EXECUTION COPY
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U.S. $125,000,000
CREDIT AGREEMENT
AMONG
TRANSPORTATION MANUFACTURING OPERATIONS, INC
AS THE BORROWER,
THE LENDERS PARTIES HERETO,
AND
NBD BANK,
AS ADMINISTRATIVE AGENT
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Dated as of October 1, 1996
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS . . . . . . . . . 1
SECTION 1.01. Certain Defined Terms . . . . . . . 1
SECTION 1.02. Computation of Time Periods . . . 19
SECTION 1.03. Accounting Terms . . . . . . . . . 20
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES . . . . . . . . 20
SECTION 2.01. The Advances . . . . . . . . . . . 20
SECTION 2.02. Making the Advances . . . . . . . 20
SECTION 2.03. Swing Line Loans . . . . . . . . . 23
SECTION 2.04. Letters of Credit . . . . . . . . 24
SECTION 2.05. Facility Fees; Administrative Agent's
and Arranger's Fees . . . . . . . . . . 31
SECTION 2.06. Termination and Reduction of the
Commitments . . . . . . . . . . . . . . 31
SECTION 2.07. Repayment and Prepayment of Advances 31
SECTION 2.08. Interest on Advances; Default Rate 34
SECTION 2.09. Interest Rate Determination . . . 35
SECTION 2.10. Voluntary Conversion or Continuation
of Advances . . . . . . . . . . . . . . 35
SECTION 2.11. Increased Costs . . . . . . . . . 36
SECTION 2.12. Payments and Computations . . . . 37
SECTION 2.13. Taxes . . . . . . . . . . . . . . 38
SECTION 2.14. Sharing of Payments, Etc . . . . . 40
SECTION 2.15. Evidence of Debt . . . . . . . . . 40
SECTION 2.16. Use of Proceeds . . . . . . . . . 41
SECTION 2.17. Margins, Applicable Facility Fees and
Applicable Letter of Credit Fees . . . 41
ARTICLE III
CONDITIONS OF LENDING . . . . . . . . . . . . . . 42
SECTION 3.01. Condition Precedent to Effectiveness 42
SECTION 3.02. Conditions Precedent to Each
Borrowing . . . . . . . . . . . . . . . 46
SECTION 3.03. Conditions Precedent to Letter of
Credit . . . . . . . . . . . . . . . . 46
ARTICLE IV
REPRESENTATIONS AND WARRANTIES . . . . . . . . . 47
SECTION 4.01. Representations and Warranties of the
Borrower . . . . . . . . . . . . . . . 47
ARTICLE V
COVENANTS OF THE BORROWER . . . . . . . . . . . . 52
SECTION 5.01. Affirmative Covenants . . . . . . 52
SECTION 5.02. Negative Covenants . . . . . . . . 57
SECTION 5.03. Financial Covenants . . . . . . . 65
ARTICLE VI
EVENTS OF DEFAULT . . . . . . . . . . . . . . . . 66
SECTION 6.01. Events of Default . . . . . . . . 66
ARTICLE VII
THE ADMINISTRATIVE AGENT . . . . . . . . . . . . 70
SECTION 7.01 Appointment; Nature of Relationship 70
SECTION 7.02 POWERS . . . . . . . . . . . . . . 71
SECTION 7.03 GENERAL IMMUNITY . . . . . . . . . 71
SECTION 7.04 NO RESPONSIBILITY FOR LOANS,
CREDITWORTHINESS, RECITALS, ETC . . . . . 71
SECTION 7.05 Action on Instructions of Lenders . 72
SECTION 7.06 EMPLOYMENT OF AGENTS AND COUNSEL . 72
SECTION 7.07 RELIANCE ON DOCUMENTS; COUNSEL . . 72
SECTION 7.08 THE ADMINISTRATIVE AGENT'S
REIMBURSEMENT AND INDEMNIFICATION . . . 72
SECTION 7.09 RIGHTS AS A LENDER . . . . . . . . 73
SECTION 7.10 LENDER CREDIT DECISION . . . . . . 73
SECTION 7.11 SUCCESSOR ADMINISTRATIVE AGENT . . 73
SECTION 7.12. Loan Documents . . . . . . . . . . 74
ARTICLE VIII
MISCELLANEOUS . . . . . . . . . . . . . . . . . . 74
SECTION 8.01. Amendments, Etc . . . . . . . . . 75
SECTION 8.02. Notices, Etc . . . . . . . . . . . 75
SECTION 8.03. No Waiver; Remedies . . . . . . . 75
SECTION 8.04. Costs, Expenses and Indemnification 76
SECTION 8.05. Right of Set-off . . . . . . . . . 78
SECTION 8.06. Binding Effect . . . . . . . . . . 79
SECTION 8.07. Assignments and Participations . . 79
SECTION 8.08. Governing Law . . . . . . . . . . 81
SECTION 8.09. Execution in Counterparts . . . . 81
SECTION 8.10. Consent to Jurisdiction; Service of
Process . . . . . . . . . . . . . . . . 81
SECTION 8.11. WAIVER OF TRIAL BY JURY; WAIVER OF
BOND; ADVICE OF COUNSEL . . . . . . . . 82
SECTION 8.12. Confidentiality . . . . . . . . . 83
SECTION 8.13. Agreement Regarding Letters of
Credit . . . . . . . . . . . . . . . . 84
SECTION 8.14. NO STRICT CONSTRUCTION . . . . . 84
SECTION 8.15. RATABLE PAYMENTS . . . . . . . . . 84
SECTION 8.16. APPLICATION OF PAYMENTS . . . . . 84
SECTION 8.17. RELATIONS AMONG LENDERS . . . . . 85
EXHIBITS
Exhibit A Form of Assignment and Acceptance
Exhibit B Form of Guaranty
Exhibit C-1 Form of Note
Exhibit C-2 Form of Swing Line Note
Exhibit D Form of Notice of Borrowing
Exhibit E Form of Notice of Letter of Credit Issuance
Exhibit F-1 Form of Special Counsel's Opinion
Exhibit F-2 Form of Corporate Counsel's Opinion
Exhibit G Form of Compliance Certificate
SCHEDULES
Schedule 1.01 - List of Applicable Lending Offices
and Notice Addresses
Schedule 4.01(b) - List of Subsidiaries and Subsidiary
Guarantors
Schedule 4.01(g) - Litigation
Schedule 4.01(k) - Pension Plans, Foreign
Pension Plans, Etc.
Schedule 5.02(a) - Permitted Existing Debt and Contin-
gent Obligations.
Schedule 5.02(c) - Permitted Existing Investments
Schedule 5.02(d) - List of Certain Bonds
Schedule 5.02(l) - Tax Distribution Calculations
CREDIT AGREEMENT
Dated as of October 1, 1996
TRANSPORTATION MANUFACTURING OPERATIONS, INC., a
Delaware corporation (the "Borrower"), the "Lenders" (as
defined below) parties from time to time hereto and NBD
BANK, as contractual representative (the "Administrative
Agent") for the Lenders hereunder, hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. CERTAIN DEFINED TERMS. As used in this
Agreement, the following terms shall have the following
meanings (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
"Adjusted Eurodollar Rate" means, for any Interest
Period for each Eurodollar Rate Advance comprising part
of the same Borrowing, an interest rate per annum equal
to the rate per annum obtained by dividing (a) the rate
per annum (rounded upward to the nearest whole multiple
of 1/16 of 1% per annum, if such average is not such a
multiple) at which deposits in U.S. dollars are offered
by the Administrative Agent in London, England to prime
banks in the London interbank market at 11:00 A.M.
(London time) two Business Days before the first day of
such Interest Period in an amount substantially equal
to its Eurodollar Rate Advance comprising part of such
Borrowing and for a period equal to such Interest
Period by (b) a percentage equal to 100% minus the
Eurodollar Rate Reserve Percentage.
"Advance" means (i) with respect to a Lender, an
advance by a Lender to the Borrower as part of a
Borrowing made pursuant to Section 2.01 and refers to a
Base Rate Advance or a Eurodollar Rate Advance, each of
which shall be a "Type" of Advance and (ii) in the case
of the Swing Line Bank, any Swing Line Loan made
pursuant to Section 2.03 hereof, all of which shall be
Base Rate Advances.
"Affiliate" means, as to any Person, any other
Person that, directly or indirectly, controls, is
controlled by or is under common control with such
Person or is a director or officer of such Person. A
Person shall be deemed to control another Person if the
controlling Person is the "beneficial owner" (as
defined in Rule 13d-3 under the Securities Exchange Act
of 1934) of greater than ten percent (10%) or more of
any class of voting securities (or other voting
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 capital
stock, by contract or otherwise.
"Agreement" means this Credit Agreement, as it may
be amended, restated, supplemented or otherwise
modified from time to time.
"Alternate Base Rate" means, for any period, a
fluctuating interest rate per annum as shall be in
effect from time to time which rate per annum shall at
all times be equal to the higher of:
(a) the Prime Rate;
(b) the sum of (A) 0.625% per annum plus (B) the
Federal Funds Rate.
"Applicable Lending Office" means, with respect to
each Lender, such Lender's Domestic Lending Office in
the case of a Base Rate Advance, and such Lender's
Eurodollar Lending Office in the case of a Eurodollar
Rate Advance.
"Arranger" means First Chicago Capital Markets,
Inc.
"Asset Sale" means, with respect to any Person,
the sale, lease, conveyance, disposition or other
transfer by such Person of any of its assets (including
by way of a sale-leaseback transaction and including
the sale or other transfer of any of the Equity
Interests of any Subsidiary of such Person).
"Assignment and Acceptance" means an assignment
and acceptance entered into by a Lender and an Eligible
Assignee, and accepted by the Administrative Agent, in
substantially the form of EXHIBIT A hereto.
"Base Rate Advance" means an Advance which bears
interest as provided in Section 2.08(a).
"Borrowing" means a borrowing consisting of
Advances of the same Type made on the same day pursuant
to the same Notice of Borrowing by each of the Lenders
pursuant to Section 2.01.
"Business Day" means a day of the year on which
banks are not required or authorized to close in
Detroit, Michigan and, if the applicable Business Day
relates to any Eurodollar Rate Advances, on which
dealings are carried on in the London interbank market.
"Canadian Debt" has the meaning specified in
Section 5.02(a)(vii).
"Capital Lease" means, with respect to any Person,
any lease of any property by that Person as lessee
which would, in conformity with GAAP, be required to be
accounted for as a capital lease on the balance sheet
of that Person.
"Capital Stock" means (i) in the case of a
corporation, corporate stock, (ii) in the case of an
association or business entity, any and all shares,
interests, participations, rights or other equivalents
(however designated) of corporate stock, (iii) in the
case of a partnership, partnership 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
distributions of assets of, the issuing Person.
"Capitalization Ratio" means, as of any date of
determination, the ratio of (i) Consolidated Total Debt
to (ii) the sum of Consolidated Total Debt plus
Consolidated Net Worth, in each case determined as of
such date of determination.
"Cash Equivalents" means (i) marketable securities
issued or directly and unconditionally guaranteed by
the United States Government or issued by any agency
thereof and backed by the full faith and credit of the
United States, in each case maturing within one year
from the date of acquisition thereof; (ii) marketable
direct obligations issued by any state of the United
States of America or any political subdivision of any
such state or any public instrumentality thereof
maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having a
rating of at least AA from S&P or at least Aa2 from
Moody's; (iii) commercial paper maturing no more than
one year from the date of creation thereof and, at the
time of acquisition, having a rating of at least A-1
from S&P or at least P-1 from Moody's;
(iv) certificates of deposit or bankers' acceptances
maturing within one year from the date of acquisition
thereof issued by any Lender or any commercial bank
organized under the laws of the United States of
America or any state thereof or the District of
Columbia having unimpaired capital and surplus of not
less than $250,000,000 (each Lender and each such
commercial bank herein called a "Cash Equivalent
Bank"); (v) Eurodollar time deposits having a maturity
of less than one year purchased directly from any Cash
Equivalent Bank (whether such deposit is with such Cash
Equivalent Bank or any other Cash Equivalent Bank);
(vi) any demand deposit and cash management accounts
maintained with any Cash Equivalent Bank; and
(vii) bank instruments maturing within one year from
the date of acquisition thereof issued by a bank or
trust company (or a branch or affiliate thereof),
organized under the laws of the United Mexican States,
Canada, any European Economic Community country, Japan
or any other country, that has an A-1 or P-1 commercial
paper rating or is rated AA or better by S&P or Aa2 or
better by Moody's on its long-term debt having capital,
surplus and individual profits aggregating at least
$1,000,000,000.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Commitment" has the meaning specified in
Section 2.01.
"Company" means Motor Coach Industries
International, Inc., a Delaware corporation.
"Consolidated Capital Expenditures" means, for any
period, the aggregate of all expenditures (whether paid
in cash or other consideration or accrued as a
liability, but excluding expenditures made in
connection with the replacement, substitution or
restoration of assets (A) to the extent financed from
insurance proceeds paid on account of the loss or
damage to the assets being replaced or restored or
(B) with awards of compensation arising from the taking
by eminent domain or condemnation of the assets being
replaced) by the Borrower and its Subsidiaries during
that period that, in conformity with GAAP, are or
should be included in "additions to property, plant or
equipment" or comparable items reflected in the
consolidated statement of cash flows of the Borrower
and its Subsidiaries.
"Consolidated EBITDA" means, for any period, the
sum (without duplication) of the amounts for such
period of (i) Consolidated Net Income,
(ii) Consolidated Interest Expense, (iii) provisions
for taxes based on income, (iv) total depreciation
expense and (v) total amortization expense plus other
non-cash items deducted in arriving at Consolidated Net
Income, all of the foregoing as determined on a
consolidated basis for the Borrower and its
Subsidiaries in conformity with GAAP.
"Consolidated Interest Expense" means, for any
period, total interest expense (including the interest
component as determined in accordance with GAAP of all
rents paid under Capital Leases and capitalized
interest) of the Borrower and its Subsidiaries on a
consolidated basis with respect to all outstanding Debt
of the Borrower and its Subsidiaries, including,
without limitation, all financial interest expense, the
facility fees payable pursuant to Section 2.05(a)
hereof and all fees, commissions, discounts and other
charges with respect to letters of credit and net costs
under Interest Rate Agreements, but excluding, in any
event, any amortization or payment of Non-Recurring
Financing Fees.
"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
conformity with GAAP; provided that there shall be
excluded (i) the income (or loss) of any Person (other
than a Subsidiary of the Borrower) in which any other
Person (other than the Borrower or any of its
Subsidiaries) has a joint interest, except to the
extent of the amount of dividends or other
distributions actually paid to the Borrower or any of
its Subsidiaries by such Person during such period,
(ii) the income (or loss) 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,
(iii) the income of any Subsidiary of the Borrower to
the extent that the declaration or payment of dividends
or similar distributions by that Subsidiary of that
income is not at the time permitted by operation of the
terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental
regulation applicable to that Subsidiary, (iv) any
after-tax gains or losses attributable to returned
surplus assets of any Pension Plan, (v) any after-tax
gains or losses on sales or dispositions of assets
other than sales or dispositions of buses, coaches,
leases or notes receivable in the ordinary course of
business consistent with past practice and (vi) (to the
extent not included in clauses (i) through (v) above)
any net extraordinary gains or net extraordinary losses
including, without limitation, the loss in the amount
of $5,000,000 reflected on the Borrower's financial
statements dated as of June 30, 1996 from discontinued
operations of the Borrower's transit bus business.
"Consolidated Net Worth" means the stockholders
equity of the Borrower, determined in conformity with
GAAP.
"Consolidated Rental Payments" means, for any
period, the aggregate amount of all rents paid under
all operating leases and the principal portion (as
determined in accordance with GAAP) of all rents paid
under all Capital Leases of the Borrower and its
Subsidiaries as lessee.
"Consolidated Total Debt" means, as at any date of
determination, the aggregate amount of all Debt of the
Borrower and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP.
"Contingent Obligation," as applied to any Person,
means any direct or indirect liability, contingent or
otherwise, of that Person with respect to (i) Financial
Guaranties, (ii) Interest Rate Agreements or Currency
Agreements, (iii) obligations to repurchase coach or
bus leases or chattel paper, (iv) first loss or similar
arrangements entered into in connection with sales of
receivables, and (v) surety bonds issued for the
account of that Person or as to which that Person is
otherwise liable for reimbursement. Contingent
Obligations shall include, without limitation, (a) the
direct or indirect guaranty, endorsement (other than
for collection or deposit in the ordinary course of
business), co-making, discounting with recourse or sale
with recourse by such Person of the obligation of
another, (b) the obligation to make take-or-pay or
similar payments if required regardless of non-
performance by any other party or parties to an
agreement, and (c) any liability of such Person for the
obligation of another through any agreement (contingent
or otherwise) (X) to purchase, repurchase or otherwise
acquire such obligation or any security therefor, or to
provide funds for the payment or discharge of such
obligation (whether in the form of loans, advances,
stock purchases, capital contributions or otherwise) or
(Y) to maintain the solvency or any balance sheet item,
level of income or financial condition of another if,
in the case of any agreement described under subclauses
(X) or (Y) of this sentence, the primary purpose or
intent thereof is as described in the preceding
sentence (it being agreed and understood that
Contingent Obligations do not include Residual Value
Guaranties, Trade-In Value Guaranties or obligations to
repurchase buses and coaches incurred in connection
with sales of such buses and coaches). The amount of
any Contingent Obligation shall be equal to the amount
of the obligation so guaranteed or otherwise supported
or, if less, the amount to which such Contingent
Obligation is specifically limited.
"Convert," "Conversion" and "Converted" each
refers to a conversion of Advances of one Type into
Advances of another Type pursuant to Section 2.10.
"Credit Level" means, for the purposes of
determining the Margin, the amount of facility fees
payable under Section 2.05(a) or the letter of credit
fees payable under Section 2.04(e)(ii) as of any date
of determination, Level 1, Level 2, Level 3 or Level 4,
as applicable, determined (a) by reference to the
Borrower's debt ratings (as in effect on such date of
determination) if the Borrower's senior unsecured non-
credit-enhanced, long-term debt ("Rated Debt") carries
an investment grade rating by S&P and Moody's or (b) if
the Borrower's Rated Debt does not carry an investment
grade rating by both S&P and Moody's, by reference to
the Borrower's Leverage Ratio (determined, as of any
date of determination, based upon the most recent
financial statements delivered by the Borrower pursuant
to Section 5.01(a) on or prior to such date of
determination), as follows:
Level 1: (a) the Borrower's Rated Debt is rated by at
least two of S&P, Moody's and NAIC and is not
rated below BBB+ by S&P, Baa1 by Moody's or
NAIC 1 by NAIC or (b) if the Borrower's Rated
Debt is not rated by any two such rating
agencies, the Leverage Ratio is less than or
equal to 2.50 to 1.00;
Level 2: (a) the Borrower's Rated Debt is rated by at
least two of S&P, Moody's and NAIC, does not
meet the requirements for Level 1 set forth
above and is not rated below BBB by S&P, Baa2
by Moody's or NAIC 2 by NAIC or (b) if
Borrower's Rated Debt is not rated by any two
such rating agencies, the Leverage Ratio is
greater than 2.50 to 1.00 and less than or
equal to 3.00 to 1.00;
Level 3: the Borrower's credit ratings or, if
applicable, the Leverage Ratio are such that
neither the requirements for Level 1 or 2,
set forth above, nor the requirements for
Level 4, set forth below, are satisfied;
Level 4: (a) the Borrower's Rated Debt is not rated by
at least two of S&P, Moody's and NAIC or is
rated BBB- or less by S&P, Baa3 or less by
Moody's or NAIC 2 or less by NAIC, or (b) the
Leverage Ratio is equal to or greater than
4.00 to 1.00;
provided, however, that if, as of any date of
determination, the Borrower's Rated Debt is not rated
by at least two of S&P, Moody's and NAIC and the
Borrower shall have failed to deliver financial
statements in accordance with Sections 5.01(a)(i) and
5.01(a)(ii), and such failure shall be continuing, the
Borrower's Credit Level shall be Level 4. In the event
that there is a split in Credit Levels between the
credit ratings of S&P and Moody's, the stronger rating
of those two agencies (yielding the lower Margin) shall
be applicable.
The Credit Levels as set forth above (which in all
events shall be controlling) are also set forth in the
table below for the convenience of the parties hereto:
Credit Rated Debt Leverage
Level (by at least Ratio
two agencies)
Level 1 S&P: BBB+ or better > 2.50 to
Moody's: BAA1 or better 1.00
NAIC: NAIC1 or
better
Level 2 S&P: BBB or better > 2.50 to 1.00
Moody's: Baa2 or better and
NAIC: NAIC2 or better < 3.00 to 1.00
(but Level 1 not
satisfied)
Level 3 No other level applicable No other level applicable
Level 4 S&P: BBB- or worse > 4.00 to 1.00
Moody's: Baa3 or worse
NAIC: NAIC2 or worse
or not rated
"Currency Agreement" means (a) any foreign
exchange contract, currency swap agreement, futures
contract, option contract, synthetic cap or (b) any other
similar agreement or arrangement designed to protect the
Borrower or any of its Subsidiaries against currency risks.
"Debt" means, with respect to any Person,
(i) indebtedness of such Person for borrowed money,
(ii) obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments,
(iii) obligations of such Person to pay the deferred
purchase price of property or services, excluding trade
payables or accrued expenses arising in the ordinary
course of business, (iv) obligations of such Person as
lessee under Capital Leases, (v) obligations of such
Person under any financing lease or so-called
"synthetic" lease transactions (it being expressly
understood that "synthetic" lease does not mean any
operating lease in the ordinary course of the
Borrower's business) and (vi) Financial Guaranties.
"Dina" means Consorcio G Grupo Dina, S.A. de C.V.
"Dina Distribution" means a distribution, in an
amount not exceeding $30,000,000, by the Borrower in
respect of its shares of common stock paid to the
Company.
"Domestic Lending Office" means, with respect to
any Lender, the office of such Lender specified as its
"Domestic Lending Office" opposite its name on
SCHEDULE 1.01 hereto or in the Assignment and
Acceptance pursuant to which it became a Lender, or
such other office of such Lender as such Lender may
from time to time specify to the Borrower and the
Administrative Agent.
"Effective Date" means the first date, if any, on
or before October 1, 1996, upon which each of the
conditions precedent to the effectiveness of this
Agreement set forth in Section 3.01 are satisfied or
waived.
"Eligible Assignee" means any financial
institution or entity engaged in the business of
extending revolving credit which has combined capital
and surplus of not less than $50,000,000 or which is an
Affiliate of the assigning Lender and, in either such
case, which financial institution is acceptable to the
Administrative Agent (the approval of the
Administrative Agent not to be unreasonably withheld).
"Environmental Law" means any and all statutes,
laws, regulations, ordinances, rules, judgments,
orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or other governmental
restrictions of any federal, state or local
governmental authority within the United States or any
State or territory thereof or Canada or any Province
thereof and which relate to the environment or the
release of any materials into the environment.
"Equity Interests" means Capital Stock and all
warrants, options or other rights to acquire Capital
Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"ERISA" means the Employee Retirement Income
Security Act of 1974, as amended from time to time, and
the regulations promulgated and rulings issued
thereunder.
"ERISA Affiliate" means any Person who for
purposes of Title IV of ERISA is a member of the
Borrower's controlled group, or under common control
with the Borrower, within the meaning of Section 414 of
the Code and the regulations promulgated and rulings
issued thereunder.
"ERISA Event" means (i) the occurrence of a
reportable event, within the meaning of Section 4043 of
ERISA, unless the 30-day notice requirement with
respect thereto has been waived by the PBGC; (ii) the
imposition of an obligation on the administrator of any
Pension Plan to provide affected parties with a notice
of intent to terminate such Pension Plan pursuant to
Section 4041(a)(2) of ERISA (including any such notice
with respect to a plan amendment referred to in
Section 4041(e) of ERISA); (iii) the cessation of
operations at a facility in the circumstances described
in Section 4062(e) of ERISA; (iv) the withdrawal by the
Borrower or an ERISA Affiliate from a Multiple Employer
Plan during a plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA;
(v) the failure by the Borrower or any ERISA Affiliate
to make a payment to a Pension Plan required under
Section 302(f)(1) of ERISA, which Section imposes a
lien for failure to make required payments;
(vi) failure by any Subsidiary or ERISA Affiliate to
pay any required contributions or payments to a Foreign
Pension Plan on or before the due date for such
required installment or payment; (vii) the adoption of
an amendment to a Pension Plan requiring the provision
of security to such Pension Plan, pursuant to
Section 307 of ERISA; (viii) the institution by the
PBGC or any similar governmental authority of
proceedings to terminate a Pension Plan, pursuant to
Section 4042 of ERISA, or a Foreign Pension Plan, or
the occurrence of any event or condition which, in the
reasonable judgment of the Borrower, might constitute
grounds under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, a
Pension Plan or (ix) a foreign governmental authority
shall appoint or institute proceedings to appoint a
trustee to administer any Foreign Pension Plan.
"Eurocurrency Liabilities" has the meaning
assigned to that term in Regulation D of the Board of
Governors of the Federal Reserve System, as in effect
from time to time.
"Eurodollar Lending Office" means, with respect to
any Lender, the office of such Lender specified as its
"Eurodollar Lending Office" opposite its name on
SCHEDULE 1.01 hereto or in the Assignment and
Acceptance pursuant to which it became a Lender (or, if
no such office is specified, its Domestic Lending
Office), or such other office of such Lender as such
Lender may from time to time specify to the Borrower
and the Administrative Agent.
"Eurodollar Rate Advance" means an Advance which
bears interest as provided in Section 2.08(b).
"Eurodollar Rate Reserve Percentage" for any
Interest Period for any Eurodollar Rate Advance means
the reserve percentage applicable during such Interest
Period (or if more than one such percentage shall be so
applicable, the daily average of such percentages for
those days in such Interest Period during which any
such percentage shall be so applicable) under
regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve
requirements (including, without limitation, any
emergency, supplemental or other marginal reserve
requirement) with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities
having a term equal to such Interest Period.
"Events of Default" has the meaning specified in
Section 6.01.
"Federal Funds Rate" means, for any period, a
fluctuating interest rate per annum equal for each day
during such period to the weighted average of the rates
on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is
not a Business Day, for the next 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 for such
day on such transactions received by the Administrative
Agent from three Federal funds brokers of recognized
standing selected by it.
