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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
(Mark One)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR
15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the Fiscal Year Ended January 2, 2000
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR
15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from to .
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Commission File Number: 333-49821
MSX INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 38-3323099
(State or other jurisdiction (I.R.S. Employer Identification No.
of incorporation or organization)
275 REX BOULEVARD, AUBURN HILLS, MICHIGAN 48326
(Address of principal executive offices (Zip Code)
(248) 299-1000
(Registrant's telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities and Exchange Act of 1934
during the preceding 12 months (or for such shorter period that the registrant
was required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes [X] No[ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to
this Form 10-K. [X]
None of the registrant's common stock is held by non-affiliates of the
registrant.
Number of shares outstanding of each of the registrant's classes of common
stock at March 24, 2000:
102,003 shares of Class A Common Stock, $0.01 par value.
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<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
ITEM PAGE
- ---- ----
<S> <C>
PART I
1. Business...........................................................................................2
2. Properties.........................................................................................7
3. Legal Proceedings..................................................................................7
4. Submission of Matters to a Vote of Security Holders................................................7
PART II
5. Market for Registrant's Common Equity and Related Stockholder Matters..............................8
6. Selected Financial Data............................................................................9
7. Management's Discussion and Analysis of Financial Condition and Results of Operations.............10
7A. Quantitative and Qualitative Disclosures about Market Risk........................................16
8. Financial Statements and Supplementary Data.......................................................17
9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure.............n/a
PART III
10. Directors and Executive Officers of the Registrant................................................46
11. Executive Compensation............................................................................48
12. Security Ownership of Certain Beneficial Owners and Management....................................50
13. Certain Relationships and Related Transactions....................................................51
PART IV
14. Exhibits, Financial Statement Schedules, and Reports on Form 8-K..................................53
Signatures........................................................................................55
</TABLE>
1
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PART I
ITEM 1. BUSINESS.
GENERAL
MSX International, Inc. ("MSXI") is a leading, global provider of
technology-driven engineering, business and specialized staffing services. Our
services enable customers to significantly improve their business performance by
adding value and helping them achieve a competitive advantage. Through internal
growth and acquisitions, we have become a single source provider of a broad
range of complementary outsourcing services provided at both our facilities and
those of our customers. Our services include technical and professional contract
staffing; product design and engineering services; production engineering
services; commercial and technical publishing; training services; digital
document and information storage and retrieval; web development and management
services; process improvement consulting; comprehensive marketing information
processing; teleservices; and purchasing support services, which include
processes to manage the procurement of staffing, training and other professional
services.
Since our formation, we have expanded through acquisitions and internal
growth, increasing our market share among existing customers and the global
automotive market and expanding further into non-automotive markets. As of
January 2, 2000, we deployed over 17,000 individuals at 85 operating facilities
in 23 countries.
FORMATION AND INITIAL ACQUISITIONS
MSXI is a holding company formed and owned by Citicorp Venture Capital,
Ltd., MascoTech, Inc., and certain members of management. MSXI was incorporated
under the laws of Delaware in late 1996 to pursue growth opportunities in
technology-driven engineering and business services. On January 3, 1997, we
acquired (the "TSG Acquisition") selected assets and operations of the former
engineering and technical business service units of MascoTech Automotive Systems
Group, Inc. ("MASG") and MascoTech, Inc. ("MascoTech"). Through the consummation
of the TSG Acquisition, we also acquired (the "APX Acquisition") the net assets
of APX International ("APX"), which previously had been acquired by MASG as of
November 6, 1996.
Effective August 31, 1997, we acquired (the "GRI Acquisition") all of
the issued and outstanding stock of Geometric Results Incorporated ("GRI") from
Ford Motor Company ("Ford"). In connection with this acquisition, we entered
into two five-year agreements with Ford to manage certain temporary staffing
procurement services for Ford (the "Ford Master Vendor Agreement") and to
continue providing certain general business services (the "Ford Master Supply
Agreement").
By adding GRI's capabilities to our traditional strength in technical
staffing and design and engineering services, we expanded our ability to sell a
broad range of complementary services to both existing and new customers within
and outside the automotive industry. We believe we are the only company
currently providing such a broad range of services to the automotive industry on
a worldwide basis.
ADDITIONAL ACQUISITIONS
Since the GRI Acquisition, we have completed a number of strategic
acquisitions and acquired two equity interests to expand our resources and
service offerings. These transactions have expanded our geographic coverage, our
service offerings, and our reach to customers outside the automotive industry.
As we pursue additional strategic acquisitions, we intend to continue to
rationalize our cost structure through the elimination of redundant back office
activities, operating facilities, management and administrative offices.
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The following table sets forth certain information about the businesses
acquired since January 1998. For additional information on acquisitions,
including pro forma financial results, see Note 3 to our consolidated financial
statements included under Item 8 of this report.
<TABLE>
<CAPTION>
MONTH GEOGRAPHIC NUMBER OF
NAME ACQUIRED SERVICES COVERAGE MARKETS SITES
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Gold Arrow Contract Services, August Information United Kingdom, Automotive, financial 2
Ltd. 1998 technology and Northern Europe services and other
technical commercial markets
staffing
Lexstra International, Inc. October Information Mid-Atlantic Financial services and 4
1998 technology Region other commercial
staffing markets
Lexus Temporaries, Inc. October Network support Mid-Atlantic Telecommunications 4
1998 staffing Region
Pilot Computer Services, Inc. December Information California Government, health care 3
1998 technology and other commercial
staffing markets
MegaTech Engineering, Inc. December Technical Michigan Automotive original 1
1998 staffing and equipment
product manufacturers and
development suppliers
services
Rice Cohen International, Inc. April Permanent Mid-Atlantic Selected services 1
1999 staff Region markets
placement
Management Resources June Training Midwest Quality systems 1
International, Inc. 1999 services and
courseware in
quality systems
Chelsea Computer Consultants, September Information Mid-Atlantic Financial services, 4
Inc. 1999 technology Region telecommunications and
staffing manufacturing
Satiz S.r.l. December Commercial and Italy, Other Automotive and 15
1999 technical Europe, Brazil original equipment
publishing manufacturers and
suppliers
Intranational Computer February Information California Financial services and 4
Consultants 2000 technology non-automotive
consulting manufacturing
services
Programming Management & Systems February Information Missouri Financial services, 1
2000 technology telecommunications and
consulting non-automotive
services manufacturing
CMS Management Services February Information Mid-West Region Services and 5
2000 technology, non-automotive
accounting and manufacturing
technical
staffing
Ascend February Information Mid-West Region Financial and other 8
2000 technology services markets
staffing and
permanent
placement
- ------------------------------------------------------------------------------------------------------------------------------
</TABLE>
EQUITY INVESTMENTS
In addition to the above, during 1999 we acquired a 49% interest in
Cadform GmbH and a 30% interest in both Quandoccore S.r.l. and Quandoccore
Interinale S.p.A. Cadform is based in Homberg (Ohm), Germany and provides design
and tooling services to the automotive industry. The Quandoccore companies are
based in Turin, Italy and provide consulting and staffing services to various
industries. Quandoccore Interinale S.p.A. is one of a limited number of
companies licensed under recent Italian legislation to provide staffing
services.
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SERVICES LINES
MSXI is a leading, global provider of technology driven, engineering,
business and specialized staffing services. We offer a broad range of services
to meet our customers' needs and quality standards. We classify our services in
three categories: engineering services, staffing services, and business and
technology services. Our net sales are based principally on fees charged for
resources provided to support development, manufacturing and distribution of
customer products and services. Our customers are increasingly relying on third
parties to provide them with these and other essential services, allowing them
to improve operating efficiency by focusing on core competencies. The following
table sets forth, for the three fiscal years ended January 2, 2000, the net
sales of each of our service lines.
<TABLE>
<CAPTION>
FISCAL YEAR ENDED
---------------------------------------------------
DECEMBER 28, JANUARY 3, JANUARY 2,
1997 1999 2000
---------------- -------------- -------------
(IN THOUSANDS)
<S> <C> <C> <C>
Engineering Services $ 202,078 $ 220,639 $ 293,510
Staffing Services 111,211 155,627 308,489
Business & Technology Services 64,725 157,676 157,843
---------------- -------------- -------------
Total net sales $ 378,014 $ 533,942 $ 759,842
================ ============== =============
</TABLE>
We have sales to more than 150 customers including the major United
States and European automotive original equipment manufacturers ("OEMs") and a
number of automotive suppliers. Ford, DaimlerChrysler Corporation
("DaimlerChrysler") and General Motors Corporation ("General Motors") accounted
for 42.6%, 15.2%, and 13.5% of our net sales for the fiscal year ended January
2, 2000. Sales for the three fiscal years ended January 2, 2000 do not include
revenues of Satiz S.r.l., which was acquired effective December 31, 1999 from
Fiat S.p.A. For its 1999 fiscal year about 92% of Satiz's sales were to Fiat
S.p.A. or related companies.
Engineering Services
We provide a complete range of vehicle engineering services covering
all phases of the product development cycle. These services, which are primarily
provided at our own facilities, include computer-aided design and engineering,
product and manufacturing engineering, assembly tooling, program management, and
specialty vehicle support for the marketing programs of OEMs and for
non-automotive vehicle applications. As of January 2000, about $221 million of
our engineering services sales are either "booked" or recurring based on
long-term relationships, compared to approximately $213 million in January 1999.
Staffing Services
We provide a multi-discipline information technology, technical and
professional staffing service with international delivery, recruiting and
training capability. We principally provide engineers, designers and
technicians, primarily to the automotive industry, and information technology
personnel to a variety of industries. We are a worldwide leader in automotive
technical staffing. Through internal growth and recent acquisitions, we have
also developed information technology staffing capabilities on the West Coast,
in the Midwest and Southwest, and in the mid-Atlantic states.
Business & Technology Services
We provide a broad range of technology-based business services,
including commercial and technical publishing, design and delivery of training
programs, digital document and information storage and retrieval, web
development and management services, comprehensive marketing information
processing, teleservices such as hotline and customer assistance, process
improvement implementation, purchasing support services and other services. Our
purchasing support services provide automated administrative support processes
to customers to manage the procurement of staffing, training, consulting and
other professional services. Sales from these services are reported net of
billings from sub-suppliers (including other MSXI business units) for their
services rendered.
Additional financial information concerning our geographical coverage
is set forth in Note 15 to our consolidated financial statements included under
Item 8 of this report.
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OTHER INFORMATION
We believe we have developed strong relationships with our customers
and have a reputation for quality, reliability and service that has been
recognized through Ford's Q1 and DaimlerChrysler's Pentastar awards. In
addition, most of our operations are certified to the ISO 9001 or 9002
international quality standards, which requires a determination by an
independent assessor that the operation is in compliance with a documented
quality management system.
A substantial portion of our sales to Ford were made pursuant to the
Ford Master Vendor Agreement and the Ford Master Supply Agreement, which were
entered into for five year terms when we acquired GRI in August 1997. These
agreements are subject to earlier termination in the event that we fail to
satisfy certain standards of performance and competitiveness. To date, we have
generally met or exceeded the standards of performance and competitiveness as
required by the agreements. Both Ford and MSXI have agreed to negotiate in good
faith to extend the term of the agreements for an additional five years beyond
the initial five-year terms. Ford and MSXI have also agreed to maintain an
advisory board comprised of executives from both companies to monitor and
enhance the relationship between the companies.
Our quarterly operating results are affected primarily by the number of
billing days in the period and the seasonality of our customers' businesses.
Demand for some of our services has historically been lower during the year-end
holidays.
Except as noted above, no material portion of our business is dependent
upon any one customer or is subject to renegotiation of prices. In general,
equipment and technologies required to support our service offerings are
obtainable from various sources in the quantities desired.
ENVIRONMENTAL
Compliance with foreign, federal, state and local environmental
protection laws and regulations is not expected to result in material capital
expenditures or have a material effect on our results of operations, cash flows
or competitive position.
INTERNATIONAL OPERATIONS
Our international presence is an important competitive advantage in
winning and retaining new business and meeting the global sourcing, quality and
engineering requirements of many of our customers. We currently have operations
located in 23 countries. Foreign operations are subject to political, monetary,
economic and other risks associated with international businesses. For the
fiscal year ended January 2, 2000, 27% of our net sales were generated outside
of the United States.
We expanded our UK staffing services capabilities in 1998 through the
acquisition of Gold Arrow Contract Services, Ltd. ("Gold Arrow"), an information
technology and technical staffing company headquartered in Basildon, Essex,
England. The Gold Arrow acquisition enhanced our ability to support UK customer
requirements for technical staffing in the automotive, financial services, and
other industries. Similarly, future joint engineering services projects with our
equity investee Cadform are expected to strengthen our positioning with German
automotive manufacturers and their suppliers.
We further expanded our presence in Europe during 1999 through the
acquisition of 75% of the outstanding common stock of Satiz S.r.l., effective
December 31, 1999, and our equity investments in Quandoccore S.r.l. and
Quandoccore Interinale S.p.A., in May 1999. The acquisition of Satiz is
complementary to several of our operating units and gives us a platform for
technical publishing services in Italy. Through these investments and our
existing operations, we are positioned to further expand our engineering and
staffing opportunities in Italy.
5
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COMPETITION
Our domestic and foreign markets are highly competitive. In some cases,
our global competitors include a number of other well-established vendors, as
well as customers with their own internal capabilities. Although a number of
companies of varying size compete with us, no single competitor is substantially
in competition with respect to all of our services.
We depend upon our ability to attract, retain and develop personnel,
particularly technical personnel, who possess the skills and experience
necessary to meet the needs of customers. Competition for individuals with
proven technical or professional skills is intense. We compete with other
staffing companies, as well as customers and other employers for qualified
personnel. We have always been committed to improving the professional
development of our employees. The acquisition of MegaTech Engineering, Inc.
reinforced this commitment. As part of the transaction, we acquired a training
academy that operates a degree-granting program in automotive design and
engineering in conjunction with Central Michigan University.
Competition among vendors of outsourced engineering services is based
on the types of individual and bundled services offered and by the location of
customers. The basis of competition includes the size of competing firms, global
capability, relevant experience, prior relationships with customers and price.
In the United States, we compete with Modern Engineering (a subsidiary of CDI),
Rapid Design Services, Inc., Roush Industries, Inc., and Defiance, among others.
European competition includes Bertrandt, Hawtal Whiting, Engineering & Design
AG, and Rucker.
We supply outsourced technical staffing based on our ability to
identify, match and provide high quality personnel on an efficient basis and at
a competitive price. We manage and compete with many companies in the temporary
staffing industry, which is highly competitive, fragmented, and has limited
barriers to entry. We use a variety of resources and techniques to support our
recruiting capability, including support of web-enabled recruiting databases,
internal training, international recruiting coordination, and competitive
benchmarking of compensation and benefits. Our competitors in staffing services
include Adecco International, CDI, Keane, kForce, iGate Capital, TechAid,
Manpower, Kelly Services Technical, Olsten, Randstad (in Europe only), Volt, and
numerous regional information technology staffing firms. Other indirect
competitors include Monster.com and other internet based staffing resources.
There is a high degree of competition among suppliers of the outsourced
business services we provide. In many cases, our principal competition is the
customer's in-house operations. For certain services, such as training,
marketing fulfillment and digital imaging services, there are numerous outside
competitors, many of whom presently have greater name recognition, marketing,
financial and other resources than we do. Currently, we primarily provide our
purchasing support services to Ford pursuant to the Ford Master Vendor Agreement
and Ford Master Supply Agreement, which expire in 2002. Both Ford and MSXI have
agreed to negotiate in good faith to extend our agreements beyond this initial
term. Our Ford business remains subject to maintaining standards of performance
and competitiveness.
PATENTS AND TRADEMARKS
We hold a number of United States and foreign patents, licenses,
copyrights, tradenames and trademarks. Although we regard our intellectual
property to be valuable, we do not believe that there is any reasonable
likelihood of the loss of any rights that would have a material effect on our
operating units, services or present business as a whole.
6
<PAGE> 8
EMPLOYEES
The following table sets forth certain information regarding our
employees by region as of January 2, 2000:
<TABLE>
<CAPTION>
NUMBER OF
REGION EMPLOYEES
------ ---------
<S> <C>
North America............................... 7,050
United Kingdom.............................. 1,249
Italy....................................... 588
Germany..................................... 299
Rest of Europe ............................. 276
Other ...................................... 132
----------------
Total ................................ 9,594
================
</TABLE>
Of our 9,594 employees, about 190 employees in the United States are
members of unions. We believe our current relations with our employees are good.
ITEM 2. PROPERTIES.
The following table sets forth the number of facilities operated by
region as of January 2, 2000. We believe that substantially all of our property
and equipment is in good condition and that we have sufficient capacity to meet
our current and projected operating needs. Our facilities are utilized to
provide all or any combination of our service offerings.
<TABLE>
<CAPTION>
NUMBER OF
REGION FACILITIES
------ ----------
<S> <C>
North America............................... 47
United Kingdom.............................. 8
Italy....................................... 15
Germany..................................... 6
Rest of Europe ............................. 6
Other ...................................... 3
------------
Total ................................ 85
============
</TABLE>
As part of the MegaTech acquisition, we acquired a campus of five
buildings located in Warren, Michigan. During 1999, we completed a
sale-leaseback transaction related to this property. The proceeds were used to
satisfy a contractual obligation to Johnson Controls, Inc., from whom we
purchased MegaTech. Additional financial information regarding this obligation
is set forth in Note 3 and Note 5 to our consolidated financial statements
included under Item 8 of this report.
All but one of our facilities are leased. We believe that the
termination of any one lease would not have a material adverse affect on our
business.
ITEM 3. LEGAL PROCEEDINGS.
We are involved in various proceedings incidental to the ordinary
conduct of our business. We believe that none of these proceedings will have a
material adverse effect on our financial condition, results of operations or
cash flows.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
No matter was submitted to a vote of security holders during the fourth
quarter of the fiscal year covered by this report.
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PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS.
MSXI is privately owned and there is no current public trading market
for our equity securities. See "Item 12. Security Ownership of Certain
Beneficial Owners and Management". For further information related to ownership
aspects of our common stock, see the discussion under "Stockholders' Agreement"
contained under "Item 13. Certain Relationships and Related Transactions".
During 1998 and 1999, we completed offers to exchange new senior
subordinated notes that had been registered under the Securities Act of 1933 for
similar notes that had not been registered. We may not declare or pay any
dividends or other distributions with respect to any common stock or other class
or series of stock ranking junior to our Series A Preferred Stock without first
complying with restrictions specified in the Stockholders' Agreement. See Note
11 to our consolidated financial statements included under Item 8 of this
report.
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ITEM 6. SELECTED FINANCIAL DATA.
The selected historical combined financial data as of and for the years
ended December 31, 1995 and 1996 have been derived from the audited historical
combined financial statements of TSG as of and for the periods then ended. The
selected historical consolidated financial data as of and for the fiscal years
ended December 28, 1997, January 3, 1999 and January 2, 2000 have been derived
from the audited historical financial statements of MSXI, as of and for the
fiscal years then ended. The selected financial and other data should be read in
conjunction with "Management's Discussion and Analysis of Financial Condition
and Results of Operations" and the consolidated financial statements and notes
thereto included elsewhere in this Form 10-K.
