EXHIBIT 10.13
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FEDERAL-MOGUL CORPORATION
THE FOREIGN SUBSIDIARY BORROWERS
__________________________
$1,750,000,000
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF FEBRUARY 24, 1999
_______________________________
THE CHASE MANHATTAN BANK,
as Lead Arranger, Book Manager and
Administrative Agent
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TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS.............................................................................................. 1
SECTION 1.01 Defined Terms..................................................................................... 1
SECTION 1.02 Other Definitional Provisions..................................................................... 28
ARTICLE II. AMOUNT AND TERMS OF REVOLVING CREDIT COMMITMENTS AND SWING LINE COMMITMENT.............................. 29
SECTION 2.01 US$ Revolving Credit Commitments.................................................................. 29
SECTION 2.02 Repayment of US$ Revolving Credit Loans; Evidence of Debt......................................... 29
SECTION 2.03 Procedure for US$ Revolving Credit Borrowing...................................................... 30
SECTION 2.04 Termination or Reduction of US$ Revolving Credit Commitments...................................... 31
SECTION 2.05 Swing Line Commitments............................................................................ 31
SECTION 2.06 Procedure for Swing Line Borrowings; Interest Rate................................................ 31
SECTION 2.07 Repayment of Swing Line Loans; Evidence of Debt................................................... 31
SECTION 2.08 Refunding of Swing Line Borrowings................................................................ 32
SECTION 2.09 Participating Interests........................................................................... 33
ARTICLE III. AMOUNT AND TERMS OF TERM LOAN COMMITMENTS.............................................................. 33
SECTION 3.01 Term Loan Commitments............................................................................. 33
SECTION 3.02 Repayment of Term Loans; Evidence of Debt......................................................... 34
SECTION 3.03 Procedure for Term Loan Borrowing................................................................. 36
ARTICLE IV. AMOUNT AND TERMS OF MULTICURRENCY REVOLVING CREDIT COMMITMENTS.......................................... 36
SECTION 4.01 Multicurrency Revolving Credit Commitments........................................................ 36
SECTION 4.02 Procedure for Multicurrency Revolving Credit Borrowing............................................ 37
SECTION 4.03 Spot Exchange Rate Calculations................................................................... 37
SECTION 4.04 Commitment Reallocations........................................................................... 37
SECTION 4.05 Redenomination and Alternative Currencies......................................................... 39
ARTICLE V. GENERAL PROVISIONS APPLICABLE TO THE LOANS............................................................... 39
SECTION 5.01 Interest Rates and Payment Dates.................................................................. 39
SECTION 5.02 Conversion and Continuation Options............................................................... 39
SECTION 5.03 Minimum Amounts of Tranches....................................................................... 40
SECTION 5.04 Optional and Mandatory Prepayments................................................................ 41
SECTION 5.05 Facility Fees; Other Fees......................................................................... 42
SECTION 5.06 Computation of Interest and Fees.................................................................. 43
SECTION 5.07 Inability to Determine Interest Rate.............................................................. 44
SECTION 5.08 Pro Rata Treatment and Payments................................................................... 44
SECTION 5.09 Illegality........................................................................................ 48
SECTION 5.10 Requirements of Law............................................................................... 48
SECTION 5.11 Taxes............................................................................................. 49
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SECTION 5.12 Indemnity......................................................................................... 52
SECTION 5.13 Use of Proceeds................................................................................... 53
SECTION 5.14 Change of Lending Office; Replacement of Lenders.................................................. 53
ARTICLE VI. REPRESENTATIONS AND WARRANTIES.......................................................................... 54
SECTION 6.01 Financial Condition............................................................................... 54
SECTION 6.02 No Change......................................................................................... 55
SECTION 6.03 Corporate Existence; Compliance with Law.......................................................... 55
SECTION 6.04 Corporate Power; Authorization; Enforceable Obligations........................................... 55
SECTION 6.05 No Legal Bar...................................................................................... 56
SECTION 6.06 No Material Litigation............................................................................ 56
SECTION 6.07 No Default........................................................................................ 56
SECTION 6.08 Ownership of Property; Liens...................................................................... 56
SECTION 6.09 Intellectual Property............................................................................. 56
SECTION 6.10 No Burdensome Restrictions........................................................................ 56
SECTION 6.11 Taxes............................................................................................. 56
SECTION 6.12 Federal Regulations............................................................................... 57
SECTION 6.13 ERISA............................................................................................. 57
SECTION 6.14 Investment Company Act; Other Regulations......................................................... 57
SECTION 6.15 Subsidiaries...................................................................................... 58
SECTION 6.16 Environmental Matters............................................................................. 58
SECTION 6.17 Accuracy and Completeness of Information.......................................................... 59
SECTION 6.18 Other Unsubordinated Indebtedness................................................................. 59
SECTION 6.19 Foreign Subsidiary Borrowers...................................................................... 59
SECTION 6.20 Security Documents................................................................................ 60
SECTION 6.21 Solvency.......................................................................................... 60
SECTION 6.22 Year 2000 Matters................................................................................. 60
ARTICLE VII. CONDITIONS PRECEDENT................................................................................... 60
SECTION 7.01 Conditions to Initial Extensions of Credit........................................................ 60
SECTION 7.02 Conditions to Each Extension of Credit............................................................ 62
ARTICLE VIII. AFFIRMATIVE COVENANTS................................................................................. 63
SECTION 8.01 Financial Statements.............................................................................. 64
SECTION 8.02 Certificates; Other Information................................................................... 64
SECTION 8.03 Accrual of Liabilities; Payment of Obligations.................................................... 65
SECTION 8.04 Maintenance of Corporate Existence; Maintenance of Properties..................................... 65
SECTION 8.05 Insurance......................................................................................... 65
SECTION 8.06 Notices........................................................................................... 65
SECTION 8.07 Compliance with Contractual Obligations and Laws.................................................. 66
SECTION 8.08 Access to Books and Inspection.................................................................... 66
SECTION 8.09 Use of Proceeds................................................................................... 66
SECTION 8.10 Environmental Laws................................................................................ 66
SECTION 8.11 Additional Collateral and Guaranties.............................................................. 67
SECTION 8.12 Foreign Collateral Matters........................................................................ 68
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ARTICLE IX. NEGATIVE COVENANTS...................................................................................... 69
SECTION 9.01 Cash Flow Coverage................................................................................ 69
SECTION 9.02 Consolidated Leverage Ratio....................................................................... 69
SECTION 9.03 Maintenance of Consolidated Net Worth............................................................. 69
SECTION 9.04 Limitation on Liens............................................................................... 69
SECTION 9.05 Limitation on Indebtedness........................................................................ 71
SECTION 9.06 Limitation on Guaranties.......................................................................... 72
SECTION 9.07 Limitation on Fundamental Changes................................................................. 73
SECTION 9.08 Limitation on Sale of Assets...................................................................... 74
SECTION 9.09 Limitation on Restricted Payments................................................................. 74
SECTION 9.10 Restrictions on Special Purpose Subsidiaries...................................................... 75
SECTION 9.11 Limitation on Investments, Loans and Advances..................................................... 75
SECTION 9.12 Limitation on Optional Payments and Modifications of Debt Instruments, Certain Derivative
Transactions, etc.......................................................................................... 77
SECTION 9.13 Limitation on Sales and Leasebacks................................................................ 77
SECTION 9.14 Limitation on Restrictions on Subsidiary Distributions............................................ 77
SECTION 9.15 Multiemployer Plans............................................................................... 78
SECTION 9.16 Limitation on More Restrictive Covenants.......................................................... 78
SECTION 9.17 Affiliates........................................................................................ 78
ARTICLE X. GUARANTEE................................................................................................ 78
SECTION 10.01 Guarantee........................................................................................ 78
SECTION 10.02 Right of Set-off................................................................................. 79
SECTION 10.03 No Subrogation................................................................................... 79
SECTION 10.04 Amendments, etc. with respect to the Obligations; Waiver of Rights............................... 80
SECTION 10.05 Guarantee Absolute and Unconditional............................................................. 80
SECTION 10.06 Reinstatement.................................................................................... 81
SECTION 10.07 Payments......................................................................................... 82
ARTICLE XI. EVENTS OF DEFAULT....................................................................................... 82
ARTICLE XII. THE ADMINISTRATIVE AGENT............................................................................... 84
SECTION 12.01 Appointment...................................................................................... 84
SECTION 12.02 Delegation of Duties............................................................................. 85
SECTION 12.03 Exculpatory Provisions........................................................................... 85
SECTION 12.04 Reliance by Administrative Agent................................................................. 85
SECTION 12.05 Notice of Default................................................................................ 86
SECTION 12.06 Non-Reliance on Agents and Other Lenders......................................................... 86
SECTION 12.07 Indemnification.................................................................................. 86
SECTION 12.08 Administrative Agent in Its Individual Capacity.................................................. 87
SECTION 12.09 Successor Administrative Agent................................................................... 87
SECTION 12.10 Authorization to Release Liens................................................................... 87
ARTICLE XIII. MISCELLANEOUS......................................................................................... 88
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SECTION 13.01 Amendments and Waivers........................................................................ 88
SECTION 13.02 Notices....................................................................................... 90
SECTION 13.03 No Waiver; Cumulative Remedies................................................................ 91
SECTION 13.04 Survival of Representations and Warranties.................................................... 91
SECTION 13.05 Payment of Expenses and Taxes................................................................. 91
SECTION 13.06 Successors and Assigns; Participations and Assignments........................................ 92
SECTION 13.07 Adjustments; Set-Off.......................................................................... 95
SECTION 13.08 Counterparts.................................................................................. 95
SECTION 13.09 Severability.................................................................................. 96
SECTION 13.10 Integration................................................................................... 96
SECTION 13.11 GOVERNING LAW................................................................................. 96
SECTION 13.12 Submission To Jurisdiction; Waivers........................................................... 96
SECTION 13.13 Acknowledgements.............................................................................. 97
SECTION 13.14 WAIVERS OF JURY TRIAL......................................................................... 97
SECTION 13.15 Power of Attorney............................................................................. 97
SECTION 13.16 Release of Collateral......................................................................... 97
SECTION 13.17 Judgment...................................................................................... 98
SECTION 13.18 Confidentiality............................................................................... 98
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Page
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ANNEXES:
Annex A Pricing Grid
SCHEDULES:
I Commitments; Addresses
II Subsidiaries; Foreign Subsidiary Borrowers;
Insignificant Subsidiaries
III Existing Liens
IV Existing Indebtedness and Existing Guaranties
V Pledge Agreements
VI Excluded Foreign Subsidiaries
6.20 Perfection Actions
9.05(c) Indebtedness of Special Purpose Subsidiaries
9.08 Excluded Assets
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EXHIBITS:
A-1 Form of US$ Revolving Credit Note
A-2 Form of Term Note
B Form of Domestic Subsidiary Guarantee
C Form of Domestic Pledge Agreement
D-1 Form of Trust Agreement (First Union)
D-2 Form of Trust Agreement (ABN AMRO)
E Form of Joinder Agreement
F Form of Responsible Officer's Certificate
G Form of Assignment and Acceptance
H-1 Form of Opinion of David M. Sherbin, Esq., Associate General Counsel
of the Company
H-2 Form of Opinion of Skadden, Arps, Slate, Meagher & Flom LLP
I Matters to be Covered by Foreign Subsidiary Opinion
J Form of Reallocation Notice
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THIRD AMENDED AND RESTATED CREDIT AGREEMENT, dated as of February 24,
1999, among FEDERAL-MOGUL CORPORATION, a Michigan corporation (the "Company"),
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each FOREIGN SUBSIDIARY BORROWER (as hereinafter defined) (together with the
Company, the "Borrowers"), the several banks and other financial institutions
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from time to time parties hereto (the "Lenders") and THE CHASE MANHATTAN BANK, a
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New York banking corporation ("Chase"), as administrative agent for the Lenders
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hereunder.
W I T N E S S E T H:
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WHEREAS, the Company is party to (i) the Second Amended and Restated
Credit Agreement, dated as of December 18, 1997 (the "Existing Multicurrency
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Agreement"), among the Company, the foreign subsidiary borrowers parties
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thereto, the lenders parties thereto and Chase, as administrative agent, (ii)
the $1,950,000,000 Loan Agreement, dated as of September 30, 1998 (the "Existing
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Loan Agreement"), among the Company, the lenders parties thereto and Chase, as
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administrative agent and (iii) the $200,000,000 364-Day Revolving Credit
Agreement, dated as of September 30, 1998 (the "Existing 364-Day Agreement" and
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collectively with the Existing Multicurrency Agreement and the Existing Loan
Agreement, the "Existing Credit Agreements"), among the Company, the lenders
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parties thereto and Chase, as administrative agent;
WHEREAS, in order to restate and refinance the Existing Credit
Agreements (the "Refinancing"), to provide for additional working capital
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financing for the Company and its Subsidiaries and to pay fees and expenses in
connection with the Refinancing, the Company is entering into this Agreement;
and
WHEREAS, the Company, the Lenders and the Administrative Agent desire
to amend and restate the Existing Credit Agreements upon and subject to the
terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, the parties hereto agree that on the Closing Date
the Existing Credit Agreements shall be further amended and restated in their
entirety as follows:
ARTICLE I. DEFINITIONS
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SECTION I.1 Defined Terms. As used in this Agreement, the following
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terms shall have the following meanings:
"Accumulated Funding Deficiency": any accumulated funding deficiency
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within the meaning of Section 412 of the Code or Section 302 of ERISA.
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"Additional US$ Revolving Credit Commitments": as defined in Section
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4.04.
"Additional US$ Revolving Credit Facility": as defined in the
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definition of "Facility".
"Additional US$ Revolving Credit Loans": any revolving credit loans
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made to the Company under the Additional US$ Revolving Commitments. Each
Additional US$ Revolving Credit Loan shall be a Eurodollar Loan or a Base
Rate Loan.
"Additional US$ Revolving Credit Percentage": as to any Multicurrency
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Revolving Credit Lender at any time, the percentage which such Lender's
Additional US$ Revolving Credit Commitment then constitutes of the
aggregate Additional US$ Revolving Credit Commitments (or, at any time
after the Additional US$ Revolving Credit Commitments shall have expired or
terminated, the percentage which the aggregate principal amount of such
Lender's Additional US$ Revolving Credit Loans then outstanding constitutes
of the aggregate principal amount of the Additional US$ Revolving Credit
Loans then outstanding).
"Adjustment Date": as defined in the Pricing Grid.
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"Administrative Agent": Chase, together with its affiliates, as
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arranger of the Commitments and as administrative agent for the Lenders
under this Agreement or any successor thereto appointed pursuant to Section
12.09.
"Affiliate": of any Person, shall mean any Person that, directly or
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indirectly, controls or is controlled by or is under common control with
such Person, or in the case of any Lender which is an investment fund, (i)
the investment advisor thereof and (ii) any other investment fund having
the same investment advisor. For the purposes of this definition,
"control" (including, with correlative meanings, the terms "controlled by"
and "under common control with"), as used with respect to any Person, shall
mean the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of such Person, whether
through the ownership of voting securities or by contract or otherwise.
"Aggregate Multicurrency Revolving Credit Exposure": the aggregate
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amount of the Multicurrency Revolving Credit Exposure of all Lenders.
"Agreement": this Third Amended and Restated Credit Agreement, as the
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same may be amended, supplemented or otherwise modified from time to time.
"Agreement Currency": as defined in Section 13.17(b).
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"Applicable Margin": for each Type and Class of Loan, the rate per
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annum set forth under the relevant column heading below:
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Base Eurodollar Loans/
Rate Loans Multicurrency Revolving
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Credit Loans
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Revolving Credit Loans .375% 1.375%
Multicurrency Revolving Credit Loans .375% 1.375%
Tranche A Term Loans .75% 1.75%
Tranche B Term Loans 1.00% 2.00%
; provided, that on and after the first Adjustment Date occurring after the
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Closing Date, the Applicable Margin with respect to Revolving Credit Loans,
Multicurrency Revolving Credit Loans and Tranche A Term Loans will be
determined pursuant to the Pricing Grid.
"Assigned Dollar Value": in respect of any Multicurrency Revolving
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Credit Borrowing, the amount thereof expressed in Dollars in the initial
borrowing request with respect thereto. Thereafter, Assigned Dollar Value
shall mean, in respect of any Multicurrency Revolving Credit Borrowing, the
Dollar Equivalent of the principal amount of the Loans relating to such
Multicurrency Revolving Credit Borrowing as determined on the most recent
Reset Date based on the Spot Exchange Rate.
"Assignee": as defined in Section 13.06(c).
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"Available Additional US$ Revolving Credit Commitment": as to any
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Multicurrency Revolving Credit Lender at any time, an amount equal to (a)
such Lender's Additional US$ Revolving Credit Commitments minus (b) such
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Lender's outstanding Additional US$ Revolving Credit Loans.
"Available Foreign Currencies": Pounds Sterling, Swiss Francs,
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Australian Dollars, Swedish Kroner, euro units and any other available and
freely-convertible non-Dollar currency selected by the Company and approved
by the Administrative Agent and the Majority Multicurrency Revolving
Credit Facility Lenders (including such approval with respect to the
Currency Sublimit applicable to such currency).
"Available Multicurrency Revolving Credit Commitment": as to any
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Multicurrency Revolving Credit Lender at any time, an amount equal to (a)
such Lender's Multicurrency Revolving Credit Commitment minus (b) such
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Lender's Multicurrency Revolving Credit Exposure.
"Available US$ Revolving Credit Commitment": as to any US$ Revolving
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Credit Lender at any time, an amount equal to (a) such Lender's US$
Revolving Credit Commitment minus (b) such Lender's US$ Revolving
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Extensions of Credit.
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"Base Rate": for any day, a rate per annum (rounded upwards, if
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necessary, to the next 1/16 of 1%) equal to the greater of (a) the Prime
Rate in effect on such day and (b) the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1%. If for any reason the Administrative
Agent shall have determined (which determination shall be conclusive absent
manifest error) that it is unable to ascertain the Federal Funds Effective
Rate for any reason, including the inability or failure of the
Administrative Agent to obtain sufficient quotations in accordance with the
terms thereof, the Base Rate shall be determined without regard to clause
(b) of the first sentence of this definition until the circumstances giving
rise to such inability no longer exist. Any change in the Base Rate due to
a change in the Prime Rate or the Federal Funds Effective Rate shall be
effective on the effective day of such change in the Prime Rate or the
Federal Funds Effective Rate, respectively.
"Base Rate Loans": Loans the rate of interest applicable to which is
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based upon the Base Rate.
"Benefitted Lender": as defined in Section 13.07.
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"Board": the Board of Governors of the Federal Reserve System (or any
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successor thereto).
"Bond Offering": the offering by the Company from time to time of its
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debt securities.
"Borrowers": as defined in the preamble hereto.
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"Borrowing Date": any Business Day specified in a notice pursuant to
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Section 2.03, 2.07, 3.03 or 4.02 as a date on which a Borrower requests the
Lenders to make Loans hereunder.
"Business": as defined in Section 6.16.
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"Business Day": (a) when such term is used in respect of any amount
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denominated or to be denominated in (i) any Available Foreign Currency or
Dollars under the Multicurrency Revolving Credit Commitments, a London
Banking Day which is also a day other than a Saturday or Sunday on which
banks are open for general banking business in (x) the city which is the
principal financial center of the country of issuance of such Available
Foreign Currency (or, in the case of Pounds Sterling, Paris), (y) in the
case of euro only, Frankfurt am Main, Germany (or such other principal
financial center as the Administrative Agent may from time to time nominate
for this purpose) and (z) New York City and (ii) Dollars under the US$
Revolving Credit Commitments or the Additional US$ Revolving Credit
Commitments, a London Banking Day which is also a day other than a Saturday
or Sunday on which banks are open for general banking business in New York
City and (b) when such term is used for the
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purpose of determining the date on which the Eurocurrency Base Rate is
determined under this Agreement for any Loan denominated in euro for any
Interest Period therefor and for purposes of determining the first and last
day of any Interest Period, references in this Agreement to Business Days
shall be deemed to be references to Target Operating Days.
"Calculation Date": (a) the last Business Day of each March, June,
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September and December and (b) at any time when the Aggregate Multicurrency
Revolving Credit Exposure exceeds 85% of the Total Multicurrency Revolving
Credit Commitments or at any time when a Default or Event of Default shall
have occurred and be continuing, any other date which the Administrative
Agent may determine in its discretion to be a Calculation Date.
"Capital Expenditures": all expenditures of the Company and its
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Subsidiaries on a consolidated basis for any fixed assets or improvements,
or for replacements, substitutions or additions thereto, which have a
useful life of more than one year, including, but not limited to, the
direct or indirect acquisition of such assets by way of increased product
or service charges, offset items or otherwise, including all expenditures
under capital leases, all determined in accordance with GAAP.
"Capital Stock": any and all shares, interests, participations or
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other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person other than a
corporation and any and all warrants or options to purchase any of the
foregoing. For all purposes of this Agreement, "Capital Stock" shall
include the 11,500,000 7% Trust Convertible Preferred Securities
(Liquidation Amount $50 Per Convertible Preferred Security) issued by
Federal-Mogul Financing Trust and guaranteed by the Company upon terms
described in the Offering Memorandum issued November 24, 1997 and any other
substantially equivalent securities hereafter issued by a financing vehicle
for the benefit of the Company, and such Trust Convertible Securities and
substantially equivalent securities will be treated as preferred stock of
the Company and the Company shall not be deemed to have issued any
Indebtedness or Guarantee in connection therewith.
"Cash Equivalents": (a) securities with maturities of one year or
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less from the date of acquisition issued or fully guaranteed or insured by
the United States Government or any agency thereof, (b) certificates of
deposit and eurodollar time deposits with maturities of one year or less
from the date of acquisition and overnight bank deposits of any Lender or
of any commercial bank having capital and surplus in excess of
$500,000,000, (c) repurchase obligations of any Lender or of any commercial
bank satisfying the requirements of clause (b) of this definition, having a
term of not more than 30 days with respect to securities issued or fully
guaranteed or insured by the United States Government, (d) commercial paper
of a domestic issuer rated at least A-2 by S&P or P-2 by Moody's, (e)
securities with maturities of one year or less from the date of acquisition
issued or fully guaranteed by any state, commonwealth or territory of the
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United States, by any political subdivision or taxing authority of any such
state, commonwealth or territory or by any foreign government, the
securities of which state, commonwealth, territory, political subdivision,
taxing authority or foreign government (as the case may be) are rated at
least A by S&P or A by Moody's (or an equivalent rating for such foreign
securities), (f) securities with maturities of one year or less from the
date of acquisition backed by standby letters of credit issued by any
Lender or any commercial bank satisfying the requirements of clause (b) of
this definition or (g) shares of money market mutual or similar funds which
invest exclusively in assets satisfying the requirements of clauses (a)
through (f) of this definition, provided that, in the case of any
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investment by a Foreign Subsidiary, "Cash Equivalents" shall also include:
(i) direct obligations of the sovereign nation (or any agency thereof) in
which such Foreign Subsidiary is organized and is conducting business or in
obligations fully and unconditionally guaranteed by such sovereign nation
(or any agency thereof), (ii) investments of the type and maturity
described in clauses (a) through (f) above of foreign obligors, which
Investments or obligors (or the parents of such obligors) have ratings
described in such clauses or equivalent ratings from comparable foreign
rating agencies and (iii) shares of money market mutual or similar funds
which invest exclusively in assets otherwise satisfying the requirements of
this definition (including this proviso).
"Cash Flow Coverage": for any period, the ratio of (a) Consolidated
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EBITDA less Capital Expenditures, divided by (b) (i) Interest Expenses plus
(ii) dividends paid on any class of the Company's Capital Stock in each
case determined for such period.
"Change of Control": (a) any "person" or "group" within the meaning
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of Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as
amended, shall become the "beneficial owner" (as defined in Rule 13d-3
under the Securities Exchange Act of 1934, as amended) of more than 50% of
the then outstanding voting stock of the Company other than in a
transaction having the approval of the board of directors of the Company at
least a majority of which members are Continuing Directors or (b)
Continuing Directors shall cease to constitute at least a majority of the
directors constituting the board of directors of the Company.
"Chase": The Chase Manhattan Bank, a New York banking corporation.
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"Class": the collective reference to Loans outstanding under a single
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Facility.
"Closing Date": the date, on or before March 31, 1999, on which the
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conditions precedent set forth in Section 7.01 are satisfied or waived in
accordance with this Agreement.
"Code": the Internal Revenue Code of 1986, as amended from time to
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time.
"Collateral": all Property of the Loan Parties, now owned or
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hereafter acquired, upon which a Lien is purported to be created by any
Security Document.
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"Collateral Release Date": the date of receipt by the Administrative
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Agent of a written request by the Company to release the Collateral
following either (i) the date on which there is in effect either (A) an S&P
Bond Rating of at least BBB- or its equivalent or (B) a Moody's Bond
Rating of at least Baa3 or its equivalent or (ii) the date on which the
Consolidated Leverage Ratio is less than or equal to 2.0 to 1.0.
"Commitment": as to any Lender, the sum of the Tranche A Term Loan
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Commitment, the Tranche B Term Loan Commitment, the US$ Revolving Credit
Commitment, the Multicurrency Revolving Credit Commitment and, without
duplication, the Additional US$ Revolving Credit Commitment of such Lender.
"Commonly Controlled Entity": an entity, whether or not incorporated,
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which is under common control with the Company within the meaning of
Section 4001 of ERISA or is part of a group which includes the Company and
which is treated as a single employer under Section 414 of the Code.
"Company": as defined in the preamble hereto.
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"Company Guaranty": the guarantee contained in Article X.
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"Consolidated Current Assets": at any date, all amounts (other than
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cash and Cash Equivalents) which would, in conformity with GAAP, be set
forth opposite the caption "total current assets" (or any like caption) on
a consolidated balance sheet of the Company and its Subsidiaries at such
date.
"Consolidated Current Liabilities": at any date, all amounts which
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would, in conformity with GAAP, be set forth opposite the caption "total
current liabilities" (or any like caption) on a consolidated balance sheet
of the Company and its Subsidiaries at such date, but excluding (a) the
current portion of any Funded Debt of the Company and its Subsidiaries and
(b) without duplication of clause (a) above and to the extent otherwise
included therein, all Indebtedness consisting of Revolving Credit Loans and
Multicurrency Revolving Credit Loans.
"Consolidated EBITDA": for any period, the sum of (a) the
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consolidated net income (or loss) of the Company and its Subsidiaries for
such period before deduction of income and franchise taxes and
depreciation, determined in conformity with GAAP, but excluding the income
of any Person (other than Subsidiaries of the Company) in which the Company
or any of its Subsidiaries has an ownership interest, until such income has
been received by the Company or a Subsidiary in a cash distribution, plus
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(b) any Interest Expenses reported during such period, plus (c)
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amortization of Intangible Assets deducted in determining net income for
such period, plus (d) with respect to the calculation of Consolidated
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EBITDA for any period which includes any fiscal quarter of the 1998 fiscal
year of the Company only, any integration, restructuring and research and
development
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charges taken in any such quarter, provided that the aggregate amount of
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such integration, restructuring and research and development charges added
to Consolidated EBITDA pursuant to this clause (d) shall not exceed
$84,000,000, plus (e) without duplication of any of the foregoing
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amounts, with respect to the calculation of Consolidated EBITDA for any
period which includes the third or fourth quarters of the 1998 fiscal year
of the Company or any fiscal quarter during the 1999 fiscal year of the
Company only, any integration and restructuring charges taken in any such
quarter relating to the Cooper Automotive Acquisition, provided that the
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aggregate amount of such integration and restructuring charges added to
Consolidated EBITDA pursuant to this clause (e) shall not exceed
$126,000,000 plus (f) any non-cash charges deducted in determining net
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income for such period; provided, that if in any later period such non-cash
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charges become a cash expenditure, the amount of such cash expenditure
shall be deducted in determining Consolidated EBITDA for such later period.
"Consolidated Leverage Ratio": as at the last day of any period of
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four consecutive fiscal quarters, the ratio of (a) Consolidated Total Debt
on such day to (b) Consolidated EBITDA for such period; provided, that for
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purposes of calculating Consolidated EBITDA for any period of four
consecutive fiscal quarters, the Consolidated EBITDA of any Person acquired
by the Company or its Subsidiaries during such period shall be included on
a pro forma basis for such period (assuming the consummation of each such
---------
acquisition and the incurrence or assumption of any Indebtedness in
connection therewith occurred on the first day of such period) if the
consolidated balance sheet of such acquired Person and its consolidated
Subsidiaries as at the end of the period preceding the acquisition of such
Person and the related consolidated statements of income and stockholders'
equity and of cash flows for the period in respect of which Consolidated
EBITDA is to be calculated (i) have been provided to the Administrative
Agent and the Lenders and (ii) either (A) have been reported on without a
qualification arising out of the scope of the audit (other than a "going
concern" or like qualification or exception) by independent certified
public accountants of nationally recognized standing or (B) have been found
acceptable by the Administrative Agent.
"Consolidated Net Income": for any period, the consolidated net
-----------------------
income (or loss) of the Company and its Subsidiaries for such period,
determined in conformity with GAAP, but excluding the income of any Person
(other than Subsidiaries of the Company) in which the Company or any of its
Subsidiaries has an ownership interest, until such income has been received
by the Company or a Subsidiary in a cash distribution.
"Consolidated Net Worth": at any date, shareholders equity
----------------------
(including, but not limited to, Capital Stock, additional paid-in capital
and retained earnings after deducting treasury stock and unearned
compensation) of the Company and its Subsidiaries on a consolidated basis
as at such date determined in accordance with GAAP; provided, that
--------
Consolidated Net Worth shall not reflect any additions or deductions
resulting from foreign currency translation gains or losses.
-8-
"Consolidated Total Debt": all Indebtedness of the Company and its
-----------------------
Subsidiaries, determined on a consolidated basis.
"Consolidated Working Capital": at any date, the excess of
----------------------------
Consolidated Current Assets on such date over Consolidated Current
Liabilities on such date.
"Continuing Directors": the collective reference to (a) all members
--------------------
of the board of directors of the Company who have held office continually
since September 26, 1997, and (b) all members of the board of directors of
the Company who were elected as directors after September 26, 1997 and
whose nomination for election by the Company's shareholders was approved by
a vote of at least 50% of the Continuing Directors.
"Contractual Obligation": as to any Person, any provision of any
----------------------
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Cooper Automotive Acquisition": the acquisition by the Company of
-----------------------------
Cooper Industries' Automotive Division, consisting of the common stock of
Champion Spark Plug Company, Cooper Automotive Company, Moog Automotive
Company, Champion Aviation and the common stock of the Related Companies
and certain assets and liabilities of the Canadian Division, all as
described in the Cooper Automotive Acquisition Agreement.
"Cooper Automotive Acquisition Agreement": the Purchase and Sale
---------------------------------------
Agreement, dated as of August 17, 1998, between Cooper Industries, Inc. and
the Company and certain of the Subsidiaries of the Company.
"Currency Sublimit": with respect to any Available Foreign Currency,
-----------------
the amount from time to time equal to the amount of Dollars set forth under
the heading "Currency Sublimit" opposite such Available Foreign Currency on
Schedule I or, with respect to any Available Foreign Currency approved
after the date hereof, the amount of Dollars approved by the
Administrative Agent and the Majority Multicurrency Revolving Credit
Facility Lenders as the "Currency Sublimit" applicable to such Available
Foreign Currency .
"Default": any of the events specified in Article XI whether or not
-------
any requirement for the giving of notice, the lapse of time, or both, or
any other condition has been satisfied.
"Disposition": with respect to any Property, any sale, lease, sale
-----------
and leaseback, assignment, conveyance, transfer or other disposition
thereof; and the terms "Dispose" and "Disposed of" shall have correlative
meanings.
-9-
"Dollar Equivalent": with respect to an amount of any Available
-----------------
Foreign Currency on any date, the amount of Dollars that may be purchased
with such amount of Available Foreign Currency at the Spot Exchange Rate on
such date.
"Dollars": dollars in lawful currency of the United States of
-------
America.
"$": dollars in lawful currency of the United States of America.
-
"Domestic Pledge Agreement": the Amended and Restated Domestic Pledge
-------------------------
Agreement, substantially in the form of Exhibit C, to be executed by the
Company and certain of its Domestic Subsidiaries.
"Domestic Reference Lenders": Chase, Bank of America and Bank One.
--------------------------
"Domestic Subsidiary": any Subsidiary of the Company organized under
-------------------
the laws of any jurisdiction within the United States, other than any
Subsidiary which is a Subsidiary of an Excluded Foreign Subsidiary.
"Domestic Subsidiary Guarantee": the Amended and Restated Domestic
-----------------------------
Subsidiary Guarantee, substantially in the form of Exhibit B, to be
executed and delivered by each Domestic Subsidiary, as the same may from
time to time be amended, supplemented or otherwise modified.
"EMU": Economic and Monetary Union as contemplated in the Treaty on
---
European Union.
"EMU Legislation": legislative measures of the European Union for the
---------------
introduction of, changeover to or operation of the euro in one or more
member states.
"Environmental Laws": any and all foreign, Federal, state, local or
------------------
municipal, laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other Requirements
of Law (including common law) regulating, relating to or imposing liability
or standards of conduct concerning protection of human health or the
environment, as now or may at any time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974, as
-----
amended from time to time.