"Financial Guaranties" as applied to any Person,
means any direct or indirect liability, contingent or
otherwise, of that Person with respect to (i) any
indebtedness, lease, dividend or other payment
obligation of another if the primary purpose or intent
thereof by the Person incurring such liability is to
provide assurance to the obligee of such obligation of
another that such obligation of another will be paid or
discharged, or that any agreements relating thereto
will be complied with, or that the holders of such
obligation will be protected (in whole or in part)
against loss in respect thereof, or (ii) any letter of
credit issued for the account of that Person or as to
which that Person is otherwise liable for reimbursement
of drawings to the extent such letter of credit
supports a financial instrument or any Debt (it being
agreed and understood that Financial Guaranties do not
include (a) Residual Value Guaranties, Trade-In Value
Guaranties or obligations to repurchase buses and
coaches incurred in connection with sales of such buses
and coaches or (b) "first-loss" or similar arrangements
entered into in connection with the sale of receivables
whereby the seller is obligated to pay the purchaser
all or any portion of any such receivables that are not
paid when due).
"Financing" means, with respect to any Person, the
issuance by such Person of any Debt consisting of debt
securities of such Person pursuant to a registered
offering or private placement or the incurrence of
obligations under bank credit facilities other than the
Obligations under this Agreement.
"Foreign Employee Benefit Plan" means any employee
benefit plan as defined in Section 3(3) of ERISA which
is maintained or contributed to for the benefit of the
employees of the Borrower, any of its Subsidiaries or
any of its ERISA Affiliates, but which is not covered
by ERISA pursuant to Section 4(b)(4) of ERISA.
"Foreign Pension Plan" means any Foreign Employee
Benefit Plan which under applicable local law is
required to be funded through a trust or other funding
vehicle.
"Foreign Subsidiary" means MCIL, TMO Holdings,
MCIL Holdings, Limited, and any other Subsidiary of the
Borrower that is incorporated under the laws of a
jurisdiction outside the United States of America.
"GAAP" means generally accepted accounting
principles in effect from time to time, applied in a
manner consistent with that used in preparing the
historical financial statements referred to in Section
4.01(f) hereof; provided, however, that with respect to
the calculation of financial ratios, financial
covenants and other financial tests (and the various
components thereof) required by this Agreement, "GAAP"
means such generally accepted accounting principles as
in effect as of the Effective Date, applied in a manner
consistent with that used in preparing the financial
statements referred to in Section 4.01(f) hereof.
"Gross Negligence" means recklessness, the absence
of the slightest care or the complete disregard of
consequences. Gross Negligence does not mean the
absence of ordinary care or diligence, or an
inadvertent act or inadvertent failure to act. If the
term "gross negligence" is used with respect to the
Administrative Agent or any Lender or any indemnitee in
any of the other Loan Documents, it shall have the
meaning set forth herein.
"Guaranties" means, collectively, the Subsidiary
Guaranty dated as of the date hereof, executed by each
of the Subsidiary Guarantors (other than any Foreign
Subsidiary) in favor of the Administrative Agent, a
copy of which is annexed as EXHIBIT B hereto, and any
other guaranty of the obligations, in form and
substance satisfactory to the Administrative Agent,
executed by any Subsidiary of the Borrower after the
Effective Date in accordance with Section 5.02(e)(ii),
in each case as such Guaranties may be amended,
restated, supplemented or otherwise modified from time
to time.
"Initial Rate Adjustment Date" has the meaning
specified in the definition of "Margin."
"Insufficiency" means, with respect to any Pension
Plan, the amount, if any, of its unfunded benefit
liabilities, as defined in Section 4001(a)(18) of
ERISA.
"Interest Period" means, for each Eurodollar Rate
Advance comprising part of the same Borrowing, the
period commencing on the date of such Eurodollar Rate
Advance, or on the date of continuation of such Advance
as a Eurodollar Rate Advance upon expiration of
successive Interest Periods applicable thereto, or on
the date of Conversion of a Base Rate Advance into a
Eurodollar Rate Advance, and ending on the last day of
the period selected by the Borrower pursuant to the
provisions below. The duration of each such Interest
Period shall be one, two, three or six months, as the
Borrower may select in the Notice of Borrowing or the
Notice of Conversion/Continuation for such Advance;
provided, however, that:
(i) the Borrower may not select any Interest
Period which ends after the Termination Date;
(ii) Interest Periods commencing on the same
date for Advances comprising part of the same
Borrowing shall be of the same duration;
(iii) whenever the last day of any Interest
Period would otherwise occur on a day other than a
Business Day, the last day of such Interest Period
shall be extended to occur on the next succeeding
Business Day, provided, that if such extension
would cause the last day of such Interest Period
to occur in the next following calendar month, the
last day of such Interest Period shall occur on
the next preceding Business Day;
(iv) there shall be no more than ten Interest
Periods relating to Eurodollar Rate Advances
outstanding at any time; and
(v) notwithstanding the foregoing, for the
90-day period following the Effective Date, at the
option of the Administrative Agent, the
Administrative Agent may require the Borrower to
select only one-month Interest Periods all of
which shall expire on the same day.
"Interest Rate Agreement" means (a) any interest
rate swap agreement, interest rate cap agreement,
interest rate collar agreement or (b) any other similar
agreement or arrangement designed to protect the
Borrower or any of its Subsidiaries against interest
rate risks.
"Investment" means (i) any direct or indirect
purchase or other acquisition by the Borrower or any of
its Subsidiaries of, or of a beneficial interest in,
stock, notes or other securities of any other Person,
or a joint venture or partnership interest or (ii) any
direct or indirect loan, advance (other than advances
to employees for moving, entertainment and travel
expenses, drawing accounts and similar expenditures in
the ordinary course of business) or capital
contribution by the Borrower or any of its Subsidiaries
to any other Person (other than a Subsidiary of the
Borrower) including all indebtedness and accounts
receivable from that other Person that are not current
assets or did not arise from sales to that other Person
in the ordinary course of business (it being agreed and
understood that financing provided by MCI Acceptance
Corp. or BusLease, Inc. for customers of the Borrower
and its Subsidiaries is considered to be in the
ordinary course of business for this purpose). The
amount of any Investment shall be the original cost of
such Investment plus the cost of all additions thereto,
without any adjustments for increases or decreases in
value, or write-ups, write-downs or write-offs with
respect to such Investment.
"Issuing Lender" means, with respect to any Letter
of Credit, the Lender that agrees or is otherwise
obligated to issue such Letter of Credit, which Lender
shall be determined in accordance with the provisions
of Section 2.04.
"Lenders" means (a) the lenders listed on the
signature pages hereof, each Eligible Assignee that
shall become a party hereto pursuant to Section 8.07
and (b) the Swing Line Bank.
"Letter of Credit" means any standby letter of
credit issued by an Issuing Lender for the account of
the Borrower pursuant to Section 2.04.
"Letter of Credit Exposure" means, as to any
Lender, the aggregate amount of such Lender's
participations in Letters of Credit plus, in the case
of any Lender that is an Issuing Lender, the aggregate
amount of Letters of Credit issued by such Lender less
the aggregate amount of the participations of other
Lenders in such Letter of Credit.
"Letter of Credit Usage" means, as at any date of
determination, the sum of (i) the maximum aggregate
amount which is or at any time thereafter may become
available for drawing under all Letters of Credit then
outstanding plus (ii) the aggregate amount of all
drawings under all Letters of Credit honored by any
Issuing Lender and not theretofore reimbursed by the
Borrower.
"Leverage Ratio" means, as of any date of
determination, the ratio of (i) Consolidated Total Debt
to (ii) Consolidated EBITDA, determined as of the last
day of each fiscal quarter for the four fiscal quarter
period then ended.
"Lien" means any lien, mortgage, pledge, security
interest, charge or encumbrance of any kind (including
any conditional sale or other title retention agreement
and any lease in the nature thereof).
"Loan Documents" means this Agreement, the Notes,
the Guaranties and any other documents or instruments
required hereunder in relation thereto, as any of the
same may be amended, restated, supplemented or
otherwise modified from time to time.
"Majority Lenders" means at any time the Lenders
holding at least 66-2/3% of the then aggregate unpaid
principal amount of the Advances held by Lenders, or,
if no such principal amount is then outstanding,
Lenders having at least 66-2/3% of the Commitments
(provided that, for purposes hereof, neither the
Borrower, nor any of its Affiliates, if a Lender, shall
be included in (i) the Lenders holding such amount of
the Advances or having such amount of the Commitments
or (ii) determining the aggregate unpaid principal
amount of the Advances or the total Commitments; and
provided, further, no Lender which shall have failed to
fund its pro rata share of any Advance requested by the
Borrower or any Swing Line Loan as requested by the
Administrative Agent which such Lender is obligated to
fund under the terms of this Agreement shall be
included in (i) the Lenders holding such amount of the
Advances or having such amount of the Commitments or
(ii) determining the aggregate unpaid principal amount
of the Advances or the total Commitments for so long as
such failure has not been cured).
"Management Contracts" has the meaning specified
in Section 3.01(c).
"Margin" means: (1) with respect to Eurodollar
Rate Advances: (A) 0.95% per annum with respect to any
Eurodollar Rate Advance outstanding as of any date of
determination prior to the date (the "Initial Rate
Adjustment Date") occurring six (6) months after the
Effective Date; provided, however, such margin shall be
1.10% per annum for any time during such period that
the Borrower's Leverage Ratio was equal to or greater
than 4.00 to 1.00 or (B) with respect to any Eurodollar
Rate Advance outstanding on or after the Initial Rate
Adjustment Date, the margin percentages for each
Eurodollar Rate Advance determined in accordance with
Section 2.17, and (2) with respect to Base Rate
Advances, the margin percentages for each Base Rate
Advance determined in accordance with Section 2.17.
"Material Adverse Effect" means (i) a material
adverse effect upon the business, condition (financial
or otherwise), operations, performance, properties,
assets or prospects of the Borrower and its
Subsidiaries, taken as a whole, or (ii) a material
adverse effect on the ability of the Borrower or any
Material Subsidiary to perform, or of the
Administrative Agent, Swing-Line Bank or Lenders to
enforce, the Obligations.
"Material Subsidiary" means those Subsidiaries of
the Borrower listed on SCHEDULE 4.01(B) and any
Subsidiary of the Borrower hereafter acquired or
created which accounts for more than five percent (5%)
of either consolidated assets or Consolidated Net
Income of the Borrower and its Subsidiaries, determined
as of the end of the most recent fiscal quarter and for
the four fiscal quarter period then ended, provided
that for purposes of Section 6.01, "Material
Subsidiary" shall include any Subsidiary Guarantor.
"MCIL" means Motor Coach Industries Limited, a
Canada corporation.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a "multiemployer plan"
as defined in Section 4001(a)(3) of ERISA to which the
Borrower or any ERISA Affiliate is making, or is
obligated to make, contributions or has within any of
the preceding six plan years been obligated to make or
accrue contributions.
"Multiple Employer Plan" means a single employer
plan, as defined in Section 4001(a)(15) of ERISA, which
(i) is maintained for employees of the Borrower or an
ERISA Affiliate and at least one Person other than the
Borrower and its ERISA Affiliates or (ii) was so
maintained and in respect of which the Borrower or an
ERISA Affiliate could have liability under Section
4063, 4064 or 4069 of ERISA in the event such plan has
been or were to be terminated.
"NAIC" means the National Association of Insurance
Commissioners.
"Net Cash Proceeds" means, with respect to any
Asset Sale or Financing by any Person, (a) cash
(freely convertible into Dollars) received by such
Person or any Subsidiary of such Person from such Asset
Sale (including cash received as consideration for the
assumption or incurrence of liabilities incurred in
connection with or in anticipation of such Asset Sale)
or Financing, after (i) provision for all income or
other taxes measured by or resulting from such Asset
Sale, (ii) payment of all brokerage commissions and
other fees and expenses related to such Asset Sale or
Financing, and (iii) all amounts used to repay Debt
secured by a Lien on any asset disposed of in such
Asset Sale or which is or may be required (by the
express terms of the instrument governing such Debt) to
be repaid in connection with such Asset Sale (including
payments made to obtain or avoid the need for the
consent of any holder of such Debt); and (b) cash
payments in respect of any Debt, Equity Interest or
other consideration received by such Person or any
Subsidiary of such Person from such Asset Sale upon
receipt of such cash payments by such Person or such
Subsidiary.
"Non-Recurring Financing Fees" means any consent
fees, up-front fees, facility fees, amendment fees or
other fees paid by the Borrower once (as opposed to on
a scheduled, recurring basis) in connection with the
financing provided under this Agreement, the Senior
Notes and other financing arrangements.
"Note" means (i) any Note, substantially in the
form of EXHIBIT C-1, executed and delivered by the
Borrower pursuant to Section 2.15(d) to evidence
Advances other than in respect of Swing Line Loans and
(ii) a promissory note ("Swing Line Note"), in
substantially the form of EXHIBIT C-2 hereto, executed
and delivered by the Borrower pursuant to Section 2.03
to evidence the Swing Line Loans.
"Notice of Borrowing" has the meaning specified in
Section 2.02(a).
"Notice of Conversion/Continuation" has the
meaning specified in Section 2.10.
"Obligations" means all obligations of every
nature of the Borrower from time to time owed to the
Administrative Agent, the Swing Line Bank, the
Arranger, the Lenders, any Indemnitee or any of them
under the Loan Documents, whether for principal,
interest, fees, expenses, indemnification or otherwise.
"PBGC" means the U.S. Pension Benefit Guaranty
Corporation.
"Pension Plan" means a Single Employer Plan or a
Multiple Employer Plan or both.
"Permitted Encumbrances" means the following types
of Liens:
(i) Liens for taxes, assessments or
governmental charges or claims the payment of
which is not, at the time, required by Section
5.01(b), other than any Lien imposed pursuant to
Section 401(a)(29) or 412(n) of the Internal
Revenue Code or by any statutory provisions under
ERISA;
(ii) statutory Liens of landlords and Liens
of carriers, warehousemen, mechanics and
materialmen and other Liens imposed by law
incurred in the ordinary course of business for
sums not yet delinquent or being contested in good
faith, if such reserve or other appropriate
provision, if any, as shall be required by GAAP
shall have been made therefor;
(iii) Liens incurred or deposits made in the
ordinary course of business, which do not
adversely affect the use or (in any significant
manner) the value of the property encumbered
thereby, in connection with workers' compensation,
unemployment insurance and other types of social
security, or to secure payment of charged back
amounts under merchant bank card or credit card
arrangements, or to secure the performance of
tenders, statutory obligations, surety and appeal
bonds, bids, leases, government contracts, trade
contracts, performance, bid, warranty and return-
of-money bonds and other similar obligations
(exclusive of obligations for the payment of
borrowed money); provided that no UCC-1 financing
statement, mortgage or similar instrument or
document shall be filed or recorded in connection
with any such Lien, except that lessors of
personal property may file protective UCC-1
financing statements solely covering the property
being leased;
(iv) any attachment or judgment Lien not
constituting an Event of Default under Section
6.01;
(v) leases or subleases granted to others
not interfering in any material respect with the
ordinary conduct of the business of the Borrower
or any of its Subsidiaries;
(vi) easements, rights-of-way, restrictions,
minor defects, encroachments or irregularities in
title and other similar charges or encumbrances
not interfering in any material respect with the
ordinary conduct of the business of the Borrower
or any of its Subsidiaries; and
(vii) any interest or title of a lessor or
sublessor under any lease not prohibited by this
Agreement.
"Person" means an individual, partnership,
corporation, business trust, joint stock company,
trust, unincorporated association, joint venture or
other entity, or a government or any political
subdivision or agency thereof.
"Potential Event of Default" means a condition or
event which, after notice or lapse of time or both,
would constitute an Event of Default if that condition
or event were not cured or removed within any
applicable grace or cure period.
"Prime Rate" means the rate of interest announced
by NBD Bank from time to time as its prime rate,
changing when and as said prime rate changes.
"Residual Value Guaranties" means any agreement
entered into by the Borrower or any of its Subsidiaries
to promote the sales of any bus or coach pursuant to
which the Borrower or any of its Subsidiaries is
guarantying at some future time any minimum value
(which may be determined by a formula) of a bus or
coach as specified in such agreement, the terms and
provisions of which agreement are consistent with the
past practices and policies of the Borrower and its
Subsidiaries prior to the date of this Agreement.
"Restricted Junior Payment" means (i) any dividend
or other distribution, direct or indirect, on account
of any shares of any class of stock of the Borrower or
any Subsidiary of the Borrower that is not, directly or
indirectly, wholly-owned by the Borrower now or
hereafter outstanding, except a dividend payable solely
in shares of that class of stock to the holders of that
class, (ii) any redemption, retirement, sinking fund or
similar payment, purchase or other acquisition for
value, direct or indirect, of any shares of any class
of stock of the Borrower or any Subsidiary of the
Borrower that is not, directly or indirectly, wholly-
owned by the Borrower now or hereafter outstanding,
(iii) any payment made to retire, or to obtain the
surrender of, any outstanding warrants, options or
other rights to acquire shares of any class of stock of
the Borrower or any Subsidiary of the Borrower that is
not, directly or indirectly, wholly-owned by the
Borrower now or hereafter outstanding and (iv) any
payment or prepayment of principal of, premium, if any,
or interest on, or redemption, purchase, retirement,
defeasance (including in-substance or legal
defeasance), sinking fund or similar payment with
respect to any debt owed to a Person other than the
Borrower or any of its Subsidiaries that is by its
terms subordinated to the Obligations.
"SEC" means the Securities and Exchange Commission
and any successor agency.
"Senior Notes" means the 9.02% Senior Notes due
November 15, 2002 issued by the Borrower in the
aggregate principal amount of $125,000,000 pursuant to
the Note Agreement dated as of November 15, 1994 among
the Borrower and the purchasers named therein, as such
Note Agreement has been amended as of the Effective
Date and as amended or modified from time to time
thereafter, provided that no such amendment or
modification shall accelerate any amortization of the
outstanding principal amount thereof.
"Single Employer Plan" means a single employer
plan, as defined in Section 4001(a)(15) of ERISA, which
(i) is maintained for employees of the Borrower or any
ERISA Affiliate and no Person other than the Borrower
and its ERISA Affiliates or (ii) was so maintained and
in respect of which the Borrower or an ERISA Affiliate
could have liability under Section 4062 or 4069 of
ERISA in the event such plan has been or were to be
terminated.
"Solvent" means, with respect to any Person, that
as of the date of determination (i) the then fair
saleable value of the property of such Person as a
going concern is (y) greater than the total amount of
liabilities (including anticipated Contingent
Obligations and other contingent liabilities only to
the extent of the probable liability with respect to
such Contingent Obligations and other contingent
liabilities) of such Person and (z) greater than the
amount that will be required to pay the probable
liabilities of such Person's then existing debts as
they become absolute and matured; (ii) such Person's
capital is not unreasonably small in relation to its
business or any contemplated or undertaken transaction;
and (iii) such Person does not intend to incur, or
believe that it will incur, debts beyond its ability to
pay such debts as they become due.
"S&P" means Standard & Poor's Corporation.
"Subsidiary" of any Person means any corporation,
limited liability company, association, partnership or
other business entity of which at least 50% of the
total voting power of shares of stock, membership
interests or other securities entitled to vote in the
election of directors, managers or trustees thereof is
at the time owned or controlled, directly or
indirectly, by such Person or one or more of the other
Subsidiaries of that Person or a combination thereof;
provided that Nanjing Starley Transportation Company
Limited, a limited liability Chinese and foreign joint
venture organized under the laws of China, shall not be
deemed to be a Subsidiary of the Borrower for purposes
of this Agreement.
"Subsidiary Guarantors" means each Subsidiary of
the Borrower that is identified as a Subsidiary
Guarantor on SCHEDULE 4.01(B) together with each Person
becoming a Subsidiary of the Borrower after the date
hereof that is required to guaranty the Obligations
pursuant to Section 5.02(e)(ii).
"Swing Line Bank" means NBD Bank or any other
Lender as a successor Swing Line Bank.
"Swing Line Commitment" means the obligation of
the Swing Line Bank to make Swing Line Loans up to a
maximum principal amount of $5,000,000 at any one time
outstanding.
"Swing Line Loan" means an Advance made available
to the Borrower by the Swing Line Bank pursuant to
Section 2.03 hereof.
"Termination Date" means October 1, 1999 or the
earlier date of termination in whole of the Commitments
pursuant to Section 2.06 or 6.01.
"TMO Holdings" means TMO Holdings of Canada, Ltd.,
a Canada corporation and a wholly-owned Subsidiary of
the Borrower.
"Total Utilization of Commitments" means, as at
any date of determination, the sum of (i) the aggregate
principal amount of all outstanding Advances
(including, without limitation, Swing Line Loans) plus
(ii) the Letter of Credit Usage.
"Trade-In Value Guaranties" means any agreement
entered into by the Borrower or any of its Subsidiaries
to promote the sales of any bus or coach pursuant to
which the Borrower or any of its Subsidiaries is
obligated to accept such bus or coach for trade-in in
connection with the sale of a bus or coach at a value
specified in such agreement (which may be determined by
a formula) regardless of the actual fair market value
of such bus or coach at the time of such trade-in, the
terms and provisions of which agreement are consistent
with the past practices and policies of the Borrower
and its Subsidiaries prior to the date of this
Agreement.
"Type" means, with reference to an Advance under
Section 2.01, a Base Rate Advance or a Eurodollar Rate
Advance.
"Withdrawal Liability" has the meaning given such
term under Part I of Subtitle E of Title IV of ERISA.
SECTION 1.2. COMPUTATION OF TIME PERIODS. In this
Agreement in the computation of periods of time from a
specified date to a later specified date, the word "from"
means "from and including" and the words "to" and "until"
each means "to but excluding."
SECTION 1.3. ACCOUNTING TERMS. All accounting terms
not specifically defined herein shall be construed in
accordance with GAAP. If at any time the computations for
determining compliance with financial ratios, financial
covenants or provisions relating thereto utilize generally
accepted accounting principles different than those then
being utilized in the financial statements being delivered
to the Lenders, such financial statements shall be
accompanied by a reconciliation statement.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.1. THE ADVANCES. Subject to the terms and
conditions of this Agreement and in reliance upon the
representations and warranties of the Borrower herein set
forth, each Lender severally agrees to lend to the Borrower
from time to time during the period on and after the
Effective Date to but excluding the Termination Date,
Advances in an aggregate outstanding principal amount not at
any time exceeding the amount set opposite such Lender's
name on the signature pages hereof or, if such Lender has
entered into any Assignment and Acceptance, set forth for
such Lender in the Register maintained by the Administrative
Agent pursuant to Section 8.07(c), as such amount may be
reduced pursuant to Section 2.06 (such Lender's
"Commitment"). Each Borrowing shall be in an aggregate
amount not less than $5,000,000 (except that a Borrowing
comprised of Base Rate Advances shall be in an aggregate
amount not less than $1,000,000) or an integral multiple of
$1,000,000 in excess thereof and shall consist of Advances
of the same Type made on the same day by the Lenders ratably
according to their respective Commitments. Within the
limits of each Lender's Commitment, the Borrower may from
time to time borrow, prepay pursuant to Section 2.07(c) and
reborrow under this Section 2.01.
Anything contained in this Agreement to the
contrary notwithstanding, the Borrower shall not request any
Advance that would, upon giving effect thereto, cause the
Total Utilization of Commitments to exceed the aggregate
Commitments of the Lenders.
SECTION 2.2. MAKING THE ADVANCES.
(a) Each Borrowing shall be made on notice, given
not later than (x) 12:00 noon (Detroit time) on the Business
Day that is the date of a proposed Borrowing consisting of
Base Rate Advances and (y) 12:00 noon (Detroit time) on the
third Business Day prior to the date of a proposed Borrowing
consisting of Eurodollar Rate Advances, by the Borrower to
the Administrative Agent, which shall give to each Lender
prompt notice thereof by telecopier, telex or cable. Each
such notice of borrowing (a "Notice of Borrowing") shall be
by telephone (confirmed in writing) or by telecopier, telex
or cable, confirmed immediately in writing, in substantially
the form of EXHIBIT D hereto, specifying therein the
requested (i) date of such Borrowing, (ii) Type of Advances
comprising such Borrowing, (iii) aggregate amount of such
Borrowing, and (iv) in the case of a Borrowing comprised of
Eurodollar Rate Advances, the initial Interest Period for
each such Advance. The Borrower may, subject to the
conditions herein provided, borrow more than one Borrowing
on any Business Day. Each Lender shall, before 12:00 noon
(Detroit time) or, in the case of a Base Rate Advance as to
which the Borrower delivers Notice of Borrowing on the date
of such Borrowing, 2:00 P.M. (Detroit time) on the date of
such Borrowing, make available for the account of its
Applicable Lending Office to the Administrative Agent at its
address referred to in Section 8.02, in same day funds, such
Lender's ratable portion of such Borrowing. After the
Administrative Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in
Article III, the Administrative Agent will make such funds
available to the Borrower at the Administrative Agent's
aforesaid address.