<TABLE>
<CAPTION>
Year Ended December 31, Fiscal Year Ended (A)
-------------------------- ------------------------------------------
December 28, January 3, January 2,
1995 1996 1997 1999 2000
------------ ----------- ------------ ----------- -----------
(dollars in thousands)
<S> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Net sales $ 216,130 $ 228,260 $ 378,014 $ 533,942 $ 759,842
Cost of sales 178,760 192,510 327,487 449,914 653,542
----------- ----------- ----------- ----------- -----------
Gross profit 37,370 35,750 50,527 84,028 106,300
Selling, general and administrative
expenses 26,730 27,750 37,983 59,083 64,814
Amortization of goodwill and other intangibles -- -- 892 1,690 3,156
Restructuring costs -- -- 2,000 -- --
----------- ----------- ----------- ----------- -----------
Operating income 10,640 8,000 9,652 23,255 38,330
Interest expense, net 1,470 1,310 12,400 17,416 21,141
Other income (expense), net 1,070 (70) -- -- --
----------- ----------- ----------- ----------- -----------
Income (loss) before taxes 10,240 6,620 (2,748) 5,839 17,189
Income tax provision 3,820 2,800 225 3,068 6,995
----------- ----------- ----------- ----------- -----------
Net income (loss) $ 6,420 $ 3,820 $ (2,973) $ 2,771 $ 10,194
=========== =========== =========== =========== ===========
BALANCE SHEET DATA (AT PERIOD END):
Cash and cash equivalents $ 1,800 $ 7,070 $ 11,575 $ 4,248 $ 6,879
Receivables, net 60,190 58,860 178,938 208,451 305,473
Total assets 87,480 94,150 287,176 356,724 524,190
Total debt and capital lease
obligations 3,550 4,200 153,246 185,081 245,924
Redeemable Series A Preferred
Stock -- -- 36,000 36,000 36,000
Shareholders' equity (deficit) 63,650 69,450 (26,364) (26,105) (20,579)
OTHER DATA:
EBITDA (B) $ 16,680 $ 14,480 $ 22,379 $ 40,152 $ 60,803
Capital Expenditures 8,400 4,840 11,518 11,559 19,453
Depreciation and amortization 4,540 4,970 9,859 14,109 17,535
Ratio of earnings to fixed
charges (C) 3.4x 3.1x -- 1.2x 1.6x
- -----------------------------------------------------------------------------------------------------------------------
</TABLE>
(A) Beginning in 1997, MSXI adopted a 52-53 week fiscal year, which ends on the
Sunday nearest December 31.
(B) EBITDA represents income (loss) before income taxes plus net interest
expense, depreciation, amortization, Michigan Single Business Tax and other
income (expense), net. EBITDA is presented as additional information
because management believes it to be a useful indicator of the company's
ability to meet debt service and capital expenditure requirements. It is
not, however, intended as an alternative measure of operating results or
cash flow from operations (as determined in accordance with generally
accepted accounting principles).
(C) For purposes of computing the ratio of earnings to fixed charges, earnings
represent net income (loss) before income taxes and fixed charges. Fixed
charges consist of interest expense, the interest component of operating
leases and amortization of deferred financing costs. For the fiscal year
ended December 28, 1997, earnings were inadequate to cover fixed charges by
approximately $2.7 million.
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ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS.
GENERAL
The following analysis of our results of operations and liquidity and
capital resources should be read in conjunction with our consolidated financial
statements and the related notes thereto included under Item 8 of this report.
The results of operations for the fiscal years ended January 2, 2000, January 3,
1999 and December 28, 1997 include the results of operations of acquired
companies from the date of their acquisition. As a result, our financial
performance for each fiscal year is not directly comparable without taking into
account the impact of acquisitions.
Effective in the fourth quarter of 1999, we began reporting sales and
cost of sales generated by certain of our business and technology services net
of billings from sub-suppliers. Historically, sales reported from these services
included the billings from sub-suppliers for staffing, training, consulting and
other professional services which were passed on to our customers. The change in
presentation resulted from certain clarifying guidance issued by the Securities
and Exchange Commission during the fourth quarter of 1999 and an analysis of the
current arrangements with our customers for these services. As a result of this
change, prior period results have been reclassified to conform to this
presentation. This change in presentation had no impact on the current or
historical gross profit, operating income or net income of MSXI.
RESULTS OF OPERATIONS
FISCAL YEAR ENDED JANUARY 2, 2000 COMPARED WITH THE FISCAL YEAR ENDED
JANUARY 3, 1999
Net Sales. Consolidated net sales increased $225.9 million, or 42.3%,
from $533.9 million in fiscal 1998 to $759.8 million in fiscal 1999. The
increase in consolidated net sales resulted from both internal growth and
incremental sales from businesses acquired in 1998 and 1999. The total increase
in net sales is comprised of:
<TABLE>
<CAPTION>
YEAR ENDED %
INCREASE FROM JANUARY 2, 2000 INCREASE
------------------- ----------- -----------
(dollars in thousands)
<S> <C> <C>
Internal growth $ 102,203 19.1%
Acquired businesses 123,697 23.2%
----------- -----------
Total $ 225,900 42.3%
=========== ===========
</TABLE>
Internal growth from existing businesses primarily reflects improved
volumes in our engineering and staffing services during 1999. Sales of our
engineering services improved $63.0 million, before the impact of acquisitions,
due to increased demand for automotive design and engineering services in the
United States and United Kingdom. Sales of our staffing services improved $39.1
million, before the impact of acquisitions, due to the opening of new locations
and our customers' continued consolidation of their supplier base. The remaining
increase reflects marginal improvement in sales of our business and technology
services. As a result of our acquisitions, sales to non-automotive customers, as
a percent of total sales, increased to 11.3% for fiscal 1999 compared to only
1.5% for fiscal 1998.
Operating Income. Our consolidated operating income and changes in
operating income for the fiscal years ended January 2, 2000 and January 3, 1999
were:
<TABLE>
<CAPTION>
FISCAL YEAR ENDED
----------------------------
JANUARY 2, JANUARY 3, INCREASE
----------------------
2000 1999 $ %
-------------- ------------ ----------- -----------
(dollars in thousands)
<S> <C> <C> <C> <C>
Operating income $ 38,330 $ 23,255 $ 15,075 64.8%
% of net sales 5.0% 4.4% n/a n/a
</TABLE>
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Overall, operating income improved during fiscal 1999 due to improved
sales volumes of existing businesses, our efforts to reduce administrative costs
and the accretive impact of businesses acquired during 1998 and 1999. Gross
profit increased $22.3 million, or 26.5%, over fiscal 1998. Gross profit, as a
percentage of net sales, decreased from 15.7% in fiscal 1998 to 14.0% in fiscal
1999. The decrease in gross profit as a percentage of net sales reflects
unfavorable service mix during 1999 as compared to 1998. Selling, general and
administrative expenses as a percentage of net sales for the 1999 fiscal year
were 8.5% as compared to 11.1% for the fiscal year ended January 3, 1999. The
2.6% percentage point improvement, as a percentage of net sales, principally
related to the continued consolidation of administrative services, cost
reductions resulting from the successful integration of acquired businesses, and
the increase in sales volume during the period.
Net Income. Principally as a result of the foregoing and decreases in
our effective income tax rate, net income improved by $7.4 million for the
fiscal year ended January 2, 2000 compared to fiscal 1998. For the fiscal years
ended January 2, 2000 and January 3, 1999, the effective income tax rate was
40.7% and 52.5%, respectively. The decrease in our effective income tax rate
resulted from the increased ratio of earnings to non-deductible expenses and a
decrease in certain foreign statutory effective income tax rates. Improvements
in operating income and income taxes were partially offset by increased interest
expense related to incremental borrowings on our credit facility and the
issuance of $30 million in additional senior subordinated notes during 1999.
FISCAL YEAR ENDED JANUARY 3, 1999 COMPARED WITH THE FISCAL YEAR ENDED
DECEMBER 28, 1997
Net Sales. Consolidated net sales increased $155.9 million, or 41.2%,
to $533.9 million for fiscal 1998 from $378.0 million for fiscal 1997. The
increase in net sales reflects sales growth from businesses acquired during 1997
and 1998 and internal growth of existing businesses. The total increase in net
sales is comprised of:
<TABLE>
<CAPTION>
YEAR ENDED %
INCREASE FROM JANUARY 3, 1999 INCREASE
------------------- ----------- ------------
(dollars in thousands)
<S> <C> <C>
Internal growth $ 49,087 13.0%
Acquired businesses 106,841 28.2%
----------- -----------
Total $ 155,928 41.2%
=========== ===========
</TABLE>
Increased sales from acquired businesses primarily relate to the GRI
Acquisition in late 1997. A full year of operating results from businesses
acquired in the GRI Acquisition are included in fiscal 1998 versus four months
in fiscal 1997. Staffing services volume increased $44.4 million (which includes
$16.1 million from acquisitions of businesses in fiscal 1998) while engineering
services revenue increased by about $18.5 million. Business and technology
services volume improved by $2.3 million on a comparable basis. The increase in
staffing services volume is related to a combination of internal growth,
including the opening of new locations, and increased sales resulting from
customers' consolidation of their supplier base. Net sales from engineering
services increased primarily due to an increase in customer orders for
automotive design and engineering in the United Kingdom.
Operating Income. Our consolidated operating income and changes in
operating income for the fiscal years ended January 3, 1999 and December 28,
1997 were:
<TABLE>
<CAPTION>
FISCAL YEAR ENDED
--------------------------------
JANUARY 3, DECEMBER 28, CHANGE
------------------
1999 1997 $ %
-------------- -------------- --------- --------
(dollars in thousands)
<S> <C> <C> <C> <C>
Operating income $23,255 $9,652 $13,603 140.9%
% of net sales 4.4% 2.6% n/a n/a
</TABLE>
11
<PAGE> 13
Overall, operating income improved due to the inclusion of a full year
of operations from the GRI Acquisition and improvements in selling, general and
administrative expenses. Gross profit for fiscal 1998 increased $33.5 million
(66.3%), from $50.5 million to $84.0 million, as compared to fiscal 1997. Gross
profit as a percentage of net sales for fiscal 1998 improved to 15.7% as
compared to 13.4% in fiscal 1997. The increase in gross margin as a percent of
sales reflects the impact of higher margins from business acquired in the GRI
Acquisition and improved volumes in our existing service lines.
Selling, general and administrative expenses in fiscal 1998 increased
$21.1 million (55.6%), from $38.0 million in fiscal 1997 to $59.1 million in
fiscal 1998. This increase resulted principally from the inclusion of a full
year of operations from the GRI Acquisition, increased investment in our human
resources and business systems to support acquisitions and internal growth, and
the implementation of a performance incentive plan. Selling, general and
administrative expenses as a percentage of net sales in fiscal 1998 were 11.1%
as compared to 10.0% in fiscal 1997 reflecting the items discussed above.
In fiscal 1997, there was a one-time, pre-tax charge of $2.0 million
for restructuring costs relating to the closure of two facilities.
Net Income. Net income improved by $5.7 million for the fiscal year
ended January 3, 1999. The increased net income reflects improvements in
operating income, as discussed above, partially offset by increased interest
expense. The increase in interest expense reflects the impact of incremental
borrowing required primarily to fund acquisitions. The effective income tax rate
was 52.5% for fiscal 1998. The effective rate was high in 1998 due to the ratio
of non-deductible expenses to pre-tax income and the impact of foreign income
that is taxed at a higher rate than U.S income.
LIQUIDITY AND CAPITAL RESOURCES
CASH FLOWS
General. Our principal capital requirements are for the acquisition of
businesses, capital expenditures and working capital to support internal growth.
These requirements have been met through a combination of bank debt, the
issuance of senior subordinated notes and cash from operations. We typically pay
our employees on a weekly basis and receive payment from our customers within
invoicing terms, which is generally a 60-day period after the invoice date.
However, in connection with our purchasing support services, we collect related
receivables at approximately the same time we make payment to suppliers.
Operating Activities. Net cash provided by operating activities was
$30.2 million in fiscal 1999 compared to $26.5 million in fiscal 1998, an
increase of $3.7 million. The improved cash flows primarily reflect improvements
in net income, net of non-cash charges for depreciation and amortization.
Changes in working capital generated $0.8 million in cash flows during fiscal
1999 due primarily to the timing of cash collections from customers versus
corresponding payments to suppliers. Net cash provided by operating activities
for fiscal 1998 increased $24.7 million from $1.8 million in fiscal 1997 to
$26.5 million in fiscal 1998. This increase was principally due to an increase
in net income of $5.7 million, the change in non-cash charges for depreciation
and amortization of $4.3 million, and the change in other items of $14.7
million, principally due to the timing of receipts and payments associated with
our purchasing support services as well as improved collections of accounts
receivable in the United Kingdom.
Investing Activities. Net cash used in investing activities was $57.9
million in fiscal 1999 compared to $53.3 million in fiscal 1998, an increase of
$4.6 million. Capital expenditures were $19.5 million in fiscal 1999, an
increase of $7.9 million. Cash used to acquire businesses was $54.7 million in
fiscal 1999, an increase of $11.8 million. Capital expenditures were used to
support new programs and our growth initiatives for operations primarily in
North America and Europe. See "Corporate Development" below for further
information on businesses acquired during 1999. The increased uses of cash were
partially offset by proceeds of $16.3 million from the sale of property and
equipment. During 1999 we entered into a sale-leaseback transaction related to
certain property acquired in the MegaTech Acquisition during fiscal 1998. The
sale proceeds of about $15 million were used to settle a contractual obligation
related to the acquisition of MegaTech. Net cash used for investing activities
for fiscal 1998 decreased $117.4 million from $170.7 million to $53.3 million,
as compared to fiscal
12
<PAGE> 14
1997. Acquisitions in fiscal 1998 were not as large as in
fiscal 1997, which included the TSG Acquisition and the GRI Acquisition. Capital
expenditures for fiscal 1998 and fiscal 1997 were $11.6 million and $11.5
million, respectively. The majority of these capital expenditures were to
acquire equipment for specific customer projects, including computer systems and
improvements on leased facilities.
Financing Activities. Net cash provided by financing activities was
$35.1 million in fiscal 1999 compared to $19.5 million in fiscal 1998, an
increase of $15.6 million. Cash flows from financing activities are net of a $15
million contractual payment related to the acquisition of MegaTech in 1998. Cash
generated was used, along with cash from operations, to fund our growth
initiatives and reflects the issuance of $30 million in subordinated notes and
$50 million of additional term notes during 1999. See "Debt Arrangements and
Available Financing" for additional information. Net cash provided by financing
activities for fiscal 1998 decreased $162.1 million from the comparable prior
period. After the initial capitalization of MSXI, financing requirements
decreased commensurate with the declines in investing activities and the
improvement in cash flow from operating activities.
DEBT ARRANGEMENTS AND AVAILABLE FINANCING
Initial Capitalization. Shortly after our inception in late 1996, we
completed the TSG Acquisition at a purchase price of $145.6 million. The TSG
Acquisition was financed through $3.8 million of common equity, $36.0 million of
Redeemable Series A Preferred Stock, $40.0 million of bridge loans payable to
CVC and MascoTech, $30.0 million of senior subordinated debt and $35.8 million
of borrowings under credit facilities with Bank One Corporation, as agent, and
its affiliates. On August 31, 1997, we acquired GRI for $60.0 million, which was
financed with borrowings under our credit facility, offset in part by cash
balances acquired.
Senior Subordinated Notes. On January 22, 1998, we issued, in a private
placement, $100 million aggregate principal amount of 11-3/8% unsecured senior
subordinated notes maturing January 15, 2008 (the "Series A Notes"). The net
proceeds of $93.2 million were used to retire bridge loans to CVC and MascoTech,
retire the senior subordinated notes payable to MascoTech and repay a portion of
the amounts outstanding under our credit facility. On August 20, 1998, we
completed an offer to exchange 11-3/8% unsecured senior subordinated notes,
registered under the Securities Act of 1933, for any and all outstanding Series
A notes.
On May 18, 1999, we issued, in a private placement, an additional $30
million aggregate principal amount of 11-3/8% unsecured senior subordinated
notes maturing January 15, 2008 (the "Series B Notes"). The net proceeds of
$27.6 million were used to repay amounts previously outstanding under our credit
facility. On September 10, 1999, we completed an offer to exchange 11-3/8%
unsecured senior subordinated notes, registered under the Securities Act of
1933, for any and all outstanding Series B Notes.
Credit Facility. In December 1999, we closed on an amended and
restated credit facility with commercial banks and institutional lenders led by
Bank One Corporation. The amended and restated credit facility replaced our
existing credit facility. The revolving credit portion of the agreement expires
December 7, 2004. The credit facility, as amended and restated, provides for
revolving credit up to $100 million and five and seven year term loans up to
$105 million under terms specified in the agreement. Upon closing, we borrowed
$80 million under the term loan portion of the credit facility and increased the
term loan syndication to $105 million, under the terms of the agreement, in
early 2000. As of January 2, 2000, $71.5 million was available for future
borrowing under the revolving credit portion of our amended and restated credit
facility.
Other Facilities. Chelsea Computer Consultants, Inc., which was
acquired in September 1999, maintains a financing arrangement that provides for
lines of credit up to 90% of its eligible accounts receivable, not to exceed a
maximum line of credit of $6 million. The arrangement expires in March 2000, at
which time we expect to refinance any amounts outstanding with borrowings under
our credit facility.
Satiz S.r.l., which was acquired effective December 31, 1999, maintains
a financing arrangement that provides for lines of credit up to 100% of its
eligible accounts receivable, as defined in the agreement. As of January 2,
2000, $6.5 million was available for borrowing under this arrangement. The
arrangement expires on December 12, 2001, but can be extended for one-year
periods after the initial term by mutual agreement.
13
<PAGE> 15
Our total indebtedness consists of our senior subordinated notes,
borrowings under our credit facilities and borrowings under various short-term
arrangements. Additional information regarding these obligations is set forth in
Note 8 and Note 17 to our consolidated financial statements included under Item
8 of this report. Our ability to meet debt service obligations will be dependent
upon the future performance of MSXI, which will be impacted by general economic
conditions and other factors, which may be outside of our control.
CORPORATE DEVELOPMENT
BUSINESSES ACQUIRED
Since the GRI Acquisition, we completed several strategic acquisitions
that have expanded our geographic coverage, increased our service offerings and
increased our reach to customers within and outside the automotive industry.
On August 4, 1998, we acquired Gold Arrow Contract Services, Ltd., a
technical and information technology staffing services company located in the
United Kingdom with historical annual sales of approximately $20 million.
The transaction was funded with borrowings under our credit facility.
Effective October 31, 1998, we acquired Lexstra International, Inc. and
Lexus Temporaries, Inc., providers of contract computer consultants, systems
analysts and network support personnel. The companies are headquartered in New
York, New York and have offices in Boston, Massachusetts, Red Banks, New Jersey
and Silver Spring, Maryland. The companies had combined historical annual sales
of approximately $50 million. The purchase price of $24 million at closing was
funded with borrowings under our credit facility.
