lenders, which approval shall be deemed given upon delivery
of such Lender's signature page to this Agreement, and the
Borrower shall be in compliance with all material provisions
of the 1999 Subordinated Debt Documents and the 1999 Senior
Unsecured Debt Documents.
(10) Copies of all governmental and nongovernmental consents,
approvals, authorizations, declarations, registrations or
filings required on the part of the Borrower or any
Guarantor in connection with the execution, delivery and
performance of the Loan Documents, or the transactions
contemplated hereby or thereby or as a condition to the
legality, validity or enforceability of the Loan Documents,
certified as true and correct in full force and effect as of
the Effective Date by a duly authorized officer of the
Borrower, or if none are required, a certificate of such
officer to that effect;
(11) Payment of all fees owing by the Borrower to the Lenders and
the Administrative Agent as of the Effective Date.
(12) An Environmental Certificate executed by the Borrower
together with all environmental audits and reports required
by the Administrative Agent.
(13) Evidence of the satisfactory completion of the Peguform
Acquisition and all due diligence with respect to the
Borrower, its Subsidiaries, Peguform and the Peguform
Acquisition, including but not limited to, the satisfactory
review (reasonably acceptable to the Administrative Agent)
of all Peguform Acquisition Documents, all terms, conditions
and provisions of the Peguform Acquisition, all final
projections, all pro forma and prospective financial
statements, audited year end financial statements for
Peguform and the Borrower, all sources and uses statements,
pro forma covenant compliance projections and certificates,
the organizational structure of the Borrower and its
Subsidiaries after the Peguform Acquisition, all
environmental matters relating to Peguform, and the form and
structure, including the financial, legal, accounting, tax
and all other aspects of the Peguform Acquisition, all of
which shall be satisfactory to the Administrative Agent and
its counsel.
(14) Evidence satisfactory to the Administrative Agent that no
Material Adverse Effect with respect to Peguform or any its
Subsidiaries since September 30, 1998 and as shown in, or
since, the pro forma financial statement dated December 31,
1998 and delivered to the Administrative Agent prior to the
Effective Date.
(15) The Borrower shall have received the Net Cash Proceeds from
the 1999 Senior Subordinated Notes and the 1999 Senior
Unsecured Notes.
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(16) The initial funding shall have occurred by no later than May
31, 1999.
(17) Evidence satisfactory to the Administrative Agent that the
Borrower shall have (or will with the proceeds of the first
Advance) paid or defeased all outstanding obligations under
the 1997 Credit Agreement (and it is acknowledged and agreed
by the Borrower that this Agreement refunds, refinances and
replaces the 1997 Credit Agreement) and the senior
subordinated notes due April 1, 2004.
(18) Evidence that the Borrower shall have entered into such Rate
Hedging Agreements with respect to the Obligations and 1997
Senior Unsecured Notes as shall be required by the
Administrative Agent.
(19) Delivery of such other agreements and documents, and the
satisfaction of such other conditions as may be reasonably
required by the Administrative Agent, including without
limitation a subrogation and contribution agreement executed
by the Borrower and Guarantors, such funding instructions,
sources and uses certificate and other certificates required
by the Administrative Agent and such evidence of the
perfection and priority of all liens and security interests
as required by the Administrative Agent.
(20) Evidence satisfactory to the Administrative Agent that the
Borrower shall be in compliance, both before and after
giving effect to this Agreement, the Peguform Acquisition
and the other transactions contemplated hereby, with all
terms and conditions of the 1997 Senior Unsecured Debt
Documents, the 1999 Senior Unsecured Debt Documents and the
1999 Senior Subordinated Debt Documents.
b. Each Advance. The Lenders shall not be required to make any Advance
unless on the applicable Borrowing Date:
(a) There exists no Default or Unmatured Default.
(b) The representations and warranties contained in Article
V of this Agreement (excluding Section 5.5 and 5.24
with respect to the Borrower and its Subsidiaries
(other than the Subsidiaries being acquired in
connection with the Peguform Acquisition) in connection
with the Advances made on the Effective Date only) and
the other representations and warranties contained in
the Loan Documents are true and correct as of such
Borrowing Date except to the extent any such
representation or warranty is stated to relate solely
to an earlier date, in which case such representation
or warranty shall be true and correct on and as of such
earlier date.
(c) All legal matters incident to the making of such
Advance shall be reasonably satisfactory to the Lenders
and their counsel.
Each Borrowing Notice with respect to each such Advance shall constitute a
representation and warranty by the Borrower that the conditions contained in
Sections 4.2(i) and (ii) have been satisfied. The Administrative Agent may
require a duly completed compliance certificate in substantially the form of
Exhibit J hereto as a condition to making an Advance.
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5. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
a. Corporate Existence and Standing. Each of the Borrower and its
Subsidiaries is a corporation or trust duly incorporated or organized
as the case may be, validly existing and in good standing under the
laws of its jurisdiction of incorporation and has all requisite
authority to conduct its business in each jurisdiction in which its
business is conducted.
b. Authorization and Validity. The Borrower and each Guarantor has the
corporate and trust power, as the case may be, and authority and legal
right to execute and deliver the Loan Documents and to perform its
obligations thereunder. The execution and delivery by the Borrower and
each Guarantor of the Loan Documents to which it is a party and the
performance of its obligations thereunder have been duly authorized by
proper corporate or trust proceedings, and the Loan Documents
constitute legal, valid and binding obligations of the Borrower and
each Guarantor enforceable against the Borrower and each Guarantor in
accordance with their terms, except as enforceability may be limited
by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally.
c. No Conflict; Government Consent. Neither the execution and delivery by
the Borrower and each Guarantor of the Loan Documents to which it is a
party, nor the consummation of the transactions therein contemplated,
nor compliance with the provisions thereof will violate any law, rule,
regulation, order, writ, judgment, injunction, decree or award binding
on the Borrower or any of its Subsidiaries or the Borrower's or any
Subsidiary's articles of incorporation, operating agreement, bylaws,
Venture Trust Instrument or other organizational document or the
provisions of any indenture, instrument or agreement to which the
Borrower or any of its Subsidiaries is a party or is subject, or by
which it, or its Property, is bound, or conflict with or constitute a
default thereunder, or result in the creation or imposition of any
Lien in, of or on the Property of the Borrower or its Subsidiary
pursuant to the terms of any such indenture, instrument or agreement.
No order, consent, approval, license, authorization, or validation of,
or filing, recording or registration with, or exemption by, or other
action in respect of any governmental or public body or authority, or
any subdivision thereof, is required to authorize, or is required in
connection with the execution, delivery and performance of, or the
legality, validity, binding effect or enforceability of, any of the
Loan Documents.
d. Financial Statements. The December 31, 1998 and the March 31, 1999
consolidated financial statements of the Borrower and its Subsidiaries
heretofore delivered to the Lenders were prepared in accordance with
Agreement Accounting Principles in effect on the date such statements
were prepared and fairly present the consolidated financial condition
and operations of the Borrower and its Subsidiaries at such date and
the consolidated results of their operations for the period then
ended, subject, in the case of interim statements, to routine year-end
adjustments and the absence of footnotes. The Pro Forma Financial
Statements and Projections fairly present the pro forma consolidated
financial condition of the Borrower and its Subsidiaries after giving
effect to the Peguform Acquisition in accordance with Agreement
Accounting Principles and
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subject to adjustments based on the final debt structure, and
contain reasonable assumptions and give appropriate effect to those
assumptions, and are based on estimates and assumptions considered
reasonable by the Borrower's management and the best information
available to the Borrower's management at the time made, and use
information consistent with the plans of the Borrower.
e. Material Adverse Change. Since March 31, 1999, there has been no
change in the business, Property, prospects, condition (financial or
otherwise) or results of operations of the Borrower and its
Subsidiaries which could reasonably be expected to have a Material
Adverse Effect.
f. Taxes. The Borrower and its Subsidiaries have filed all United States
federal tax returns and all other tax returns which are required to be
filed and have paid all taxes due pursuant to said returns or pursuant
to any assessment received by the Borrower or any of its Subsidiaries,
except such taxes, if any, as are being contested in good faith and as
to which adequate reserves have been provided in accordance with
Agreement Accounting Principles. The United States income tax returns
of the Borrower and its Subsidiaries have been audited by the Internal
Revenue Service as shown on Schedule 5.6. The charges, accruals and
reserves on the books of the Borrower and its Subsidiaries in respect
of any taxes or other governmental charges are adequate.
g. Litigation and Contingent Obligations. Other than as set forth on
Schedule 5.7, there is no litigation, arbitration, governmental
investigation, proceeding or inquiry pending or, to the knowledge of
any of their officers, threatened against or affecting the Borrower or
any of its Subsidiaries which could have a Material Adverse Effect or
which seeks to prevent, enjoin or delay the Peguform Acquisition or
the making of the Loans or Advances, and there is no basis for any of
the foregoing. The Borrower and its Subsidiaries have no material
contingent obligations not provided for or disclosed in the financial
statements referred to in Section 5.4.
h. Subsidiaries. Schedule 5.8 hereto contains an accurate list of all
Subsidiaries of the Borrower as of the date of this Agreement, setting
forth their respective jurisdictions of incorporation and the
percentage of their respective capital stock owned by the Borrower or
other Subsidiaries. All of the issued and outstanding shares of
Capital Stock of such Subsidiaries have been duly authorized and
issued and are fully paid and nonassessable.
i. ERISA; Etc. The Unfunded Liabilities of all Single Employer Plans do
not in the aggregate exceed $5,000,000 at any time within 10 days
after the Borrower knows of the amount of such Unfunded Liabilities.
Neither the Borrower nor any other member of the Controlled Group has
incurred, or is reasonably expected to incur, any withdrawal liability
to Multiemployer Plans. Each Plan complies in all material respects
with all applicable requirements of law and regulations, no Reportable
Event has occurred with respect to any Plan, neither the Borrower nor
any other members of the Controlled Group has withdrawn from any Plan
or initiated steps to do so, and no steps have been taken to
reorganize or terminate any Plan. Each Foreign Plan is in compliance
in all material respects with all Requirements of Law. The aggregate
of the accumulated unfunded liabilities under all Foreign Pension
Plans does not exceed the Dollar Equivalent of $50,000,000. There are
no actions, suits or claims (other than routine claims for benefits)
pending or, to the knowledge of the Borrower, threatened against the
Borrower or any Subsidiary with respect to any Foreign Plan.
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j. Accuracy of Information. No information, exhibit or report furnished
by the Borrower or any of its Subsidiaries to the Administrative Agent
or to any Lender in connection with the negotiation of, or compliance
with, the Loan Documents contained any material misstatement of fact
or omitted to state a material fact or any fact necessary to make the
statements contained therein not misleading; provided, however, that
to the extent any such information, exhibits or reports include or
incorporate by reference any forward-looking statement (each, a
"Forward-Looking Statement") which reflects the Borrower's current
view (as of the date such Forward-Looking Statement is made) with
respect to future events, prospects, projections or financial
performance, such Forward-Looking Statement is subject to
uncertainties and other factors which could cause actual results to
differ materially from such Forward-Looking Statement.
k. Regulation T, U and X. Margin Stock constitutes less than 25% of those
assets of the Borrower and its Subsidiaries which are subject to any
limitation on sale, pledge, or other restriction hereunder.
l. Material Agreements. Neither the Borrower nor any Subsidiary is a
party to any agreement or instrument or subject to any charter or
other corporate restriction which could have a Material Adverse
Effect. Neither the Borrower nor any Subsidiary is in default in the
performance, observance or fulfillment of any of the obligations,
covenants or conditions contained in (i) any agreement to which it is
a party, which default could have a Material Adverse Effect or (ii)
any agreement or instrument evidencing or governing Indebtedness.
m. Compliance With Laws. Other than with respect to Environmental Laws
(which is addressed in Section 5.16), the Borrower and its
Subsidiaries have complied with all applicable statutes, rules,
regulations, orders and restrictions of any domestic or foreign
government or any instrumentality or agency thereof, having
jurisdiction over the conduct of their respective businesses or the
ownership of their respective Property if failure to comply could
reasonably be expected to have a Material Adverse Effect.
n. Ownership of Properties. Except as set forth on Schedule 5.14 hereto,
on the date of this Agreement, the Borrower and its Subsidiaries will
have good title, free of all Liens other than those permitted by
Section 6.15, to all of the Property and assets reflected in the
financial statements as owned by it.
o. Plan Assets; Prohibited Transactions. The Borrower is not an entity
deemed to hold "plan assets" within the meaning of 29 C.F.R.