(b) Anything in clause (a) above to the contrary
notwithstanding,
(i) the Borrower may not select Eurodollar
Rate Advances for (y) any Borrowing or with respect to
the Conversion or continuance of any Borrowing if the
aggregate amount of such Borrowing or such Conversion
or continuance is less than $5,000,000 or (z) any
Borrowing on the Effective Date;
(ii) if any Lender shall, at least one
Business Day before the date of any requested
Borrowing, notify the Administrative Agent that the
introduction of or any change in or in the
interpretation of any law or regulation makes it
unlawful, or that any central bank or other
governmental authority asserts that it is unlawful, for
such Lender or its Eurodollar Lending Office to perform
its obligations hereunder to make Eurodollar Rate
Advances or to fund or maintain Eurodollar Rate
Advances hereunder, the Commitment of such Lender to
make Eurodollar Rate Advances or to Convert all or any
portion of Base Rate Advances shall forthwith be
suspended until the Administrative Agent shall notify
the Borrower that such Lender has determined that the
circumstances causing such suspension no longer exist
and such Lender's then outstanding Eurodollar Rate
Advances, if any, shall be Base Rate Advances; to the
extent that such affected Eurodollar Rate Advances
become Base Rate Advances, all payments of principal
that would have been otherwise applied to such
Eurodollar Rate Advances shall be applied instead to
such Lender's Base Rate Advances; provided that if
Majority Lenders are subject to the same illegality or
assertion of illegality, then the right of the Borrower
to select Eurodollar Rate Advances for such Borrowing
or any subsequent Borrowing or to Convert all or any
portion of Base Rate Advances shall forthwith be
suspended until the Administrative Agent shall notify
the Borrower that the circumstances causing such
suspension no longer exist, and each Advance comprising
such Borrowing shall be a Base Rate Advance;
(iii) if the Majority Lenders shall, at
least one Business Day before the date of any requested
Borrowing, notify the Administrative Agent that the
Adjusted Eurodollar Rate for Eurodollar Rate Advances
comprising such Borrowing will not adequately reflect
the cost to such Majority Lenders of making, funding or
maintaining their respective Eurodollar Rate Advances
for such Borrowing, the right of the Borrower to select
Eurodollar Rate Advances for such Borrowing or any
subsequent Borrowing shall be suspended until the
Administrative Agent shall notify the Borrower and the
Lenders that the circumstances causing such suspension
no longer exist, and each Advance comprising such
Borrowing shall be a Base Rate Advance.
(c) Each Notice of Borrowing shall be irrevocable
and binding on the Borrower. In the case of any Borrowing
which the related Notice of Borrowing specifies is to be
comprised of Eurodollar Rate Advances, the Borrower shall
indemnify each Lender against any loss, cost or expense
incurred by such Lender as a result of any failure to
fulfill on or before the date specified in such Notice of
Borrowing for such Borrowing the applicable conditions set
forth in Article III, including, without limitation, any
loss, costs or expense incurred by reason of the liquidation
or reemployment of deposits or other funds acquired by such
Lender to fund the Advance to be made by such Lender as part
of such Borrowing when such Advance, as a result of such
failure, is not made on such date.
(d) Unless the Administrative Agent shall have
received notice from a Lender prior to the date of any
Borrowing that such Lender will not make available to the
Administrative Agent such Lender's ratable portion of such
Borrowing, the Administrative Agent may assume that such
Lender has made such portion available to the Administrative
Agent on the date of such Borrowing in accordance with
clause (a) of this Section 2.02 and the Administrative Agent
may, in reliance upon such assumption, make available to the
Borrower on such date a corresponding amount. If and to the
extent that such Lender shall not have so made such ratable
portion available to the Administrative Agent, such Lender
and the Borrower severally agree to repay to the
Administrative Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the
date such amount is made available to the Borrower until the
date such amount is repaid to the Administrative Agent, at
(i) in the case of the Borrower, the interest rate
applicable at the time to Advances comprising such Borrowing
and (ii) in the case of such Lender, the Federal Funds Rate.
If such Lender shall repay to the Administrative Agent such
corresponding amount, such amount so repaid shall constitute
such Lender's Advance as part of such Borrowing for purposes
of this Agreement.
(e) The failure of any Lender to make any Advance
to be made by it as part of any Borrowing shall not relieve
any other Lender of its obligation, if any, hereunder to
make its Advance on the date of such Borrowing, but no
Lender shall be responsible for the failure of any other
Lender to make the Advance to be made by such other Lender
on the date of any Borrowing.
SECTION 2.3. SWING LINE LOANS. (a) Amount of Swing
Line Loans. Upon the satisfaction of the conditions
precedent set forth in Section 3.01 and 3.02, from and
including the Effective Date and prior to the Termination
Date, the Swing Line Bank agrees, on the terms and
conditions set forth in this Agreement, to make loans to the
Borrower from time to time, in Dollars, in an amount not to
exceed the Swing Line Commitment (each, individually, a
"SWING LINE LOAN" and collectively, the "SWING LINE LOANS");
provided, however, at no time shall the Total Utilization of
Commitments exceed the aggregate Commitment of the Lenders
and provided, further, that at no time shall the sum of (a)
the outstanding amount of the Swing Line Loans, plus (b) the
outstanding amount of Advances made by the Swing Line Bank
pursuant to Section 2.01 (after giving effect to any
concurrent repayment of Advances), exceed the Swing Line
Bank's Commitment at such time. Subject to the terms of
this Agreement, the Borrower may borrow, repay and reborrow
Swing Line Loans at any time prior to the Termination Date.
(b) Borrowing Notice. The Borrower shall deliver to
the Administrative Agent and the Swing Line Bank a Notice of
Borrowing, signed by it, not later than 12:00 noon (Detroit
time) on the Business Day that is the date of the proposed
Swing Line Loan (which shall be a Business Day) specifying
the aggregate amount of the requested Swing Line Loan. The
Swing Line Loans shall at all times be Base Rate Advances,
which shall be an amount not less than $500,000. The
Administrative Agent shall promptly notify each Lender of
such request.
(c) Making of Swing Line Loans. Promptly after receipt
of the Notice of Borrowing under Section 2.03(b) in respect
of Swing Line Loans, the Administrative Agent shall notify
each Lender by telex or telecopy, or other similar form of
transmission, of the requested Swing Line Loan. Not later
than 3:00 p.m. (Detroit time) on the applicable borrowing
date, the Swing Line Bank shall make available its Swing
Line Loan, in funds immediately available to the
Administrative Agent at its address referred to in
Section 8.02. The Administrative Agent will promptly make
the funds so received from the Swing Line Bank available to
the Borrower at the Administrative Agent's aforesaid
address.
(d) Repayment of Swing Line Loans. The Swing Line
Loans shall be evidenced by the Swing Line Note, and each
Swing Line Loan shall be paid in full by the Borrower on or
before the fifth Business Day after the borrowing date for
such Swing Line Loan. The Borrower may at any time pay,
without penalty or premium, all outstanding Swing Line Loans
or, in a minimum amount of $500,000, any portion of the
outstanding Swing Line Loans, upon notice to the
Administrative Agent and the Swing Line Bank. In addition,
the Administrative Agent (i) may at any time in its sole
discretion with respect to any outstanding Swing Line Loan,
or (ii) shall on the fifth Business Day after the Borrowing
Date of any Swing Line Loan, require each Lender (including
the Swing Line Bank) to make an Advance in the amount of
such Lender's ratable share of such Swing Line Loan, for the
purpose of repaying such Swing Line Loan. Not later than
2:00 p.m. (Detroit time) on the date of any notice received
pursuant to this Section 2.03(d), each Lender shall make
available its required Advance or Advances, in funds
immediately available to the Administrative Agent at its
address. Advances made pursuant to this Section 2.03(d)
shall initially be Base Rate Advances and thereafter may be
continued as Base Rate Advances or converted into Eurodollar
Rate Advances in the manner provided in Section 2.10 and
subject to the other conditions and limitations therein set
forth and set forth in this Article II. Unless a Lender
shall have notified the Swing Line Bank, prior to its making
any Swing Line Loan, that any applicable condition precedent
set forth in Sections 3.01 and 3.02 had not then been
satisfied, such Lender's obligation to make Advances
pursuant to this Section 2.03(d) to repay Swing Line Loans
shall be unconditional, continuing, irrevocable and absolute
and shall not be affected by any circumstances, including,
without limitation, (A) any set-off, counterclaim,
recoupment, defense or other right which such Lender may
have against the Administrative Agent, the Swing Line Bank
or any other Person, (B) the occurrence or continuance of an
Event of Default or Potential Event of Default, (C) any
adverse change in the condition (financial or otherwise) of
the Borrower, or (D) any other circumstances, happening or
event whatsoever. In the event that any Lender fails to
make payment to the Administrative Agent of any amount due
under this Section 2.03(d), the Administrative Agent shall
be entitled to receive, retain and apply against such
obligation the principal and interest otherwise payable to
such Lender hereunder until the Administrative Agent
receives such payment from such Lender or such obligation is
otherwise fully satisfied. In addition to the foregoing, if
for any reason any Lender fails to make payment to the
Administrative Agent of any amount due under this Section
2.03(d), such Lender shall be deemed, at the option of the
Agent, to have unconditionally and irrevocably purchased
from the Swing Line Bank, without recourse or warranty, an
undivided interest and participation in the applicable Swing
Line Loan in the amount of such Advance, and such interest
and participation may be recovered from such Lender together
with interest thereon at the Federal Funds Rate for each day
during the period commencing on the date of demand and
ending on the date such amount is received. On the
Termination Date, the Borrower shall repay in full the
outstanding principal balance of the Swing Line Loans.
SECTION 2.4. LETTERS OF CREDIT.
(a) Letters of Credit. Subject to the terms and
conditions of this Agreement and in reliance upon the
representations and warranties of the Borrower set forth
herein, the Borrower may, in accordance with the provisions
of this Section 2.04(a), from time to time on and after the
Effective Date, request the issuance of Letters of Credit
for the account of the Borrower. The Borrower may select
any Lender to be the Issuing Lender in relation to such
Letter of Credit; provided that such Lender is reasonably
satisfactory to the Administrative Agent; and provided
further that each Lender may in its discretion decline to
issue any Letter of Credit and NBD Bank shall be the Issuing
Lender if other Lenders selected by the Borrower decline to
issue such Letter of Credit or if no other Lender selected
by the Borrower is reasonably satisfactory to the
Administrative Agent. Such Letters of Credit shall be
issued solely for the purpose of supporting the obligations
of the Borrower and its Subsidiaries. Issuances of Letters
of Credit shall be subject to the following limitations:
(i) The Borrower shall not request any
Letter of Credit if, after giving effect to such
issuance, (a) the Total Utilization of Commitments
would exceed the aggregate amount of Commitments as
then in effect or (b) the Letter of Credit Usage would
exceed $35,000,000; and
(ii) In no event shall any Lender take any
action to issue, reissue, amend or permit the extension
of any Letter of Credit if such action would result in:
(x) any Letter of Credit having an expiration date
later than the Termination Date in effect at the time
of issuance, reissuance, amendment or extension
(automatic or otherwise) thereof; (y) subject to the
foregoing clause (x), any Letter of Credit having an
expiration date more than one year after its date of
issuance; provided that subject to the foregoing clause
(x), this clause (y) shall not prevent any Issuing
Lender from agreeing that its Letter of Credit will
automatically be extended annually for a period not to
exceed one year if such Issuing Lender does not cancel
such extension.
It shall be a condition precedent to the issuance
of any Letter of Credit in accordance with the provisions of
this Section 2.04 that each condition set forth in
Section 3.03 shall have been satisfied.
Immediately upon the issuance of each Letter of
Credit, each Lender shall be deemed to, and hereby agrees
to, have irrevocably purchased from the Issuing Lender a
participation in such Letter of Credit and drawings
thereunder in an amount equal to such Lender's ratable share
(based on the respective Commitments of the Lenders) of the
maximum amount which is or at any time may become available
to be drawn thereunder.
(b) Notice of Issuance. Whenever the Borrower
desires the issuance of a Letter of Credit, it shall deliver
to the Issuing Lender and the Administrative Agent a Notice
of Issuance of Letter of Credit in the form of EXHIBIT E
hereto no later than 1:00 P.M. (Detroit time) at least five
Business Days or such shorter period as may be agreed to by
the Issuing Lender in any particular instance, in advance of
the proposed date of issuance. Each Notice of Issuance of
Letter of Credit shall specify (i) the proposed Issuing
Lender for the requested Letter of Credit, (ii) the proposed
date of issuance (which shall be a Business Day), (iii) the
face amount of the Letter of Credit, (iv) the expiration
date of the Letter of Credit, (v) the name and address of
the beneficiary, (vi) a summary of the purpose and the
verbatim text of such Letter of Credit, and (vii) a precise
description of the documents and the proposed text of any
certificate to be presented by the beneficiary which, if
presented by the beneficiary prior to the expiration date of
the Letter of Credit, would require the Issuing Lender to
make payment under the Letter of Credit; provided that the
Issuing Lender, in its sole reasonable judgment, may require
changes in any such documents and certificates; and provided
further that no Letter of Credit shall require payment
against a conforming draft to be made thereunder on the same
Business Day that such draft is presented if such
presentation is made after 11:00 A.M. (Detroit time) on such
Business Day. In determining whether to pay under any
Letter of Credit, the Issuing Lender shall be responsible
only to determine that the documents and certificates
required to be delivered under that Letter of Credit have
been delivered and that they comply on their face with the
requirements of that Letter of Credit.
(c) Payment of Amounts Drawn Under Letters of
Credit. In the event of any drawing under any Letter of
Credit, the Issuing Lender shall promptly notify the
Borrower and the Administrative Agent, and the Borrower
shall reimburse the Issuing Lender on the date on which such
drawing is honored in an amount in same day funds equal to
the amount of such drawing; provided that, anything
contained in this Agreement to the contrary notwithstanding,
(i) unless the Borrower shall have notified the
Administrative Agent prior to 11:00 A.M. (Detroit time) on
the Business Day immediately prior to the date of such
drawing that the Borrower intends to reimburse the Issuing
Lender for the amount of such drawing with funds other than
the proceeds of an Advance, the Borrower shall be deemed to
have given a Notice of Borrowing to the Administrative Agent
requesting Lenders to make Base Rate Advances on the date
such drawing is honored in an amount equal to the amount of
such drawing, and (ii) subject to satisfaction or waiver of
the conditions specified in Section 3.02, the Lenders shall,
on the date of such drawing, make such Base Rate Advances in
the aggregate amount of such drawing, the proceeds of which
shall be applied directly by the Administrative Agent to
reimburse the Issuing Lender for the amount of such drawing;
and provided further that, if any Base Rate Advances are
required to be made and for any reason proceeds of such
Advances are not received by the Issuing Lender on such date
in an amount equal to the amount of such drawing, the
Borrower shall reimburse the Issuing Lender, on the Business
Day immediately following the date of such drawing, in an
amount in same day funds (and in the same currency as the
unreimbursed drawing) equal to the excess of the amount of
such drawing over the amount of such Advances which are so
received, plus accrued interest on such amount at the rate
set forth in Section 2.04(e).
(d) Payment by Lenders with Respect to Letters of
Credit. If the Borrower shall fail to reimburse the Issuing
Lender as provided in Section 2.04(c) in an amount equal to
the amount of any drawing honored by the Issuing Lender
under a Letter of Credit, the Issuing Lender shall promptly
notify the Administrative Agent which shall promptly notify
each Lender of the unreimbursed amount of such drawing and
of such Lender's respective participation therein, which
participation shall be equal to such Lender's ratable share
(determined based on the respective Commitments of the
Lenders) of the unreimbursed amount of such drawing. Each
Lender shall make available to the Issuing Lender an amount
equal to its respective participation in same day funds and
in the same currency as the drawing, at the office of the
Issuing Lender specified in such notice, not later than 1:00
P.M. (Detroit time) on the Business Day after the date
notified by the Administrative Agent. If any Lender fails
to make available to the Issuing Lender the amount of such
Lender's participation in such Letter of Credit as provided
in this Section 2.04(d), the Issuing Lender shall be
entitled to recover such amount on demand from such Lender
together with interest at the customary rate set by the
Issuing Lender for the correction of errors among banks for
three Business Days and thereafter at the Alternate Base
Rate. Nothing in this Section 2.04 shall be deemed to
prejudice the right of any Lender to recover from the
Issuing Lender any amounts made available by such Lender to
the Issuing Lender pursuant to this Section 2.04 if it is
determined by a court of competent jurisdiction that the
payment with respect to a Letter of Credit by such Issuing
Lender in respect of which payment was made by such Issuing
Lender constituted Gross Negligence or willful misconduct on
the part of such Issuing Lender. The Issuing Lender shall
deliver to the Administrative Agent, for distribution to
each other Lender which has paid all amounts payable by it
under this Section 2.04(d) with respect to any Letter of
Credit issued by the Issuing Lender, such other Lender's
ratable share (based on the respective Commitments of the
Lenders) of all payments received by the Issuing Lender from
the Borrower in reimbursement of drawings honored by the
Issuing Lender under such Letter of Credit when such
payments are received. Notwithstanding anything to the
contrary herein, each Lender which has paid all amounts
payable by it under this Section 2.04(d) shall have a direct
right to reimbursement of such amounts from the Borrower,
subject to the procedures for reimbursing Lenders set forth
in this Section 2.04.
(e) Compensation. The Borrower agrees to pay,
without duplication, the following amounts to the Issuing
Lender or the Administrative Agent, as the case may be, with
respect to each Letter of Credit issued hereunder:
(i) with respect to each Letter of Credit,
an issuance fee payable on the date of issuance to the
Issuing Lender for the account of the Issuing Lender
equal to the greater of (x) 0.125% of the face amount
of such Letter of Credit and (y) $500, in immediately
available funds;
(ii) with respect to each Letter of Credit,
a letter of credit fee payable to the Administrative
Agent for the ratable distribution to the Lenders equal
to the applicable per annum rate set forth below
calculated on the basis of a 360-day year and the
actual number of days elapsed on the maximum aggregate
daily amount available for drawing under the
outstanding Letters of Credit, such letter of credit
fee to be paid to the Administrative Agent quarterly in
arrears on the last day of each March, June, September
and December of each year and on the Termination Date.
The applicable letter of credit fee shall be determined
in accordance with Section 2.17; provided however for
the period from the Effective Date until the Initial
Rate Adjustment Date such letter of credit fee shall be
0.95% per annum; provided further that the Level 4 rate
shall be applicable at any time during such period that
the Leverage Ratio is equal to or greater than 4.0 to
1.0;
(iii) with respect to drawings made under
any Letter of Credit, interest, payable to the Issuing
Lender on demand in immediately available funds, on the
amount paid by the Issuing Lender in respect of each
such drawing from the date of the drawing through the
date such amount is reimbursed by the Borrower (but
only if not reimbursed when due) at a rate which is 2%
per annum in excess of the rate of interest otherwise
payable under this Agreement for Base Rate Advances;
and
(iv) with respect to the issuance, amendment
or transfer of each Letter of Credit and each drawing
made thereunder, documentary and processing charges in
accordance with the Issuing Lender's standard schedule
for such charges in effect at the time of such
issuance, amendment, transfer or drawing, as the case
may be.
Promptly upon receipt by the Administrative Agent
of any amount described in clause (ii) of this Section
2.04(e), the Administrative Agent shall distribute to each
Lender its ratable share of such amount based on the
respective Commitments of the Lenders.
(f) Obligations Absolute. The obligation of the
Borrower to reimburse the Issuing Lender for drawings made
under the Letters of Credit shall be unconditional and
irrevocable and shall be paid strictly in accordance with
the terms of this Agreement under all circumstances
including, without limitation, the following circumstances:
(i) any lack of validity or enforceability
of any Letter of Credit;
(ii) the existence of any claim, set-off,
defense or other right the Borrower may have at any
time against a beneficiary or any transferee of any
Letter of Credit (or any persons or entities for whom
any such transferee may be acting), the Issuing Lender
or any other Person, whether in connection with this
Agreement, the transactions contemplated herein or any
unrelated transaction (including any underlying
transaction between the Borrower or any of its
Subsidiaries and the beneficiary for which the Letter
of Credit was procured);
(iii) any draft, demand, certificate or any
other document presented under any Letter of Credit
proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein
being untrue or inaccurate in any respect;
(iv) payment by the Issuing Lender under any
Letter of Credit against presentation of a demand,
draft or certificate or other document which does not
comply with the terms of such Letter of Credit;
(v) any other circumstance or happening
whatsoever, which is similar to any of the foregoing;
or
(vi) the fact that an Event of Default or a
Potential Event of Default shall have occurred and be
continuing.
(g) Additional Payments. If by reason of (a) any
change in applicable law, regulation, rule, decree or
regulatory requirement or any change in the interpretation
or application by any judicial or regulatory authority of
any law, regulation, rule, decree or regulatory requirement
made after the date hereof or (b) compliance by the Issuing
Lender or any other Lender with any direction, request or
requirement (whether or not having the force of law) of any
governmental or monetary authority made after the date
hereof including, without limitation, Regulation D:
(i) any reserve, deposit or similar
requirement is or shall be applicable, imposed or
modified in respect of any Letters of Credit issued by
the Issuing Lender or participations therein purchased
by any Lender; or
(ii) there shall be imposed on any Issuing
Lender or any other Lender any other condition
regarding this Section 2.04, any Letter of Credit or
any participation therein;
and the result of the foregoing is to directly or indirectly
increase the cost to the Issuing Lender or any other Lender
of issuing, making or maintaining any Letter of Credit or of
purchasing or maintaining any participation therein, or to
reduce the amount receivable in respect thereof by the
Issuing Lender or any other Lender, then and in any such
case the Issuing Lender or such other Lender may, notify the
Borrower, and the Borrower shall pay within ten days of
receipt of notice such amounts as the Issuing Lender or such
other Lender may specify pursuant to the certificate
described below to be necessary to compensate it for such
additional cost or reduced receipt, together with interest
on such amount from the date of such demand until payment in
full thereof at a rate equal at all times to the Alternate
Base Rate per annum plus the applicable Margin in effect
from time to time with respect to Base Rate Advances. The
determination by the Issuing Lender or any other Lender, as
the case may be, of any amount due pursuant to this Section
2.04(g) as set forth in a certificate setting forth the
calculation thereof in reasonable detail, shall, in the
absence of manifest error, be final and conclusive and
binding on all of the parties hereto. An Issuing Lender
which incurs such an increased cost shall give the Borrower
reasonably prompt notice thereof; provided that failure to
give such notice shall not affect the Borrower's obligations
hereunder.
(h) Indemnification; Nature of Issuing Lender's
Duties. In addition to amounts payable as elsewhere
provided in this Section 2.04, the Borrower hereby agrees to
protect, indemnify, pay and save each Issuing Lender
harmless from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses
(including reasonable attorneys' and paralegals' fees) which
such Issuing Lender may incur or be subject to as a
consequence, direct or indirect, of (i) the issuance of any
Letter of Credit, or (ii) the failure of such Issuing Lender
to honor a drawing under any such Letter of Credit as a
result of any act or omission, whether rightful or wrongful,
of any present or future de jure or de facto government or
governmental authority (all such acts or omissions herein
called "Government Acts").
As between an Issuing Lender and the Borrower, the
Borrower assumes all risks of the acts and omissions of, or
misuse of any such Letter of Credit by the beneficiary of
any such Letter of Credit. In furtherance and not in
limitation of the foregoing, the Issuing Lender shall not be
responsible: (i) for the form, validity, sufficiency,
accuracy, genuineness or legal effect of any document
submitted by any party in connection with the application
for and issuance of such Letters of Credit, even if it
should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (ii) for the
validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign any such
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) for failure of
the beneficiary of any such Letter of Credit to comply fully
with conditions required in order to draw upon such Letter
of Credit; (iv) for errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail,
cable, telegraph, telex or otherwise, whether or not they be
in cipher; (v) for errors in interpretation of technical
terms; (vi) for any loss or delay in the transmission or
otherwise of any document required in order to make a
drawing under any such Letter of Credit or of the proceeds
thereof; (vii) for the misapplication by the beneficiary of
any such Letter of Credit of the proceeds of any drawing
under such Letter of Credit; and (viii) for any consequences
arising from causes beyond the control of the Issuing
Lender, including, without limitation, any Government Acts.
None of the above shall affect, impair, or prevent the
vesting of any of an Issuing Lenders's rights or powers
hereunder.
In furtherance and extension and not in limitation
of the specific provisions hereinabove set forth, any action
taken or omitted by any Issuing Lender under or in
connection with Letters of Credit issued by it or the
related certificates, if taken or omitted in good faith and
without Gross Negligence or willful misconduct as determined
by a court of competent jurisdiction, shall not put the
Issuing Lender under any resulting liability to the
Borrower.
Notwithstanding anything to the contrary contained
in this Section 2.04, the Borrower shall not have any
obligation to indemnify any Issuing Lender in respect of any
liability incurred by such Issuing Lender or to reimburse
such Issuing Lender (to the extent reimbursement would
result in a loss to the Borrower) for drawings improperly
honored under a Letter of Credit as the result of the Gross
Negligence or willful misconduct of such Issuing Lender, as
determined in a final judgment by a court of competent
jurisdiction, or out of the wrongful dishonor by the Issuing
Lender of proper demand for payment made under the Letters
of Credit issued by it.
(i) Computation of Fees and Interest. Fees and
interest payable pursuant to this Section 2.04 shall be
computed on the basis of a 360-day year and the actual
number of days elapsed in the period during which it
accrues.
SECTION 2.5. FACILITY FEES; ADMINISTRATIVE AGENT'S AND
ARRANGER'S FEES.
(a) Facility Fee. The Borrower agrees to pay to
the Administrative Agent for the account of each Lender a
facility fee on the daily amount by which such Lender's
Commitment (determined without regard to the amount of
Advances outstanding thereunder and after giving effect to
any reduction thereof pursuant to Section 2.06) exceeds such
Lender's Letter of Credit Exposure from the Effective Date
(in the case of each Lender party hereto as of the Effective
Date) or from the effective date specified in the applicable
Assignment and Acceptance (in the case of any Lender
becoming a Lender after the Effective Date), until the
Termination Date, payable in arrears on the last day of each
March, June, September and December during the term of such
Lender's Commitment, commencing December 31, 1996, and on
the Termination Date, at the rate determined in accordance
with Section 2.17; provided, however, for the period from
the Effective Date until the Initial Rate Adjustment Date
such facility fee will be 0.40% per annum; provided further
that the Level 4 rate shall be applicable at any time during
such period that the Leverage Ratio is equal to or greater
than 4.0 to 1.00.
(b) Administrative Agent's and Arranger's Fees.
The Borrower agrees to pay to the Administrative Agent, for
its own account and for the account of the Arranger, such
fees as may be mutually agreed upon from time to time among
the Borrower, the Administrative Agent and the Arranger.
SECTION 2.6. TERMINATION AND REDUCTION OF THE
COMMITMENTS.
(a) Mandatory Termination. The Commitments of
the Lenders shall immediately terminate if the Advances are
at any time required to be prepaid pursuant to Section
2.07(b)(i).
(b) Optional Reductions. The Borrower shall have
the right, upon at least four Business Days' notice to the
Administrative Agent, to terminate in whole or reduce
ratably in part the unused portions of the respective
Commitments of the Lenders, provided that the aggregate
amount of the Commitments of the Lenders shall not be
reduced to an amount which is less than the aggregate
principal amount of the Total Utilization of Commitments and
provided, further, that each partial reduction shall be in
the aggregate amount of $5,000,000 or an integral multiple
of $1,000,000 in excess thereof.