On December 18, 1998, we acquired Pilot Computer Services, Inc. This
Concord, California-based company provides computer professionals experienced in
systems development, systems enhancement and project management.
Effective December 26, 1998, we acquired MegaTech Engineering, Inc.
from Johnson Controls, Inc. ("JCI"). MegaTech offers technical staffing and
product development support services with historical annual sales of about $44
million. The total purchase price was $30 million, of which $15 million was paid
at the closing using borrowings under our credit facility. The balance of the
purchase price was paid in 1999 with the proceeds from the sale of real property
acquired in the transaction. As part of the transaction, we significantly
enhanced our opportunity to provide services to JCI. We also strengthened our
training resources by acquiring a training academy that operates a
degree-granting program in automotive design and engineering in conjunction with
Central Michigan University.
In early April 1999, we acquired Rice Cohen International, Inc. a
permanent placement staffing company based in Yardley, Pennsylvania with
historical annual sales of approximately $5.0 million.
On June 21, 1999, we acquired Management Resources International, Inc.,
a provider of training services and courseware quality systems with historical
annual sales of about $3.5 million.
Effective September 17, 1999, we acquired 100% of the outstanding
common stock of Chelsea Computer Consultants, Inc. from Staff Builders, Inc.
Chelsea is a provider of information technology professionals in the areas of
application development, networking, database design, enterprise and data
modeling and hardware engineering with historical annual sales in excess of $30
million. Chelsea is headquartered in New York, New York and provides consulting
and technical staff augmentation services to customers in the financial
services, communications and manufacturing industries throughout North America.
The purchase price was about $19.9 million at closing and was funded with
borrowings under our credit facility.
Effective December 31, 1999, we acquired 75% of the outstanding common
stock of Satiz S.r.l., a subsidiary of Fiat, S.p.A. Satiz is headquartered in
Turin, Italy and specializes in commercial and technical publishing including
translation services, graphics, document systems, warehouse and distribution
services, and events. Satiz employs nearly 500 people and has historical annual
revenues in excess of $120 million. The purchase price of about $9.7 million at
closing was funded with borrowings under our credit facility. Satiz had about
$8.9 million of debt outstanding at closing. The remaining 25% of the
outstanding common stock of Satiz were retained by Fiat.
14
<PAGE> 16
On February 23, 2000, we acquired the professional staffing operations
of Corporate Staffing Resources of South Bend, Indiana. Specifically, we
acquired 100% of the outstanding common stock of Intranational Computer
Consultants and Programming Management and Systems and selected assets and
liabilities of CMS Management Services and Ascend. These companies provide
information technology and technical professional staffing throughout the United
States with combined historical annual revenues over $57 million.
EQUITY INVESTMENTS
On January 8, 1999, we acquired a 24.5% interest in Cadform GmbH, a
German company with historical annual sales of approximately $12 million that
provides product design and tooling services to the automotive industry. Based
in Homberg (Ohm), Germany, Cadform specializes in automotive interior systems
and cast aluminum products. In November 1999 we acquired an additional 24.5%
interest in Cadform by contributing selected assets of our German operations.
MSXI and Cadform are engaging in joint projects to leverage our combined product
development capabilities. We also have an option to acquire additional interests
in Cadform in the future.
On May 28, 1999, we acquired a 30% interest in Quandoccore S.r.l. and
Quandoccore Interinale S.p.A., two affiliated Italian companies with combined
sales of approximately $18 million. Quandoccore S.r.l. provides consulting
services on a project basis. Quandoccore Interinale S.p.A. is one of a limited
number of companies licensed under new Italian legislation to provide staffing
services. Through these investments we are pursuing complementary opportunities
for growth in Italy, including expansion of our engineering and staffing
capabilities. If the two companies achieve specific performance targets for
1999, we anticipate that we will acquire the remaining interests in the
companies during 2000.
INFLATION
Although we cannot anticipate future inflation, we do not believe that
inflation has had, or is likely in the foreseeable future to have, a material
impact on our results of operations. While our contracts typically do not
include automatic adjustments for inflation, the Ford Master Vendor Agreement
does provide for automatic adjustments for inflation for services provided under
the Master Vendor Program.
SEASONALITY
Our quarterly operating results are affected primarily by the number of
billing days in the period and the seasonality of our customers' businesses.
Demand for our services has historically been lower during the year-end
holidays.
EUROCURRENCY
On January 1, 1999, the member states of the European Economic and
Monetary Union agreed to adopt the Euro as their common legal currency. The
existing member state currencies are scheduled to remain legal tender as
denominations of the Euro until at least January 1, 2002 but not later than July
1, 2002. During this transition period, monetary transactions may be settled
using either the Euro or the existing member state currencies.
We have both operating divisions and customers located in European
countries adopting the Euro. In 1999, combined revenues from operations that are
adopting the Euro were approximately 7% of total net sales. We have operations
in substantially all European Economic and Monetary Union participating
countries, as well as in the United Kingdom, which has elected not to
participate in the Euro conversion at this time. The affected operations plan to
make the Euro the functional currency sometime during the transition period,
although certain of our European operations have already entered into Euro-based
transactions, such as bank borrowing and collection of accounts receivable.
We have not experienced any significant operational disruptions to date
and do not expect the continued implementation of the Euro to cause any
significant operational disruptions. In addition, we have not incurred and do
not expect to incur any significant cost from the continued implementation of
the Euro, including any currency risk, which could affect our liquidity or
capital resources.
15
<PAGE> 17
FORWARD LOOKING STATEMENTS
This report on Form 10-K contains statements that constitute
"forward-looking statements" within the meaning of the Private Securities
Litigation Reform Act of 1995. Such statements can be identified by the use of
forward-looking terminology such as "believes," "expects," "may," "estimates,"
"will," "should," "plans" or "anticipates" or the negative thereof or other
variations thereon or comparable terminology, or by discussions of strategy.
Such forward-looking statements are not guarantees of future performance and
involve significant risks and uncertainties. Actual results may vary materially
from those in the forward-looking statements as a result of any number of
factors, many of which are beyond the control of management. These factors
include, but are not limited to, the Company's leverage, its reliance on major
customers in the automotive industry, the degree and nature of competition, our
ability to recruit and place qualified personnel, risks associated with our
acquisition strategy, and employment liability risk.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK.
We are exposed to certain market risks, including interest rates and
currency exchange rates. Risk exposures relating to these market risks are
summarized below. This information should be read in connection with the
consolidated financial statements and the related notes thereto included
elsewhere in this Form 10-K.
CURRENCY RATE MANAGEMENT
For fiscal 1999, approximately 27% of our net sales were from markets
outside of the United States. To date, we have been able to minimize our
currency exposure by receiving foreign revenues in local currency. Because the
corresponding costs are usually in the same currency, the majority of our
exposure is naturally hedged. We do not engage in any other currency hedging
transactions. For the fiscal year ended January 2, 2000, adjustments from the
translation of our foreign operations reduced equity by about $4.7 million.
INTEREST RATE MANAGEMENT
We manage interest cost using a combination of fixed and variable rate
debt. As of January 2, 2000, we had $130 million of senior subordinated notes
outstanding at a fixed interest rate of 11-3/8%. In addition, we have a $205
million credit facility at variable rates of interest. As of January 2, 2000,
$106 million was outstanding under our credit facility at interest rates ranging
from 5.53% to 10.03%. A 1% increase in the credit facility's applicable interest
rate would result in additional interest expense of approximately $1.1 million
per year.
As of January 2, 2000 the fair value of the senior subordinated notes
was $120.9 million compared to its carrying value of $130 million.
SALES WITH MAJOR CUSTOMERS
Ford, DaimlerChrysler and General Motors accounted for approximately
42.6%, 15.2% and 13.5% of consolidated net sales for fiscal 1999.
16
<PAGE> 18
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Shareholders
of MSX International, Inc.
In our opinion, the financial statements listed in the index appearing under
Item 14(a)(1) present fairly, in all material respects, the financial position
of MSX International, Inc. and its subsidiaries at January 3, 1999 and January
2, 2000, and the results of their operations and their cash flows for each of
the three years in the period ended January 2, 2000, in conformity with
accounting principles generally accepted in the United States. In addition, in
our opinion, the financial statement schedule listed in the index appearing
under Item 14(a)(2) presents fairly, in all material respects, the information
set forth therein when read in conjunction with the related financial
statements. These financial statements and financial statement schedule are the
responsibility of the Company's management; our responsibility is to express an
opinion on these financial statements and financial statement schedule based on
our audits. We conducted our audits of these statements in accordance with
auditing standards generally accepted in the United States, which require that
we plan and perform the audit to obtain reasonable assurance about whether the
financial statements are free of material misstatement. An audit includes
examining, on a test basis, evidence supporting the amounts and disclosures in
the financial statements, assessing the accounting principles used and
significant estimates made by management, and evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for the opinion expressed above.
/s/ PRICEWATERHOUSECOOPERS LLP
Detroit, Michigan
February 25, 2000
17
<PAGE> 19
MSX INTERNATIONAL, INC.
CONSOLIDATED BALANCE SHEETS
AS OF JANUARY 3, 1999 AND JANUARY 2, 2000
<TABLE>
<CAPTION>
JANUARY 3, JANUARY 2,
1999 2000
--------------- --------------
(DOLLARS IN THOUSANDS)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 4,248 $ 6,879
Accounts receivable, net (Note 4) 208,451 305,473
Inventory 2,362 4,133
Prepaid expenses and other assets 5,559 10,007
Deferred income taxes, net (Note 14) 961 2,425
--------------- --------------
Total current assets 221,581 328,917
Property and equipment, net (Note 5) 35,265 44,110
Buildings held for sale (Note 5) 15,000 -
Goodwill and other intangibles, net of accumulated amortization
of $2,521 and $5,693, respectively (Note 3) 64,278 123,018
Other assets 8,064 19,651
Deferred income taxes, net (Note 14) 12,536 8,494
--------------- --------------
Total assets $356,724 $524,190
=============== ==============
LIABILITIES AND SHAREHOLDERS' DEFICIT
Current liabilities:
Notes payable and current portion of long-term debt (Note 8) $ 4,581 $ 13,290
Accounts payable and drafts (Note 9) 89,886 161,973
Accrued payroll and benefits 23,286 25,500
Other accrued liabilities (Note 6) 26,825 63,889
Contractual acquisition obligation (Note 5) 15,000 -
Deferred income taxes, net (Note 14) 2,192 -
--------------- --------------
Total current liabilities 161,770 264,652
Long-term debt (Note 8) 180,356 232,556
Long-term deferred compensation liabilities and other (Note 13) 4,703 11,275
--------------- --------------
Total liabilities 346,829 508,483
Commitments and contingencies (Note 10) - -
Minority Interest - 286
--------------- --------------
Redeemable Series A Preferred Stock (Note 11) 36,000 36,000
--------------- --------------
Shareholders' deficit (Note 12):
Common Stock, $.01 par value, 2,000,000 aggregate shares of
Class A and Class B Common Stock authorized; 97,004 and 99,003 shares of
Class A Common Stock issued and outstanding, respectively 1 1
Additional paid-in-capital (24,764) (24,705)
Accumulated other comprehensive loss (1,140) (5,867)
Retained earnings (accumulated deficit) (202) 9,992
--------------- --------------
Total shareholders' deficit (26,105) (20,579)
--------------- --------------
Total liabilities and shareholders' deficit $356,724 $524,190
=============== ==============
</TABLE>
The accompanying notes are an integral part of the
consolidated financial statements.
18
<PAGE> 20
MSX INTERNATIONAL, INC.
CONSOLIDATED STATEMENTS OF INCOME
FOR THE THREE FISCAL YEARS ENDED JANUARY 2, 2000
<TABLE>
<CAPTION>
FISCAL YEAR FISCAL YEAR FISCAL YEAR
ENDED ENDED ENDED
DECEMBER 28, JANUARY 3, JANUARY 2,
1997 1999 2000
-------------- --------------- ----------------
(IN THOUSANDS)
<S> <C> <C> <C>
Net sales (Note 15) $378,014 $533,942 $ 759,842
Cost of sales 327,487 449,914 653,542
-------------- --------------- ----------------
Gross profit 50,527 84,028 106,300
Selling, general and administrative expenses 37,983 59,083 64,814
Amortization of goodwill and other intangibles 892 1,690 3,156
Restructuring costs (Note 7) 2,000 - -
-------------- --------------- ----------------
Operating income 9,652 23,255 38,330
Interest expense, net (Note 8) 12,400 17,416 21,141
-------------- --------------- ----------------
Income (loss) before income taxes (2,748) 5,839 17,189
Income tax provision (Note 14) 225 3,068 6,995
-------------- --------------- ----------------
Net income (loss) $ (2,973) $ 2,771 $ 10,194
============== =============== ================
</TABLE>
The accompanying notes are an integral part of the
consolidated financial statements.
19
<PAGE> 21
MSX INTERNATIONAL, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE THREE FISCAL YEARS ENDED JANUARY 2, 2000
<TABLE>
<CAPTION>
FISCAL YEAR FISCAL YEAR FISCAL YEAR
ENDED ENDED ENDED
DECEMBER 28, JANUARY 3, JANUARY 2,
1997 1999 2000
--------------- --------------- ---------------
(IN THOUSANDS)
<S> <C> <C> <C>
Cash flows from operating activities:
Net income (loss) $(2,973) $ 2,771 $ 10,194
Adjustments to reconcile net income (loss)
to net cash provided by operating activities:
Depreciation 8,967 11,908 13,683
Amortization 892 2,201 3,852
Deferred taxes - 1,038 386
Loss on sale/disposal of property and equipment - 162 1,271
(Increase) decrease in receivables, net (36,343) (11,829) (32,397)
(Increase) decrease in inventory (309) (36) 103
(Increase) decrease in prepaid expenses and other assets (1,513) 367 (2,329)
Increase (decrease) in current liabilities 30,487 19,902 35,600
Other, net 2,576 (14) (179)
--------------- --------------- ---------------
Net cash provided by operating activities 1,784 26,470 30,184
--------------- --------------- ---------------
Cash flows from investing activities:
Capital expenditures (11,518) (11,559) (19,453)
Acquisition of businesses, net of cash received (159,137) (42,940) (54,735)
Proceeds from buildings held for sale and disposal of equipment - 1,231 16,264
Other, net (5) - -
--------------- --------------- ----------------
Net cash used for investing activities (170,660) (53,268) (57,924)
--------------- --------------- ----------------
Cash flows from financing activities:
Proceeds from issuance of debt 70,000 130,000 79,404
Debt issuance costs - (4,637) (3,292)
Payment of Senior Subordinated Notes and Bridge Loans - (70,000) -
Changes in revolving debt 73,399 (28,221) (28,954)
Changes in book overdraft (669) (7,963) 2,881
Payment of contractual acquisition obligation - - (15,000)
Sale of Redeemable Preferred Stock 36,000 - -
Sale of Common Stock 3,800 80 59
Other, net (938) 213 -
--------------- --------------- ---------------
Net cash provided by financing activities 181,592 19,472 35,098
--------------- --------------- ---------------
Effect of foreign exchange rate changes on cash and cash equivalents (1,141) (1) (4,727)
--------------- --------------- ---------------
Cash and cash equivalents:
Increase (decrease) for the period 11,575 (7,327) 2,631
Balance, beginning of period - 11,575 4,248
--------------- --------------- ---------------
Balance, end of period $11,575 $ 4,248 $ 6,879
=============== =============== ===============
Supplemental disclosure of cash flow information:
Cash paid for interest $ 7,400 $16,800 $ 21,621
Cash paid for income taxes 1,600 800 1,963
Non-cash investing and financing activities:
Contractual acquisition obligation - 15,000 -
Equity investment in Cadform GmbH (Note 3) - - 3,306
</TABLE>
The accompanying notes are an integral part of the
consolidated financial statements.
20
<PAGE> 22
MSX INTERNATIONAL, INC.
CONSOLIDATED STATEMENT OF SHAREHOLDERS' EQUITY (DEFICIT)
FOR THE THREE FISCAL YEARS ENDED JANUARY 2, 2000
<TABLE>
<CAPTION>
ACCUMULATED RETAINED
MASCOTECH, INC. OTHER EARNINGS TOTAL
NET INVESTMENT COMMON ADDITIONAL COMPREHENSIVE (ACCUMULATED SHAREHOLDERS'
AND ADVANCES STOCK PAID-IN CAPITAL INCOME (LOSS) DEFICIT) EQUITY (DEFICIT)
---------------- --------- ----------------- --------------- ------------ -----------------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C>
Balance at December 31, 1996 $ 72,240 $ - $ - $(2,790) $ - $ 69,450
Comprehensive loss:
Net loss (2,973) (2,973)
Foreign currency translation (1,141) (1,141)
-----------------
Total comprehensive loss (4,114)
Payment to MascoTech, Inc. for
book value of TSG (72,240) 2,790 (69,450)
Payment to MascoTech, Inc. in
excess of book value of TSG
(Note 12) (26,050) (26,050)
Sale of Common Stock 1 3,799 3,800
---------------- --------- ------------- --------------- ----------- -----------------
Balance at December 28, 1997 - 1 (22,251) (1,141) (2,973) (26,364)
Comprehensive income:
Net income 2,771 2,771
Foreign currency translation 1 1
-----------------
Total comprehensive income 2,772
Adjustment due to the final
allocation of taxable
temporary differences
established with the TSG
Acquisition (Note 12) (2,593) (2,593)
Sale of Common Stock 80 80
---------------- --------- ------------- --------------- ----------- -----------------
Balance at January 3, 1999 - 1 (24,764) (1,140) (202) (26,105)
Comprehensive income:
Net income 10,194 10,194
Foreign currency translation (4,727) (4,727)
-----------------
Total comprehensive income 5,467
Sale of Common Stock 59 59
---------------- --------- ------------- --------------- ----------- -----------------
Balance at January 2, 2000 $ - $ 1 $(24,705) $(5,867) $ 9,992 $(20,579)
================ ========= ============= =============== =========== =================
</TABLE>
The accompanying notes are an integral part of the
consolidated financial statements.
21
<PAGE> 23
MSX INTERNATIONAL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS UNLESS STATED OTHERWISE)
1. ORGANIZATION AND BASIS OF PRESENTATION:
The accompanying financial statements present the assets, liabilities
and results of operations of MSX International, Inc. and its consolidated
subsidiaries ("MSXI"). MSXI is a holding company formed and owned by Citicorp
Venture Capital, Ltd. ("CVC"), MascoTech, Inc. ("MascoTech") and certain members
of management. MSXI was formed to consummate the acquisition of selected assets
and operations of the Technical Services Group ("TSG") owned by MascoTech and
MascoTech Automotive Systems Group ("MASG"), as well as the net assets of APX
International ("APX"), a design and engineering services provider, which had
been acquired by MASG effective November 6, 1996 (the "TSG Acquisition"). The
TSG Acquisition was effective on January 3, 1997. Effective August 31, 1997,
MSXI acquired certain service-providing operations of Ford Motor Company
("Ford") through the acquisition of Geometric Results Incorporated ("GRI"), a
wholly-owned subsidiary of Ford. Since these initial transactions we have
completed numerous additional acquisitions as disclosed in Note 3. The results
of operations of APX, GRI and our other acquisitions have been included in the
results of operations of MSXI from the effective date of each transaction. Our
financial statements for each fiscal year are not directly comparable without
taking into account the impact of acquisitions.