2510.3-101 of an employee benefit plan (as defined in Section 3(3) of
ERISA) which is subject to Title I of ERISA or any plan (within the
meaning of Section 4975 of the Code); and neither the execution of
this Agreement nor the making of Loans hereunder gives rise to a
prohibited transaction within the meaning of Section 406 of ERISA or
Section 4975 of the Code.
p. Environmental Matters. All representations and warranties contained in
the Environmental Certificate are true and correct.
q. Investment Company Act. Neither the Borrower nor any Subsidiary
thereof is an "investment company" or a company "controlled" by an
"investment company", within the meaning of the Investment Trust Act
of 1940, as amended.
r. Public Utility Holding Company Act. Neither the Borrower nor any
Subsidiary is a "holding company" or a "subsidiary company" of a
"holding company", or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company", within
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the meaning of the Public Utility Holding Company Act of 1935,
as amended.
s. PostRetirement Benefits. The present value of the expected cost of
postretirement medical and insurance benefits payable by the Borrower
and its Subsidiaries to its employees and former employees, as
estimated by the Borrower in accordance with procedures and
assumptions deemed reasonable by the Required Lenders, does not exceed
$2,000,000.
t. Insurance. The certificate signed by the President or Chief Financial
Officer of the Borrower, that attests to the existence and adequacy
of, and summarizes, the property and casualty insurance program
carried by the Borrower and its Subsidiaries and that has been
furnished by the Borrower to the Administrative Agent and the Lenders,
is complete and accurate. This summary includes the insurer's or
insurers' name(s), policy number(s), expiration date(s), amount(s) of
coverage, type(s) of coverage, exclusion(s), and deductibles. This
summary also includes similar information, and describes any reserves,
relating to any selfinsurance program that is in effect.
u. Solvency.
(a) Immediately after the consummation of the Peguform
Acquisition and immediately following the making of each
Loan, if any, made on the date hereof and after giving
effect to the application of the proceeds of such Loans, (a)
the fair value of the assets of the Borrower and the
Subsidiaries on a consolidated basis, at a fair valuation,
will exceed the debts and liabilities, subordinated,
contingent or otherwise, of the Borrower and the
Subsidiaries on a consolidated basis; (b) the present fair
saleable value of the property of the Borrower and the
Subsidiaries on a consolidated basis will be greater than
the amount that will be required to pay the probable
liability of the Borrower and the Subsidiaries on a
consolidated basis on their debts and other liabilities,
subordinated, contingent or otherwise, as such debts and
other liabilities become absolute and matured; (c) the
Borrower and the Subsidiaries on a consolidated basis will
be able to pay their debts and liabilities, subordinated,
contingent or otherwise, as such debts and liabilities
become absolute and matured; and (d) the Borrower and the
Subsidiaries on a consolidated basis will not have
unreasonably small capital with which to conduct the
businesses in which they are engaged as such businesses are
now conducted and are proposed to be conducted after the
date hereof.
(b) The Borrower does not intend to, or to permit any of its
Subsidiaries to, and does not believe that it or any of its
Subsidiaries will, incur debts beyond its ability to pay
such debts as they mature, taking into account the timing of
and amounts of cash to be received by it or any such
Subsidiary and the timing of the amounts of cash to be
payable on or in respect of its Indebtedness or the
Indebtedness of any such Subsidiary.
v. Labor Controversies. There are no labor controversies pending or, to
the best of the
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Borrower's knowledge, threatened against the Borrower or any
Subsidiary, which could have a Material Adverse Effect.
w. No Adverse Development. Since March 31, 1999, neither the consolidated
financial position nor the business as a whole of the Borrower and its
Subsidiaries nor any Substantial Portion of the properties and assets
of the Borrower and its Subsidiaries has been materially adversely
affected as a result of any legislative or regulatory change or of any
fire, explosion, tidal wave, flood, windstorm, earthquake, landslide,
land subsidence, accident, condemnation or governmental intervention,
order of any court or governmental agency or commission, technological
development in the industries in which the Borrower operates, act of
God or of the public enemy or of armed forces, rebellion, strike,
labor disturbance or embargo, or otherwise, whether or not insured
against, which could reasonably be expected to impair materially the
ability of the Borrower and the Guarantors to fulfill punctually their
Obligations under the Loan Documents.
x. Burdensome Obligations. Neither the Borrower nor any Subsidiary is a
party to or is bound by any agreement, deed, lease, or other
instrument, or subject to any charter, bylaw or other corporate
restriction which, in the opinion of the management of the Borrower,
is so unusual or burdensome as in the foreseeable future might cause a
Material Adverse Effect. The Borrower does not presently anticipate
that future expenditures needed to meet the provisions of federal or
state statutes, orders, rules or regulations will be so burdensome as
to affect or impair in a materially adverse manner the consolidated
financial condition, business, operations or property of the Borrower.
y. Payment of Wages. The Borrower and its Domestic Subsidiaries are in
substantial compliance in all material respects with the Fair Labor
Standards Act, as amended, and have paid all minimum and overtime
wages required by law to be paid to its employees.
z. Intellectual Property. Set forth on Schedule 5.26 is a complete and
accurate list of all patents, trademarks, trade names, service marks
and copyrights, and all applications therefor and licenses (other than
those licenses implicit in purchase orders and supply agreements of
customers and suppliers) thereof, of the Borrower and each of its
Subsidiaries showing as of the Effective Date the jurisdiction in
which registered, the registration number and the date of
registration. The Borrower and each of its Subsidiaries owns, or is
licensed to use, all trademarks, tradenames, service marks,
copyrights, technology, know-how and processes necessary for the
conduct of its business as currently conducted (the "Intellectual
Property") except for those the failure to own or licenses which could
not be reasonably be expected to have a Material Adverse Effect. No
claim has been asserted and is pending by any person challenging or
questioning the use by the Borrower or any of its Subsidiaries of any
such Intellectual Property or the validity or effectiveness of any
such Intellectual Property, nor does the Borrower or any of its
Subsidiaries know of any valid basis for any such claim, the use of
such Intellectual Property by the Borrower and each of its
Subsidiaries does not infringe on the rights of any Person, and, to
the knowledge of the Borrower, no such Intellectual Property of the
Borrower and its Subsidiaries has been infringed, misappropriated or
diluted by any other Person except for such claims, infringements,
misappropriation and dissolution that, in the aggregate, could not
have a Material Adverse Effect.
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aa. Other Representations. To the best knowledge of the Borrower, all
representations and warranties contained in the Peguform Acquisition
Documents are true and correct except as disclosed on the Schedules to
this Agreement.
bb. Year 2000. The Borrower has made a full and complete assessment of the
Year 2000 Issues and has a realistic and achievable program for
remediating the Year 2000 Issues on a timely basis (the "Year 2000
Program"). Based on such assessment and on the Year 2000 Program the
Borrower does not reasonably anticipate that Year 2000 Issues will
have a Material Adverse Effect.
cc. 1997 Senior Unsecured Debt Documents. All representations and
warranties of the Borrower contained in any Senior Unsecured Debt
Documents are true and correct in all material respects when made.
This Agreement and the other Loan Documents are the "Credit Agreement"
as defined in the 1997 Senior Unsecured Indenture. The incurrence of
the Secured Obligations is in full compliance with the 1997 Senior
Unsecured Debt Documents. The Term Loans are being incurred pursuant
to, and in full compliance with, the 1997 Senior Unsecured Indenture,
and the Term Loans are classified as Indebtedness incurred under the
"Debt Incurrence Ratio". There is no event of default or event or
condition which could become an event of default with notice or lapse
of time or both, under the 1997 Senior Unsecured Debt Documents and
each of the 1997 Senior Unsecured Debt Documents is in full force and
effect.
dd. 1999 Senior Subordinated Debt Documents and 1999 Senior Unsecured Debt
Documents. All representations and warranties of the Borrower
contained in any 1999 Senior Subordinated Debt Documents and in any
1999 Senior Unsecured Debt Documents are true and correct in all
material respects when made. This Agreement and the other Loan
Documents are the "Credit Agreement" as defined in the 1999 Senior
Unsecured Indenture and the 1999 Subordinated Indenture. The Borrower
will receive net proceeds in the approximate amount of $121,406,250 on
the Effective Date from its issuance of the 1999 Senior Subordinated
Notes and in the approximate amount of $121,562,500 on the Effective
Date from its issuance of the 1999 Senior Unsecured Notes, and all
agreements, instruments and documents executed or delivered pursuant
to the issuance of the 1999 Senior Subordinated Notes or the 1999
Senior Unsecured Notes are described on Schedule 5.30 hereto. The
incurrence of the Secured Obligations is in full compliance with the
1997 Senior Unsecured Debt Documents, the 1999 Senior Unsecured Debt
Documents and the 1999 Subordinated Debt Documents. All Secured
Obligations are "Senior Debt " and all Obligations are "Designated
Senior Debt" as defined in the 1999 Subordinated Debt Documents and,
other than the Obligations and the 1997 Senior Unsecured Notes (or any
permitted refinancing thereof), there is no other "Designated Senior
Debt" thereunder. There is no event of default or event or condition
which could become an event of default with notice or lapse of time or
both, under the 1999 Senior Subordinated Debt Documents or the 1999
Unsecured Debt Documents and each of the 1999 Senior Subordinated Debt
Documents and the 1999 Senior Unsecured Debt Documents is in full
force and effect.
ee. Peguform Acquisition. Simultaneously with the disbursement of initial
Advance hereunder, the Borrower will have completed the Peguform
Acquisition in accordance with the Peguform Acquisition Documents and
in accordance with all laws and regulations and all other Requirements
of Law, and will acquire, free and clear of all
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Liens, good and marketable title to all Capital Stock to be acquired
pursuant to the Peguform Acquisition. Complete and correct copies of
all Peguform Acquisition Documents have been delivered to the
Administrative Agent on or before the Peguform Acquisition Date, and
the Borrower has satisfied all conditions precedent required as of
closing under the Peguform Acquisition to complete the Peguform
Acquisition. The total consideration paid or payable for the Peguform
Acquisition will not exceed $475,000,000 plus $45,000,000 of
Indebtedness assumed in connection with the Peguform Acquisition.
ff. Subsidiary Advances. The making of any loans or other advances by any
Foreign Subsidiary to the Borrower which are subordinated to all
Secured Obligations does not violate or contravene (a) any provision
of any security issued by the Foreign Subsidiary or of any agreement,
instrument or other undertaking to which the Foreign Subsidiary is a
party or by which it or any of its property is bound (each a
"Contractual Obligation") or (b) the certificate of incorporation and
by-laws or other organizational or governing documents of such Foreign
Subsidiary, or any Requirement of Law. Other than the restrictions
described on Schedule 5.32, there are no restrictions on any dividends
or other distributions which may be paid by any Foreign Subsidiary
upon its Capital Stock, whether under any Contractual Obligation,
Requirement of Law or otherwise.
6. COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
a. Financial Reporting. The Borrower will maintain, for itself and each
Subsidiary, a system of accounting established and administered in
accordance with Agreement Accounting Principles, and furnish to the
Lenders:
(a) Within 90 days after the close of each of its fiscal years,
an unqualified audit report certified by independent
certified public accountants, acceptable to the Lenders,
prepared in accordance with Agreement Accounting Principles
on a consolidated basis for itself and the Subsidiaries,
including balance sheets as of the end of such period,
related profit and loss and reconciliation of surplus
statements, and a statement of cash flows, accompanied by
(a) any management letter prepared by said accountants, and
(b) a certificate of said accountants that, in the course of
their examination necessary for their certification of the
foregoing, they have obtained no knowledge of any Default or
Unmatured Default, or if, in the opinion of such
accountants, any Default or Unmatured Default shall exist,
stating the nature and status thereof.
(b) Within 45 days after the close of the first three quarterly
periods
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of each of its fiscal years, for itself and the
Subsidiaries, consolidated unaudited balance sheets as at
the close of each such period and consolidated unaudited
profit and loss and unaudited reconciliation of surplus
statements and an unaudited statement of cash flows for the
period from the beginning of such fiscal year to the end of
such quarter, all certified by its chief financial officer.
(c) Within 30 Business Days after the close of each fiscal month
end, a Borrowing Base Certificate prepared as of the close
of business on the last day of each month and such
supporting schedules requested by the Administrative Agent,
certified as true and correct by an authorized officer of
the Borrower.
(d) Within 30 days of the request of the Administrative Agent, a
report containing an aging as of the end of the preceding
month of accounts receivable and accounts payable of the
Borrower and its Subsidiaries, in a form satisfactory to the
Administrative Agent, and a report identifying the inventory
of the Borrower and its Subsidiaries, and the cost and
location thereof as of the end of the preceding month, in
form satisfactory to the Administrative Agent.
(e) Promptly and in any event within 10 days after receipt, a
copy of any management letter or comparable analysis
prepared by the auditors for the Borrower and its
Subsidiaries.
(f) Together with the financial statements required under
Sections 6.1(i) and (ii), a compliance certificate in
substantially the form of Exhibit J hereto signed by an
authorized officer showing the calculations necessary to
determine compliance with this Agreement and stating that no
Default or Unmatured Default exists, or if any Default or
Unmatured Default exists, stating the nature and status
thereof.
(g) Within 270 days after the close of each fiscal year, a
statement of the Unfunded Liabilities of each Single
Employer Plan, certified as correct by an actuary enrolled
under ERISA.
(h) As soon as possible and in any event within 10 days after
the Borrower or any Subsidiary knows that any Reportable
Event has occurred with respect to any Plan, a statement,
signed by the chief financial officer of the Borrower,
describing said Reportable Event and the action which the
Borrower proposes to take with respect thereto.
(i) As soon as possible and in any event within 10 days after
receipt by the Borrower or any Subsidiary, a copy of (a) any
notice or claim to the effect that the Borrower or any of
its Subsidiaries is or may be liable to any Person as a
result of the release by the Borrower, any of its
Subsidiaries, or any other Person of any toxic or hazardous
waste or substance into the environment, and
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(b) any notice alleging any violation of any federal, state
or local environmental, health or safety law or regulation
by the Borrower or any of its Subsidiaries, which, in either
case, could have a Material Adverse Effect.