"ESOP Guaranty": the Guaranty, dated as of June 30, 1995, as amended,
-------------
made by the Company in favor of Bank of America National Trust and Savings
Association, as agent under the ESOP Loan Agreement.
-10-
"ESOP Loan Agreement": the Loan Agreement, dated as of June 30, 1995,
-------------------
as amended, among the Federal-Mogul Corporation Salaried Employees' Stock
Ownership Trust, as borrower, various financial institutions, as lenders,
and Bank of America National Trust and Savings Association, as agent.
"euro": the single currency of the European Union as constituted by
----
the Treaty on European Union and as referred to in EMU Legislation.
"euro unit": the currency unit of the euro as defined in the EMU
---------
Legislation.
"Eurocurrency Base Rate": (a) with respect to each Interest Period
----------------------
pertaining to a Multicurrency Revolving Credit Loan denominated in any
currency other than Pounds Sterling, the rate per annum determined by the
Administrative Agent to be the offered rate for deposits in such currency
with a term comparable to such Interest Period that appears on the
applicable Dow Jones Markets Page at approximately 11:00 A.M., London time,
two Business Days prior to the beginning of such Interest Period; provided,
--------
however, that if at any time for any reason such offered rate for any such
-------
currency does not appear on a Dow Jones Markets Page, "Eurocurrency Base
Rate" shall mean, with respect to each day during each Interest Period
pertaining to a Multicurrency Revolving Credit Loan denominated in such
currency, the rate per annum equal to the average (rounded upward to the
nearest 1/16th of 1%) of the respective rates notified to the
Administrative Agent by each of the Multicurrency Reference Lenders as the
rate at which such Multicurrency Reference Lender is offered deposits in
such currency at or about 11:00 A.M., London time, two Business Days prior
to the beginning of such Interest Period in the London interbank market for
delivery on the first day of such Interest Period for the number of days
comprised therein; and (b) with respect to each day during each Interest
Period pertaining to a Multicurrency Revolving Credit Loan denominated in
Pounds Sterling, the rate per annum equal to the average (rounded upward to
the nearest 1/16th of 1%) of the respective rates notified to the
Administrative Agent by each of the Multicurrency Reference Lenders as the
rate at which such Multicurrency Reference Lender is offered deposits in
Pounds Sterling at or about 11:00 A.M., London time, two Business Days
prior to the beginning of such Interest Period in the Paris interbank
market for delivery on the first day of such Interest Period for the number
of days comprised therein.
"Eurocurrency Rate": with respect to each day during each Interest
-----------------
Period pertaining to a Multicurrency Revolving Credit Loan, a rate per
annum determined for such day in accordance with the following formula
(rounded upward to the nearest 1/100th of 1%):
Eurocurrency Base Rate
-------------------------------------------
1.00 - Eurocurrency Reserve Requirements
-11-
"Eurocurrency Reserve Requirements": for any day as applied to a
---------------------------------
Eurodollar Loan or a Multicurrency Revolving Credit Loan, the aggregate
(without duplication) of the rates (expressed as a decimal fraction) of
reserve requirements in effect on such day (including, without limitation,
basic, supplemental, marginal and emergency reserves) under any regulations
of the Board of Governors of the Federal Reserve System or other
Governmental Authority having jurisdiction with respect thereto dealing
with reserve requirements prescribed for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of such Board)
maintained by a member bank of such System.
"Eurodollar Base Rate": with respect to each day during each Interest
--------------------
Period pertaining to a Eurodollar Loan, the rate per annum determined by
the Administrative Agent to be the offered rate for Dollar deposits with a
term comparable to such Interest Period that appears on the applicable Dow
Jones Markets Page at approximately 11:00 A.M., London time, two Business
Days prior to the beginning of such Interest Period.
"Eurodollar Loans": Loans the rate of interest applicable to which is
----------------
based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest
---------------
Period pertaining to a Eurodollar Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to the
nearest 1/100th of 1%):
Eurodollar Base Rate
------------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified in Article XI,
----------------
provided that all requirements for the giving of notice, the lapse of time,
--------
or both, or any other condition, have been satisfied.
"Excluded Foreign Subsidiary": collectively, (i) any Foreign
---------------------------
Subsidiary which is not a Significant Subsidiary, (ii) any Foreign
Subsidiary listed under the heading "Excluded Foreign Subsidiaries on the
Closing Date" in Schedule VI, (iii) any Foreign Subsidiary (and any
Domestic Subsidiary which is a Subsidiary of an Excluded Foreign
Subsidiary) if the pledge of more than 65% of the Capital Stock of such
Foreign Subsidiary (or Domestic Subsidiary, as the case may be) or the
execution by such Foreign Subsidiary (or Domestic Subsidiary, as the case
may be) of a Subsidiary Guarantee would, in the good faith judgment of the
Company, result in adverse tax consequences to the Company or would be
unlawful for such Foreign Subsidiary (or Domestic Subsidiary, as the case
may be) and (iv) any other Foreign Subsidiary, if the Administrative Agent
has determined that the value of the security afforded by a pledge of the
stock thereof would be disproportionate to the expense or difficulty of
obtaining such security interest.
-12-
"Existing Accounts Receivable Financing Program": the collective
----------------------------------------------
reference to (i) the Receivable Interest Purchase Agreement dated as of
November 20, 1998, among the Receivables Subsidiary, as Seller, the
Company, as servicer, Falcon Asset Securitization Corporation as a
purchaser, the financial institutions from time to time party thereto as
investors and The First National Bank of Chicago, as agent, (ii) the
Receivables Sale and Contribution Agreement dated as of November 20, 1998,
between the Company, Carter Automotive Company, Inc. and Federal-Mogul
Canada Limited as the originators and the Receivables Subsidiary as the
buyer, and (iii) all other documents entered into in connection with any of
the foregoing, as each of the foregoing are amended, restated,
supplemented, renewed, refinanced or otherwise modified from time to time.
"Existing Credit Agreements": as defined in the recitals hereto.
--------------------------
"Existing Plan": any Plan existing on the date of this Agreement
-------------
without giving effect to any amendment thereof made after the date of this
Agreement.
"Facility": each of (a) the Tranche A Term Loan Commitments and the
--------
Tranche A Term Loans made thereunder (the "Tranche A Term Loan Facility"),
(b) the Tranche B Term Loan Commitments and the Tranche B Term Loans made
thereunder (the "Tranche B Term Loan Facility"), (c) the US$ Revolving
Credit Commitments and the extensions of credit (including the Swing Line
Loans) made thereunder (the "US$ Revolving Credit Facility"), (d) the
Multicurrency Revolving Credit Commitments and the Multicurrency Revolving
Credit Loans made thereunder (the "Multicurrency Revolving Credit
Facility") and (e) the Additional US$ Revolving Credit Commitments and the
Additional US$ Revolving Credit Loans made thereunder (the "Additional US$
Revolving Credit Facility").
"Facility Fee Rate": 0.375% per annum; provided, that on and after
----------------- --------
the first Adjustment Date occurring after the Closing Date, the Facility
Fee Rate will be determined pursuant to the Pricing Grid.
"Federal Funds Effective Rate": for any day, the weighted average of
----------------------------
the rates per annum on overnight federal funds transactions with members of
the Federal Reserve System arranged by federal funds brokers, as published
on the next succeeding 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 the day of such transactions
received by the Administrative Agent from three federal funds brokers of
recognized standing selected by it, in each case rounded up to the nearest
1/100th of 1%.
"Fel-Pro Acquisition": the acquisition of Fel-Pro Master General
-------------------
Partnership and related entities and assets.
-13-
"Foreign Subsidiary": any Subsidiary of the Company other than a
------------------
Domestic Subsidiary.
"Foreign Subsidiary Borrower": each Foreign Subsidiary listed as a
---------------------------
Foreign Subsidiary Borrower in Schedule II as amended from time to time in
accordance with Section 13.01(b).
"Foreign Subsidiary Opinion": with respect to any Foreign Subsidiary
--------------------------
Borrower, a legal opinion of counsel to such Foreign Subsidiary Borrower
addressed to the Administrative Agent and the Lenders concluding that such
Foreign Subsidiary Borrower and the Loan Documents to which it is a party
substantially comply with the matters listed on Exhibit I, with such
assumptions, qualifications and deviations therefrom as the Administrative
Agent shall approve (such approval not to be unreasonably withheld).
"Funded Debt": all Indebtedness of the Company and its Subsidiaries
-----------
on a consolidated basis maturing one year or more after incurrence thereof
or that matures within one year from the date on which it was created, but
is renewable or extendible under terms such that under GAAP such
Indebtedness would be treated as long-term indebtedness.
"GAAP": generally accepted accounting principles in the United States
----
of America in effect from time to time; provided, that if at any time after
--------
the date hereof there shall occur any change in respect of such generally
accepted accounting principles from those used in the preparation of the
audited financial statements of the Company for the fiscal year ended
December 31, 1997 in a manner which would have a material effect on any
matter which is material to Article IX, the Company and the Administrative
Agent will, within five Business Days of a notice from the Administrative
Agent or the Company, as the case may be, to that effect, commence, and
continue in good faith, negotiations with a view towards making appropriate
amendments to the provisions hereof acceptable to the Required Lenders, to
reflect as nearly as possible the effect of the provisions of Article IX as
in effect on the date hereof.
"Governmental Authority": any nation or government, any state, or
----------------------
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guaranty": any guaranty by any Person of Indebtedness or other
--------
obligations of any other Person that is not a consolidated subsidiary of
such Person or any assurance with respect to the financial condition of any
other Person that is not a consolidated subsidiary of such Person
(including, without limitation, any purchase or repurchase agreement, any
indemnity or any keep-well, take-or-pay, through-put or other arrangement
having the effect of assuring or holding harmless any third Person against
loss with respect to any Indebtedness or other obligation of such other
Person) except endorsements of negotiable instruments for collection in the
ordinary course of business.
-14-
"Indebtedness": with respect to any Person, (a) all indebtedness for
------------
borrowed money of such Person which in accordance with GAAP would be shown
as a liability on the balance sheet of such Person, (b) obligations of
such Person under leases which, in accordance with GAAP, are to be recorded
as capital leases, (c) all unreimbursed amounts owing by such Person in
respect of letters of credit and (d) all indebtedness of such Person
evidenced by bonds, debentures, notes or similar instruments; provided,
--------
however, that the term "Indebtedness" shall not include short-term
-------
obligations payable to suppliers incurred in the ordinary course of
business or indebtedness incurred by a special purpose, Wholly Owned
Subsidiary of the Company that purchases accounts receivable from the
Company and its other Subsidiaries to the extent that such indebtedness is
nonrecourse to the Company and each such other Subsidiary and is not
required under GAAP to be reflected on the consolidated balance sheet of
the Company.
"Indentures": (i) the Indenture, dated as of August 12, 1994, between
----------
the Company and First Trust National Association (as successor to
Continental Bank), as trustee, (ii) the Indenture, dated as of June 29,
1998, between the Company and The Bank of New York, as trustee and (iii)
the Indenture, dated as of January 20, 1999, among the Company, the
guarantors and The Bank of New York, as trustee, each as subsequently
amended in accordance with the terms hereof and thereof .
"Insignificant Subsidiary": any Subsidiary designated as such by
------------------------
written notice from the Company to the Administrative Agent; provided, that
--------
(i) no Subsidiary may be designated as an Insignificant Subsidiary unless
(A) as at the end of the fiscal quarter most recently ended prior to such
designation the aggregate book value of the assets of such Subsidiary
(including stock of Subsidiaries of such Subsidiary) constitutes not more
than 5% of the book value of the consolidated assets of the Company and its
Subsidiaries taken as a whole and (B) during the period of four consecutive
fiscal quarters most recently ended prior to the date of such designation
the contribution of such Subsidiary to Consolidated EBITDA was not more
than 5% and (ii) no Subsidiary may be designated as an Insignificant
Subsidiary if, after giving effect thereto, (A) the total book value of all
assets of all Insignificant Subsidiaries (including stock of Subsidiaries
of such Subsidiary) as of the end of the fiscal quarter most recently ended
constituted more than 15% of the book value of the consolidated assets of
the Company and its Subsidiaries taken as a whole and (B) the total
contribution of all Insignificant Subsidiares to Consolidated EBITDA for
the four consecutive fiscal quarters most recently ended was more than 15%.
"Insolvency": with respect to any Multiemployer Plan, the condition
----------
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
---------
-15-
"Intangible Assets": assets having no physical existence and that, in
-----------------
conformity with GAAP, should be classified as intangible assets, including,
without limitation, patents, patent rights, trademarks, trade names,
copyrights, franchises, licenses, customer lists, organizational expenses
and goodwill.
"Intellectual Property": as defined in Section 6.09.
---------------------
"Interest Expenses": with respect to any period, the aggregate of all
-----------------
interest expense reported by the Company and its Subsidiaries in accordance
with GAAP during such period. As used in this definition, the term
"interest" shall include, without limitation, all interest, fees and costs
payable with respect to the obligations under this Agreement (other than
fees and costs which may be capitalized as transaction costs in accordance
with GAAP), any discount in respect of sales of accounts receivable and/or
related contract rights and the interest portion of capitalized lease
payments during such period, all as determined in accordance with GAAP.
"Interest Payment Date": (a) as to any Base Rate Loan, the last day
---------------------
of each March, June, September and December to occur while such Loan is
outstanding, (b) as to any Eurodollar Loan or Multicurrency Revolving
Credit Loan having an Interest Period of three months or less, the last day
of such Interest Period and (c) as to any Eurodollar Loan or Multicurrency
Revolving Credit Loan having an Interest Period longer than three months,
(i) each day which is three months, or a whole multiple thereof, after the
first day of such Interest Period and (ii) the last day of such Interest
Period.
"Interest Period": with respect to any Eurodollar Loan or
---------------
Multicurrency Revolving Credit Loan:
(a) initially, the period commencing on the borrowing or conversion
date, as the case may be, with respect to such Eurodollar Loan or
Multicurrency Revolving Credit Loan and ending one, two, three, or six or
(if available) twelve months thereafter, as selected by the relevant
Borrower in its notice of borrowing or notice of conversion, as the case
may be, given with respect thereto; and
(b) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Eurodollar Loan or
Multicurrency Revolving Credit Loan and ending one, two, three, six or (if
available) twelve months thereafter, as selected by the relevant Borrower
by irrevocable notice to the Administrative Agent not less than three
Business Days prior to the last day of the then current Interest Period
with respect thereto;
provided that, all of the foregoing provisions relating to Interest Periods
--------
are subject to the following:
-16-
(i) if any Interest Period pertaining to a Eurodollar Loan
or Multicurrency Revolving Credit Loan would otherwise end on a day
that is not a Business Day, such Interest Period shall be extended to
the next succeeding Business Day unless the result of such extension
would be to carry such Interest Period into another calendar month in
which event such Interest Period shall end on the immediately
preceding Business Day;
(ii) any Interest Period applicable to a Eurodollar Loan or
Multicurrency Revolving Credit Loan that would otherwise extend beyond
the Revolving Credit Termination Date shall end on the Revolving
Credit Termination Date;
(iii) any Interest Period pertaining to a Eurodollar Loan or
Multicurrency Revolving Credit Loan that begins on the last Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month; and
(iv) each Borrower shall use reasonable efforts to select
Interest Periods which permit the required installments to be made on
the Term Loans so as not to require a payment or prepayment of any
Eurodollar Loan during an Interest Period for such Eurodollar Loan.
"Investments": as defined in Section 9.11.
-----------
"Joinder Agreement": the Joinder Agreement to be entered into by each
-----------------
Foreign Subsidiary Borrower subsequent to the date hereof pursuant to
Section 13.01(b)(i), substantially in the form of Exhibit E.
"Judgment Currency": as defined in Section 13.17(b).
-----------------
"Lenders": as defined in the preamble hereto.
-------
"Lien": (i) any judgment lien or execution, attachment, levy,
----
distraint or similar legal process and (ii) any mortgage, pledge,
hypothecation, assignment, lien, charge, encumbrance or other security
interest of any kind or nature whatsoever (including, without limitation,
the interest of the lessor under any capital lease and the interest of the
seller under any conditional sale or other title retention agreement),
which secures or purports to secure any Indebtedness or other indebtedness
or obligations.
"Loan Documents": this Agreement, any Notes, the Security Documents,
--------------
the Subsidiary Guarantees and the Trust Agreement.
"Loan Parties": the Company and each Subsidiary of the Company which
------------
is a party to a Loan Document.
-17-
"Loans": the collective reference to the US$ Revolving Credit Loans,
-----
the Swing Line Loans, the Term Loans, the Multicurrency Revolving Credit
Loans and the Additional US$ Revolving Credit Loans.
"London Banking Day": any day on which banks in London are open for
------------------
general banking business, including dealings in foreign currency and
exchange.
"Majority Additional US$ Revolving Credit Facility Lenders": the
---------------------------------------------------------
Majority Facility Lenders in respect of the Additional US$ Revolving Credit
Facility.
"Majority Aggregate Revolving Credit Facility Lenders": the holders
----------------------------------------------------
of more than 50% of the aggregate unpaid principal amount of the total US$
Revolving Extensions of Credit, the Aggregate Multicurrency Revolving
Credit Exposure and the Additional US$ Revolving Credit Loans (or, prior to
any termination of the US$ Revolving Credit Commitments, the Multicurrency
Revolving Credit Commitments or the Additional US$ Revolving Credit
Commitments, the holders of more than 50% of the aggregate US$ Revolving
Credit Commitments, the Multicurrency Revolving Credit Commitments and the
Additional US$ Revolving Credit Commitments).
"Majority Facility Lenders": with respect to any Facility, the
-------------------------
holders of more than 50% of the aggregate unpaid principal amount of the
Term Loans, the total US$ Revolving Extensions of Credit, the Aggregate
Multicurrency Revolving Credit Exposure or the Additional US$ Revolving
Credit Loans, as the case may be, outstanding under such Facility (or, in
the case of (a) the US$ Revolving Credit Facility, prior to any termination
of the US$ Revolving Credit Commitments, the holders of more than 50% of
the aggregate US$ Revolving Credit Commitments, (b) the Multicurrency
Revolving Credit Facility, prior to any termination of the Multicurrency
Revolving Credit Commitments, the holders of more than 50% of the aggregate
Multicurrency Revolving Credit Commitments or (c) the Additional US$
Revolving Credit Facility, prior to any termination of the Additional US$
Revolving Credit Commitments, the holders of more than 50% of the aggregate
Additional US$ Revolving Credit Commitments).
"Majority Multicurrency Revolving Credit Facility Lenders": the
--------------------------------------------------------
Majority Facility Lenders in respect of the Multicurrency Revolving Credit
Facility.
"Majority US$ Revolving Credit Facility Lenders": the Majority
----------------------------------------------
Facility Lenders in respect of the US$ Revolving Credit Facility.
"Material Adverse Effect": a material adverse effect on (a) the
-----------------------
business, operations, property, condition (financial or otherwise) or
prospects of the Company and its Subsidiaries taken as a whole, (b) the
ability of any Borrower to perform its obligations under this Agreement or
any of the Notes or any of the other Loan Documents to which it is a party
or (c) the validity or enforceability of this Agreement or any of the
-18-
Notes or any of the other Loan Documents or the rights or remedies of the
Administrative Agent or the Lenders hereunder or thereunder.
"Materials of Environmental Concern": any gasoline or petroleum
----------------------------------
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as
such in or under any Environmental Law, including, without limitation,
asbestos, polychlorinated biphenyls and urea-formaldehyde insulation.
"Minority Interest": the minority interest of Persons other than the
-----------------
Company and its Subsidiaries in the Company's Subsidiaries as shown from
time to time in the most recent consolidated balance sheet of the Company
and its Subsidiaries.
"Moody's Bond Rating": for any day, the rating of the Company's
-------------------
senior long-term unsecured debt by Moody's Investor Service, Inc.
("Moody's") in effect at 11:00 A.M., New York City time, on such day.
"Multicurrency Reference Lenders": Chase, Fleet National Bank N.A.
-------------------------------
and Credit Lyonnais Chicago Branch.
"Multicurrency Revolving Credit Borrowing": a borrowing comprised of
----------------------------------------
Multicurrency Revolving Credit Loans.
"Multicurrency Revolving Credit Commitment": with respect to any
-----------------------------------------
Lender at any time, the commitment (if any) of such Lender to make Loans
pursuant to Section 4.01. The amount of each Lender's Multicurrency
Revolving Credit Commitment is the amount set forth opposite such Lender's
name in Schedule I under the caption "Multicurrency Revolving Credit
Commitment", as such amount may be changed from time to time pursuant to
this Agreement. The Multicurrency Revolving Credit Commitment of each
Lender shall always be expressed in Dollars.
"Multicurrency Revolving Credit Exposure": with respect to any
---------------------------------------
Multicurrency Revolving Credit Lender at any time, the Assigned Dollar
Value at such time of all outstanding Multicurrency Revolving Credit Loans
of such Lender.
"Multicurrency Revolving Credit Facility": as defined in the
---------------------------------------
definition of "Facility".
"Multicurrency Revolving Credit Lender": a Lender with a
-------------------------------------
Multicurrency Revolving Credit Commitment or holding Multicurrency
Revolving Credit Loans.
"Multicurrency Revolving Credit Loan": any Loan made by a Lender
-----------------------------------
pursuant to its Multicurrency Revolving Credit Commitment.
-19-
"Multicurrency Revolving Credit Percentage": as to any Multicurrency
-----------------------------------------
Revolving Credit Lender at any time, the percentage which such Lender's
Multicurrency Revolving Credit Commitment then constitutes of the Total
Multicurrency Revolving Credit Commitments (or, at any time after the
Multicurrency Revolving Credit Commitments shall have expired or
terminated, the percentage which the aggregate principal amount of such
Lender's Multicurrency Revolving Credit Loans then outstanding constitutes
of the aggregate principal amount of the Multicurrency Revolving Credit
Loans then outstanding).
"Multiemployer Plan": a Plan which is a multiemployer plan as defined
------------------
in Section 4001(a)(3) of ERISA or any successor statute.
"National Currency Unit": the unit of currency (other than a euro
----------------------
unit) of a Participating Member State.
"Netherlands BV I": Federal-Mogul Holdings B.V., a Netherlands
----------------
corporation.
"Netherlands BV II": Federal-Mogul Global B.V., a Netherlands
-----------------
corporation.
"Netherlands BV III": Federal-Mogul Investments B.V., a Netherlands
------------------
corporation.
"Netherlands BV IV": Federal-Mogul Growth B.V., a Netherlands
-----------------
corporation.
"Non-Excluded Taxes": as defined in Section 5.11(a).
------------------
"Notes": the collective reference to the Revolving Credit Notes and
-----
the Term Notes.
"Obligations": collectively, the unpaid principal of and interest on
-----------
the Loans and all other obligations and liabilities of each Foreign
Subsidiary Borrower under this Agreement and the other Loan Documents
(including, without limitation, interest accruing at the then applicable
rate provided in this Agreement or any other applicable Loan Document after
the maturity of the Loans and interest accruing at the then applicable rate
provided in this Agreement or any other applicable Loan Document after the
filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to the Company or
any Foreign Subsidiary Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding), whether direct or
indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with,
this Agreement, the Notes, the other Loan Documents or any other document
made, delivered or given in connection therewith, in each case whether on
account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise (including, without limitation,
all fees and disbursements of counsel to the Administrative
-20-
Agent or to the Lenders that are required to be paid by any Borrower
pursuant to the terms of this Agreement or any other Loan Document).
"Other Permitted Obligations": the sum, without duplication of, (i)
---------------------------
the aggregate outstanding principal amount of Indebtedness permitted by
Section 9.05(h), (ii) the aggregate outstanding principal amount of all
obligations guaranteed pursuant to Section 9.06(i), (iii) the aggregate
attributable debt (determined in accordance with GAAP) of all sale and
leaseback transactions consummated pursuant to clause (ii) of the proviso
to Section 9.13 and (iv) the aggregate amount of all Secured Reimbursement
Obligations.
"Participating Member State": any member state which has the euro as
--------------------------
its lawful currency.
"Participants": as defined in Section 13.06(b).
------------
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
----
to Subtitle A of Title IV of ERISA or any successor corporation.
"Permitted Acquisition": any acquisition by the Company or any of its
---------------------
Subsidiaries of all of the Capital Stock or all or substantially all of the
assets of any Person or of a business unit of any Person, so long as (i)
such Person or business unit is engaged in the same line of business as
engaged in by the Company and its Subsidiaries on the Closing Date, or in a
directly related line of business; (ii) no Default or Event of Default
shall have occurred and be continuing at the time of consummation of such
acquisition or, if earlier, at the time of the execution of definitive
documentation for such acquisition; (iii) the Company shall be in pro forma
compliance with the financial covenants contained in Sections 9.01, 9.02
and 9.03 after giving pro forma effect to such acquisition and the
--- -----
incurrence of any Indebtedness in connection therewith as if such
transaction has occurred on the first day of the period of four consecutive
fiscal quarters most recently ended prior to such acquisition; (iv) the
Consolidated Leverage Ratio shall in any event be less than 4.0 to 1.0
after giving pro forma effect to such acquisition and the incurrence of any
--- -----
Indebtedness in connection therewith; (v) such acquisition and the
incurrence of any Indebtedness in connection therewith shall not result in
any violation of Regulations U, T or X of the Board; and (vi) such
acquisition shall have been approved by the board of directors or analogous
governing body of such Person.
"Permitted Acquisition Debt": Indebtedness of the Company which is
--------------------------
incurred to finance a Permitted Acquisition and which may be secured by the
Collateral and guaranteed pursuant to the Subsidiary Guarantees so long as
(i) the terms of such Indebtedness shall be satisfactory to the
Administrative Agent and (ii) to the extent any such Indebtedness is
secured by any assets of the Company or any of its Subsidiaries (including
any Subsidiary acquired in such Permitted Acquisition) or guaranteed by the
Company or any of such Subsidiaries, the Loans shall be secured and
guaranteed on an equal and ratable basis with any such Indebtedness, except
to the extent the
-21-
Administrative Agent determines that the granting of such security
interests and guarantees would be prohibited by applicable law or
contractual provisions, would cause material adverse tax consequences to
the Company or any of its Subsidiaries or would cause the Company or any of
its Subsidiaries to incur costs which are excessive in relation to the
value of the security to be afforded thereby.
"Permitted Bridge Acquisition Debt": Permitted Acquisition Debt
---------------------------------
having an original tenor of eighteen months or less.
"Permitted Other Acquisition Debt": all Permitted Acquisition Debt
--------------------------------
other than Permitted Bridge Acquisition Debt.
"Person": an individual, partnership, corporation, business trust,
------
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is
----
covered by ERISA and in respect of which the Company or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Pledge Agreements": the collective reference to (i) the Domestic
-----------------
Pledge Agreement, (ii) the Pledge Agreements described on Schedule V and
(iii) other pledge agreements in form and substance reasonably satisfactory
to the Administrative Agent pursuant to which shares of Subsidiaries may be
pledged from time to time, in each case, as the same may be amended,
supplemented or otherwise modified.
"Pledged Stock": the Capital Stock pledged pursuant to a Pledge
-------------
Agreement.
"Pricing Grid": the pricing grid attached hereto as Annex A.
------------
"Prime Rate": the rate of interest per annum publicly announced from
----------
time to time by Chase as its prime rate in effect at its principal office
in New York City (each change in the Prime Rate to be effective on the date
such change is publicly announced). The Prime Rate is not intended to be
the lowest rate of interest charged by Chase in connection with extensions
of credit to debtors.
"Prohibited Transaction": any "prohibited transaction" as defined in
----------------------
Section 406 of ERISA or Section 4975 of the Code.
"Properties": as defined in Section 6.16(a).
----------
"Property": any right or interest in or to property of any kind
--------
whatsoever, whether real, personal or mixed and whether tangible or
intangible, including without limitation, Capital Stock.
-22-
"Receivables Subsidiary": Federal-Mogul Funding Corporation, a
----------------------
Michigan corporation.
"Reference Lenders": the collective reference to the Domestic
-----------------
Reference Lenders and the Multicurrency Reference Lenders.
"Register": as defined in Section 13.06(d).
--------
"Reorganization": with respect to any Multiemployer Plan, the
--------------
condition that such plan is in reorganization within the meaning of Section
4241 of ERISA.
"Replacement Lender": a bank or financial institution (other than a
------------------
Subsidiary of the Company) acceptable to the Administrative Agent and the
Company.
"Reportable Event": any of the events set forth in Section 4043(b) of
----------------
ERISA or the regulations thereunder.
"Required Lenders": the holders of more than 50% of the sum of (a)
----------------
the aggregate unpaid principal amount of the Term Loans, Additional US$
Revolving Credit Loans, Multicurrency Revolving Credit Loans and US$
Revolving Extensions of Credit and (b) the unutilized Additional US$
Revolving Credit Commitments, Multicurrency Revolving Credit Commitments
and US$ Revolving Credit Commitments.
"Requirement of Law": as to any Person, the certificate of
------------------
incorporation and by-laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"Reset Date": as defined in Section 4.03(b).
----------
"Responsible Officer": (i) as to the Company, the chief executive
-------------------
officer, the president, the chief financial officer, the treasurer, any
assistant treasurer or the controller of the Company and (ii) as to any
other Borrower, those of its officers or representatives whose signatures
and incumbency shall have been certified to the Administrative Agent and
the Lenders pursuant to Section 7.01(c) or 7.02(e).
"Revolving Credit Commitments": the collective reference to the US$
----------------------------
Revolving Credit Commitments, the Additional US$ Revolving Credit
Commitments and the Multicurrency Revolving Credit Commitments. The
original aggregate amount of the Revolving Credit Commitments, as of the
Closing Date, is $1,000,000,000.
-23-
"Revolving Credit Commitment Period": the period from and including
----------------------------------
the Closing Date to but not including the Revolving Credit Termination
Date, or such earlier date on which the Revolving Credit Loans shall
terminate as provided herein.
"Revolving Credit Facility": the collective reference to the US$
-------------------------
Revolving Credit Facility, Multicurrency Revolving Credit Facility and
Additional US$ Revolving Credit Facility.
"Revolving Credit Lender": each Lender which has a Revolving Credit
-----------------------
Commitment or which has made Revolving Credit Loans.
"Revolving Credit Loan": the collective reference to US$ Revolving
---------------------
Credit Loans, Multicurrency Revolving Credit Loans and Additional US$
Revolving Credit Loans.
"Revolving Credit Termination Date": the date which is five years
---------------------------------
after the Closing Date.
"Secured Obligations": as defined in each Security Document, as
-------------------
applicable.
"Secured Reimbursement Obligations": at any time, the aggregate
---------------------------------
undrawn face amount of, plus the aggregate unreimbursed amount of all
drawings under, all letters of credit issued by any Lender for the account
of any Borrower, other than any such letter of credit in respect of which
the issuing Lender shall have delivered a written acknowledgement to the
Administrative Agent to the effect that the obligations of the account
party in respect of such letter of credit shall not be secured pursuant to
the Security Documents or guaranteed pursuant to a Subsidiary Guarantee.
"Security Documents": the collective reference to the Pledge
------------------
Agreements, the Trust Agreement, and all other security documents hereafter
delivered to the Administrative Agent (or the Trustee, as the case may be)
granting a Lien on any Property of any Person to secure the obligations and
liabilities of any Loan Party under any Loan Document.
"Significant Subsidiary": any Subsidiary other than an Insignificant
----------------------
Subsidiary.
"Single Employer Plan": any Plan which is covered by Title IV of
--------------------
ERISA, but which is not a Multiemployer Plan.
"Solvent": when used with respect to any Person, means that, as of
-------
any date of determination, (a) the amount of the "present fair saleable
value" of the assets of such Person will, as of such date, exceed the
amount of all "liabilities of such Person, contingent or otherwise", as of
such date, as such quoted terms are determined in accordance with
applicable federal and state laws governing determinations of the
-24-
insolvency of debtors, (b) the present fair saleable value of the assets of
such Person will, as of such date, be greater than the amount that will be
required to pay the liability of such Person on its debts as such debts
become absolute and matured, (c) such Person will not have, as of such
date, an unreasonably small amount of capital with which to conduct its
business, and (d) such Person will be able to pay its debts as they mature.
For purposes of this definition, (i) "debt" means liability on a "claim",
and (ii) "claim" means any (x) right to payment, whether or not such a
right is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured or
unsecured or (y) right to an equitable remedy for breach of performance if
such breach gives rise to a right to payment, whether or not such right to
an equitable remedy is reduced to judgment, fixed, contingent, matured or
unmatured, disputed, undisputed, secured or unsecured.
"Special Purpose Subsidiaries": the collective reference to U.S.
----------------------------
Finance Subsidiary I, U.S. Finance Subsidiary II, U.S. Finance Subsidiary
III, Netherlands BV I, Netherlands BV II, Netherlands BV III, Netherlands
BV IV, U.K. Acquisition I and U.K. Acquisition II.