We are principally engaged in providing engineering services, staffing
services, and business and technology services primarily to automobile
manufacturers and suppliers in North America and Europe.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
a. Principles of Consolidation: The accompanying financial statements
include the accounts of MSXI and all majority owned subsidiaries. Significant
intercompany transactions have been eliminated. Companies that are 20 to 50
percent owned by MSXI or its wholly owned subsidiaries are accounted for by the
equity method of accounting. Beginning in 1997, we use a 52-53 week fiscal year
that ends on the Sunday nearest December 31.
b. Cash and Cash Equivalents: All highly liquid investments with an
original maturity of three months or less are considered to be cash equivalents.
c. Receivables: Receivables are presented net of aggregate allowances
for doubtful accounts of $3.4 million (including $2.0 million of allowance
accounts for accounts receivable excluded from certain business combinations) at
January 3, 1999 and $2.0 million at January 2, 2000.
d. Inventory: Inventory is comprised of raw materials, parts and
supplies which are stated at the lower of cost or net realizable value, with
cost determined using the first-in, first-out method.
e. Property and Equipment: Property and equipment, including
significant betterments to existing facilities, are recorded at cost. Upon
retirement or disposal of property and equipment, the cost and accumulated
depreciation are removed from the accounts, and any gain or loss is included in
income. Maintenance and repair costs are charged to expense as incurred.
f. Goodwill and Other Intangibles: The excess of the purchase price,
including direct costs of acquisition, over the estimated fair value of acquired
assets and assumed liabilities is being amortized using the straight-line method
over the period estimated to be benefited, ranging from 20 to 30 years.
22
<PAGE> 24
MSX INTERNATIONAL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS-(CONTINUED)
(DOLLARS IN THOUSANDS UNLESS STATED OTHERWISE)
Management evaluates the carrying value of goodwill when events or
circumstances warrant such a review. When required, an evaluation is performed
comparing anticipated undiscounted future cash flows from operating activities
with the carrying amount of the excess of cost over net assets of acquired
companies. The factors considered by management in performing this assessment
include current operating results, business prospects, market trends,
competitive activities and other economic factors. To date, there have been no
permanent impairments related to goodwill.
g. Fair Value of Financial Instruments: The estimated fair value of
cash and cash equivalents, accounts receivable, accounts payable, and short-term
debt approximate their carrying amounts. The estimated fair value and carrying
amounts of long-term debt borrowings are reported in Note 8.
h. Foreign Currency Translation: Net assets of operations outside of
the United States are translated into U.S. dollars using current exchange rates
with the effects of translation adjustments included in Shareholders' Deficit as
a separate component of comprehensive income (loss). Revenues and expenses of
operations outside of the United States are translated at the average rates of
exchange during the period.
i. Revenue Recognition: Our revenue is primarily comprised of revenue
from fixed price contracts and time and material contracts. Revenues from fixed
price contracts are recognized using the percentage of completion method,
measured by comparing the percentage of labor costs incurred to date to the
estimated total labor costs for each contract. Revenues from time and material
contracts are valued at selling price based on contractual billing rates. Net
revenues from purchasing support services are recorded at the completion of each
individual service.
Contract costs include all direct material and labor costs and indirect
costs such as indirect labor, supplies, tools and repairs. Provisions for
estimated losses on uncompleted contracts are made in the period in which such
losses are determined. Changes in fixed price contracts may result in revisions
to estimates of costs and revenues and are recognized in the period in which the
revisions are determined.
j. Depreciation: Depreciation is computed using the straight-line
method over the estimated useful lives of assets as follows:
Useful Lives
In Years
--------
Buildings and improvements...............................5-40
Machinery and equipment..................................3-12
Computers, peripherals and software...................... 2-5
Automobiles and trucks................................... 3-5
Leasehold improvements are amortized on a straight-line basis over
their estimated useful lives or the term of the lease, whichever is shorter.
k. Income Taxes: Deferred income taxes are recorded to reflect the
differences between the tax basis and financial reporting basis of assets and
liabilities and are measured using the enacted tax rates and laws that will be
in effect when the differences are expected to reverse.
l. Reclassifications: Effective in the fourth quarter of 1999, we began
reporting sales and cost of sales generated by certain of our business and
technology services net of billings from sub-suppliers. Historically, sales
reported from these services included the billings from sub-suppliers for
staffing, training, consulting and other professional services which were passed
on to our customers. The change in presentation resulted from certain clarifying
guidance issued by the Securities and Exchange Commission during the fourth
quarter of 1999 and an analysis of the current arrangements with our customers
for these services. As a result of this change, prior period results have been
reclassified to conform to this presentation. This change in presentation had no
impact on the current or historical gross profit, operating
23
<PAGE> 25
MSX INTERNATIONAL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS-(CONTINUED)
(DOLLARS IN THOUSANDS UNLESS STATED OTHERWISE)
income or net income of MSXI. In addition, certain other prior year amounts have
been reclassified to conform to current year presentation.
m. Use of Estimates: The preparation of financial statements in
conformity with generally accepted accounting principles requires management to
make estimates and assumptions that affect the reported amounts of assets and
liabilities and the disclosure of contingent assets and liabilities at the date
of the financial statements. Such estimates and assumptions also affect the
reported amounts of revenues and expenses during the reporting periods. Actual
results may differ from such estimates and assumptions.
n. Recently Issued Accounting Pronouncements: In June 1998, the
Financial Accounting Standards Board ("FASB") issued Statement of Financial
Accounting Standards ("SFAS") No. 133, "Accounting for Derivative Instruments
and Hedging Activities." SFAS No. 133 requires recognition of all derivative
financial instruments as either assets or liabilities at fair value and
determines the method(s) of gain/loss recognition. The FASB issued SFAS No. 137,
"Deferral of the Effective Date of FASB Statement No. 133" in June 1999 to defer
the effective date of SFAS No. 133 to fiscal years beginning after June 15,
2000. We will adopt SFAS No. 133 in fiscal 2001 and do not expect the adoption
to have any material impact on our consolidated financial statements.
3. ACQUISITIONS OF BUSINESSES:
TSG Acquisition. On January 3, 1997, we acquired selected assets and
operations of the former engineering and technical business service units of
MASG and MascoTech, as well as the net assets of APX, a design and engineering
services provider which had been acquired by MASG effective November 6, 1996.
The purchase price and sources of funding for the TSG Acquisition were as
follows:
<TABLE>
<CAPTION>
SOURCES OF FINANCING (SEE NOTE 8): AMOUNT
------------------------------------- -------------
(IN MILLIONS)
<S> <C>
Common Stock issued $3.8
Redeemable Preferred Stock issued 36.0
CVC bridge loan 20.0
MascoTech bridge loan 20.0
Senior subordinated note payable to MascoTech 30.0
Borrowings under credit facilities 35.8
------------
Total purchase price $145.6
============
</TABLE>
The acquisition of TSG was accounted for using the purchase method of
accounting at carryover basis as no change in control resulted from the
acquisition. The amount paid in excess of book value for TSG of $28.6 million,
after finalization of deferred tax allocations, was recorded as a reduction of
additional paid-in-capital. The acquisition of APX was accounted for using the
purchase method of accounting and, accordingly, the purchase price was allocated
to the acquired assets and assumed liabilities based upon the estimated fair
value as of the closing of the acquisition. The excess of purchase price over
the acquired net assets of APX, after finalization of certain contractual
matters, resulted in goodwill of $19.8 million.
GRI Acquisition. We acquired certain service-providing operations of
Ford through the acquisition of GRI, a wholly owned subsidiary of Ford, pursuant
to a stock purchase agreement dated August 31, 1997. As part of Ford, GRI used
automated processes to manage the procurement of staffing, training and other
professional services for Ford. The purchase price of $60 million was financed
with borrowings under our credit facilities, offset in part by substantial cash
balances acquired. The acquisition of GRI was accounted for using the purchase
method of accounting and, accordingly, the purchase price was allocated to the
acquired assets and assumed liabilities based upon the estimated fair values as
of the closing of the acquisition. The excess of purchase price over the
acquired net assets of GRI, after finalization of certain contractual matters,
resulted in goodwill of $13.3 million.
24
<PAGE> 26
MSX INTERNATIONAL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS-(CONTINUED)
(DOLLARS IN THOUSANDS UNLESS STATED OTHERWISE)
Lexus/Lexstra Acquisition. Effective October 31, 1998, we consummated
the acquisition of Lexstra International, Inc. and Lexus Temporaries, Inc. (the
"Lexus Acquisition") pursuant to an asset purchase agreement dated October 23,
1998. These companies are providers of contract computer consultants, systems
analysts, and network support personnel with historical annual sales of about
$50 million. Under the asset purchase agreement, we purchased substantially all
of the assets and assumed substantially all of the operating liabilities of
Lexstra International, Inc. and Lexus Temporaries, Inc., excluding any bank
debt. The purchase price for these net assets of $24 million at the closing was
funded with borrowings under our credit facility. The acquisition was accounted
for under the purchase method of accounting, resulting in goodwill of $15.1
million at closing.
MegaTech Acquisition. Effective December 26, 1998, we consummated the
acquisition of MegaTech Engineering, Inc. from Johnson Controls, Inc. ("JCI")
pursuant to a stock purchase agreement dated as of December 22, 1998. MegaTech
offers technical staffing and product development services specializing in
vehicle interiors, HVAC and electrical design with historical annual sales of
about $44 million. Under the stock purchase agreement, we purchased 100% of the
outstanding shares of MegaTech from Becker Group, Inc., a wholly owned
subsidiary of JCI (the "MegaTech Acquisition"). We did not assume any bank debt
in this transaction. The total purchase price for the stock of MegaTech was $30
million of which $15 million was paid at the closing using borrowings under our
credit facility. The remaining $15 million was paid to JCI (without interest)
upon completion of a sale-leaseback transaction during 1999 related to property
and facilities acquired in the MegaTech Acquisition. The sale-leaseback proceeds
were $15 million and lease terms are substantially similar to our existing
operating lease terms. Such real property was presented as buildings held for
sale and the related amount due to JCI was presented as a contractual
acquisition obligation at January 3, 1999. The acquisition was accounted for
under the purchase method of accounting, resulting in goodwill of $5.4 million
at closing.
Pilot and Gold Arrow Acquisitions. Also during 1998, we acquired Pilot
Computer Services, Inc. (the "Pilot Acquisition") and Gold Arrow Contract
Services, Ltd. (the "Gold Arrow Acquisition") for an aggregate purchase price of
$9.4 million. The acquisitions were funded with borrowings under our credit
facility. Pilot Computer Services, Inc. is a provider of computer professionals
experienced in all aspects of systems development, systems enhancement and
project management, which is headquartered in Concord, California. Gold Arrow
Contract Services, Ltd. is an information technology and technical staffing
company, which is headquartered in Basildon, Essex, England with historical
annual sales of about $20 million. The Pilot and Gold Arrow Acquisitions were
accounted for under the purchase method of accounting resulting in goodwill of
$7.9 million at closing.
Rice Cohen and Management Resources Acquisitions. During 1999 we
acquired Rice Cohen International, Inc., a permanent placement staffing company
based in Yardley, Pennsylvania with historical annual sales of about $5.0
million and Management Resources International, Inc. a provider of training
services and courseware in quality systems based in Ann Arbor, Michigan with
historical annual sales of about $3.5 million. The Rice Cohen and Management
Resources Acquisitions were accounted for under the purchase method of
accounting.
Chelsea Acquisition. Effective September 17, 1999 we acquired 100% of
the outstanding common stock of Chelsea Computer Consultants, Inc. from Staff
Builders, Inc. (the "Chelsea Acquisition"). The total purchase price of about
$19.9 million at closing was funded with borrowings under our credit facility.
Chelsea is a provider of information technology professionals in the area of
application development, networking, database design, enterprise and data
modeling and hardware engineering with historical annual sales in excess of $30
million. Chelsea is headquartered in New York, New York and provides consulting
and technical staff augmentation services to customers in the financial
services, communications and manufacturing industries in the United States. The
acquisition of Chelsea was accounted for as a purchase resulting in goodwill of
$15.7 million at closing.
Satiz Acquisition. Effective December 31, 1999, we acquired 75% of the
outstanding common stock of Satiz S.r.l. ("Satiz"), a subsidiary of Fiat, S.p.A.
Satiz is headquartered in Turin, Italy and
25
<PAGE> 27
MSX INTERNATIONAL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS-(CONTINUED)
(DOLLARS IN THOUSANDS UNLESS STATED OTHERWISE)
specializes in commercial and technical publishing including translation
services, graphics, document systems, warehouse and distribution services, and
events. Satiz employs nearly 500 people and has historical annual revenues in
excess of $120 million. The purchase price of about $9.7 million was funded with
borrowings under our credit facility. At closing, Satiz had about $8.9 million
of debt outstanding. The remaining 25% of the outstanding common stock of Satiz
are retained by Fiat. The acquisition of Satiz was accounted for as a purchase
resulting in goodwill of $8.8 million at closing.
For recent acquisitions the preliminary allocation of purchase price
will be completed when certain contractual matters are concluded. Any
adjustments to purchase prices will change recorded goodwill and will be
amortized to expense over the remaining goodwill amortization period. Management
believes the resolution of these matters will not have material adverse effect
on the results of operations, financial position or cash flows of MSXI.
The terms of certain of our acquisition agreements provide for
additional contingent consideration to be paid over a period of up to two years
if the acquired entity's future operating results exceed targeted levels.
Contingent consideration is earned when the acquired entity's financial
performance grows in excess of the targeted levels established at the time of
acquisition. Such additional consideration is recorded, when earned, as
additional purchase price. In this regard, we recorded certain contingencies
during 1999, related to prior year acquisitions, which resulted in additional
goodwill capitalization of about $21.9 million. Additional goodwill is amortized
to expense over the remaining amortization period.
Pro Forma Results. The following unaudited pro forma condensed
financial data are presented as if the above acquisitions had been made at the
beginning of the earliest period presented. The unaudited pro forma information
is not necessarily indicative of either the results of operations that would
have occurred had the acquisitions been made during the period presented or the
future results of the combined operations.
<TABLE>
<CAPTION>
FISCAL YEAR FISCAL YEAR FISCAL YEAR
ENDED ENDED ENDED
DECEMBER 28, JANUARY 3, JANUARY 2,
1997 1999 2000
(UNAUDITED) (UNAUDITED) (UNAUDITED)
---------------- -------------- --------------
<S> <C> <C> <C>
Net sales $640,048 $796,158 $918,712
Income before income taxes 4,743 19,365 22,808
Net income 811 9,070 11,871
</TABLE>
In addition to the above, we completed several equity investment
transactions during fiscal 1999. The aggregate purchase price of these
investments was about $6.6 million in cash and $3.3 million of contributed
assets. The investments were:
- In January 1999, we purchased a 24.5% interest in Cadform
Engineering GmbH, a German company that provides product design and
tooling services with sales of about $12 million. Cadform
specializes in automotive interior systems and cast aluminum
products. In November 1999, we increased our ownership of Cadform
to about 49% by contributing certain assets of our German
operations. We are currently engaging in joint projects with
Cadform and have the option to acquire additional interests in the
company in the future.
26
<PAGE> 28
MSX INTERNATIONAL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS-(CONTINUED)
(DOLLARS IN THOUSANDS UNLESS STATED OTHERWISE)
- In May 1999, we purchased a 30% interest in Quandoccore S.r.l. and
Quandoccore Interinale S.p.A., two affiliated Italian companies
with combined historical annual sales of about $18 million.
Quandoccore S.r.l. provides consulting services on a project basis
and Quandoccore Interinale S.p.A. provides staffing services. If
these two companies achieve specific performance targets, we
anticipate that we will acquire a majority position in the
companies in 2000.
4. ACCOUNTS RECEIVABLE, NET:
The primary users of our services are manufacturers in the automotive
industry. Sales to significant automotive customers, as a percent of total
sales, were:
<TABLE>
<CAPTION>
PERCENT OF TOTAL SALES
-----------------------------------
SALES TO: 1997 1998 1999
---------------- ----------- ----------- ----------
<S> <C> <C> <C>
Ford 35.5% 48.8% 42.6%
DaimlerChrysler 20.5% 16.4% 15.2%
General Motors 19.9% 15.7% 13.5%
---------- ----------- ---------
Total 75.9% 80.9% 71.3%
========== =========== =========
</TABLE>
Receivables arise from services provided pursuant to contracts or
agreements with customers for such services. At December 28, 1997, January 3,
1999 and January 2, 2000, the foregoing three customers accounted for
approximately 69%, 67% and 42%, respectively, of the billed accounts receivable
balance. As a result of the acquisition of Satiz effective December 31, 1999,
Fiat accounted for 21% of the January 2, 2000 billed accounts receivable
balance.
Accounts receivable includes both billed and unbilled receivables.
Unbilled receivables amounted to $82.2 million and $122.7 million at January 3,
1999 and January 2, 2000, respectively. All such billings are expected to be
collected within the ensuing year. Accounts receivable also include the portion
of our billings for purchasing support services attributable to services
provided by our vendors which are passed on to our customers. These amounts
totaled $58.0 million as of January 3, 1999 and $62.5 million as of January 2,
2000. A corresponding liability to our vendors for these amounts is recorded in
accounts payable at the time revenue is recognized.
27
<PAGE> 29
MSX INTERNATIONAL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (CONTINUED)
(DOLLARS IN THOUSANDS UNLESS STATED OTHERWISE)
5. PROPERTY AND EQUIPMENT, NET:
<TABLE>
<CAPTION>
AT JANUARY 3, AT JANUARY 2,
1999 2000
---------------- ---------------
<S> <C> <C>
Cost:
Land and improvements $ 100 $ 100
Buildings and improvements 10,304 12,545
Machinery and equipment 48,389 54,134
Computers, peripherals and software 26,514 30,485
Automobiles and trucks 1,821 1,902
-------- --------
87,128 99,166
Less accumulated depreciation (51,863) (55,056)
-------- --------
Property and equipment, net $ 35,265
$ 44,110
======== ========
Buildings held for sale $ 15,000 $ --
======== ========
</TABLE>
Buildings held for sale as of January 3, 1999 represented the estimated
fair value (based on appraisals in December 1998) of the buildings acquired in
the purchase of MegaTech less the estimated selling costs. During the third
quarter of 1999, we entered into a sale-leaseback transaction related to this
property. The sale proceeds of $15 million were used to settle a contractual
obligation related to the acquisition of MegaTech.