(j) Promptly upon the furnishing thereof to the shareholders or
Beneficiary or trustees of the Borrower or any holder of the
1999 Subordinated Debt, the 1999 Senior Unsecured Notes, or
the 1997 Senior Unsecured Notes or trustee therefor, copies
of all financial statements, reports, proxy statements and
other documents so furnished.
(k) Promptly upon the filing thereof, copies of all registration
statements and annual, quarterly, monthly or other regular
reports which the Borrower or any of its Subsidiaries files
with the Securities and Exchange Commission.
(l) Promptly and in any event within three calendar days after
becoming aware of the occurrence of a Default or an
Unmatured Default, or the occurrence of an event of default
under the Peguform Acquisition Documents, a certificate of
the chief financial officer of the Borrower stating the
nature and status thereof.
(m) Such other information (including nonfinancial information)
as the Administrative Agent or any Lender may from time to
time reasonably request.
b. Use of Proceeds. The Borrower will, and will cause each Subsidiary to,
use the proceeds of the Advances for working capital and other
corporate purposes. The Borrower will not, nor will it permit any
Subsidiary to, use any of the proceeds of the Advances to purchase or
carry any Margin Stock.
c. Notice of Default. The Borrower will, and will cause each Subsidiary
to, give prompt notice in writing to the Lenders of the occurrence of
any Default or Unmatured Default and of any other development,
financial or otherwise, which could have a Material Adverse Effect.
d. Conduct of Business. The Borrower will, and (subject to Sections 6.12
and 6.13) will cause each Subsidiary to, carry on and conduct its
business in substantially the same fields of enterprise as it is
presently conducted and to do all things necessary to remain duly
incorporated, validly existing and in good standing as a corporation
in its jurisdiction of incorporation and maintain all requisite
authority to conduct its business in each jurisdiction in which its
business is conducted; provided, however, that any Domestic Subsidiary
may transfer its jurisdiction of incorporation to another State of the
United States of America. The Borrower will not permit the
organizational documents of any successor to the Borrower under
Section 6.12 to be modified in any manner materially adverse to the
Lenders without the consent of the Administrative Agent.
e. Taxes. The Borrower will, and will cause each Subsidiary to, timely
file complete and correct United States federal and applicable
foreign, state and local tax returns required by law and pay when due
all taxes, assessments and governmental charges and levies upon it or
its income, profits or Property, except those which are being
contested in good
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faith by appropriate proceedings and with respect to which adequate
reserves have been set aside in accordance with Agreement Accounting
Principles.
f. Insurance. The Borrower will maintain fire and extended coverage
insurance on its and each Subsidiary's equipment, inventory, real
property and other tangible assets containing a lender's loss payable
and mortgagee clause in favor of the Administrative Agent and
providing that said insurance will not be terminated except after at
least 30 days' written notice from the insurance company to the
Administrative Agent. The certificate signed by the President or Chief
Financial Officer of the Borrower, that attests to the existence and
adequacy of (as comparable to insurance customarily maintained by
similar companies in the Borrower's line of business), and summarizes,
the property and casualty insurance program carried by the Borrower
and that has been furnished by the Borrower to the Administrative
Agent and the Lenders, is complete and accurate. This summary includes
the insurer's or insurers' name(s), policy number(s), expiration
date(s), amount(s) of coverage, type(s) of coverage, exclusion(s), and
deductibles. This summary also includes similar information, and
describes any reserves, relating to any selfinsurance program that is
in effect.
g. Compliance with Laws. The Borrower will, and will cause each
Subsidiary to, comply in all material respects with all Requirements
of Law.
h. Maintenance of Properties. Except as to Property which is obsolete or
is not being used in the business or is to be replaced, the Borrower
will, and will cause each Subsidiary to, do all things necessary to
maintain, preserve, protect and keep its Property in good repair,
working order and condition, and make all necessary and proper
repairs, renewals and replacements so that its business carried on in
connection therewith may be properly conducted at all times.
i. Inspection. The Borrower will, and will cause each Subsidiary to,
permit the Administrative Agent and the Lenders, by their respective
representatives and agents, to inspect any of the Property, corporate
books and financial records of the Borrower and each Subsidiary, to
examine and make copies of the books of accounts and other financial
records of the Borrower and each Subsidiary, and to discuss the
affairs, finances and accounts of the Borrower and each Subsidiary
with, and to be advised as to the same by, their respective officers
at such reasonable times and intervals as the Lenders may designate.
j. Dividends. The Borrower will not declare or pay any dividends or make
any distributions of any kind (including without limitation any
distribution of assets) on its Capital Stock (other than dividends
payable in its own Capital Stock) or redeem, repurchase or otherwise
acquire or retire any of its Capital Stock at any time outstanding,
except that the Borrower may make distributions to any Beneficiary of
the Borrower required to pay the aggregate federal, state and local
income and intangibles tax liability of such Beneficiary attributable
solely to earnings of the Borrower, provided that such amounts shall
be paid only so long as the Borrower is an entity described in Section
1361(a)(1), 1361(c)(2), 1361(d) or 1361(e) of the Code, an S
Corporation, a limited liability company or a partnership or an entity
that is disregarded as an entity separate from its owner(s) for tax
purposes (each a "Pass Through Entity") and such distributions may be
made only as and when such tax liability of the Beneficiary is due
(the "Permitted Tax Distributions"), and the Borrower shall comply
with all requirements of
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the 1997 Senior Unsecured Debt Documents, 1999 Senior Unsecured Debt
Documents and 1999 Subordinated Debt Documents in connection with the
payment of any such dividends or other distributions. The Borrower
will not issue any Disqualified Stock. For purposes of the calculation
and distribution in this Section 6.10, the Beneficiary shall be the
Person ultimately liable for the payment of taxes on the earnings of
the Borrower.
k. Indebtedness. The Borrower will not, nor will it permit any Subsidiary
to, create, incur or suffer to exist any Indebtedness, except:
(a) The Loans and Facility Letters of Credit and other
Indebtedness under the Loan Documents;
(b) Indebtedness existing on the date hereof and described in
Schedule 6.11 hereto, including the 1997 Senior Unsecured
Notes, the 1999 Senior Unsecured Notes and the 1999
Subordinated Notes, but no increase in the principal amount
thereof, as reduced from time to time;
(c) Indebtedness arising under Rate Hedging Agreements, provided
that such Rate Hedging Agreements are entered into to hedge
the Borrower's and its Subsidiaries' reasonably estimated
interest rate, foreign currency or commodity exposure and
are not entered into for purposes of financial speculation;
(d) Indebtedness incurred solely to refinance or replace any
then existing Indebtedness permitted hereunder, provided
that such Indebtedness does not in any case exceed the
amount of existing Indebtedness refinanced or replaced and
such existing Indebtedness is paid and discharged to the
extent of the new Indebtedness incurred;
(e) Indebtedness of the Borrower or any of its Subsidiaries
owing to the Borrower or any of its Subsidiaries, provided
that (w) if such Indebtedness is owing to a Borrower or a
Guarantor, the Administrative Agent shall have a first
priority, perfected and enforceable lien and security
interest in form and substance acceptable to the
Administrative Agent in such Indebtedness and all rights and
interests of the Borrower or such Guarantor with respect
thereto, (x) if the Borrower or the Guarantor is the obligor
on such Indebtedness, such Indebtedness, if required by the
Administrative Agent, shall be expressly subordinated, by
written agreement in form and substance acceptable to the
Administrative Agent, to the Secured Obligations, (y) the
aggregate principal amount of such Indebtedness to the
Borrower or any Guarantor owing by all Subsidiaries which
are not Guarantors shall not exceed the sum of the amount
incurred to complete the Peguform Acquisition and the
Peguform Restructuring and $100,000,000 at any time
outstanding and (z) the aggregate principal amount of such
Indebtedness owing by all Subsidiaries which are not
Wholly-Owned Subsidiaries shall not exceed $10,000,000 at
any time outstanding;
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(f) Indebtedness in connection with any receivables factoring in
the ordinary course of business in an aggregate amount at
any one time outstanding not to exceed an amount equal to
the Dollar Equivalent of $10,000,000;
(g) The Additional Subordinated Notes; and
(h) Other Indebtedness in an aggregate amount at any one time
outstanding not to exceed $50,000,000, provided that the
aggregate amount of such other Indebtedness owing by Foreign
Subsidiaries shall not exceed $25,000,000.
Notwithstanding the above, the Borrower will not, nor will it permit any
Subsidiary to, create, incur or suffer to exist any Indebtedness, other than the
Loan Documents and the Additional Subordinated Notes, which is classified as
"Credit Facilities" under the 1999 Senior Unsecured Indenture or the 1999
Subordinated Indenture and which would limit the ability of the Borrower to
borrow the full amount of the Commitments.
l. Merger. The Borrower will not, nor will it permit any Subsidiary to,
merge or consolidate with or into any other Person, except that a
Subsidiary may merge into the Borrower or a WhollyOwned Subsidiary and
any non Wholly-Owned Subsidiary may merge into any Subsidiary for
which the Borrower owns an equal or greater percentage of the Capital
Stock of such Subsidiary.
Notwithstanding anything contained in this Agreement to the contrary, the
Borrower is permitted to contribute or transfer all of the Capital Stock of
the Subsidiaries then held by the Borrower (other than the Capital Stock of the
Subsidiary which is to receive such contribution from the Borrower or the
Capital Stock of a Subsidiary of which such receiving Subsidiary is a
Subsidiary) to Venture Holdings Corporation or any other successor to the
Borrower (a "Trust Contribution") provided that (A) any successor or surviving
corporation or limited liability company is organized and existing under the
laws of the United States, any state thereof or the District of Columbia,
pursuant to organizational documents acceptable to the Administrative Agent, (B)
such contribution or reorganization is not materially adverse to the Lenders; it
being understood, however, that such contribution or reorganization shall not be
considered materially adverse to the Lenders solely because the successor or
surviving corporation or limited liability company is subject to income taxation
as a corporate or limited liability entity, (C) immediately after giving effect
to such transaction, no Default of Unmatured Default exists, (D) the actions
comprising such contribution or reorganization (e.g., the contribution of
Capital Stock of the Subsidiaries, or the issuance of Capital Stock of the
corporation or limited liability company or the Capital Stock of a Subsidiary of
which such receiving Subsidiary is a Subsidiary in exchange for assets of or
Capital Stock in the Borrower or in exchange for Capital Stock of a corporation
or limited liability company or the Capital Stock of a Subsidiary of which such
receiving Subsidiary is a Subsidiary holding such Capital Stock, or the merger
or consolidation of such corporations) will not themselves directly result in
material income tax liability to the successor or surviving corporation or
limited liability company or the Subsidiary of which such receiving Subsidiary
is a Subsidiary, (E) the successor or surviving corporation or limited liability
company has assumed all Secured Obligations of the Borrower, in each case
pursuant to agreements in a form reasonably satisfactory to the Administrative
Agent and the Lenders and (F) the Lenders will not recognize income, gain or
loss for federal or income tax purposes as a result of such contribution or
reorganization and will be subject to federal income tax on the same amounts, in
the same manner, and at the same time as would have been the case if such
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contribution or reorganization had not occurred. If the successor or surviving
corporation or limited liability company after a Trust Contribution is not a
Pass Through Entity, the Borrower's ability to make Permitted Tax Distributions
terminates (except with respect to tax distributions in respect of taxable
periods ending on or prior to the date such contribution or reorganization is
effective for relevant tax purposes), other than tax distributions in respect of
beneficiaries' income tax liability that results from the actions comprising
such contribution or reorganization. The Borrower shall deliver to the
Administrative Agent prior to such contribution or reorganization an officers'
certificate covering paragraphs (A) through (F) and the preceding sentence of
this paragraph, stating that such contribution or reorganization and such
agreements comply with this Agreement, and an opinion of counsel covering
paragraphs (A), (D), (E) and (F) above and the preceding sentence of this
paragraph.
Upon any consolidation or merger, or any sale, assignment, transfer, lease,
conveyance or other disposition of all of the assets of the Borrower (other than
the Capital Stock of the Subsidiary which is to receive such contribution from
the Borrower or the Capital Stock of a Subsidiary of which such receiving
Subsidiary is a Subsidiary) in accordance with this Section 6.12 the successor
corporation or limited liability company formed by such consolidation or into or
with which the Borrower is merged or to which such sale, assignment, transfer,
lease, conveyance or other disposition is made shall succeed to, and be
substituted for (so that from and after the date of such consolidation, merger,
sale, lease, conveyance or other disposition, the provisions of this Agreement
referring to the "Borrower" shall refer instead to the successor corporation or
limited liability company and not to Venture Holdings Trust), and may exercise
every right and power of the Borrower under this Agreement with the same effect
as if such successor person had been named as the Borrower herein, and the
predecessor Borrower shall be relieved from the obligation to pay the
Obligations provided that such predecessor Borrower shall be released from its
obligations on all of its Indebtedness other than Indebtedness in an aggregate
outstanding amount not to exceed $7,500,000.
m. Sale of Assets. The Borrower will not, nor will it permit any
Subsidiary to, lease, sell or otherwise dispose of its Property to any
other Person, except:
(a) Sales and other dispositions of inventory in the ordinary
course of business and the sales and other dispositions of
obsolete material or equipment in the ordinary course of
business;
(b) Sales of equipment if 100% of the Net Cash Proceeds from the
sale of any such equipment are used within 360 days of such
sale to purchase equipment of comparable or greater value
which is subject to the lien and security interest of the
Administrative Agent or are used to repay the Loans (and if
any such payment is applied to Revolving Credit Loans, the
Revolving Credit Commitments shall be permanently reduced by
such amount) or, if there are no Loans outstanding, to repay
amounts outstanding under the 1997 Senior Unsecured Notes or
the 1999 Senior Unsecured Notes (and such payment shall not
be considered a Default under Section 6.16), and permanently
reduce the Revolving Credit Commitments by such amounts;
(c) Transfers of assets between Guarantors and between the
Borrower and Guarantors;
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(d) Transfers of assets between Subsidiaries which are not
Guarantors and transfers of assets from any Subsidiaries
which are not Guarantors to any Guarantor or the Borrower.