"Spot Exchange Rate": with respect to any Available Foreign Currency,
------------------
at any date of determination thereof, the spot rate of exchange in London
that appears on the display page applicable to such Available Foreign
Currency on the Reuters System (or such other page as may replace such page
on such service for the purpose of displaying the spot rate of exchange in
London) for the conversion of such Available Foreign Currency into Dollars;
provided that if there shall at any time no longer exist such a page on
--------
such service, the spot rate of exchange shall be determined by reference to
another similar rate publishing service selected by the Administrative
Agent and if no such similar rate publishing service is available, by
reference to the published rate of the Administrative Agent in effect at
such date for similar commercial transactions.
"S&P Bond Rating": for any day, the rating of the Company's senior
---------------
long-term unsecured debt by Standard & Poor's Ratings Service ("S&P") in
effect at 11:00 A.M., New York City time, on such day.
"Subordinated Debt": unsecured Indebtedness of the Company having a
-----------------
final maturity date at least 91 days after the final maturity date of the
Tranche B Term Loans and a weighted average life at least as long as the
weighted average life of the Tranche B Term Loans, and having subordination
terms acceptable to the Administrative Agent, acting reasonably.
"Subsequent Participant": any member state that adopts the euro as
----------------------
its lawful currency after January 1, 1999.
"Subsidiary": at any particular time, any Person which could be
----------
included as a consolidated subsidiary of the Company in the financial
statements prepared and filed
-25-
with the Company's annual reports on Form 10-K under the Securities
Exchange Act of 1934, as amended, if such financial statements were
prepared at, and as of, such time. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall
refer to a Subsidiary or Subsidiaries of the Company.
"Subsidiary Guarantees": the collective reference to the Amended and
---------------------
Restated Domestic Subsidiary Guarantee and the U.K. Acquisition I
Guarantee, and any other guarantee by a Subsidiary of the Indebtedness and
obligations of the Borrowers hereunder that may be executed and delivered
to the Administrative Agent hereunder.
"Swing Line Commitment": as to the Swing Line Lender, in its capacity
---------------------
as a Swing Line Lender, its obligation to make Swing Line Loans to the
Company in an aggregate principal amount not to exceed, at any one time
outstanding $50,000,000.
"Swing Line Lender": Chase, in its capacity as provider of the Swing
-----------------
Line Loans.
"Swing Line Loan": as defined in Section 2.05.
---------------
"Swing Line Loans": as defined in Section 2.05.
----------------
"Target Operating Day": any day that is not (a) a Saturday or Sunday,
--------------------
(b) Christmas Day or New Year's Day or (c) any other day on which the
Trans-European Real-time Gross Settlement Operating System (or any
successor settlement system) is not operating (as determined by the
Administrative Agent).
"T & N Acquisition": the acquisition by the Company, through an
-----------------
indirect Wholly Owned Subsidiary, of T & N plc.
"T & N Industries": T & N Industries, Inc., a Delaware corporation.
----------------
"T & N plc": T & N plc, a company organized under the laws of
---------
England.
"Term Loan Commitments": the collective reference to the Tranche A
---------------------
Term Loan Commitments and the Tranche B Term Loan Commitments.
"Term Loan Lenders": the collective reference to the Tranche A Term
-----------------
Loan Lenders and the Tranche B Term Loan Lenders.
"Term Loans": the collective reference to the Tranche A Term Loans
----------
and the Tranche B Term Loans.
"Total Multicurrency Revolving Credit Commitments": at any time, the
------------------------------------------------
aggregate amount of the Multicurrency Revolving Credit Commitments, as in
effect at such time. The Total Multicurrency Revolving Credit Commitments
on the Closing Date is $125,000,000.
-26-
"Total US$ Revolving Credit Commitments": at any time, the aggregate
--------------------------------------
amount of the US$ Revolving Credit Commitments, as in effect at such time.
The Total US$ Revolving Credit Commitments on the Closing Date is
$875,000,000.
"Tranche": the collective reference to Eurodollar Loans or
-------
Multicurrency Revolving Credit Loans of any Class the then current Interest
Periods with respect to all of which begin on the same date and end on the
same later date (whether or not such Loans shall originally have been made
on the same day).
"Tranche A Term Loans": as defined in Section 3.01.
--------------------
"Tranche A Term Loan Commitment": as to any Lender, the obligation of
------------------------------
such Lender, if any, to make a Tranche A Term Loan to the Company hereunder
in a principal amount not to exceed the amount set forth under the heading
"Tranche A Term Loan Commitment" opposite such Lender's name on Schedule I.
"Tranche A Term Loan Exposure": as to any Tranche A Term Loan Lender
----------------------------
at any time, the aggregate outstanding principal amount of the Tranche A
Term Loans of such Tranche A Term Loan Lender at such time.
"Tranche A Term Loan Lender": each Lender which has a Tranche A Term
--------------------------
Loan Commitment or which has made a Tranche A Term Loan.
"Tranche A Term Loan Percentage": as to any Tranche A Term Loan
------------------------------
Lender at any time, the percentage which such Lender's Tranche A Term Loan
Exposure then constitutes of the aggregate Tranche A Term Loan Exposures.
"Tranche B Term Loans": as defined in Section 3.01.
--------------------
"Tranche B Term Loan Commitment": as to Tranche B Term Loan Lender,
------------------------------
the obligation of such Lender, if any, to make a Tranche B Term Loan to the
Company hereunder in a principal amount not to exceed the amount set forth
under the heading "Tranche B Term Loan Commitment" opposite such Lender's
name on Schedule I.
"Tranche B Term Loan Exposure": as to any Tranche B Term Loan Lender
----------------------------
at any time, the aggregate outstanding principal amount of the Tranche B
Term Loans of such Tranche B Term Loan Lender at such time.
"Tranche B Term Loan Lender": each Lender which has a Tranche B Term
--------------------------
Loan Commitment or which has made a Tranche B Term Loan.
-27-
"Tranche B Term Loan Percentage": as to any Tranche B Term Loan
------------------------------
Lender at any time, the percentage which such Lender's Tranche B Term Loan
Exposure then constitutes of the aggregate Tranche B Term Loan Exposures.
"Transferee": as defined in Section 13.06(f).
----------
"Treaty on European Union": the Treaty of Rome of March 25, 1957, as
------------------------
amended by the Single European Act 1986 and the Maastricht Treaty (which
was signed at Maastricht on February 7, 1992, and came into force on
November 1, 1993), as amended from time to time.
"Trust Agreement": each of (or, where the context requires, both of)
---------------
(i) the Amended and Restated Trust Agreement, dated as of February 24,1999,
among the Company, certain Subsidiaries of the Company and First Union
National Bank, substantially in the form of Exhibit D-2 and (ii) the
Amended and Restated Trust Agreement, dated as of February 24, 1999, among
the Company, certain Subsidiaries of the Company, and ABN AMRO Trust
Company (Jersey) Limited, substantially in the form of Exhibit D-1, in each
case as amended, amended and restated, supplemented or otherwise modified
from time to time.
"Trustee": each of (or, where the context requires, both of) (i) ABN
-------
AMRO Trust Company (Jersey) Limited and (ii) First Union National Bank, in
its respective capacity as Trustee under a Trust Agreement.
"Type": as to any Revolving Credit Loan or Term Loan, its nature as a
----
Base Rate Loan or a Eurodollar Loan.
"U.K. Acquisition I": F-M UK Holding Limited, a company organized
------------------
under the laws of England.
"U.K. Acquisition I Guarantee": the Guarantee to be made on or prior
----------------------------
to the date which is 120 days following the Closing Date by U.K.
Acquisition I in favor of Chase, as amended, amended and restated,
supplemented or otherwise modified from time to time.
"U.K. Acquisition II": Federal-Mogul Global Growth Limited, a company
-------------------
organized under the laws of England.
"US$ Revolving Credit Borrowing": a borrowing comprised of US$
------------------------------
Revolving Credit Loans.
"US$ Revolving Credit Commitment": with respect to any Lender, the
-------------------------------
commitment (if any) of such Lender to make US$ Revolving Credit Loans
pursuant to Section 2.01, and to acquire participations in Swing Line Loans
pursuant to Section 2.09. The amount of each Lender's US$ Revolving Credit
Commitment is the amount set forth
-28-
opposite such Lender's name in Schedule I under the caption "US$ Revolving
Credit Commitment", as such amount may be changed from time to time
pursuant to this Agreement.
"US$ Revolving Credit Facility": as defined in the definition of
-----------------------------
"Facility".
"US$ Revolving Credit Lender": a Lender with a US$ Revolving Credit
---------------------------
Commitment or holding US$ Revolving Credit Loans or participating interests
in Swing Line Loans.
"US$ Revolving Credit Loan": as defined in Section 2.01(a).
-------------------------
"US$ Revolving Credit Note": as defined in Section 2.02(e).
-------------------------
"US$ Revolving Credit Percentage": as to any US$ Revolving Credit
-------------------------------
Lender at any time, the percentage which such Lender's US$ Revolving Credit
Commitment then constitutes of the Total US$ Revolving Credit Commitments
(or, at any time after the US$ Revolving Credit Commitments shall have
expired or terminated, the percentage which the aggregate principal amount
of such Lender's US$ Revolving Credit Loans then outstanding constitutes of
the aggregate principal amount of the US$ Revolving Credit Loans then
outstanding).
"US$ Revolving Extensions of Credit": as to any US$ Revolving Credit
----------------------------------
Lender at any time, an amount equal to the sum of (a) the aggregate
principal amount of all US$ Revolving Credit Loans made by such Lender then
outstanding and (c) such Lender's US$ Revolving Credit Percentage of the
aggregate principal amount of Swing Line Loans then outstanding.
"U.S. Finance Subsidiary I": Federal-Mogul Dutch Holdings Inc., a
-------------------------
Delaware corporation.
"U.S. Finance Subsidiary II": Federal-Mogul Global Inc., a Delaware
--------------------------
corporation.
"U.S. Finance Subsidiary III": Federal-Mogul U.K. Holdings Inc., a
---------------------------
Delaware corporation.
"Wholly Owned Subsidiary": as to any Person, any other Person all of
-----------------------
the Capital Stock of which (other than directors' qualifying shares
required by law) is owned by such Person directly and/or through other
Wholly Owned Subsidiaries.
SECTION I.2 Other Definitional Provisions. (a) Unless otherwise
-----------------------------
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in the
-29-
Notes, the other Loan Documents or any certificate or other document made or
delivered pursuant hereto.
(b As used herein and in the Notes and any other Loan Document, and
any certificate or other document made or delivered pursuant hereto or thereto,
accounting terms relating to the Company and its Subsidiaries not defined in
Section 1.01 and accounting terms partly defined in Section 1.01, to the extent
not defined, shall have the respective meanings given to them under GAAP.
(c The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, subsection,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
ARTICLE II. AMOUNT AND TERMS OF REVOLVING CREDIT COMMITMENTS AND SWING LINE
---------------------------------------------------------------
COMMITMENT
----------
SECTION II.1 US$ Revolving Credit Commitments. (a) Subject to the
--------------------------------
terms and conditions hereof, each US$ Revolving Credit Lender severally agrees
to make revolving credit loans in Dollars ("US$ Revolving Credit Loans") to the
--------------------------
Company from time to time during the Revolving Credit Commitment Period in an
aggregate principal amount at any one time outstanding which, when added to such
Lender's US$ Revolving Credit Percentage of the aggregate principal amount of
the Swing Line Loans then outstanding (after giving effect to the use of
proceeds of such US$ Revolving Credit Loans), does not exceed the amount of such
Lender's US$ Revolving Credit Commitment. During the Revolving Credit
Commitment Period the Company may use the US$ Revolving Credit Commitments by
borrowing, prepaying the US$ Revolving Credit Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof.
(b The US$ Revolving Credit Loans may from time to time be (i)
Eurodollar Loans, (ii) Base Rate Loans or (iii) a combination thereof, as
determined by the Company and notified to the Administrative Agent in accordance
with Sections 2.03 and 5.02, provided that no US$ Revolving Credit Loan shall be
--------
made as a Eurodollar Loan after the day that is one month prior to the Revolving
Credit Termination Date.
SECTION II.2 Repayment of US$ Revolving Credit Loans; Evidence of
----------------------------------------------------
Debt. (a) The Company hereby unconditionally promises to pay to the
- - ----
Administrative Agent for the account of each US$ Revolving Credit Lender the
then unpaid principal amount of each US$ Revolving Credit Loan of such US$
Revolving Credit Lender on the Revolving Credit Termination Date and on such
other dates and in such other amounts as may be required from
-30-
time to time pursuant to this Agreement. The Company hereby further agrees to
pay interest on the unpaid principal amount of the US$ Revolving Credit Loans
from time to time outstanding until payment thereof in full at the rates per
annum, and on the dates, set forth in Section 5.01.
(b) Each US$ Revolving Credit Lender shall maintain in accordance
with its usual practice an account or accounts evidencing indebtedness of the
Company to such US$ Revolving Credit Lender resulting from each US$ Revolving
Credit Loan of such US$ Revolving Credit Lender from time to time, including the
amounts of principal and interest payable thereon and paid to such US$ Revolving
Credit Lender from time to time under this Agreement.
(c) The Administrative Agent shall maintain the Register pursuant to
Section 13.06(d), and a subaccount therein for each US$ Revolving Credit Lender,
in which Register and subaccounts shall be recorded (i) the amount of each US$
Revolving Credit Loan made hereunder, the Type thereof and each Interest Period
applicable thereto, (ii) the amount of any principal or interest due and payable
or to become due and payable from the Company to each US$ Revolving Credit
Lender hereunder in respect of the US$ Revolving Credit Loans and (iii) both the
amount of any sum received by the Administrative Agent hereunder from the
Company in respect of the US$ Revolving Credit Loans and each US$ Revolving
Credit Lender's share thereof.
(d) The entries made in the Register and the accounts of each US$
Revolving Credit Lender maintained pursuant to Section 2.02(b) shall, to the
extent permitted by applicable law, be prima facie evidence of the existence and
----- -----
amounts of the obligations of the Company therein recorded; provided, however,
-------- -------
that the failure of any US$ Revolving Credit Lender or the Administrative Agent
to maintain the Register or any such account, or any error therein, shall not in
any manner affect the obligation of the Company to repay (with applicable
interest) the US$ Revolving Credit Loans made to the Company by such US$
Revolving Credit Lender in accordance with the terms of this Agreement.
(e) The Company agrees that, upon the request to the Administrative
Agent by any US$ Revolving Credit Lender, the Company will execute and deliver
to such US$ Revolving Credit Lender a promissory note of the Company evidencing
the US$ Revolving Credit Loans of such US$ Revolving Credit Lender,
substantially in the form of Exhibit A-1 with appropriate insertions as to date
and principal amount (each, a "US$ Revolving Credit Note"); provided, that the
--------
delivery of such US$ Revolving Credit Notes shall not be a condition precedent
to the Closing Date.
SECTION II.3 Procedure for US$ Revolving Credit Borrowing. The
--------------------------------------------
Company may borrow under the US$ Revolving Credit Commitments during the
Revolving Credit Commitment Period on any Business Day, provided that the
--------
Company shall give the Administrative Agent irrevocable notice (which notice
must be received by the Administrative Agent prior to 10:00 A.M., New York City
time and must be promptly confirmed in writing by the Company, (a) three
Business Days prior to the requested Borrowing Date, if all or any part of
-31-
the requested US$ Revolving Credit Loans are to be initially Eurodollar Loans,
or (b) on the requested Borrowing Date, otherwise), specifying in each case (i)
the amount to be borrowed, (ii) the requested Borrowing Date, (iii) whether the
borrowing is to be of Eurodollar Loans, Base Rate Loans or a combination thereof
and (iv) if the borrowing is to be entirely or partly of Eurodollar Loans, the
amount of such Type of Loan and the length of the initial Interest Periods
therefor. Each borrowing under the US$ Revolving Credit Commitments shall be in
an amount equal to (A) in the case of Base Rate Loans, $1,000,000 or a whole
multiple of $1,000,000 in excess thereof (or, if the then aggregate Available
US$ Revolving Credit Commitments are less than $1,000,000, such lesser amount)
and (B) in the case of Eurodollar Loans, $10,000,000 or a whole multiple of
$1,000,000 in excess thereof. Upon receipt of any such notice from the Company,
the Administrative Agent shall promptly notify each US$ Revolving Credit Lender
thereof. Not later than 11:00 A.M., New York City time, on each requested
Borrowing Date each US$ Revolving Credit Lender shall make an amount equal to
its US$ Revolving Credit Percentage of the principal amount of the US$ Revolving
Credit Loans requested to be made on such Borrowing Date available to the
Administrative Agent at its New York office specified in Section 13.02 in
Dollars and in immediately available funds. The Administrative Agent shall on
such date credit the account of the Company on the books of such office with the
aggregate of the amounts made available to the Administrative Agent by the US$
Revolving Credit Lenders and in like funds as received by the Administrative
Agent.
SECTION II.4 Termination or Reduction of US$ Revolving Credit
------------------------------------------------
Commitments. The relevant Borrower shall have the right, upon not less than
- - -----------
three Business Days' notice to the Administrative Agent, to terminate the US$
Revolving Credit Commitments or, from time to time, to reduce the amount of the
US$ Revolving Credit Commitments or the Multicurrency Revolving Credit
Commitments; provided that no such termination or reduction of such Revolving
--------
Credit Commitments shall be permitted if, after giving effect thereto and to any
prepayments of the Loans made on the effective date thereof, (i) the aggregate
US$ Revolving Extensions of Credit would exceed the Total US$ Revolving Credit
Commitments then in effect or (ii) the Aggregate Multicurrency Revolving Credit
Exposure would exceed the Total Multicurrency Revolving Credit Commitments then
in effect. Any such reduction shall be in an amount equal to $10,000,000 or a
whole multiple of $1,000,000 in excess thereof and shall reduce permanently the
relevant Revolving Credit Commitments then in effect.
SECTION II.5 Swing Line Commitments. Subject to the terms and
----------------------
conditions hereof, the Swing Line Lender agrees to make swing line loans
(individually, a "Swing Line Loan"; collectively, the "Swing Line Loans") in
Dollars to the Company under the US$ Revolving Credit Commitments from time to
time during the Revolving Credit Commitment Period in an aggregate principal
amount at any one time outstanding not to exceed the amount of the Swing Line
Commitment, so long as after giving effect thereto the aggregate amount of the
Available US$ Revolving Credit Commitments is greater than or equal to zero.
Amounts borrowed by the Company under this Section 2.05 may be repaid and,
during the Revolving Credit Commitment Period, reborrowed.
-32-
SECTION II.6 Procedure for Swing Line Borrowings; Interest Rate. (a)
--------------------------------------------------
The Company shall give the Swing Line Lender irrevocable notice (which notice
must be received by the Swing Line Lender prior to 10:00 A.M., New York City
time on the requested Borrowing Date and must be promptly confirmed in writing
by the Company) specifying the amount of the requested Swing Line Loan, which
shall be in an aggregate principal amount of not less than $5,000,000 or a whole
multiple of $100,000 in excess thereof. The proceeds of the requested Swing
Line Loan will be made available by the Swing Line Lender to the Company at the
office of the Swing Line Lender by crediting the account of the Company at such
office with such proceeds in Dollars.
(b All Swing Line Loans shall be either (i) Base Rate Loans bearing
interest at the same rate as Revolving Credit Loans which are Base Rate Loans or
(ii) bear interest at such rate as shall be agreed from time to time by the
Company and the Swing Line Lender. No Swing Line Loan may be converted into a
Eurodollar Loan.
SECTION II.7 Repayment of Swing Line Loans; Evidence of Debt. (a)
------------------------------------------------
The Company hereby unconditionally promises to pay to the Swing Line Lender the
then unpaid principal amount of the Swing Line Loans on the Revolving Credit
Termination Date and on such other dates and in such other amounts as may be
required from time to time pursuant to this Agreement. The Company hereby
further agrees to pay interest on the unpaid principal amount of the Swing Line
Loans from time to time outstanding until payment thereof in full at the rates
per annum, and on the dates, set forth in Section 5.01.
(b The Swing Line Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the Company resulting
from each Swing Line Loan made by it from time to time, including the amounts of
principal and interest payable thereon and paid from time to time under this
Agreement.
(c The Administrative Agent shall maintain the Register pursuant to
Section 13.06(d), and a subaccount therein for the Swing Line Lender, in which
shall be recorded (i) the date and amount of each Swing Line Loan made
hereunder, (ii) the amount of each US$ Revolving Credit Lender's participating
interest in such Swing Line Loans, (iii) the date and amount of any principal or
interest due and payable or to become due and payable from the Company hereunder
in respect of the Swing Line Loans and (iv) both the date and amount of any sum
received by the Administrative Agent hereunder from the Company in respect of
the Swing Line Loans, each US$ Revolving Credit Lender's participating interest
therein (if any) and the amount thereof payable to the Swing Line Lender.
(d The entries made in the Register and the accounts of the Swing
Line Lender maintained pursuant to this Section 2.07 shall, to the extent
permitted by applicable law, be prima facie evidence of the existence and
----- -----
amounts of the obligations of the Company therein recorded; provided, however,
-------- -------
that the failure of the Swing Line Lender or the Administrative Agent to
maintain the Register or any such account, or any error therein, shall not in
any manner
-33-
affect the obligation of the Company to repay (with applicable interest) the
Swing Line Loans made to the Company by the Swing Line Lender in accordance with
the terms of this Agreement.
SECTION II.8 Refunding of Swing Line Borrowings. (a) The Swing Line
----------------------------------
Lender, at any time in its sole and absolute discretion may, on behalf of the
Company (which hereby irrevocably directs and authorizes the Swing Line Lender
to act on its behalf), request each US$ Revolving Credit Lender, including
Chase, to make a US$ Revolving Credit Loan (which shall be a Base Rate Loan) in
an amount equal to such US$ Revolving Credit Lender's US$ Revolving Credit
Percentage of the principal amount of the Swing Line Loans (the "Refunded Swing
Line Loans") outstanding on the date such notice is given; provided that the
--------
provisions of this Section shall not affect the Company's obligations to repay
Swing Line Loans in accordance with the provisions of Sections 2.07 and 5.04(c)
and (h). Unless the US$ Revolving Credit Commitments shall have expired or
terminated (in which event the procedures of Section 2.09 shall apply), each US$
Revolving Credit Lender will make the proceeds of the US$ Revolving Credit Loan
made by it pursuant to the immediately preceding sentence available to the
Administrative Agent at the office of the Administrative Agent specified in
Section 13.02 prior to 10:00 A.M., New York City time, in funds immediately
available on the Business Day next succeeding the date such notice is given.
The proceeds of such US$ Revolving Credit Loans shall be immediately made
available by the Administrative Agent to the Swing Line Lender for application
to the payment in full of the Refunded Swing Line Loans. Upon any request by
the Swing Line Lender to the US$ Revolving Credit Lenders pursuant to this
Section 2.08, the Administrative Agent shall promptly give notice to the Company
of such request.
SECTION II.9 Participating Interests. (a) If the US$ Revolving
-----------------------
Credit Commitments shall expire or terminate at any time while Swing Line Loans
are outstanding, at the request of the Swing Line Lender in its sole discretion,
either (i) each US$ Revolving Credit Lender (including Chase) shall,
notwithstanding the expiration or termination of the US$ Revolving Credit
Commitments, make a US$ Revolving Credit Loan (which shall be a Base Rate Loan)
or (ii) each US$ Revolving Credit Lender (other than Chase) shall purchase an
undivided participating interest in the Swing Line Loans of the Swing Line
Lender, in either case in an amount equal to such US$ Revolving Credit Lender's
US$ Revolving Credit Percentage (determined on the date of, and immediately
prior to, expiration or termination of the US$ Revolving Credit Commitments) of
the aggregate principal amount of such Swing Line Loans. Each US$ Revolving
Credit Lender will make the proceeds of any US$ Revolving Credit Loan made by it
pursuant to the immediately preceding sentence available to the Administrative
Agent for the account of the Swing Line Lender at the office of the
Administrative Agent specified in Section 13.02 prior to 10:00 A.M., New York
City time, in funds immediately available on the Business Day next succeeding
the date of the request by the Swing Line Lender. The proceeds of such US$
Revolving Credit Loans shall be immediately applied to repay the Swing Line
Loans outstanding on the date of termination or expiration of the US$ Revolving
Credit Commitments. In the event that any of the US$ Revolving Credit Lenders
purchase undivided participating interests pursuant to the first sentence of
this Section 2.09(a), each Revolving Credit Lender shall immediately transfer to
the Swing Line Lender, in immediately available funds, the amount of its
participation in the Swing Line Loans of the Swing Line Lender and upon receipt
-34-
thereof the Swing Line Lender will deliver to any such US$ Revolving Credit
Lender that so requests a confirmation of such US$ Revolving Credit Lender's
undivided participating interest in the Swing Line Loans of the Swing Line
Lender dated the date of receipt of such funds and in such amount.
(b Whenever, at any time after the Swing Line Lender has received
payment from any US$ Revolving Credit Lender in respect of such US$ Revolving
Credit Lender's participating interest in a Swing Line Loan of the Swing Line
Lender, the Swing Line Lender receives any payment on account thereof, the Swing
Line Lender will distribute to such US$ Revolving Credit Lender its
participating interest in such amount (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such US$ Revolving
Credit Lender's participating interest was outstanding and funded); provided,
--------
however, that in the event that any such payment received by the Swing Line
- - -------
Lender is required to be returned, such US$ Revolving Credit Lender will return
to the Swing Line Lender any portion thereof previously distributed by the Swing
Line Lender to it.
ARTICLE III. AMOUNT AND TERMS OF TERM LOAN COMMITMENTS
-----------------------------------------
SECTION III.1 Term Loan Commitments. Subject to the terms and
---------------------
conditions hereof, (a) each Tranche A Term Loan Lender severally agrees to make
term loans ("Tranche A Term Loans") to the Company in an aggregate principal
amount not to exceed the amount of the Tranche A Term Loan Commitment of such
Lender and (b) each Tranche B Term Loan Lender severally agrees to make term
loans ("Tranche B Term Loans") to the Company in an aggregate principal amount
not to exceed the amount of the Tranche B Term Loan Commitment of such Lender.
The Term Loans shall be made in a single drawing on the Closing Date. The Term
Loans may from time to time be Eurodollar Loans or Base Rate Loans, as
determined by the Company and notified to the Administrative Agent in accordance
with Sections 3.03 and 5.02.
SECTION III.2 Repayment of Term Loans; Evidence of Debt. (a) The
-----------------------------------------
Tranche A Term Loan of each Tranche A Lender shall mature in 17 consecutive
quarterly installments, commencing on February 24, 2000, each of which shall be
in an amount equal to such Lender's Tranche A Term Loan Percentage multiplied by
the amount set forth below opposite such installment:
Installment Principal Amount
----------- ----------------
February 24, 2000 $10,000,000
May 24, 2000 $10,000,000
August 24, 2000 $10,000,000
November 24, 2000 $10,000,000
February 24, 2001 $10,000,000
May 24, 2001 $25,000,000
August 24, 2001 $25,000,000
November 24, 2001 $25,000,000
-35-
February 24, 2002 $25,000,000
May 24, 2002 $25,000,000
August 24, 2002 $25,000,000
November 24, 2002 $25,000,000
February 24, 2003 $25,000,000
May 24, 2003 $35,000,000
August 24, 2003 $35,000,000
November 24, 2003 $35,000,000
February 24, 2004 $45,000,000
(b The Tranche B Term Loan of each Tranche B Lender shall mature in
21 consecutive quarterly installments, commencing on February 24, 2000, each of
which shall be in an amount equal to such Lender's Tranche B Term Loan
Percentage multiplied by the amount set forth below opposite such installment:
Installment Principal Amount
----------- ----------------
February 24, 2000 $ 1,000,000
May 24, 2000 $ 1,000,000
August 24, 2000 $ 1,000,000
November 24, 2000 $ 1,000,000
February 24, 2001 $ 1,000,000
May 24, 2001 $ 1,000,000
August 24, 2001 $ 1,000,000
November 24, 2001 $ 1,000,000
February 24, 2002 $ 1,000,000
May 24, 2002 $ 1,000,000
August 24, 2002 0
November 24, 2002 $ 1,000,000
February 24, 2003 $ 1,000,000
May 24, 2003 $ 1,000,000
August 24, 2003 $ 1,000,000
November 24, 2003 $ 1,000,000
February 24, 2004 $ 1,000,000
May 24, 2004 $ 50,000,000
August 24, 2004 $ 50,000,000
November 24, 2004 $ 50,000,000
February 24, 2005 $183,000,000
(c The Company hereby unconditionally promises to pay to the
Administrative Agent for the account of the appropriate Term Loan Lender the
principal amount of each Term
-36-
Loan of such Term Loan Lender in installments according to the amortization
schedule set forth in paragraphs (a) or (b) above, as applicable (or on such
earlier date on which the Loans become due and payable pursuant to Article XI).
The Company hereby further agrees to pay interest on the unpaid principal amount
of the Term Loans from time to time outstanding from the date hereof until
payment in full thereof at the rates per annum, and on the dates, set forth in
Section 5.01.
(d Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing indebtedness of the Company to such Lender
resulting from each Term Loan of such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time in respect of such Term Loans under this Agreement.
(e The Administrative Agent, on behalf of the Company, shall
maintain the Register pursuant to Section 13.06(d), and a subaccount therein for
each Lender, in which shall be recorded (i) the amount of each Term Loan made
hereunder and any Note evidencing such Term Loan, the Type thereof and each
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Company to each Lender
hereunder and (iii) both the amount of any sum received by the Administrative
Agent hereunder from the Company and each Lender's share thereof.
(f The entries made in the Register and the accounts of each Lender
maintained pursuant to Section 3.02(d) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
----- -----
obligations of the Company therein recorded; provided, however, that the failure
-------- -------
of any Lender or the Administrative Agent to maintain the Register or any such
account, or any error therein, shall not in any manner affect the obligation of
the Company to repay (with applicable interest) the Term Loans by such Lender in
accordance with the terms of this Agreement.
(g The Company agrees that, upon the request to the Administrative
Agent by any Lender, the Company will execute and deliver to such Lender a
promissory note of the Company evidencing any Term Loans of such Lender,
substantially in the form of Exhibit A-2, with appropriate insertions as to date
and principal amount.
SECTION III.3 Procedure for Term Loan Borrowing. The Company may
---------------------------------
borrow the Term Loans on the Closing Date, provided that the Company shall give
--------
the Administrative Agent irrevocable notice (which notice must be received by
the Administrative Agent prior to 10:00 A.M., New York City time, (a) three
Business Days prior to the Closing Date, if all or any part of the requested
Term Loans are to be initially Eurodollar Loans, or (b) one Business Day prior
to the requested Closing Date, otherwise), specifying in each case (i) the
amount to be borrowed, (ii) the requested Closing Date, (iii) whether the
borrowing is to be of Eurodollar Loans, Base Rate Loans or a combination thereof
and (iv) if the borrowing is to be entirely or partly of Eurodollar Loans, the
amount of such Type of Loan and the length of the initial Interest Periods
therefor. Upon receipt of any such notice from the Company, the Administrative
Agent shall promptly notify each Term Loan Lender thereof. Not later than 11:00
A.M., New York
-37-
City time, on the Closing Date each Term Loan Lender shall make the amount of
the Term Loans to be made by it on such Borrowing Date available to the
Administrative Agent at its New York office specified in Section 13.02 in
Dollars and in immediately available funds. The Administrative Agent shall on
such date credit the account of the Company on the books of such office with the
aggregate of the amounts made available to the Administrative Agent by the Term
Loan Lenders and in like funds as received by the Administrative Agent.
ARTICLE IV. AMOUNT AND TERMS OF MULTICURRENCY REVOLVING CREDIT COMMITMENTS
--------------------------------------------------------------
SECTION IV.1 Multicurrency Revolving Credit Commitments. (a) Subject
------------------------------------------
to the terms and conditions hereof, each Multicurrency Revolving Credit Lender
severally agrees to make Multicurrency Revolving Credit Loans to any Borrower,
at any time and from time to time on and after the date hereof and until the
earlier of the Revolving Credit Termination Date and the termination of the
Multicurrency Revolving Credit Commitment of such Lender in accordance with the
terms hereof, in Dollars and any Available Foreign Currency in an aggregate
principal amount at any time outstanding that will not result in (i) such
Lender's Multicurrency Revolving Credit Exposure at such time exceeding its
Multicurrency Revolving Credit Commitment or (ii) the amount of Multicurrency
Revolving Credit Loans denominated in any such Available Foreign Currency
exceeding the Currency Sublimit applicable to such Available Foreign Currency.
(b Each Multicurrency Revolving Credit Lender shall make each
Multicurrency Revolving Credit Loan to be made by it hereunder on the proposed
date thereof by wire transfer to such account as the Administrative Agent may
designate in immediately available funds not later than 11:00 a.m., London time,
and the Administrative Agent shall credit the amounts so received to an account
designated by the relevant Borrower in the applicable borrowing request.
(c The Administrative Agent shall notify the Company and the
Multicurrency Revolving Credit Lenders of the amount of the Aggregate
Multicurrency Revolving Credit Exposure, promptly following each Calculation
Date.
(d Each Borrower which has borrowed Multicurrency Revolving Credit
Loans shall repay all such Loans made to it in the currency in which such Loans
were made on the Revolving Credit Termination Date.