SECTION 2.7. REPAYMENT AND PREPAYMENT OF ADVANCES.
(a) Mandatory Repayment on Termination Date. The
Borrower shall repay on the Termination Date the outstanding
principal amount of each Advance made by each Lender.
(b) Mandatory Prepayment Upon Occurrence of
Certain Events.
(i) Mandatory Prepayments in Connection with
a Change of Control. If any one of the following
events shall occur:
(A) Dina shall fail to own, directly or
indirectly, all of the issued and outstanding
capital stock of the Borrower;
(B) notice shall have been given under
Section 11.05 of the Indenture dated as of April
30, 1996 among Dina, MCII Holdings (USA), Inc. and
IBJ Schroder Bank & Trust Company, as Trustee,
vesting in the Trustee voting rights relating to
the Capital Stock of the Company, or the Trustee
shall have commenced any action to foreclose on or
otherwise enforce the pledge of the Company's
Capital Stock pursuant to such Indenture; or
(C) during any period of up to 24
consecutive months, commencing after the date of
this Agreement, individuals who at the beginning
of such 24-month (or shorter) period were
directors of the Company or the Borrower shall
cease for any reason to constitute a majority of
the board of directors of the Company or the
Borrower, respectively;
then, and in any such event, the Borrower shall
immediately prepay in full the Advances together with
interest accrued to the date of prepayment, shall cash
collateralize the Letters of Credit in the manner
provided for in Section 6.01 as if an Event of Default
had occurred and the Obligations had been declared
immediately due and payable, and shall reimburse the
Lenders in respect of all amounts that may then be due
pursuant to Section 8.04(b).
(ii) Mandatory Prepayments in Connection with
Over Utilization. The Borrower shall immediately
prepay the Advances at any time that the Total
Utilization of Commitments exceeds the Commitments
(after giving effect to any reduction of the
Commitments pursuant to Section 2.06) in an amount
equal to such excess.
(iii) Other Mandatory Prepayments.
(A) Upon the consummation of any Asset
Sale by the Borrower or any Subsidiary of the
Borrower (other than (1) sales of receivables of
MCI Acceptance Corp. permitted pursuant to Section
5.02(e)(iv) or (2) the sale of inventory, notes
receivable and leases supporting coach financings,
in each case in the ordinary course of business),
except to the extent that the Net Cash Proceeds of
such Asset Sale, when combined with the Net Cash
Proceeds of all such Asset Sales during the
immediately preceding twelve-month period, do not
exceed five percent (5.0%) of the Borrower s net
tangible assets as of the beginning of such
twelve-month period, within three (3) Business
Days after the Borrower's or any of its
Subsidiaries' (i) receipt of any Net Cash Proceeds
from any such Asset Sale, or (ii) conversion to
cash or Cash Equivalents of non-cash proceeds
(whether principal or interest and including
securities, release of escrow arrangements or
lease payments) received from any Asset Sale, the
Borrower shall make a mandatory prepayment of the
Obligations in an amount equal to one hundred
percent (100%) of such Net Cash Proceeds or such
proceeds converted from non-cash to cash or Cash
Equivalents.
(B) Upon the consummation of any
Financing by the Borrower or any Subsidiary of the
Borrower the Net Cash Proceeds of which exceed an
aggregate amount for all such Financings after the
date hereof of $5,000,000, within three (3)
Business Days after the Borrower's or any of its
Subsidiaries' receipt of any Net Cash Proceeds
from such Financing, the Borrower shall make a
mandatory prepayment of the Obligations in an
amount equal to one hundred percent (100%) of such
Net Cash Proceeds and the Commitments shall be
automatically and permanently reduced as of such
date by an amount equal to the amount of such
mandatory prepayment; provided, however, (1) no
such prepayment shall be required in connection
with a refinancing of all or any portion of the
Senior Notes consummated in accordance with the
terms of this Agreement, and (2) if at the time of
receipt of such Net Cash Proceeds the Senior Notes
shall not have been refinanced or all principal
payments on the Senior Notes deferred until at
least ninety-one (91) days after the Termination
Date, the Commitments shall not be permanently
reduced except to the extent that such mandatory
prepayment exceeds $25,000,000 and the Borrower's
availability under the Commitments shall be
suspended in an amount equal to the lesser of the
amount of such mandatory prepayment and
$25,000,000 to provide for availability under the
Commitments when principal payments become due
under the Senior Notes.
(C) Nothing in this
Section 2.07(b)(iii) shall be construed to
constitute the Lenders' consent to any transaction
referred to in clauses (A) and (B) above which is
not expressly permitted by the terms of this
Agreement.
(D) Each mandatory prepayment required
by clauses (A) and (B) of this
Section 2.07(b)(iii) shall be referred to herein
as a "Designated Prepayment." Designated
Prepayments shall be allocated and applied to the
Obligations as follows:
(I) the amount of each Designated
Prepayment shall be applied to repay the
Swing Line Loans; and
(II) following the payment in full
of the Swing Line Loans, the amount of
each Designated Prepayment shall be
applied to repay the other Advances.
(E) On the date any Designated
Prepayment is received by the Agent, such
prepayment shall be applied first to Base Rate
Advances and to any Eurodollar Rate Advances
maturing on such date and then to subsequently
maturing Eurodollar Rate Advances in order of
maturity.
(c) Voluntary Prepayments of Borrowings. The
Borrower may upon prior notice stating the proposed date and
aggregate principal amount of a proposed prepayment of the
Advances, which notice shall given to the Administrative
Agent not later than 1:00 P.M. (Detroit time) on the day of
such prepayment, in the case of a prepayment of Base Rate
Advances, or and at least three Business Days' prior to
proposed date of such prepayment, in the case of Eurodollar
Rate Advances, prepay (and if such notice is given the
Borrower shall prepay) the outstanding principal amounts of
the Advances comprising part of the same Borrowing in whole
or ratably in part in such amount as is set forth in such
notice; provided, however, that (x) each partial prepayment
shall be in an aggregate principal amount not less than
$5,000,000 (or $1,000,000 in the case of Base Rate Advances)
and integral multiples of $1,000,000 in excess thereof and
(y) in the case of any such prepayment of any Eurodollar
Rate Advance, the Borrower shall pay all accrued interest to
the date of such prepayment on the portion of such
Eurodollar Rate Advance being prepaid and shall be obligated
to reimburse the Lenders in respect of all amounts that may
then be owing pursuant to Section 8.04(b).
SECTION 2.8. INTEREST ON ADVANCES; DEFAULT RATE.
The Borrower shall pay interest accrued on the
principal amount of each Advance outstanding from time to
time from the date of such Advance until such principal
amount shall be paid in full, at the following rates per
annum:
(a) Base Rate Advances. If such Advance is
a Base Rate Advance (including, without limitation, all
Swing Line Loans), a rate per annum equal at all times
to the Alternate Base Rate in effect from time to time
plus the applicable Margin, payable monthly in arrears
on the last day of each month during the term of this
Agreement, commencing December 31, 1996, and on the
Termination Date.
(b) Eurodollar Rate Advances. If such
Advance is a Eurodollar Rate Advance, a rate per annum
equal at all times during the Interest Period for such
Advance to the sum of the Adjusted Eurodollar Rate for
such Interest Period plus the applicable Margin,
payable in arrears on the last day of such Interest
Period and, if such Interest Period has a duration of
more than three months, on the day which occurs during
such Interest Period three months from the first day of
such Interest Period.
(c) Default Rate. After the occurrence and
during the continuance of an Event of Default, the
interest rate(s) applicable to the Obligations and the
fees payable under Section 2.04(e)(ii) with respect to
Letters of Credit shall be increased by two percent
(2.0%) per annum above the interest rate(s) and fees
otherwise in effect from time to time hereunder.
SECTION 2.9. INTEREST RATE DETERMINATION. The
Administrative Agent shall give prompt notice to the
Borrower and the Lenders of the applicable interest rate
determined by the Administrative Agent for purposes of
Section 2.08.
SECTION 2.10. VOLUNTARY CONVERSION OR CONTINUATION OF
ADVANCES.
(a) The Borrower may on any Business Day, upon
notice given to the Administrative Agent not later than
12:00 noon (Detroit time) on the third Business Day prior
to the date of the proposed Conversion or continuance (a
"Notice of Conversion/Continuation") and subject to the
provisions of Section 2.02(b), (1) Convert all Advances
(other than Swing Line Loans) of one Type comprising the
same Borrowing into Advances of another Type and (2) upon
the expiration of any Interest Period applicable to Advances
which are Eurodollar Rate Advances, continue all (or,
subject to Section 2.02(b), any portion of) such Advances as
Eurodollar Rate Advances and the succeeding Interest
Period(s) of such continued Advances shall commence on the
last day of the Interest Period of the Advances to be
continued; provided, however, that any Conversion of any
Eurodollar Rate Advances into Advances of another Type shall
be made on, and only on, the last day of an Interest Period
for such Eurodollar Rate Advances. Each such Notice of
Conversion/Continuation shall, within the restrictions
specified above, specify (i) the date of such continuation
or Conversion, (ii) the Advances (or, subject to Section
2.02(b), any portion thereof) to be continued or Converted,
(iii) if such continuation is of, or such Conversion is
into, Eurodollar Rate Advances, the duration of the Interest
Period for each such Advance and (iv) that no Potential
Event of Default or Event of Default has occurred and is
continuing.
(b) If upon the expiration of the then existing
Interest Period applicable to any Advance which is a
Eurodollar Rate Advance, the Borrower shall not have
delivered a Notice of Conversion/Continuation in accordance
with this Section 2.10, then such Advance shall upon such
expiration automatically be Converted to a Base Rate
Advance.
(c) After the occurrence of and during the
continuance of a Potential Event of Default or an Event of
Default, at the option of the Majority Lenders, the Borrower
may not elect to have an Advance be made or continued as, or
Converted into, a Eurodollar Rate Advance after the
expiration of any Interest Period then in effect for that
Advance.
SECTION 2.11. INCREASED COSTS. (a) If, due to either
(i) the introduction of or any change (other than any change
by way of imposition or increase of reserve requirements in
the case of Eurodollar Rate Advances included in the
Eurodollar Rate Reserve Percentage) in or in the
interpretation of any law or regulation made after the date
hereof or (ii) the compliance with any guideline or request
from any central bank or other governmental authority
(whether or not having the force of law) made after the date
hereof, there shall be any increase in the cost to any
Lender of agreeing to make or making, funding or maintaining
Eurodollar Rate Advances, then the Borrower shall from time
to time, upon demand by such Lender (with a copy of such
demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender
additional amounts sufficient to compensate such Lender for
such increased cost. A reasonably detailed certificate as
to the amount and manner of calculation of such increased
cost, submitted to the Borrower and the Administrative Agent
by such Lender, shall be conclusive and binding for all
purposes, absent manifest error. A Lender which incurs such
an increased cost shall give the Borrower reasonably prompt
notice thereof; provided that failure to give such notice
shall not affect the Borrower's obligations hereunder.
(b) If any Lender determines that compliance with
any law or regulation or any guideline or request from any
central bank or other governmental authority (whether or not
having the force of law) taking effect after the date hereof
affects or would affect the amount of capital required or
expected to be maintained by such Lender or any corporation
controlling such Lender and that the amount of such capital
is increased by or based upon the existence of such Lender's
commitment to lend hereunder and other commitments of this
type or Letters of Credit issued hereunder and other letters
of credit, then, upon demand by such Lender (with a copy of
such demand to the Administrative Agent), the Borrower shall
immediately pay to the Administrative Agent for the account
of such Lender, from time to time as specified by such
Lender, additional amounts sufficient to compensate such
Lender or such corporation in the light of such
circumstances, to the extent that such Lender reasonably
determines such increase in capital to be allocable to the
existence of such Lender's commitment to lend hereunder. A
reasonably detailed certificate as to such amounts and the
manner of calculation thereof submitted to the Borrower and
the Administrative Agent by such Lender shall be conclusive
and binding for all purposes, absent manifest error. A
Lender which becomes subject to the circumstances set forth
in this Section 2.11(b) shall give the Borrower reasonably
prompt notice thereof; provided that failure to give such
notice shall not affect the Borrower's obligations
hereunder.
(c) If any Lender requests compensation from the
Borrower under Section 2.11(a) or (b), the Borrower shall
have the right, with the assistance of the Administrative
Agent, to seek one or more substitute banks or financial
institutions (which may be one or more of the Lenders)
reasonably satisfactory to the Administrative Agent and the
Borrower to purchase the Advances and assume the Commitments
of such Lender, and the Borrower, the Administrative Agent,
such Lender, and such substitute banks or financial
institutions shall execute and deliver an appropriately
completed Assignment and Acceptance pursuant to Section
8.07(a) hereof to effect the assignment of rights to and the
assumption of obligations by such substitute banks or
financial institutions; provided that such requesting
Lender, shall be entitled to compensation under this Section
2.11 for any costs incurred by it prior to its replacement
and provided further that if such requesting Lender is an
Issuing Bank, all Letters of Credit issued by it shall be
returned to it (or subject to other arrangements
satisfactory to it) prior to its replacement.
(d) If a Lender shall change its Applicable
Lending Office, such Lender shall not be entitled to receive
any greater payment under Sections 2.11 and 2.13 than the
amount such Lender would have been entitled to receive if it
had not changed its Applicable Lending Office, unless such
change was made at the request of the Borrower or at a time
when the circumstances giving rise to such greater payment
did not exist.
SECTION 2.12. PAYMENTS AND COMPUTATIONS. (a) The
Borrower shall make each payment hereunder not later than
1:00 P.M. (Detroit time) on the day when due in U.S. dollars
to the Administrative Agent at its address referred to in
Section 8.02 in same day funds. The Administrative Agent
will promptly thereafter cause to be distributed like funds
relating to the payment of principal or interest or
commitment or facility fees ratably to the Lenders in
accordance with their respective Commitments (other than
amounts payable pursuant to Section 2.11 or 2.13) for the
account of their respective Applicable Lending Offices, and
like funds relating to the payment of any other amount
payable to any Lender to such Lender for the account of its
Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon its
acceptance of an Assignment and Acceptance and recording of
the information contained therein in the Register pursuant
to Section 8.07(d), from and after the effective date
specified in such Assignment and Acceptance, the
Administrative Agent shall make all payments hereunder in
respect of the interest assigned thereby to the Lender
assignee thereunder, and the parties to such Assignment and
Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly
between themselves.
(b) All computations of interest and fees shall
be made by the Administrative Agent on the basis of a year
of 360 days for the actual number of days (including the
first day but excluding the last day) occurring in the
period for which such interest or such fees are payable.
Each determination by the Administrative Agent of an
interest rate hereunder shall be conclusive and binding for
all purposes, absent manifest error.
(c) Whenever any payment hereunder shall be
stated to be due on a day other than a Business Day, such
payment shall be made on the next succeeding Business Day,
and such extension of time shall in such case be included in
the computation of payment of interest or commitment fee, as
the case may be; provided, however, if such extension would
cause payment of interest on or principal of Eurodollar Rate
Advances to be made in the next following calendar month,
such payment shall be made on the next preceding Business
Day.
(d) Unless the Administrative Agent shall have
received notice from the Borrower prior to the date on which
any payment is due to the Lenders hereunder that the
Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made
such payment in full to the Administrative Agent on such
date and the Administrative Agent may, in reliance upon such
assumption, cause to be distributed to each Lender on such
due date an amount equal to the amount then due such Lender.
If and to the extent that the Borrower shall not have so
made such payment in full to the Administrative Agent, each
Lender shall repay to the Administrative Agent forthwith on
demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is
distributed to such Lender until the date such Lender repays
such amount to the Administrative Agent, at the Federal
Funds Rate.
SECTION 2.13. TAXES. (a) Any and all payments by the
Borrower hereunder shall be made, in accordance with Section
2.12, free and clear of and without deduction for any and
all present or future taxes, levies, imposts, deductions,
charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Lender and the
Administrative Agent, (i) taxes imposed on its income, and
franchise taxes imposed on it, by the jurisdiction under the
laws of which such Lender or the Administrative Agent (as
the case may be) is organized or any political subdivision
thereof or in which its principal office is located,
(ii) taxes imposed on its income, and franchise taxes
imposed on it, by the jurisdiction of such Lender's
Applicable Lending Office or any political subdivision
thereof, (iii) taxes imposed upon or measured by the overall
net income of such Lender by the United States of America,
any State, or any political subdivision or taxing authority
thereof or therein, and (iv) United States income taxes
(including withholding taxes with respect thereto) payable
with respect to payments hereunder under laws (including
without limitation any statute, treaty, ruling,
determination or regulation) in effect on the date hereof in
the case of each Lender and on the effective date of the
Assignment and Acceptance pursuant to which it became a
Lender in the case of each other Lender (all such non-
excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to
as "Taxes"). If the Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable
hereunder to any Lender or the Administrative Agent, (i) the
sum payable shall be increased as may be necessary so that
after making all required deductions (including deductions
applicable to additional sums payable under this Section
2.13) such Lender or the Administrative Agent (as the case
may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower
shall make such deductions and (iii) the Borrower shall pay
the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law. In no
event shall the Borrower be required to pay any tax that
would violate any applicable law.
(b) In addition, the Borrower agrees to pay any
present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies which
arise from the execution, delivery or registration of, or
otherwise with respect to, this Agreement (hereinafter
referred to as "Other Taxes").
(c) The Borrower will indemnify each Lender and
the Administrative Agent for the full amount of Taxes or
Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed by any jurisdiction on amounts payable
under this Section 2.13) paid by such Lender or the
Administrative Agent (as the case may be) and any liability
(including penalties, interest and expenses) arising
therefrom or with respect thereto, whether or not such Taxes
or Other Taxes were correctly or legally asserted. This
indemnification shall be made within 30 days from the date
such Lender or the Administrative Agent (as the case may be)
makes written demand therefor.
(d) Within 30 days after the date of any payment
of Taxes, the Borrower will furnish to the Administrative
Agent, at its address referred to in Section 8.02, the
original or a certified copy of a receipt evidencing payment
thereof.
(e) Each Lender organized under the laws of a
jurisdiction outside the United States, on or prior to the
date of its execution and delivery of this Agreement in the
case of each Lender and on the date of the Assignment and
Acceptance pursuant to which it becomes a Lender in the case
of each other Lender, and from time to time thereafter if
requested in writing by the Borrower (but only so long as
such Lender remains lawfully able to do so), shall provide
the Borrower with Internal Revenue Service form 1001 or
4224, as appropriate, or any successor form prescribed by
the Internal Revenue Service, certifying that such Lender is
entitled to benefits under an income tax treaty to which the
United States is a party which reduces the rate of
withholding tax on payments of interest or certifying that
the income receivable pursuant to this Agreement is
effectively connected with the conduct of a trade or
business in the United States. If the form provided by a
Lender at the time such Lender first becomes a party to this
Agreement indicates a United States interest withholding tax
rate in excess of zero, withholding tax at such rate shall
be considered excluded from "Taxes" as defined in Section
2.13(a).
(f) For any period with respect to which a Lender
has failed to provide the Borrower with the appropriate form
described in Section 2.13(e) (other than if such failure is
due to a change in law occurring subsequent to the date on
which a form originally was required to be provided, or if
such form otherwise is not required under the first sentence
of Section (e) above), such Lender shall not be entitled to
indemnification under Section 2.13(a) with respect to Taxes
imposed by the United States; provided, however, that should
a Lender become subject to Taxes because of its failure to
deliver a form required hereunder, the Borrower shall, at
the expense of such Lender, take such steps as the Lender
shall reasonably request to assist the Lender to recover
such Taxes.
(g) Without prejudice to the survival of any
other agreement of the Borrower hereunder, the agreements
and obligations of the Borrower contained in this Section
2.13 shall survive the payment in full of principal and
interest hereunder and the termination of this Agreement.
SECTION 2.14. SHARING OF PAYMENTS, ETC. If any Lender
shall obtain any payment (whether voluntary, involuntary,
through the exercise of any right of set-off, or otherwise)
on account of the Advances made by it (other than nonratable
payments made on the Effective Date pursuant to the proviso
set forth in the second sentence of Section 2.12 or payments
made pursuant to Section 2.11 or 2.13) in excess of its
ratable share of payments on account of the Advances
obtained by all the Lenders, such Lender shall forthwith
purchase from the other Lenders such participations in the
Advances made by them as shall be necessary to cause such
purchasing Lender to share the excess payment ratably with
each of them, provided, however, that if all or any portion
of such excess payment is thereafter recovered from such
purchasing Lender, such purchase from each Lender shall be
rescinded and such Lender shall repay to the purchasing
Lender the purchase price to the extent of such recovery
together with an amount equal to such Lender's ratable share
(according to the proportion of (i) the amount of such
Lender's required repayment to (ii) the total amount so
recovered from the purchasing Lender) of any interest or
other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from
another Lender pursuant to this Section 2.14 may, to the
fullest extent permitted by law, exercise all its rights of
payment (including the right of set-off) with respect to
such participation as fully as if such Lender were the
direct creditor of the Borrower in the amount of such
participation.
SECTION 2.15. EVIDENCE OF DEBT.
(a) 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 Advance or participation in any Letter of Credit made
or purchased 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.
(b) The Register maintained by the Administrative
Agent pursuant to Section 8.07(c) shall include a control
account, and a subsidiary account for each Lender, in which
accounts (taken together) shall be recorded (i) the date,
amount and tenor, as applicable, of each Borrowing, the Type
of Advances comprising such Borrowing and the Interest
Period applicable thereto, (ii) the date of issuance of each
Letter of Credit, the face amount thereof, the expiration
date thereof, each Lender's participation therein, and any
drawings and reimbursements made thereunder, (iii) the terms
of each Assignment and Acceptance delivered to and accepted
by it, (iv) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to
each Lender hereunder, and (v) the amount of any sum
received by the Administrative Agent from the Borrower
hereunder and each Lender's share thereof.
(c) The entries made in the Register shall be
conclusive and binding for all purposes, absent manifest
error.
(d) Any Lender may at any time request that the
Borrower execute and deliver to such Lender a Note,
substantially in the form of EXHIBIT C-1 annexed hereto, to
evidence such Lender's Advances (other than Swing Line
Loans) hereunder. The Borrower agrees promptly upon its
receipt of any such request from a Lender to execute and
deliver a Note to such Lender.
SECTION 2.16. USE OF PROCEEDS.
(a) Advances shall be used by the Borrower for
(i) the Dina Distribution, (ii) other general corporate
purposes and (iii) for seasonal working capital
requirements.
(b) No portion of the proceeds of any Advances
under this Agreement shall be used by the Borrower or any of
its Subsidiaries (i) in any manner which might cause the
Advances or the application of such proceeds to violate, or
require any Lender to make any filing or take any other
action under, Regulation G, Regulation U, Regulation T, or
Regulation X of the Board of Governors of the Federal
Reserve System or any other regulation of such Board or to
violate the Securities Exchange Act of 1934, in each case as
in effect on the date or dates of such Advances and such use
of proceeds or (ii) to purchase any securities registered
pursuant to Section 12 of the Securities Exchange Act of
1934, as amended, other than purchases of the Company's
common stock permitted under Section 5.02(j).
SECTION 2.17. MARGINS, APPLICABLE FACILITY FEES AND
APPLICABLE LETTER OF CREDIT FEES. Each of the applicable
Margin, the applicable facility fee payable by the Borrower
pursuant to Section 2.05, and the applicable letter credit
fee payable by the Borrower pursuant to Section 2.04(e)(ii)
shall be subject to adjustment (upwards or downwards, as
appropriate) based on the existence of the applicable Credit
Level described in the table below.
APPLICABLE MARGIN, FACILITY FEE AND LETTER OF CREDIT FEE TABLE
APPLICABLE APPLICABLE
MARGIN FOR MARGIN FOR APPLICABLE
CREDIT EURODOLLAR BASE RATE APPLICABLE LETTER OF
LEVEL RATE ADVANCES ADVANCES FACILITY FEE CREDIT FEE
Level 1 .475% 0.00% .25% .475%
Level 2 .550% 0.00% .30% .550%
Level 3 .875% .125% .35% .875%
Level 4 1.10% .60% .50% 1.10%
Notwithstanding the foregoing, (i) for any Eurodollar Rate
Advances or Letters of Credit outstanding prior to the
Initial Rate Adjustment Date, the Margin for Eurodollar Rate
Advances and the letter of credit fee shall equal 0.95% per
annum until the Initial Rate Adjustment Date; provided,
however, such Margin and letter of credit fee shall be 1.10%
per annum for any time prior to the Initial Rate Adjustment
Date that the Borrower's Leverage Ratio is equal to or
greater than 4.00 to 1.00; (ii) the applicable facility fee
from the Effective Date to the Initial Rate Adjustment Date
shall be 0.40% per annum; provided, however, that the
facility fee shall be 0.50% per annum for any time during
such period that the Borrower's Leverage Ratio is equal to
or greater than 4.00 to 1.00; and (iii) the Margin for Base
Rate Advances shall be 0.0% per annum until the earlier of
(a) the first date on which a financial institution other
than NBD Bank shall become a Lender pursuant to an
Assignment and Acceptance and (b) the date which occurs
ninety (90) days after the Effective Date, provided,
however, that the Margin for Base Rate Advances shall be
0.60% per annum for any time during such period that the
Borrower's Leverage Ratio is equal to or greater than 4.00
to 1.00.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.1. CONDITION PRECEDENT TO EFFECTIVENESS.