(e) Transfers of assets pursuant to, and as described in, the
Peguform Restructuring;
(f) Subject to Section 6.11(vi), the sale of receivables in
connection with any receivables factoring arrangement in the
ordinary course of business; and
(g) Leases, sales or other dispositions of its Property that,
together with all other Property of the Borrower and its
Subsidiaries previously leased, sold or disposed of (other
than inventory in the ordinary course of business) as
permitted by this clause (vii) during the twelvemonth period
ending with the month in which any such lease, sale or other
disposition occurs, does not exceed $10,000,000 in aggregate
amount, provided that no such lease, sale or other
disposition may be made if any Default or Unmatured Default
exists or would be caused thereby.
Notwithstanding anything in this Section 6.13 to the contrary, (A) any leases,
sales or other dispositions of the assets (other than as permitted by clauses
(i), (iii), (iv), (v) or (vi) above) of the Borrower and its Subsidiaries which
in the aggregate exceed a Substantial Portion shall not be permitted, (B) no
such leases, sales or other dispositions of Property may be made (other than
pursuant to clause (i) above) if any Default or Unmatured Default has occurred
and is continuing and (c) all leases, sales and other disposition of Property
(other than as permitted by clauses (iii), (iv) and (v) above) at any time shall
be for not less than the fair market value of such Property as determined in
good faith by the Borrower and at least 75% of the consideration therefor
received by the Borrower or such Subsidiary shall be in the form of cash, Cash
Equivalents or the assumption of Indebtedness of the Borrower or its
Subsidiaries (exclusive of any Subordinated Indebtedness or Contingent
Obligations).
n. Investments and Acquisitions. The Borrower will not, nor will it
permit any Subsidiary to, make or suffer to exist any Investments
(including without limitation, loans and advances to, and other
Investments in, Subsidiaries), or commitments therefor, or to create
any Subsidiary or to become or remain a partner in any partnership or
Joint Venture, or to make any Acquisition of any Person, except:
(a) Cash Equivalents;
(b) Existing Investments in Subsidiaries and other Investments
in existence on the date hereof and described in Schedule
6.14 hereto;
(c) Advances of Loans and other advances among the Borrower and
its Subsidiaries, subject to the provisions of Section
6.11(v);
(d) Capital contributions by the Borrower or Guarantors to one
or more Subsidiaries which are not Guarantors in aggregate
amount not to exceed the sum of the aggregate amount of
capital contributions to such Subsidiaries required to
complete the Peguform Acquisition and Peguform Restructuring
plus $10,000,000, capital contributions by the Borrower or
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Guarantors to one or more of the other Guarantors and
capital contributions by any Subsidiaries which are not
Guarantors to the Borrower or any Subsidiary;
(e) Acquisitions of any Persons (including Investments made to
accomplish such Acquisitions) if (a) as of the end of the
fiscal quarter of the Borrower immediately preceding any
Acquisition and on a Pro Forma Basis, satisfactory to the
Administrative Agent, after giving effect to the
Acquisition, the Borrower is in compliance with all
covenants contained in this Agreement and no Default or
Unmatured Default then exists, (b) the total consideration
paid or payable for Acquisitions (including all indebtedness
assumed) does not exceed $50,000,000 in an aggregate amount
for all such Acquisitions or $25,000,000 for any single
Acquisition or related series of Acquisitions, and (c) on a
Pro Forma Basis, satisfactory to the Administrative Agent,
giving effect to the Acquisition, the Borrowing Base and the
Aggregate Revolving Credit Commitment each exceeds the
Aggregate Revolving Credit Outstandings by not less than
$20,000,000;
(f) Other Investments in Joint Ventures not to exceed
$20,000,000 in aggregate amount; and
(g) Investments received in connection with the collection or
compromise of accounts receivable or other rights to
payment;
(h) The Peguform Acquisition and the Peguform Restructuring;
(i) Rate Hedging Obligations to the extent permitted hereunder;
and
(j) Other Investments not to exceed $20,000,000 in aggregate
amount.
o. Liens. The Borrower will not, nor will it permit any Subsidiary to,
create, incur, or suffer to exist any Lien in, of or on the
Property of the Borrower or any of its Subsidiaries, except:
(a) Liens for taxes, assessments, judgments or governmental
charges or levies on its Property if the same shall not at
the time be delinquent or thereafter can be paid without
penalty, or are being contested in good faith and by
appropriate proceedings and for which adequate reserves in
accordance with generally accepted principles of accounting
shall have been set aside on its books;
(b) Liens imposed by law, such as carriers', warehousemen's and
mechanics' liens and other similar liens arising in the
ordinary course of business which secure payment of
obligations not more than 60 days past due or which are
being contested in good faith by appropriate proceedings and
for which adequate reserves shall have been set aside on its
books;
(c) Liens arising out of pledges or deposits under worker's
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compensation laws, unemployment insurance, old age pensions,
or other social security or retirement benefits, or similar
legislation;
(d) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a
nature generally existing with respect to properties of a
similar character and which do not in any material way
affect the marketability of the same or interfere with the
use thereof in the business of the Borrower or the
Subsidiaries;
(e) Liens existing on the date hereof and described on Schedule
6.15 hereto but no increase in the amount secured thereby,
as reduced from time to time, and Liens granted in
connection with any refinancing of such indebtedness
provided that the Liens are on the same assets and the
indebtedness secured is not increased;
(f) Liens in favor of the Administrative Agent, for the benefit
of the Lenders and securing the Secured Obligations, granted
pursuant to any Collateral Document;
(g) Liens in favor of the Borrower or any Guarantor, provided
that such Liens against the Borrower or any Guarantor are
subordinate to all Liens in favor of the Administrative
Agent by written agreement and other documents satisfactory
to the Administrative Agent, and Liens in favor of any
Subsidiary which is not a Guarantor against any Subsidiary
which is not a Guarantor; and
(h) Any Lien to secure payment of a portion of the purchase
price of any tangible fixed asset acquired by the Borrower
or any Guarantor may be created or suffer to exist upon such
fixed asset if the outstanding principal amount of the
Indebtedness is secured by such Lien does not at any time
exceed the purchase price paid for such fixed asset,
provided that such Lien does not encumber any other asset at
any time owned by the Borrower or any Guarantor, and
provided, further, that not more than one such Lien shall
encumber such fixed asset at any one time.
p. Modification and Prepayment of Indebtedness. The Borrower will not,
and will not permit any Subsidiary to, make any amendment or
modification to the indenture, note or other agreement evidencing or
governing any Subordinated Indebtedness or any other Indebtedness
described in Schedule 6.11, including without limitation any 1999
Subordinated Debt Document, any 1999 Senior Unsecured Debt Document,
any 1997 Senior Unsecured Debt Document, which in any case would be
adverse to the Lenders (provided that any modification to the 1997
Senior Unsecured Debt Documents which makes the covenants thereunder
less restrictive on the Borrower shall not be deemed adverse to the
Lenders) or materially more burdensome to the Borrower, or directly or
indirectly voluntarily prepay, defease or in substance defease,
purchase, redeem, retire or otherwise acquire, any Subordinated
Indebtedness, including without limitation the 1999
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Subordinated Debt, the 1999 Senior Unsecured Notes, the 1997 Senior
Unsecured Notes or any other Indebtedness described on Schedule 6.11.
q. Sale of Accounts. The Borrower will not, nor will it permit any
Subsidiary to, sell or otherwise dispose of any notes receivable or
accounts receivable, with or without recourse, other than (i) a sale
by the Borrower to a Wholly-Owned Subsidiary or by any Subsidiary to
the Borrower or to a Wholly-Owned Subsidiary and (ii) in connection
with receivables factoring to the extent permitted by Section
6.11(vi).
r. Financial Contracts. The Borrower will not, nor will it permit any
Subsidiary to, enter into or remain liable upon any Financial
Contract, except Rate Hedging Agreements permitted under Section 6.11
and any other Financial Contract not entered into for purpose of
market speculation.
s. Limitation on Dividends and Other Payment Restrictions Affecting
Subsidiaries. The Borrower will not, and will not permit any of its
Subsidiaries to, directly or indirectly, create, assume or suffer to
exist any consensual restriction on the ability of any Subsidiary of
the Borrower to pay dividends or make other distributions to or on
behalf of, or to pay any obligation to or on behalf of, or otherwise
to transfer assets or property to or on behalf of, or make or pay
loans or advances to or on behalf of, the Borrower or any Subsidiary
of the Borrower, except (a) restrictions imposed by this Agreement,
(b) restrictions imposed by applicable law, (c) existing restrictions
under Indebtedness outstanding on the Effective Date specified on
Schedule 6.19, (d) restrictions under any acquired Indebtedness not
incurred in violation of this Agreement or any agreement relating to
any property, asset, or business acquired by the Borrower or any of
its Subsidiaries, which restrictions in each case existed at the time
of an Acquisition, were not put in place in connection with or in
anticipation of such Acquisition and are not applicable to any person,
other than the person acquired, or to any property, asset or business,
other than the property, assets and business so acquired, (e) any such
restriction or requirement imposed by Indebtedness incurred under the
1999 Subordinated Debt Documents, the 1999 Senior Unsecured Debt or
the 1997 Senior Unsecured Debt Documents provided such restriction or
requirement is not materially less favorable than that imposed by this
Agreement, (f) restrictions with respect solely to a Subsidiary of the
Borrower imposed pursuant to a binding agreement which has been
entered into for the sale or disposition of all or substantially all
of the Capital Stock or assets of such Subsidiary, provided such
restrictions apply solely to the Capital Stock or assets of such
Subsidiary, which are being sold, and (g) in connection with and
pursuant to permitted refinancing Indebtedness, replacements of
restrictions imposed pursuant to clauses (a), (c), (d) or (e) of this
paragraph that are not materially less favorable than those being
replaced and do not apply to any other person or assets than those
that would have been covered by the restrictions in the Indebtedness
so refinanced. Notwithstanding the foregoing, customary provisions
restricting subletting or assignment of any lease entered into in the
ordinary course of business, consistent with industry practice shall
not in and of themselves be considered a restriction on the ability of
the applicable Subsidiary to transfer such agreement or assets, as the
case may be.
t. Additional Covenants re: Indebtedness. Except for the agreements and
instruments described in Schedule 6.20, at any time the Borrower or
any Guarantor shall enter into or be a party to any instrument or
agreement, including all such instruments or agreements
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in existence as of the date hereof and all such instruments or
agreements entered into after the date hereof, relating to or amending
any terms or conditions applicable to any of its Indebtedness which
includes covenants, terms, conditions or defaults not substantially
provided for in this Agreement or more favorable to the lender or
lenders thereunder than those provided for in this Agreement, then the
Borrower shall promptly so advise the Administrative Agent and the
Lenders. Thereupon, if the Administrative Agent shall request, upon
notice to the Borrower, the Administrative Agent and the Lenders shall
enter into an amendment to this Agreement or an additional agreement
(as the Administrative Agent may request), providing for substantially
the same covenants, terms, conditions and defaults as those provided
for in such instrument or agreement to the extent required and as may
be selected by the Administrative Agents. In addition to the
foregoing, any covenants, terms, conditions or defaults in the 1999
Subordinated Debt Documents, the 1999 Senior Unsecured Debt Documents
or the 1997 Senior Unsecured Debt Documents not substantially provided
for in this Agreement, or more favorable to the holders of the 1999
Subordinated Debt, the holders of the 1999 Senior Unsecured Notes or
the holders of the 1997 Senior Unsecured Notes, are hereby
incorporated by reference into this Agreement to the same extent as if
set forth fully herein, (provided that any references in such
covenants as incorporated herein to the "Trustee" shall be deemed
references to the Administrative Agent and any references to the
holders of the debt thereunder shall be deemed references to the
Administrative Agent and the Lenders hereunder), and no subsequent
amendment waiver or modification thereof shall affect any such
covenants, terms, conditions or defaults as incorporated herein,
provided that amendments to the covenants, terms, conditions or
defaults of 1997 Senior Unsecured Debt Documents shall be deemed to
amend such covenants, terms, conditions or defaults of the 1997 Senior
Unsecured Debt Documents as incorporated herein.
u. Nature of Business. The Borrower will not, and will not permit any of
the Subsidiaries, to make or suffer any change in the nature of its
business from that engaged in on the Effective Date or engage in any
other businesses other than those in which it is engaged on the
Effective Date.
v. Operating Leases. The Borrower will not permit the aggregate amount
paid or payable under all Operating Leases of the Borrower and its
Subsidiaries in any consecutive twelve month period to exceed
$35,000,000.