SECTION IV.2 Procedure for Multicurrency Revolving Credit Borrowing.
------------------------------------------------------
(a) In order to request a Multicurrency Revolving Credit Loan, the relevant
Borrower shall hand deliver or telecopy to the Administrative Agent a duly
completed borrowing request, not later than 12:00 (noon), London time, three
Business Days (or, in the case of a borrowing denominated in Australian Dollars,
four Business Days) before such proposed borrowing. Each borrowing request
shall be irrevocable. The Administrative Agent shall promptly advise the
applicable Lenders of any notice given pursuant to this Section 4.02 and of each
Lender's portion of the requested borrowing and the Spot Exchange Rate utilized.
Each borrowing under the
-38-
Multicurrency Revolving Credit Commitments shall be in a minimum amount in
Dollars equal to, or an amount in an Available Foreign Currency of which the
Dollar Equivalent is $10,000,000 or a whole multiple of $1,000,000 in excess
thereof (or, if the Dollar Equivalent of the then aggregate Available
Multicurrency Revolving Credit Commitments is less than $10,000,000, such lesser
amount) as rounded upwards to the nearest 100,000 units in the relevant
Available Foreign Currency.
SECTION IV.3 Spot Exchange Rate Calculations. (a) Not later than
-------------------------------
2:00 p.m., London time, on each Calculation Date, the Administrative Agent shall
(A) determine the Spot Exchange Rate as of such Calculation Date with respect to
each of the Available Foreign Currencies in which Multicurrency Revolving Credit
Loans are then outstanding and (B) give notice thereof to the Company and the
Multicurrency Revolving Credit Lenders.
(b The Spot Exchange Rates determined pursuant to Section 4.03(a)
shall become effective on the second Business Day immediately following the
relevant Calculation Date (a "Reset Date") and shall remain effective until the
next succeeding Reset Date.
(c Not later than 2:00 p.m., London time, on the Business Day
immediately following the delivery of any notice in connection with the
repayment of Multicurrency Revolving Credit Loans, the Administrative Agent
shall (A) determine as of such date the Assigned Dollar Value, based on the Spot
Exchange Rate then in effect, of each Multicurrency Revolving Credit Loan then
outstanding (after giving effect to any Multicurrency Revolving Credit Loan
repaid in connection therewith) and (B) notify the Company and the Multicurrency
Revolving Credit Lenders of the results of such determination.
SECTION IV.4 Commitment Reallocations. (a) The Borrowers may, from
------------------------
time to time, but not more than once per calendar quarter (unless otherwise
agreed by each Multicurrency Revolving Credit Lender), from and after the
Closing Date until the earlier of the Revolving Credit Termination Date and the
termination of the Multicurrency Revolving Credit Commitments, upon giving an
irrevocable joint written notice substantially in the form of Exhibit J (each, a
"Reallocation Notice") to the Administrative Agent at least ten Business Days
-------------------
prior to the beginning of the next following calendar quarter, temporarily
reduce, in whole or in part, or increase, the Multicurrency Revolving Credit
Commitments. Any reductions or increases in the Multicurrency Revolving Credit
Commitments or the Additional US$ Revolving Credit Commitments (as defined
below) shall take effect on the first day of the next following calendar
quarter. Each reduction or increase in the Multicurrency Revolving Credit
Commitments shall result in an automatic corresponding increase or reduction in
the Additional US$ Revolving Credit Commitments; provided that the Total
--------
Multicurrency Revolving Credit Commitments shall not, at any time, (i) be
reduced to an amount that is less than the Dollar Equivalent of the aggregate
Multicurrency Revolving Credit Loans outstanding at such time or (ii) exceed
$125,000,000. The Revolving Credit Commitments from time to time resulting from
a reallocation of Multicurrency Revolving Credit Commitments pursuant to this
Section 4.04 at any time are the "Additional US$ Revolving Credit Commitments".
Any amount of the Multicurrency Revolving Credit Commitments reallocated under
this Section 4.04 as Additional
-39-
US$ Revolving Credit Commitments will only be available to the Company until and
only if such amounts are reallocated back to the Multicurrency Revolving Credit
Commitments in accordance with the terms and conditions of this Section 4.04.
The ability of the Borrowers to reallocate the relevant Revolving
Credit Commitments in accordance with this Section 4.04 shall be subject to the
conditions that (A) the representations and warranties set forth in each Loan
Document shall be true and correct in all material respects on and as of the
date of such reallocation with the same effect as though made on and as of such
date, except to the extent that such representations and warranties expressly
relate to an earlier date and (B) at the time of and immediately following such
reallocation, no Event of Default or Default shall have occurred and be
continuing. Each Reallocation Notice shall specify the amount (expressed in
Dollars) of any reduction or increase in the Multicurrency Revolving Credit
Commitments and the corresponding increase or reduction in the Additional US$
Revolving Credit Commitments. Each reallocation requested under this Section
4.04 shall be in a minimum aggregate principal amount of $50,000,000 (or, if
less, the remaining amount of the relevant Revolving Credit Commitments) and in
integral multiples of $5,000,000 in excess thereof. Each reduction or increase
in the Multicurrency Revolving Credit Commitments under this Section 4.04 shall
be made ratably among the Multicurrency Revolving Credit Lenders based on their
respective Multicurrency Revolving Credit Commitments. Each reduction or
increase in the Additional US$ Revolving Credit Commitments under this Section
4.04 shall be made ratably among the Multicurrency Revolving Credit Lenders
based on their respective Multicurrency Revolving Credit Commitments. The
Administrative Agent shall promptly after receiving a Reallocation Notice notify
each Multicurrency Revolving Credit Lender of the amount of its Multicurrency
Revolving Credit Commitment or Additional US$ Revolving Credit Commitment, as
the case may be, to be reallocated and the date of such reallocation.
(b) The Additional US$ Revolving Credit Commitments shall be
available to the Company on the same terms (except as provided in this paragraph
(b)), mutatis mutandis, as the US$ Revolving Credit Commitments. Without
------- --------
limiting the generality of the foregoing, (i) the Company may borrow for its
account under the Additional US$ Revolving Credit Commitments to the same extent
as it may utilize the US$ Revolving Credit Commitments (subject to the same
interest rate options, minimum borrowing and repayment amounts and maturities),
provided that the aggregate principal amount of Additional US$ Revolving Credit
- - --------
Loans shall not exceed the aggregate Additional US$ Revolving Credit
Commitments, (ii) Swing Line Loans are not available under the Additional US$
Revolving Credit Commitments, and (iii) the Multicurrency Revolving Credit
Lenders shall be entitled to the same rights (including acceleration rights) and
subject to the same obligations with respect to the Additional US$ Revolving
Credit Commitments as are the US$ Revolving Credit Lenders with respect to the
US$ Revolving Credit Commitments.
SECTION 4.05 Redenomination and Alternative Currencies. Each
-----------------------------------------
obligation under this Agreement of a party to this Agreement which has been
denominated in the national currency unit of a Subsequent Participant state
shall be redenominated into the euro unit in
-40-
accordance with EMU legislation immediately upon such Subsequent Participant
becoming a Participating Member State (but otherwise in accordance with EMU
Legislation).
ARTICLE V. GENERAL PROVISIONS APPLICABLE TO THE LOANS
------------------------------------------
SECTION V.1 Interest Rates and Payment Dates. (a) Each Eurodollar
--------------------------------
Loan of each Class shall bear interest for each day during each Interest Period
with respect thereto at a rate per annum equal to the Eurodollar Rate determined
for such Interest Period plus the Applicable Margin for such Class of Loans in
effect for such day.
(b) Each Base Rate Loan of each Class shall bear interest for each
day that it is outstanding at a rate per annum equal to the Base Rate for such
day plus the Applicable Margin for such Class of Loans in effect for such day.
(c) Each Multicurrency Revolving Credit Loan shall bear interest for
each day during each Interest Period with respect thereto at a rate per annum
equal to the applicable Eurocurrency Rate determined for such Interest Period
plus the Applicable Margin for such Class of Loans in effect for such day.
(d) If all or a portion of (i) the principal amount of any Loan, (ii)
any interest payable thereon or (iii) any fee or other amount payable hereunder
shall not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall bear interest at a rate per annum equal to
the rate that would otherwise be applicable thereto pursuant to the foregoing
provisions of this Section plus 2% or, if higher, in the case of amounts
required to be paid in Dollars, the rate described in paragraph (b) of this
Section plus 2%.
(e) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (d) of this Section
--------
shall be payable from time to time on demand.
SECTION V.2 Conversion and Continuation Options. (a) The Company
-----------------------------------
may elect from time to time to convert outstanding Eurodollar Loans of any Class
(in whole or in part) to Base Rate Loans of the same Class by giving the
Administrative Agent at least two Business Days' prior irrevocable notice of
such election, provided that any such conversion of Eurodollar Loans may only be
--------
made on the last day of an Interest Period with respect thereto. The Company
may elect from time to time to convert outstanding Base Rate Loans (other than
Swing Line Loans) of any Class (in whole or in part) to Eurodollar Loans of the
same Class by giving the Administrative Agent at least three Business Days'
prior irrevocable notice of such election. Any such notice of conversion to
Eurodollar Loans shall specify the length of the initial Interest Period or
Interest Periods therefor. Upon receipt of any such notice the Administrative
Agent shall promptly notify each Lender thereof. All or any part of outstanding
Eurodollar Loans and Base Rate Loans under a particular Facility may be
converted as provided herein, provided that (i) no Base Rate Loan may be
--------
converted into a Eurodollar Loan when any Default
-41-
or Event of Default has occurred and is continuing and the Administrative Agent
or the Majority Facility Lenders in respect of such Facility have determined
that such conversion is not appropriate, (ii) any such conversion may only be
made if, after giving effect thereto, Section 5.03 shall not have been violated,
(iii) no Base Rate Loan of any Class may be converted into a Eurodollar Loan
after the date that is one month prior to the Revolving Credit Termination Date
(in the case of Revolving Credit Loans) or the date of final maturity of the
Loans of such Class (in the case of Term Loans) and (iv) Swing Line Loans may
not be converted to Eurodollar Loans.
(b) Any Eurodollar Loans may be continued as such upon the expiration
of the then current Interest Period with respect thereto by the Company giving
notice to the Administrative Agent of the length of the next Interest Period to
be applicable to such Loans in accordance with the applicable provisions of the
term "Interest Period" set forth in Section 1.01, provided that no Eurodollar
--------
Loan under a particular Facility may be continued as such (i) when any Default
or Event of Default has occurred and is continuing and the Administrative Agent
or the Majority Facility Lenders in respect of such Facility have determined
that such continuation is not appropriate, (ii) if, after giving effect thereto,
Section 5.03 would be contravened or (iii) after the date that is one month
prior to the Revolving Credit Termination Date, and provided, further, that if
-------- -------
the Company shall fail to give such notice or if such continuation is not
permitted pursuant to the preceding proviso such Eurodollar Loans shall be
automatically converted to Base Rate Loans on the last day of such then expiring
Interest Period.
(c) Any Multicurrency Revolving Credit Loans may be continued as such
upon the expiration of the then current Interest Period with respect thereto by
the relevant Borrower giving the Administrative Agent at least three Business
Days' prior irrevocable notice of such election, provided, that if the relevant
--------
Borrower shall fail to give such notice or if any Default or Event of Default
has occurred and is continuing and the Administrative Agent or the Required
Lenders have determined that such continuation would not be appropriate, such
Multicurrency Revolving Credit Loans shall automatically be continued for an
Interest Period of one month.
(d) Any such notice required in paragraphs (a) through (c) above
shall be made no later than 10:00 A.M., New York City time, in the case of Term
Loans, US$ Revolving Credit Loans and Additional US$ Revolving Credit Loans, and
no later than 11:00 A.M., London time, in the case of Multicurrency Revolving
Credit Loans, in each such case, on the day prescribed for such notice by such
paragraph.
SECTION V.3 Minimum Amounts of Tranches. All borrowings, conversions
---------------------------
and continuations of Loans hereunder and all selections of Interest Periods
hereunder shall be in such amounts and be made pursuant to such elections so
that, immediately after giving effect thereto, (a) the aggregate principal
amount of the Eurodollar Loans comprising each Tranche shall be equal to
$10,000,000 or a whole multiple of $1,000,000 in excess thereof, (b) the
aggregate principal amount of the Multicurrency Revolving Credit Loans
comprising each Tranche shall be in an amount which is, or of which the Dollar
Equivalent is, at least $10,000,000 and (c) there shall not be more than 25
Tranches at any one time outstanding.
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SECTION V.4 Optional and Mandatory Prepayments. (a) The Company may
----------------------------------
at any time and from time to time prepay US$ Revolving Credit Loans, Swing Line
Loans and/or Term Loans, in whole or in part, upon at least three Business Days'
irrevocable notice to the Administrative Agent (in the case of Eurodollar Loans)
and at least one Business Day's irrevocable notice to the Administrative Agent
(in the case of Base Rate Loans), specifying the date and amount of prepayment,
which Class of Loans will be prepaid, and whether the prepayment is of
Eurodollar Loans, Base Rate Loans or a combination thereof, and, if a
combination thereof, the amount allocable to each; provided, the Swing Line
--------
Loans may be prepaid without prior notice. Upon the receipt of any such notice
the Administrative Agent shall promptly notify each Lender thereof. If any such
notice is given, the amount specified in such notice shall be due and payable on
the date specified therein, together with any amounts payable pursuant to
Section 5.12. Partial prepayments of US$ Revolving Credit Loans or Term Loans
of any Class shall be in an aggregate principal amount of $10,000,000 or a whole
multiple of $1,000,000 in excess thereof. Partial prepayments of the Swing Line
Loans shall be in aggregate principal amount of $1,000,000 or a whole multiple
of $100,000 in excess thereof.
(b) The Borrowers may at any time and from time to time prepay,
without premium or penalty, the Multicurrency Revolving Credit Loans, in whole
or in part, upon at least three Business Days' (or, in the case of a prepayment
with respect to Multicurrency Revolving Credit Loans denominated in Australian
Dollars, four Business Days) irrevocable notice to the Administrative Agent
specifying the date and amount of prepayment. Upon the receipt of any such
notice, the Administrative Agent shall promptly notify each Multicurrency
Revolving Credit Lender thereof. If any such notice is given, the amount
specified in such notice shall be due and payable on the date specified therein.
Partial prepayments of Multicurrency Revolving Credit Loans shall be in an
aggregate principal amount in Dollars equal to, or an amount in an Available
Foreign Currency of which the Dollar Equivalent is at least $5,000,000, as
rounded upwards to the nearest 100,000 units in the relevant Available Foreign
Currency.
(c) If, on any Reset Date, the Aggregate Multicurrency Revolving
Credit Exposure (expressed in Dollars) exceeds an amount equal to 105% of the
Total Multicurrency Revolving Credit Commitment, then (i) the Administrative
Agent shall give notice thereof to each Multicurrency Revolving Credit Lender
and the Company and (ii) the Company shall, or shall cause the relevant Borrower
to, on the next succeeding Business Day, prepay outstanding Multicurrency
Revolving Credit Loans in an amount so that after giving effect to any such
prepayments, the Aggregate Multicurrency Revolving Credit Exposure (expressed in
Dollars) does not exceed the Total Multicurrency Revolving Credit Commitment.
If, on any Reset Date, the Aggregate Multicurrency Revolving Credit Exposure
with respect to a particular Available Foreign Currency (expressed in Dollars)
exceeds an amount equal to 105% of the Currency Sublimit applicable to such
Available Foreign Currency, then (i) the Administrative Agent shall give notice
thereof to each Multicurrency Revolving Credit Lender and the Company and (ii)
the Company shall, or shall cause the relevant Borrower to, on the next
succeeding Business Day, prepay outstanding Multicurrency Revolving Credit Loans
in such Available Foreign Currency in an amount so that after giving effect to
any such prepayments, the Aggregate Multicurrency
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Revolving Credit Exposure with respect to such Available Foreign Currency
(expressed in Dollars) does not exceed the Currency Sublimit with respect to
such Available Foreign Currency.
(d) If at any time any mandatory prepayment (other than the type
referred to in paragraph (c) above) is required to be made in respect of any
Permitted Other Acquisition Debt, such mandatory prepayment shall be applied
toward the prepayment of the Term Loans and such Permitted Other Acquisition
Debt ratably based on the outstanding principal amounts thereof.
(e) Each prepayment of Loans pursuant to this Section 5.04 shall be
accompanied by accrued and unpaid interest on the amount prepaid to the date of
prepayment and any amounts payable under Section 5.12 in connection with such
prepayment.
(f) Prepayments of any Class of Loans pursuant to this Section 5.04
shall be applied as follows: (i) in the case of prepayments made by the
Company, first, to prepay Base Rate Loans of such Class then outstanding and
-----
second, to prepay Eurodollar Loans of such Class then outstanding and (ii) in
- - ------
case of prepayments of Multicurrency Revolving Credit Loans made by a Borrower,
to prepay Multicurrency Revolving Credit Loans borrowed by such Borrower.
Optional prepayments of the Tranche A Term Loans or the Tranche B Term Loans
shall be applied ratably and to the installments thereof in the direct order of
scheduled maturity or in the inverse order of scheduled maturity at the option
of the Company. Mandatory prepayments of the Tranche A Term Loans or the
Tranche B Term Loans shall be applied ratably and to the installments thereof
ratably in accordance with the then outstanding amounts thereof or in the
inverse order of scheduled maturity at the option of the Company.
(g) The Company shall, unless otherwise agreed to by the Swing Line
Lender, prepay all Swing Line Loans then outstanding simultaneously with each
borrowing of US$ Revolving Credit Loans.
SECTION V.5 Facility Fees; Other Fees. (a) The Company agrees to
-------------------------
pay to the Administrative Agent for the account of each Revolving Credit Lender,
a facility fee for the period from and including the Closing Date to but
excluding the Revolving Credit Termination Date (or such earlier date on which
the Revolving Credit Commitments shall terminate as provided herein), computed
at the Facility Fee Rate on the daily average amount of such Lender's aggregate
Revolving Credit Commitment (drawn and undrawn). Such facility fees shall be
payable quarterly in arrears on the last day of each March, June, September and
December and on the Revolving Credit Termination Date or such earlier date on
which the Revolving Credit Commitments shall terminate as provided herein,
commencing on the first of such dates to occur after the date hereof.
(b) The Company shall pay (without duplication of any other fee
payable under this Section 5.05) to Chase, for its own account, fees in the
amounts and on the dates separately agreed to by the Company and Chase.
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(c) The Company shall (without duplication of any other fee payable
under this Section 5.05) pay to the Administrative Agent, for its own amount,
fees in the amounts and on the dates separately agreed to by the Company and the
Administrative Agent.
SECTION V.6 Computation of Interest and Fees. (a) Interest based on
--------------------------------
the Eurodollar Rate, the Eurocurrency Rate (other than with respect to amounts
denominated in Pounds Sterling) or (when it is based on the Federal Funds
Effective Rate) the Base Rate shall be calculated on the basis of a 360-day year
for the actual days elapsed; and facility fees and interest (other than as
specified above) shall be calculated on the basis of a 365- (or 366-, as the
case may be) day year for the actual days elapsed. The Administrative Agent
shall as soon as practicable notify the Company and the Lenders of each
determination of a Eurodollar Rate or a Eurocurrency Rate. Any change in the
interest rate on a Loan resulting from a change in the Base Rate or a change in
the Prime Rate shall become effective as of the opening of business on the day
on which such change becomes effective provided that such change becomes
effective prior to 5:00 p.m., New York City time, on such day. The
Administrative Agent shall as soon as practicable notify the Company and the
Lenders of the Closing Date and the amount of each such change in the Base Rate.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrowers and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of a Borrower or any Lender, deliver
to such Borrower or such Lender a statement showing in reasonable detail the
quotations and calculations used by the Administrative Agent in determining any
interest rate pursuant to Section 5.01(a) or (c).
(c) (i) If any Domestic Reference Lender shall for any reason no
longer have a US$ Revolving Credit Commitment or an Additional US$ Revolving
Credit Commitment or any US$ Revolving Credit Loans or any Additional US$
Revolving Credit Loans, such Domestic Reference Lender shall thereupon cease to
be a Domestic Reference Lender, and if, as a result, there shall only be one
Domestic Reference Lender remaining, the Administrative Agent (after
consultation with the Company and the Lenders) shall, by notice to the Company
and the Lenders, designate another Lender as a Domestic Reference Lender so that
there shall at all times be at least two Domestic Reference Lenders.
(ii) If any Multicurrency Reference Lender shall for any reason no
longer have a Multicurrency Revolving Credit Commitment or any Multicurrency
Revolving Credit Loans, such Multicurrency Reference Lender shall thereupon
cease to be a Multicurrency Reference Lender, and if, as a result, there shall
only be one Multicurrency Reference Lender remaining, the Administrative Agent
(after consultation with the Company and the Lenders) shall, by notice to the
Company and the Lenders, designate another Multicurrency Revolving Credit Lender
as a Multicurrency Reference Lender so that there shall at all times be at least
two Multicurrency Reference Lenders.
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(d) Each Reference Lender shall use its best efforts to furnish
quotations of rates to the Administrative Agent as contemplated hereby. If any
of the Reference Lenders shall be unable or shall otherwise fail to supply such
rates to the Administrative Agent upon its request, the rate of interest shall,
subject to the provisions of Section 5.07, be determined on the basis of the
quotations of the remaining applicable Reference Lenders or Reference Lender, as
applicable.
SECTION V.7 Inability to Determine Interest Rate. If prior to the
------------------------------------
first day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrowers) that, by
reason of circumstances affecting the relevant market generally, adequate
and reasonable means do not exist for ascertaining the Eurodollar Rate or
the Eurocurrency Rate with respect to the currency in which a Loan or a
requested Loan is denominated (the "Affected Currency"), as the case may
be, for such Interest Period, or
(b) the Administrative Agent has received notice from the
Majority Facility Lenders in respect of the relevant Facility that the
Eurodollar Rate or Eurocurrency Rate, as the case may be, determined or to
be determined with respect to the Affected Currency for such Interest
Period will not adequately and fairly reflect the cost to such Lenders (as
certified by such Lenders) of making or maintaining their Eurodollar Loans
or Multicurrency Revolving Credit Loans, as the case may be, during such
Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Company and the Lenders as soon as practicable thereafter. If such notice is
given (i) any Eurodollar Loans or Multicurrency Revolving Credit Loans, as the
case may be, requested to be made on the first day of such Interest Period shall
be made as Base Rate Loans in Dollars, (ii) any US$ Revolving Credit Loans,
Additional US$ Revolving Credit Loans or Multicurrency Revolving Credit Loans
denominated in Dollars that were to have been converted on the first day of such
Interest Period to or continued as Eurodollar Loans shall be converted to or
continued as Base Rate Loans, (iii) any outstanding Eurodollar Loans shall be
converted on the first day of such Interest Period to Base Rate Loans and (iv)
any Multicurrency Revolving Credit Loans denominated in any Available Foreign
Currency to which such Interest Period relates shall be repaid on the first day
of such Interest Period. Until such notice has been withdrawn by the
Administrative Agent, no further Eurodollar Loans or Multicurrency Revolving
Credit Loans shall be made or continued as such, nor shall the Company have the
right to convert Base Rate Loans to Eurodollar Loans, as the case may be,
provided that Loans may continue to be made, converted or continued, as the case
- - --------
may be, in Dollars or Available Foreign Currencies other than the Affected
Currency.
SECTION V.8 Pro Rata Treatment and Payments. (a) (i) Each borrowing
-------------------------------
of US$ Revolving Credit Loans, the Additional US$ Revolving Credit Loans or the
Multicurrency Revolving Credit Loans shall be made pro rata according to the
--- ----
respective US$ Revolving Credit Percentages, Additional US$ Revolving Credit
Percentages or Multicurrency Revolving Credit
-46-
Percentages, as the case may be, of the relevant Lenders in effect on the date
of such borrowing. Each payment by the Company on account of any facility fee
hereunder shall be allocated by the Administrative Agent among the Lenders in
accordance with the respective amounts which such Lenders are entitled to
receive pursuant to Section 5.05(a). Any reduction of the US$ Revolving Credit
Commitments, Additional US$ Revolving Credit Commitments or Multicurrency
Revolving Credit Commitments shall be allocated by the Administrative Agent
among the Lenders pro rata according to the US$ Revolving Credit Percentages,
--- ----
the Additional US$ Revolving Credit Percentages or the Multicurrency Revolving
Credit Percentages, as the case may be, of the relevant Lenders. Each payment
(including each prepayment) on account of principal of and interest on the US$
Revolving Credit Loans shall be made pro rata according to the respective
--- ----
outstanding principal amounts of the US$ Revolving Credit Loans then held by the
US$ Revolving Credit Lenders. Each payment (including each prepayment) by a
Borrower on account of principal of and interest on Additional US$ Revolving
Credit Loans shall be allocated by the Administrative Agent pro rata according
--- ----
to the respective principal amounts of the Additional US$ Revolving Credit Loans
then due and owing by such Borrower to each Additional US$ Revolving Credit
Lender. Each payment (including each prepayment) by a Borrower on account of
principal of and interest on Multicurrency Revolving Credit Loans shall be
allocated by the Administrative Agent pro rata according to the respective
--- ----
principal amounts of the Multicurrency Revolving Credit Loans then due and owing
by such Borrower to each Multicurrency Revolving Credit Lender.
(ii) Each borrowing by the Company of Term Loans hereunder shall be
made pro rata according to the respective Tranche A Term Loan Percentages or
--- ----
Tranche B Term Loan Percentages, as the case may be, of the relevant Lenders.
Each payment (including each prepayment) by the Company on account of principal
of and interest on the Term Loans shall be made pro rata according to the
--- ----
respective outstanding principal amounts of the Term Loans then held by the Term
Loan Lenders. The amount of each principal prepayment (other than optional
prepayments) of the Tranche A Term Loans and the Tranche B Term Loans shall be
applied to reduce the installments thereof pro rata based upon the then
--- ----
remaining principal amount thereof. Amounts prepaid on account of the Term
Loans may not be reborrowed.
(iii) All payments (including prepayments) to be made by the Company
hereunder in respect of amounts denominated in Dollars, whether on account of
principal, interest, fees or otherwise, shall be made without set-off or
counterclaim and shall be made prior to 12:00 Noon, New York City time, in the
case of US$ Revolving Credit Loans or Additional US$ Revolving Credit Loans, and
11:00 A.M., London time, in the case of Multicurrency Revolving Credit Loans, on
the due date thereof to the Administrative Agent, for the account of the
Lenders, at the Administrative Agent's office specified in Section 13.02, in
Dollars and in immediately available funds. The Administrative Agent shall
distribute such payments to the Lenders entitled to receive the same promptly
upon receipt in like funds as received.
(iv) All payments (including prepayments) to be made by a Borrower on
account of Multicurrency Revolving Credit Loans denominated in any Available
Foreign Currency, whether on account of principal, interest, fees or otherwise,
shall be made without set-off or
-47-
counterclaim and shall be made prior to 12:00 Noon, London time (or, in the case
of payments in euro units, prior to 12:00 Noon, Frankfurt time), on the due date
thereof to the Administrative Agent, for the account of the Multicurrency
Revolving Credit Lenders, at the payment office for the currency of such
Multicurrency Revolving Credit Loans specified from time to time by the
Administrative Agent by notice to the Borrowers, in the currency of such
Multicurrency Revolving Credit Loans and in immediately available funds. The
Administrative Agent shall distribute such payments to the Multicurrency
Revolving Credit Lenders entitled to receive the same promptly upon receipt. In
relation to the payment of any amount of euro, such amount shall be made
available to the Administrative Agent in immediately available, freely
transferable, cleared funds to such account with such bank in Frankfurt am Main,
Germany (or such other principal financial center in such Participating Member
State as the Administrative Agent may from time to time nominate for this
purpose) as the Administrative Agent shall from time to time nominate for this
purpose.
(v) If any payment hereunder (other than payments on the Eurodollar
Loans or the Multicurrency Revolving Credit Loans) becomes due and payable on a
day other than a Business Day, the maturity of such payment shall be extended to
the next succeeding Business Day, and, with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during such
extension. If any payment on a Eurodollar Loan or a Multicurrency Revolving
Credit Loan becomes due and payable on a day other than a Business Day, the
maturity of such payment shall be extended to the next succeeding Business Day
(and, with respect to payments of principal, interest thereon shall be payable
at the then applicable rate during such extension) unless the result of such
extension would be to extend such payment into another calendar month, in which
event such payment shall be made on the immediately preceding Business Day.
(b) A payment shall be deemed to have been made by the Administrative
Agent on the date on which it is required to be made under this Agreement if the
Administrative Agent has, on or before that date, taken all relevant steps to
make that payment. With respect to the payment of any amount denominated in
euro, the Administrative Agent shall not be liable to any Borrower or any of the
Lenders in any way whatsoever for any delay, or the consequences of any delay,
in the crediting to any account of any amount required by this Agreement to be
paid by the Administrative Agent if the Administrative Agent shall have taken
all relevant steps to achieve, on the date required by this Agreement, the
payment of such amount in immediately available, freely transferable, cleared
funds in the euro unit to the account with the bank in the principal financial
center in the Participating Member State which the relevant Borrower or, as the
case may be, any Lender shall have specified for such purpose. In this
paragraph (b), "all relevant steps" means all such steps as may be prescribed
from time to time by the regulations or operating procedures of such clearing or
settlement system as the Administrative Agent may from time to time determine
for the purpose of clearing or settling payments of euro.
(c) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a Borrowing Date that such Lender will not make
the amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative
-48-
Agent may assume that such Lender is making such amount available to the
Administrative Agent, and the Administrative Agent may, in reliance upon such
assumption, make available to the applicable Borrower a corresponding amount. If
such amount is not made available to the Administrative Agent by the required
time on the Borrowing Date therefor, such Lender shall pay to the Administrative
Agent, on demand, such amount with interest thereon at a rate per annum equal to
(i) the daily average Federal Funds Effective Rate (in the case of a borrowing
of US$ Revolving Credit Loans, Additional US$ Revolving Credit Loans or Term
Loans) and (ii) the Administrative Agent's reasonable estimate of its average
daily cost of funds (in the case of a borrowing of Multicurrency Revolving
Credit Loans), in each case for the period until such Lender makes such amount
immediately available to the Administrative Agent. A certificate of the
Administrative Agent submitted to any Lender with respect to any amounts owing
under this Section shall be conclusive in the absence of manifest error. If such
Lender's share of such borrowing is not made available to the Administrative
Agent by such Lender within three Business Days of such Borrowing Date, the
applicable Borrower shall repay such Lender's share of such borrowing (together
with interest thereon from the date such amount was made available to such
Borrower (i) at the rate per annum applicable to Base Rate Loans hereunder (in
the case of a borrowing of US$ Revolving Credit Loans or Additional US$
Revolving Credit Loans or Term Loans) or (ii) the Administrative Agent's
reasonable estimate of its average daily cost of funds plus the Applicable
----
Margin applicable to Multicurrency Revolving Credit Loans (in the case of a
borrowing of Multicurrency Revolving Credit Loans)) to the Administrative Agent
not later than three Business Days after receipt of written notice from the
Administrative Agent specifying such Lender's share of such borrowing that was
not made available to the Administrative Agent.
(d) Any amount payable by the Administrative Agent to the Lenders
under this Agreement in the currency of a Participating Member State shall be
paid in the euro unit.
(e) If, in relation to the currency of any Subsequent Participant,
the basis of accrual of interest or fees expressed in this Agreement with
respect to such currency shall be inconsistent with any convention or practice
in the London Interbank Market or, as the case may be, the Paris Interbank
Market for the basis of accrual of interest or fees in respect of the euro, such
convention or practice shall replace such expressed basis effective as of and
from the date on which such Subsequent Participant becomes a Participating
Member State; provided, that if any Loan in the currency of such Subsequent
--------
Participant is outstanding immediately prior to such date, such replacement
shall take effect, with respect to such Loan, at the end of the then current
Interest Period.
(f) Rounding and Other Consequential Changes. Without prejudice and
----------------------------------------
in addition to any method of conversion or rounding prescribed by any EMU
legislation and (i) without prejudice to the respective liabilities for
indebtedness of the Borrowers to the Lenders and the Lenders to the Borrowers
under or pursuant to this Agreement and (ii) without increasing the Available
Multicurrency Revolving Credit Commitment of any Lender:
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(i) the Multicurrency Revolving Credit Facility and each
reference in this Agreement to a minimum amount (or an integral
multiple thereof) in a national currency denomination of a Subsequent
Participant to be paid to or by the Administrative Agent shall,
immediately upon such Subsequent Participant becoming a Participating
Member State, be replaced by a reference to such reasonably comparable
and convenient amount (or an integral multiple thereof) in the euro
unit as the Administrative Agent may from time to time specify; and
(ii) except as expressly provided in this Section 5.08, each
provision of this Agreement shall be subject to such reasonable
changes of construction as the Administrative Agent may from time to
time specify to be necessary or appropriate to reflect the adoption of
the euro in any Participating Member State and any relevant market
conventions or practices relating to the euro.