6. OTHER ACCRUED LIABILITIES:
<TABLE>
<CAPTION>
AT JANUARY 3, AT JANUARY 2,
1999 2000
---------------- ----------------
<S> <C> <C>
Income and other taxes (including VAT taxes) $ 1,283 $ 7,777
Restructuring costs 1,272 342
Deferred income 11,224 18,126
Contingent consideration liabilities -- 17,860
Interest 5,639 7,602
Other 7,407 12,182
------------- -----------
$ 26,825 $ 63,889
============= ===========
</TABLE>
7. RESTRUCTURING ACTIONS:
During fiscal 1997, restructuring costs aggregated $6.7 million. These
costs were comprised of $2.7 million of severance pay for certain employees of
an acquired business, facility closure costs of $2.0 million which were
primarily remaining operating lease obligations of acquired facilities closed
subsequent to the acquisition, and $2.0 million of remaining lease obligations
and other costs related to the closure of MSXI facilities. Restructuring costs
accounted for in the purchase of the related businesses and costs charged to
operations were $4.7 million and $2.0 million, respectively. Restructuring
charges were accounted for in accordance with approved management plans.
Remaining accrued restructuring costs totaled $0.3 million as of January 2, 2000
and are expected to be paid in fiscal 2000.
28
<PAGE> 30
MSX INTERNATIONAL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (CONTINUED)
(DOLLARS IN THOUSANDS UNLESS STATED OTHERWISE)
8. DEBT:
Debt is comprised of the following:
<TABLE>
<CAPTION>
OUTSTANDING AT
INTEREST RATES AT ----------------------------------
JANUARY 2, JANUARY 3, JANUARY 2,
2000 1999 2000
------------------- ---------------- ----------------
<S> <C> <C> <C>
Senior Subordinated Notes 11.375 % $100,000 $130,000
Credit Facility, as amended and restated:
Revolving line of credit notes 8.09% 26,238 9,703
Swingline notes 5.53-10.03% 24,118 16,353
Term notes 9.23-9.98% 30,000 80,000
Ford Motor Company Limited, line of credit 7.14% 4,581 862
Chelsea Credit Facility n/a - -
Satiz Facility 4.51% - 8,928
---------------- ----------------
184,937 245,846
Less current portion 4,581 13,290
---------------- ----------------
Total long-term debt $180,356 $232,556
================ ================
</TABLE>
Senior Subordinated Notes
On January 22, 1998, we issued, in a private placement, $100 million
aggregate principal amount of 11-3/8% unsecured senior subordinated notes
maturing January 15, 2008 (the "Series A Notes"). The net proceeds were used to
retire bridge loans to CVC and MascoTech, retire senior subordinated notes
payable to MascoTech and repay amounts outstanding under our credit facility.
The fiscal years ended December 28, 1997 and January 3, 1999 included related
party interest expense to CVC and MascoTech of about $8.0 and $0.6 million,
respectively. On August 20, 1998, we completed an offer to exchange 11-3/8%
unsecured senior subordinated notes, registered under the Securities Act of 1933
for any and all outstanding Series A Notes. Interest on the notes is payable
semi-annually at 11-3/8% per annum and commenced July 15, 1998. The notes may be
redeemed subsequent to January 15, 2003 at premiums that begin at 105.6875% and
decline each year to face for redemptions taking place after January 15, 2006.
In addition, at any time prior to January 15, 2001, we may redeem up to 35% of
the original aggregate principal amount of the notes with the proceeds of one or
more public equity offerings at a redemption price of 111.375% plus accrued and
unpaid interest, if any. Also, upon the occurrence of a Change of Control, as
defined in the Indenture (the "Indenture"), the notes may be redeemed at the
option of the noteholders at a premium of one percent, plus accrued and unpaid
interest, if any. The notes contain covenants which, among others, limit the
incurrence of additional indebtedness and restrict capital transactions,
distributions and asset dispositions of certain subsidiaries.
On May 18, 1999, we issued, in a private placement, an additional $30
million aggregate principal amount of 11-3/8% unsecured senior subordinated
notes maturing January 15, 2008 (the "Series B Notes"). The Series B Notes are
substantially identical to, and rank equally in right of payment with, our $100
million aggregate principal amount of 11-3/8% unsecured senior subordinated
notes issued during 1998. The net proceeds from the issuance of the Series B
Notes were used to repay amounts previously outstanding under our credit
facility. On September 10, 1999, we completed an offer to exchange 11-3/8%
unsecured senior subordinated notes, registered under the Securities Act of
1933, for any and all outstanding Series B Notes.
In connection with the $130 million of senior subordinated notes, each
of our significant domestic restricted subsidiaries, as defined in the Indenture
(the "Guarantor Subsidiaries"), irrevocably and unconditionally guarantees
MSXI's performance under the notes as primary obligors. See Note 17 for
additional information.
29
<PAGE> 31
MSX INTERNATIONAL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (CONTINUED)
(DOLLARS IN THOUSANDS UNLESS STATED OTHERWISE)
Credit Facility
On November 30, 1999, we entered into an amended and restated credit
facility with commercial banks and institutional lenders led by Bank One
Corporation, as agent. At the effective date of December 7, 1999, the facility
provided borrowing capacity on a senior-secured basis of up to $180 million, as
defined, to replace our prior credit facility, which provided borrowing capacity
of $130 million. The new credit facility includes an amended and restated $30
million five-year term loan, an amended and restated $100 million five-year
revolving credit facility and an additional $50 million seven-year institutional
term loan that may be increased to as much as $75 million on the same terms. See
Note 16 for recent developments related to our credit facility. Term loan
borrowings are subject to satisfaction of the same borrowing base requirements
and financial reporting and operating covenants as are other borrowings under
the new credit facility. The revolving credit portion of the facility provides
for borrowings as revolving credit loans, letters of credit and swingline loans.
The revolving credit portion of the new facility expires December 7, 2004.
Revolving credit loans, swingline loans and letters of credit (collectively
"Revolving Debt") are payable on demand. Interest on loans under the new credit
facility is payable quarterly or, if earlier, at the end of each interest period
and accrues at an annual rate equal to a floating rate, as defined, except for
swingline loans which accrue at an annual rate equal to a fixed or floating rate
as negotiated at the time of borrowing.
The $30 million term loan, as amended and restated, matures on
December 7, 2004 with principal payments due quarterly, on a graduated basis,
until maturity. The additional $50 million senior secured institutional term
loan matures on December 7, 2006. Principal payments of .25% of the
institutional term loan are payable quarterly in years one through six with the
balance payable in year seven. The maturities of term loans, as of January 2,
2000, during the next five years are:
<TABLE>
<CAPTION>
YEAR AMOUNT
---- ------
<S> <C>
2000 $3,500
2001 5,000
2002 6,500
2003 8,000
2004 9,500
</TABLE>
Each of our significant domestic subsidiaries and selected other
subsidiaries guarantees all obligations of MSXI under the new credit facility.
In addition, MSXI has pledged the stock of such domestic subsidiaries and 65% of
the stock of significant foreign subsidiaries. Additionally, a first lien exists
on substantially all assets of such domestic subsidiaries. Pursuant to the
agreement, we are also finalizing documents to provide a first lien on the
assets of our UK subsidiaries. The obligations of MSXI under the new credit
facility rank senior to all other indebtedness, including the senior
subordinated notes.
The new credit facility contains certain reporting covenants, customary
affirmative covenants and various negative covenants including, but not limited
to, certain limitations on mergers, sales of assets, acquisitions, liens,
investments, indebtedness, contingent obligations, dividends, subsidiaries'
ability to agree to dividend restrictions, affiliate transactions and changes of
business. The new credit facility also contains certain covenants with respect
to employee benefit arrangements and environmental matters and certain financial
covenants including, but not limited to, a ratio of total debt to EBITDA, a
ratio of senior debt to EBITDA, a fixed charge coverage ratio and a minimum net
worth requirement, each as defined.
As of January 2, 2000, $26.1 million was outstanding under the
revolving credit portion of our credit facility and has been classified as
long-term debt as we have both the ability and intent to refinance such amounts
under the credit facility.
30
<PAGE> 32
MSX INTERNATIONAL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (CONTINUED)
(DOLLARS IN THOUSANDS UNLESS STATED OTHERWISE)
Chelsea Credit Facility
As of January 2, 2000, Chelsea Computer Consultants, Inc., which was
acquired in September 1999, maintains a financing arrangement that provides for
lines of credit up to 90% of its eligible accounts receivable, not to exceed a
maximum line of credit of $6 million. The arrangement, which bears interest at
the prevailing prime lending rate plus 2 percent, expires on March 31, 2000 at
which time any outstanding amounts are expected to be refinanced with borrowings
under our credit facility. Borrowings under the arrangement are collateralized
by a security interest in Chelsea's account receivable.
Satiz Credit Facility
As of December 31, 1999, Satiz S.r.l., which was acquired on December
31, 1999, maintained a financing arrangement with Fidis S.p.A. that provides for
borrowings up to 100% of its eligible accounts receivable, as defined in the
agreement. Borrowings under the arrangement bear interest at the Euribor rate
plus 0.975% and are collateralized by the underlying accounts receivable. The
agreement expires on December 12, 2001 and will be automatically renewed for
additional 12-month periods unless terminated by either party. Fidis S.p.A. is a
subsidiary of Fiat S.p.A. who owns a minority interest in Satiz.
Fair Value of Debt
The estimated fair values and carrying amounts of debt borrowings are
as follows:
<TABLE>
<CAPTION>
AT JANUARY 3, 1999 AT JANUARY 2, 2000
----------------------------------- ---------------------------------
FAIR VALUE BOOK VALUE FAIR VALUE BOOK VALUE
---------------- ---------------- ----------------- ------------
<S> <C> <C> <C> <C>
Senior Subordinated Notes $97,500 $100,000 $120,900 $130,000
Credit Facilities 84,937 84,937 115,846 115,846
================ ================ ================= ============
Total $182,437 $184,937 $236,746 $245,846
================ ================ ================= ============
</TABLE>
The fair value of senior subordinated notes was determined based on
quoted market prices. The fair values of amounts outstanding under the credit
facilities approximate their carrying amounts as the variable rates inherent in
the related financial instruments reflect changes in the overall market interest
rates.
9. BOOK OVERDRAFTS:
Book overdrafts represent checks drawn on zero balance accounts that
have not yet been presented to our banks for funding. Such overdrafts are funded
when the related checks are presented and are not subject to finance charges.
There were aggregate book overdrafts of $14.3 million and $17.2 million at
January 3, 1999 and January 2, 2000, respectively. Such balances are included in
accounts payable and drafts in the consolidated balance sheets.
31
<PAGE> 33
MSX INTERNATIONAL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (CONTINUED)
(DOLLARS IN THOUSANDS UNLESS STATED OTHERWISE)
10. COMMITMENTS AND CONTINGENCIES:
MSXI is from time to time subject to various legal actions and claims
incidental to our business. Litigation is subject to many uncertainties and
the outcome of individual litigated matters is not predictable with assurance.
It is the opinion of management that the outcome of such matters will not have
a material adverse impact on the consolidated financial position, results of
operations or cash flows of MSXI.
MSXI and its subsidiaries have leases for real estate and equipment
utilized in its business. In most cases, management expects that in the normal
course of business these leases will be renewed or replaced by other leases.
Future minimum rental payments required under leases that have an initial or
remaining non-cancelable lease term in excess of one year are as follows:
<TABLE>
<CAPTION>
TOTAL
----------
<S> <C>
Fiscal year ended:
2000 $ 25,714
2001 19,751
2002 11,645
2003 10,497
2004 10,467
Thereafter 39,160
----------
$117,234
==========
</TABLE>
Rental expense was about $17.6 million, $22.3 million and $25.8
million in each of fiscal 1997, 1998, and 1999, respectively.
11. REDEEMABLE SERIES A PREFERRED STOCK:
In connection with the TSG Acquisition, we issued 360,000 shares of 12%
Series A Cumulative Redeemable Preferred Stock (the "Preferred Stock") with a
stated value and redemption value of $100 per share or $36 million in total. We
are authorized to issue up to 1,500,000 shares of Preferred Stock, divided into
two classes: 500,000 shares of Redeemable Series A Preferred Stock, par value
$0.01, and 1,000,000 shares of New Preferred Stock, par value $0.01.
Dividends on the Preferred Stock are payable in cash at the rate per
annum equal to 12% of the stated value plus an amount equal to any accrued and
unpaid dividends. As of January 2, 2000, we have not declared any dividends.
Accordingly, no dividends have been paid or accrued. Dividends accumulated, but
not declared, aggregate approximately $15.0 million as of January 2, 2000. We
may not declare or pay any dividends or other distribution with respect to any
common stock or other class or series of stock ranking junior to the Preferred
Stock without first complying with restrictions specified in the Stockholders'
Agreement. The Preferred Stock, which has no voting rights, is mandatorily
redeemable at the earlier of December 31, 2008 or the date on which a sale
transaction, as defined, occurs. We may redeem any or all of the Preferred Stock
at our election prior to December 31, 2008. We may also elect to acquire shares
of the Preferred Stock from time to time without redeeming or otherwise
acquiring all or any other issued shares of the Preferred Stock pursuant to the
terms of the Stockholders' Agreement. As of January 2, 2000, we have not
redeemed or acquired any Preferred Stock.
32
<PAGE> 34
MSX INTERNATIONAL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (CONTINUED)
(DOLLARS IN THOUSANDS UNLESS STATED OTHERWISE)
12. SHAREHOLDERS' DEFICIT:
The common stock at par value resulted from the initial capitalization
of MSXI by MascoTech, CVC and certain members of management. The additional
paid-in capital amount at December 28, 1997 of approximately $(22.3) million
represented amounts received from the issuance of common stock in excess of par
value of $3.8 million, reduced by amounts paid to MascoTech for the acquisition
of TSG in excess of book value as of December 31, 1996 of $(26.1) million. As
the acquisition of TSG did not involve a change in control, the acquisition was
recorded at carryover basis. In accordance with FAS 109, "Accounting for Income
Taxes," we established deferred taxes related to the TSG Acquisition by
recording an increase in additional paid-in capital in the amount of $10.4
million. In 1998, in connection with preparing our initial tax returns, which
incorporated the opening balance sheet of TSG, certain adjustments to the
estimated tax assets and liabilities acquired were identified when the final
allocation of taxable temporary differences related to the acquisition was
completed. These adjustments have been reflected as a change in additional
paid-in capital.
13. EMPLOYEE BENEFIT PLANS:
We maintain a qualified cash or deferred compensation plan under
Section 401(k) of the Internal Revenue Code. Participation in this plan is
available to substantially all salaried employees and to certain groups of
hourly employees. Under the plan, employees may elect to defer up to 20 percent
of their annual wages, subject to the limitations of the Internal Revenue Code.
Effective in fiscal 1999, MSXI contributes matching contributions, at varying
rates, for all participating employees. The annual cost to administer the plan
and fund matching contributions was $0.1 million in fiscal 1998 and $0.7 million
in fiscal 1999. The cost of the plan was not significant in fiscal 1997.
Contributions to union-sponsored, multi-employer pension plans were
approximately $0.7 million in 1997, $0.7 million in 1998 and $0.6 million in
1999. These plans are not administered by MSXI and contributions are determined
in accordance with provisions of negotiated labor contracts. MSXI has no present
intention of withdrawing from any of these plans, nor has MSXI been informed
that there is any intention to terminate such plans.
We also have an unfunded deferred compensation plan for certain
salaried employees. Individual participants make pre-tax contributions to the
plan and MSXI matches up to 5 percent of the individual's annual salary. MSXI
contributions vest over a period of time. Individuals may elect to receive a
lump sum or defined payments of vested balances upon retirement or termination.
The deferred compensation plan liability was $3.4 million at both January 3,
1999 and January 2, 2000. This deferred compensation plan liability is an
unfunded and unsecured obligation of MSXI. However, MSXI has, through deposits
to a grantor trust, restricted certain corporate assets having a fair value of
$1.6 million and $1.3 million at January 3, 1999 and January 2, 2000,
respectively, that are intended to be used to settle a portion of the
obligation.
Included in deferred compensation liabilities as of January 2, 2000 is
$6.9 million of deferred employee termination indemnities. The accrued
indemnities are obligations of Satiz, which was acquired effective December 31,
1999. Under Italian labor laws and regulations all employees are entitled to an
indemnity upon termination of their employment relationship. The benefit accrues
to the employees on a pro-rata basis during their employment period and is based
upon individual salaries. The vested benefit payable accrues interest, and
employees can receive advances thereof, in certain specified situations, all
defined in the applicable labor contract regulations. The liability as of
January 2, 2000 reflects the total amount of the indemnities, net of any
advances taken, that applicable employees would be entitled to receive if
termination were to occur as of that date.
33
<PAGE> 35
MSX INTERNATIONAL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (CONTINUED)
(DOLLARS IN THOUSANDS UNLESS STATED OTHERWISE)
With the APX Acquisition, we acquired certain obligations with respect
to a frozen defined benefit pension plan. The plan was frozen in 1988 and covers
certain union and non-union employees who were formerly employed by Autodynamics
Corporation of America, Inc., a company acquired previously by one of the
companies that comprised APX. This plan is not administered by MSXI.
Contributions are determined in accordance with provisions of the plan. This
plan is not material to our financial position or results of operations.
14. INCOME TAXES:
<TABLE>
<CAPTION>
FISCAL YEAR FISCAL YEAR FISCAL YEAR
ENDED ENDED ENDED
DECEMBER 28, JANUARY 3, JANUARY 2,
1997 1999 2000
--------------- -------------- --------------
<S> <C> <C> <C>
Income (loss) before income taxes for U.S. and
foreign operations was:
Domestic $3,236 $2,898 $16,539
Foreign (5,984) 2,941 650
--------------- -------------- --------------
$(2,748) $5,839 $17,189
=============== ============== ==============
The provision for income taxes (benefit) was:
Currently payable:
Federal $1,049 $ (573) $2,513
Foreign (640) 2,178 3,026
State - 104 280
Deferred:
Federal 315 1,871 3,628
Foreign (499) (512) (2,452)
--------------- -------------- --------------
$225 $3,068 $6,995
=============== ============== ==============
Deferred tax assets (liabilities) included:
Amortizable goodwill $ 9,111 $7,890 $4,003
Accrued interest expense 2,023 1,019 1,537
Accrued liabilities and deferred compensation 863 (1,662) 1,114
Net operating losses 360 3,604 2,391
German tax benefit 332 - -
Depreciation 1,937 1,264 3,168
Accounts receivable (984) (587) (606)
Valuation allowance (535) (736) (920)
Unrealized foreign gain - 181 (569)
Other, net 641 332 801
--------------- -------------- --------------
Net deferred tax asset $ 13,748 $11,305 $10,919
=============== ============== ==============
</TABLE>
The valuation allowance has been provided for specific items where
management has determined that the likelihood of realization is not sufficient
to allow for recognition of the asset. The utilization of these attributes is
subject to various limitations as provided within current tax laws. Net
operating losses can be used to offset income of certain foreign subsidiaries
and can be carried forward indefinitely.