w. Year 2000. The Borrower will take and will cause each of its
Subsidiaries to take all such actions as are reasonably necessary to
successfully implement the Year 2000 Program and to assure that Year
2000 Issues will not have a Material Adverse Effect. At the request of
the Administrative Agent or any Lender, the Borrower will provide a
description of the Year 2000 Program, together with any updates or
progress reports with respect thereto.
x. Negative Pledge Limitation. Enter into any agreement with any Person,
other than the Lenders or the Administrative Agent pursuant hereto and
other than the existing provisions of the 1997 Senior Unsecured Debt
Documents, the 1999 Senior Unsecured Debt Documents, the 1999
Subordinated Debt Documents and the agreements listed on Schedule
6.24, without amendment, which prohibits or limits the ability of the
Borrower or any of its Subsidiaries to create, incur, assume or suffer
to exist any Lien in favor of
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the Administrative Agent and the Lenders upon any of its assets,
rights, revenues or property, real, personal or mixed, tangible or
intangible, whether now owned or hereafter acquired.
y. Consolidated Net Worth. The Borrower will maintain Consolidated Net
Worth at all times of not less than the sum of $59,500,000 plus (a)
50% of the consolidated net income (after taxes and Permitted Tax
Distributions) of the Borrower and its Subsidiaries, as determined in
accordance with the Agreement Accounting Principles, such 50% of
consolidated net income to be added as of the end of each fiscal year
of the Borrower, provided that if such income is negative in any
fiscal year, the amount added for such fiscal year shall be zero and
it shall not reduce the amount to be added for any other fiscal year
and (b) 75% of the Net Cash Proceeds from any capital contribution to
the Borrower or the issuance of any Capital Stock of the Borrower.
z. Interest Coverage Ratio. The Borrower will maintain an Interest
Coverage Ratio of at least (a) 2.0 to 1.0 as of September 30, 1999 and
as of the end of each fiscal quarter thereafter through the fiscal
quarter ending March 31, 2000, (b) 2.5 to 1.0 as of June 30, 2000 and
as of the end of each fiscal quarter thereafter through the fiscal
quarter ending April 30, 2001, and (c) 3.0 to 1.0 as of June 30, 2001
and as of the end of each fiscal quarter thereafter.
aa. Fixed Charge Coverage Ratio. The Borrower will maintain a Fixed Charge
Coverage Ratio of at least (a) 1.0 to 1.0 as of June 30, 2000 and (b)
1.05 to 1.0 as of the end of each fiscal quarter thereafter.
bb. Leverage Ratio. The Borrower will maintain a Leverage Ratio of not
more than (i) 5.75 to 1.0 at any time from and including the Effective
Date to and including June 29, 2000, (ii) 4.50 to 1.0 at any time from
and including June 30, 2000 to and including June 29, 2001, (iii) 3.75
to 1.0 at any time from and including June 30, 2001 to and including
June 29, 2002, and (iv) 3.50 to 1.0, at any time thereafter.
7. DEFAULTS
The occurrence of any one or more of the following events shall
constitute a Default:
a. Any representation or warranty made or deemed made by or on behalf of
the Borrower or any of its Subsidiaries to the Lenders or the
Administrative Agent under or in connection with this Agreement, any
Loan, any Facility Letter of Credit, or any certificate or information
delivered in connection with this Agreement or any other Loan Document
shall be materially false on the date as of which made.
b. Nonpayment of principal of any Loan or Reimbursement Obligations when
due, or nonpayment of interest upon any Loan or of any commitment fee
or other Obligation under any of the Loan Documents within five days
after the same becomes due.
c. The breach by the Borrower or any of its Subsidiaries of any of the
terms or provisions of Article VI, other than Sections 6.1, 6.5, 6.7,
6.8, 6.15 and 6.22.
d. The breach by the Borrower or any Subsidiary (other than a breach
which constitutes a Default under Section 7.1, 7.2 or 7.3) of any of
the terms or provisions of, or any other default under, this Agreement
or any other Loan Document which is not remedied within
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ten days after written notice from the Administrative Agent.
e. Failure of the Borrower or any of its Subsidiaries to pay when due any
Indebtedness aggregating in excess of $7,500,000 ("Material
Indebtedness"); or the default by the Borrower or any of its
Subsidiaries in the performance of any term, provision or condition
contained in any agreement under which any such Material Indebtedness
was created or is governed, or any other event shall occur or
condition exist, the effect of which is to cause, or to permit the
holder or holders of such Material Indebtedness to cause, such
Material Indebtedness to become due prior to its stated maturity; or
any Material Indebtedness of the Borrower or any of its Subsidiaries
shall be declared in default or declared to be due and payable or
required to be prepaid or repurchased (other than by a regularly
scheduled payment) prior to the stated maturity thereof; or the
Borrower or any of its Subsidiaries shall not pay, or admit in writing
its inability to pay, its debts generally as they become due.
f. The Borrower or any of its Significant Subsidiaries shall (i) have an
order for relief entered with respect to it under the Federal
bankruptcy laws or under any other bankruptcy, insolvency or similar
law (whether under any U.S. or non-U.S. law) as now or hereafter in
effect, (ii) make an assignment for the benefit of creditors, (iii)
apply for, seek, consent to, or acquiesce in, the appointment of a
receiver, custodian, trustee, examiner, liquidator or similar official
for it or any Substantial Portion of its Property, (iv) institute any
proceeding seeking an order for relief under the Federal bankruptcy
laws or under any other bankruptcy, insolvency or similar law (whether
under any U.S. or non-U.S. law) as now or hereafter in effect or
seeking to adjudicate it a bankrupt or insolvent, or seeking
dissolution, winding up, liquidation, reorganization, arrangement,
adjustment or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors or fail
to file an answer or other pleading denying the material allegations
of any such proceeding filed against it, (v) take any action to
authorize or effect any of the foregoing actions set forth in this
Section 7.6 or (vi) fail to contest in good faith any appointment or
proceeding described in Section 7.7.
g. Without the application, approval or consent of the Borrower or any of
its Significant Subsidiaries, a receiver, trustee, examiner,
liquidator or similar official shall be appointed for the Borrower or
any of its Significant Subsidiaries or any material portion of its
Property, or a proceeding described in Section 7.6 (iv) shall be
instituted against the Borrower or any of its Significant Subsidiaries
and such appointment continues undischarged or such proceeding
continues undismissed or unstayed for a period of 30 consecutive days.
h. Any court, government or governmental agency shall condemn, seize or
otherwise appropriate, or take custody or control of (each a
"Condemnation"), all or any portion of the Property of the Borrower
and its Subsidiaries which, when taken together with all other
Property of the Borrower and its Subsidiaries so condemned, seized,
appropriated, or taken custody or control of, during the twelvemonth
period ending with the month in which any such Condemnation occurs,
constitutes a Substantial Portion.
i. The Borrower or any of its Subsidiaries shall fail within 30 days to
pay, bond or otherwise discharge any judgment or order for the payment
of money in excess of $7,500,000 or the Dollar Equivalent thereof in
any currency, which is not stayed on
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appeal or otherwise being appropriately contested in good faith.
j. The Unfunded Liabilities of all Single Employer Plans shall exceed in
the aggregate $5,000,000, the unfunded liabilities under all Foreign
Plans shall exceed in the aggregate $50,000,000, or any Reportable
Event shall occur in connection with any Plan, in each case which is
not remedied within ten days after written notice from the
Administrative Agent.
k. The Borrower or any other member of the Controlled Group shall have
been notified by the sponsor of a Multiemployer Plan that it has
incurred withdrawal liability to such Multiemployer Plan in an amount
which, when aggregated with all other amounts required to be paid to
Multiemployer Plans by the Borrower or any other member of the
Controlled Group as withdrawal liability (determined as of the date of
such notification), exceeds $2,500,000 or requires payments exceeding
$2,500,000 per annum.
l. The Borrower or any other member of the Controlled Group shall have
been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated, within
the meaning of Title IV of ERISA, if as a result of such
reorganization or termination the aggregate annual contributions of
the Borrower and the other members of the Controlled Group (taken as a
whole) to all Multiemployer Plans which are then in reorganization or
being terminated have been or will be increased over the amounts
contributed to such Multiemployer Plans for the respective plan years
of each such Multiemployer Plan immediately preceding the plan year in
which the reorganization or termination occurs by an amount exceeding
$2,500,000.
m. The Borrower or any of its Subsidiaries shall be the subject of any
proceeding or proceedings pertaining to the release by the Borrower or
any of its Subsidiaries, or any other Person of any toxic or hazardous
waste or substance into the environment, or any violation of any
federal, state or local or foreign environmental, health or safety law
or regulation, which, in either case, could reasonably be expected to
have a Material Adverse Effect.
n. Except as otherwise permitted hereunder, any Guaranty shall fail to
remain in full force or effect or any action shall be taken to
discontinue or to assert the invalidity or unenforceability of any
Guaranty, or any Guarantor shall fail to comply with any of the terms
or provisions of any Guaranty to which it is a party, or any Guarantor
denies that it has any further liability under any Guaranty to which
it is a party, or gives notice to such effect.
o. Any Collateral Document shall for any reason fail to create a valid
and perfected first priority security interest in any collateral
purported to be covered thereby, except as permitted by the terms of
any Collateral Document, or any Collateral Document shall fail to
remain in full force or effect or any action shall be taken to
discontinue or to assert the invalidity or unenforceability of any
Collateral Document, or the Borrower or any Subsidiary shall fail to
comply with any of the terms or provisions of any Collateral Document.
p. The representations and warranties set forth in "Section 5.15 Plan
Assets; Prohibited Transactions" shall at any time not be true and
correct.
q. The Borrower or any Subsidiary shall fail to pay when due any amount
due under, or the breach by the Borrower or any Subsidiary of any
term, provision or condition contained in, any Rate Hedging
Obligation, Operating Lease, Letter of Credit, obligation under sale
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and leaseback transaction or Contingent Obligation.
r. (i) the Peguform Acquisition shall be unwound, reversed or otherwise
rescinded in whole or in any material part for any reason, or (ii) the
Borrower shall agree to any material amendment to, or waiver of any
material rights under, or otherwise change any material terms of, any
of the Peguform Acquisition Document, in a manner adverse to the
Borrower or any of its Subsidiaries or to Lenders without the prior
written consent of Administrative Agent.
s. The Borrower shall not become a corporation or a limited liability
company in accordance with the provisions of Section 6.12 and the
definition of Borrower on or before seven Business Days after the
Effective Date.
t. The Borrower shall fail to issue the Additional Subordinated Notes in
the face amount of at least $125,000,000 on or before November 30,
2000 and receive the Net Cash Proceeds thereof.
8. ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
a. Acceleration.
(1) If any Default described in Section 7.6 or 7.7 occurs, (i)
the Revolving Credit Commitment shall automatically
terminate and the Obligations shall immediately become due
and payable without presentment, demand, protest or notice
of any kind, all of which the Borrower hereby expressly
waives and without any election or action on the part of the
Administrative Agent or any Lender and (ii) the Borrower
will be and become thereby unconditionally obligated,
without the need for demand or the necessity of any act or
evidence, to deliver to the Administrative Agent, at its
address specified pursuant to Article XIII, for deposit into
the Letter of Credit Collateral Account, an amount (the
"Collateral Shortfall Amount") equal to the excess, if any,
of
(a) 100% of the sum of the aggregate maximum amount
remaining available to be drawn under the Facility
Letters of Credit (assuming compliance with all
conditions for drawing thereunder) issued by Issuer
outstanding as of such time, over
(b) the amount on deposit in the Letter of Credit
Collateral Account at such time that is free and clear
of all rights and claims of third parties and that has
not been applied by the Lenders against the
Obligations.
(2) If any Default occurs and is continuing (other than a
Default described in Section 7.6 or 7.7), (i) the Required
Revolving Credit Lenders may terminate or suspend the
Revolving Credit Commitments, (ii) the Required Lenders may
declare the Obligations to be due and payable, whereupon the
Obligations shall become immediately due and payable,
without presentment, demand, protest or notice of any kind,
all of which the Borrower hereby expressly waives and (iv)
the Required Lenders
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may, upon notice delivered to the Borrower and in addition
to the continuing right to demand payment of all amounts
payable under this Agreement, make demand on the Borrower to
deliver (and the Borrower will, forthwith upon demand by the
Required Lenders and without necessity of further act or
evidence, be and become thereby unconditionally obligated to
deliver), to the Administrative Agent, at its address
specified pursuant to Article XIII, for deposit into the
Letter of Credit Collateral Account an amount equal to the
Collateral Shortfall Amount.
(3) If at any time while any Default is continuing, the
Administrative Agent determines that the Collateral
Shortfall Amount at such time is greater than zero, the
Administrative Agent may make demand on the Borrower to
deliver (and the Borrower will, forthwith upon demand by the
Administrative Agent and without necessity of further act or
evidence, be and become thereby unconditionally obligated to
deliver), to the Administrative Agent as additional funds to
be deposited and held in the Letter of Credit Collateral
Account an amount equal to such Collateral Shortfall Amount
at such time.
(4) The Administrative Agent may at any time or from time to
time after funds are deposited in the Letter of Credit
Collateral Account, apply such funds to the payment of the
Obligations and any other amounts as shall from time to time
have become due and payable by the Borrower to the Lenders
under the Loan Documents.
(5) Neither the Borrower nor any Person claiming on behalf of or
through the Borrower shall have any right to withdraw any of
the funds held in the Letter of Credit Collateral Account.