SECTION V.9 Illegality. Notwithstanding any other provision herein,
----------
if the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof shall make it unlawful for any Lender to
make or maintain Eurodollar Loans or Multicurrency Revolving Credit Loans, as
the case may be, as contemplated by this Agreement, (a) such Lender shall
immediately notify the Company and the Administrative Agent, (b) the commitment
of such Lender hereunder to make Eurodollar Loans or Multicurrency Revolving
Credit Loans, as the case may be, continue Eurodollar Loans or Multicurrency
Revolving Credit Loans, as the case may be, as such and convert Base Rate Loans
to Eurodollar Loans shall forthwith be suspended until such time as it shall no
longer be unlawful for such Lender to make or maintain the affected Loans, (c)
as applicable, such Lender's Loans then outstanding as Eurodollar Loans, if any,
shall be converted automatically to Base Rate Loans on the respective last days
of the then current Interest Periods with respect to such Eurodollar Loans or
within such earlier period as may be required by law and (d) as applicable, such
Lender's Multicurrency Revolving Credit Loans shall be prepaid on the last day
of the then current Interest Period with respect thereto. If any such
conversion of a Eurodollar Loan or a Multicurrency Revolving Credit Loan, as the
case may be, occurs on a day which is not the last day of the then current
Interest Period with respect thereto, the Company shall pay to such Lender such
amounts, if any, as may be required pursuant to Section 5.12.
SECTION V.10 Requirements of Law. (a) If the adoption of or any
-------------------
change in any Requirement of Law or in the interpretation or application thereof
or compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority, made
subsequent to the date hereof:
(i) shall subject such Lender to any tax of any kind whatsoever
with respect to this Agreement, any Note, any Eurodollar Loan made by it or
any Multicurrency Revolving Credit Loan made by it or its obligation to
make any Eurodollar Loan or Multicurrency Revolving Credit Loan or change
the basis of taxation of payments to such Lender in respect thereof (except
for taxes covered by Section 5.11 and changes in rate of tax on the overall
net income of such Lender);
-50-
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets held
by, deposits or other liabilities in or for the account of, advances, loans
or other extensions of credit by, or any other acquisition of funds by, any
office of such Lender which is not otherwise included in the determination
of the Eurodollar Rate or the Eurocurrency Rate hereunder, including,
without limitation, the imposition of any reserves with respect to
Eurocurrency Liabilities under Regulation D of the Board; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or Multicurrency Revolving Credit
Loans or to reduce any amount receivable hereunder in respect thereof, then, in
any such case, the applicable Borrower shall promptly pay such Lender, upon its
demand, any additional amount or amounts as will compensate such Lender for such
increased cost or reduced amount receivable. If any Lender becomes entitled to
claim any additional amounts pursuant to this Section, it shall promptly notify
the Company (with a copy to the Administrative Agent) of the event by reason of
which it becomes so entitled. A certificate as to any additional amounts
payable pursuant to this Section submitted by such Lender to the Company (with a
copy to the Administrative Agent) shall be conclusive in the absence of manifest
error. This covenant shall survive the termination of this Agreement and the
payment of the Loans and all other amounts payable hereunder.
(b) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder to a level below that which such Lender
or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) by an amount deemed by such Lender to
be material, then from time to time, after submission by such Lender to the
Company (with a copy to the Administrative Agent) of a prompt written request
therefor, the Company shall promptly pay to such Lender such additional amount
or amounts as will compensate such Lender for such reduction.
(c) No Lender shall be entitled to compensation under this Section
5.10 for any costs incurred or reductions suffered with respect to any date that
it has such costs unless it shall have notified the Company that it will demand
compensation for such costs or reductions under paragraph (a) or (b) above, not
more than 120 days after the later of (i) such date and (ii) the date on which
it shall have become aware of such costs or reductions; provided that the
foregoing shall in no way operate in derogation of the undertaking contained in
the penultimate sentence of
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this paragraph (c). Notwithstanding any other provision of this Section 5.10, no
Lender shall demand compensation for any increased cost or reduction referred to
above if it shall not at the time be the general policy or practice of such
Lender to demand such compensation in similar circumstances under comparable
provisions of other credit agreements. In the event that any Lender determines
that any event or circumstances that will lead to a claim under this Section
5.10 has occurred or will occur, such Lender will use its best efforts to so
notify the Company; provided, that any failure to provide such notice shall in
--------
no way impair the rights of any Lender to demand and receive compensation under
this Section 5.10, but without prejudice to any claims of the Company for
compensation for actual damages sustained as a result of any failure to observe
this undertaking. The agreements of this Section shall survive the termination
of this Agreement and the payment of the Loans and all other amounts payable
hereunder.
SECTION V.11 Taxes. (a) All payments of principal and interest made
-----
by the Borrowers under this Agreement and any Note shall be made free and clear
of, and without deduction or withholding for or on account of, any present or
future income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority, excluding income taxes and
franchise taxes (imposed in lieu of income taxes) imposed on the Administrative
Agent or any Lender as a result of a present or former connection between the
Administrative Agent or such Lender and the jurisdiction of the Governmental
Authority imposing such tax or any political subdivision or taxing authority
thereof or therein (other than any such connection arising solely from the
Administrative Agent or such Lender having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement, any Note
or any other Loan Document). If any such non-excluded taxes, levies, imposts,
duties, charges, fees, deductions or withholdings ("Non-Excluded Taxes") are
required to be withheld from any amounts payable to the Administrative Agent or
any Lender hereunder or under any Note, the amounts so payable to the
Administrative Agent or such Lender shall be increased to the extent necessary
to yield to the Administrative Agent or such Lender (after payment of all Non-
Excluded Taxes) interest or any such other amounts payable hereunder at the
rates and in the amounts specified in this Agreement, provided, however, that
-------- -------
(i) the Company shall not be required to increase any such amounts payable to
any Lender that is not organized under the laws of the United States of America
or a state thereof if such Lender fails to comply with the requirements of
paragraph (b) of this Section, and (ii) a Foreign Subsidiary Borrower shall not
be required to increase any such amounts payable to any Lender if such Lender
fails to comply with the requirements of paragraph (c) of this Section.
Whenever any Non-Excluded Taxes are payable by a Borrower, as promptly as
possible thereafter such Borrower shall send to the Administrative Agent for its
own account or for the account of such Lender, as the case may be, a certified
copy of an original official receipt received by such Borrower showing payment
thereof. If a Borrower fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent the
required receipts or other required documentary evidence, such Borrower shall
indemnify the Administrative Agent and the Lenders for any incremental taxes,
interest or penalties that may become payable by the Administrative Agent or any
Lender as a result of any such failure. The agreements in this Section shall
survive
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the termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.
(b) Each Lender that is not incorporated or organized under the laws
of the United States of America or a state thereof shall:
(i) in the case of a Lender other than a Lender described in Section
5.11(b)(ii);
(A) at least five Business Days before the date of the initial
payment to be made by the Company under this Agreement to such Lender,
deliver to the Company and the Administrative Agent two duly completed
copies of United States Internal Revenue Service Form 1001 or 4224, or
successor applicable form, as the case may be, certifying that it is
entitled to receive payments under this Agreement without deduction or
withholding of any United States federal income taxes; and
(B) deliver to the Company and the Administrative Agent two
further copies of any such form or certification at least five
Business Days before the date that any such form or certification
expires or becomes obsolete and after the occurrence of any event
requiring a change in the most recent form previously delivered by it
to the Administrative Agent and the Company; and
(C) obtain such extensions of time for filing and complete such
forms or certifications as may reasonably be requested by the Company
or the Administrative Agent; and
(D) file amendments to such forms as and when required; and
(ii) in the case of a Lender that is not a "bank" under Section
881(c)(3)(A) of the Code and that is legally unable to comply with the
requirements of Section 5.11(b)(i);
(A) at least five Business Days before the date of the initial
payment to be made by the Company under this Agreement to such Lender,
deliver to the Company and the Administrative Agent (I) a statement
that such Lender (x) is not a "bank" under Section 881(c)(3)(A) of the
Code, is not subject to regulatory or other legal requirements as a
bank in any jurisdiction, and has not been treated as a bank for
purposes of any tax, securities law or other filing or submission made
to any Governmental Authority, any application made to a rating agency
or qualification for any exemption from tax, securities law or other
legal requirements, (y) is not a 10-percent shareholder within the
meaning of Section 881(c)(3)(B) of the Code and (z) is not a
controlled foreign corporation receiving interest from a related
person within the meaning of Section 881(c)(3)(C) of the Code and (II)
a properly completed and duly executed Internal Revenue Service Form
W-8 or applicable successor form; and
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(B) deliver to the Company and the Administrative Agent two
further properly completed and duly executed copies of said Form W-8,
or any successor applicable form at least five Business Days on or
before the date that any such Form W-8 expires or becomes obsolete or
after the occurrence of any event requiring a change in the most
recent form previously delivered by it to the Company or upon the
request of the Company or the Administrative Agent; and
(C) obtain such extensions of time for filing and completing
such forms or certifications as may be reasonably requested by the
Company and the Administrative Agent; and
(D) file amendments to such forms as and when required;
unless an event (including, without limitation, any change in treaty, law or
regulation) has occurred after the date such Person becomes a Lender hereunder
which renders all such forms inapplicable or which would prevent such Lender
from duly completing and delivering any such form with respect to it and such
Lender so advises the Company and the Administrative Agent; provided, however,
--------
that the Company may rely upon such forms provided to the Company for all
periods prior to the occurrence of such event. Each Person that shall become a
Lender or a Participant pursuant to Section 13.06 shall, upon the effectiveness
of the related transfer, be required to provide all of the forms, certifications
and statements required pursuant to this Section, provided that in the case of
--------
such Participant, the obligations of such Participant pursuant to this Section
5.11(b) shall be determined as if such Participant were a Lender, except that
such Participant shall furnish all such required forms, certifications and
statements to the Lender from which the related participation shall have been
purchased.
(c) Each Lender that is not incorporated or organized under the laws
of the jurisdiction under which a Foreign Subsidiary Borrower is incorporated or
organized shall, upon request by such Foreign Subsidiary Borrower, within a
reasonable period of time after such request, deliver to such Foreign Subsidiary
Borrower or the applicable governmental or taxing authority, as the case may be,
any form or certificate required in order that any payment by such Foreign
Subsidiary Borrower under this Agreement or any Notes to such Lender may be made
free and clear of, and without deduction or withholding for or on account of any
Non-Excluded Tax (or to allow any such deduction or withholding to be at a
reduced rate) imposed on such payment under the laws of the jurisdiction under
which such Foreign Subsidiary Borrower is incorporated or organized, provided
--------
that such Lender is legally entitled to complete, execute and deliver such form
or certificate and such completion, execution or submission would not materially
prejudice the legal position of such Lender.
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(d) No Lender shall be entitled to payment under this Section 5.11
unless it shall have notified the applicable Borrower that it will demand such
payment not more than 120 days after the date on which it shall become aware
that it was entitled to such payment, provided that such notice requirement
--------
shall in no way operate in derogation of the undertaking contained in the second
following sentence of this Section 5.11(d). Notwithstanding any other provision
of this Section 5.11, no Lender shall demand any payment under this Section 5.11
if it shall not at the time be the general policy or practice of such Lender to
demand such compensation in similar circumstances under comparable provisions of
other credit agreements. In the event that any Lender determines that any event
or circumstance that will lead to a claim by it under this Section 5.11 has
occurred or will occur, such Lender will use its best efforts to so notify the
Company provided that any failure to provide such notice shall in no way impair
--------
the rights of any Lender to demand and receive compensation under this Section
5.11, but without prejudice to any claims of the Company for failure to observe
this undertaking.
SECTION V.12 Indemnity. Each Borrower agrees to indemnify each
---------
Lender and to hold each Lender harmless from any loss or expense which such
Lender may sustain or incur as a consequence of (a) default by such Borrower in
payment when due of the principal amount of or interest on any Eurodollar Loan
or Multicurrency Revolving Credit Loan, (b) default by such Borrower in making a
borrowing of, conversion into or continuation of Eurodollar Loans or
Multicurrency Revolving Credit Loans after such Borrower has given a notice
requesting the same in accordance with the provisions of this Agreement, (c)
default by such Borrower in making any prepayment after such Borrower has given
a notice thereof in accordance with the provisions of this Agreement or (d) the
making by such Borrower of a prepayment of Eurodollar Loans or Multicurrency
Revolving Credit Loans on a day which is not the last day of an Interest Period
with respect thereto, including, without limitation, in each case, any such loss
or expense arising from the reemployment of funds obtained by it or from fees
payable to terminate the deposits from which such funds were obtained. Such
indemnification may include an amount equal to the excess, if any, of (i) the
amount of interest which would have accrued on the amount so prepaid, or not so
borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided
for herein (excluding, however, the Applicable Margin included therein, if any)
over (ii) the amount of interest (as reasonably determined by such Lender) which
would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank eurodollar
market. All payments required to be made by any Borrower to any Lender under
this Section 5.12 shall be made no later than 30 days after receipt by such
Borrower of a written notice from such Lender setting forth in reasonable detail
the basis upon which such Lender is entitled to receive such payments. This
covenant shall survive the termination of this Agreement and the payment of the
Loans and all other amounts payable hereunder.
SECTION V.13 Use of Proceeds. The proceeds of the Revolving Credit
---------------
Loans and Multicurrency Revolving Credit Loans shall be used (a) to refinance
the Existing Credit
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Agreements, (b) to pay fees and expenses incurred by the Borrowers in connection
therewith and (c) for working capital and other general corporate purposes of
the Borrowers and their Subsidiaries, including investments and acquisitions.
The proceeds of the Term Loans shall be used (a) to refinance the Existing
Credit Agreements and (b) to pay fees and expenses incurred in connection
therewith.
SECTION V.14 Change of Lending Office; Replacement of Lenders. (a)
------------------------------------------------
Each Lender agrees that if it makes any demand for payment under Section 5.10 or
5.11, or if any adoption or change of the type described in Section 5.09 shall
occur with respect to it, it shall use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions and so long as such
efforts would not be disadvantageous to it, as determined in its sole
discretion) to designate a different lending office if the making of such a
designation would reduce or obviate the need for the Borrowers to make payments
under Section 5.10 or 5.11, or would eliminate or reduce the effect of any
adoption or change described in Section 5.09.
(b) If at any time any Lender makes any demand for payment under
Section 5.10 or 5.11 as a result of any condition described in any such Section,
then the Borrowers may, if such condition continues to exist after such Lender
shall have used or failed to use reasonable efforts pursuant to paragraph (a) of
this Section 5.14 and on 10 Business Days' prior written notice to the
Administrative Agent and such Lender, replace such Lender by causing such Lender
to (and such Lender shall) assign pursuant to Section 13.06(c) all of its rights
and obligations under this Agreement to another Lender or other bank or
financial institution selected by the Company and acceptable to the
Administrative Agent for a purchase price equal to the outstanding principal
amount of all Loans, accrued interest, fees and other amounts owing to such
Lender; provided that (i) the Borrowers shall have no right to replace the
--------
Administrative Agent, (ii) neither the Administrative Agent nor any Lender shall
have any obligation to the Borrowers to find a replacement Lender or other bank
or financial institution, (iii) such replacement must take place no later than
180 days after such Lender shall have made any such demand for payment, (iv) in
no event shall any Lender hereby replaced be required to pay or surrender to
such replacement Lender or other bank or financial institution any of the fees
received by such Lender pursuant to this Agreement, (v) the Borrowers shall pay
such amounts demanded under Section 5.10 or 5.11 to such Lender, together with
any amounts as may be required pursuant to Section 5.12, prior to such Lender
being replaced and the payment of such amounts shall be a condition to the
replacement of such Lender and (vi) such Lender shall not be required to pay any
fees required by Section 13.06(e) in connection with such replacement, which
fees shall be paid by the Company.
ARTICLE VI. REPRESENTATIONS AND WARRANTIES
------------------------------
Each of the Company and the Foreign Subsidiary Borrowers (insofar as
the representations and warranties set forth below relate respectively to such
Foreign Subsidiary Borrower) represents and warrants to the Administrative Agent
and each Lender that:
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SECTION VI.1 Financial Condition. The consolidated balance sheets of
-------------------
the Company and its consolidated Subsidiaries as at December 31, 1996 and
December 31, 1997, respectively, and the related consolidated statements of
earnings, cash flows and shareholders' equity for the fiscal years ended on such
dates, reported on by Ernst & Young LLP, copies of which have heretofore been
furnished to each Lender, are complete and correct in all material respects and
present fairly the consolidated financial condition of the Company and its
consolidated Subsidiaries as at such dates, and the consolidated results of
their operations and their consolidated cash flows for the fiscal years then
ended. The unaudited consolidated balance sheet of the Company and its
consolidated Subsidiaries as at September 30, 1998 and the related unaudited
consolidated statements of earnings and of cash flows for the nine-month period
ended on such date, certified by a Responsible Officer, copies of which have
heretofore been furnished to each Lender, are complete and correct and present
fairly the consolidated financial condition of the Company and its consolidated
Subsidiaries as at such date, and the consolidated results of their operations
and their consolidated cash flows for the nine-month period then ended (subject
to normal year-end audit adjustments). All such financial statements, including
the related schedules and notes thereto, have been prepared in accordance with
GAAP applied consistently throughout the periods involved (except as approved by
such accountants or Responsible Officer, as the case may be, and as disclosed
therein). Neither the Company nor any of its consolidated Subsidiaries (taken
as a whole) had, at the date of the most recent balance sheet referred to above,
any material Guaranty, contingent liability or liability for taxes, or any long-
term lease or unusual forward or long-term commitment, including, without
limitation, any interest rate or foreign currency swap or exchange transaction,
which is not reflected in the foregoing statements or in the notes thereto.
Except as disclosed in filings with the Securities and Exchange Commission made
by the Company on or prior to February 24, 1999, during the period from December
31, 1997 to and including the date hereof there has been no sale, transfer or
other disposition by the Company or any of its consolidated Subsidiaries of any
material part of its business or property and no purchase or other acquisition
of any business or property (including any capital stock of any other Person)
material in relation to the consolidated financial condition of the Company and
its consolidated Subsidiaries at December 31, 1997, other than any such sale,
transfer or other disposition or purchase or acquisition that would have been
permitted by this Agreement if this Agreement had been in effect at all times
during such period.
SECTION VI.2 No Change. Since December 31, 1997, there has been no
---------
development or event which has had or could reasonably be expected to have a
Material Adverse Effect.
SECTION VI.3 Corporate Existence; Compliance with Law. Each of the
----------------------------------------
Company and its Subsidiaries (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization except to the
extent that, with respect to those Subsidiaries that are not Borrowers
hereunder, the lack of such organization, existence or good standing could not,
in the aggregate, reasonably be expected to have a Material Adverse Effect, (b)
has the corporate or other power and authority, and the legal right, to own and
operate its property, to lease the property it operates as lessee and to conduct
the business in which it is currently engaged except to the extent that, with
respect to those Subsidiaries that are not
-57-
Borrowers hereunder, the lack of such power, authority or legal right could not,
in the aggregate, reasonably be expected to have a Material Adverse Effect, (c)
is duly qualified as a foreign corporation or other entity and in good standing
under the laws of each jurisdiction where its ownership, lease or operation of
property or the conduct of its business requires such qualification except to
the extent that the failure to qualify or be in good standing could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect and (d) is
in compliance with all Requirements of Law except to the extent that the failure
to comply therewith could not, in the aggregate, reasonably be expected to have
a Material Adverse Effect.
SECTION VI.4 Corporate Power; Authorization; Enforceable Obligations.
-------------------------------------------------------
Each Loan Party has the corporate or other power and authority, and the legal
right, to execute, deliver and perform the Loan Documents to which it is a party
and, in the case of each Borrower, to borrow hereunder and has taken all
necessary corporate or other action to authorize the borrowings on the terms and
conditions of this Agreement and the Notes to which it is a party and to
authorize the execution, delivery and performance of the Loan Documents to which
it is a party. No consent or authorization of, filing with, notice to or other
act by or in respect of, any Governmental Authority or any other Person is
required with respect to the Company or any of its Subsidiaries in connection
with the borrowings hereunder of the consummation of the Refinancing or, with
the execution, delivery, performance, validity or enforceability of the Loan
Documents to which it is a party, except for consents, filings, authorizations
or approvals which have been obtained and are in full force and effect, and
except for approvals the failure to obtain which could not reasonably be
expected to have a Material Adverse Effect. This Agreement has been, and each
other Loan Document has been or when executed pursuant hereto will be, duly
executed and delivered on behalf of each of the applicable Loan Parties. This
Agreement and each other Loan Document to which a Loan Party is a party
constitutes a legal, valid and binding obligation of such Person enforceable
against such Person in accordance with its terms, except as enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles (whether enforcement is sought by proceedings in
equity or at law) and by an implied covenant of good faith and fair dealing.
SECTION VI.5 No Legal Bar. The execution, delivery and performance
------------
of the Loan Documents, the borrowings hereunder, the use of the proceeds thereof
and the consummation of the Refinancing will not violate any Requirement of Law
or Contractual Obligation of the Company or of any of its Subsidiaries, other
than any such violation which could not reasonably be expected to have a
Material Adverse Effect, and will not result in, or require, the creation or
imposition of any Lien on any of its or their respective properties or revenues
pursuant to any such Requirement of Law or Contractual Obligation, except Liens
created pursuant to the Loan Documents and any Lien which could not reasonably
be expected to have a Material Adverse Effect.
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SECTION VI.6 No Material Litigation. No litigation, investigation or
----------------------
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Company, threatened by or against the Company or any of
its Subsidiaries or against any of its or their respective properties or
revenues (a) with respect to any of the Loan Documents, the Refinancing or any
of the transactions contemplated hereby, or (b) which could reasonably be
expected to have a Material Adverse Effect.
SECTION VI.7 No Default. Neither the Company nor any of its
----------
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect which could reasonably be expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
SECTION VI.8 Ownership of Property; Liens. Each of the Company and
----------------------------
its Significant Subsidiaries has good record and marketable title in fee simple
to, or a valid leasehold interest in, all its material real property, and good
title to, or a valid leasehold interest in, all its other material property, and
none of such property is subject to any Lien except as permitted by Section
9.04.
SECTION VI.9 Intellectual Property. Each of the Company and its
---------------------
Significant Subsidiaries owns, or is licensed to use, all trademarks,
tradenames, copyrights, technology, know-how and processes necessary for the
conduct of its business as currently conducted except for those the failure to
own or license which could not reasonably be expected to have a Material Adverse
Effect (the "Intellectual Property"). No claim has been asserted and is pending
by any Person challenging or questioning the use of any such Intellectual
Property or the validity or effectiveness of any such Intellectual Property, nor
does the Company know of any valid basis for any such claim which, in the
aggregate, could reasonably be expected to have a Material Adverse Effect. The
use of such Intellectual Property by the Company and its Subsidiaries does not
infringe on the rights of any Person, except for such claims and infringements
that, in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.
SECTION VI.10 No Burdensome Restrictions. No Requirement of Law or
--------------------------
Contractual Obligation of the Company or any of its Subsidiaries could
reasonably be expected to have a Material Adverse Effect.
SECTION VI.11 Taxes. Each of the Company and its Subsidiaries has
-----
filed or caused to be filed all U.S. tax returns and all other material tax
returns which, to the knowledge of the Borrowers, are required to be filed and
has paid all taxes shown to be due and payable on said returns or on any
assessments made against it or any of its property and all other taxes, fees or
other charges imposed on it or any of its property by any Governmental Authority
(other than any (i) with respect to which the failure to pay, in the aggregate,
would not reasonably be expected to have a Material Adverse Effect or (ii) the
amount or validity of which is currently being contested in good faith by
appropriate proceedings and with respect to which reserves in conformity with
GAAP have been provided on the books of the Company or its Subsidiaries, as
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the case may be); no tax Lien has been filed, and, to the knowledge of the
Company, no claim is being asserted, with respect to any such tax, fee or other
charge.
SECTION VI.12 Federal Regulations. No part of the proceeds of any
-------------------
Loans will be used for "purchasing" or "carrying" any "margin stock" within the
respective meanings of each of the quoted terms under Regulation U of the Board
of Governors of the United States Federal Reserve System as now and from time to
time hereafter in effect that would cause the Loans to be in violation of the
provisions of the Regulations of such Board of Governors (including but not
limited to the provisions of Regulation U and Regulation X) or any similar rule
of any other Governmental Authority. If any Borrower is requested by any Lender
or the Administrative Agent, such Borrower will furnish to the Administrative
Agent and each Lender a statement to the foregoing effect in conformity with the
requirements of Form FR U-1 or FR G-3 referred to in said Regulation U.
SECTION VI.13 ERISA. Neither a Reportable Event nor an Accumulated
-----
Funding Deficiency has occurred during the five-year period prior to the date on
which this representation is made or deemed made with respect to any Plan, and
each Plan has complied in all material respects with the applicable provisions
of ERISA and the Code. No termination of a Single Employer Plan has occurred,
and no Lien in favor of PBGC or a Plan has arisen, during such five-year period.
The present value of all accrued benefits under each Single Employer Plan (based
on those assumptions used to fund such Plans) did not, as of the last annual
valuation date prior to the date on which this representation is made or deemed
made, exceed the value of the assets of such Plan allocable to such accrued
benefits by an amount which could reasonably be expected to have a Material
Adverse Effect, either individually or in the aggregate with all other Single
Employer Plans under which such accrued benefits exceed such assets. Neither
the Company nor any Commonly Controlled Entity has had a complete or partial
withdrawal from any Multiemployer Plan during the five-year period prior to the
date on which this representation is made or deemed made which could, in the
aggregate with other such withdrawals during such period, reasonably be expected
to have a Material Adverse Effect, and neither the Company nor any Commonly
Controlled Entity would become subject to any liability under ERISA if the
Company or any such Commonly Controlled Entity were to withdraw completely from
all Multiemployer Plans as of the valuation date most closely preceding the date
on which this representation is made or deemed made. No such Multiemployer Plan
is in Reorganization or is Insolvent.
SECTION VI.14 Investment Company Act; Other Regulations. No Borrower
-----------------------------------------
is an "investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as amended.
No Borrower is subject to any law or regulation which limits its ability to
incur the Indebtedness to be incurred by it under the Loan Documents.
SECTION VI.15 Subsidiaries. As of the date hereof, the Company has
------------
no Subsidiaries except those Subsidiaries identified on Schedule II to this
Agreement. Schedule II also specifies which Subsidiaries are Insignificant
Subsidiaries on the date of this Agreement.
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Schedule VI lists, under the heading "Foreign Subsidiaries of which 65% of the
Capital Stock is to be Pledged", all Excluded Foreign Subsidiaries on the
Closing Date other than Excluded Foreign Subsidiaries of the type described in
clauses (i) and (iv) of the definition of Excluded Foreign Subsidiary in Section
1.01. Schedule VI lists, under the heading "Foreign Subsidiaries of which 100%
of the Capital Stock is to be Pledged", all Foreign Subsidiaries on the Closing
Date other than Excluded Foreign Subsidiaries.
SECTION VI.16 Environmental Matters. (a) The facilities and
---------------------
properties owned, leased or operated by the Company and/or any of its
Subsidiaries (the "Properties") do not contain, and have not previously
contained, any Materials of Environmental Concern in amounts or concentrations
which (i) constitute or constituted a violation of, or (ii) could reasonably be
expected to give rise to liability under, any Environmental Law except in either
case insofar as such violation or liability, or any aggregation thereof, is not
reasonably likely to result in a Material Adverse Effect.
(b) The Properties and all operations at the Properties are in
compliance, and have in the last five years been in compliance, in all material
respects with all applicable Environmental Laws, and there is no contamination
at, under or about the Properties or violation of any Environmental Law with
respect to the Properties or the business operated by the Company or any of its
Subsidiaries (the "Business") which could materially interfere with the
continued operation of the Properties or materially impair the aggregate fair
saleable value of the Properties.
(c) Neither the Company nor any of its Subsidiaries has received any
notice of violation, alleged violation, non-compliance, liability or potential
liability regarding environmental matters or compliance with Environmental Laws
with regard to any of the Properties or the Business, nor does the Company or
any of its Subsidiaries have knowledge or reason to believe that any such notice
will be received or is being threatened except insofar as such notice or
threatened notice, or any aggregation thereof, does not involve a matter or
matters that is or are reasonably likely to result in a Material Adverse Effect.
(d) Materials of Environmental Concern have not been transported or
disposed of from the Properties in violation of, or in a manner or to a location
which could reasonably be expected to give rise to liability under, any
Environmental Law, nor have any Materials of Environmental Concern been
generated, treated, stored or disposed of at, on or under any of the Properties
in violation of, or in a manner that could reasonably be expected to give rise
to liability on the part of the Company or any Subsidiary under, any applicable
Environmental Law except insofar as any such violation or liability referred to
in this paragraph, or any aggregation thereof, is not reasonably likely to
result in a Material Adverse Effect.
(e) No judicial proceeding or governmental or administrative action
is pending or, to the knowledge of the Company, threatened, under any
Environmental Law to which the Company or any Subsidiary is or will be named as
a party with respect to the Properties or the Business, nor are there any
consent decrees or other decrees, consent orders, administrative
-61-
orders or other orders, or other administrative or judicial requirements
outstanding under any Environmental Law with respect to the Properties or the
Business except insofar as such proceeding, action, decree, order or other
requirement, or any aggregation thereof, is not reasonably likely to result in a
Material Adverse Effect.
(f) There has been no release or threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or related to
the operations of the Company or any Subsidiary in connection with the
Properties or otherwise in connection with the Business, in violation of or in
amounts or in a manner that could reasonably give rise to liability under
Environmental Laws except insofar as any such violation or liability referred to
in this paragraph, or any aggregation thereof, is not reasonably likely to
result in a Material Adverse Effect.
SECTION VI.17 Accuracy and Completeness of Information. All written
----------------------------------------
information heretofore furnished by each Loan Party to the Lenders for purposes
of or in connection with this Agreement, taken as a whole, does not, and all
such information hereafter furnished by such Loan Party to any Lender for
purposes of this Agreement will not, contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
made or to be made, in the light of the circumstances under which they were or
will be made, not misleading. Prior to the date hereof, the Company has
disclosed to the Lenders in writing any and all facts which materially and
adversely affect (to the extent the Company can as of the date hereof reasonably
foresee), the business, operations or financial condition of the Company and its
Subsidiaries, taken as a whole, or the ability of any Loan Party to perform its
obligations under the Loan Documents. It is understood that no representation
or warranty is made concerning the forecasts, estimates, pro forma information,
projections and statements as to anticipated future performance or conditions,
and the assumptions on which they were based, contained in any such information,
reports, financial statements, exhibits or schedules, except that as of the date
such forecasts, estimates, pro forma information, projections and statements
were generated, (a) such forecasts, estimates, pro forma information,
projections and statements were based on the good faith assumptions of the
management of the Company and (b) such assumptions were believed by such
management to be reasonable.
SECTION VI.18 Other Unsubordinated Indebtedness. The obligations of
---------------------------------
each of the Borrowers under this Agreement and the Notes and the other Loan
Documents rank at least pari passu in right of payment with all other
unsubordinated Indebtedness of such Borrowers.
SECTION VI.19 Foreign Subsidiary Borrowers. (a) Each Foreign
----------------------------
Subsidiary Borrower will be a direct or indirect, Wholly Owned Subsidiary of the
Company (or, with the consent of the Majority Multicurrency Revolving Credit
Facility Lenders, which consent shall not be unreasonably withheld, a direct or
indirect, majority-owned Subsidiary of the Company).
(b) Each Foreign Subsidiary Borrower will have, upon becoming a party
hereto, full right and authority to enter into this Agreement and each other
Loan Document to which it is a party, and to perform all of its obligations
under this and each other Loan Document to which it is a party; all of the
foregoing actions will have been, prior to any request for Loans by such
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Borrower, duly authorized by all necessary action on the part of such Borrower;
and when such Foreign Subsidiary Borrower becomes a party hereto, this Agreement
and each other Loan Document to which it is a party will constitute valid and
binding obligations of such Borrower enforceable in accordance with their
respective terms except as such terms may be limited by the application of
bankruptcy, moratorium, insolvency and similar laws affecting the rights of
creditors generally and by equitable principles affecting the availability of
specific performance and other remedies.
SECTION VI.20 Security Documents. Each Security Document, when
------------------
executed and delivered by the Loan Party which is a party thereto, will be
effective to create in favor of the Administrative Agent (or the Trustee, as the
case may be), for the benefit of the Lenders (and, as the case may be, the other
creditors which are secured thereby), a legal, valid and enforceable security
interest in the Collateral described therein and proceeds thereof. When the
actions described in Schedule 6.20 in respect of each Security Document have
been taken, the Security Documents shall constitute fully perfected Liens on,
and security interests in, all right, title and interest of the Loan Parties in
such Collateral and the proceeds thereof, as security for the Secured
Obligations, in each case prior and superior in right to any other Person.
SECTION VI.21 Solvency. Each Loan Party is, and after giving effect
--------
to the incurrence of all Indebtedness and obligations being incurred in
connection herewith and therewith will be and will continue to be, Solvent.