This Agreement shall become effective only upon, and the
obligations of each Lender to make Advances and to issue, or
to participate in, Letters of Credit are, in addition to the
conditions precedent specified in Section 3.02 or Section
3.03, subject to prior or concurrent satisfaction of the
following conditions:
(a) Borrower Documents. On or before the
Effective Date, the Borrower shall deliver or cause to be
delivered to Lenders (or to the Administrative Agent for the
Lenders with sufficient originally executed copies, where
appropriate, for each Lender and its counsel) the following,
each, unless otherwise noted, dated the Effective Date:
(i) Certified copies of its Certificate of
Incorporation, together with a good standing
certificate from the Secretary of State of the State of
Delaware and each other state in which it is qualified
as a foreign corporation to do business, each dated a
recent date prior to the Effective Date and certified
as of the Effective Date by its corporate secretary or
assistant secretary;
(ii) Copies of its Bylaws, certified as of
the Effective Date by its corporate secretary or an
assistant secretary;
(iii) Resolutions of its Board of Directors
approving and authorizing the execution, delivery and
performance of this Agreement, any Notes, and the other
Loan Documents to which the Borrower is a party,
certified as of the Effective Date by its corporate
secretary or an assistant secretary as being in full
force and effect without modification or amendment;
(iv) Signature and incumbency certificates of
its officers authorized to request Advances or
executing this Agreement, any Notes and the other Loan
Documents to which the Borrower is a party;
(v) Executed originals of this Agreement,
the Swing Line Note, the other Notes and each other
Loan Document to which the Borrower is a party; and
(vi) Such other documents as the
Administrative Agent may reasonably request.
(b) Subsidiary Guarantor Documents. On or
before the Effective Date, each Subsidiary Guarantor shall
deliver or cause to be delivered to the Lenders (or to the
Administrative Agent for the Lenders with sufficient
originally executed copies, where appropriate, for each
Lender and its counsel) the following, each, unless
otherwise noted, dated the Effective Date:
(i) Certified copies of its Certificate of
Incorporation, together with a good standing
certificate from the Secretary of State of its state of
incorporation and each other state in which it is
qualified as a foreign corporation to do business, each
dated a recent date prior to the Effective Date and
certified as of the Effective Date by its corporate
secretary or assistant secretary;
(ii) Copies of its Bylaws, certified as of
the Effective Date by its corporate secretary or an
assistant secretary;
(iii) Resolutions of its Board of Directors
approving and authorizing the execution, delivery and
performance of the Guaranty and the other Loan
Documents to which such Subsidiary Guarantor is a
party, certified as of the Effective Date by its
corporate secretary or an assistant secretary as being
in full force and effect without modification or
amendment;
(iv) Signature and incumbency certificates of
its officers executing the Guaranty and the other Loan
Documents to which such Subsidiary Guarantor is a
party;
(v) Executed originals of the Guaranty and
the other Loan Documents to which such Subsidiary
Guarantor is a party; and
(vi) Such other documents as the
Administrative Agent may reasonably request.
(c) Management Contracts. On or before the
Effective Date, the Administrative Agent and the Lenders
shall have received copies of the current management
contracts for the Borrower's chief operating officer, chief
financial officer, treasurer and controller and for the
president of the Borrower's Universal Coach Parts subsidiary
(the "Management Contracts") and such contracts shall be in
form and substance satisfactory to the Administrative Agent
and each of the Lenders.
(d) Opinions of Counsel. The Lenders and
their respective counsel shall have received:
(i) originally executed copies of one or
more favorable written opinions of Latham & Watkins,
counsel for the Borrower and the Subsidiary Guarantors,
dated as of the Effective Date and setting forth
substantially the matters in the opinions designated in
EXHIBIT F-1 hereto and as to such other matters as the
Administrative Agent acting on behalf of the Lenders
may reasonably request;
(ii) originally executed copies of one or
more favorable written opinions of Kristin Schloemer,
Corporate Counsel of the Borrower and the Subsidiary
Guarantors, in form and substance reasonably
satisfactory to the Administrative Agent and its
counsel and setting forth substantially the matters in
the opinions designated by EXHIBIT F-2 hereto and as to
such other matters as the Administrative Agent acting
on behalf of the Lenders may reasonably request; and
(iii) evidence satisfactory to the
Administrative Agent (which may be recitals in such
opinions) that the Borrower has requested such counsel
to deliver such opinions to the Lenders.
(e) Noteholders' Consent and Intercreditor
Agreement. The Borrower shall have caused the required
holders of the Senior Notes to have delivered a consent to
the Dina Distribution and the transactions evidenced by this
Agreement and to have entered into an intercreditor
agreement with the Administrative Agent and the Lenders,
which consent and intercreditor agreement shall be in form
and substance acceptable to the Administrative Agent and the
Lenders.
(f) Fees. The Borrower shall have paid to
the Administrative Agent, for distribution (as appropriate)
to the Administrative Agent, and the Arranger, the fees and
expenses payable on the Effective Date.
(g) Representations and Warranties;
Performance of Agreements. The Borrower shall have
delivered to the Administrative Agent an Officer's
Certificate, in form and substance satisfactory to the
Administrative Agent, to the effect that the representations
and warranties in Section 4.01 hereof are true, correct and
complete in all material respects on and as of the Effective
Date to the same extent as though made on and as of that
date and that the Borrower shall have performed in all
material respects all agreements and satisfied all
conditions that this Agreement provides shall be performed
or satisfied by it on or before the Effective Date, except
as otherwise disclosed to and agreed to in writing by the
Administrative Agent and Majority Lenders.
(h) Repayment of Amounts Outstanding Under
Existing Credit Agreement. Concurrently with the
effectiveness of this Agreement and the making of the
initial Advances hereunder, the Borrower shall pay all
principal and all accrued and unpaid fees and interest
outstanding under the Amended and Restated Credit Agreement
dated as of August 8, 1994, as amended, among the Company,
the Borrower, various financial institutions parties thereto
as lenders and co-agents and Citibank, N.A., as Agent (the
"Citibank Agreement");
(i) Payoff and Release Documents. The
Administrative Agent shall have received a payoff, estoppel
and release letter with respect to the Citibank Agreement,
which letter shall be in form and substance acceptable to
the Administrative Agent and its counsel.
(j) No Material Adverse Effect. Since
December 31, 1995, there shall not have occurred any change,
or development or event involving a prospective change,
which in either case, has had or could have a Material
Adverse Effect.
(k) No Event of Default. Immediately prior
to the Effective Date, no "Event of Default" or "Potential
Event of Default" hereunder or under the Citibank Agreement
shall have occurred and be continuing.
(l) Completion of Proceedings. All
corporate and other proceedings taken or to be taken in
connection with the transactions contemplated hereby and all
documents incidental thereto not previously found acceptable
by the Administrative Agent, acting on behalf of the
Lenders, and its counsel shall be satisfactory in form and
substance to the Administrative Agent and such counsel, and
the Administrative Agent and such counsel shall have
received all such counterpart originals or certified copies
of such documents as Administrative Agent may reasonably
request.
(m) Other Conditions. The Agent shall, to
its satisfaction, have confirmed that the Borrower shall
have satisfied all conditions precedent as set forth in the
Term Sheet dated as of August 13, 1996.
SECTION 3.2. CONDITIONS PRECEDENT TO EACH BORROWING.
The obligation of the Swing Line Bank to make a Swing Line
Loan and the obligation of each Lender to make an Advance on
the occasion of each Borrowing (including, without
limitation, the Advances to be made on the Effective Date)
shall be subject to the further conditions precedent that
(x) the Administrative Agent shall have received a Notice of
Borrowing with respect thereto in accordance with Section
2.02 or 2.03, as applicable, and (y) on the date of such
Borrowing (a) the following statements shall be true (and
each of the giving of the applicable Notice of Borrowing and
the acceptance by the Borrower of the proceeds of such
Borrowing shall constitute a representation and warranty by
the Borrower that on the date of such Borrowing such
statements are true):
(i) The representations and warranties of
the Borrower contained in Section 4.01 (excluding
Section 4.01(f)) are correct in all material respects
on and as of the date of such Swing Line Loan or
Borrowing, before and after giving effect to such Swing
Line Loan or Borrowing and to the application of the
proceeds therefrom, as though made on and as of such
date, except to the extent that any such representation
or warranty expressly relates only to an earlier date,
in which case they were correct as of such earlier
date;
(ii) Since December 31, 1995, there has not
occurred any change, or development or event involving
a prospective change, which, in either case, has had or
could have a Material Adverse Effect; and
(iii) No event has occurred and is continuing,
or would result from such Swing Line Loan or Borrowing
or from the application of the proceeds therefrom,
which constitutes an Event of Default or a Potential
Event of Default; and
(b) the Administrative Agent shall have received
such other approvals, opinions or documents as the Majority
Lenders through the Administrative Agent may reasonably
request.
SECTION 3.3. CONDITIONS PRECEDENT TO LETTER OF
CREDIT. The obligation of any Issuing Lender to issue any
Letter of Credit hereunder is subject to prior or concurrent
satisfaction of all of the following conditions:
(a) On or before the date of issuance of any
Letter of Credit hereunder, the Administrative Agent shall
have received, in accordance with the provisions of
Section 2.04(b), a Notice of Issuance of Letter of Credit
relating to the proposed Letter of Credit, all other
information specified in Section 2.04(b) and such other
documents as the Administrative Agent and the Issuing Lender
may reasonably require in connection with the issuance of
such Letter of Credit.
(b) On or before the date of issuance of
such Letter of Credit, each of the conditions set forth in
Section 3.01 shall have been satisfied as of the Effective
Date, and, on such date of issuance, all conditions
precedent described in Section 3.02 shall be satisfied to
the same extent as though the issuance of such Letter of
Credit were the making of an Advance.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1. REPRESENTATIONS AND WARRANTIES OF THE
BORROWER. The Borrower represents and warrants as follows:
(a) Due Organization, etc. The Borrower is
a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its
incorporation. The Borrower has the corporate power,
authority and legal right to own and operate the assets and
properties and conduct the business now, or proposed to be,
owned, operated and conducted by it. All necessary
consents, licenses, permits, approvals or authorizations of,
exemptions by, notices and reports to, registrations,
filings and declarations with, and any other act by or in
respect of, any Person requisite for such ownership,
operation and conduct have been obtained or performed except
such of the foregoing the failure to obtain or perform which
would not, in the aggregate, have a Material Adverse Effect.
The Borrower is duly qualified as a foreign corporation and
in good standing under the laws of each jurisdiction where
its ownership or leasing of property or conduct of business
requires such qualification and where the failure to be so
qualified or in good standing would have a Material Adverse
Effect.
(b) Subsidiaries. All of the Subsidiaries
of the Borrower as of both the date hereof and the Effective
Date are identified in SCHEDULE 4.01(B) annexed hereto. The
capital stock of each of the Subsidiaries of the Borrower
identified in SCHEDULE 4.01(B) annexed hereto is duly
authorized, validly issued, fully paid and nonassessable.
Each of the Subsidiaries of the Borrower identified in
SCHEDULE 4.01(B) annexed hereto is validly existing and in
good standing under the laws of its respective jurisdiction
of incorporation set forth therein, has full corporate power
and authority to own its assets and properties and to
operate its business as presently owned and conducted, and
is qualified to do business and in good standing in every
jurisdiction where its assets are located and wherever
necessary to carry out its business and operations, in each
case except where failure to be so qualified or in good
standing or a lack of such corporate power and authority has
not had and will not have a Material Adverse Effect.
SCHEDULE 4.01(B) annexed hereto correctly sets forth the
ownership interest of the Borrower in each of its
Subsidiaries identified therein.
(c) Due Authorization, etc. The Borrower
has full power, authority and legal right to execute,
deliver and perform this Agreement and the Notes, and each
of the Subsidiary Guarantors has full power, authority and
legal right to execute, deliver and perform the Guaranties.
The execution, delivery and performance of this Agreement
and the Notes by the Borrower have been duly authorized by
all necessary corporate action on the part of the Borrower
and the execution, delivery and performance of the
Guaranties by each Subsidiary Guarantor have been duly
authorized by all necessary corporate action on the part of
each such Subsidiary Guarantor.
(d) Governmental Consent, No Conflicts.
Neither (i) the execution and delivery of (y) this Agreement
and the Notes by the Borrower or (z) the Guaranties by each
such Subsidiary Guarantor, nor (ii) the declaration or
payment of the Dina Distribution requires any governmental
registrations or filings or approvals or violates or
contravenes any law or any order of any court or
governmental agency or any indenture, agreement or other
instrument, including, without limitation, with respect to
the Senior Notes, to which any of the Company, the Borrower
or the Subsidiary Guarantors is party or by which it or any
of its properties may be bound.
(e) Validity. (i) This Agreement and the
Notes are the legal, valid and binding obligation of the
Borrower enforceable against the Borrower in accordance with
its terms, and (ii) the Guaranties are the legal, valid and
binding obligations of each of the Subsidiary Guarantors
parties thereto enforceable against each such Subsidiary
Guarantor in accordance with their respective terms, in each
case as enforceability may be subject to the effect of
applicable bankruptcy, insolvency, arrangement, moratorium
and other similar laws affecting creditors' rights generally
and to the application of general principles of equity.
(f) Condition of the Borrower. The
consolidated balance sheet of the Borrower and its
consolidated Subsidiaries at December 31, 1995 and the
related statements of income and cash flows for the year
then ended, fairly present the financial condition of the
Borrower and its consolidated Subsidiaries at such date and
the results of the operations of the Borrower and its
consolidated Subsidiaries for the year then ended, all in
accordance with GAAP consistently applied. Since
December 31, 1995, there has not occurred any change, or
development or event involving a prospective change, which
has had or could have a Material Adverse Effect.
(g) Litigation. Except as set forth in
SCHEDULE 4.01(G), (i) there is no pending action or
proceeding against the Borrower or any of its Subsidiaries
before any court, governmental agency or arbitrator, and
(ii) there is no pending or threatened action or proceeding
affecting the Borrower or any of its Subsidiaries before any
court, governmental agency or arbitrator, which in either
case would reasonably be expected to result in liability for
the payment of amounts individually or in the aggregate in
excess of $5,000,000, would reasonably be expected to have a
Material Adverse Effect or which purports to affect the
legality, validity or enforceability of this Agreement or
any other Loan Document.
(h) Margin Regulations. Neither the
Borrower nor any of its Subsidiaries is engaged in the
business of extending credit for the purpose of purchasing
or carrying margin stock (within the meaning of Regulation U
issued by the Board of Governors of the Federal Reserve
System), and no proceeds of any Advance will be used to
purchase or carry any margin stock or to extend credit to
others for the purpose of purchasing or carrying any margin
stock in any manner that violates, or would cause a
violation of or require any Lender to make any filing or
take any other action under Regulation G, Regulation T,
Regulation U or Regulation X of the Board of Governors of
the Federal Reserve System. None of the issued and
outstanding capital stock of any of the Company's
Subsidiaries constitutes margin stock under Regulation U.
(i) Payment of Taxes. The Borrower and each
of its Subsidiaries have filed or caused to be filed all
material tax returns (federal, state, local and foreign)
required to be filed and paid all material amounts of taxes
shown thereon to be due, including interest and penalties,
except for such taxes as are being contested in good faith
and by proper proceedings and with respect to which
appropriate reserves are being maintained by the Borrower or
any such Subsidiary, as the case may be.
(j) Governmental Regulation. The Borrower
is not subject to regulation under the Public Utility
Holding Company Act of 1935, the Federal Power Act, the
Interstate Commerce Act or the Investment Company Act of
1940, each as amended, or to any Federal or state statute or
regulation limiting its ability to incur indebtedness for
money borrowed. No Subsidiary of the Borrower is subject to
any regulation that would limit the ability of the Borrower
or such Subsidiary to enter into or perform its obligations
under this Agreement, the Guaranties or the other Loan
Documents.
(k) ERISA.
(i) No ERISA Event which might result in
liability individually or in the aggregate in excess of
$5,000,000 (other than for premiums payable under Title
IV of ERISA) has occurred or is reasonably expected to
occur with respect to any Pension Plan.
(ii) Schedule B (Actuarial Information) to
the most recently completed annual report (Form 5500
Series) for each Pension Plan, copies of which have
been filed with the Internal Revenue Service and
furnished to the Administrative Agent, is complete and,
to the best knowledge of the Borrower, accurate, and
since the date of such Schedule B there has been no
material adverse change in the funding status of any
such Pension Plan.
(iii) Neither the Borrower nor any ERISA
Affiliate has incurred, or, to the best knowledge of
the Borrower, is reasonably expected to incur, any
Withdrawal Liability to any Multiemployer Plan.
(iv) Neither the Borrower nor any ERISA
Affiliate has been notified by the sponsor of a
Multiemployer Plan that such Multiemployer Plan is in
reorganization or has been terminated, within the
meaning of Title IV of ERISA, and, to the best
knowledge of the Borrower, no Multiemployer Plan is
reasonably expected to be in reorganization or to be
terminated within the meaning of Title IV of ERISA.
(v) The Borrower and each of its ERISA
Affiliates is in compliance in all material respects
with ERISA, the Code, to the extent applicable to any
employee benefit plan as defined in Section 3(3) of
ERISA, and all applicable regulations promulgated under
ERISA and the Code the noncompliance with which could
reasonably be expected to have a Material Adverse
Effect or result in liability individually or in the
aggregate in excess of $5,000,000.
(vi) No Single Employer Plan has incurred any
accumulated funding deficiency (as defined in Sections
302(a)(2) of ERISA and 412(a) of the Code), whether or
not waived.
(vii) Neither Borrower nor any ERISA Affiliate
has failed to make a required contribution or any other
required payment to a Multiemployer Plan.
(viii) Listed on SCHEDULE 4.01(K) hereto are all
Pension Plans, Foreign Pension Plans and employee
welfare benefit plans that provide retiree welfare
benefits maintained or contributed to by Borrower or
any ERISA Affiliate.
(ix) Neither Borrower nor any ERISA Affiliate has
engaged in a nonexempt prohibited transaction described
in Sections 406 of ERISA or 4975 of the Code which is
reasonably expected to result in liability of the
Borrower or any ERISA Affiliate individually or in the
aggregate in excess of $5,000,000.
(l) Disclosure. As of the date hereof and
the Effective Date, no representation or warranty of the
Borrower or any of its Subsidiaries contained in this
Agreement or any other Loan Document, or in any other
document, certificate or written statement furnished to
Lenders by or on behalf of the Borrower or any of its
Subsidiaries for use in connection with the transactions
contemplated by this Agreement contains any untrue statement
of a material fact or omits to state a material fact (known
to the Borrower, in the case of any document not furnished
by it) necessary in order to make the statements contained
in such agreements, documents, certificates and statements,
taken as a whole, not misleading in light of the
circumstances in which the same were made. Any projections
and pro forma financial information contained in such
materials are based upon good faith estimates and
assumptions believed by the Borrower to be reasonable at the
time made, it being recognized by Lenders that such
projections as to future events are not to be viewed as
facts and that actual results during the period or periods
covered by any such projections may differ from the
projected results as of the date hereof or the Effective
Date.
(m) Insurance. The Borrower and its
Subsidiaries have in full force insurance coverage of their
respective properties, assets and business (including
casualty, general liability, products liability and business
interruption insurance) that is (i) no less protective in
any material respect than the insurance the Borrower and its
Subsidiaries have carried in accordance with their past
practices or (ii) prudent given the nature of the business
of the Borrower and its Subsidiaries and the prevailing
practice among companies similarly situated.
(n) Environmental Matters. (i) The Borrower
and each of its Subsidiaries is in compliance in all
material respects with all Environmental Laws the non-
compliance with which could reasonably be expected to have a
Material Adverse Effect or result in liability for the
payment of amounts individually or in the aggregate in
excess of $5,000,000, and (ii) there has been no "release or
threatened release of a hazardous substance" (as defined by
the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C. SECTION 9601 et seq.)
or any other release, emission or discharge into the
environment of any hazardous or toxic substance, petroleum,
pollutant or other materials from the Company's or its
Subsidiaries' property other than as permitted under
applicable Environmental Law and other than those which
would not have a Material Adverse Effect or result in
liability for the payment of amounts individually or in the
aggregate in excess of $5,000,000. Other than disposals for
which the Borrower has been indemnified in full, all
"hazardous waste" (as defined by the Resource Conservation
and Recovery Act, 42 U.S.C. SECTION6901 et seq., as amended, and
the regulations thereunder, 40 CFR Part 261 ("RCRA"))
generated at the Borrower's or any Subsidiaries' properties
or through their operations has in the past been and shall
continue to be disposed of at sites which maintain valid
permits under RCRA and any applicable state or local
Environmental Law.
(o) Solvency. As of the Effective Date, the
Borrower and each Subsidiary Guarantor is Solvent and will,
immediately after giving effect to the transactions
contemplated to occur in connection with this Agreement and
the Dina Distribution, be Solvent.
(p) Employee Matters. There is no strike or
work stoppage in existence or threatened involving the
Borrower or any of its Subsidiaries that may have a Material
Adverse Effect.
(q) Foreign Employee Benefit Matters.
(i) Each Foreign Employee Benefit Plan is in
compliance in all material respects with all laws,
regulations and rules applicable thereto and the
respective requirements of the governing documents for
such Plan the noncompliance with which could reasonably
be expected to have a Material Adverse Effect or result
in liability individually or in the aggregate in excess
of $5,000,000.
(ii) The aggregate of the liabilities to
provide all of the accrued benefits under any Foreign
Pension Plan does not exceed the current fair market
value of the assets held in the trust or other funding
vehicle for such Plan.
(iii) With respect to any Foreign Employee
Benefit Plan maintained by the Borrower, any of its
Subsidiaries or any ERISA Affiliate (other than a
Foreign Pension Plan), reasonable reserves have been
established in accordance with prudent business
practice or where required by ordinary accounting
practices in the jurisdiction in which such Plan is
maintained.
(iv) The aggregate unfunded liabilities,
after giving effect to any reserves for such
liabilities, with respect to any Foreign Employee
Benefit Plan will not result in a liability to
Borrower, any of its Subsidiaries or any ERISA
Affiliate individually or in the aggregate in excess of
$5,000,000.
(v) There are no actions, suits or claims
(other than routine claims for benefits) pending or
threatened against the Borrower, any of its
Subsidiaries or any ERISA Affiliates with respect to
any Foreign Employee Benefit Plan.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.1. AFFIRMATIVE COVENANTS. So long as any
Advance shall remain unpaid, any Letter of Credit shall
remain outstanding or any Lender shall have any Commitment
hereunder, the Borrower will, unless the Majority Lenders
shall otherwise consent in writing:
(a) Reporting Requirements. Furnish to the
Lenders:
(i) as soon as available and in any event
within 60 days after the end of each fiscal quarter
(beginning with the fiscal quarter ending September 30,
1996), (A) the consolidated balance sheet for Dina and
its consolidated Subsidiaries as at the end of such
fiscal quarter and the related consolidated statements
of income and cash flows of Dina and its consolidated
Subsidiaries for such fiscal quarter and for the period
from the beginning of the then current fiscal year to
the end of such fiscal quarter, provided that so long
as Dina is a foreign private issuer complying with
reporting requirements under the Securities Exchange
Act of 1934, the foregoing requirement shall be
satisfied by the delivery of Dina's quarterly report
for such fiscal quarter on Form 6K thereunder, and (B)
the consolidated and consolidating balance sheets of
the Borrower and its Subsidiaries as at the end of such
fiscal quarter and the related consolidated and
consolidating statements of income and cash flows of
the Borrower and its Subsidiaries for such fiscal
quarter and for the period from the beginning of the
then current fiscal year to the end of such fiscal
quarter, setting forth in each case in comparative form
the corresponding figures for the corresponding periods
of the previous fiscal year, all in reasonable detail
and certified, in the case of any such financial
statements of the Borrower, by the chief financial
officer of the Borrower that they fairly present the
financial condition of the Borrower and its
Subsidiaries as at the dates indicated and the results
of their operations and their cash flows for the
periods indicated, subject to changes resulting from
audit and normal year-end adjustments;
(ii) as soon as available and in any event
within 120 days after the end of each fiscal year, (A)
the consolidated balance sheet of Dina and its
consolidated Subsidiaries as at the end of such fiscal
year and the related consolidated statements of income,
stockholders' equity and cash flows of Dina and its
consolidated Subsidiaries for such fiscal year, setting
forth in comparative form the corresponding figures for
the previous fiscal year, all in reasonable detail,
provided that so long as Dina is a foreign private
issuer complying with reporting requirements under the
Securities Exchange Act of 1934, the foregoing
requirement shall be satisfied by the delivery of
Dina's annual report for such fiscal year on Form 20F
thereunder, (B) the consolidated and consolidating
balance sheets of the Borrower and its Subsidiaries as
at the end of such fiscal year and the related
consolidated and consolidating statements of income,
stockholders' equity and cash flows of the Borrower and
its Subsidiaries for such fiscal year, setting forth in
comparative form the corresponding figures for the
previous fiscal year, all in reasonable detail and
certified by the chief financial officer of the
Borrower that they present fairly in all material
respects the financial condition of the Borrower and
its Subsidiaries as at the dates indicated and the
results of their operations and their cash flows for
the periods indicated, and (C) in the case of such
consolidated financial statements of the Borrower and
Dina, reports thereon of Arthur Andersen LLP or other
independent auditors of recognized national standing
selected by the Borrower or Dina, as the case may be,
and (in the case of any such auditor selected by the
Borrower) satisfactory to the Administrative Agent,
which reports shall be unqualified, shall not include
any reference to doubts about the ability of the
Borrower and its Subsidiaries or Dina and its
Subsidiaries, as the case may be, to continue as a
going concern and, in the case of any such report
concerning the financial statements of the Borrower,
shall state that such consolidated financial statements
present fairly the financial position of the Borrower
and its Subsidiaries as at the dates indicated and the
results of their operations and cash flow for the
periods indicated in conformity with GAAP applied on a
basis consistent with prior years (except as stated
therein);
(iii) together with each delivery of financial
statements of the Borrower and its Subsidiaries
pursuant to subdivisions (i) and (ii) above, a
Compliance Certificate substantially in the form of
EXHIBIT G annexed hereto certifying as to the absence
of any Event of Default and demonstrating in reasonable
detail compliance during and at the end of the
applicable accounting periods with the restrictions
contained in Sections (a)(ii), (a)(vii), (c)(iv), and
(d)(vi) of Section 5.02 and in Section 5.03;
(iv) together with each delivery of
consolidated financial statements of the Borrower and
its Subsidiaries pursuant to subdivision (ii) above, a
written statement by the independent certified public
accountants giving the report thereon (a) stating that
their audit examination has included a review of the
terms of this Agreement and the other Loan Documents as
they relate to accounting matters, (b) stating whether,
in connection with their audit examination, any
condition or event that constitutes an Event of Default
or Potential Event of Default has come to their
attention and, if such a condition or event has come to
their attention, specifying the nature and period of
existence thereof; provided that such accountants shall
not be liable by reason of any failure to obtain
knowledge of any such Event of Default or Potential
Event of Default that would not be disclosed in the
course of their audit examination, and (c) stating that
based on their audit examination nothing has come to
their attention that causes them to believe that the
matters set forth in the Compliance Certificate
delivered pursuant to clause (iii) above for the
applicable fiscal year are not stated in accordance
with the terms of this Agreement;
(v) as soon as possible and in any event
within five days after the occurrence of each Event of
Default and each Potential Event of Default, continuing
on the date of such statement, a statement of an
authorized financial officer of the Borrower setting
forth details of such Event of Default or event and the
action which the Borrower has taken and proposes to
take with respect thereto;
(vi) promptly after any significant change in
accounting policies or reporting practices, notice and
a description in reasonable detail of such change;
(vii) promptly and in any event within 30 days
after the Borrower or any ERISA Affiliate knows or has
reason to know that any ERISA Event referred to in
clause (i) of the definition of ERISA Event with
respect to any Pension Plan has occurred which might
result in liability to the PBGC, a statement of the
chief accounting officer of the Borrower describing
such ERISA Event and the action, if any, that the
Borrower or such ERISA Affiliate has taken or proposes
to take with respect thereto;
(viii) promptly and in any event within 10 days
after the Borrower or any ERISA Affiliate knows or has
reason to know that any ERISA Event (other than an
ERISA Event referred to in (vii) above) with respect to
any Pension Plan has occurred which might result in
liability to the PBGC, a statement of the chief
accounting officer of the Borrower describing such
ERISA Event and the action, if any, that the Borrower
or such ERISA Affiliate has taken or proposes to take
with respect thereto;
(ix) promptly and in any event within five
Business Days after receipt thereof by the Borrower or
any ERISA Affiliate from the PBGC, copies of each
notice from the PBGC of its intention to terminate any
Pension Plan or to have a trustee appointed to
administer any Pension Plan;
(x) promptly and in any event within seven
Business Days after receipt thereof by the Borrower or
any ERISA Affiliate from the sponsor of a Multiemployer
Plan, a copy of each notice received by the Borrower or
any ERISA Affiliate concerning (w) the imposition of
Withdrawal Liability by a Multiemployer Plan, (x) the
determination that a Multiemployer Plan is, or is
expected to be, in reorganization within the meaning of
Title IV of ERISA, (y) the termination of a
Multiemployer Plan within the meaning of Title IV of
ERISA or (z) the amount of liability incurred, or
expected to be incurred, by the Borrower or any ERISA
Affiliate in connection with any event described in
clause (w), (x) or (y) above;
(xi) promptly and in any event within five
Business Days after the filing thereof with the
Internal Revenue Service, a copy of each funding waiver
request filed with respect to any Single Employer Plan;
(xii) promptly after the commencement thereof,
notice of all material actions, suits and proceedings
before any court or government department, commission,
board, bureau, agency or instrumentality, domestic or
foreign, affecting the Borrower or any of its
Subsidiaries, of the type described in Section 4.01(g);
(xiii) promptly after the occurrence thereof,
notice of (A) any event which makes any of the
representations contained in Section 4.01(n) inaccurate
in any material respect or (B) the receipt by the
Borrower of any notice, order, directive or written
demand from a governmental authority or third party
alleging violations of, noncompliance with or liability
under any Environmental Law which could reasonably be
expected to have a Material Adverse Effect or result in
liability for the payment of amounts individually or in
the aggregate in excess of $5,000,000;
(xiv) promptly upon their becoming available,
copies of (a) all financial statements, reports,
notices and proxy statements sent or made available
generally by the Company to its security holders or by
any Subsidiary of the Company to its security holders
other than the Company or another Subsidiary of the
Company, (b) all regular and periodic reports and all
registration statements (other than on Form S-8 or a
similar form) and prospectuses, if any, filed by the
Company or any of its Subsidiaries with any securities
exchange or with the Securities and Exchange Commission
or any governmental or other regulatory authority, and
(c) all press releases and other statements made
available generally by the Company or any of its
Subsidiaries to the public concerning material
developments in the business of the Company or any of
its Subsidiaries; and
(xv) such other information respecting the
condition or operations, financial or otherwise, of the
Company, the Borrower or any of their respective
Subsidiaries as any Lender through the Administrative
Agent may from time to time reasonably request.