34
<PAGE> 36
MSX INTERNATIONAL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (CONTINUED)
(DOLLARS IN THOUSANDS UNLESS STATED OTHERWISE)
The following is a reconciliation of taxes at the U.S. federal
statutory rate to the provision for income taxes:
<TABLE>
<CAPTION>
FISCAL YEAR FISCAL YEAR FISCAL YEAR
ENDED ENDED ENDED
DECEMBER 28, JANUARY 3, JANUARY 2,
1997 1999 2000
---------------- ---------------- ----------------
<S> <C> <C> <C>
U.S statutory rate 35% 35% 35%
--- --- ---
Tax at U.S. statutory rate $(961) $2,043 $6,016
Valuation allowance 535 201 184
Higher effective foreign tax rate 351 367 161
Other, net 300 457 634
---------------- ---------------- ----------------
$225 $3,068 $6,995
================ ================ ================
</TABLE>
As of December 28, 1997, January 3, 1999 and January 2, 2000, a
provision had not been made for United States or additional foreign taxes on
approximately $1.4 million, $2.3 million and $0.6 million, respectively, of
undistributed earnings of foreign subsidiaries, as those earnings were intended
to be permanently reinvested. Generally, such earnings become taxable upon the
remittance of dividends and under certain other circumstances. It was not
practicable to estimate the amount of deferred tax liability on such
undistributed earnings.
15. SEGMENT INFORMATION:
MSXI is a global provider of complementary outsourcing services to the
automotive and other industries. We group our services into three categories:
engineering services; staffing services; and business and technology services.
Due to the similar characteristics of our service lines, including the nature of
our service offerings, processes supporting the delivery of our services, our
customers, and our marketing and sales processes, our operations have been
aggregated following the provisions of SFAS No. 131 for segment reporting
purposes.
The following is a summary of our net sales by service line:
<TABLE>
<CAPTION>
FISCAL YEAR ENDED
---------------------------------------------------
DECEMBER 28, JANUARY 3, JANUARY 2,
1997 1999 2000
---------------- -------------- -------------
<S> <C> <C> <C>
Engineering Services $ 202,078 $ 220,639 $ 293,510
Staffing Services 111,211 155,627 308,489
Business & Technology Services 64,725 157,676 157,843
---------------- -------------- -------------
Total net sales $ 378,014 $ 533,942 $ 759,842
================ ============== =============
</TABLE>
35
<PAGE> 37
MSX INTERNATIONAL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (CONTINUED)
(DOLLARS IN THOUSANDS UNLESS STATED OTHERWISE)
We evaluate performance based on earnings before interest and taxes
(EBIT), including the Michigan Single Business Tax, as defined. A reconciliation
of consolidated EBIT to consolidated income (loss) before income taxes is as
follows:
<TABLE>
<CAPTION>
FISCAL YEAR FISCAL YEAR FISCAL YEAR
ENDED ENDED ENDED
DECEMBER 28, JANUARY 3, JANUARY 2,
1997 1999 2000
----------------- ----------------- -----------------
<S> <C> <C> <C>
Total EBIT $12,520 $26,771 $43,964
Interest expense (12,400) (17,416) (21,141)
Michigan Single Business Tax (2,868) (3,516) (5,634)
----------------- ----------------- -----------------
Consolidated income (loss) before taxes $(2,748) $5,839 $17,189
================= ================= =================
</TABLE>
Sales and long-lived asset information by geographic area are as
follows:
<TABLE>
<CAPTION>
SALES LONG-LIVED ASSETS
------------------------------------------------ ---------------------------------------------
FISCAL YEAR FISCAL YEAR FISCAL YEAR
ENDED ENDED ENDED AS OF AS OF AS OF
DECEMBER 28, JANUARY 3, JANUARY 2, DECEMBER 28, JANUARY 3, JANUARY 2,
1997 1999 2000 1997 1999 2000
-------------- --------------- --------------- --------------- ------------- -------------
<S> <C> <C> <C> <C> <C> <C>
United States $276,610 $362,704 $552,142 $63,436 $106,580 $153,744
Foreign:
United Kingdom 72,105 110,362 138,614 7,593 12,144 12,408
Other Foreign(1) 29,299 60,876 69,086 4,025 3,883 20,627
-------------- --------------- --------------- --------------- ------------- -------------
Total $378,014 $533,942 $759,842 $75,054 $122,607 $186,779
============== =============== =============== =============== ============= =============
</TABLE>
(1) Other Foreign long-lived assets at January 2, 2000 include
$10 million of assets Acquired in the Satiz Acquisition
effective December 31, 1999.
16. SUBSEQUENT EVENT:
On February 23, 2000 we acquired the professional staffing operations
of Corporate Staffing Resources of South Bend, Indiana. Specifically, we
acquired 100% of the outstanding common stock of Intranational Computer
Consultants and Programming Management and Systems and selected assets and
liabilities of CMS Management Services and Ascend. These companies provide
information technology and technical professional staffing throughout the United
States with combined historical annual revenues over $57 million.
In early 2000, the seven-year institutional term loan, with principal
outstanding of $50 million as of January 2, 2000, was increased to $75 million
pursuant the terms of our amended and restated credit facility. Upon completion
of the syndication of the credit facility, our total borrowing capacity
increased to $205 million. Proceeds from the additional term debt were used to
repay amounts outstanding under the revolving credit portion of the credit
facility. See Note 8 for further information.
36
<PAGE> 38
MSX INTERNATIONAL, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (CONTINUED)
(DOLLARS IN THOUSANDS UNLESS STATED OTHERWISE)
17. GUARANTOR AND NON-GUARANTOR SUBSIDIARIES:
In connection with our $130 million of senior subordinated notes
outstanding, each of our significant domestic restricted subsidiaries, as
defined in the related bond indenture (the "Guarantor Subsidiaries"),
irrevocably and unconditionally guarantee MSXI's performance as primary obligor.
The following condensed consolidating financial data provides information
regarding the financial position, results of operations and cash flows of the
Guarantor Subsidiaries as set forth below. Separate financial statements of the
Guarantor Subsidiaries are not presented because management has determined those
would not be material to the holders of the senior subordinated notes.
The Guarantor Subsidiaries account for their investments in the
non-guarantor subsidiaries, if any, on the equity method. The principal
elimination entries are to eliminate the investments in subsidiaries and
intercompany balances and transactions.
GRI is a guarantor subsidiary. The statements of operations and cash
flows for the eight months ended August 31, 1997 are separately included below
on a consolidated basis with its subsidiaries. The results of GRI are included
in the consolidated results of MSXI from September 1, 1997 forward.
37
<PAGE> 39
17. GUARANTOR AND NON-GUARANTOR SUBSIDIARIES: - (CONTINUED)
MSX INTERNATIONAL, INC.
CONDENSED CONSOLIDATING BALANCE SHEET
AS OF JANUARY 3, 1999
<TABLE>
<CAPTION>
MSXI GUARANTOR NON-GUARANTOR MSXI
(ISSUER) SUBSIDIARIES SUBSIDIARIES ELIMINATIONS CONSOLIDATED
-------- ------------ -------------- ------------ ------------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ -- $ 1,690 $ 2,558 $ -- $ 4,248
Accounts receivable, net -- 145,715 62,736 -- 208,451
Inventory -- 2,315 47 -- 2,362
Prepaid expenses and other assets 530 3,499 1,530 -- 5,559
Deferred income taxes -- -- 961 -- 961
--------- --------- --------- --------- ---------
Total current assets 530 153,219 67,832 -- 221,581
Property and equipment, net -- 23,255 12,010 -- 35,265
Buildings held for sale -- 15,000 -- -- 15,000
Goodwill and other intangibles, net -- 60,620 3,658 -- 64,278
Investment in subsidiaries 157,918 33,703 -- (191,621) --
Other assets 4,801 2,904 359 -- 8,064
Deferred income taxes 911 8,800 2,825 -- 12,536
--------- --------- --------- --------- ---------
Total assets $ 164,160 $ 297,501 $ 86,684 $(191,621) $ 356,724
========= ========= ========= ========= =========
LIABILITIES AND SHAREHOLDERS' EQUITY (DEFICIT)
Current liabilities:
Notes payable and current portion
of long-term debt $ -- $ -- $ 4,581 $ -- $ 4,581
Accounts payable and drafts -- 74,705 15,181 -- 89,886
Accrued liabilities 695 40,362 9,086 (32) 50,111
Contractual acquisition obligation -- 15,000 -- -- 15,000
Deferred income taxes -- 930 1,262 -- 2,192
--------- --------- --------- --------- ---------
Total current liabilities 695 130,997 30,110 (32) 161,770
Long-term debt 173,238 -- 7,118 -- 180,356
Intercompany accounts (55,748) 26,916 28,832 -- --
Long-term deferred compensation liability
and other -- 4,629 74 -- 4,703
--------- --------- --------- --------- ---------
Total liabilities 118,185 162,542 66,134 (32) 346,829
Redeemable Series A Preferred Stock 36,000 -- -- -- 36,000
Shareholders' equity (deficit) 9,975 134,959 20,550 (191,589) (26,105)
--------- --------- --------- --------- ---------
Total liabilities and shareholders'
equity (deficit) $ 164,160 $ 297,501 $ 86,684 $(191,621) $ 356,724
========= ========= ========= ========= =========
</TABLE>
38
<PAGE> 40
17. GUARANTOR AND NON-GUARANTOR SUBSIDIARIES: - (CONTINUED)
MSX INTERNATIONAL, INC.
CONDENSED CONSOLIDATING BALANCE SHEET
AS OF JANUARY 2, 2000
<TABLE>
<CAPTION>
MSXI GUARANTOR NON-GUARANTOR MSXI
(ISSUER) SUBSIDIARIES SUBSIDIARIES ELIMINATIONS CONSOLIDATED
-------- ------------ ------------ ------------ ------------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ -- $ 873 $ 6,006 $ -- $ 6,879
Accounts receivable, net -- 182,380 123,093 -- 305,473
Inventory -- 2,237 1,896 -- 4,133
Prepaid expenses and other assets 389 4,493 5,125 -- 10,007
Deferred income taxes -- 1,112 1,313 -- 2,425
--------- --------- --------- --------- ---------
Total current assets 389 191,095 137,433 -- 328,917
Property and equipment, net -- 24,891 19,219 -- 44,110
Goodwill and other intangibles, net -- 101,912 21,106 -- 123,018
Investment in subsidiaries 169,110 34,727 9,485 (203,837) 9,485
Other assets 7,397 2,232 537 -- 10,166
Deferred income taxes -- 5,779 2,715 -- 8,494
--------- --------- --------- --------- ---------
Total assets $ 176,896 $ 360,636 $ 190,495 $(203,837) $ 524,190
========= ========= ========= ========= =========
LIABILITIES AND SHAREHOLDERS' EQUITY (DEFICIT)
Current liabilities:
Notes payable and current portion
of long-term debt $ 3,500 $ -- $ 9,790 $ -- $ 13,290
Accounts payable and drafts -- 93,374 68,599 -- 161,973
Accrued liabilities (4,716) 74,954 19,184 (33) 89,389
Deferred income taxes -- -- -- -- --
--------- --------- --------- --------- ---------
Total current liabilities (1,216) 168,328 97,573 (33) 264,652
Long-term debt 217,750 -- 14,806 -- 232,556
Intercompany accounts (84,076) 39,020 45,056 -- --
Long-term deferred compensation liabilities
and other -- 4,402 6,873 -- 11,275
--------- --------- --------- --------- ---------
Total liabilities 132,458 211,750 164,308 (33) 508,483
Minority Interest -- -- 286 -- 286
Redeemable Series A Preferred Stock 36,000 -- -- -- 36,000
Shareholders' equity (deficit) 8,438 148,886 25,901 (203,804) (20,579)
--------- --------- --------- --------- ---------
Total liabilities and shareholders'
equity (deficit) $ 176,896 $ 360,636 $ 190,495 $(203,837) $ 524,190
========= ========= ========= ========= =========
</TABLE>
39
<PAGE> 41
17. GUARANTOR AND NON-GUARANTOR SUBSIDIARIES: - (CONTINUED)
MSX INTERNATIONAL, INC.
CONDENSED CONSOLIDATING STATEMENTS OF INCOME
FOR THE THREE FISCAL YEARS ENDED JANUARY 2, 2000
<TABLE>
<CAPTION>
MSXI GUARANTOR NON-GUARANTOR MSXI
(ISSUER) SUBSIDIARIES SUBSIDIARIES ELIMINATIONS CONSOLIDATED
-------- ------------ ------------ ------------ ------------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
FISCAL YEAR ENDED DECEMBER 28, 1997
Net sales $ -- $ 276,609 $ 101,405 $ -- $ 378,014
Cost of sales -- 234,467 93,020 -- 327,487
--------- --------- --------- --------- ---------
Gross profit -- 42,142 8,385 -- 50,527
Selling, general and administrative expenses -- 26,548 11,435 -- 37,983
Amortization of goodwill and other intangibles -- 892 -- -- 892
Restructuring costs -- 2,000 -- -- 2,000
--------- --------- --------- --------- ---------
Operating income (loss) -- 12,702 (3,050) -- 9,652
Interest income (expense), net (9,542) 76 (2,934) -- (12,400)
Equity in subsidiary earnings (loss) 3,324 (4,845) -- 1,521 --
--------- --------- --------- --------- ---------
Income (loss) before income taxes (6,218) 7,933 (5,984) 1,521 (2,748)
Income tax provision (benefit) (3,245) 4,609 (1,139) -- 225
--------- --------- --------- --------- ---------
Net income (loss) $ (2,973) $ 3,324 $ (4,845) $ 1,521 (2,973)
========= ========= ========= ========= =========
FISCAL YEAR ENDED JANUARY 3, 1999
Net sales $ -- $ 362,703 $ 171,239 $ -- $ 533,942
Cost of sales -- 303,759 146,155 -- 449,914
--------- --------- --------- --------- ---------
Gross profit -- 58,944 25,084 -- 84,028
Selling, general and administrative expenses -- 40,473 18,610 -- 59,083
Amortization of goodwill and other intangibles -- 1,583 107 -- 1,690
--------- --------- --------- --------- ---------
Operating income -- 16,888 6,367 -- 23,255
Interest income (expense), net (16,064) 2,074 (3,426) -- (17,416)
Equity in subsidiary earnings 13,334 1,274 -- (14,608) --
--------- --------- --------- --------- ---------
Income (loss) before income taxes (2,730) 20,236 2,941 (14,608) 5,839
Income tax provision (benefit) (5,501) 6,902 1,667 -- 3,068
--------- --------- --------- --------- ---------
Net income $ 2,771 $ 13,334 $ 1,274 $ (14,608) $ 2,771
========= ========= ========= ========= =========
FISCAL YEAR ENDED JANUARY 2, 2000
Net sales $ -- $ 540,886 $ 231,102 $ (12,146) $ 759,842
Cost of sales -- 460,554 205,134 (12,146) 653,542
--------- --------- --------- --------- ---------
Gross profit -- 80,332 25,968 -- 106,300
Selling, general and administrative expenses -- 42,760 22,054 -- 64,814
Amortization of goodwill and other intangibles -- 2,767 389 -- 3,156
--------- --------- --------- --------- ---------
Operating income -- 34,805 3,525 -- 38,330
Interest income (expense), net (19,934) 1,412 (2,619) -- (21,141)
Equity in subsidiary earnings 23,002 168 -- (23,170) --
--------- --------- --------- --------- ---------
Income before income taxes 3,068 36,385 906 (23,170) 17,189
Income tax provision (benefit) (7,126) 13,383 738 -- 6,995
--------- --------- --------- --------- ---------
Net income $ 10,194 $ 23,002 $ 168 $ (23,170) $ 10,194
========= ========= ========= ========= =========
</TABLE>
40
<PAGE> 42
17. GUARANTOR AND NON-GUARANTOR SUBSIDIARIES: - (CONTINUED)
MSX INTERNATIONAL, INC.
CONDENSED CONSOLIDATING STATEMENT OF CASH FLOWS
FOR THE FISCAL YEAR ENDED DECEMBER 28, 1997
<TABLE>
<CAPTION>
MSXI GUARANTOR NON-GUARANTOR MSXI
(ISSUER) SUBSIDIARIES SUBSIDIARIES ELIMINATIONS CONSOLIDATED
-------- ------------ ------------- ------------ ------------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
Cash flows from operating activities:
Net income (loss) $ (6,297) $ 8,169 $ (4,845) $ -- $ (2,973)
Equity in earnings of subsidiaries 3,324 (4,845) -- 1,521 --
Adjustments to reconcile net income (loss)
to net cash provided by (used for)
operating activities:
Depreciation -- 5,523 3,444 -- 8,967
Amortization -- 892 -- -- 892
(Increase) decrease in receivables, net -- (28,394) (7,949) -- (36,343)
(Increase) decrease in inventory -- (310) 1 -- (309)
(Increase) decrease in prepaid expenses
and other assets -- (828) (685) -- (1,513)
Increase (decrease) in current
liabilities 4,144 28,414 (2,071) -- 30,487
Other, net -- 2,861 (285) -- 2,576
--------- --------- --------- --------- ---------
Net cash provided by (used in) operating
activities 1,171 11,482 (12,390) 1,521 1,784
--------- --------- --------- --------- ---------
Cash flows from investing activities:
Capital expenditures -- (7,433) (4,085) -- (11,518)
Acquisition of businesses, net of cash received (141,260) 18,454 (30,327) (6,004) (159,137)
Investment in foreign subsidiaries -- (24,378) -- 24,378 --
Other, net -- (8) 3 -- (5)
--------- --------- --------- --------- ---------
Net cash used for investing activities (141,260) (13,365) (34,409) 18,374 (170,660)
--------- --------- --------- --------- ---------
Cash flows from financing activities:
Intercompany (32,662) 2,052 30,610 -- --
Investment in subsidiaries -- 8 19,385 (19,393) --
Equity of subsidiaries (3,324) 3,794 -- (470) --
Proceeds from issuance of debt 70,000 -- -- -- 70,000
Changes in revolving debt 66,275 -- 7,124 -- 73,399
Changes in book overdraft -- (669) -- -- (669)
Sale of Redeemable Preferred Stock 36,000 -- -- -- 36,000
Sale of Common Stock 3,800 -- -- -- 3,800
Other, net -- (830) (76) (32) (938)
--------- --------- --------- --------- ---------
Net cash provided by financing activities 140,089 4,355 57,043 (19,895) 181,592
--------- --------- --------- --------- ---------
Effect of foreign exchange rate changes on
cash and cash equivalents -- (23) (1,118) -- (1,141)
--------- --------- --------- --------- ---------
Cash and cash equivalents:
Increase for the period -- 2,449 9,126 -- 11,575
Balance, beginning of period -- -- -- -- --
--------- --------- --------- --------- ---------
Balance, end of period $ -- $ 2,449 $ 9,126 $ -- $ 11,575
========= ========= ========= ========= =========
</TABLE>
41
<PAGE> 43
17. GUARANTOR AND NON-GUARANTOR SUBSIDIARIES: - (CONTINUED)
MSX INTERNATIONAL, INC.