SECTION VI.22 Year 2000 Matters. Any reprogramming required to
-----------------
permit the proper functioning, in and following the year 2000, of (i) the
Company's computer systems and (ii) equipment containing embedded microchips
(including systems and equipment supplied by others or with which Company's
systems interface) and the testing of all such systems and equipment, as so
reprogrammed, will be completed within such period of time as is required to
avoid the occurrence of a Material Adverse Effect as a result of the failure to
complete such reprogramming. The cost to the Company of such reprogramming and
testing and of the reasonably foreseeable consequences of year 2000 to the
Company (including, without limitation, reprogramming errors and the failure of
others' systems or equipment) will not result in a Material Adverse Effect.
ARTICLE VII. CONDITIONS PRECEDENT
--------------------
SECTION VII.1 Conditions to Initial Extensions of Credit. The
------------------------------------------
obligation of each Lender to make its initial extension of credit is subject to
the satisfaction of the following conditions precedent on or before the Closing
Date. The Agreement shall become effective on the date of the satisfaction of
the conditions precedent set forth in this Section 7.01:
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(a) Credit Agreement. The Administrative Agent shall have received
----------------
this Agreement, executed and delivered by a duly authorized officer (or a
duly authorized representative) of the Company and each Foreign Subsidiary
Borrower that is a party hereto on the Closing Date.
(b) Corporate Proceedings. The Administrative Agent shall have
---------------------
received a copy of the resolutions, in form and substance satisfactory to
the Administrative Agent, of the Board of Directors of the Company and each
other Borrower that is a party hereto on the Closing Date, authorizing (i)
the execution, delivery and performance by it of this Agreement and the
Loan Documents to which it is a party and (ii) the borrowings by it
contemplated hereunder, certified by the Secretary or an Assistant
Secretary of the Company or such other Borrower, as the case may be, as of
the Closing Date, which certificate shall be in form and substance
satisfactory to the Administrative Agent and shall state that the
resolutions thereby certified have not been amended, modified, revoked or
rescinded.
(c) Incumbency Certificate. The Administrative Agent shall have
----------------------
received a certificate of the Company, dated the Closing Date, as to the
incumbency and signature of the officers or representatives of each
Borrower executing any Loan Document on the Closing Date, satisfactory in
form and substance to the Administrative Agent, executed by any of the
Chief Executive Officer, the President, the Chief Financial Officer, the
Treasurer or the Controller of the Company and the Secretary or any
Assistant Secretary (or a duly authorized representative, if such
representative is also a duly authorized officer of the Company or
otherwise authorized by the Company) of the Company.
(d) Corporate Documents. The Administrative Agent shall have
-------------------
received true and complete copies of the certificate of incorporation and
by-laws of the Company and each other Borrower that is a party hereto on
the Closing Date, certified as of the Closing Date as complete and correct
copies thereof by the Secretary or an Assistant Secretary or a duly
authorized representative of the Company or such other Borrower, as the
case may be.
(e) Approvals. All governmental and third party approvals necessary
---------
in connection with the transactions contemplated hereby shall have been
obtained and be in full force and effect (other than approvals the failure
to obtain which could not reasonably be expected to have a Material Adverse
Effect). The Administrative Agent shall have received a certificate of a
Responsible Officer of the Company to the foregoing effect, to which shall
be attached copies of any such approvals theretofore obtained.
(f) Fees. The Administrative Agent shall have received all fees to
-----
be received by the Administrative Agent or Chase on or prior to the Closing
Date in connection with this Agreement.
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(g) Legal Opinions. The Administrative Agent shall have received the
--------------
executed legal opinions of (i) David M. Sherbin, Esq., Associate General
Counsel of the Company and (ii) Skadden, Arps, Slate, Meagher & Flom LLP,
special counsel to the Company, each given upon the express instructions of
the Company, substantially in the forms of Exhibits H-1 and H-2,
respectively. Subject to Section 8.12, the Administrative Agent shall also
have received such legal opinions from Netherlands, English, Canadian and
German counsel as it shall reasonably request in respect of Security
Documents or Guarantees governed by the laws of such jurisdictions.
(h) Perfection Actions; Other Actions. Subject to Section 8.12, all
---------------------------------
actions required to cause the effectiveness of the Security Documents and
the Trust Agreements and to perfect the security interests created by each
of the Security Documents shall have been completed.
(i) Security Documents and Subsidiary Guarantees; Trust Agreements.
--------------------------------------------------------------
Subject to Section 8.12, the Administrative Agent shall have received (i)
the Domestic Subsidiary Guarantee and the U.K. Acquisition I Guarantee,
executed and delivered by a duly authorized officer of each guarantor party
thereto, (ii) each of the Security Documents, executed and delivered by a
duly authorized officer of each party thereto and (iii) each of the Trust
Agreements, executed and delivered by a duly authorized officer of each
party thereto.
(j) Existing Credit Agreements. All loans, accrued interest, fees
--------------------------
and any other amounts owing to the respective lenders and agents under the
Existing Credit Agreements shall have been paid in full contemporaneous
with the Loans made on the Closing Date, and the commitments to make loans
thereunder shall have been replaced and restated pursuant to this
Agreement.
SECTION VII.2 Conditions to Each Extension of Credit. The agreement
--------------------------------------
of each Lender to make any extension of credit requested to be made by it on any
date (including, without limitation, its extensions of credit on the Closing
Date) is subject to the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
------------------------------
warranties made by any Loan Party in or pursuant to the Loan Documents
shall be true and correct in all material respects on and as of such date
as if made on and as of such date, except if such representation or
warranty relates to an earlier date or refers to Schedules, in which case
such representation and warranty shall be true and correct in all material
respects on such earlier date and after giving effect to any amendments of
such Schedules.
(b) No Default. No Default or Event of Default shall have occurred
----------
and be continuing on such date or after giving effect to the extension of
credit requested to be made on such date.
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(c) Foreign Subsidiary Opinion. If such Loan is the initial Loan to
--------------------------
a Foreign Subsidiary Borrower, the Administrative Agent shall have received
a Foreign Subsidiary Opinion in respect of such Foreign Subsidiary
Borrower.
(d) Corporate Proceedings. If such Loan is the initial Loan to a
---------------------
Foreign Subsidiary Borrower, the Administrative Agent shall have received a
copy of the resolutions, in form and substance satisfactory to the
Administrative Agent, of the Board of Directors of such Borrower,
authorizing (i) the execution, delivery and performance by it of this
Agreement and the Loan Documents to which it is a party and (ii) the
borrowings by it contemplated hereunder, certified by the Secretary or an
Assistant Secretary of such Borrower as of the date on which such Loan is
requested to be made, which certificate shall be in form and substance
satisfactory to the Administrative Agent and shall state that the
resolutions thereby certified have not been amended, modified, revoked or
rescinded.
(e) Incumbency Certificate. If such Loan is the initial Loan to a
----------------------
Foreign Subsidiary Borrower, the Administrative Agent shall have received a
certificate of such Borrower dated the date on which such Loan is requested
to be made, as to the incumbency and signature of the officers or
representatives of such Borrower executing any Loan Document, satisfactory
in form and substance to the Administrative Agent, executed by any
Responsible Officer of such Borrower and the Secretary or any Assistant
Secretary (or a duly authorized representative, if such representative is
also a duly authorized officer of such Borrower or otherwise authorized by
such Borrower).
(f) Corporate Documents. If such Loan is the initial Loan to a
-------------------
Foreign Subsidiary Borrower, the Administrative Agent shall have received
true and complete copies of the organic documents of such Borrower,
certified as of the date on which such Loan is required to be made as
complete and correct copies thereof by the Secretary or an Assistant
Secretary or a duly authorized representative of such Borrower.
(g) Additional Matters. All corporate and other proceedings, and all
------------------
documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement and the other Loan Documents
shall be satisfactory in form and substance to the Administrative Agent,
and the Administrative Agent shall have received such other documents and
legal opinions in respect of any aspect or consequence of the transactions
contemplated hereby or thereby as it shall reasonably request.
Each borrowing of Loans by a Borrower hereunder shall constitute a
representation and warranty by the Company and such Borrower as of the date of
such Loan that the conditions contained in this Section 7.02 have been
satisfied.
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ARTICLE VIII. AFFIRMATIVE COVENANTS
---------------------
From and after the Closing Date, each of the Company and, to the
extent the covenants set forth below relate thereto, each Foreign Subsidiary
Borrower, hereby covenants and agrees that so long as any of the Commitments
remain in effect, any Loan remains outstanding and unpaid or any other amount is
owing to any Lender or the Administrative Agent hereunder, the Company or such
Foreign Subsidiary Borrower, as applicable, will comply with the covenants set
forth below in this Article VIII:
SECTION VIII.1 Financial Statements. The Company will furnish to
--------------------
each Lender:
(a) as soon as available, but in any event within 120 days after the
end of each fiscal year of the Company, a copy of the consolidated balance sheet
of the Company and its Subsidiaries as at the end of such year and the related
consolidated statements of income and cash flows for such year, setting forth in
each case in comparative form the figures for the previous year, certified
without qualification or exception by independent public accountants of
nationally recognized standing selected by the Company, it being understood and
agreed that the delivery of the Company's Annual Report on Form 10-K for such
fiscal year signed by a Responsible Officer will satisfy the requirement set
forth in this clause; and
(b) as soon as available, but in any event within 60 days after the
end of each of the first three quarterly periods of each fiscal year of the
Company, a copy of the unaudited consolidated condensed balance sheet of the
Company and its Subsidiaries as at the end of each such quarter and the related
unaudited consolidated condensed statements of income and cash flows of the
Company and its Subsidiaries for the portion of the fiscal year through such
date, setting forth in each case in comparative form such figures for the
previous year, certified by a Responsible Officer, it being understood and
agreed that the delivery of the Company's Quarterly Report on Form 10-Q for the
relevant fiscal quarter signed by a Responsible Officer will satisfy the
requirement set forth in this clause;
all such financial statements to be complete and correct in all material
respects and prepared in reasonable detail and in accordance with GAAP applied
consistently throughout the periods reflected therein (except for such changes
in accounting principles as may be approved by such Responsible Officer and
concurred in by the Company's independent public accountants and disclosed
therein).
SECTION VIII.2 Certificates; Other Information. The Company will
-------------------------------
furnish to each Lender:
(a) concurrently with each delivery of the financial statements
referred to in Sections 8.01(a) and (b), a certificate of a Responsible Officer
in the form of Exhibit F (i) stating that such officer has no knowledge of any
Default or Event of Default except as specified in such certificate and (ii)
showing in reasonable detail the calculations supporting such statement in
respect of Sections 9.01, 9.02 and 9.03;
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(b) on or prior to February 28 of each year, a copy of the
projections by the Company of the operating budget and cash flow budget of the
Company and its Subsidiaries for the succeeding fiscal year, such projections to
be accompanied by a certificate of a Responsible Officer to the effect that such
projections have been prepared on a reasonable basis and in good faith, it being
understood that no representation or warranty shall be deemed to be made
concerning the projections and budgets and the assumptions on which they were
based, except that as of the date on which such projections and budgets were
generated, (a) they were based on the good faith assumptions of the management
of the Company and (b) such assumptions were believed by such management to be
reasonable (it being understood that the requirements of this paragraph (b) have
been satisfied for fiscal year 1999);
(c) if requested by the Administrative Agent or by any Lender through
the Administrative Agent, promptly after the same is furnished to PBGC, copies
of all information furnished by the Company, any Subsidiary or any Commonly
Controlled Entity to PBGC, except, in each case, information furnished as to
ordinary operational aspects of the business of the Company or any Subsidiary
and not relating to any deviation by the Company or any Subsidiary from rules
and regulations of PBGC; and
(d) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
SECTION VIII.3 Accrual of Liabilities; Payment of Obligations. The
----------------------------------------------
Company will maintain, and cause each of its Subsidiaries to maintain, in
accordance with GAAP, appropriate reserves for the accrual of taxes and all
other obligations, liabilities and claims and pay, discharge or otherwise
satisfy, and cause each of its Subsidiaries to pay, discharge or otherwise
satisfy, at or before their maturity or before they become delinquent, as the
case may be, all obligations except (a) where the same are being contested in
good faith by appropriate proceedings diligently pursued or (b) where the
failure so to pay, discharge or otherwise satisfy obligations would not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
SECTION VIII.4 Maintenance of Corporate Existence; Maintenance of
--------------------------------------------------
Properties. The Company will (a) maintain its corporate existence, rights and
- - ----------
franchises necessary to continue its business and the corporate existence,
rights and franchises necessary to continue the business of each of its
Significant Subsidiaries, provided that the foregoing shall not be a limitation
--------
(i) on the right of the Company to discontinue any operations if in the opinion
of the Company such discontinuance is in the best interest of the Company and
would not materially affect the ability of the Company to pay its debts as they
become due, (ii) on asset sales permitted under Section 9.08 and (iii) on the
right of any Significant Subsidiary of the Company to merge with or be
liquidated into the Company or another Significant Subsidiary of the Company if
a Default does not then exist and would not result therefrom; and (b) maintain,
and cause each Significant Subsidiary to maintain, the properties which are used
or useful in its respective operations in good working order and condition.
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SECTION VIII.5 Insurance. The Company will maintain, and cause each
---------
of its Significant Subsidiaries to maintain, insurance with financially sound
and reputable companies in such form and upon such terms and in such amounts and
against such risks (including liability for bodily injury and property damage)
and subject to such deductibles or retentions as in the reasonable opinion of
the Company is available on commercially reasonable terms and will provide sound
and reasonable protection for the Company's or such Significant Subsidiary's
assets and operations. At the Administrative Agent's request, the Company will
furnish to the Administrative Agent (with copies for each Lender) certificates
of insurance or other evidence that such insurance is being maintained.
SECTION VIII.6 Notices. The Company will (a) promptly give notice in
-------
writing to the Administrative Agent (which shall promptly notify each Lender) of
the occurrence of any Default or Event of Default under this Agreement, or of
the commencement of (i) any material litigation or proceedings affecting the
Company or any Subsidiary or (ii) any dispute between the Company or any
Subsidiary and any Governmental Authority or any other party if such litigation,
proceedings or dispute could reasonably be expected to result in a Material
Adverse Effect; and (b) as soon as possible and in any event within 45 days
after the Company knows or has reason to know that any Reportable Event (other
than a Reportable Event not subject to the provision for 30-day notice to PBGC
pursuant to the regulations issued under ERISA) has occurred with respect to any
Single Employer Plan or that PBGC or any Borrower or any Commonly Controlled
Entity has instituted or will institute proceedings under Title IV of ERISA to
terminate any Single Employer Plan, deliver to the Administrative Agent (which
shall promptly notify each Lender) a certificate of a Responsible Officer of the
Company setting forth details as to such Reportable Event and the action that
the Company proposes to take with respect thereto, together with a copy of any
notice of such Reportable Event that may be required to be filed with PBGC, or
any notice delivered by PBGC evidencing its intent to institute such proceedings
or any notice to PBGC that such Plan is to be terminated, as the case may be.
For all purposes of clause (b) of this Section 8.06, the Company shall be deemed
to have all knowledge or knowledge of all facts attributable to the
administrator of a Single Employer Plan.
SECTION VIII.7 Compliance with Contractual Obligations and Laws. The
------------------------------------------------
Company will, and will cause each of its Subsidiaries to, comply with all
provisions of any Contractual Obligation, applicable law, rule, regulation,
order, writ, judgment, injunction, decree, award or ordinance to which it is
subject, except to the extent that the failure to comply therewith could not, in
the aggregate, reasonably be expected to have a Material Adverse Effect.
SECTION VIII.8 Access to Books and Inspection. The Company shall
------------------------------
keep proper books of record and account in which full, true and correct entries
in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities; and give
the Administrative Agent and any reasonable number of representatives of the
Lenders access, at the Company's principal office, upon reasonable notice during
normal business hours to, and permit any such representatives to examine, copy
or make excerpts from, any and all books, records and documents in the
possession of the Company relating to its affairs and the affairs of the
Subsidiaries, and to inspect any of the properties of the
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Company or the Subsidiaries. Notwithstanding any provision in this Section, the
Company (i) shall be given a reasonable opportunity upon reasonable notice to
have an officer or officers of the Company accompany any such representative
during any such visit, and (ii) shall not be responsible for any expenses
incurred by any such representative.
SECTION VIII.9 Use of Proceeds. The Borrowers shall use the proceeds
---------------
of the Loans for the purposes specified in Section 5.13.
SECTION VIII.10 Environmental Laws. The Company will, and will cause
------------------
each Subsidiary to, (a) comply with, and ensure compliance by all tenants and
subtenants, if any, with, all applicable Environmental Laws and obtain and
comply in all material respects with and maintain, and ensure that all tenants
and subtenants obtain and comply in all material respects with and maintain, any
and all licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws except to the extent that the failure to do so, or
any aggregation thereof, is not reasonably likely to result in a Material
Adverse Effect, (b) conduct and complete all investigations, studies, sampling
and testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all lawful
orders and directives of all Governmental Authorities regarding Environmental
Laws except to the extent that the same are being contested in good faith by
appropriate proceedings and the pendency of such proceedings is not reasonably
likely to result in a Material Adverse Effect and (c) defend, indemnify and hold
harmless the Administrative Agent and the Lenders, and their respective
employees, agents, officers and directors, from and against any and all claims,
demands, penalties, fines, liabilities, settlements, damages, costs and expenses
of whatever kind or nature known or unknown, contingent or otherwise, arising
out of, or in any way relating to the violation of, noncompliance with or
liability under, any Environmental Law applicable to the operations of the
Company, any of its Subsidiaries or the Properties, or any orders, requirements
or demands of Governmental Authorities related thereto, including, without
limitation, investigation and laboratory fees, response costs, court costs,
litigation expenses and reasonable attorneys' and consultants' fees, except to
the extent that any of the foregoing arise out of the gross negligence or
willful misconduct of the party seeking indemnification therefor. The
agreements in clause (c) of this Section shall survive repayment of the Notes
and all other amounts payable hereunder.
SECTION VIII.11 Additional Collateral and Guaranties.
------------------------------------
(a) With respect to any new Subsidiary (other than an Excluded
Foreign Subsidiary) created or acquired after the Closing Date by the Company or
any Domestic Subsidiary (which new Subsidiary, for the purposes of this
paragraph (a), shall include any existing Significant Subsidiary that ceases to
be an Excluded Foreign Subsidiary and, at the request of the Administrative
Agent, shall also include any Foreign Subsidiary (other than any Excluded
Foreign Subsidiary) of the Company or any Domestic Subsidiary which is in
existence on the Closing Date but does not execute a Subsidiary Guarantee on the
Closing Date), the Company or its Subsidiaries, as applicable, shall promptly
(i) execute and deliver to the Trustee such amendments to the applicable Pledge
Agreement, or such additional Pledge Agreement, as
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the Administrative Agent deems necessary or advisable in order to grant to the
Trustee, as security for the Secured Obligations secured under such Pledge
Agreement, a perfected first priority security interest in the Capital Stock of
such new Subsidiary which is owned by the Company or any of its Subsidiaries
(other than an Excluded Foreign Subsidiary), (ii) deliver to the Trustee the
certificates representing such Capital Stock, together with undated stock
powers, in blank, executed and delivered by a duly authorized officer of the
Company or such pledgor Subsidiary, as the case may be, or take such other
perfection actions in respect of such Capital Stock as shall be reasonably
requested by the Administrative Agent to perfect its security interest therein,
(iii) cause such new Subsidiary to become a party to a Subsidiary Guarantee and
(iv) if reasonably requested by the Administrative Agent, deliver to the
Administrative Agent legal opinions relating to the matters described above,
which opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Administrative Agent.
(b) With respect to any new Excluded Foreign Subsidiary (other than
any such Subsidiary which is of the type described in clause (i) or (iv) of the
definition of Excluded Foreign Subsidiary in Section 1.01) created or acquired
after the Closing Date by the Company or any of its Domestic Subsidiaries, the
Company or such Domestic Subsidiary, as applicable, shall promptly (i) execute
and deliver to the Administrative Agent such amendments or supplements to the
Pledge Agreement, or such other security documents, as the Administrative Agent
deems necessary or advisable in order to grant to the Trustee, as security for
the Secured Obligations secured under the Pledge Agreement, a perfected first
priority security interest in the Capital Stock of such new Subsidiary which is
owned by the Company or any of its Domestic Subsidiaries (provided that in no
event shall more than 65% of the total outstanding Capital Stock of any such new
Excluded Foreign Subsidiary be required to be so pledged), (ii) deliver to the
Trustee the certificates representing such Capital Stock, together with undated
stock powers, in blank, executed and delivered by a duly authorized officer of
the Company or such Subsidiary, as the case may be and (iii) if requested by the
Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described above, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative
Agent.
(c) Notwithstanding anything in this Section 8.11 to the contrary,
(i) shares of the Capital Stock of Netherlands BV II and Netherlands BV IV shall
not be required to be pledged hereunder, and shares of Capital Stock of any
other Foreign Subsidiary shall not be required to be pledged hereunder to the
extent that, in the good faith judgment of the Company, the pledging of such
Capital Stock would result in adverse tax consequences to the Company or would
be unlawful and (ii) so long as the Existing Accounts Receivable Financing
Program or any similar program is in effect, the Receivables Subsidiary or any
Subsidiary created under a subsequent receivables financing program shall not be
required to become a party to a Subsidiary Guarantee or to create a security
interest in any of its assets.
SECTION VIII.12 Foreign Collateral Matters. Notwithstanding the
--------------------------
provisions of Section 7.01 (g), (h) and (i) and Section 8.11 (but subject to
Section 8.11(c)):
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(a) with respect to any Foreign Subsidiary listed under the heading
"Foreign Subsidiaries of which 65% of the Capital Stock is to be Pledged"
in Schedule VI, the Company shall take the actions required by Section 7.01
(h) and (i) to pledge 65% of the Capital Stock of each such Foreign
Subsidiary, and shall cause the applicable legal opinions required by
Section 7.01 (g) to be delivered, as promptly as practicable, and in any
event within 120 days after the Closing Date; and with respect to any
Foreign Subsidiary listed under the heading "Foreign Subsidiaries of which
100% of the Capital Stock is to be Pledged" in Schedule VI, the Company
shall take the actions required by Section 7.01(h) and (i) to pledge 100%
of the Capital Stock of each such Foreign Subsidiary, and shall cause the
applicable legal opinions required by Section 7.01(g) to be delivered, as
promptly as practicable, and in any event within 120 days after the Closing
Date;
(b) the Company may satisfy the requirements of Sections 7.01 (g),
(h) and (i) and Section 8.11 with respect to any Excluded Foreign
Subsidiary by transferring all of the Capital Stock of such Excluded
Foreign Subsidiary to F-M International Group Inc.; and
(c) the Company shall cause to be delivered, as promptly as
practicable, and in any event within 120 days after the Closing Date, the
UK Acquisition I Guarantee, the legal opinion of U.K. counsel in connection
therewith and all other documents delivered in connection with the
guarantee of U.K. Acquisition I under the Existing Multicurrency Agreement.
ARTICLE IX. NEGATIVE COVENANTS
------------------
From and after the Closing Date, the Company hereby covenants and
agrees that so long as any of the Commitments remain in effect, any Loan remains
outstanding and unpaid or any other amount is owing to any Lender or the
Administrative Agent hereunder, the Company will comply with the covenants set
forth below in this Article IX:
SECTION IX.1 Cash Flow Coverage. The Company will not permit the
------------------
Cash Flow Coverage for any period of four consecutive fiscal quarters to be less
than 1.50 to 1.0.
SECTION IX.2 Consolidated Leverage Ratio. The Company will not
---------------------------
permit the Consolidated Leverage Ratio at the last day of any fiscal quarter
ending during any period set forth below to be greater than the ratio set forth
below for such period:
Period Consolidated Leverage Ratio
------ ---------------------------
Closing Date - December 30, 1999 4.50 to 1.0
December 31, 1999 - 4.00 to 1.0
December 30, 2000
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December 31, 2000 and 3.50 to 1.0
thereafter
SECTION IX.3 Maintenance of Consolidated Net Worth. The Company will
-------------------------------------
not permit Consolidated Net Worth at any time to be less than $2,000,000,000.
SECTION IX.4 Limitation on Liens. The Company will not, nor will it
-------------------
permit any of its Subsidiaries to, create, assume or incur or suffer to be
created, assumed or incurred or to exist any Lien on any of its properties or
assets, whether now owned or hereafter acquired, provided, however, that the
-------- -------
foregoing restriction shall not apply to the following:
(a) Liens existing on the date of this Agreement and described on
Schedule III;
(b) [Reserved];
(c) Liens in favor of the Company or any Wholly Owned Subsidiary;
(d) Liens in favor of any Governmental Authority to secure progress,
advance or other payments pursuant to any contract or provision of any
statute;
(e) any extension, renewal or replacement (or successive extensions,
renewals or replacements), as a whole or in part, of any Lien referred to
in the clauses (a) through (d), and (m) and (n), inclusive of this Section
9.04; provided that (i) no such extension, renewal or replacement shall
--------
result in an increase in the liabilities secured thereby and (ii) such
extension, renewal or replacement Lien shall be limited to all or a part of
the same property that secured the Lien so extended, renewed or replaced
(plus additions, accessions, replacements and improvements to such
property);
(f) Liens for taxes not yet due or which are being contested in good
faith and by appropriate proceedings diligently pursued if adequate
reserves with respect thereto are maintained on the books of the Company or
such Subsidiary, as the case may be, in accordance with GAAP or in the case
of a Subsidiary located outside the United States, general accounting
principles in effect from time to time in their respective jurisdictions of
incorporation;
(g) carriers', warehousemen's, mechanics', landlords', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business
(A) which are not overdue for a period of more than 60 days or (B) which
are being contested in good faith and by appropriate proceedings diligently
pursued if adequate reserves with respect thereto are maintained on the
books of the Company or such Subsidiary, as the case may be, in accordance
with GAAP;
(h) easements, rights-of-way, zoning and similar restrictions and
other similar encumbrances or title defects incurred in the ordinary course
of business which, in the
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aggregate, are not greater than $15,000,000 (to the extent the dollar
values of such encumbrances are calculable) and which do not in any case
materially detract from the value of the property subject thereto or
interfere with the ordinary conduct of the business of the Company or its
Subsidiaries;
(i) any attachment or judgment lien, unless the judgment it secures
shall not, within 30 days after the entry thereof, have been discharged or
execution thereof stayed pending appeal, or shall not have been discharged
within 30 days after the expiration of any such stay;
(j) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social legislation and deposits securing
liability to insurance carriers under insurance or self-insurance
arrangements;
(k) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(l) Liens created pursuant to the Security Documents;
(m) other Liens incidental to the conduct of the Company's or any
Subsidiary's business or the ownership of its property and assets,
including, without limitation, (i) Liens that were incurred in connection
with the borrowing of money or the obtaining of advances or credit or
capital leases and (ii) Liens on property or assets existing at the time of
the acquisition thereof (including acquisition through merger or
consolidation) or to secure the payment of all or any part of the purchase
price or construction cost thereof or to secure any Indebtedness incurred
prior to, at the time of, or within six months after, the acquisition or
completion of such property or assets for the purpose of financing all or
any part of the purchase price or construction cost thereof; provided,
--------
however, that the Indebtedness secured by all of the foregoing Liens
-------
referred to in clauses (i) and (ii) above, plus the aggregate amount of all
Other Permitted Obligations, does not at any time exceed in the aggregate
for the Company and all Subsidiaries of the Company an amount equal to the
sum of (A) $250,000,000; plus (B) an amount equal to forty percent (40%) of
Consolidated Net Worth (determined as of the most recent fiscal quarter of
the Company);
(n) Liens granted by a special-purpose, Wholly Owned Subsidiary of
the Company that purchases accounts receivable from the Company and its
Subsidiaries to the extent such Liens are granted on such accounts
receivable and (related assets customarily pledged in connection with
similar transactions, such as promissory notes evidencing such receivables
and software and records relating to such receivables) to secure the
payment of indebtedness of such Wholly Owned Subsidiary; and
(o) Liens granted to secure any Permitted Acquisition Debt.
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SECTION IX.5 Limitation on Indebtedness. The Company will not, and
--------------------------
will not permit any of its Subsidiaries to, create, incur, assume or suffer to
exist any Indebtedness, except:
(a) Indebtedness of any Loan Party pursuant to any Loan Document;
(b) Indebtedness of the Company to any Subsidiary and of any
Subsidiary which is a party to a Subsidiary Guarantee to the Company or any
other Subsidiary;
(c) (i) Indebtedness of the Special Purpose Subsidiaries described in
Schedule 9.05(c), (ii) Indebtedness of any Subsidiary which is not a party
to a Subsidiary Guarantee owing to any other Subsidiary which is not a
party to a Subsidiary Guarantee and (iii) Indebtedness in the form of any
investment permitted by Section 9.11;
(d) Indebtedness of the Company (i) having a final maturity after the
Revolving Credit Termination Date, and (ii) the proceeds of which are used
to prepay the Term Loans and any Permitted Acquisition Debt in accordance
with its terms;
(e) Subordinated Debt;
(f) Indebtedness outstanding on the date hereof and listed on
Schedule IV and any refinancings, refundings, renewals or extensions
thereof (without any increase in the principal amount thereof);
(g) Permitted Acquisition Debt; and
(h) additional Indebtedness of the Company and its Subsidiaries
(including, without limitation, (i) Indebtedness of Foreign Subsidiaries to
the Company, any other Subsidiary or any other Person, (ii) capital lease
obligations and (iii) Indebtedness of any Person which becomes a Subsidiary
or is merged with or into the Company after the date of this Agreement,
provided that in the case of Indebtedness described by the foregoing clause
--------
(iii), (A) such Indebtedness was in existence on the date such Person
became a Subsidiary or merged with or into the Company, (B) such
Indebtedness was not created in contemplation of such Person becoming a
Subsidiary or merging with or into the Company and (C) immediately after
giving effect to the acquisition of such Person by the Company no Default
or Event of Default shall have occurred and be continuing), provided, that
--------
the aggregate amount of Other Permitted Obligations, plus the aggregate
amount of all obligations secured by Liens permitted pursuant to Section
9.04(m), shall not at any time exceed in the aggregate for the Company and
its Subsidiaries the sum of (x) $250,000,000 plus (y) an amount equal to
forty percent (40%) of Consolidated Net Worth (determined as of the most
recent fiscal quarter of the Company).
SECTION IX.6 Limitation on Guaranties. The Company will not, and
------------------------
will not permit any of its Subsidiaries to, create, incur, assume or suffer to
exist any Guaranty except:
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(a) Guaranties in existence on the date hereof and listed on Schedule
IV and Guaranties of any refinancings, refundings, renewals or extensions
of the Indebtedness or obligations guaranteed thereby, provided that the
--------
amount of such Indebtedness or obligations are not increased;
(b) the Subsidiary Guarantees;
(c) Guaranties of Indebtedness permitted under clauses (a) through
(d) and clauses (g) and (h) of Section 9.05;
(d) additional Guaranties in respect of Indebtedness and other
obligations not exceeding $50,000,000 at any time outstanding;
(e) [reserved];
(f) Guaranties of the Loan Parties in respect of Subordinated Debt,
which Guaranties shall have subordination terms acceptable to the
Administrative Agent, acting reasonably;
(g) Guaranties by any Subsidiary which is a party to a Subsidiary
Guarantee in respect of the obligations of the Company under the ESOP
Guaranty or the obligations of Federal-Mogul Corporation Salaried
Employees' Stock Ownership Trust under the ESOP Loan Agreement, provided
--------
that each such Guaranty shall provide that when any Subsidiary Guarantor
party to such Guaranty is released from its obligations under the
Subsidiary Guarantee to which it is a party, such Subsidiary Guarantor
shall be released from its obligations under such Guaranty;
(h) Guaranties by any Subsidiary which is a party to a Subsidiary
Guarantee of Indebtedness incurred by the Company in connection with a Bond
Offering or under the Indentures; provided, that if any such Guaranty is in
--------
connection with a Bond Offering in respect of Subordinated Debt, the
Guaranties in respect thereof shall have subordination terms acceptable to
the Administrative Agent, acting reasonably; and
(i) Guaranties of any Person which becomes a Subsidiary of the
Company or is merged with or into the Company after the date of this
Agreement; provided that (i) such Guaranty was in existence on the date
--------
such Person became a Subsidiary or was merged with or into the Company,
(ii) such Guaranty was not created in contemplation of such Person becoming
a Subsidiary or merging with or into the Company, (iii) immediately after
giving effect to the acquisition of such Person by the Company, no Default
or Event of Default shall have occurred and be continuing and (iv) the
aggregate amount of Other Permitted Obligations, plus the aggregate amount
of all obligations secured by Liens permitted pursuant to Section 9.04(m),
shall not at any time exceed in the aggregate for the Company and its
Subsidiaries the sum of (A) $250,000,000 plus (B) an amount equal
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to forty percent (40%) of Consolidated Net Worth (determined as of the most
recent fiscal quarter of the Company).