(b) Compliance with Laws, Etc. Comply, and
cause each of its Subsidiaries to comply, with all
applicable laws, rules, regulations and orders, such
compliance to include, without limitation, (i) complying
with all Environmental Laws, ERISA, the Code and all laws
applicable to Foreign Employee Benefit Plans and (ii) paying
before the same become delinquent all taxes, assessments and
governmental charges imposed upon it or upon its property
except to the extent contested in good faith, except where
failure to so comply would not reasonably be expected to
result in liability for the payment of amounts individually
or in the aggregate in excess of $5,000,000 or to have a
Material Adverse Effect.
(c) Corporate Existence, Etc. The Borrower
will, and will cause each of its Material Subsidiaries to,
at all times maintain its fundamental business and preserve
and keep in full force and effect its corporate existence
(except as permitted under Section 5.02(e) hereof) and all
rights, franchises and licenses necessary or desirable in
the normal conduct of its business; provided, however, that
the corporate existence of any Subsidiary of the Borrower
which is not a Material Subsidiary may be terminated if (i)
after giving effect thereto, no Event of Default or
Potential Event of Default shall have occurred and be
continuing, (ii) such termination is determined in good
faith by the board of directors of the Borrower to be in the
best interests of the Borrower and (iii) such termination is
not disadvantageous to the Lenders.
(d) Maintenance of Insurance. The Borrower
will and will cause each of its Subsidiaries to maintain
insurance with responsible and reputable insurance companies
or associations in such amounts and covering such risks as
are usually insured by companies engaged in similar
businesses.
(e) Inspection of Property; Books and
Records; Discussions. The Borrower shall permit, and cause
the Company and each of the Borrower's Subsidiaries to
permit, any authorized representative(s) designated by
either the Administrative Agent or any Lender to visit and
inspect any of the properties of the Company, the Borrower
or any of its Subsidiaries, to examine, audit, check and
make copies of their respective financial and accounting
records, books, journals, orders, receipts and any
correspondence and other data relating to their respective
businesses or the transactions contemplated hereby and to
discuss their affairs, finances and accounts with their
officers and independent certified public accountants
(provided that representative(s) of the Borrower shall be
entitled to be included in or present at any such
discussions with such accountants), all upon reasonable
notice and at such reasonable times during normal business
hours, as often as may be reasonably requested. The
Borrower shall keep and maintain, and cause the Company and
each of the Borrower's Subsidiaries to keep and maintain, in
all material respects, proper books of record and account in
which entries in conformity with GAAP shall be made of all
dealings and transactions in relation to their respective
businesses and activities.
SECTION 5.2. NEGATIVE COVENANTS. So long as any
Advance shall remain unpaid, any Letter of Credit shall
remain outstanding or any Lender shall have any Commitment
hereunder, without the written consent of the Majority
Lenders:
(a) Debt. The Borrower shall not, and shall
not permit any of its Subsidiaries to, directly or
indirectly, create, incur, assume or guaranty, or otherwise
become or remain directly or indirectly liable with respect
to, any Debt, except:
(i) the Borrower and the Subsidiary
Guarantors may become and remain liable with respect to
the Obligations;
(ii) the Borrower and its Subsidiaries may
become and remain liable with respect to unsecured Debt
(in addition to Debt otherwise permitted by this
Section 5.02(a)) in an aggregate outstanding principal
amount which, when added to the aggregate liability of
the Borrower and its Subsidiaries with respect to
Contingent Obligations incurred pursuant to Section
5.02(d)(vi), does not exceed $25,000,000;
(iii) any wholly-owned Subsidiary of the
Borrower other than any Foreign Subsidiary may become
and remain liable with respect to Debt to the Borrower;
provided that any payment by any Subsidiary Guarantor
of the Obligations shall result in a pro tanto
reduction of the amount of any intercompany Debt owed
by such Subsidiary to the Borrower or to any of its
Subsidiaries for whose benefit such payment is made;
(iv) the Borrower and its Subsidiaries, as
applicable, may remain liable with respect to the Debt
described in SCHEDULE 5.02(A) annexed hereto and with
respect to any renewals, refundings or refinancings
thereof to the extent that any such renewal, refunding
or refinancing does not increase the original principal
amount thereof or grant collateral security not
provided for under terms of the original Debt as of the
Effective Date;
(v) the Borrower and the Subsidiary
Guarantors may become and remain liable with respect to
the Senior Notes and any renewals, refundings or
refinancings of all or any part of the Senior Notes
consummated on terms and conditions acceptable to each
of the Lenders (which terms shall include, without
limitation, no amortization, mandatory prepayments or
other required payments shall be required prior to
ninety-one (91) days after the Termination Date);
(vi) Universal Coach Parts, Inc. may become
and remain liable under that certain promissory note
dated April 17, 1995, in the principal amount of
$890,000 payable to Billingsley Parts and Equipment,
Inc.; provided the principal amount outstanding
thereunder at no time exceeds $890,000;
(vii) one or more of the Borrower's Foreign
Subsidiaries organized under the laws of Canada or any
Canadian Province may become and remain liable with
respect to Debt in an aggregate principal amount not
exceeding U.S. $25,000,000 (or the Canadian equivalent
thereof) (the "Canadian Debt"), which aggregate amount
shall include any such Debt outstanding on the date
hereof or any renewal, refunding or refinancing thereof
and any such Debt advanced by the Borrower, and the
Borrower may become and remain liable with respect to
any guaranty of the Canadian Debt; and
(viii) subject to Section 2.07(b)(iii)(B), the
Borrower may become and remain liable with respect to
unsecured Debt incurred pursuant to a Financing
consummated on terms and conditions acceptable to each
of the Lenders (including, without limitation, amount,
maturity, amortization, interest rate, premiums, fees,
covenants, events of default, remedies and, if
applicable, subordination terms).
(b) Liens, Etc. The Borrower will not
create or suffer to exist, or permit any of its Subsidiaries
to create or suffer to exist, any Lien upon or with respect
to any of their properties, whether now owned or hereafter
acquired, or assign, or permit any of such Persons to
assign, any right to receive income, in each case to secure
or provide for the payment of any Debt or Contingent
Obligations of any Person; provided however that the
foregoing restriction shall not apply to the following Liens
which are permitted:
(i) Permitted Encumbrances; and
(ii) Liens, if any, created and existing in
favor of the Administrative Agent, for the ratable
benefit of the Lenders.
(c) Investments. The Borrower shall not,
and shall not permit any of its Subsidiaries to, directly or
indirectly, make or own any Investment in any Person,
except:
(i) the Borrower and its Subsidiaries may
make and own Investments in Cash Equivalents;
(ii) the Borrower may make intercompany loans
to its wholly-owned Subsidiary Guarantors and to its
Foreign Subsidiaries organized under the laws of Canada
or any Canadian Province (subject to the limitation set
forth in Section 5.02(a)(vii));
(iii) the Borrower and its Subsidiaries may
continue to own the Investments owned by them as of the
date hereof, including Investments in the Subsidiaries
of the Company listed on SCHEDULE 4.01(B) annexed
hereto and those Investments described in
SCHEDULE 5.02(C) annexed hereto;
(iv) the Borrower and its Subsidiaries may in
the ordinary course of business consistent with past
practice (including, without limitation, practices
relating to international joint ventures) make and
maintain other Investments; provided that (A) except as
permitted in accordance with Section 5.02(l), such
Investments shall not include investments in Dina or
any of its Subsidiaries (other than the Borrower and
its Subsidiaries) and (B) the aggregate outstanding
amount of such Investments shall not at any time exceed
$15,000,000;
(v) MCIL may make Investments in its
Subsidiaries; and
(vi) the Borrower or any of its
Subsidiaries may hold the promissory note dated
November 29, 1994 in the original principal amount of
$3,152,150 from NovaBus of America, Inc. as partial
consideration of the Borrower's sale of its transit bus
business as conducted by Transit Bus International,
Inc. (formerly known as Transportation Manufacturing
Corporation); provided that payment of all principal
and interest owing under such promissory note is at all
times supported by an irrevocable standby letter of
credit issued to the Borrower or any Subsidiary holding
such promissory note by a commercial bank having, as of
the Effective Date and as of the date of issuance of
any replacement letter of credit, a rating of A and A2,
as applicable, or better from S&P and Moody's.
(d) Contingent Obligations. The Borrower
shall not, and shall not permit any of its Subsidiaries to,
become or remain, directly or indirectly, liable with
respect to any Contingent Obligations, except:
(i) the Borrower and its Subsidiaries may
become and remain liable with respect to Contingent
Obligations in favor of bonding companies, incurred in
the ordinary course of business consistent with past
practice, with respect to performance and warranty
bonds in an aggregate outstanding amount not exceeding
$25,000,000 plus the aggregate principal amount of
additional performance or warranty bonds, up to an
amount not exceeding $180,000,000, required in relation
to orders for coaches received from the New Jersey
Transit Authority or similar requests for coaches by
other municipal agencies after the date hereof;
provided that, in the case of any such Contingent
Obligations, any credit support therefor shall be in
such forms and amounts as are reasonably consistent
with past practice;
(ii) the Borrower and its Subsidiaries may
become and remain liable with respect to Contingent
Obligations in favor of bonding companies, incurred in
the ordinary course of business consistent with past
practice, with respect to bid bonds and other types of
bonds listed on SCHEDULE 5.02(D);
(iii) the Borrower may become and remain
liable with respect to Currency Agreements and Interest
Rate Agreements in the ordinary course of business
pursuant to which Borrower has hedged actual interest
rate or foreign currency exposure and which are non-
speculative;
(iv) the Borrower may become and remain
liable under guaranties of the Debt of any of the
Borrower's Foreign Subsidiaries organized under
Canadian law, provided that the aggregate outstanding
amount of such guarantied Debt shall be treated as an
Investment and permitted only to the extent permitted
under Section 5.02(c);
(v) the Borrower and its Subsidiaries may
remain liable with respect to Contingent Obligations
existing as of the date hereof and listed on SCHEDULE
5.02(A);
(vi) the Borrower and its Subsidiaries may
become and remain liable with respect to Contingent
Obligations (in addition to Contingent Obligations
otherwise permitted by this Section 5.02(d)) incurred
in the ordinary course of business consistent with past
practice (excluding any guaranties of the obligations
of any Foreign Subsidiary), provided that the
Borrower's and its Subsidiaries' aggregate liability
with respect to such Contingent Obligations, when added
to the aggregate outstanding principal amount of Debt
of the Borrower and its Subsidiaries incurred pursuant
to Section 5.02(a)(ii), does not exceed $25,000,000;
(vii) the Subsidiary Guarantors may become and
remain liable under the Guaranties and under guaranties
of the Senior Notes; and
(viii) the Borrower and its Subsidiaries may
become and remain liable under Financial Guaranties to
the extent such Financial Guaranties are otherwise
permitted under Section 5.03(a).
(e) Restrictions on Fundamental Changes.
The Borrower shall not, and shall not permit any of its
Subsidiaries to, alter its corporate, capital or legal
structure, or enter into any transaction of merger or
consolidation, or liquidate, wind-up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell,
lease, sublease, transfer or otherwise dispose of, in one
transaction or a series of transactions, all or any
substantial part of its business, property or fixed assets,
whether now owned or hereafter acquired, or acquire by
purchase or otherwise all or substantially all the business,
property or fixed assets of, or stock or other evidence of
beneficial ownership of, any Person, except:
(i) any Subsidiary of the Borrower may be
merged or consolidated with or into the Borrower or any
wholly-owned Subsidiary of the Borrower (provided that
such wholly-owned Subsidiary is a Subsidiary
Guarantor), or be liquidated, wound up or dissolved, or
all or any substantial part of its business, property
or assets may be conveyed, sold, leased, transferred or
otherwise disposed of, in one transaction or a series
of transactions, to the Borrower or any wholly-owned
Subsidiary of the Borrower that is a Subsidiary
Guarantor; provided that, in the case of such a merger
or consolidation, the Borrower or such wholly-owned
Subsidiary shall be the continuing or surviving
corporation; and provided further that any wholly-owned
Subsidiary that is not a Subsidiary Guarantor may be
merged or consolidated with or into any other wholly-
owned Subsidiary that is not a Subsidiary Guarantor;
(ii) any Subsidiary of the Borrower may merge
or consolidate with any other Person, or the Borrower
or any Subsidiary of the Borrower may acquire the
business, property, assets or outstanding capital stock
of such other Person, provided (A) that the entity
surviving any such merger or consolidation or, in the
case of any acquisition of stock, the issuer of such
stock will, upon giving effect to such merger,
consolidation or acquisition, be (1) a wholly-owned
Subsidiary of the Borrower and (2) a guarantor of the
Obligations pursuant to the terms of a Guaranty, and
(B) that, after giving effect to such merger,
consolidation or acquisition, the Company, the Borrower
and their respective Subsidiaries are in compliance
with all of their respective covenants and agreements
set forth in this Agreement;
(iii) the Borrower and its Subsidiaries may in
each calendar year sell, lease, transfer or otherwise
dispose of assets and properties (other than stock of
their Subsidiaries) having an aggregate fair market
value not in excess of 5.0% of the Borrower's
consolidated total assets calculated as of the
beginning of such calendar year; provided that the
consideration received for such assets or properties
shall be in an amount at least equal to the fair market
value thereof; provided further that (A) dispositions
of inventory (including, without limitation, sales or
leases of buses or coaches which may or may not be
included in inventory) in the ordinary course of
business, (B) any disposition of assets expressly
permitted under clause (iv) below, (C) any dispositions
of plant, equipment and inventory used in the transit
bus manufacturing and remanufacturing businesses of the
Borrower and its Subsidiaries in connection with the
discontinuation and liquidation of such businesses and
(D) the Borrower's or any of its Subsidiary's sale of
its interests (as lessor) under any leases of buses
and/or coaches to customers in the ordinary course of
business and/or sales of any assets underlying such
leases, shall be excluded in determining compliance
with the foregoing 5.0% limitation; and
(iv) note, lease and other receivables (but
not trade receivables) of the Borrower's Subsidiaries
may be sold in arms-length transactions that are
customary for receivables financings, including, among
others, securitization transactions, which sales may be
on a non-recourse basis or on a limited recourse basis;
provided that any Contingent Obligations arising from
any such recourse or limited recourse must be permitted
under Section 5.02(d) and that the terms of any limited
recourse sale shall be consistent with past practice.
(f) Disposal of Subsidiary Stock. The
Borrower shall not:
(i) directly or indirectly sell, assign,
pledge or otherwise encumber or dispose of any shares
of capital stock or other equity securities of any of
its Subsidiaries, except to qualify directors if
required by applicable law; or
(ii) permit any of its Subsidiaries directly
or indirectly to sell, assign, pledge or otherwise
encumber or dispose of any shares of capital stock or
other equity securities of any of its Subsidiaries
(including such Subsidiary), except to the Borrower,
Subsidiary Guarantor, or to qualify directors if
required by applicable law.
(g) Plan Terminations. The Borrower will
not, and will not permit any ERISA Affiliate to, terminate
any Pension Plan so as to result in liability of the
Borrower or any ERISA Affiliate to the PBGC individually or
in the aggregate in excess of $5,000,000, or permit to exist
any occurrence of an event or condition which reasonably
presents a material risk of a termination by the PBGC of any
Pension Plan with respect to which the Borrower or any ERISA
Affiliate would, in the event of such termination, incur
liability to the PBGC individually or in the aggregate in
excess of $5,000,000.
(h) Employee Benefit Costs and Liabilities.
The Borrower will not, and will not permit any ERISA
Affiliate to, create or suffer to exist, (i) any
Insufficiency with respect to a Pension Plan, any Withdrawal
Liability with respect to a Multiemployer Plan or any
unfunded liabilities with respect to a Foreign Pension Plan
if, immediately after giving effect thereto, such
Insufficiencies, Withdrawal Liabilities and unfunded
liabilities of all Pension Plans, Multiemployer Plans and
Foreign Pension Plan, respectively, of the Borrower and its
ERISA Affiliates exceeds $5,000,000, (ii) except as provided
in Section 4980B of the Code and except as provided under
the terms of any employee welfare benefit plans (A) in
effect as of the date hereof or (B) provided from time to
time pursuant to the terms of collective bargaining
agreements, any employee benefit plan to provide health or
welfare benefits (through the purchase of insurance or
otherwise) for any retired or former employee of the
Borrower or any of its ERISA Affiliate unless the Borrower
and/or any of its ERISA Affiliates are permitted to
terminate such benefits pursuant to the terms of such
employee benefit plan, (iii) any accumulated funding
deficiency (as defined in Sections 302 of ERISA and 412 of
the Code), whether or not waived, (iv) any failure to pay
any required installment or any other payment required under
Section 412 of the Code that is reasonably likely to result
in the imposition of a lien under Section 412(n) of the Code
or (v) any failure to make any contribution or payment to
any Multiemployer Plan which Borrower or any ERISA Affiliate
may be required to make under any agreement relating to such
Multiemployer Plan, or any law pertaining thereto.
(i) No Restrictions on Subsidiary
Distributions to Borrower or Other Subsidiaries. Except for
encumbrances and restrictions that are identical to, or less
restrictive than, those provided in this Agreement and
except pursuant to the Canadian Debt, the Borrower will not,
and will not permit the Company or any of its Subsidiaries
to, create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction of any
kind on the ability of any such Subsidiary to (i) pay
dividends or make any other distributions on any of such
Subsidiary's capital stock owned by the Borrower or any
other Subsidiary of the Borrower, (ii) repay or prepay any
Indebtedness owed by such Subsidiary to the Borrower or any
other Subsidiary of the Borrower, (iii) make loans or
advances to the Borrower or any other Subsidiary of the
Borrower, or (iv) transfer any of its property or assets to
the Borrower or any other Subsidiary of the Borrower.
(j) Restricted Junior Payments. The
Borrower shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, declare, order,
pay, make or set apart any sum for any Restricted Junior
Payment, except that:
(i) the Borrower may make the Dina
Distribution, provided that (a) any portion of the
Dina Distribution not paid on the Effective Date
shall be paid in a single payment on or before
March 31, 1997, (b) on the date of such payment,
no Event of Default or Potential Event of Default
shall have occurred or be continuing, or would
result therefrom, and (c) prior to the date of any
such payment after the Effective Date, the
Borrower shall deliver to the Administrative Agent
a financial condition certificate signed by the
chief financial officer or treasurer of the
Borrower certifying that the Borrower is Solvent
after giving effect to such payment and attaching
thereto financial projections and a pro forma
"fair value" balance sheet of the Borrower and its
Subsidiaries supporting such certification, which
certificate and attachments shall be in form and
substance satisfactory to each of the Lenders; and
(ii) as long as (a) no Event of Default or
Potential Event of Default shall have occurred or
be continuing, or would result therefrom, and (b)
one of the following (a "Dividend Release Event")
shall have occurred:
(1) the Senior Notes shall have been refinanced on
terms and conditions acceptable to the
Administrative Agent and the Lenders and principal
payments with respect to such refinancing
indebtedness shall commence not earlier than
ninety-one (91) days after the Termination Date;
(2) all principal payments on the Senior Notes shall
have been deferred until at least ninety-one (91)
days after the Termination Date; or
(3) the Borrower shall have received Net Cash Proceeds
of at least $25,000,000 from a Financing, which
Net Cash Proceeds shall have been applied either
to the prepayment of the Obligations pursuant to
Section 2.07(b)(iii)(B) or to the prepayment of
principal payments on the Senior Notes which are
payable prior to ninety-one (91) days after the
Termination Date, and the principal payments with
respect to such Financing shall commence not
earlier than ninety-one (91) days after the
Termination Date;
then the Borrower may (A) declare and pay ordinary dividends
on its outstanding common stock in such amounts as may be
determined by its Board of Directors and (B) make other
distributions (including, without limitations, dividends on
preferred stock and payments for the redemption or
repurchase of common or preferred stock) provided that the
aggregate amount of all such distributions from and after
the date hereof does not exceed 50% of cumulative
Consolidated Net Income determined for all fiscal quarters
ending after the occurrence of a Dividend Release Event but
prior to the date of such distribution.
(k) Conduct of Business; Transfer of Assets.
The Borrower shall not, and shall not permit any of its
Subsidiaries to, (i) engage in any business other than lines
of business in which the Borrower and its Subsidiaries,
taken as a whole, are engaged in on the date hereof or (ii)
transfer or convey any of its or their assets to the
Company, other than cash in respect of Restricted Junior
Payments permitted by Section 5.02(j) or tax-related
payments permitted by Section 5.02(l).
(l) Transactions with Affiliates. The
Borrower will not and will not permit any of its
Subsidiaries directly or indirectly to enter into or permit
to exist any transaction (including the purchase, sale,
lease or exchange of any property or the rendering of any
service) with the Company or any Affiliate of the Company,
the Borrower or with any director, officer or employee of
any such Person, except (a) ordinary course compensation
arrangements pursuant to the reasonable requirements of the
business of the Borrower or any of its Subsidiaries and
consistent with past practice in effect at such time as the
common stock of the Company was publicly traded; (b)
transactions in the ordinary course of and pursuant to the
reasonable requirements of the business of the Borrower or
any of its Subsidiaries and upon fair and reasonable terms
which are no less favorable to the Borrower or such
Subsidiary than would be obtained in a comparable arm's
length transaction with a Person that is not such an
Affiliate, director, officer or employee; (c) transactions
arising from tax sharing arrangements among the Company, the
Borrower and the Borrower's Subsidiaries, provided that
pursuant to such arrangements the Borrower and its
Subsidiaries shall not be obligated to make distributions to
the Company in an amount in excess of the amount calculated
pursuant to SCHEDULE 5.02(L) minus any amounts in respect of
tax liabilities of the Company and its Subsidiaries paid
directly by the Borrower or any of its Subsidiaries to any
governmental entity; (d) transactions arising from the
Borrower's cash management system, so long as title and
dominion of the Borrower's and its Subsidiaries' accounts
remain in the name of the Borrower and its Subsidiaries, all
amounts held in such accounts are accessible by the Borrower
and its Subsidiaries and not more than $5,000,000 is at any
time held in such accounts; (e) transactions relating to
licenses of trade names, technology and other intellectual
property; (f) the payment of management fees at a time when
no Event of Default or Potential Event of Default has
occurred and is continuing to Dina of not more than $500,000
in the aggregate in any calendar year plus reasonable out-
of-pocket expenses incurred by Dina in an amount not
exceeding $500,000 in any calendar year; (g) joint ventures
and other operating arrangements with Dina and its
Subsidiaries the terms of which have been determined by the
Borrower's board of directors in good faith to be fair and
reasonable from the perspective of the Borrower and/or its
Subsidiaries. Notwithstanding any provision of this Section
5.02(l) to the contrary, the Borrower and its Subsidiaries
shall not (i) purchase, from Dina or any of its Subsidiaries
(excluding the Borrower and its Subsidiaries) or Affiliates,
any buses, coaches or other goods to be held in inventory
if, upon giving effect to such purchase, the aggregate
amount (valued at cost) of such inventory (excluding any
buses or coaches sold and financed by the Borrower and any
buses or coaches leased by the Borrower as lessor in the
ordinary course of business) held by the Borrower and its
Subsidiaries would exceed $20,000,000 at any time, or (ii)
in connection with purchases permitted by clause (i) above,
make payments therefor in advance of receipt of the
inventory or provide commercial letters of credit for the
account of the Borrower or any of its Subsidiaries and for
the benefit of Dina or any of its Subsidiaries (excluding
the Borrower and its Subsidiaries) in an aggregate amount
that would exceed $7,500,000 at any time.