CONDENSED CONSOLIDATING STATEMENT OF CASH FLOWS
FOR THE FISCAL YEAR ENDED JANUARY 3, 1999
<TABLE>
<CAPTION>
NON-
MSXI GUARANTOR GUARANTOR MSXI
(ISSUER) SUBSIDIARIES SUBSIDIARIES ELIMINATIONS CONSOLIDATED
------------ ------------- ------------- ------------ -------------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
Cash flows from operating activities:
Net income (loss) $ (10,563) $ 12,060 $ 1,274 $ - $ 2,771
Equity in earnings of subsidiaries 13,334 1,274 - (14,608) -
Adjustments to reconcile net income
(loss) to net cash provided by operating
activities:
Depreciation - 7,607 4,301 - 11,908
Amortization 511 1,583 107 - 2,201
Deferred taxes (911) 3,217 (1,268) - 1,038
(Gain) loss on sale of property and
equipment - 194 (32) - 162
(Increase) decrease in receivables, net - 1,249 (13,078) - (11,829)
(Increase) decrease in inventory - (25) (11) - (36)
(Increase) decrease in prepaid expenses
and other assets (530) (1,264) 2,161 - 367
Increase (decrease) in current liabilities 695 13,155 6,052 - 19,902
Other, net (676) 1,039 2,470 (2,847) (14)
--------- --------- --------- --------- ---------
Net cash provided by operating activities 1,860 40,089 1,976 (17,455) 26,470
--------- --------- --------- --------- ---------
Cash flows from investing activities:
Capital expenditures - (6,025) (5,534) - (11,559)
Acquisition of businesses, net of cash
received - (38,460) (4,480) - (42,940)
Proceeds from disposal of property and
equipment - 764 467 - 1,231
--------- --------- --------- --------- ---------
Net cash used for investing activities - (43,721) (9,547) - (53,268)
--------- --------- --------- --------- ---------
Cash flows from financing activities:
Intercompany (20,933) 23,524 (2,591) - -
Investment in subsidiaries - (15,970) 10,645 5,325 -
Equity of subsidiaries (13,334) 6,780 (4,174) 10,728 -
Proceeds from issuance of debt 122,883 - 7,117 - 130,000
Debt issuance costs (4,637) - - - (4,637)
Payment of Senior Subordinated Notes and
Bridge Loans (70,000) - - - (70,000)
Changes in revolving debt (15,919) (234) (12,068) - (28,221)
Changes in book overdraft - (9,762) 1,799 - (7,963)
Sale of Common Stock 80 - - - 80
Other, net - 1 212 - 213
--------- --------- --------- --------- ---------
Net cash provided by financing activities (1,860) 4,339 940 16,053 19,472
--------- --------- --------- --------- ---------
Effect of foreign exchange rate changes on cash
and cash equivalents - (1,466) 63 1,402 (1)
--------- --------- --------- --------- ---------
Cash and cash equivalents:
Decrease for the period - (759) (6,568) - (7,327)
Balance, beginning of period - 2,449 9,126 - 11,575
--------- --------- --------- --------- ---------
Balance, end of period $ - $ 1,690 $ 2,558 $ - $ 4,248
========= ========= ========= ========= =========
</TABLE>
42
<PAGE> 44
17. GUARANTOR AND NON-GUARANTOR SUBSIDIARIES: - (CONTINUED)
MSX INTERNATIONAL, INC.
CONDENSED CONSOLIDATING STATEMENT OF CASH FLOWS
FOR THE FISCAL YEAR ENDED JANUARY 2, 2000
<TABLE>
<CAPTION>
NON-
MSXI GUARANTOR GUARANTOR MSXI
(ISSUER) SUBSIDIARIES SUBSIDIARIES ELIMINATIONS CONSOLIDATED
----------- ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C>
Cash flows from operating activities: (IN THOUSANDS)
Net income (loss) $(12,808) $ 22,834 $ 168 $ - $ 10,194
Equity in earnings of subsidiaries 23,002 168 - (23,170) -
Adjustments to reconcile net income (loss) to
net cash provided by operating activities:
Depreciation - 9,154 4,529 - 13,683
Amortization 695 2,767 390 - 3,852
Deferred taxes 911 1,165 (1,690) - 386
Loss on sale of property and
equipment - 530 741 - 1,271
(Increase) decrease in receivables, net - (32,605) 208 - (32,397)
(Increase) decrease in inventory - 78 25 - 103
(Increase) decrease in prepaid expenses
and other assets 141 (626) (1,844) - (2,329)
Increase (decrease) in current liabilities (5,411) 33,282 7,729 - 35,600
Other, net - (372) 267 (74) (179)
-------- -------- -------- -------- --------
Net cash provided by operating activities 6,530 36,375 10,523 (23,244) 30,184
-------- -------- -------- -------- --------
Cash flows from investing activities:
Capital expenditures - (11,272) (8,181) - (19,453)
Acquisition of businesses, net of cash
received - (34,342) (20,393) - (54,735)
Proceeds from buildings held for sale and
disposal of equipment - 15,693 571 - 16,264
-------- -------- -------- -------- --------
Net cash used for investing activities - (29,921) (28,003) - (57,924)
-------- -------- -------- -------- --------
Cash flows from financing activities:
Intercompany (28,329) 13,467 14,788 74 -
Investment in subsidiaries (27,850) 10,702 2,083 15,065 -
Equity of subsidiaries 10,587 (12,071) 3,491 (2,007) -
Proceeds from issuance of debt 79,415 (11) - - 79,404
Debt issuance costs (3,292) - - - (3,292)
Changes in revolving debt (31,403) (1,520) 3,969 - (28,954)
Changes in book overdraft - 1,462 1,419 - 2,881
Payment of contractual acquisition obligation - (15,000) - - (15,000)
Sale of Common Stock 59 - - - 59
-------- -------- -------- -------- --------
Net cash provided by (used for) financing
activities (813) (2,971) 25,750 13,132 35,098
-------- -------- -------- -------- --------
Effect of foreign exchange rate changes on cash
and cash equivalents (5,717) (4,300) (4,822) 10,112 (4,727)
-------- -------- -------- -------- --------
Cash and cash equivalents:
Increase (decrease) for the period - (817) 3,448 - 2,631
Balance, beginning of period - 1,690 2,558 - 4,248
-------- -------- -------- -------- --------
Balance, end of period $ - $ 873 $ 6,006 $ - $ 6,879
======== ======== ======== ======== ========
</TABLE>
43
<PAGE> 45
17. GUARANTOR AND NON-GUARANTOR SUBSIDIARIES: - (CONTINUED)
GEOMETRIC RESULTS INCORPORATED- SERVICES
(A FORMER BUSINESS UNIT OF GEOMETRIC RESULTS INCORPORATED AND SUBSIDIARIES)
CONDENSED CONSOLIDATED CARVE-OUT STATEMENT OF OPERATIONS
FOR THE EIGHT MONTH PERIOD ENDED AUGUST 31, 1997
<TABLE>
<CAPTION>
FOR THE
EIGHT MONTH
PERIOD ENDED
AUGUST 31,
1997
---------------
(DOLLARS IN
THOUSANDS)
<S> <C>
Net sales $431,134
Cost of sales 411,518
---------------
Gross profit 19,616
Selling, general and administrative expenses 13,636
Michigan Single Business Tax 239
---------------
Operating income 5,741
Other income, net 1,136
---------------
Income before income taxes 6,877
Income tax provision 2,908
---------------
Net income $3,969
===============
</TABLE>
44
<PAGE> 46
17. GUARANTOR AND NON-GUARANTOR SUBSIDIARIES: - (CONTINUED)
GEOMETRIC RESULTS INCORPORATED - SERVICES
(A FORMER UNIT OF GEOMETRIC RESULTS INCORPORATED AND SUBSIDIARIES)
CONDENSED CONSOLIDATED CARVE-OUT STATEMENT OF CASH FLOWS
FOR THE EIGHT MONTH PERIOD ENDED AUGUST 31, 1997
<TABLE>
<CAPTION>
FOR THE
EIGHT MONTH
PERIOD ENDED
AUGUST 31,
1997
--------------
(DOLLARS IN
THOUSANDS)
<S> <C>
Cash from (used for):
Operating activities:
Net income $3,969
Adjustments to reconcile net income to net cash
from operating activities:
Depreciation 3,960
Loss on disposal of assets 8
Provision for doubtful accounts (2)
Deferred income taxes 262
(Increase) decrease in receivables 39,865
(Increase) decrease in prepaid expenses and other assets (1,071)
Increase (decrease) in accounts payable (10,750)
Increase (decrease) in accrued payroll and benefits (1,962)
Increase (decrease) in income taxes due to parent 2,192
Increase (decrease) in accrued expenses (248)
-------------
Net cash from operating activities 36,223
-------------
Investing activities:
Proceeds from sale of assets -
Capital expenditures (4,047)
-------------
Net cash used for investing activities (4,047)
-------------
Financing activities:
Net borrowings on lines of credit from parent 2,135
Divisional equity transfer 1,007
Increase in cash overdraft 4,221
-------------
Net cash from financing activities 7,363
-------------
Effect of exchange rate changes on cash (441)
-------------
Cash and cash investments:
Increase for the period 39,098
At January 1 17,280
-------------
At end of period $56,378
=============
</TABLE>
45
<PAGE> 47
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT.
The following table sets forth certain information with respect to our
directors and executive officers as of January 2, 2000.
<TABLE>
<CAPTION>
NAME AGE POSITION
---- --- --------
<S> <C> <C>
Erwin H. Billig........................... 73 Chairman of the Board of Directors (Chief
Executive Officer until January 2000)
Thomas T. Stallkamp.................... 53 Vice Chairman and Chief Executive Officer
(effective January 2000)
Frederick K. Minturn.................... 43 Executive Vice President and Chief Financial
Officer
Roger Fridholm........................... 59 President, Business, Technology and Staffing
Services Division
John Risk.................................. 61 President, Engineering Services Division
Richard M. Cashin, Jr................... 46 Director
David E. Cole............................ 62 Director
Michael A. Delaney..................... 45 Director
Lee Gardner.............................. 52 Director
Richard A. Manoogian.................. 63 Director
</TABLE>
Erwin H. Billig served as Chief Executive Officer from April 28, 1998
until January 2000 and Chairman of the Board of Directors since January 3, 1997.
He served as Vice Chairman of MascoTech from 1994 to 1997 and was President and
Chief Operating Officer of MascoTech from 1986 to 1994. He is also the Chairman
of the Board of Directors of Titan Wheel International, Inc., a director of OEA,
Inc. and a director and Vice Chairman of Delco Remy International, Inc.
Thomas T. Stallkamp was appointed Vice Chairman and Chief Executive
Officer of MSX International effective January 2000. He also serves on the Board
of Directors for Kmart Corporation, PickupTruck.com and Baxter International.
Prior to joining MSX International, Mr. Stallkamp was Vice Chairman for
DaimlerChrysler Corporation and also served as President of Chrysler Corporation
in 1998. Prior to becoming President, Mr. Stallkamp served in various executive
level positions during his 20-year career with Chrysler Corporation.
Frederick K. Minturn has been Executive Vice President and Chief
Financial Officer since January 3, 1997. Mr. Minturn was Group Controller of
MascoTech's Automotive Operations from 1991 through December 1996 and was a Vice
President of such group from 1994 through December 1996.
Roger Fridholm has been President of the Business, Technology and
Staffing Services Division since May 26, 1998. Mr. Fridholm has also served as
President of St. Clair Group, Inc., a private investment company, since 1991 and
President of IPG Services Corporation since 1996, and as President of Ad Hoc,
Inc. since 1997, all of which are staffing service companies. Mr. Fridholm is a
director of The Stroh Companies, Inc., MascoTech, Inc., MCN Energy Group and
Comerica Bank.
John Risk has been President of the Engineering Services Division since
May 11, 1998. Mr. Risk retired from Ford Motor Company in 1997 where, during his
33-year career, he made major contributions to the company in a variety of key
appointments. Prior to joining MSXI, Mr. Risk was Director of the B-Car Vehicle
Line at Ford. In this capacity, he was responsible for all aspects of the Small
Car Program activities (including the Ka minicar) in both Europe and the U.S.
46
<PAGE> 48
Richard M. Cashin, Jr. has been a director since January 3, 1997. Mr.
Cashin has been president of CVC since 1994. Mr. Cashin is also a director of
Levitz Furniture Inc., Delco Remy International, Inc., LifeStyle Furnishings
International Ltd., Fairchild Semiconductor Corporation, FFC Holding, Inc.,
Cable Systems International, Euramax International, Plc, Titan Wheel
International, Inc., Hoover Group Inc., Thermal Engineering, Gerber
Childrenswear Inc., JAC Holding Corporation, GVC Holdings, Ballantrae
Corporation and Delta Commodities, Inc.
David E. Cole has been a director since January 3, 1997. Mr. Cole has
been the Director of the Office for the Study of Automotive Transportation
(OSAT) at the University of Michigan's Transportation Research Institute since
1978. Mr. Cole is a director of Mechanical Dynamics Inc., Thyssen Krupp, U.S.,
Saturn Electronics & Engineering, Inc., and Plastech Inc. Mr. Cole is also a
director of the Automotive Hall of Fame and is on the Board of Trustees of Hope
College.
Michael A. Delaney has been a director since January 3, 1997. Mr.
Delaney has been a Vice President of CVC since 1989. Mr. Delaney is also a
director of Allied Digital Technologies, Inc., GVC Holdings, JAC Holding
Corporation, ChipPAC Corporation, Palomar Technologies Corporation, Great Lakes
Dock & Dredge Corporation, SC Processing, Inc., Triumph Group, Inc., CLARK
Material Handling Inc., International Knife and Saw, Inc., Paper Pak Products,
Inc., AmeriSource Health Corporation and Delco Remy International, Inc.
Lee M. Gardner has been a director since January 3, 1997. Mr. Gardner
has served as President and Chief Operating Officer of MascoTech since 1992.
Richard A. Manoogian has been a director since January 3, 1997. Mr.
Manoogian served as Chairman, Chief Executive Officer and a director of
MascoTech from 1984 to 1998 and continues to serve as Chairman and as a
director. Mr. Manoogian is also Chairman of the Board and Chief Executive
Officer of Masco Corporation and a director of Bank One Corporation, Detroit
Renaissance and The American Business Conference.
Each of our directors holds office until a successor is elected and
qualified or until such director's earlier resignation or removal.
47
<PAGE> 49
ITEM 11. EXECUTIVE COMPENSATION.
SUMMARY OF CASH AND CERTAIN OTHER COMPENSATION
The following Summary Compensation Table sets forth certain information
with respect to all compensation paid or earned for services rendered to MSXI
for the last two fiscal years (except for bonus amounts, which are compensation
for services rendered in the immediately preceding year) of (i) those persons
who served as our Chief Executive Officer during fiscal 1999 and (ii) our
executive officers other than the Chief Executive Officer who were serving as
executive officers of MSXI at the end of fiscal 1999 (collectively, the "Named
Executive Officers"):
<TABLE>
<CAPTION>
SUMMARY COMPENSATION TABLE
ANNUAL COMPENSATION
-------------------------------------------------
OTHER ANNUAL
FISCAL YEAR COMPENSATION
NAME AND PRINCIPAL POSITION ENDED SALARY ($) BONUS ($) ($)
---------------------------
------------- ------------ ------------- -----------------
<S> <C> <C> <C> <C>
Erwin H. Billig............................ 1/3/99 240,000 -- --
Chief Executive Officer and 1/2/00 246,666 120,000 --
Chairman of the Board of Directors
Frederick K. Minturn....................... 1/3/99 212,500 20,000 105,128(1)
Executive Vice President and Chief 1/2/00 237,500 148,162 89,075(1)
Financial Officer
Roger Fridholm............................. 1/3/99 152,700 -- --
President, Business, Technology, and 1/2/00 261,998 79,200 --
Staffing Services Division
John Risk.................................. 1/3/99 174,667 -- --
President, Engineering Services 1/2/00 276,000 121,764 13,800(2)
Division
</TABLE>
- -------------------------
(1) Company match of amounts of employee salary deferrals pursuant to our
Deferred Compensation Plan totaling $10,625 in fiscal 1998 and $11,875 in
fiscal 1999, combined with the value on the date of vesting of shares of
common stock of MascoTech granted pursuant to MascoTech's 1991 Stock
Incentive Plan, being compensation for services prior to 1997.
(2) Company match of amounts of employee salary deferrals pursuant to our
Deferred Compensation Plan.
Pursuant to our Deferred Compensation Plan, certain of our management
employees have the option of deferring salary and bonus amounts up to a maximum
amount of 10% of salary. In addition, deferred discretionary bonuses may be
awarded to participants in the Deferred Compensation Plan. Such deferred amounts
and Company matches are credited to an account on the books of MSXI, which is
credited annually with earnings. In 1997 and 1998, we matched five percent of
the amount of salary deferred by participants in the Deferred Compensation Plan.
DIRECTOR COMPENSATION
Outside directors, who are not affiliated with MSXI, MascoTech or CVC,
are entitled to receive $10,000 in annual compensation and $500 per meeting
attended. As of the date of this Report, Mr. Cole is the only outside director.
48
<PAGE> 50
EMPLOYMENT AGREEMENTS
Frederick K. Minturn. Effective as of January 3, 1997, the Company
entered into an employment agreement with Mr. Minturn to serve as Executive Vice
President and Chief Financial Officer for an initial term of two years. The
agreement automatically renews for successive one-year terms unless otherwise
terminated in writing by either the Company or Mr. Minturn. Mr. Minturn is
entitled to an annual performance bonus pursuant to the Performance Incentive
Plan described below. Mr. Minturn is also entitled to all other employee
benefits maintained for officers and employees of the Company. The Company may
terminate his employment upon death or disability. Either the Company or Mr.
Minturn may terminate the agreement, with or without cause (as defined therein).
If the agreement is terminated without cause by the Company or with good reason
(as defined therein) by Mr. Minturn, the Company will pay to Mr. Minturn the
full base salary for the remainder of the term then in effect. The agreement
also provides that, during the term of his employment, and thereafter for the
greater of twelve months or the remainder of the then current term, Mr. Minturn
will not, directly or indirectly, engage in certain activities competitive with
the business of the Company.
Roger Fridholm. Mr. Fridholm's services have been provided to the
Company pursuant to an Agreement with St. Clair Group, Inc. ("St. Clair Group").
Annual compensation paid to St. Clair Group for Mr. Fridholm's services is
$250,000, subject to increase upon approval of the Board of Directors. The
agreement also provides that the Company will pay to St. Clair Group a
discretionary annual performance bonus for Mr. Fridholm's services.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
The members of the compensation committee are Messrs. Billig, Delaney
and Gardner. Messrs. Billig and Delaney also serve on the compensation committee
of Delco Remy International, Inc. The compensation committee recommended
adoption of our Performance Incentive Plan to reflect the Company's compensation
policy.
PERFORMANCE INCENTIVE PLAN
We introduced the Performance Incentive Plan ("PIP") in April 1998. All
of our salaried employees, including executive officers, are eligible to receive
payments under PIP. PIP offers target awards based on a percentage of an
employee's annual base salary. Actual awards are based on individual as well as
corporate and business unit performance. Under PIP, each of Mr. Minturn and Mr.
Risk may receive a discretionary annual performance bonus of up to 87.5% of his
annual base salary, depending on the degree to which MSXI meets or exceeds its
target performance.
Mr. Billig is eligible to receive discretionary annual bonuses as
determined by the Board of Directors.
49
<PAGE> 51
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT.