After all of the Obligations have been indefeasibly paid in
full, any funds remaining in the Letter of Credit Collateral
Account shall be returned by the Administrative Agent to the
Borrower or paid to whoever may be legally entitled thereto
at such time.
(6) The Administrative Agent shall exercise reasonable care in
the custody and preservation of any funds held in the Letter
of Credit Collateral Account and shall be deemed to have
exercised such care if such funds are accorded treatment
substantially equivalent to that which the Administrative
Agent accords its own property, it being understood that the
Administrative Agent shall not have any responsibility for
taking any necessary steps to preserve rights against any
Persons with respect to any such funds.
b. Amendments. Subject to the provisions of this Article VIII, the
Required Lenders (or the Administrative Agent with the consent in
writing of the Required Lenders) and the Borrower may enter into
agreements supplemental hereto for the purpose of adding or modifying
any provisions to the Loan Documents or changing in any manner the
rights of the Lenders or the Borrower under the Loan Documents or
waiving any Default hereunder; provided, however, (a) no such
supplemental agreement shall, without the consent of the Required
Revolving Credit Lenders, allow the Borrower to obtain a
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Revolving Credit Loan or Facility Letter of Credit if it would
otherwise be unable to absent such supplemental agreement, (b) no such
supplemental agreement shall, without the consent of the Required Term
Loan A Lenders, waive or amend any condition to the making of any Term
Loan A, (c) no such supplemental agreement shall, without the consent
of the Required Term Loan B Lenders, waive or amend any condition to
the making of any Term Loan B or Section 2.23.3, (d) no such
supplemental agreement shall, without the consent of the Required
Interim Loan Lenders, waive or amend any condition to the making of
any Interim Term Loan, and (e) prior to any Lender other than First
Chicago being a Lender hereunder, the Borrower will not withhold its
consent to any amendment to this Agreement or any Loan Documents
determined by the Administrative Agent as necessary to syndicate a
portion of the Commitments and Advances hereunder to additional
Lenders, and provided, further, that no such supplemental agreement
shall, without the consent of each Lender affected thereby:
(a) Extend the maturity of any Loan or any Note or postpone or
reduce any regularly scheduled payment of principal of any
Loan or forgive all or any portion of the principal amount
thereof, or reduce the rate or extend the time of payment of
interest or fees thereon.
(b) Reduce the percentage specified in the definition of
Required Lenders, Required Revolving Credit Lenders,
Required Interim Term Loan Lenders, Required Term Loan A
Lenders or Required Term Loan B Lenders.
(c) Extend the Termination Date or increase the amount of the
Commitment of any Lender hereunder, or permit the Borrower
to assign its rights under this Agreement.
(d) Amend this Section 8.2.
(e) Release the Borrower or any Guarantor or, except as provided
herein or in the Collateral Documents, release all or
substantially all of the Collateral.
No amendment of any provision of this Agreement relating to the Administrative
Agent shall be effective without the written consent of the Administrative
Agent. The Administrative Agent may waive payment of the fee required under
Section 12.3.2 without obtaining the consent of any other party to this
Agreement. Notwithstanding anything herein to the contrary, any Defaulting
Lender shall not be entitled to vote (whether to consent or to withhold its
consent) with respect to any amendment, modification, termination or waiver and,
for purposes of the determining the Required Lenders, the Revolving Credit
Commitments and the Loans of such Defaulting Lender shall be disregarded and the
Administrative Agent shall have the ability, but not the obligation, to replace
any such Defaulting Lender with another lender or lenders.
c. Preservation of Rights. No delay or omission of the Lenders or the
Administrative Agent to exercise any right under the Loan Documents
shall impair such right or be construed to be a waiver of any Default
or an acquiescence therein, and the making of a Loan notwithstanding
the existence of a Default or the inability of the Borrower to satisfy
the conditions precedent to such Loan shall not constitute any waiver
or
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acquiescence. Any single or partial exercise of any such right shall
not preclude other or further exercise thereof or the exercise of any
other right, and no waiver, amendment or other variation of the terms,
conditions or provisions of the Loan Documents whatsoever shall be
valid unless in writing signed by the Lenders required pursuant to
Section 8.2, and then only to the extent in such writing specifically
set forth. All remedies contained in the Loan Documents or by law
afforded shall be cumulative and all shall be available to the
Administrative Agent and the Lenders until the Obligations have been
paid in full.
9. GENERAL PROVISIONS
a. Survival of Representations. All representations and warranties of the
Borrower and each Guarantor contained in this Agreement shall survive
delivery of the Notes and the making of the Loans herein contemplated.
b. Governmental Regulation. Anything contained in this Agreement to the
contrary notwithstanding, no Lender shall be obligated to extend
credit to the Borrower in violation of any limitation or prohibition
provided by any applicable statute or regulation.
c. Taxes. Any taxes (excluding federal and state income taxes on the
overall net income of any Lender and intangible taxes) or other
similar assessments or charges made by any governmental or revenue
authority in respect of the Loan Documents shall be paid by the
Borrower, together with interest and penalties, if any.
d. Headings. Section headings in the Loan Documents are for convenience
of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
e. Entire Agreement. The Loan Documents embody the entire agreement and
understanding among the Borrower, the Guarantors, the Administrative
Agent and the Lenders and supersede all prior agreements and
understandings among the Borrower, the Guarantors, the Administrative
Agent and the Lenders relating to the subject matter thereof other
than, with respect to agreements between the Borrower and the
Administrative Agent, any fee agreement described in Section 10.13 or
other fee letters and commitment letters among the Administrative
Agent and the Borrower.
f. Several Obligations; Benefits of this Agreement. The respective
obligations of the Lenders hereunder are several and not joint and no
Lender shall be the partner or agent of any other (except to the
extent to which the Administrative Agent is authorized to act as
such). The failure of any Lender to perform any of its obligations
hereunder shall not relieve any other Lender from any of its
obligations hereunder. This Agreement shall not be construed so as to
confer any right or benefit upon any Person other than the parties to
this Agreement and their respective successors and assigns.
g. Expenses; Indemnification. The Borrower shall reimburse (i) the
Administrative Agent for any costs, internal charges and reasonable
and documented outofpocket expenses (including reasonable attorneys'
fees and time charges of attorneys for the Administrative Agent, which
attorneys may be employees of the Administrative Agent) paid or
incurred by the Administrative Agent in connection with the
preparation, review, execution, delivery, amendment, modification and
administration of the Loan
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Documents and (ii) the Administrative Agent, the Issuer and the
Lenders for any costs, internal charges and reasonable and documented
outofpocket expenses (including attorneys' fees and time charges of
attorneys for the Administrative Agent, the Issuer and the Lenders,
which attorneys may be employees of the Administrative Agent, the
Issuer or the Lenders) paid or incurred by the Administrative Agent,
the Issuer or any Lender in connection with the collection and
enforcement of the Loan Documents, any refinancing or restructuring of
the credit arrangements provided under this Agreement in the nature of
a "workout" or any insolvency or bankruptcy proceedings in respect of
the Borrower or any Subsidiary. Expenses being reimbursed by the
Borrower under this Section include, without limitation, the cost and
expense of obtaining an appraisal of each parcel of real Property or
interest in real Property described in the relevant Collateral
Documents, which appraisal shall be in conformity with the applicable
requirements of any law or any governmental rule, regulation, policy,
guideline or directive (whether or not having the force of law), or
any interpretation thereof, including, without limitation, the
provisions of Title XI of the Financial Institutions Reform, Recovery
and Enforcement Act of 1989, as amended, reformed or otherwise
modified from time to time, and any rules promulgated to implement
such provisions. The Borrower further agrees to indemnify and hold
harmless the Administrative Agent, the Issuer, each Lender and their
respective directors, officers and employees against all losses,
claims, damages, penalties, judgments, liabilities and expenses
(including, without limitation, all expenses of litigation or
preparation therefor whether or not the Administrative Agent or any
Lender is a party thereto) arising at any time, and including without
limitation due to any actions or omissions before, on or after the
Effective Date, which any of them may pay or incur arising out of or
relating to this Agreement, the other Loan Documents, the Peguform
Acquisition, the Peguform Acquisition Documents, any other
Acquisition, any matters relating to any Environmental Laws with
respect to any property of the Borrower or any Guarantor, the
transactions contemplated hereby or thereby, or the direct or indirect
application or proposed application of the proceeds of any Advance
hereunder, excluding any such losses, claims, damages, penalties,
judgments, liabilities and expenses which result from the gross
negligence or willful misconduct of the Administrative Agent, the
Issuer or any Lender as finally determined by a court of competent
jurisdiction. The obligations of the Borrower under this Section shall
survive the termination of this Agreement.
h. Numbers of Documents. All statements, notices, closing documents, and
requests hereunder shall be furnished to the Administrative Agent with
sufficient counterparts so that the Administrative Agent may furnish
one to each of the Lenders.
i. Accounting; Interpretation. Except as provided to the contrary herein,
all accounting terms used herein shall be interpreted and all
accounting determinations hereunder shall be made in accordance with
Agreement Accounting Principles, except that any calculation or
determination which is to be made on a consolidated basis shall be
made for the Borrower and all its Subsidiaries, including those
Subsidiaries, if any, which are unconsolidated on the Borrower's
audited financial statements. In the event that the Borrower or the
Required Lenders believe that there has been a change in generally
accepted accounting principles from those utilized in preparing the
financial statements referred to in Section 5.4 which materially
affect (whether favorably or adversely)
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compliance under Article VI of this Agreement, each of the Lenders and
the Borrower agrees to negotiate an amendment to this Agreement to
bring the Borrower into substantially the same compliance with respect
to Article VI immediately preceding such change in generally accepted
accounting principles. If no resolution of such item or items of
compliance is effected, the Borrower and the Lenders agree, for the
purposes of the disputed item or items only, to determine compliance
by using Agreement Accounting Principles. All financial covenants
hereunder shall be calculated on a Pro Forma Basis acceptable to the
Administrative Agent except to the extent otherwise required
hereunder. The Borrower will not change its fiscal year. For purposes
of Article VI and VII (including any baskets or limitations expressed
in Dollars therein) of this Agreement, any Indebtedness, Investment or
other amount made, outstanding or incurred in any currency other than
Dollars shall be deemed to be the Dollar Equivalent thereof. The
Borrower further agrees to take all necessary and reasonable action to
permit the Administrative Agent and the Lenders to rely on the audited
financial statements of the Borrower and its Subsidiaries, including
without limitation obtaining any acknowledgements or other consents
from the Borrower's auditors as may be required under applicable law
and are customarily available.
j. Severability of Provisions. Any provision in any Loan Document that is
held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or
invalid without affecting the remaining provisions in that
jurisdiction or the operation, enforceability, or validity of that
provision in any other jurisdiction, and to this end the provisions of
all Loan Documents are declared to be severable.
k. Nonliability of Lenders. The relationship between the Borrower and the
Lenders and the Administrative Agent shall be solely that of borrower
and lender. Neither the Administrative Agent nor any Lender shall have
any fiduciary responsibilities to the Borrower. Neither the
Administrative Agent nor any Lender undertakes any responsibility to
the Borrower to review or inform the Borrower of any matter in
connection with any phase of the Borrower's or any Guarantor's
business or operations. The Borrower and each Guarantor agree that
neither the Administrative Agent nor any Lender shall have liability
to the Borrower or any Guarantor (whether sounding in tort, contract
or otherwise) for losses suffered by the Borrower or any Guarantor in
connection with, arising out of, or in any way related to, the
transactions contemplated and the relationship established by the Loan
Documents, or any act, omission or event occurring in connection
therewith, unless it is determined by a court of competent
jurisdiction in a final and non-appealable order that such losses
resulted from the gross negligence or willful misconduct of the party
from which recovery is sought. Neither the Administrative Agent nor
any Lender shall have any liability with respect to, and the Borrower
and each Guarantor hereby waives, releases and agrees not to sue for,
any special, indirect or consequential damages suffered by the
Borrower or any Guarantor in connection with, arising out of, or in
any way related to the Loan Documents or the transactions contemplated
thereby.
l. Nonreliance. Each Lender hereby represents that it is not relying on
or looking to any Margin Stock for the repayment of the Loans provided
for herein.
m. Confidentiality. Each of the Lenders and the Administrative Agent
hereby agrees that it
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will use reasonable efforts (e.g., procedures substantially comparable
to those applied by such Lender and the Administrative Agent in
respect of nonpublic information as to the business of such Lender or
the Administrative Agent) to keep confidential any financial reports
and other information previously or from time to time supplied to it
by the Borrower hereunder to the extent that such information is not
and does not become publicly available through or with the consent or
acquiescence of the Borrower and will use such financial reports and
other information only in connection with the transactions
contemplated by this Agreement and for no other purpose, provided that
nothing herein shall affect the disclosure of any such information (i)
by the Administrative Agent to any Lender, (ii) to the extent required
by law (including statute, rule, regulation or judicial process),
(iii) to counsel for any Lender, the Administrative Agent or to their
respective accountants, each of whom shall also be bound by the
confidentiality obligations set forth herein, (iv) to bank examiners
and auditors and appropriate government examining authorities, (v) to
any Administrative Agent or to any other Lender, (vi) to the extent
necessary or appropriate in connection with any litigation to which
any Lender or the Administrative Agent is a party. A determination by
a Lender or the Administrative Agent as to the application of the
circumstances described in the foregoing clauses (i)(v) shall be
conclusive if made in good faith.
n. Limitation of Liabilities. The Borrower (i) agrees that neither the
Administrative Agent nor any Lender shall have any liability to the
Borrower or any of its Subsidiaries (whether sounding in tort,
contract or otherwise) for losses suffered by the Borrower or any of
its Subsidiaries in connection with, arising out of, or in any way
related to, the transactions contemplated and the relationship
established by the Loan Documents, or any act, omission or event
occurring in connection therewith, unless it is determined by a
judgment of a court that is binding on the Administrative Agent, or
such Lender, and that is final and not subject to review on appeal,
that such losses were the result of acts or omissions on the part of
the Administrative Agent or such Lender, as the case may be,
constituting gross negligence, willful misconduct or knowing
violations of law and (ii) waives, releases and agrees not to sue upon
any claim against the Administrative Agent or any Lender (whether
sounding in tort, contract or otherwise) except a claim based upon
gross negligence, willful misconduct or knowing violations of law.