(m) Management Contracts. The Borrower
shall not, and shall not permit any of its Subsidiaries to,
amend or modify the Management Contracts.
SECTION 5.3. FINANCIAL COVENANTS.
(a) Leverage Ratio. The Borrower will not
permit the Leverage Ratio to be greater than the ratios set
forth below at any time during the periods set forth below:
Applicable Period Maximum Ratio
Effective Date - March 30, 1997 4.25 to 1.00
March 31, 1997 - December 30, 1997 3.75 to 1.00
December 31, 1997 - December 30, 1998 3.25 to 1.00
At all times thereafter 3.00 to 1.00
(b) Fixed Charge Coverage Ratio. The
Borrower will not permit the ratio ("Fixed Charge Coverage
Ratio) of (i) the sum of Consolidated EBITDA minus
Consolidated Capital Expenditures plus Consolidated Rental
Payments to (ii) the sum of Consolidated Interest Expense
plus Consolidated Rental Payments plus payments (but not
prepayments) made with respect to scheduled amortization of
all Debt of the Borrower and its Subsidiaries during such
period plus consolidated cash tax expense with respect to
income taxes of the Borrower and its consolidated
Subsidiaries (whether paid directly or indirectly) plus the
aggregate amount of cash dividends (or similar Restricted
Junior Payments) other than the Dina Distribution paid
during such period with respect to the Borrower's Capital
Stock, determined as of the last day of each fiscal quarter
for the four fiscal quarter period then ended, to be less
than 1.40 to 1.00 as of the last day of any fiscal quarter;
provided, if the Borrower does not refinance the Senior
Notes and/or defer all principal payments thereon until at
least ninety-one days after the Termination Date, in either
case by March 30, 1998, then the Borrower will not permit
the Fixed Charge Coverage Ratio, determined as of the last
day of each fiscal quarter for the four fiscal quarter
period then ended to be less than:
(i) 1.05 to 1.00 for the fiscal quarters ending
March 31, 1998 through December 31, 1998; and
(ii) 1.25 to 1.00 for the fiscal quarter ending
March 31, 1999 and each fiscal quarter thereafter.
(c) Capitalization Ratio. The Borrower
shall not permit the Capitalization Ratio to exceed 0.50 to
1.00 at any time.
(d) Net Worth. The Borrower shall not at
any time permit Consolidated Net Worth to be less than
$250,000,000, plus 40% of cumulative Consolidated Net Income
(including, for purposes of this Section, any after-tax
gains or losses attributable to asset sales or returned
surplus assets of any Pension Plan and any net extraordinary
gains or net extraordinary losses) for each quarter ending
after the date hereof plus 100% of the aggregate proceeds
received by the Company, the Borrower or any of its
Subsidiaries through the issuance and sale of any shares of
its Capital Stock after the date hereof; provided that no
effect shall be given to Consolidated Net Income for any
quarter to the extent it is negative.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.1. EVENTS OF DEFAULT. If any of the
following events ("Events of Default") shall occur and be
continuing:
(a) The Borrower shall fail to pay any
principal of any Advance when the same becomes due and
payable or the Borrower shall fail to pay any interest on
any Advance or any fees or other amounts payable hereunder
within five days of the date due; or
(b) Any representation or warranty made
by the Borrower herein or in connection with this
Agreement shall prove to have been incorrect in any
material respect when made; or
(c) The Borrower shall fail to perform
or observe (i) any term, covenant or agreement contained
in Section 5.01(c), Section 5.01(e), Section 5.02
(other than subsection (b) and (d) thereof) or Section
5.03 or (ii) any other term, covenant or agreement
contained in this Agreement on its part to be performed
or observed if the failure to perform or observe such
other term, covenant or agreement shall remain
unremedied for 30 days after the Borrower obtains, or
should have obtained, knowledge of such breach; or
(d) The Borrower or any of its
Subsidiaries shall fail to pay any principal of or
premium or interest on any Debt which is outstanding in
a principal amount of at least $5,000,000 in the
aggregate (but excluding Debt arising under this
Agreement) of the Borrower or any such Subsidiary (as
the case may be), when the same becomes due and payable
(whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure
shall continue after the applicable grace period, if
any, specified in the agreement or instrument relating
to such Debt; or any other event shall occur or
condition shall exist under any agreement or instrument
relating to any such Debt and shall continue after the
applicable grace period, if any, specified in such
agreement or instrument, if the effect of such event or
condition is to accelerate, or to permit the
acceleration of, the maturity of such Debt; or any such
Debt shall be declared to be due and payable, or
required to be prepaid (other than by a regularly
scheduled required prepayment or by a required
prepayment of insurance proceeds or by a required
prepayment as a result of formulas based on asset sales
or excess cash flow), redeemed, purchased or defeased,
or an offer to prepay, redeem, purchase or defease such
Debt shall be required to be made, in each case prior to
the stated maturity thereof; or
(e) The Borrower or any of its
Subsidiaries shall generally not pay its debts as such
debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors; or any
proceeding shall be instituted by or against the
Borrower or any of its Subsidiaries seeking to
adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or
its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or
seeking the entry of an order for relief or the
appointment of a receiver, trustee, custodian or other
similar official for it or for substantial part of its
property and, in the case of any such proceeding
instituted against it (but not instituted by it), either
such proceeding shall remain undismissed or unstayed for
a period of 60 days, or any of the actions sought in
such proceeding (including, without limitation, the
entry of an order for relief against, or the appointment
of a receiver, trustee, custodian or other similar
official for, it or for any substantial part of its
property) shall occur; or the Borrower or any of its
Subsidiaries shall take any corporate action to
authorize any of the actions set forth above in this
clause (e); or
(f) Any judgment or order for the
payment of money in excess of $5,000,000 shall be
rendered against the Borrower or any of its Subsidiaries
and such judgment or order shall not be satisfied,
bonded or stayed for any period of 10 consecutive days;
or
(g) Any Subsidiary Guarantor shall seek
to revoke its guaranty of the Obligations; or any
provisions of any Guaranty shall at any time for any
reason cease to be valid and binding on any Subsidiary
Guarantor (to the extent such Subsidiary Guarantor is a
party to such Guaranty); or any Subsidiary Guarantor
shall so state in writing; or
(h) (i) Any ERISA Event with
respect to a Pension Plan shall have occurred and,
30 days after notice thereof shall have been given
to the Borrower by the Administrative Agent,
(x) such ERISA Event shall still exist and (y) the
sum (determined as of the date of occurrence of
such ERISA Event) of the Insufficiency of such
Pension Plan and the Insufficiency of any and all
other Pension Plans with respect to which an ERISA
Event shall have occurred and then exist (or in the
case of a Pension Plan with respect to which an
ERISA Event described in clause (iii) through (vi)
of the definition of ERISA Event shall have
occurred and then exist, the liability related
thereto) is equal to or greater than $5,000,000; or
(ii) The Borrower or any ERISA Affiliate
shall have been notified by the sponsor of a
Multiemployer Plan that it has incurred an
aggregate Withdrawal Liability for all years to
such Multiemployer Plan in an amount that, when
aggregated with all other amounts required to be
paid to Multiemployer Plans by the Borrower and its
ERISA Affiliates as Withdrawal Liability
(determined as of the date of such notification),
exceeds $5,000,000 and such Withdrawal Liability
shall remain unpaid, or payment thereof shall not
be stayed pending any judicial review or challenge
relating to such Withdrawal Liability, for a period
of 10 consecutive days; or
(iii) The Borrower or any ERISA Affiliate
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 or ERISA, if as a result of
such reorganization or termination the aggregate
annual contributions of the Borrower and its ERISA
Affiliates to all Multiemployer Plans that are then
in reorganization or being terminated have been or
will be increased over the amounts contributed to
such Multiemployer Plans for the plan year of such
Multiemployer Plan immediately preceding the plan
year in which the reorganization or termination
occurs by an amount exceeding $5,000,000; or
(iv) The plan administrator of any Single
Employer Plan applies under Section 412(d) of the
Code for a waiver of the minimum funding standards
of Section 412(a) of the Code and the
Administrative Agent reasonably believes that the
substantial business hardship upon which the
application for the waiver is based could subject
Borrower of any ERISA Affiliate to a liability in
excess of $5,000,000; or
(i) The Borrower shall fail to pay such fees as
have been mutually agreed upon between the Borrower and
the Arranger or the Administrative Agent in relation to
this Agreement within five days of the date due;
(j) The following officers of the Borrower and its
Subsidiaries and Affiliates shall be terminated from
employment, or shall no longer be performing their
current functions, in the respective positions set forth
below at any time during the term of this Agreement for
any reason whatsoever other than at any such officer's
own election: (a) both of the Borrower Financial
Officers; (b) either of the Borrower Financial Officers
and any two of the Other Executive Officers; or (c) any
three of the Other Executive Officers;
Borrower Financial Officers:
Treasurer Albert J. Abram
Controller Jeffrey Sanders
Other Executive Officers:
Borrower Chief Operating Officer James P. Bernacchi
Borrower Chief Financial Officer Jose L. O. Caballero
Universal Coach
Parts, Inc. President Jerry W. Bost
Dina Chairman Rafael Gomez Flores
Dina Director of Legal Affairs Guillermo Kareh Aarun
Dina Commercial Director Gamaliel Garcia Cortes
Hausman Bus Vice President - Sales and Francois Bouffard
Sales, Inc. Marketing - U.S. and Canada
then (i) upon the occurrence and during the continuance
of any Event of Default described in the foregoing
Section 6.01(e) each of (x) the unpaid principal amount
of and accrued interest on the Advances, (y) an amount
equal to the maximum amount which may at any time be
drawn under all Letters of Credit then outstanding
(whether or not any beneficiary under any Letter of
Credit shall have presented, or shall be entitled at
such time to present, the drafts or other documents
required to draw under such Letter of Credit) and
(z) all other Obligations shall automatically become
immediately due and payable, without presentment,
demand, protest or other requirements of any kind, all
of which are hereby expressly waived by the Borrower and
the obligation of each Lender to make any Advance, the
obligation of the Swing Line Bank to make any Swing Line
Loan and the obligation of any Lender or NBD Bank to
issue any Letter of Credit hereunder shall thereupon
terminate, and (ii) upon the occurrence and during the
continuation of any other Event of Default, the
Administrative Agent may, or upon the written request of
Majority Lenders shall, by written notice to the
Borrower (1) declare all of the Advances to be, and an
amount equal to the amounts described in clauses (x)
through (z) above to be, and the same shall forthwith
become, due and payable, together with accrued interest
thereon, and/or (2) terminate the obligation of each
Lender to make any Advance, the obligation of the Swing
Line Bank to make any Swing Line Loan and the obligation
of any Lender or NBD Bank to issue any Letter of Credit
hereunder shall thereupon terminate; provided that the
foregoing shall not affect in any way the obligations of
Lenders to purchase from the Swing Line Bank
participations in the Swing Line Loans as provided in
Section 2.03 or the obligations of Lenders to purchase
from any Issuing Lender participations in the
unreimbursed amount of any drawings under any Letters of
Credit as provided in Section 2.04(d). So long as any
Letter of Credit shall remain outstanding, any amounts
described in clause (y) above with respect to such
Letter of Credit, when received by the Administrative
Agent, shall be held by the Administrative Agent
pursuant to such documentation as the Administrative
Agent shall request, as cash collateral for the
obligation of the Borrower to reimburse the applicable
Issuing Lender in the event of any drawing under such
Letter of Credit, and so much of such funds shall at all
times remain on deposit as cash collateral as aforesaid
as shall equal the maximum amount available at any time
for drawing under all Letters of Credit (the "Maximum
Available Amount"); provided that, in the event of
cancellation or expiration of any Letter of Credit or
any reduction in the Maximum Available Amount, the
Administrative Agent shall apply the difference between
the Maximum Available Amount immediately prior to such
cancellation, expiration or reduction and the Maximum
Available Amount immediately after such cancellation or
reduction, first, to the payment in full of the
outstanding Obligations, and second, to the Borrower or
to such other Person who may be lawfully entitled to
receive such funds or as a court of competent
jurisdiction may direct.
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.1. APPOINTMENT; NATURE OF RELATIONSHIP.
NBD Bank is appointed by the Lenders as the
Administrative Agent hereunder and under each other Loan
Document, and each of the Lenders irrevocably authorizes
the Administrative Agent to act as the contractual
representative of such Lender with the rights and duties
expressly set forth herein and in the other Loan
Documents. The Administrative Agent agrees to act as
such contractual representative upon the express
conditions contained in this Article VII.
Notwithstanding the use of the defined term "Agent," it
is expressly understood and agreed that the
Administrative Agent shall not have any fiduciary
responsibilities to any Lender by reason of this
Agreement 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 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 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 waives.
SECTION 7.2. 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 or fiduciary duties to the Lenders, or any
obligation to the Lenders to take any action hereunder
or under any of the other Loan Documents except any
action specifically provided by the Loan Documents
required to be taken by the Administrative Agent.
SECTION 7.3. 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
to the extent such action or inaction is found in a
final judgment by a court of competent jurisdiction to
have arisen solely from (i) the Gross Negligence or
willful misconduct of such Person or (ii) breach of
contract by such Person with respect to the Loan
Documents.
SECTION 7.4. NO RESPONSIBILITY FOR LOANS,
CREDITWORTHINESS, RECITALS, ETC. Neither the
Administrative Agent nor any of its directors, officers,
affiliates, 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; (iii) the satisfaction of any condition
specified in Article III, except receipt of items
required to be delivered solely to the Administrative
Agent; (iv) the existence or possible existence of any
Event of Default or Potential Event of Default or (v)
the validity, effectiveness or genuineness of any Loan
Document or any other instrument or writing furnished in
connection therewith. The Administrative Agent shall
not be responsible to any Lender for any recitals,
statements, representations or warranties herein or in
any of the other Loan Documents or for the execution,
effectiveness, genuineness, validity, legality,
enforceability, collectibility, or sufficiency of this
Agreement or any of the other Loan Documents or the
transactions contemplated thereby, or for the financial
condition of any guarantor of any or all of the
Obligations, the Company, the Borrower or any of their
respective Subsidiaries.
SECTION 7.5. ACTION ON INSTRUCTIONS OF LENDERS.
The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting,
hereunder and under any other Loan Document in
accordance with written instructions signed by the
Majority Lenders (unless all of the Lenders are
expressly required pursuant to the terms of this
Agreement), 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
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.
SECTION 7.6. EMPLOYMENT OF AGENTS AND COUNSEL.
The Administrative Agent may execute any of its duties
as the Administrative Agent hereunder and under any
other Loan Document by or through employees, agents, and
attorney-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it
or its authorized agents, for the default or misconduct
of any such agents or attorneys-in-fact selected by it
with reasonable care. The Administrative Agent shall be
entitled to advice of counsel concerning the contractual
arrangement between the Administrative Agent and the
Lenders and all matters pertaining to the Administrative
Agent's duties hereunder and under any other Loan
Document.
SECTION 7.7. 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.
SECTION 7.8. THE ADMINISTRATIVE AGENT'S
REIMBURSEMENT AND INDEMNIFICATION. The Lenders agree to
reimburse and indemnify the Administrative Agent ratably
in proportion to their respective Commitment (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 any of the
foregoing is found in a final non-appealable judgment by
a court of competent jurisdiction to have arisen solely
from the Gross Negligence or willful misconduct of the
Administrative Agent.
SECTION 7.9. RIGHTS AS A LENDER. With respect to
its Commitment, Advances made by it and the Notes issued
to it, 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, 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 or Affiliates in which such
Person is not prohibited hereby from engaging with any
other Person.
SECTION 7.10. LENDER CREDIT DECISION. Each Lender
acknowledges that it has, independently and without
reliance upon the Administrative Agent, the Arranger 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, the
Arranger 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.
SECTION 7.11. SUCCESSOR ADMINISTRATIVE AGENT. The
Administrative Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower,
and the Administrative Agent may be removed at any time
with or without cause by written notice received by the
Administrative Agent from the Majority Lenders. Upon
any such resignation or removal, the Majority 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 Majority Lenders and shall have
accepted such appointment within thirty days after the
retiring Administrative Agent's giving notice of
resignation, then the retiring Administrative Agent may
appoint, on behalf of the Borrower and the Lenders, a
successor Administrative Agent. Notwithstanding
anything herein to the contrary, so long as no Event of
Default has occurred and is continuing, each such
successor Administrative Agent shall be subject to
approval by the Borrower, which approval shall not be
unreasonably withheld. Such successor Administrative
Agent shall be an Eligible Assignee. Upon the
acceptance of any appointment as the Administrative
Agent hereunder by a successor Administrative Agent,
such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights,
powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and
obligations hereunder and under the other Loan
Documents. After any retiring Administrative Agent's
resignation hereunder as Administrative Agent, the
provisions of this Article VII shall continue in effect
for its benefit 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.
SECTION 7.12. LOAN DOCUMENTS. Each of the
Lenders, by its execution hereof or acceptance of the
benefits hereof, hereby appoints the Administrative
Agent hereunder (including any successor Administrative
Agent) as its Administrative Agent for the purpose of
executing and delivering, and accepting the delivery of,
any Guaranty and hereby authorizes the Administrative
Agent, as such Lender's Administrative Agent, to enter
into such Loan Documents on behalf of and for the
benefit of the Lenders with the understanding that each
Lender and the Administrative Agent shall be bound
thereby. The Administrative Agent shall not enter into
any amendment or modification of any such Loan Document
without the prior written consent of Majority Lenders.
Each of the Lenders and the Administrative Agent agree
that no Lender shall have any right individually to
enforce any Guaranty, it being agreed and understood
that all rights and remedies available to the Lenders
and the Administrative Agent thereunder shall be
exercised by the Administrative Agent, for the benefit
of itself and the Lenders in accordance with the terms
of such Loan Documents and this Agreement. Each of the
Lenders and the Administrative Agent agree that all
rights and remedies available to the Lenders and the
Administrative Agent shall be exercised by the
Administrative Agent, for the benefit of the Lenders in
accordance with the terms of this Agreement and the
other Loan Documents.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. AMENDMENTS, ETC. No amendment or
waiver of any provision of this Agreement, nor consent
to any departure by the Borrower therefrom, shall in any
event be effective unless the same shall be in writing
and signed by the Majority Lenders, and then such waiver
or consent shall be effective only in the specific
instance and for the specific purpose for which given;
provided, however, that no amendment, waiver or consent
shall, unless in writing and signed by all the Lenders,
do any of the following: (a) waive any of the
conditions specified in Section 3.01, (b) increase the
Commitments of the Lenders or subject the Lenders to any
additional obligations, (c) reduce the principal of, or
interest on, the Advances or any fees or other amounts
payable hereunder, (d) postpone any date fixed for any
mandatory reduction in the Commitments or payment of
principal of, or interest on, the Advances or any fees
or other amounts payable hereunder, (e) change the
percentage of the Commitments or of the aggregate unpaid
principal amount of the Advances, or the number of
Lenders, which shall be required for the Lenders or any
of them to take any action hereunder or (f) amend this
Section 8.01; and provided, further, that no amendment,
waiver or consent shall, unless in writing and signed by
the Administrative Agent in addition to the Lenders
required above to take such action, affect the rights or
duties of the Administrative Agent under this Agreement;
and provided still further that no amendment, waiver or
consent shall, unless in writing signed by the Swing
Line Bank, affect the rights and duties of the Swing
Line Bank; and provided still further that no amendment,
waiver or consent shall, unless in writing signed by
each Issuing Bank having issued an outstanding Letter of
Credit, affect the rights and duties of such Issuing
Bank with respect to any such Letter of Credit.
SECTION 8.2. NOTICES, ETC. All notices and other
communications provided for hereunder shall be in
writing (including telecopier, telegraphic, telex or
cable communication) and mailed, telecopied,
telegraphed, telexed, cabled or delivered, if to the
Company or the Borrower, at their address at 1850 North
Central Avenue, 9th Floor, Phoenix, Arizona 85004,
Attention: Treasurer; if to any Lender named on SCHEDULE
1.01 hereto, at its Domestic Lending Office specified
opposite its name on SCHEDULE 1.01 hereto; if to any
other Lender, at its Domestic Lending Office specified
in the Assignment and Acceptance pursuant to which it
became a Lender; and if to the Administrative Agent,
(A) for all notices and communications relating to
assignments, borrowings or repayments, including,
without limitation, any Notice of Borrowing, Notice of
Conversion/Continuation or notice of repayment or
prepayment, at its address at NBD Bank, 611 Woodward
Avenue, Detroit, Michigan 48226, Attention: Kathy Boles
with a copy of any such Notice of Borrowing or notice of
repayment or prepayment being sent by telecopy to NBD
Bank, telecopier number 313-225-2747, Attention: Kathy
Boles, and (B) for legal notices at Sidley & Austin, One
First National Plaza, Chicago, Illinois 60603
Attention: Douglas H. Williams, telecopier number 312-
853-7036; or, as to the Borrower or the Administrative
Agent, at such other address as shall be designated by
such party in a written notice to the other parties and,
as to each other party, at such other address as shall
be designated by such party in a written notice to the
Borrower and the Administrative Agent. All such notices
and communications shall, when personally delivered,
mailed, telecopied, telegraphed, telexed or cabled, be
effective when personally delivered, after five (5) days
after being deposited in the mails, when delivered to
the telegraph company, when confirmed by telex
answerback or when delivered to the cable company,
respectively, except that notices and communications to
the Administrative Agent pursuant to Article II or VII
shall not be effective until received by the
Administrative Agent.
SECTION 8.3. NO WAIVER; REMEDIES. No failure on
the part of any Lender or the Administrative Agent to
exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall
any single or partial exercise of any such right
preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any
remedies provided by law.
SECTION 8.4. COSTS, EXPENSES AND INDEMNIFICATION.
(a) Expenses. The Borrower shall reimburse the
Administrative Agent and the Arranger for any reasonable
costs and out-of-pocket expenses (including attorneys'
and paralegals' fees and time charges of attorneys and
paralegals for the Administrative Agent and the
Arranger, which attorneys and paralegals may be
employees of the Administrative Agent or the Arranger)
paid or incurred by the Administrative Agent or the
Arranger in connection with the preparation,
negotiation, execution, delivery, syndication, review,
amendment, modification, and administration of the Loan
Documents. The Borrower also agrees to reimburse the
Administrative Agent, the Arranger and the Lenders for
any costs, and out-of-pocket expenses (including
attorneys' and paralegals' fees and time charges of
attorneys and paralegals for the Administrative Agent,
the Arranger and the Lenders, which attorneys and
paralegals may be employees of the Administrative Agent,
the Arranger or the Lenders) paid or incurred by the
Administrative Agent, the Arranger or any Lender in
connection with the collection of the Obligations and
enforcement of the Loan Documents. In addition to
expenses set forth above, the Borrower agrees to
reimburse the Administrative Agent, promptly after the
Administrative Agent's request therefor, for each audit
or other business analysis performed by or for the
benefit of the Lenders in connection with this Agreement
or the other Loan Documents in an amount equal to the
Administrative Agent's then customary charges for each
person employed to perform such audit or analysis, plus
all costs and expenses (including without limitation,
travel expenses) incurred by the Administrative Agent in
the performance of such audit or analysis.
Administrative Agent shall provide the Borrower with a
detailed statement of all reimbursements requested under
this Section 8.04(A).
(b) Indemnity. The Borrower further agrees to
defend, protect, indemnify, and hold harmless the
Administrative Agent, the Arranger and each and all of
the Lenders and each of their respective Affiliates, and
each of such Administrative Agent's, Arranger's,
Lender's, or Affiliate's respective officers, directors,
employees, attorneys and agents (including, without
limitation, those retained in connection with the
satisfaction or attempted satisfaction of any of the
conditions set forth in Article III) (collectively, the
"Indemnitees") from and against any and all liabilities,
obligations, losses, damages, penalties, actions,
judgments, suits, claims, costs, expenses of any kind or
nature whatsoever (including, without limitation, the
fees and disbursements of counsel for such Indemnitees
in connection with any investigative, administrative or
judicial proceeding, whether or not such Indemnitees
shall be designated a party thereto), imposed on,
incurred by, or asserted against such Indemnitees in any
manner relating to or arising out of:
(i) this Agreement, the other Loan Documents,
or any act, event or transaction related or
attendant thereto, the making of the Advances, the
making of the Dina Distribution and the issuance of
and participation in Letters of Credit hereunder,
the management of such Advances or Letters of
Credit, the use or intended use of the proceeds of
the Advances or Letters of Credit hereunder, or any
of the other transactions contemplated by the Loan
Documents; or
(ii) any liabilities, obligations,
responsibilities, losses, damages, personal injury,
death, punitive damages, economic damages,
consequential damages, treble damages, intentional,
willful or wanton injury, damage or threat to the
environment, natural resources or public health or
welfare, costs and expenses (including, without
limitation, attorney, expert and consulting fees
and costs of investigation, feasibility or remedial
action studies), fines, penalties and monetary
sanctions, interest, direct or indirect, known or
unknown, absolute or contingent, past, present or
future relating to violation of any environmental,
health or safety requirements of law arising from
or in connection with the past, present or future
operations of the Company, the Borrower, its
Subsidiaries or any of their respective
predecessors in interest, or, the past, present or
future environmental, health or safety condition of
any respective property of the Borrower or its
Subsidiaries, the presence of asbestos-containing
materials at any respective property of the
Borrower or its Subsidiaries or the release or
threatened release of any contaminant or hazardous
substance into the environment (collectively, the
"Indemnified Matters");
provided, however, the Borrower shall have no obligation to an
Indemnitee hereunder with respect to Indemnified Matters caused
solely by or resulting solely from the willful misconduct or
Gross Negligence of such Indemnitee or breach of contract by
such Indemnitee with respect to the Loan Documents, in each
case, as determined by the final non-appealed judgment of a
court of competent jurisdiction. If the undertaking to
indemnify, pay and hold harmless set forth in the preceding
sentence may be unenforceable because it is violative of any
law or public policy, the Borrower shall contribute the maximum
portion which it is permitted to pay and satisfy under
applicable law, to the payment and satisfaction of all
Indemnified Matters incurred by the Indemnitees.