SECTION IX.7 Limitation on Fundamental Changes. The Company will
---------------------------------
not, and will not permit any of its Subsidiaries to, enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or Dispose of all or substantially all
of its Property or business, or make any material change in its present method
of conducting business, except:
(a) any Subsidiary of the Company may be merged or consolidated with
or into the Company (provided that the Company shall be the continuing or
--------
surviving corporation) or with or into any Subsidiary which is a party to a
Subsidiary Guarantee (provided that such Subsidiary which is a party to a
--------
Subsidiary Guarantee shall be the continuing or surviving corporation) or
with or into any Person (provided that the surviving corporation of such
merger or consolidation continues to be a Subsidiary and such merger or
consolidation is permitted by Section 9.11) and any Subsidiary of the
Company which is not a party to a Subsidiary Guarantee may be merged or
consolidated with or into any other Subsidiary which is not a party to a
Subsidiary Guarantee;
(b) any Subsidiary of the Company may Dispose of any or all of its
assets (upon voluntary liquidation or otherwise) to the Company or any
Subsidiary which is a party to a Subsidiary Guarantee, and any Subsidiary
of the Company which is not a party to a Subsidiary Guarantee may Dispose
of assets to any other Subsidiary which is not a party to a Subsidiary
Guarantee; and
(c) Dispositions permitted by Sections 9.08(a), (d), (e), (f), (g),
(i) and (j).
SECTION IX.8 Limitation on Sale of Assets. The Company will not, and
----------------------------
will not permit any of its Significant Subsidiaries to, Dispose of any of its
Property or business (including, without limitation, receivables and leasehold
interests), whether now owned or hereafter acquired, or, in the case of any
Subsidiary, issue or sell any shares of such Subsidiary's Capital Stock to any
Person, except:
(a) the Disposition of obsolete or worn out property in the ordinary
course of business;
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions permitted by Sections 9.07(a) and (b) or Section
9.11;
(d) the sale or issuance of the Capital Stock of any Subsidiary which
is a party to a Subsidiary Guarantee to the Company or any Subsidiary, or
the sale or issuance of Capital Stock of any Foreign Subsidiary to any
other Foreign Subsidiary;
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(e) sales of receivables under the Company's Existing Accounts
Receivable Financing Program (as amended from time to time) or any
replacement program; provided that the principal amount of the Company's
--------
existing accounts receivable financing program may not be increased to an
aggregate principal amount greater than $500,000,000;
(f) Dispositions of assets required to comply with anti-trust laws;
(g) Dispositions of assets listed in Schedule 9.08;
(h) Dispositions pursuant to sale and leaseback transactions
permitted pursuant to Section 9.13;
(i) the transactions described in Section 9.10 may be consummated;
and
(j) any other sales of assets (including Capital Stock of
Subsidiaries), other than the assets set forth on Schedule 9.08, having a
book value which, when added to the book value of all other assets sold
pursuant to this clause (j) during such fiscal year, does not exceed 5% of
the gross book value of the assets of the Company and its consolidated
Subsidiaries, determined in accordance with GAAP, as of the last day of the
fiscal quarter ended immediately prior to the date of such sale.
SECTION IX.9 Limitation on Restricted Payments. The Company will
---------------------------------
not, and will not permit any of its Subsidiaries to, declare or pay any dividend
(other than dividends payable solely in common stock of the Person making such
dividend) on, or make any payment on account of, or set apart assets for a
sinking or other analogous fund for, the purchase, redemption, defeasance,
retirement or other acquisition of, any shares of any class of Capital Stock of
the Company or any Subsidiary or any warrants or options to purchase any such
Capital Stock, whether now or hereafter outstanding, or make any other
distribution in respect thereof (other than payments solely in common stock of
the Company, or, in the case of such payments made by a Subsidiary to the
Company or another Wholly Owned Subsidiary, stock of the Person making such
payments), either directly or indirectly, whether in cash or property or in
obligations of the Company or any Subsidiary (collectively, "Restricted
Payments"), except that:
(a) any Subsidiary may make Restricted Payments to the Company or any
Subsidiary which is a party to a Subsidiary Guarantee, and any Foreign
Subsidiary may make Restricted Payments to any Foreign Subsidiary;
(b) so long as no Default or Event of Default shall have occurred and
be continuing, the Company may pay dividends in respect of its preferred
stock at the stated rate, and dividends in respect of its common stock at a
rate not exceeding $.48 per share per year, as adjusted for stock splits
and similar events;
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(c) the Company may issue common stock upon conversion of any of its
convertible preferred stock, or the preferred stock of an Affiliate
described in the second sentence of the definition of "Capital Stock"; and
(d) payments by Federal-Mogul Financing Trust in respect of the 7%
Trust Convertible Preferred Securities of Federal-Mogul Financing Trust.
SECTION IX.10 Restrictions on Special Purpose Subsidiaries. The
--------------------------------------------
Company will not permit any Special Purpose Subsidiary to (a) create, assume,
incur or suffer to exist any Lien, any Indebtedness (other than Indebtedness
owing to other Special Purpose Subsidiaries or Subsidiaries that are guarantors
under a Subsidiary Guarantee), any Guaranty or any other liabilities, direct or
contingent or (b) conduct, transact or otherwise engage in any business or other
operations other than owning the stock of its Subsidiaries and activities
directly related thereto, except that, notwithstanding the foregoing :
(i) the Special Purpose Subsidiaries may execute and deliver the
Loan Documents to which they are parties, incur and perform their
obligations thereunder and create and suffer to exist the Liens created
thereby and may execute and deliver the Guaranties permitted by Section
9.06 and perform their obligations thereunder; and
(ii) the Special Purpose Subsidiaries may perform obligations
under the Investments permitted above and under their respective organic
documents and other Requirements of Law, may incur obligations to
Governmental Authorities in the ordinary course of business, such as income
and franchise tax liabilities and other incidental liabilities, and may
incur other immaterial liabilities directly related and incidental to the
permitted activities enumerated above.
SECTION IX.11 Limitation on Investments, Loans and Advances. The
---------------------------------------------
Company will not, and will not permit any of its Subsidiaries to, make any
advance, loan, extension of credit (by way of guaranty of obligations of such
Person or otherwise) or capital contribution to, or purchase any stock, bonds,
notes, debentures or other securities of or any assets constituting all or a
material part of a business unit of, or make any other investment in, any Person
("Investments"), except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in Cash Equivalents;
(c) Guaranties permitted by Section 9.06;
(d) loans and advances to employees of the Company or its
Subsidiaries in the ordinary course of business (including, without
limitation, for travel, entertainment and relocation expenses);
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(e) Permitted Acquisitions;
(f) Investments (x) by any Subsidiary in the Company or (y) by the
Company or any of its Subsidiaries in any Person that, prior to such
investment, is a Subsidiary and which, prior to or simultaneously with such
investment, is or becomes a party to a Subsidiary Guarantee or (z) by the
Company or any of its Subsidiaries in the Receivables Subsidiary or any
other Subsidiary created pursuant to a receivables financing program
permitted hereunder;
(g) the Investments described in Section 9.10;
(h) Investments (x) by the Company or any of its Subsidiaries in any
entity which at the time of such Investment is an Excluded Foreign
Subsidiary and which was not acquired or created in anticipation of the
making of such Investment in an aggregate amount outstanding not exceeding
$200,000,000 for all Excluded Foreign Subsidiaries, and (y) investments by
a Subsidiary which is not a party to a Subsidiary Guarantee in any other
Subsidiary which is not a party to a Subsidiary Guarantee;
(i) Investments to the extent that the consideration paid by the
Company and its Subsidiaries is Capital Stock of the Company (provided that
--------
if such Investment is the acquisition of, in a single transaction or in a
series of related transactions, all or substantially all of the equity
interests of any Person, such acquisition is approved by the board of
directors or analogous governing body of such Person);
(j) in addition to Investments otherwise expressly permitted by this
Section 9.11, Investments by the Company or any of its Subsidiaries in an
aggregate amount (valued at cost) not to exceed at any time outstanding
$300,000,000 while this Agreement is outstanding (provided that if such
--------
Investment is the acquisition of, in a single transaction or in a series of
related transactions, all or substantially all of the equity interests of
any Person, such acquisition is approved by the board of directors or
analogous governing body of such Person); and
(k) Investments permitted by Sections 9.07(a) and (b).
SECTION IX.12 Limitation on Optional Payments and Modifications of
----------------------------------------------------
Debt Instruments, Certain Derivative Transactions, etc. The Company will not,
- - -------------------------------------------------------
and will not permit any of its Subsidiaries to, (a) make or offer to make any
payment, prepayment, repurchase or redemption of or otherwise defease or
segregate funds with respect to the Subordinated Debt (other than scheduled
interest payments required to be made in cash and in connection with a
refinancing otherwise permitted hereunder), (b) enter into any derivative
transaction or similar transaction obligating the Company or any of its
Subsidiaries to make payments to any other Person as a result of a change in
market value of Subordinated Debt or Capital Stock of the Company or (c) amend,
modify, waive or otherwise change, or consent or agree to any amendment,
modification, waiver or other change to, any of the terms of the Subordinated
Debt (other than any such amendment, modification, waiver or other change which
would extend the
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maturity or reduce the amount of any payment of principal thereof or which would
reduce the rate or extend the date for payment of interest thereon or which
would otherwise not materially impair the interests of the Lenders).
SECTION IX.13 Limitation on Sales and Leasebacks. Enter into any
----------------------------------
arrangement with any Person providing for the leasing by the Company or any
Subsidiary of real or personal property which has been or is to be sold or
transferred by the Company or such Subsidiary to such Person or to any other
Person to whom funds have been or are to be advanced by such Person on the
security of such property or rental obligations of the Company or such
Subsidiary; provided, that (i) the Company and its Subsidiaries may consummate
--------
sale and leaseback transactions in which the transferee is the Company or a
Subsidiary which is a party to a Subsidiary Guarantee and any Subsidiary which
is not a party to a Subsidiary Guarantee may consummate sale and leaseback
transactions in which the transferor is another Subsidiary which is not a party
to a Subsidiary Guarantee and (ii) the Company may consummate other sale and
leaseback transactions so long as after giving effect thereto the amount of
Other Permitted Obligations, plus the aggregate amount of obligations secured by
Liens permitted by Section 9.04(m), does not at any time exceed in the aggregate
for the Company and its Subsidiaries the sum of (A) $250,000,000 plus (B) an
amount equal to forty percent (40%) of Consolidated Net Worth (determined as of
the most recent fiscal quarter of the Company).
SECTION IX.14 Limitation on Restrictions on Subsidiary Distributions.
------------------------------------------------------
The Company will not, and will not permit any Significant Subsidiary to, enter
into or suffer to exist or become effective any consensual encumbrance or
restriction on the ability of any Significant Subsidiary of the Company to (a)
pay dividends or make any other distributions in respect of any Capital Stock of
such Significant Subsidiary held by, or pay any Indebtedness owed to, the
Company or any other Subsidiary of the Company, (b) make loans or advances to
the Company or any other Subsidiary of the Company or (c) transfer any of its
assets to the Company or any other Subsidiary of the Company, except for such
encumbrances or restrictions existing under or by reason of (i) any restrictions
existing under the Loan Documents, (ii) any restrictions with respect to a
Subsidiary imposed pursuant to an agreement which has been entered into in
connection with the Disposition of all or substantially all of the Capital Stock
or assets of such Subsidiary, (iii) any restrictions with respect to assets
encumbered by a Lien permitted by Section 9.04 so long as such restriction
applies only to the asset encumbered by such permitted Lien, (iv) any
restrictions with respect to T & N plc and its Subsidiaries, or any of the
entities acquired in the Cooper Automotive Acquisition, existing on the date of
consummation of the Company's acquisition thereof, (v) any restrictions in
respect of Subsidiaries which must be disposed of after the Company's
acquisition of T & N plc agreed to between the Company and a Governmental
Authority having jurisdiction over antitrust or competition issues as a
condition to such Governmental Authority's approval of such acquisition, (vi)
any restrictions contained in any Permitted Acquisition Debt and (vii) any
restrictions contained in Indebtedness permitted to be incurred under Section
9.05(h).
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SECTION IX.15 Multiemployer Plans. The Company will not, as of any
-------------------
date, permit any liability to occur to which the Company or any Commonly
Controlled Entity would become subject under ERISA if the Company or any such
Commonly Controlled Entity were to withdraw completely from all Multiemployer
Plans as of the valuation date most closely preceding such date.
SECTION IX.16 Limitation on More Restrictive Covenants. The Company
----------------------------------------
shall not enter into any new debt agreement that would contain, nor enter into
any amendment, supplement or other modification to any indenture, instrument or
other agreement concerning the Funded Debt or any refinancing thereof, if such
indenture, instrument or other agreement at the time entered into or after
giving effect to any such amendment, supplement or other modification thereto,
would contain (a) any covenant or event of default that is more restrictive on
any Borrower than those set forth in this Agreement, (b) with respect to the
Company, any covenant with respect to financial performance the scope of which
is materially different from the covenants respecting such matters set forth in
Sections 9.01, 9.02 or 9.03, (c) any covenant which would prohibit the granting
of liens on its assets by any Borrower or its Subsidiaries in favor of the
Lenders, other than, in the case of this clause (c), Indebtedness incurred
pursuant to Section 9.05(g), and in the case of clauses (a) and (c),
Indebtedness incurred pursuant to Section 9.05(h) constituting a refinancing,
refunding, extension or renewal of existing Indebtedness and having terms no
more restrictive than the Indebtedness refinanced, refunded, extended or renewed
thereby.
SECTION IX.17 Affiliates. The Company, will not, nor will it permit
----------
any of its Significant Subsidiaries to, enter into any transaction (including,
without limitation, the purchase or sale of any property or service) with, or
make any payment or transfer to, any Affiliate (other than the Company or any of
its Significant Subsidiaries) except in the ordinary course of business and
pursuant to the reasonable requirements of the Company's or such Subsidiary's
business and upon fair and reasonable terms no less favorable to the Company or
such Subsidiary than the Company or such Subsidiary would obtain in a comparable
arms-length transaction.
ARTICLE X. GUARANTEE
---------
SECTION X.1 Guarantee. (a) The Company hereby unconditionally and
---------
irrevocably guarantees to the Administrative Agent, for the ratable benefit of
the Administrative Agent and the Lenders and their respective successors,
indorsees, transferees and assigns, the prompt and complete payment and
performance by the Foreign Subsidiary Borrowers (whether at the stated maturity,
by acceleration or otherwise) of the Obligations.
(b) The Company further agrees to pay any and all expenses
(including, without limitation, all reasonable fees and disbursements of
counsel) which may be paid or incurred by the Administrative Agent, or any
Lender in enforcing, or obtaining advice of counsel in respect of, any
rights with respect to, or collecting, any or all of the Obligations and/or
enforcing any rights with respect to, or collecting against, the
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Company under this Section. This Section shall remain in full force and
effect until the Obligations are paid in full and the Commitments are
terminated, notwithstanding that from time to time prior thereto the
Borrowers may be free from any Obligations.
(c) No payment or payments made by any Borrower or any other Person
or received or collected by the Administrative Agent or any Lender from any
Borrower or any other Person by virtue of any action or proceeding or any
set-off or appropriation or application, at any time or from time to time,
in reduction of or in payment of the Obligations shall be deemed to modify,
reduce, release or otherwise affect the liability of the Company hereunder
which shall, notwithstanding any such payment or payments, remain liable
hereunder for the Obligations until the Obligations are paid in full and
the Commitments are terminated.
(d) The Company agrees that whenever, at any time, or from time to
time, it shall make any payment to the Administrative Agent or any Lender
on account of its liability under this Section, it will notify the
Administrative Agent and such Lender in writing that such payment is made
under this Section for such purpose.
SECTION X.2 Right of Set-off. The Administrative Agent and each
----------------
Lender is hereby irrevocably authorized at any time and from time to time
without notice to the Company, any such notice being expressly waived by the
Company, to set off and appropriate and apply any and all deposits (general or
special, time or demand, provisional or final), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by the Administrative Agent or such Lender (or any Affiliate of such
Lender) to or for the credit or the account of the Company, or any part thereof
in such amounts as the Administrative Agent or such Lender may elect, against or
on account of the obligations and liabilities of the Company to the
Administrative Agent or such Lender hereunder which are then due and payable and
claims of every nature and description of the Administrative Agent or such
Lender against the Company, in any currency, whether arising hereunder, under
any other Loan Document or otherwise in connection therewith, as the
Administrative Agent or such Lender may elect, whether or not the Administrative
Agent or such Lender has made any demand for payment. The Administrative Agent
and each Lender shall notify the Company promptly of any such set-off and the
application made by the Administrative Agent or such Lender, as the case may be,
of the proceeds thereof; provided that the failure to give such notice shall not
--------
affect the validity of such set-off and application. The rights of the
Administrative Agent and each Lender under this Section are in addition to other
rights and remedies (including, without limitation, other rights of set-off)
which the Administrative Agent or such Lender may have.
SECTION X.3 No Subrogation. Notwithstanding any payment or payments
--------------
made by the Company hereunder, or any set-off or application of funds of the
Company by the Administrative Agent or any Lender, the Company shall not be
entitled to be subrogated to any of the rights of the Administrative Agent or
any Lender against the Foreign Subsidiary Borrowers or against any collateral
security or guarantee or right of offset held by the
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Administrative Agent or any Lender for the payment of the Obligations, nor shall
the Company seek or be entitled to seek any contribution or reimbursement from
such Borrowers in respect of payments made by the Company hereunder, until all
amounts owing to the Administrative Agent and the Lenders by such Borrowers on
account of the Obligations are paid in full and the Commitments are terminated.
If any amount shall be paid to the Company on account of such subrogation rights
at any time when all of the Obligations shall not have been paid in full, such
amount shall be held by the Company in trust for the Administrative Agent and
the Lenders, segregated from other funds of the Company, and shall, forthwith
upon receipt by the Company, be turned over to the Administrative Agent in the
exact form received by the Company (duly indorsed by the Company to the
Administrative Agent, if required), to be applied against the Obligations,
whether matured or unmatured, in such order as Administrative Agent may
determine. The provisions of this Section shall survive the termination of this
Agreement and the payment in full of the Obligations and the termination of the
Commitments.
SECTION X.4 Amendments, etc. with respect to the Obligations; Waiver
--------------------------------------------------------
of Rights. The Company shall remain obligated hereunder notwithstanding that,
- - ---------
without any reservation of rights against the Company, and without notice to or
further assent by the Company, any demand for payment of any of the Obligations
made by the Administrative Agent or any Lender may be rescinded by the
Administrative Agent or such Lender, and any of the Obligations continued, and
the Obligations, or the liability of any other party upon or for any part
thereof, or any collateral security or guarantee therefor or right of offset
with respect thereto, may, from time to time, in whole or in part, be renewed,
extended, amended, modified, accelerated, compromised, waived, surrendered or
released by the Administrative Agent or any Lender, and any Loan Documents and
any other documents executed and delivered in connection therewith may be
amended, modified, supplemented or terminated, in whole or in part, in
accordance with the provisions thereof as the Administrative Agent (or the
requisite Lenders, as the case may be) may deem advisable from time to time, and
any collateral security, guarantee or right of offset at any time held by the
Administrative Agent or any Lender for the payment of the Obligations may be
sold, exchanged, waived, surrendered or released. None of the Administrative
Agent or any Lender shall have any obligation to protect, secure, perfect or
insure any Lien at any time held by it as security for the Obligations or for
this Agreement or any property subject thereto. When making any demand
hereunder against the Company, the Administrative Agent or any Lender may, but
shall be under no obligation to, make a similar demand on any Borrower or any
other guarantor, and any failure by the Administrative Agent or any Lender to
make any such demand or to collect any payments from any Foreign Subsidiary
Borrower or any such other guarantor or any release of any Foreign Subsidiary
Borrower or such other guarantor shall not relieve the Company of its
obligations or liabilities hereunder, and shall not impair or affect the rights
and remedies, express or implied, or as a matter of law, of the Administrative
Agent or any Lender against the Company. For the purposes hereof "demand" shall
include the commencement and continuance of any legal proceedings.
SECTION X.5 Guarantee Absolute and Unconditional. The Company waives
------------------------------------
any and all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the Administrative Agent or
any Lender upon this Agreement or
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acceptance of this Agreement; the Obligations, and any of them, shall
conclusively be deemed to have been created, contracted or incurred, or renewed,
extended, amended or waived, in reliance upon this Agreement; and all dealings
between the Foreign Subsidiary Borrower and the Company, on the one hand, and
the Administrative Agent and the Lenders, on the other, shall likewise be
conclusively presumed to have been had or consummated in reliance upon this
Agreement. The Company waives diligence, presentment, protest, demand for
payment and notice of default or nonpayment to or upon the Foreign Subsidiary
Borrowers and the Company with respect to the Obligations. This Article X shall
be construed as a continuing, absolute and unconditional guarantee of payment
without regard to (a) the validity, regularity or enforceability of this
Agreement, any other Loan Document, any of the Obligations or any other
collateral security therefor or guarantee or right of offset with respect
thereto at any time or from time to time held by the Administrative Agent or any
Lender, (b) any defense, set-off or counterclaim (other than a defense of
payment or performance) which may at any time be available to or be asserted by
the Foreign Subsidiary Borrowers against the Administrative Agent or any Lender,
or (c) any other circumstance whatsoever (with or without notice to or knowledge
of the Foreign Subsidiary Borrowers or the Company) which constitutes, or might
be construed to constitute, an equitable or legal discharge of the Foreign
Subsidiary Borrowers for the Obligations, or of the Company under this Article
X, in bankruptcy or in any other instance. When pursuing its rights and remedies
hereunder against the Company, the Administrative Agent and any Lender may, but
shall be under no obligation to, pursue such rights and remedies as it may have
against the Foreign Subsidiary Borrowers or any other Person or against any
collateral security or guarantee for the Obligations or any right of offset with
respect thereto, and any failure by the Administrative Agent or any Lender to
pursue such other rights or remedies or to collect any payments from the Foreign
Subsidiary Borrowers or any such other Person or to realize upon any such
collateral security or guarantee or to exercise any such right of offset, or any
release of the Foreign Subsidiary Borrowers or any such other Person or of any
such collateral security, guarantee or right of offset, shall not relieve the
Company of any liability hereunder, and shall not impair or affect the rights
and remedies, whether express, implied or available as a matter of law, of the
Administrative Agent or any Lender against the Company. This Article X shall
remain in full force and effect and be binding in accordance with and to the
extent of its terms upon the Company and its successors and assigns, and shall
inure to the benefit of the Administrative Agent and the Lenders, and their
respective successors, indorsees, transferees and assigns, until all the
Obligations and the obligations of the Company under this Agreement shall have
been satisfied by payment in full and the Commitments shall be terminated,
notwithstanding that from time to time during the term of this Agreement the
Foreign Subsidiary Borrowers may be free from any Obligations.
SECTION X.6 Reinstatement. This Article X shall continue to be
-------------
effective, or be reinstated, as the case may be, if at any time payment, or any
part thereof, of any of the Obligations is rescinded or must otherwise be
restored or returned by the Administrative Agent or any Lender upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of any
Foreign Subsidiary Borrower or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, any
Foreign Subsidiary Borrower or any substantial part of its property, or
otherwise, all as though such payments had not been made.
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SECTION X.7 Payments. The Company hereby agrees that all payments
--------
required to be made by it hereunder will be made to the Administrative Agent
without set-off or counterclaim in accordance with the terms of the Obligations,
including, without limitation, in the currency in which payment is due.
ARTICLE XI. EVENTS OF DEFAULT
-----------------
If any of the following events shall occur and be continuing:
(a) Any Borrower shall fail to pay any principal of any Loan made to
it when due in accordance with the terms hereof; or any Borrower shall fail
to pay any interest, or any other amount payable by it hereunder, within
five days after any such interest or other amount becomes due in accordance
with the terms hereof; or
(b) Any representation or warranty made or deemed made by any
Borrower herein or which is contained in any certificate, document or
financial or other statement furnished at any time under or in connection
with this Agreement shall prove to have been incorrect in any material
respect on or as of the date made or deemed made; or
(c) Any Borrower shall default in the observance or performance of
any agreement contained in Sections 8.04(a) (with respect to the corporate
existence of the Company) , 8.06 (with respect to notices of Default and
Events of Default), 8.12 or Article IX; or
(d) Any Borrower shall default in the observance or performance of
any other agreement contained in this Agreement (other than as provided in
paragraphs (a) through (c) of this Article), and such default shall
continue unremedied for a period of 30 days after receipt by such Borrower
of notice of such default from the Administrative Agent or any Lender; or
(e) The Company or any of its Subsidiaries shall (i) default in any
payment or payments of principal or interest in an aggregate amount for the
Company and its Subsidiaries of more than $50,000,000 (or its equivalent in
another currency) at any one time on any Indebtedness (other than the
Loans) or in the payment of more than $50,000,000 in the aggregate under
any Guaranties (other than the Company Guaranty), beyond the period of
grace (not to exceed 30 days), if any, provided in the instrument or
agreement under which such Indebtedness or Guaranty was created; or (ii)
default in the observance or performance of any other agreement or
condition relating to any Indebtedness (other than the Loans) the principal
amount of which exceeds $50,000,000 in the aggregate for the Company and
its Subsidiaries or any Guaranty (other than the Company Guaranty)
guaranteeing Indebtedness the principal amount of which exceeds $50,000,000
in the aggregate for the Company and its Subsidiaries or contained in any
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instrument or agreement evidencing, securing or relating to any such
Indebtedness or Guaranty, beyond any applicable period of grace (not to
exceed 30 days), or any other event shall occur or condition exist, the
effect of which default or other event or condition is to cause, or to
permit the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Guaranty (or a trustee or agent on behalf of such
holder or holders or beneficiary or beneficiaries) to cause, with the
giving of notice if required, such Indebtedness to become due prior to its
stated maturity or such Guaranty to become payable; or
(f) (i) Any Borrower or any of its Significant Subsidiaries shall
commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to
have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition
or other relief with respect to it or its debts, or (B) seeking appointment
of a receiver, trustee, custodian, conservator or other similar official
for it or for all or any substantial part of its assets, or any Borrower or
any of its Significant Subsidiaries shall make a general assignment for the
benefit of its creditors; or (ii) there shall be commenced against any
Borrower or any of its Significant Subsidiaries any case, proceeding or
other action of a nature referred to in clause (i) above which (A) results
in the entry of an order for relief or any such adjudication or appointment
or (B) remains undismissed, undischarged or unbonded for a period of 60
days; or (iii) there shall be commenced against any Borrower or any of its
Significant Subsidiaries any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar
process against all or any substantial part of its assets which results in
the entry of an order for any such relief which shall not have been
discharged, or stayed or bonded pending appeal within 60 days from the
entry thereof; or (iv) any Borrower or any of its Significant Subsidiaries
shall take any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth in clause (i),
(ii), or (iii) above; or (v) any Borrower or any of its Significant
Subsidiaries shall generally not, or shall be unable to, or shall admit in
writing its inability to, pay its debts as they become due; or
(g) (i) Any Person shall engage in any Prohibited Transaction
involving any Plan, (ii) any Accumulated Funding Deficiency, whether or not
waived, shall exist with respect to any Plan or any Lien in favor of the
PBGC or a Plan shall arise on the assets of any Borrower or any Commonly
Controlled Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee shall
be appointed, to administer or to terminate, any Single Employer Plan,
which Reportable Event or commencement of proceedings or appointment of a
trustee is, in the reasonable opinion of the Required Lenders, likely to
result in the termination of such Plan for purposes of Title IV of ERISA,
(iv) any Single Employer Plan shall terminate for purposes of Title IV of
ERISA, (v) any Borrower or any Commonly Controlled Entity shall, or in the
reasonable opinion of the Required Lenders is likely to, incur any
liability
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in connection with a withdrawal from, or the Insolvency or Reorganization
of, a Multiemployer Plan or (vi) any other event or condition shall occur
or exist with respect to a Plan; and in each case in clauses (i) through
(vi) above, such event or condition, together with all other such events or
conditions, if any, could reasonably be expected to have a Material Adverse
Effect; or
(h) One or more judgments or decrees shall be entered against the
Company or any of its Significant Subsidiaries involving in the aggregate a
liability (not paid or fully covered by insurance as to which the insurance
carrier has admitted liability) of $50,000,000 or more, and all such
judgments or decrees shall not have been vacated, discharged, stayed or
bonded pending appeal within 30 days from the entry thereof; or
(i) The validity or enforceability of this Agreement, any Loan
Document or any of the other documents required to be delivered in
connection herewith shall be challenged by the Company or any of its
Subsidiaries or shall fail to remain in full force and effect for any
reason other than in accordance with its express terms; or
(j) A Change of Control shall occur; or
(k) The subordination provisions of any Subordinated Debt shall
cease, for any reason, to be valid or any Loan Party shall so assert in
writing;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Company,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement and the Notes shall immediately become due and payable, and (B) if
such event is any other Event of Default, either or both of the following
actions may be taken (i) with the consent of the Majority Aggregate Revolving
Credit Facility Lenders, the Administrative Agent may, or upon the request of
the Majority Aggregate Revolving Credit Facility Lenders, the Administrative
Agent shall, by notice to the Company, declare the Multicurrency Revolving
Credit Commitments, the US$ Revolving Credit Commitments and the Additional US$
Revolving Credit Commitments to be terminated forthwith, whereupon such
Revolving Credit Commitments shall immediately terminate, and (ii) with the
consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, by notice to
the Company, declare the Loans hereunder (with accrued interest thereon) and all
other amounts owing under this Agreement and the Notes to be due and payable
forthwith, whereupon the same shall immediately become due and payable.
Except as expressly provided above in this Article, presentment, demand,
protest and all other notices of any kind are hereby expressly waived.
ARTICLE XII. THE ADMINISTRATIVE AGENT
------------------------
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SECTION XII.1 Appointment. Each Lender hereby irrevocably designates
-----------
and appoints Chase as the Administrative Agent of such Lender under this
Agreement and the other Loan Documents, and each Lender irrevocably authorizes
Chase to act as the Administrative Agent of such Lender, to take such action on
its behalf under the provisions of this Agreement and the other Loan Documents
and to exercise such powers and perform such duties as are expressly delegated
to the Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent.
SECTION XII.2 Delegation of Duties. The Administrative Agent may
--------------------
execute any of its duties under this Agreement and the other Loan Documents by
or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
SECTION XII.3 Exculpatory Provisions. Neither the Administrative
----------------------
Agent nor any of its respective officers, directors, employees, agents,
attorneys-in-fact or affiliates shall be (i) liable for any action lawfully
taken or omitted to be taken by it or such Person under or in connection with
this Agreement or any other Loan Document (except for its or such Person's gross
negligence or willful misconduct) or (ii) responsible in any manner to any of
the Lenders for any recitals, statements, representations or warranties made by
any Borrower or any officer thereof contained in this Agreement or any other
Loan Document or in any certificate, report, statement or other document
referred to or provided for in, or received by the Administrative Agent under or
in connection with, this Agreement or any other Loan Document or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document or for any failure of a Borrower to perform
its obligations hereunder or thereunder. The Administrative Agent shall not be
under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document or to inspect the properties,
books or records of the Borrowers.
SECTION XII.4 Reliance by Administrative Agent. The Administrative
--------------------------------
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any Note, writing, resolution, notice, consent, certificate, affidavit, letter,
telecopy, telex or teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the Borrowers or any of
them), independent accountants and other experts selected by the Administrative
Agent. The Administrative Agent may deem and treat the payee of any Note as the
owner thereof for all purposes unless a written notice of assignment or transfer
thereof shall have been filed with the
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Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the other Loan Documents in
accordance with a request of the Required Lenders, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders and all future holders of the Loans.
SECTION XII.5 Notice of Default. The Administrative Agent shall not
-----------------
be deemed to have knowledge or notice of the occurrence of any Default or Event
of Default hereunder unless the Administrative Agent has received notice from a
Lender or a Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In the
event that the Administrative Agent receives such a notice, the Administrative
Agent shall give notice thereof to the Lenders. The Administrative Agent shall
take such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Lenders; provided that unless and until the
--------
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders.
SECTION XII.6 Non-Reliance on Agents and Other Lenders-. Each Lender
-----------------------------------------
expressly acknowledges that neither the Administrative Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates have
made any representations or warranties to it and that no act by the
Administrative Agent hereafter taken, including any review of the affairs of a
Loan Party or any affiliate of a Loan Party, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any Lender. Each
Lender represents to the Administrative Agent that it has, independently and
without reliance upon the Administrative Agent or any other Lender, and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties and their
affiliates and made its own decision to make its Loans hereunder and enter into
this Agreement. Each Lender also represents that it will, independently and
without reliance upon the Administrative Agent or any other Lender, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Loan Parties and their affiliates. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall have no duty or
responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of any Loan Party or
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any affiliate of a Loan Party which may come into the possession of the
Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates.
SECTION XII.7 Indemnification. The Lenders agree to indemnify the
---------------
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrowers and without limiting the obligation of the Borrowers to do so),
ratably according to their respective Revolving Credit Percentages, Tranche A
Term Loan Percentages and Tranche B Term Loan Percentages in effect on the date
on which indemnification is sought under this Section 12.07 (or, if
indemnification is sought after the date upon which the Commitments shall have
terminated and the Loans shall have been paid in full, ratably in accordance
with such Percentages immediately prior to such date), from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever which may at any
time (including, without limitation, at any time following the payment of the
Loans) be imposed on, incurred by or asserted against the Administrative Agent
in any way relating to or arising out of, the Commitments, this Agreement, any
of the other Loan Documents or any documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by the Administrative Agent under or in connection with
any of the foregoing; provided that no Lender shall be liable for the payment of
--------
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements which resulted from
the Administrative Agent's gross negligence or willful misconduct. The
agreements in this Section 12.07 shall survive the payment of the Loans and all
other amounts payable hereunder. The Administrative Agent shall have the right
to deduct any amount owed to it by any Lender under this Section from any
payment made by it to such Lender hereunder.