Whether or not such damages are related to a claim that is subject to
the waiver effected above and whether or not such waiver is effective,
neither the Administrative Agent nor any Lender shall have any
liability with respect to, and the Borrower and each of its
Subsidiaries hereby waives, releases and agrees not to sue upon any
claim for, any special, indirect or consequential damages suffered by
the Borrower or any of its Subsidiaries in connection with, arising
out of, or in any way related to the transactions contemplated or the
relationship established by the Loan Documents, or any act, omission
or event occurring in connection therewith.
10. THE ADMINISTRATIVE AGENT
a. Appointment; Nature of Relationship. First Chicago is hereby appointed
by the Lenders as the Administrative Agent hereunder and under each
other Loan Document, and each
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of the Lenders irrevocably authorizes the Administrative Agent to act
as the contractual representative of such Lender with the rights and
duties expressly set forth herein and in the other Loan Documents. The
Administrative Agent agrees to act as such contractual representative
upon the express conditions contained in this Article X.
Notwithstanding the use of the defined term "Administrative Agent," it
is expressly understood and agreed that the Administrative Agent shall
have not have any fiduciary responsibilities to any Lender by reason
of this Agreement or any other Loan Document and that the
Administrative Agent is merely acting as the representative of the
Lenders with only those duties as are expressly set forth in this
Agreement and the other Loan Documents. In its capacity as the
Lenders' contractual representative, the Administrative Agent (i) does
not hereby assume any fiduciary duties to any of the Lenders, (ii) is
a "representative" of the Lenders within the meaning of Section 9-105
of the Uniform Commercial Code and (iii) is acting as an independent
contractor, the rights and duties of which are limited to those
expressly set forth in this Agreement and the other Loan Documents.
Each of the Lenders hereby agrees to assert no claim against the
Administrative Agent on any agency theory or any other theory of
liability for breach of fiduciary duty, all of which claims each
Lender hereby waives.
b. Powers. The Administrative Agent shall have and may exercise such
powers under the Loan Documents as are specifically delegated to the
Administrative Agent by the terms of each thereof, together with such
powers as are reasonably incidental thereto. The Administrative Agent
shall have no implied duties to the Lenders, or any obligation to the
Lenders to take any action thereunder except any action specifically
provided by the Loan Documents to be taken by the Administrative
Agent.
c. General Immunity. Neither the Administrative Agent nor any of its
directors, officers, agents or employees shall be liable to the
Borrower, the Lenders or any Lender for any action taken or omitted to
be taken by it or them hereunder or under any other Loan Document or
in connection herewith or therewith except for its or their own gross
negligence or willful misconduct.
d. No Responsibility for Loans, Recitals, etc. 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
(i) any statement, warranty or representation made in connection with
any Loan Document or any borrowing hereunder; (ii) the performance or
observance of any of the covenants or agreements of any obligor under
any Loan Document, including, without limitation, any agreement by an
obligor to furnish information directly to each Lender; (iii) the
satisfaction of any condition specified in Article IV, except receipt
of items required to be delivered to the Administrative Agent; (iv)
the validity, enforceability, effectiveness, sufficiency or
genuineness of any Loan Document or any other instrument or writing
furnished in connection therewith; or (v) the value, sufficiency,
creation, perfection or priority of any interest in any collateral
security. The Administrative Agent shall have no duty to disclose to
the Lenders information that is not required to be furnished by the
Borrower or any Guarantor to the Administrative Agent at such time,
but is voluntarily furnished by the Borrower or any Guarantor to the
Administrative Agent (either in its capacity as Administrative Agent
or in its individual capacity).
e. Action on Instructions of Lenders. The Administrative Agent shall in
all cases be fully
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protected in acting, or in refraining from acting, hereunder and under
any other Loan Document in accordance with written instructions signed
by the Required Lenders or the Required Revolving Credit Lenders, as
the case may be, and such instructions and any action taken or failure
to act pursuant thereto shall be binding on all of the Lenders and on
all holders of Notes. The Lenders hereby acknowledge that the
Administrative Agent shall be under no duty to take any discretionary
action permitted to be taken by it pursuant to the provisions of this
Agreement or any other Loan Document unless it shall be requested in
writing to do so by the Required Lenders or the Required Revolving
Credit lenders, as the case may be. The Administrative Agent shall be
fully justified in failing or refusing to take any action hereunder
and under any other Loan Document unless it shall first be indemnified
to its satisfaction by the Lenders pro rata against any and all
liability, cost and expense that it may incur by reason of taking or
continuing to take any such action.
f. Employment of Administrative Agents and Counsel. The Administrative
Agent may execute any of its duties as Administrative Agent hereunder
and under any other Loan Document by or through employees, agents, and
attorneysinfact and shall not be answerable to the Lenders, except as
to money or securities received by it or its authorized agents, for
the default or misconduct of any such agents or attorneysinfact
selected by it with reasonable care. The Administrative Agent shall be
entitled to advice of counsel concerning all matters pertaining to the
agency hereby created and its duties hereunder and under any other
Loan Document.
g. Reliance on Documents; Counsel. The Administrative Agent shall be
entitled to rely upon any Note, notice, consent, certificate,
affidavit, letter, telegram, statement, paper or document believed by
it to be genuine and correct and to have been signed or sent by the
proper person or persons, and, in respect to legal matters, upon the
opinion of counsel selected by the Administrative Agent, which counsel
may be employees of the Administrative Agent.
h. AdministrativeAgent's Reimbursement and Indemnification. The Lenders
agree to reimburse and indemnify the Administrative Agent ratably in
proportion to their respective Revolving Credit Commitments (or, if
the Revolving Credit Commitments have been terminated, in proportion
to their Revolving Credit Commitments immediately prior to such
termination) (i) for any amounts not reimbursed by the Borrower for
which the Administrative Agent is entitled to reimbursement by the
Borrower under the Loan Documents, (ii) for any other expenses
incurred by the Administrative Agent on behalf of the Lenders, in
connection with the preparation, execution, delivery, administration
and enforcement of the Loan Documents and (iii) for any liabilities,
obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind and nature whatsoever
which may be imposed on, incurred by or asserted against the
Administrative Agent in any way relating to or arising out of the Loan
Documents or any other document delivered in connection therewith or
the transactions contemplated thereby, or the enforcement of any of
the terms thereof or of any such other documents, provided that no
Lender shall be liable for any of the foregoing to the extent they
arise from the gross negligence or willful misconduct of the
Administrative Agent. The obligations of the Lenders under this
Section 10.8 shall survive payment of the Obligations and termination
of this Agreement.
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i. Notice of Default. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Unmatured
Default hereunder unless the Administrative Agent has received written
notice from a Lender or a Borrower referring to this Agreement
describing such Default or Unmatured Default and stating that such
notice is a "notice of default". In the event that the Administrative
Agent receives such a notice, the Administrative Agent shall give
prompt notice thereof to the Lenders.
j. Rights as a Lender. In the event the Administrative Agent is a Lender,
the Administrative Agent shall have the same rights and powers
hereunder and under any other Loan Document as any Lender and may
exercise the same as though it were not the Administrative Agent, and
the term "Lender" or "Lenders" shall, at any time when the
Administrative Agent is a Lender, unless the context otherwise
indicates, include the Administrative Agent in its individual
capacity. The Administrative Agent may accept deposits from, lend
money to, and generally engage in any kind of trust, debt, equity or
other transaction, in addition to those contemplated by this Agreement
or any other Loan Document, with the Borrower or any of its
Subsidiaries in which the Borrower or such Subsidiary is not
restricted hereby from engaging with any other Person. The
Administrative Agent, in its individual capacity, is not obligated to
remain a Lender.
k. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent or
any other Lender and based on the financial statements prepared by the
Borrower and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into
this Agreement and the other Loan Documents. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents
and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under
this Agreement and the other Loan Documents.
l. Successor Administrative Agent. The Administrative Agent may resign at
any time by giving written notice thereof to the Lenders and the
Borrower, such resignation to be effective upon the appointment of a
successor Administrative Agent or, if no successor Administrative
Agent has been appointed, forty-five days after the retiring
Administrative Agent gives notice of its intention to resign. Upon any
such resignation, the Required Lenders shall have the right to
appoint, on behalf of the Borrower and the Lenders, a successor
Administrative Agent. If no successor Administrative Agent shall have
been so appointed by the Required Lenders within thirty days after the
resigning Administrative Agent's giving notice of its intention to
resign, then the resigning Administrative Agent may appoint, on behalf
of the Borrower and the Lenders, a successor Administrative Agent. If
the Administrative Agent has resigned and no successor Administrative
Agent has been appointed, the Lenders may perform all the duties of
the Administrative Agent hereunder and the Borrower shall make all
payments in respect of the Obligations to the applicable Lender and
for all other purposes shall deal directly with the Lenders. No
successor Administrative Agent shall be deemed to be appointed
hereunder until such successor Administrative Agent has accepted the
appointment. Any such successor Administrative Agent shall be a
commercial bank having capital and retained earnings of at least
$50,000,000. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent,
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such successor Administrative Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of
the resigning Administrative Agent. Upon the effectiveness of the
resignation of the Administrative Agent, the resigning Administrative
Agent shall be discharged from its duties and obligations hereunder
and under the Loan Documents. After the effectiveness of the
resignation of an Administrative Agent, the provisions of this Article
X shall continue in effect for the benefit of such Administrative
Agent in respect of any actions taken or omitted to be taken by it
while it was acting as the Administrative Agent hereunder and under
the other Loan Documents.
m. Administrative Agent's Fee. The Borrower agrees to pay to the
Administrative Agent, for its own account, the fees agreed to by the
Borrower and the Administrative Agent from time to time.
n. Collateral Management. The Administrative Agent is hereby authorized
on behalf of all of the Lenders, without the necessity of any further
consent from any Lender, from time to time prior to a Default, to take
any action with respect to the Collateral or the Collateral Documents
which may be necessary (i) to perfect and maintain perfected the
security interest in and liens upon the Collateral granted pursuant to
the Security Agreement and the other Collateral Documents; and (ii) to
release portions of the Collateral from the security interests and
liens imposed by the Collateral Documents in connection with any
dispositions of such portions of the Collateral permitted hereby. In
the event that the Borrower or Guarantors desire to sell or otherwise
dispose of any assets and such sale or disposition is permitted
hereby, the Administrative Agent shall, upon timely notice from the
Borrower, release such portions of the Collateral from the security
interests and liens imposed by the Collateral Documents as may be
specified by the Borrower or Guarantors in order for the relevant
Borrower or Guarantor to consummate such proposed sale or disposition,
provided that at or prior to the time of such proposed sale or
disposition no Default or Unmatured Default shall have occurred and be
continuing, including, without limitation, any Unmatured Default or
Default that would arise upon consummation of such sale or
disposition. For purposes of the preceding sentence, the Borrower
shall give timely notice if, not less than two Business Days prior to
the date of such proposed sale or disposition, it shall furnish to the
Administrative Agent an officers' certificate setting forth in
reasonable detail the circumstances of such proposed sale or
disposition.
o. Right to Indemnity. The Administrative Agent shall be fully justified
in failing or refusing to take any action hereunder unless it shall
first be indemnified to its satisfaction by the Lenders pro rata
against any and all liability and expense which may be incurred by it
by reason of taking or continuing to take any such action.
p. Other Agents. No Lender identified on the facing page of this
Agreement or otherwise designated pursuant hereto at any time as
"Documentation Agent" or "Syndication Agent" shall have any right,
power, obligation, liability, responsibility or duty under this
Agreement other than those applicable to all Lenders as Lenders.
Without limiting the foregoing, no Lender so identified as a
"Documentation Agent" or "Syndication Agent" or the Arranger shall
have or be deemed to have any fiduciary relationship with any Lender.
Each Lender acknowledges that it has not relied, and will not rely, on
any Lender so identified or the Arranger in deciding to enter into
this Agreement or in taking
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or not taking action hereunder, and any Lender so identified and the
Arranger shall be entitled to the same indemnifications and other
protections as provided in this Article X for the Administrative
Agent.