(c) Waiver of Certain Claims; Settlement of Claims.
The Borrower further agrees to assert no claim against any
of the Indemnitees on any theory of liability for
consequential, special, indirect, exemplary or punitive
damages. No settlement shall be entered into by the
Company, the Borrower or any if its Subsidiaries with
respect to any claim, litigation, arbitration or other
proceeding relating to or arising out of the transaction
evidenced by this Agreement or the other Loan Documents or
in connection with the Dina Distribution (whether or not
the Administrative Agent or any Lender or any Indemnitee
is a party thereto) unless such settlement releases all
Indemnitees from any and all liability with respect
thereto.
(d) Survival of Agreements. The obligations and
agreements of the Borrower under this Section 8.04 shall
survive the termination of this Agreement.
SECTION 8.5. RIGHT OF SET-OFF. Upon (i) the
occurrence and during the continuance of any Event of
Default and (ii) the making of the request or the granting
of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the Advances due and
payable pursuant to the provisions of Section 6.01, each
Lender is hereby authorized at any time and from time to
time, to the fullest extent permitted by law, to set off
and apply any and all deposits (time or demand,
provisional or final, or general, but not special) at any
time held and other indebtedness at any time owing by such
Lender to or for the credit or the account of the Borrower
against any and all of the obligations of the Borrower now
or hereafter existing under this Agreement that are then
due and payable, whether or not such Lender shall have
made any demand under this Agreement. Each Lender agrees
promptly to notify the Borrower after any such set-off and
application made by such Lender, provided that the failure
to give such notice shall not affect the validity of such
set-off and application. The rights of each Lender under
this Section 8.05 are in addition to other rights and
remedies (including, without limitation, other rights of
set-off) which such Lender may have.
Notwithstanding any other provision of this
Agreement, if (i) any Event of Default is then occurring
or (ii) the Administrative Agent has declared the Advances
due and payable pursuant to the provisions of
Section 6.01, any Lender that sets off any such deposits
or other indebtedness held or owing to such Lender, shall
share the amount recovered by such Lender through such
set-off with the other Lenders and the holders of the
Senior Notes by purchasing participations in amounts
outstanding under this Agreement (including, without
limitation, Letters of Credit) and the Senior Notes, so
that the amounts owing to each such Person under this
Agreement (including, without limitation, the maximum
amount that may be drawn under all outstanding Letters of
Credit) and the Senior Notes are ratably reduced based on
the aggregate of such amounts owing to all such Persons;
provided, however, that if all or any portion of the
amount recovered by any such set-off is thereafter
recovered from such purchasing Lender, such purchase from
each Lender and each holder of the Senior Notes shall be
rescinded to the extent of such recovery and each Lender
and Senior Noteholder shall repay to the purchasing Lender
the purchase price to the extent of such recovery together
with an amount equal to such Lender's or Senior
Noteholder's ratable share (according to the proportion of
(i) the amount of such Lender's or Senior Noteholder's
required repayment to (ii) the total amount so recovered
from the purchasing Lender) of any interest or other
amount paid or payable by the purchasing Lender in respect
of the total amount so recovered. The Borrower agrees
that any Lender so purchasing a participation from another
Lender pursuant to this Section 8.05 may, to the fullest
extent permitted by law, exercise all its rights of
payment (including the right of set-off) with respect to
such participation as fully as if such Lender were the
direct creditor of the Borrower in the amount of such
participation. The Borrower and the Lenders acknowledge
that the provisions of this paragraph are for the benefit
of the holders of the Senior Notes and that this paragraph
may not be amended without the consent of the holders of a
majority of the principal amount outstanding under the
Senior Notes.
SECTION 8.6. BINDING EFFECT. This Agreement shall
become effective when it shall have been executed by the
Borrower and the Administrative Agent and the
Administrative Agent shall have been notified by each
Lender that such Lender has executed it and thereafter
shall be binding upon and inure to the benefit of the
Company, the Borrower, the Administrative Agent and each
Lender, and their respective successors and permitted
assigns, except that the Borrower shall not have the right
to assign its rights hereunder or any interest herein
without the prior written consent of all Lenders.
SECTION 8.7. ASSIGNMENTS AND PARTICIPATIONS.
(a) Each Lender may assign to another Lender or, with the
consent of the Borrower (which consent shall not be
unreasonably withheld), to one or more Eligible Assignees
all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion
of its Commitment, its participations in Letters of
Credit, its participations in Swing Line Loans and the
Advances owing to it); provided, however, that (i) each
such assignment shall be of a constant, and not a varying,
percentage of all rights and obligations under this
Agreement, (ii) after giving effect to any such
assignment, (1) the assigning Lender shall no longer
have any Commitment or (2) the amount of the assignment
shall not be less than $5,000,000 (or after the occurrence
of and during the continuance of an Event of Default such
lesser amount to which the Administrative Agent has
agreed), (iii) each such assignment shall be to an
Eligible Assignee consented to by the Agent (which consent
will not be unreasonably withheld), and (iv) the parties
to each such assignment shall execute and deliver to the
Administrative Agent, for its acceptance and recording in
the Register, an Assignment and Acceptance, and a
processing and recordation fee of $3,500. Notwithstanding
the foregoing, no consent of the Borrower shall be
required for any assignment made (i) as part of the
primary syndication of the Commitments and Obligations or
(ii)after the occurrence and during the continuance of an
Event of Default. Upon such execution, delivery,
acceptance and recording, from and after the effective
date specified in each Assignment and Acceptance, (x) the
assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance,
have the rights and obligations of a Lender hereunder and
(y) the Lender assignor thereunder shall, to the extent
that rights and obligations hereunder have been assigned
by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations
under this Agreement (and, in the case of an Assignment
and Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under this
Agreement, such Lender shall cease to be a party hereto).
Any Lender may at any time pledge or assign all or any
portion of its rights hereunder to a Federal Reserve Bank
without satisfying the requirements of clauses (i) through
(iv) above; provided, that no such pledge or assignment
shall release such Lender from any of its obligations
hereunder.
(b) By executing and delivering an
Assignment and Acceptance, the Lender assignor thereunder
and the assignee thereunder confirm to and agree with each
other and the other parties hereto as follows: (i) other
than as provided in such Assignment and Acceptance, such
assigning Lender makes no representation or warranty and
assumes no responsibility with respect to any statements,
warranties or representations made in or in connection
with any of the Loan Documents or the execution, legality,
validity, enforceability, genuineness, sufficiency or
value of any of the Loan Documents or any other instrument
or document furnished pursuant hereto or thereto;
(ii) such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to the
financial condition of the Borrower or any Subsidiary
Guarantor or the performance or observance by the Borrower
or any Subsidiary Guarantor of any of its obligations
under any of the Loan Documents or any other instrument or
document furnished pursuant hereto or thereto; (iii) such
assignee confirms that it has received a copy of the Loan
Documents, together with copies of the financial
statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into
such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Administrative
Agent, the Arranger, such assigning Lender 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
the Loan Documents; (v) such assignee confirms that it is
an Eligible Assignee; (vi) such assignee appoints and
authorizes the Administrative Agent to take such action as
Administrative Agent on its behalf and to exercise such
powers under the Loan Documents as are delegated to the
Administrative Agent by the terms hereof, together with
such powers as are reasonably incidental thereto; and
(vii) such assignee agrees that it will perform in
accordance with their terms all of the obligations which
by the terms of the Loan Documents are required to be
performed by it as a Lender.
(c) The Administrative Agent shall
maintain at its address referred to in Section 8.02 a copy
of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the
names and addresses of the Lenders and the Commitment of,
and principal amount of the Advances owing to, each
Lender from time to time (the "Register"). The entries in
the Register shall be conclusive and binding for all
purposes, absent manifest error, and the Borrower, the
Administrative Agent and the Lenders may treat each Person
whose name is recorded in the Register as a Lender
hereunder for all purposes of the Loan Documents. The
Register shall be available for inspection by the Borrower
or any Lender at any reasonable time and from time to time
upon reasonable prior notice.
(d) Upon its receipt of the required
recordation fee, an Assignment and Acceptance executed by
an assigning Lender and an assignee representing that it
is an Eligible Assignee, and upon any necessary consent of
the Borrower thereto, which consent shall not be
unreasonably withheld, the Administrative Agent shall, if
such Assignment and Acceptance has been completed and is
in substantially the form of EXHIBIT A hereto, (i) accept
such Assignment and Acceptance and (ii) record the
information contained therein in the Register.
(e) Each Lender may sell participations to
one or more banks or other financial institutions in or to
all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion
of its Commitment, its participations in Letters of
Credit, its participation in Swing Line Loans and the
Advances owing to it; provided, however, that (i) such
Lender's obligations under this Agreement (including,
without limitation, its Commitment to the Borrower
hereunder) shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) such Lender
shall remain the holder of any such Advance for all
purposes of this Agreement, (iv) the Borrower, the
Administrative Agent and the other Lenders shall continue
to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under the Loan
Documents, and (v) no Lender shall grant any
participation under which the participant shall have
rights to require such Lender to take or omit to take any
action hereunder or under the other Loan Documents or
approve any amendment to or waiver of this Agreement or
the other Loan Documents, except to the extent such
amendment or waiver would: (A) extend the Termination
Date; or (B) reduce the interest rate or the amount of
principal or fees applicable to Advances or the Commitment
in which such participant is participating.
(f) Any Lender may, in connection with any
assignment or participation or proposed assignment or
participation pursuant to this Section 8.07, disclose to
the assignee or participant or proposed assignee or
participant, any information relating to the Borrower, the
Company or any Guarantor furnished to such Lender by or on
behalf of the Borrower, the Company or any Guarantor;
provided that, prior to any such disclosure, the assignee
or participant or proposed assignee or participant shall
agree to preserve the confidentiality of any confidential
information relating to the Borrower, the Company or any
Guarantor received by it from such Lender.
SECTION 8.8. GOVERNING LAW. THE ADMINISTRATIVE AGENT
ACCEPTS THIS AGREEMENT, ON BEHALF OF ITSELF AND THE
LENDERS, AT CHICAGO, ILLINOIS BY ACKNOWLEDGING AND
AGREEING TO IT THERE. ANY DISPUTE BETWEEN THE BORROWER
AND THE AGENT OR ANY LENDER, ARISING OUT OF, CONNECTED
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED BETWEEN THEM IN CONNECTION WITH, THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, AND WHETHER
ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE
RESOLVED IN ACCORDANCE WITH THE INTERNAL LAWS (WITHOUT
REGARD TO THE CONFLICTS OF LAWS PROVISIONS) OF THE STATE
OF ILLINOIS.
SECTION 8.9. EXECUTION IN COUNTERPARTS. This
Agreement may be executed in any number of counterparts
and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute
one and the same agreement.
SECTION 8.10. CONSENT TO JURISDICTION; SERVICE OF
PROCESS.
(A) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN
SUBSECTION (B), EACH OF THE PARTIES HERETO AGREES THAT ALL
DISPUTES AMONG THEM ARISING OUT OF, CONNECTED WITH,
RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
AMONG THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OF
THE OTHER LOAN DOCUMENTS WHETHER ARISING IN CONTRACT,
TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED EXCLUSIVELY
BY STATE OR FEDERAL COURTS LOCATED IN CHICAGO, ILLINOIS,
BUT THE PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS FROM
THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED
OUTSIDE OF CHICAGO, ILLINOIS. EACH OF THE PARTIES HERETO
WAIVES IN ALL DISPUTES BROUGHT PURSUANT TO THIS SUBSECTION
(A) ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE
COURT CONSIDERING THE DISPUTE.
(B) OTHER JURISDICTIONS. THE BORROWER AGREES THAT
THE ADMINISTRATIVE AGENT OR ANY LENDER SHALL HAVE THE
RIGHT TO PROCEED AGAINST THE BORROWER OR ITS PROPERTY IN A
COURT IN ANY LOCATION TO ENABLE SUCH PERSON TO (1) OBTAIN
PERSONAL JURISDICTION OVER THE BORROWER OR (2) TO ENFORCE
A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF SUCH
PERSON. THE BORROWER AGREES THAT IT WILL NOT ASSERT ANY
PERMISSIVE COUNTERCLAIMS IN ANY PROCEEDING BROUGHT BY SUCH
PERSON TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR
OF SUCH PERSON. THE BORROWER WAIVES ANY OBJECTION THAT IT
MAY HAVE TO THE LOCATION OF THE COURT IN WHICH SUCH PERSON
HAS COMMENCED A PROCEEDING DESCRIBED IN THIS SUBSECTION
(B).
(C) SERVICE OF PROCESS. THE BORROWER WAIVES
PERSONAL SERVICE OF ANY PROCESS UPON IT AND IRREVOCABLY
APPOINTS CT CORPORATION SYSTEM, INC., THE BORROWER'S
REGISTERED AGENT, WHOSE ADDRESS IS 208 SOUTH LASALLE
STREET, SUITE 1925, CHICAGO, ILLINOIS 60604, AS THE
BORROWER'S AGENT FOR THE PURPOSE OF ACCEPTING SERVICE OF
PROCESS ISSUED BY ANY COURT. THE BORROWER IRREVOCABLY
WAIVES ANY OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY
OBJECTION OF THE LAYING OF VENUE OR BASED ON THE GROUNDS
OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT OR ANY OTHER INSTRUMENT,
DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION
HEREWITH IN ANY JURISDICTION SET FORTH ABOVE.
SECTION 8.11. WAIVER OF TRIAL BY JURY; WAIVER OF
BOND; ADVICE OF COUNSEL. (A) WAIVER OF JURY TRIAL.
EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY RIGHT TO
HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF,
CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH
THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH.
EACH OF THE PARTIES HERETO AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE
DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY
HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT
TO TRIAL BY JURY. The scope of this waiver is intended to
be all-encompassing of any and all disputes that may be
filed in any court and that relate to the subject matter
of this transaction, including without limitation contract
claims, tort claims, breach of duty claims and all other
common law and statutory claims. Each party to this
Agreement acknowledges that this waiver is a material
inducement for each such party to enter into a business
relationship, that such parties have already relied on
this waiver in entering into this Agreement and that each
such party will continue to rely on this waiver in its
future dealings with the other parties hereunder. THIS
WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED
EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY
TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, RESTATEMENTS,
SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
(B) WAIVER OF BOND. THE BORROWER WAIVES THE POSTING
OF ANY BOND OTHERWISE REQUIRED OF ANY PARTY HERETO IN
CONNECTION WITH ANY JUDICIAL PROCESS OR PROCEEDING TO
ENFORCE ANY JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR
OF SUCH PARTY, OR TO ENFORCE BY SPECIFIC PERFORMANCE,
TEMPORARY RESTRAINING ORDER, PRELIMINARY OR PERMANENT
INJUNCTION, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT.
(C) ADVICE OF COUNSEL. EACH OF THE PARTIES
REPRESENTS TO EACH OTHER PARTY HERETO THAT IT HAS
DISCUSSED THIS AGREEMENT AND, SPECIFICALLY, THE PROVISIONS
OF SECTIONS 8.10 AND 8.11, WITH ITS COUNSEL AND THAT IT
KNOWINGLY AND VOLUNTARILY IS ENTERING INTO THIS AGREEMENT,
INCLUDING, WITHOUT LIMITATION THE WAIVERS IN SUCH
PROVISIONS.
SECTION 8.12. CONFIDENTIALITY. Each of the Lenders
and Administrative Agent shall hold all non-public
information obtained pursuant to the requirements of this
Agreement which has been identified as such by the
Borrower or any of its Subsidiaries in accordance with
their customary procedures for handling confidential
information but shall be permitted to make disclosures
reasonably requested by any bona fide assignee or
participant (which disclosures shall be subject to Section
8.07(f)) or by any governmental agency or any disclosures
required by law.
SECTION 8.13. AGREEMENT REGARDING LETTERS OF CREDIT.
Each Lender hereby agrees for the benefit of each other
Lender that it will not issue standby letters of credit
for the account of the Borrower, or letters of credit for
the account of any Subsidiary of the Borrower that are
guaranteed by the Borrower, other than Letters of Credit
issued by such Lender as an Issuing Lender hereunder.
SECTION 8.14. NO STRICT CONSTRUCTION. The parties
hereto have participated jointly in the negotiation and
drafting of this Agreement and the other Loan Documents.
In the event an ambiguity or question of intent or
interpretation arises, this Agreement and the other Loan
Documents shall be construed as if drafted jointly by the
parties hereto and no presumption or burden of proof shall
arise favoring or disfavoring any party by virtue of the
authorship of any provisions of this Agreement or the
other Loan Documents.
SECTION 8.15. RATABLE PAYMENTS. If any Lender,
whether by setoff or otherwise, has payment made to it
upon its Advances (other than payments expressly stated to
be payable to a specific Lender or on a non-pro-rata
basis) in a greater proportion than that received by any
other Lender, such Lender agrees, promptly upon demand, to
purchase a portion of the Advances held by the other
Lenders so that after such purchase each Lender will hold
its ratable proportion of Advances. 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 the Obligations owing to them. In case
any such payment is disturbed by legal process, or
otherwise, appropriate further adjustments shall be made.
SECTION 8.16. APPLICATION OF PAYMENTS. The
Administrative Agent shall, unless otherwise specified at
the direction of the Majority Lenders which direction
shall be consistent with the last sentence of this Section
8.16, apply all payments and prepayments in respect of any
Obligations and all proceeds of Collateral in the
following order:
(A) first, to pay interest on and then
principal of any portion of the Advances which the
Administrative Agent may have advanced on behalf of
any Lender for which the Administrative Agent has not
then been reimbursed by such Lender or the Borrower;
(B) second, to pay Obligations in respect of
any fees, expense reimbursements or indemnities then
due to the Administrative Agent;
(C) third, to pay Obligations in respect of any
fees, expenses, reimbursements or indemnities then
due to the Swing Line Bank, the Lenders and the
Issuing Lenders;
(D) fourth, to pay interest due in respect of
Swing Line Loans;
(E) fifth, to pay interest due in respect of
Advances (other than Swing Line Loans) and
Obligations with respect to Letters of Credit;
(F) sixth, to the ratable payment or prepayment
of principal outstanding on Swing Line Loans;
(G) seventh, to the ratable payment or
prepayment of principal outstanding on Advances
(other than Swing Line Loans) and Obligations in
respect of Letters of Credit in such order as the
Administrative Agent may determine in its sole
discretion;
(H) eighth, to provide cash collateral, if any,
required with respect to any of the Obligations under
this Agreement; and
(I) ninth, to the ratable payment of all other
Obligations.
Unless otherwise designated (which designation shall only
be applicable prior to the occurrence of an Event of
Default) by the Borrower, all principal payments in
respect of Advances (other than Swing Line Loans) shall be
applied first, to repay outstanding Base Rate Advances,
and then to repay outstanding Eurodollar Rate Advances
with those Eurodollar Rate Advances which have earlier
expiring Interest Periods being repaid prior to those
which have later expiring Interest Periods. The order of
priority set forth in this Section 8.16 and the related
provisions of this Agreement are set forth solely to
determine the rights and priorities of the Administrative
Agent, the Lenders, the Swing Line Bank and the Issuing as
among themselves. The order of priority set forth in
clauses (C) through (I) of this Section 8.16 may at any
time and from time to time be changed by the Majority
Lenders without necessity of notice to or consent of or
approval by the Borrower, or any other Person; provided,
that the order of priority of payments in respect of Swing
Line Loans may be changed only with the prior written
consent of the Swing Line Bank. The order of priority set
forth in clauses (A) and (B) of this Section 8.16 may be
changed only with the prior written consent of the
Administrative Agent.
SECTION 8.17. RELATIONS AMONG LENDERS. Except with
respect to the exercise of set-off rights of any Lender in
accordance with Section 8.05, the proceeds of which are
applied in accordance with this Agreement, and except as
set forth in the following sentence, each Lender agrees
that it will not take any action, nor institute any
actions or proceedings, against the Borrower or any other
obligor hereunder or with respect to any Loan Document,
without the prior written consent of the Majority Lenders
or, as may be provided in this Agreement or the other Loan
Documents, at the direction of the Administrative Agent.
The Lenders are not partners or co-venturers, and no
Lender shall be liable for the acts or omissions of, or
(except as otherwise set forth herein in case of the
Administrative Agent) authorized to act for, any other
Lender. Notwithstanding the foregoing, and subject to
Section 8.15, any Lender shall have the right to enforce
on an unsecured basis the payment of the principal of and
interest on any Advance made by it after the date such
principal or interest has become due and payable pursuant
to the terms of this Agreement.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed by their respective officers
thereunto duly authorized, as of the date first above
written.
Borrower:
TRANSPORTATION MANUFACTURING
OPERATIONS, INC.
By_____________________
Name:
Title:
Commitment Administrative Agent,
Swing Line Bank,
Issuing Lenders and
Lenders:
$125,000,000 NBD BANK, as
Administrative Agent,
Swing Line Bank,
Issuing Lender and a
Lender
By__________________________
Authorized Agent
Signature page to Credit Agreement
SCHEDULE 5.02(l)
Computation of Permissible Tax Payments
For purposes of Section 5.02(l) and this Schedule 5.02(l)
in respect of taxes, the following provisions shall be
applicable:
As used herein the term "Affiliated Group" means the
affiliated group as defined in Section 1504 of the
Internal Revenue Code of 1986, as amended (the "Code").
1. Determination of Federal Income Tax Liability.
For each fiscal year or part thereof (each, a
"Determination Period") with respect to which the
Company files a consolidated federal or state income
tax return and the Borrower is a member of the
Affiliated Group of which the Company is the common
parent corporation (the "Company Group") the Company
shall determine (i) the federal income tax liability
of the hypothetical Affiliated Group of which the
Borrower would be the common parent corporation (the
"Borrower Group") and (ii) the state liabilities of
each member of the Borrower Group on a separate
company or combined basis, as appropriate for such
Determination Period, on a stand-alone basis taking
only the income of the members of the Borrower Group
into account, such determination to (i) include any
benefit resulting from ordinary losses, capital
losses and tax credits of the members of the Borrower
Group from the current year or the carryforward of
ordinary losses, capital losses and tax credits of
the Borrower group from preceding years which would
be utilizable under the Code or relevant state law
and (ii) take into account the deductibility of state
income tax for federal income tax purposes. The
aggregate federal and state income tax liability for
all members of the Borrower Group determined in
accordance with this paragraph 1 with respect to any
Determination Period is referred to as the "Borrower
Group Tax Liability".
2. Payment of the Borrower's Tax Liability to
Holdings.
The Borrower shall be permitted to pay to the
Company the lesser of (i) the Borrower Group Tax
Liability for the relevant Determination Period (or
reasonable estimates thereof) and (ii) the sum of (x)
the amount determined by multiplying (A) the federal
income tax liability of the Company Group for such
Determination Period, by (B) a fraction, the
numerator of which is the federal income tax
liability of the Borrower Group for such
Determination Period and the denominator of which is
the aggregate federal income tax liabilities of each
member of the Company Group having positive liability
(determined in the manner described in paragraph 1
hereof) for such Determination Period, (y) with
respect to each state in which members of the
Borrower Group file a combined state income tax
return with members of the Company Group which are
not also members of the Borrower Group, the amount
determined by multiplying (C) the relevant combined
state tax liability of the Company Group for such
Determination Period by (D) a fraction, the numerator
of which is the combined hypothetical state income
tax liability of the members of the Borrower Group
(computed in a manner substantially similar to that
set forth in paragraph 1 for such Determination
Period) and the denominator of which is the combined
state income tax liability of all members of the
Company Group having positive liability for such
Determination Period and (z) with respect to each
state in which members of the Borrower Group do not
file such a combined return, the aggregate separate
state income tax liabilities of all of the members of
the Borrower Group for such Determination Period.
Such payments shall be made at such times as shall be
requested by the Company, but not more frequently
than quarterly. Except as provided in paragraph 3
below, the Borrower shall not have any obligation to
the Company or to any other member of the Affiliated
Group to pay any further amounts on account of the
Company Group's tax liability, any such further
amounts being the sole responsibility of the Company
and the other members of the Company Group. If as a
result of estimated payments or otherwise, the
Borrower pays to the Company for any fiscal year an
amount in excess of the amount determined under
paragraph 1, the Borrower shall cause the Company to
refund to the Borrower the amount of such excess no
later than the date upon which the Company files the
applicable consolidated federal income tax return for
the Company Group. If such amount is not so refunded
it shall be deducted from amounts which could
otherwise be paid to the Company pursuant to Section
5.02(l) (whether in the nature of management fees (or
other fees of a similar nature) or tax payments).
3. Adjustments to the Borrower's Federal Income Tax
Liability.
In the event that there is an increase or
decrease in the amount determined under paragraph 2
for any fiscal year (whether by amended return,
examination by the Internal Revenue Service,
carryback or net operating loss or unused credits, or
otherwise), the Borrower shall or shall cause the
Company, as the case may be, to promptly make a
payment to the other in the amount of such increase
or decrease.