SECTION XII.8 Administrative Agent in Its Individual Capacity. The
-----------------------------------------------
Administrative Agent and its affiliates may make loans to, accept deposits from
and generally engage in any kind of business with any Loan Party as though the
Administrative Agent were not the Administrative Agent. With respect to its
Loans made or renewed by it the Administrative Agent shall have the same rights
and powers under this Agreement and the other Loan Documents as any Lender and
may exercise the same as though it were not the Administrative Agent, and the
terms "Lender" and "Lenders" shall include the Administrative Agent in its
individual capacity.
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SECTION XII.9 Successor Administrative Agent. The Administrative
------------------------------
Agent may resign as Administrative Agent upon 30 days' notice to the Lenders and
the Company. If the Administrative Agent shall resign as Administrative Agent
under this Agreement and the other Loan Documents, then the Required Lenders
shall appoint from among the Lenders a successors agent for the Lenders, which
successor agent shall (unless an Event of Default under paragraph (a) or (f) of
Article XI with respect to the Company shall have occurred and be continuing) be
approved by the Company (which approval shall not be unreasonably withheld or
delayed), whereupon such successor agent shall succeed to the rights, powers and
duties of the Administrative Agent, and the term "Administrative Agent" shall
mean such successor agent effective upon such appointment and approval, and the
former Administrative Agent's rights, powers and duties as Administrative Agent
shall be terminated, without any other or further act or deed on the part of
such former Administrative Agent or any of the parties to this Agreement or any
holders of the Loans. If no successor agent has accepted appointment as
Administrative Agent by the date that is 30 days following a retiring
Administrative Agent's notice of resignation, the retiring Administrative
Agent's resignation shall nevertheless thereupon become effective and the
Lenders shall assume and perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Required Lenders appoint a successor
agent as provided for above. After any retiring Administrative Agent's
resignation as Administrative Agent, the provisions of this Article XII shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under this Agreement and the other Loan Documents.
SECTION XII.10 Authorization to Release Liens. The Administrative
------------------------------
Agent is hereby irrevocably authorized by each of the Lenders to release, or
direct the Trustee to release, any Lien created by any Security Document
covering any Property of the Company or any of its Subsidiaries that is the
subject of a Disposition which is permitted by this Agreement or which has been
consented to in accordance with Section 13.01. In addition, the Administrative
Agent is hereby authorized by each of the Lenders to release, and to direct the
Trustee to release, the Liens on the Collateral on the Collateral Release Date.
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ARTICLE XIII. MISCELLANEOUS
-------------
SECTION XIII.1 Amendments and Waivers. (a) Neither this Agreement
----------------------
or any other Loan Document, nor any terms hereof or thereof may be amended,
supplemented, waived or modified except in accordance with the provisions of
this Section 13.01. The Required Lenders may, or, with the written consent of
the Required Lenders, the Administrative Agent may, from time to time, (i) enter
into with the relevant Loan Parties written amendments, supplements or
modifications hereto and to the other Loan Documents for the purpose of adding
any provisions to this Agreement or the other Loan Documents or changing in any
manner the rights or obligations of the Lenders or of the Loans Parties
hereunder or thereunder or (ii) waive at the Loan Parties' request, on such
terms and conditions as the Required Lenders or the Administrative Agent, as the
case may be, may specify in such instrument, any of the requirements of this
Agreement or the other Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such amendment,
-------- -------
supplement or modification shall:
(A) reduce the amount or extend the scheduled date of maturity
of any Loan or any scheduled installment thereof, or reduce the stated rate
of any interest or fee payable hereunder or extend the scheduled date of
any payment thereof or increase the amount or extend the expiration date of
any Lender's Commitment, or change the pro rata provisions contained in
--- ----
Section 5.08, in each case without the consent of each Lender affected
thereby;
(B) amend, supplement, modify or waive any provision of this
Section 13.01 or reduce the percentages specified in the definition of
"Required Lenders" or consent to the assignment or transfer by any Borrower
of any of its rights and obligations under this Agreement and the other
Loan Documents or release the Company from its obligations under the
Company Guaranty, in each case without the consent of all the Lenders;
(C) release all or substantially all of the Collateral (except
as provided in Sections 12.10 and 13.16) or all or substantially all of the
guarantors under the Subsidiary Guarantees, in each case without the
consent of all the Lenders;
(D) amend, supplement, modify or waive any provision of Section
2.05, 2.06, 2.07, 2.08 or 2.09 or any other provision of this Agreement
governing the rights and obligations of the Swing Line Lender, or the
definitions used therein, without the consent of the Swing Line Lender;
(E) amend, modify or waive any provision of Section 5.04(d) or
5.04(f) providing for the application of any mandatory prepayments which
would reduce the amount or delay the application of any such prepayment to
be applied to any Facility without the written consent of the Majority
Facility Lenders in respect of such Facility;
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(F) increase the Currency Sublimit applicable to any Available
Foreign Currency without the written consent of the Majority Multicurrency
Revolving Credit Facility Lenders; or
(G) reduce the percentage specified in the definition of
"Majority Facility Lenders" without the written consent of all Lenders
under each affected Facility.
Notwithstanding the foregoing provisions of this Section 13.01, the
Company shall be permitted to amend this Agreement without the consent of any of
the Lenders to increase the Applicable Margin applicable to any of the Loans or
to increase the Facility Fee Rate.
Any such waiver and any amendment, supplement or modification pursuant
to this Section 13.01 shall apply to each of the Lenders and shall be binding
upon the Loan Parties, the Lenders, the Administrative Agent, and all future
holders of the Loans. In the case of any waiver, the Loan Parties, the Lenders
and the Administrative Agent shall be restored to their former positions and
rights hereunder and under the other Loan Documents, and any Default or Event of
Default waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon.
(b) In addition to amendments effected pursuant to the foregoing
paragraph (a), Schedule II may be amended as follows:
(i) Schedule II will be amended to add Subsidiaries of the
Company as additional Foreign Subsidiary Borrowers upon (A) execution and
delivery by the Company, any such Foreign Subsidiary Borrower and the
Administrative Agent, of a Joinder Agreement providing for any such
Subsidiary to become a Foreign Subsidiary Borrower, and (B) delivery to the
Administrative Agent of (I) a Foreign Subsidiary Opinion in respect of such
additional Foreign Subsidiary Borrower and the documents required pursuant
to Section 7.01(g) and Sections 7.02(a) and (b) and (II) such other
documents with respect thereto as the Administrative Agent shall reasonably
request.
(ii) Schedule II will be amended to remove any Subsidiary as a
Foreign Subsidiary Borrower upon (A) written notice by the Company to the
Administrative Agent to such effect and (B) repayment in full of all
outstanding Loans of such Foreign Subsidiary Borrower.
(c) In addition to amendments effected pursuant to the foregoing
paragraphs (a) and (b), the Security Documents, Subsidiary Guarantees and Trust
Agreements may be amended, or amended and restated, by the Administrative Agent
and each Loan Party and Trustee which is a party to such documents, to provide,
in connection with the incurrence of Permitted Acquisition Debt, for such
Permitted Acquisition Debt to be secured equally and ratably pursuant to the
Security Documents by the Collateral securing the Loans, and guaranteed on a
pari passu basis with the Loans pursuant to the Subsidiary Guarantees. The
- - ---- -----
Administrative Agent may also
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enter into additional Security Documents and/or guarantees and/or amendments to
the Trust Agreements to provide for any additional Collateral or guarantees
relating to any Permitted Acquisition Debt to apply to the Loans on an equal and
ratable and pari passu basis. No such amendment, amendment and restatement,
---- -----
additional Security Document or guarantees shall require the consent of any
Lender.
(d) The Administrative Agent shall give prompt notice to each Lender
of any amendment effected pursuant to Section 13.01(b) or 13.01(c).
SECTION XIII.2 Notices. All notices, requests and demands to or upon
-------
the respective parties hereto to be effective shall be in writing (including by
facsimile transmission) and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made when delivered by hand, or three days
after being deposited in the mail, postage prepaid (or, if later, the first
Business Day after being so deposited), or, in the case of telecopy notice, when
received (or if received on a day that is not a Business Day or if received
after 5:00 p.m. local time at the place of reception on a Business Day, on the
next succeeding Business Day), addressed as follows in the case of the Borrowers
and the Administrative Agent, and as set forth in Schedule I in the case of the
other parties hereto, or to such other address as may be hereafter notified by
the respective parties hereto and any future holders of the Notes:
The Company: Federal-Mogul Corporation
World Headquarters
26555 Northwestern Highway
Southfield, Michigan 48034
Attention: James Keller
Telephone: 248-354-7700
Telecopy: 248-354-6746
The Foreign
Subsidiary Borrowers: c/o Federal-Mogul Corporation
World Headquarters
26555 Northwestern Highway
Southfield, Michigan 48034
Attention: James Keller
Telephone: 248-354-7700
Telecopy: 248-354-6746
The Administrative Agent
(New York Office): The Chase Manhattan Bank
One Chase Manhattan Plaza
8th Floor
New York, New York 10081
Attention: James Tabois
Telephone: 212-552-7952
Telecopy: 212-552-5650
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The Administrative Agent
(London Office): Chase Manhattan International Ltd.
9 Thomas Moore Street
London, E1 (YT)
Attention: Steven Hurford
Telephone: 011-44-171-777-2347
Telecopy: 011-44-171-777-2367
provided that any notice, request or demand to or upon (i) the Administrative
- - --------
Agent or the Lenders pursuant to Section 2.03, 3.03, 4.02, 5.02, 5.04, 5.07 or
5.11 or (ii) the Swing Line Lender pursuant to Sections 2.05, 2.06, 2.07, 2.08
or 2.09, shall not be effective until received. All notices to the
Administrative Agent in respect of Multicurrency Revolving Credit Loans shall be
delivered to the Administrative Agent's London Office specified above.
SECTION XIII.3 No Waiver; Cumulative Remedies. No failure to
------------------------------
exercise and no delay in exercising, on the part of any Borrower, the
Administrative Agent or any Lender, any right, remedy, power or privilege
hereunder or under the other Loan Documents shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
SECTION XIII.4 Survival of Representations and Warranties. All
------------------------------------------
representations and warranties made hereunder, in the other Loan Documents and
in any certificate delivered pursuant hereto or in connection herewith shall
survive the execution and delivery of this Agreement and the Notes and the
making of the Loans hereunder.
SECTION XIII.5 Payment of Expenses and Taxes. The Company agrees (a)
-----------------------------
to pay or reimburse the Administrative Agent for all of its reasonable out-of-
pocket costs and expenses incurred in connection with the development,
preparation, execution and delivery of, and any amendment, supplement or
modification to, this Agreement and the other Loan Documents and any other
documents prepared in connection herewith or therewith, and the consummation and
administration of the transactions contemplated hereby, including, without
limitation, the reasonable fees and disbursements of counsel (and any special or
local counsel retained by such counsel to assist it) to the Administrative
Agent, (b) to pay or reimburse each Lender and the Administrative Agent for all
its costs and expenses incurred in connection with the enforcement or
preservation of any rights under this Agreement, the other Loan Documents and
any such other documents, (c) to pay, indemnify, and hold each Lender and the
Administrative Agent harmless from, any and all recording and filing fees and
any and all liabilities with respect to, or resulting from any delay in paying,
stamp, excise and other similar taxes, if any, which may be payable or
determined to be payable in connection with the execution and delivery of, or
consummation or administration of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or consent under or
in respect of, this Agreement, the other Loan Documents and any such other
documents, and (d) to pay,
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indemnify, and hold each Lender and the Administrative Agent (and their
respective directors, officers, employees, trustees, agents, affiliates and
successors) harmless from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of this
Agreement, the other Loan Documents and any such other documents, including,
without limitation, any of the foregoing relating to the use of proceeds of the
Loans or the violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of the Company, any of its
Subsidiaries or any of the Properties (regardless of whether the Administrative
Agent or any Lender is a party to the litigation or other proceeding giving rise
thereto), (all the foregoing in this clause (d), collectively, the "indemnified
liabilities"), provided, that the Company shall have no obligation hereunder to
--------
the Administrative Agent or any Lender with respect to (i) indemnified
liabilities arising from the gross negligence or willful misconduct of the party
seeking indemnification or (ii) expenses incurred by the Administrative Agent or
any Lender in connection with the assignment of Loans to an assignee (except
pursuant to Section 5.14(b)(vi)) or the sale of any Loan to a Participant. The
agreements in this Section shall survive repayment of the Loans and all other
amounts payable hereunder.
SECTION XIII.6 Successors and Assigns; Participations and
------------------------------------------
Assignments. (a) This Agreement shall be binding upon and inure to the benefit
- - ------------
of the Borrowers, the Lenders, the Administrative Agent, all future holders of
the Loans and their respective successors and assigns, except that no Borrower
may assign or transfer any of its rights or obligations under this Agreement
without the prior written consent of each Lender.
(b) Any Lender may, in accordance with applicable law, at any time
sell to one or more banks or other entities ("Participants") participating
interests in any Loan owing to such Lender, any Commitment of such Lender or any
other interest of such Lender hereunder and under the other Loan Documents. In
the event of any such sale by a Lender of a participating interest to a
Participant, such Lender's obligations under this Agreement to the other parties
to this Agreement shall remain unchanged, such Lender shall remain solely
responsible for the performance thereof, such Lender shall remain the holder of
any such Loan for all purposes under this Agreement and the other Loan
Documents, and the Borrowers and the Administrative Agent shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Loan Documents. No Lender shall
be entitled to create in favor of any Participant, in the participation
agreement pursuant to which the Participant's participating interest shall be
created or otherwise, any right to vote on, consent to or approve any matter
relating to this Agreement or any other Loan Document except for those specified
in clauses (A) and (B) of the proviso to Section 13.01(a). Each Borrower agrees
that if amounts outstanding under this Agreement are due or unpaid, or shall
have been declared or shall have become due and payable upon the occurrence of
an Event of Default, each Participant shall be deemed to have, to the maximum
extent permitted by law, the right of setoff in respect of its participating
interest in amounts owing under this Agreement to the same extent as if the
amount of its participating interest were owing directly to it as a Lender under
this Agreement; provided that, in purchasing such participating interest, such
--------
Participant shall be
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deemed to have agreed to share with the Lenders the proceeds thereof as provided
in Section 13.07(a) as fully as if it were a Lender hereunder. Each Borrower
agrees that each Participant shall be entitled to the benefits of Sections 5.09,
5.10, 5.11 and 5.12 with respect to its participation in the Commitments and the
Loans outstanding from time to time hereunder as if it was a Lender; provided
that, in the case of Section 5.11, such Participant shall have complied with the
requirements of said Section and provided, further, that no Participant shall be
-------- -------
entitled to receive any greater amount pursuant to any such Section than the
transferor Lender would have been entitled to receive in respect of the amount
of the participation transferred by such transferor Lender to such Participant
had no such transfer occurred.
(c) Any Lender may, in accordance with applicable law, at any time
and from time to time assign to any Lender or any Affiliate thereof or, with the
prior written consent of the Administrative Agent (such consent not to be
unreasonably withheld) and, prior to the occurrence and continuance of an Event
of Default, the Company (such consent not to be unreasonably withheld), to an
additional bank or financial institution or other entity that is regularly
engaged in making or purchasing loans (an "Assignee") all or any part of its
rights and obligations under this Agreement and the other Loan Documents
including, without limitation, its Commitments and Loans, pursuant to an
Assignment and Acceptance, substantially in the form of Exhibit G, executed by
such Assignee, such assigning Lender (and, in the case of an Assignee that is
not then a Lender or an Affiliate thereof, by the Administrative Agent and,
prior to the occurrence and continuance of an Event of Default, the Company) and
delivered to the Administrative Agent for their acceptance and recording in the
Register; provided that (i) if any Lender assigns a part of its rights and
--------
obligations in respect of Loans of a Class and/or Commitment to make Loans of
such Class under this Agreement to an Assignee, such Lender shall assign
proportionate interests in its respective Loans of such Class and Commitment to
make Loans of such Class and other related rights and obligations hereunder to
such Assignee, (ii) if any Lender assigns a part of its rights and obligations
under this Agreement in respect of its US$Revolving Credit Loans and/or US$
Revolving Credit Commitments to an Assignee, such Lender shall assign
proportionate interests in its participations in the Swing Line Loans and other
rights and obligations hereunder in respect of the Swing Line Loans to such
Assignee , (iii) if any Lender assigns a part of its rights and obligations
under this Agreement in respect of its Multicurrency Revolving Credit Loans
and/or Multicurrency Revolving Credit Commitments to an Assignee, such Lender
shall assign proportionate interests in its Additional US$ Revolving Credit
Loans and Additional US$ Revolving Credit Commitments, if any, and (iv) in the
case of any such assignment to an additional bank, financial institution or
other entity, the aggregate amount of any Commitment (or, if the Commitments
have terminated or expired, the aggregate principal amount of any Loans) being
assigned shall not be less than $5,000,000 (or (x) if less, the then outstanding
amount of such Commitments and/or Loans or (y) such lesser amount as may be
agreed by the Company and the Administrative Agent). Upon such execution,
delivery, acceptance and recording, from and after the Closing Date determined
pursuant to such Assignment and Acceptance, (I) the Assignee thereunder shall be
a party hereto and, to the extent provided in such Assignment and Acceptance,
have the rights and obligations of a Lender hereunder with Commitments and
rights in respect of Loans as set forth therein, and (II) the assigning Lender
thereunder shall be released from its obligations under this Agreement to the
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extent that such obligations shall have been expressly assumed by the Assignee
pursuant to such Assignment and Acceptance (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 assigning Lender shall cease
to be a party hereto).
(d) The Administrative Agent, on behalf of the Borrowers, shall
maintain at its address referred to in Section 13.02 a copy of each Assignment
and Acceptance delivered to it and a register (the "Register") for the
recordation of (i) the names and addresses of the Lenders and the Commitments
of, and principal amounts of the Loans owing to, each Lender from time to time
and (ii) the other information required from time to time pursuant to Section
2.05 in respect of Swing Line Loans. The entries in the Register shall
constitute prima facie evidence of the information recorded therein, and the
Borrowers, the Administrative Agent and the Lenders may (and, in the case of any
Loan or other obligation hereunder not evidenced by a Note, shall) treat each
Person whose name is recorded in the Register as the owner of a Loan or other
obligation hereunder as the owner thereof for all purposes of this Agreement and
the other Loan Documents, notwithstanding any notice to the contrary. Any
assignment of any Loan or other obligation hereunder whether or not evidenced by
a Note shall be effective only upon appropriate entries with respect thereto
being made in the Register. An assignment of a Note shall be registered in the
Register only upon surrender for registration of assignment of the Note,
accompanied by an Assignment and Acceptance duly executed by the Assignor
thereof, and thereupon one or more new Notes shall be issued to the designated
Assignee and the old Notes shall be returned by the Administrative Agent to the
Company marked "cancelled". The Register shall be available for inspection by
the Borrowers or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee (and, in the case of an Assignee that is not
then a Lender or an Affiliate thereof, executed by the Company and the
Administrative Agent), together with payment to the Administrative Agent by the
Lender or the Assignee of a registration and processing fee of $2,500, the
Administrative Agent shall (i) promptly accept such Assignment and Acceptance
and (ii) on the Closing Date determined pursuant thereto record the information
contained therein in the Register and give prompt notice of such acceptance and
recordation to the Lenders and the Borrowers.
(f) Subject to Section 13.18, each Borrower authorizes each Lender to
disclose to any Participant or Assignee (each, a "Transferee") and any
prospective Transferee any and all financial information in such Lender's
possession concerning such Borrower and its Affiliates which has been delivered
to such Lender by or on behalf of such Borrower pursuant to this Agreement or
which has been delivered to such Lender by or on behalf of such Borrower in
connection with such Lender's credit evaluation of such Borrower and its
Affiliates prior to becoming a party to this Agreement.
(g) For avoidance of doubt, the parties to this Agreement acknowledge
that the provisions of this Section concerning assignments of Loans and Notes
relate only to absolute
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assignments and that such provisions do not prohibit assignments creating
security interests, including, without limitation, any pledge or assignment by a
Lender of any Loan or Note to any Federal Reserve Bank in accordance with
applicable law.
(h) If, pursuant to this Section, any interest in this Agreement or
any Loan is transferred to any Transferee (which is not a Lender) which is
organized under the laws of any jurisdiction other than the United States or any
state thereof, the transferor Lender shall cause such Transferee, concurrently
with the effectiveness of such transfer, to agree (for the benefit of the
transferor Lender, the Administrative Agent and the Company) to provide the
transferor Lender (and, in the case of any Transferee registered in the
Register, the Administrative Agent and the Company) the tax forms and other
documents required to be delivered pursuant to Section 5.11(b) and to comply
from time to time with all applicable U.S. laws and regulations with regard to
such withholding tax exemption.
(i) If, pursuant to this Section, any interest in this Agreement or
any Loan is transferred to any Transferee, the transferor Lender shall cause
such Transferee, concurrently with the effectiveness of such transfer, to agree
(for the benefit of the transferor Lender, the Administrative Agent and the
Foreign Subsidiary Borrowers) to provide the transferor Lender, the
Administrative Agent and the Foreign Subsidiary Borrowers the tax forms and
other documents required to be delivered pursuant to Section 5.11(c) and to
comply from time to time with all applicable laws and regulations with regard to
such withholding tax exemption.
SECTION XIII.7 Adjustments; Set-Off-. (a) If any Lender (a
---------------------
"Benefitted Lender") shall at any time receive any payment of all or part of its
Loans then due and owing to it by any Borrower, or interest thereon, or receive
any collateral in respect thereof (whether voluntarily or involuntarily, by set-
off, pursuant to events or proceedings of the nature referred to in paragraph
(f) of Article XI, or otherwise), in a greater proportion than any such payment
to or collateral received by any other Lender, if any, in respect of such other
Lender's Loans then due and owing to it by such Borrower, or interest thereon,
such Benefitted Lender shall purchase for cash from the other Lenders a
participating interest in such portion of each such other Lender's Loans owing
to it by such Borrower, or shall provide such other Lenders with the benefits of
any such collateral, or the proceeds thereof, as shall be necessary to cause
such Benefitted Lender to share the excess payment or benefits of such
collateral or proceeds ratably with each of the Lenders; provided, however, that
-------- -------
if all or any portion of such excess payment or benefits is thereafter recovered
from such benefitted Lender, such purchase shall be rescinded, and the purchase
price and benefits returned, to the extent of such recovery, but without
interest.
(b) In addition to any rights and remedies of the Lenders provided by
law, each Lender shall have the right, without prior notice to any Borrower, any
such notice being expressly waived by the Borrowers to the extent permitted by
applicable law, upon any amount becoming due and payable hereunder (whether at
the stated maturity thereof, by acceleration or otherwise) to set-off and
appropriate and apply against such amount any and all deposits (general or
special, time or demand, provisional or final), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or
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contingent, matured or unmatured, at any time held or owing by such Lender or
any branch, agency or Affiliate thereof to or for the credit or the account of
any Borrower. Each Lender agrees promptly to notify the Borrowers and the
Administrative Agent 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.
SECTION XIII.8 Counterparts. This Agreement may be executed by one
------------
or more of the parties to this Agreement on any number of separate counterparts
(including by facsimile transmission), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. A set of
the copies of this Agreement signed by all the parties shall be delivered to the
Borrowers and the Administrative Agent.
SECTION XIII.9 Severability. Any provision of this Agreement which
------------
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
SECTION XIII.10 Integration. This Agreement and the other Loan
-----------
Documents represent the agreement of the Borrowers, the Administrative Agent and
the Lenders with respect to the subject matter hereof, and there are no
promises, undertakings, representations or warranties by the Borrowers, the
Administrative Agent or any Lender relative to the subject matter hereof not
expressly set forth or referred to herein or in the other Loan Documents.
SECTION XIII.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
-------------
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SECTION XIII.12 Submission To Jurisdiction; Waivers. (a) The
-----------------------------------
Company and each Foreign Subsidiary Borrower hereby irrevocably and
unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which
it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the Courts of
the State of New York, the courts of the United States of America for the
Southern District of New York, and appellate courts from any thereof;
(ii) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter have
to the venue of any such action or proceeding in any such court or that
such action or proceeding was brought in an inconvenient court and agrees
not to plead or claim the same;
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(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Company or such Foreign Subsidiary Borrower, as the case
may be, at the address specified in Section 13.02, or at such other address
of which the Administrative Agent shall have been notified pursuant
thereto;
(iv) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to sue in any other jurisdiction; and
(v) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this Section any special, exemplary, punitive or
consequential damages.
(b) Each Foreign Subsidiary Borrower hereby irrevocably appoints the
Company as its agent for service of process in any proceeding referred to in
Section 13.12(a) and agrees that service of process in any such proceeding may
be made by mailing or delivering a copy thereof to it care of Company at its
address for notices set forth in Section 13.02.
SECTION XIII.13 Acknowledgements. Each Borrower hereby acknowledges
----------------
that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) none of the Administrative Agent or any Lender has any fiduciary
relationship with or duty to such Borrower arising out of or in connection
with this Agreement or any of the other Loan Documents, and the
relationship between the Administrative Agents and the Lenders, on the one
hand, and the Borrowers, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan Documents
or otherwise exists by virtue of the transactions contemplated hereby among
the Lenders or among the Borrowers and the Lenders.
SECTION XIII.14 WAIVERS OF JURY TRIAL. THE BORROWERS, THE
---------------------
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
SECTION XIII.15 Power of Attorney. Each Foreign Subsidiary
-------------------
Borrower hereby grants to the Company an irrevocable power of attorney to act as
its attorney-in-fact with regard to matters relating to this Agreement and each
other Loan Document, including, without
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limitation, execution and delivery of any amendments, supplements, waivers or
other modifications hereto or thereto, receipt of any notices hereunder or
thereunder and receipt of service of process in connection herewith or
therewith. Each Foreign Subsidiary Borrower hereby explicitly acknowledges that
each of the Administrative Agent and each Lender has executed and delivered this
Agreement and each other Loan Document to which it is a party, and has performed
its obligations under this Agreement and each other Loan Document to which it is
a party, in reliance upon the irrevocable grant of such power of attorney
pursuant to this Section. The power of attorney granted by each Foreign
Subsidiary Borrower hereunder is coupled with an interest.
SECTION XIII.16 Release of Collateral. As promptly as practicable
---------------------
after the Collateral Release Date, the Administrative Agent shall, and shall
instruct the Trustee to, take all necessary action to release the Liens created
by the Security Documents in all Collateral.
SECTION XIII.17 Judgment. (a) If for the purpose of obtaining
--------
judgment in any court it is necessary to convert a sum due hereunder in one
currency into another currency, the parties hereto agree, to the fullest extent
that they may effectively do so, that the rate of exchange used shall be that at
which in accordance with normal banking procedures the Administrative Agent
could purchase the first currency with such other currency in the city in which
it normally conducts its foreign exchange operation for the first currency on
the Business Day preceding the day on which final judgment is given.
(b) The obligation of each Borrower in respect of any sum due from it
to any Lender hereunder shall, notwithstanding any judgment in a currency (the
"Judgment Currency") other than that in which such sum is denominated in
- - ------------------
accordance with the applicable provisions of this Agreement (the "Agreement
---------
Currency"), be discharged only to the extent that on the Business Day following
- - --------
receipt by such Lender of any sum adjudged to be so due in the Judgment Currency
such Lender may in accordance with normal banking procedures purchase the
Agreement Currency with the Judgment Currency; if the amount of Agreement
Currency so purchased is less than the sum originally due to such Lender in the
Agreement Currency, such Borrower agrees notwithstanding any such judgment to
indemnify such Lender against such loss, and if the amount of the Agreement
Currency so purchased exceeds the sum originally due to any Lender, such Lender
agrees to remit to such Borrower such excess.
SECTION XIII.18 Confidentiality. Each Lender agrees to keep
---------------
confidential any written information (a) provided to it by or on behalf of the
Company or any of its Subsidiaries pursuant to or in connection with this
Agreement or (b) obtained by such Lender based on a review of the books and
records of the Company or any of its Subsidiaries; provided that nothing herein
shall prevent any Lender from disclosing any such information (i) to the
Administrative Agent or any other Lender, (ii) to any Transferee or prospective
Transferee which agrees to comply with the provisions of this Section, (iii) to
its employees, directors, agents, attorneys, accountants and other professional
advisors, or to any direct or indirect contractual counterparties in swap
agreements or such contractual counterparties' professional advisors provided
that such contractual counterparty or professional advisor to such contractual
agrees in writing to keep such information confidential to the same extent
required of the Lenders hereunder, (iv) upon the
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request or demand of any Governmental Authority (or the National Association of
Insurance Commissioners) having jurisdiction over such Lender or as shall be
required pursuant to any Requirement of Law, (v) in response to any order of any
court or other Governmental Authority (or the National Association of Insurance
Commissioners) or as may otherwise be required pursuant to any Requirement of
Law, (vi) in connection with any litigation to which such Lender is a party,
(vii) which has been publicly disclosed other than in breach of this Agreement,
or (viii) to the extent reasonably necessary, in connection with the exercise of
any remedy hereunder.
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ANNEX A
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PRICING GRID/1/
-
Applicable Margin
for Multicurrency
Revolving Credit
Loans and Applicable Margin
Revolving Credit for Revolving Applicable Margin Applicable Margin
Consolidated Loans which are Credit Loans which for Tranche A Term for Tranche A Term
Leverage Eurodollar are Loans which are Loans which are Facility
Ratio Loans Base Rate Loans Eurodollar Loans Base Rate Loans Fee Rate
----- ----- --------------- ---------------- --------------- --------
less than and equal to 4.0 to 1 137.5 37.5 175 75 37.5
- - ----------------------------------------------------------------------------------------------------------------------------------
greater than 4.0 to 1 117.5 17.5 150 50 32.5
- - ----------------------------------------------------------------------------------------------------------------------------------
greater than 3.5 to 1 95 0 125 25 30
- - ----------------------------------------------------------------------------------------------------------------------------------
greater than 3.0 to 1 75 0 100 0 25
- - ----------------------------------------------------------------------------------------------------------------------------------
Changes in the Applicable Margin and Facility Fee Rate resulting from changes in
the Consolidated Leverage Ratio shall become effective on the date (the
"Adjustment Date") on which financial statements are delivered to the Lenders
- - ----------------
pursuant to Section 8.01 (but in any event not later than the 60th day after the
end of each of the first three quarterly periods of each fiscal year or the
120th day after the end of each fiscal year, as the case may be) and shall
remain in effect until the next change to be effected pursuant to this
paragraph. Each determination of the Consolidated Leverage Ratio pursuant to
this definition shall be made with respect to the period of four consecutive
fiscal quarters of the Company ending at the end of the period covered by the
relevant financial statements.
_________________________
/1/ Applicable Margins and Facility Fee expressed in basis points.
SCHEDULE I
----------
COMMITMENTS; ADDRESSES
Part A. Revolving Credit Commitment and Multicurrency Revolving Credit
Commitment Amounts (Dollars)
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LENDER REVOLVING CREDIT COMMITMENT MULTICURRENCY REVOLVING CREDIT COMMITMENT
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The Chase Manhattan Bank $ $
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TOTAL $1,000,000,000 $______________
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PART B. TERM LOAN COMMITMENTS
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LENDER TRANCHE A TRANCHE B
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The Chase Manhattan Bank $ $
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TOTAL $400,000,000 $350,000,0000
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SCHEDULE 6.20
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PERFECTION ACTIONS
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1. Capital Stock of Domestic Subsidiaries:
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The certificates representing the shares of Capital Stock of issuers
organized under the laws of a State of the United States shall be delivered to
the Administrative Agent along with an undated stock power for each such
certificate executed in blank by a duly authorized officer of the pledgor
thereof.
2. Capital Stock of Foreign Subsidiaries:
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The customary steps for perfection of a pledge of stock of an issuer
organized under the laws of a jurisdiction outside the United States, as advised
by counsel qualified in such jurisdiction, shall be taken.
3. Pledged Notes:
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The promissory notes shall be delivered to the Administrative Agent
along with an undated note allonge for each such note executed in blank by a
duly authorized officer of the pledgor thereof.
SCHEDULE 9.08
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EXCLUDED ASSETS
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Federal-Mogul World Trade Chile Ltda.
Federal-Mogul del Ecuador, S.A.
Federal-Mogul Panama S.A.
Federal-Mogul Puerto Rico Inc,
Federal-Mogul World Trade Inc.
Federal-Mogul de Venezuela C.A.
La Font Repuestos C.A.
Bertolotti Pietro c Figli, S.r.l,
The chemicals division of the businesses acquired in connection, with the Fel-
Pro Acquisition
FEDER-MOGUL CORPORATION
By: /s/ David E. Bozynski
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Title: Vice President & Treasurer
THE CHASE MANHATTAN BANK,
as Administrative Agent and Lender
By: /s/ Andris G. Kalnins
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Title: Vice President