11. SETOFF; RATABLE PAYMENTS
a. Setoff. In addition to, and without limitation of, any rights of the
Lenders under applicable law, if the Borrower or any Guarantor becomes
insolvent, however evidenced, or any Default occurs, any and all
deposits (including all account balances, whether provisional or final
and whether or not collected or available) and any other Indebtedness
at any time held or owing by any Lender to or for the credit or
account of the Borrower and each Guarantor may be offset and applied
toward the payment of the Obligations owing to such Lender, whether or
not the Obligations, or any part hereof, shall then be due.
b. Ratable Payments. If any Lender, whether by setoff or otherwise, has
payment made to it upon its Loans (other than payments received
pursuant to Section 3.1, 3.2 or 3.4) in a greater proportion than that
received by any other Lender, such Lender agrees, promptly upon
demand, to purchase a portion of the Loans held by the other Lenders
so that after such purchase each Lender will hold its ratable
proportion of Loans. If any Lender, whether in connection with setoff
or amounts which might be subject to setoff or otherwise, receives
collateral or other protection for its Obligations or such amounts
which may be subject to setoff, such Lender agrees, promptly upon
demand, to take such action necessary such that all Lenders share in
the benefits of such collateral ratably in proportion to their Loans.
In case any such payment is disturbed by legal process, or otherwise,
appropriate further adjustments shall be made.
12. BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
a. Successors and Assigns. The terms and provisions of the Loan Documents
shall be binding upon and inure to the benefit of the Borrower and the
Lenders and their respective successors and assigns, except that (i)
the Borrower shall not have the right to assign its rights or
obligations under the Loan Documents and (ii) any assignment by any
Lender must be made in compliance with Section 12.3.Notwithstanding
clause (ii) of this Section, (i) any Lender may at any time, without
the consent of the Borrower or the Administrative Agent, pledge or
assign all or any portion of its rights under this Agreement and any
Notes to a Federal Reserve Bank, and (ii) any Lender which is a fund
or commingled investment vehicle that invests in commercial loans in
the ordinary course of its business may at any time, without the
consent of the Borrower or the Administrative Agent, pledge or assign
all or any part of its rights under this Agreement to a trustee or
other representative of holders of obligations owed or securities
issued by such Lender as collateral to secure such obligations or
securities; provided, however, that no such assignment shall release
the transferor Lender from its obligations hereunder. The
Administrative Agent may treat the payee of any Note as the owner
thereof for all
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purposes hereof unless and until such payee complies with Section 12.3
in the case of an assignment thereof or, in the case of any other
transfer, a written notice of the transfer is filed with the
Administrative Agent. Any assignee or transferee of a Note agrees by
acceptance thereof to be bound by all the terms and provisions of the
Loan Documents. Any request, authority or consent of any Person, who
at the time of making such request or giving such authority or consent
is the holder of any Note, shall be conclusive and binding on any
subsequent holder, transferee or assignee of such Note or of any Note
or Notes issued in exchange therefor.
b. Participations.
i. Permitted Participants; Effect. Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at
any time sell to one or more banks or other entities
("Participants") participating interests in any Loan owing to
such Lender, any Note held by such Lender, any Revolving Credit
Commitment of such Lender or any other interest of such Lender
under the Loan Documents. In the event of any such sale by a
Lender of participating interests to a Participant, such Lender's
obligations under the Loan Documents shall remain unchanged, such
Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, such Lender shall
remain the holder of any such Note for all purposes under the
Loan Documents, all amounts payable by the Borrower under this
Agreement shall be determined as if such Lender had not sold such
participating interests, and the Borrower and the Administrative
Agent shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under the
Loan Documents.
ii. Voting Rights. Each Lender shall retain the sole right to
approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Loan Documents
other than any amendment, modification or waiver with respect to
any Loan or Revolving Credit Commitment in which such Participant
has an interest which forgives principal, interest or fees or
reduces the interest rate or fees payable with respect to any
such Loan or Revolving Credit Commitment, postpones any date
fixed for any regularlyscheduled payment of principal of, or
interest or fees on, any such Loan or Revolving Credit
Commitment, releases any guarantor of any such Loan or releases
any substantial portion of collateral, if any, securing any such
Loan.
iii. Benefit of Setoff. The Borrower agrees that each Participant
shall be deemed to have the right of setoff provided in Section
11.1 in respect of its participating interest in amounts owing
under the Loan Documents to the same extent as if the amount of
its participating interest were owing directly to it as a Lender
under the Loan Documents, provided that without duplication, each
Lender shall retain the right of setoff provided in Section 11.1
with respect to the amount of participating interests sold to
each Participant. The Lenders agree to share with each
Participant, and each Participant, by exercising the right of
setoff provided in Section 11.1, agrees to share with each
Lender, any amount received pursuant to the exercise of its right
of setoff, such amounts to be shared in accordance with Section
11.2 as if each Participant were a Lender.
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c. Assignments.
i. Permitted Assignments. Any Lender may, in the ordinary course of
its business and in accordance with applicable law, at any time
assign to one or more banks or other entities ("Purchasers") all
or any part of its rights and obligations under the Loan
Documents. Such assignment shall be substantially in the form of
Exhibit K hereto or in such other form as may be agreed to by the
parties thereto. The consent of the Administrative Agent, and
provided that no Default or Unmatured Default shall have occurred
and be continuing and such assignment is not to an existing
Lender or an Affiliate of an existing Lender, the consent of the
Borrower (which consent shall not be unreasonably withheld or
delayed) shall be required prior to an assignment becoming
effective with respect to a Purchaser which is not a Lender or an
Affiliate thereof. Each such assignment shall be in an amount not
less than the lesser of (i) $5,000,000, or $2,500,000 in the case
of assignments of Term Loan B, or any amount in the case of
assignments to other Lenders, or (ii) the remaining amount of the
assigning Lender's Commitments (calculated as at the date of such
assignment) or such other amount agreed to by the Administrative
Agent and, with the consent of the Administrative Agent, such
assignments may be of any one or more of the Commitments of any
Lender.
ii. Effect; Effective Date. Upon (i) delivery to the Administrative
Agent of a notice of assignment, substantially in the form
attached as Exhibit L hereto (a "Notice of Assignment"), together
with any consents required by Section 12.3.1, and (ii) payment of
a $3,500 fee to the Administrative Agent for processing such
assignment, such assignment shall become effective on the
effective date specified in such Notice of Assignment, provided
that the effective date shall be at least five Business Days
after delivery to the Administrative Agent of such notice of
assignment unless otherwise agreed to by the Administrative
Agent. The Notice of Assignment shall contain a representation by
the Purchaser to the effect that none of the consideration used
to make the purchase of the Revolving Credit Commitment and Loans
under the applicable assignment agreement are "plan assets" as
defined under ERISA and that the rights and interests of the
Purchaser in and under the Loan Documents will not be "plan
assets" under ERISA. On and after the effective date of such
assignment, such Purchaser shall for all purposes be a Lender
party to this Agreement and any other Loan Document executed by
the Lenders and shall have all the rights and obligations of a
Lender under the Loan Documents, to the same extent as if it were
an original party hereto, and no further consent or action by the
Borrower, the Lenders or the Administrative Agent shall be
required to release the transferor Lender with respect to the
percentage of the Aggregate Revolving Credit Commitment and Loans
assigned to such Purchaser. Upon the consummation of any
assignment to a Purchaser pursuant to this Section 12.3.2, the
transferor Lender, the Administrative Agent and the Borrower
shall make appropriate arrangements so that replacement Notes, if
any, are issued to such transferor Lender and new Notes or, as
appropriate, replacement Notes, are issued to such Purchaser, in
each case in principal amounts reflecting their Revolving Credit
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Commitment, and in exchange for the existing Notes which are
being replaced, as adjusted pursuant to such assignment.
d. Dissemination of Information. The Borrower authorizes each Lender to
disclose to any Participant or Purchaser or any other Person acquiring
an interest in the Loan Documents by operation of law (each a
"Transferee") and any prospective Transferee any and all information
in such Lender's possession concerning the creditworthiness of the
Borrower and its Subsidiaries; provided that each Transferee and
prospective Transferee agrees to be bound by Section 9.13 of this
Agreement.
e. Tax Treatment. If any interest in any Loan Document is transferred to
any Transferee which is organized under the laws of any jurisdiction
other than the United States or any State thereof, the transferor
Lender shall cause such Transferee, concurrently with the
effectiveness of such transfer, to comply with the provisions of
Section 3.6.
13. NOTICES
a. Notices. Except as otherwise permitted hereunder with respect to
borrowing notices, all notices, requests and other communications to
any party hereunder shall be in writing (including bank wire,
facsimile transmission or similar writing) and shall be given to such
party: (x) in the case of the Borrower or the Administrative Agent, at
its address or facsimile number set forth on the signature pages
hereof, (y) in the case of any Lender, at its address or facsimile
number set forth below its signature hereto or (z) in the case of any
party, such other address or facsimile number as such party may
hereafter specify for the purpose by notice to the Administrative
Agent and the Borrower. Each such notice, request or other
communication shall be effective (i) if given by facsimile
transmission, when transmitted to the facsimile number specified in
this Section and confirmation of receipt is received, (ii) if given by
mail, 72 hours after such communication is deposited in the mails with
first class postage prepaid, addressed as aforesaid or (iii) if given
by any other means, when delivered at the address specified in this
Section; provided that notices to the Administrative Agent under
Article II shall not be effective until received.
b. Change of Address. The Borrower, the Administrative Agent and any
Lender may each change the address for service of notice upon it by a
notice in writing to the other parties hereto.
14. CHOICE OF LAW, CONSENT TO JURISDICTION, WAIVER OF JURY TRIAL
a. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF
THE STATE OF MICHIGAN.
b. CONSENT TO JURISDICTION. THE BORROWER AND EACH GUARANTOR HEREBY
IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF ANY UNITED
STATES FEDERAL OR MICHIGAN STATE COURT SITTING IN
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DETROIT IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY
LOAN DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT ALL
CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVE ANY OBJECTION THEY
MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE
ADMINISTRATIVE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE
BORROWER OR ANY GUARANTOR IN THE COURTS OF ANY OTHER JURISDICTION. ANY
JUDICIAL PROCEEDING BY THE BORROWER OR ANY GUARANTOR AGAINST THE
ADMINISTRATIVE AGENT OR ANY LENDER OR ANY AFFILIATE OF THE
ADMINISTRATIVE AGENT OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY,
ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH
ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN DETROIT,
MICHIGAN.
c. WAIVER OF JURY TRIAL. THE BORROWER, EACH GUARANTOR, THE ADMINISTRATIVE
AGENT AND EACH LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER
SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP
ESTABLISHED THEREUNDER.
15. MISCELLANEOUS
a. Execution by Guarantors. The Guarantors are joining in the execution
of this Agreement for the purpose of acknowledging and agreeing to the
terms hereof and confirming the Guaranty with respect to all of the
Secured Obligations, and all other obligations to be observed or
performed by the Guarantors in connection with this Agreement.
b. Counterparts This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one
agreement, and any of the parties hereto may execute this Agreement by
signing any such counterpart. This Agreement shall be effective when
it has been executed by the Borrower, the Administrative Agent and
Lenders and each party has notified the Administrative Agent by telex
or telephone, that it has taken such action. Upon receipt of such
notification by each of the other parties, the Administrative Agent
shall insert the Effective Date in the final paragraph of this
Agreement.
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IN WITNESS WHEREOF, the Borrower, the Lenders and the Administrative Agent
have executed this Agreement as of May 27, 1999 which shall be the
Effective Date.
BORROWER:
VENTURE HOLDINGS TRUST
By: /s/ James E. Butler
-----------------------------------
Print Name: James E. Butler
Title: Executive Vice President
Address for notices for the Borrower:
33662 James J. Pompo Dr.
Fraser, Michigan 48026
Attention: President
Telephone: (810) 294-1500
Telecopy: (810) 294-1960
GUARANTORS:
VEMCO, INC.
By: /s/ James E. Butler
-----------------------------------
Title: Executive Vice President
----------------------------
VEMCO LEASING, INC.
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By: /s/ James E. Butler
-----------------------------------
Title: Executive Vice President
----------------------------
VENTURE INDUSTRIES CORPORATION
By: /s/ James E. Butler
-----------------------------------
Title: Executive Vice President
----------------------------
VENTURE HOLDINGS CORPORATION
By: /s/ James E. Butler
-----------------------------------
Title: Executive Vice President
----------------------------
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VENTURE LEASING COMPANY
By: /s/ James E. Butler
-----------------------------------
Title: Executive Vice President
----------------------------
VENTURE MOLD & ENGINEERING COMPANY
By: /s/ James E. Butler
-----------------------------------
Title: Executive Vice President
----------------------------
VENTURE SERVICE COMPANY
By: /s/ James E. Butler
-----------------------------------
Title: Executive Vice President
----------------------------
VENTURE EUROPE, INC.
By: /s/ James E. Butler
-----------------------------------
Title: Executive Vice President
----------------------------
VENTURE EU CORPORATION
By: /s/ James E. Butler
-----------------------------------
Title: Executive Vice President
----------------------------
VENTURE HOLDINGS COMPANY LLC
By: /s/ James E. Butler
-----------------------------------
Title: Executive Vice President
----------------------------
EXPERIENCE MANAGEMENT LLC
By: /s/ James E. Butler
-----------------------------------
Title: Executive Vice President
----------------------------
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THE FIRST NATIONAL BANK OF CHICAGO,
as Administrative Agent and a Lender
By: /s/ Erik W. Bakker
-----------------------------------
Print Name: Erik W. Bakker
Title: First Vice President
611 Woodward Avenue
Detroit, Michigan 48226
Attention:
Telephone: (313) 225-2979
Telecopy: (313) 225-2290
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