The following table provides certain information regarding the
beneficial ownership, as defined in Rule 13d-3 of the Securities Exchange Act of
1934 (the "Exchange Act"), of MSXI's common stock as of March 24, 2000 by (i)
each stockholder known to us to be the beneficial owner of 5% or more of any
class of MSXI's voting securities, (ii) each of our directors and executive
officers and (iii) all directors and executive officers as a group. So far as is
known to us, the persons named in the tables below as beneficially owning the
shares set forth therein have sole voting power and sole investment power with
respect to such shares, unless otherwise indicated.
<TABLE>
<CAPTION>
AMOUNT
BENEFICIALLY OWNED PERCENT OF CLASS
------------------ ----------------
CLASS SERIES A CLASS SERIES A
A PREFERRED A PREFERRED
NAME OF BENEFICIAL OWNER COMMON STOCK COMMON STOCK
- ---------------------------------------- ------ ----- ------ -----
<S> <C> <C> <C> <C>
MascoTech, Inc.................................. 43,752* 180,000 42.9% 50.0%
21001 Van Born Road
Taylor, Michigan 48180
Citicorp Venture Capital, Ltd.................. 32,041* 131,826 31.4% 36.6%
399 Park Avenue, 14th Floor
New York, New York 10043
CCT Partners IV, L.P............................ 5,468* 22,495 5.4% 6.2%
399 Park Avenue, 14th Floor
New York, New York 10043
Richard M. Cashin, Jr........................... 1,084* 4,466 1.1% 1.2%
399 Park Avenue, 14th Floor
New York, New York 10043
Michael A. Delaney.............................. 332* 1,367 0.3% 0.4%
399 Park Avenue, 14th Floor
New York, New York 10043
Thomas T. Stallkamp.......................... 3,000* -- 2.9% --
275 Rex Blvd.
Auburn Hills, MI 48326
Erwin H. Billig(1)........................... 3,000* -- 2.9% --
275 Rex Blvd.
Auburn Hills, MI 48326
Frederick K. Minturn......................... 1,500* -- 1.5% --
275 Rex Blvd.
Auburn Hills, MI 48326
Roger Fridholm................................... 1,999* -- 2.0% --
275 Rex Blvd.
Auburn Hills, MI 48326
John Risk.......................................... 1,000* -- 1.0% --
275 Rex Blvd.
Auburn Hills, MI 48326
All directors and executive officers as a
group.............................................. 11,915 5,833 11.7% 1.6%
</TABLE>
- -------------------------
* Consists of an equal number of shares of each of Series A-1 Common
Stock, Series A-2 Common Stock, Series A-3 Common Stock and Series
A-4 Common Stock (collectively, the "Class A Common Stock")
(1) In name of Billig Family Limited Partnership.
50
<PAGE> 52
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
STOCKHOLDERS' AGREEMENT
On January 3, 1997, in connection with the ownership of certain capital
shares of MSXI, we entered into a stockholders' agreement (the "Stockholders'
Agreement") with MascoTech, CVC and certain executive officers and directors of
MSXI (the "Management Stockholders" and, together with MascoTech and CVC, the
"Stockholders"). The Stockholders' Agreement imposes certain restrictions on,
and rights with respect to, the transfer of shares of MSXI's Common Stock (as
defined) and Series A Preferred Stock held by MascoTech, CVC and the Management
Stockholders. The Stockholders' Agreement also entitles the Stockholders to
certain rights regarding corporate governance of MSXI, and to CVC and MascoTech
the right to purchase their pro rata share in connection with the issuance of
any new shares of Common Stock.
The Stockholders' Agreement sets forth conditions under which the
parties may transfer their shares. The Stockholders' Agreement provides for a
right of first refusal in favor of MSXI in the event that any Stockholder (the
"Selling Stockholder") desires to transfer its shares of Common Stock pursuant
to a bona fide third party offer or an involuntary transfer (as defined in the
Stockholders' Agreement). To the extent that we elect to purchase fewer than all
of the shares proposed to be sold by such Selling Stockholder, the Stockholders'
Agreement provides for rights of first refusal on a pro rata basis in favor of
the other Stockholders. Pursuant to an Amendment to the Stockholders' Agreement
dated as of August 10, 1998, as a result of the sale by CVC of 1,867 shares to a
former employee of MSXI, CVC has the right of first refusal with respect to such
shares, up to an amount necessary to bring CVC back to its original ownership
level. In the case of a bona fide third party offer, without the consent of the
Selling Stockholders, neither MSXI nor the other Stockholders may purchase any
of the shares pursuant to the right of first refusal unless all such shares are
purchased. If such Selling Stockholder is MascoTech or CVC, and such Selling
Stockholder proposes to sell shares representing more than 5% of the outstanding
shares of Common Stock on a fully-diluted basis or if any Selling Stockholder
proposes to transfer shares of Series A Preferred Stock, then such Selling
Stockholder must also cause the buyer to give the other Stockholders an option
to sell a pro rata number of their respective shares of the same class and on
the same terms and conditions as the Selling Stockholder.
In the event that a Management Stockholder's shares of capital stock
are subject to an involuntary transfer (such as a seizure pursuant to a judgment
lien or in connection with any voluntary or involuntary bankruptcy proceeding),
the Stockholders' Agreement grants similar rights to purchase such shares first
to MSXI and then to MascoTech and CVC, pro rata.
Subject to certain restrictions, following the fifth anniversary of the
date of the Stockholders' Agreement and for as long as CVC or MascoTech, as the
case may be, or any of their permitted successors and assigns, shall hold more
than 60% of the Common Stock of MSXI originally issued to them, the
Stockholders' Agreement grants each of MascoTech and CVC certain "drag-along
rights." The drag-along rights require the other Stockholders to sell all of
their capital stock upon the same terms and conditions as MascoTech and CVC in
connection with the sale of all of the shares of MascoTech or CVC, as the case
may be, to a third party. In addition, if MascoTech or CVC propose the transfer
or sale of all or substantially all of the assets or business of MSXI to any
third party, MascoTech or CVC, as the case may be, may require the other Selling
Stockholders to take all action necessary to cause MSXI to approve such
transaction.
The Stockholders' Agreement provides that the Board of Directors (the
"Board") of MSXI shall consist of seven members consisting of two nominees of
CVC, two nominees of MascoTech, one nominee of the Management Stockholders and
two disinterested directors. Voting on the Board is weighted so as to provide
each MascoTech designate with 17.5%, each CVC designate with 17.5%, the
Management designate with 10%, and each disinterested director with 10%,
respectively, of the voting power on the Board.
51
<PAGE> 53
REGISTRATION RIGHTS AGREEMENT
On January 3, 1997, we entered into a registration rights agreement
(the "MSXI Registration Rights Agreement") with the CVC, MascoTech and the
Management Stockholders. The MSXI Registration Rights Agreement provides that
CVC and MascoTech shall be entitled, at any time, to request that we effect an
underwritten primary or secondary public offering, which raises aggregate net
proceeds to MSXI of at least $50,000,000 or, after June 3, 1998, to request that
we effect an underwritten primary or secondary public offering of at least 25%
of MSXI's Common Stock on a fully diluted basis; and in connection with any such
public offering we are required to use reasonable efforts to include in such
offering all other shares, subject to certain exceptions, that the stockholders
request for inclusion therein. In addition, at any time following an initial
public offering of MSXI shares, the MSXI Registration Rights Agreement provides
that, subject to certain limitations, each of CVC and MascoTech shall be
entitled to request three long-form registrations using SEC Form S-1 or S-2 and
request unlimited short-form registrations using Form S-3 (any registration
effected in accordance with this or the preceding sentence, a "Demand
Registration"). If (i) MSXI's Board determines that a Demand Registration must
be postponed to avoid the disclosure of material non-public information or (ii)
as a result of a pending material financing or acquisition, then we may require
CVC or MascoTech, as the case may be, to withdraw its Demand Registration and
not submit another Demand Registration for up to sixty days. Whenever we decide
to register any of MSXI's shares (other than on Forms S-4 and S-8), the CVC,
MascoTech and Management Stockholders have the right to register (or
"piggyback") their shares on the same terms as the Company. We are obligated to
pay all reasonable fees, costs and expenses in connection with any initial,
demand or piggyback registration.
Notwithstanding such demand registration rights, we shall not be
obligated to effect a Demand Registration statement if, within 90 days of such
request, a registration statement in which CVC or MascoTech was entitled to
participate, pursuant to their demand or piggyback registration rights, was
filed. In addition, MSXI and each Stockholder shall be precluded from effecting
any public sale or distribution of the shares for a certain period prior to and
following the effective date of any initial public offering or any demand or
piggyback registration. In each demand registration, holders of registerable
securities other than the holders initiating such registration may include their
securities in such registration, subject to certain restrictions. The MSXI
Registration Rights Agreement contains indemnity and contribution provisions
between MSXI and any selling stockholders for losses arising out of any
registration effected pursuant to the MSXI Registration Rights Agreement.
OTHER
On February 28, 2000, Mr. Stallkamp borrowed $3,000,000 from MSXI. The
loan has a 15-year term and bears interest at a rate of 6.77% per year. The loan
requires the payment of interest each year, with the principal due at maturity
or the occurrence of certain events. The loan is secured by a pledge to MSXI of
shares of our Class A Common Stock purchased by Mr. Stallkamp.
The services of Mr. Fridholm are provided to MSXI through his
employer, St. Clair Group, a company owned by Mr. Fridholm's spouse. See
"Executive Compensation."
52
<PAGE> 54
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K.
(a) Listing of Documents.
(1) Financial Statements. The Company's Consolidated Financial
Statements included under Item 8 hereof, as required for the
three fiscal years ended January 2, 2000, consist of the
following:
Consolidated Balance Sheets
Consolidated Statements of Income
Consolidated Statements of Cash Flows
Consolidated Statements of Shareholders' Equity (Deficit)
Notes to Consolidated Financial Statements
(2) Financial Statement Schedules.
(i) Financial Statement Schedule appended hereto, as
required for the fiscal years ended December 28, 1997,
January 3, 1999 and January 2, 2000 consist of the
following:
II. Valuation and Qualifying Accounts
(3) Exhibits.
3.1 Restated Certificate of Incorporation of the Company.(1)
3.2 Amended and Restated By-laws of the Company.(1)
4.1 Indenture dated as of January 15, 1998 by and between the
Company, the Subsidiary Guarantors and IBJ Schroder Bank &
Trust Company, as trustee, in respect of the 11-3/8% Senior
Subordinated Notes due 2008.(1)
4.2 Form of Exchange Notes.(1)
4.3 Registration Agreement dated as of January 16, 1998 by and
among the Company, the Subsidiary Guarantors and Salomon
Brothers Inc, Lehman Brothers Inc. and First Chicago Capital
Markets, Inc.(1)
10.1 Stockholders' Agreement dated as of January 3, 1997 among
the Company, MascoTech, Inc. ("MascoTech"), Citicorp Venture
Capital, Ltd. ("CVC") and certain executive officers and
directors of the Company (1) and Amendment to Stockholders'
Agreement dated August 10, 1998.
10.2 Registration Rights Agreement dated as of January 3, 1997
among the Company, CVC, MascoTech and certain executive
officers and directors of the Company.(1)
10.3 Master Vendor Agreement dated as of August 31, 1997 between
the Company and Ford Motor Company ("Ford").(1)
10.4 Master Supply Agreement dated as of August 31, 1997 between
the Company and Ford.(1)
10.5 MascoTech Subscription Agreement dated as of January 3, 1997
between the Company and MascoTech.(1)
10.6 CVC Subscription Agreement dated as of January 3, 1997
between the Company and CVC.(1)
10.7 Management Subscription Agreement dated as of January 3,
1997 between the Company and certain executive officers of
the Company.(1)
10.8 Deferred Compensation Plan.(1)
53
<PAGE> 55
10.9 Employment Agreement dated as of January 3, 1997 between the
Company and Frederick K. Minturn.(1)
10.10 Services Agreement dated as of May 21, 1998 between MSX
International, Inc., and St. Clair Group, Inc.(6)
10.11 Stock Purchase Agreement dated as of July 25, 1997 between
MSX International (Holdings), Inc. and Ford.(1)
10.12 Acquisition Agreement dated as of November 12, 1996 among
the Company, MascoTech and ASG Holdings Inc. (1)
10.13 Asset Purchase Agreement dated as of October 23, 1998,
between MSX International Engineering Services, Inc. and
Lexstra International, Inc. and Lexus Temporaries, Inc.(2)
10.14 Stock Purchase Agreement dated as of December 22, 1998
between MSX Engineering Services, Inc. and MegaTech
Engineering, Inc. (3)
10.15 Stock Purchase Agreement dated as of September 17, 1999
between MSX Engineering Services, Inc. and Chelsea Computer
Consultants, Inc.(4)
10.16 Amended and Restated Credit Agreement dated as of November
30, 1999 between MSX International, Inc., the Borrowing
Subsidiaries, and Bank One NA.
10.17 Stock Purchase Agreement dated as of August 6, 1999 between
MSX International Holding Ltd. and Satiz S.p.A.
12.1 Statement re: Computation of Ratio of Earnings to Fixed
Charges.
21.1 Subsidiaries of the Company.
27 Financial Data Schedule.
- --------------------------
(1) Incorporated by reference to the Exhibits filed with MSX
International's Registration Statement on Form S-4 filed
July 21, 1998 (Amendment No. 3).
(2) Incorporated by reference to the Exhibits filed with MSX
International's Quarterly Report on Form 10-Q filed November
11, 1998.
(3) Incorporated by reference to the Exhibits filled with MSX
International's Current Report on Form 8-K filed June 30,
1999.
(4) Incorporated by reference to the Exhibits filed with MSX
International's Current Report on Form 8-K filed October 26,
1999.
(5) Incorporated by reference to the Exhibits filed with MSX
International's Current Report on Form 8-K filed March 13,
2000.
(6) Incorporated by reference to the Exhibits filed with MSX
International's Annual Report on Form 10-K filed April 1,
1999.
(b) Reports on Form 8-K.
A current Report on Form 8-K was filed on October 26, 1999 reporting
the acquisition of Chelsea Computer Consultants, Inc. under Item 2.
Acquisition or Disposition of Assets. Included under Item 7 of such
report were the following exhibits:
i. Audited Financial Statements of Chelsea Computer Consultants,
Inc. as of and for the year ended June 30, 1998
ii. Unaudited Financial Statements of Chelsea Computer Consultants,
Inc as of and for the year ended June 30, 1999
iii. Pro forma financial data of MSX International, Inc.
54
<PAGE> 56
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this Report to be signed on
its behalf by the undersigned, thereunto duly authorized.
MSX INTERNATIONAL, INC.
By: /s/ FREDERICK K. MINTURN
---------------------------------------------------
Frederick K. Minturn
Executive Vice President and Chief Financial Officer
MARCH 23, 2000
Pursuant to the requirements of the Securities Exchange Act of 1934, this
Report has been signed below by the following persons on behalf of the
Registrant and in the capacities indicated as of March 23, 2000.
/s/ THOMAS T. STALLKAMP
- ------------------------- Vice Chairman and
THOMAS T. STALLKAMP Chief Executive Officer
(Principal Executive Officer)
/s/ FREDERICK K. MINTURN
- ------------------------- Executive Vice President
FREDERICK K. MINTURN and Chief Financial Officer
(Principal Financial Officer)
/s/ ERWIN H. BILLIG
- ------------------------- Chairman of the Board of
Directors
ERWIN H. BILLIG
/s/ RICHARD M. CASHIN, JR
- ------------------------- Director
RICHARD M. CASHIN, JR
/s/ DAVID E. COLE Director
- -------------------------
DAVID E. COLE
/s/ MICHAEL A. DELANEY Director
- -------------------------
MICHAEL A. DELANEY
/s/ LEE GARDNER Director
- -------------------------
LEE GARDNER
/s/ RICHARD A. MANOOGIAN
- ------------------------- Director
RICHARD A. MANOOGIAN
<PAGE> 57
FINANCIAL STATEMENT SCHEDULES
PURSUANT TO ITEM 14(A)(2) OF FORM 10-K
ANNUAL REPORT TO THE SECURITIES AND EXCHANGE COMMISSION
FOR THE FISCAL YEAR ENDED JANUARY 2, 2000
Schedules, as required for the three fiscal years ended January 2, 2000:
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
II. Valuation and Qualifying Accounts F-2
</TABLE>
F-1
<PAGE> 58
MSX INTERNATIONAL, INC.
SCHEDULE II. VALUATION AND QUALIFYING ACCOUNTS
FOR THE THREE FISCAL YEARS ENDED JANUARY 2, 2000
<TABLE>
<CAPTION>
Column A Column B Column C Column D Column E
------------ ------------ ------------------------------ ----------- ------------
Additions
------------------------------
Charged Charged
Balance at (Credited) (Credited) Balance at
Beginning of to costs to Other End of
Description Period and Expenses Accounts Deductions Period
----------- ------ ------------ -------- ---------- ------
(A) (B)
<S> <C> <C> <C> <C> <C>
Allowance for doubtful accounts
deducted from accounts receivable
in the balance:
1999 $ 3,475,556 $ 964,494 $ 319,975 $ 2,728,868 $ 2,031,157
=========== ========= =========== =========== ===========
1998 $ 1,218,075 $ 662,289 $ 2,016,206 $ 421,004 $ 3,475,556
=========== ========= =========== =========== ===========
1997 $ - $ 445,124 $ 1,441,729 $ 668,778 $ 1,218,075
=========== ========= =========== =========== ===========
</TABLE>
(A) Allowances of companies acquired in fiscal 1997, 1998 and 1999, including
TSG, MSXI's predecessor for accounting purposes.
(B) Doubtful accounts charged off, net of recoveries. Deductions for fiscal 1999
include $2.1 million of reserves for receivables which were not acquired in
certain 1997 and 1998 business combinations.
F-2
<PAGE> 59
Exhibit Index
-------------
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
3.1 Restated Certificate of Incorporation of the Company.(1)
3.2 Amended and Restated By-laws of the Company.(1)
4.1 Indenture dated as of January 15, 1998 by and between the Company, the
Subsidiary Guarantors and IBJ Schroder Bank & Trust Company, as
trustee, in respect of the 11-3/8% Senior Subordinated Notes due
2008.(1)
4.2 Form of Exchange Notes.(1)
4.3 Registration Agreement dated as of January 16, 1998 by and among the
Company, the Subsidiary Guarantors and Salomon Brothers Inc, Lehman
Brothers Inc. and First Chicago Capital Markets, Inc.(1)
10.1 Stockholders' Agreement dated as of January 3, 1997 among the Company,
MascoTech, Inc. ("MascoTech"), Citicorp Venture Capital, Ltd. ("CVC")
and certain executive officers and directors of the Company (1) and
Amendment to Stockholders' Agreement dated August 10, 1998.
10.2 Registration Rights Agreement dated as of January 3, 1997 among the
Company, CVC, MascoTech and certain executive officers and directors of
the Company.(1)
10.3 Master Vendor Agreement dated as of August 31, 1997 between the Company
and Ford Motor Company ("Ford").(1)
10.4 Master Supply Agreement dated as of August 31, 1997 between the Company
and Ford.(1)
10.5 MascoTech Subscription Agreement dated as of January 3, 1997 between the
Company and MascoTech.(1)
10.6 CVC Subscription Agreement dated as of January 3, 1997 between the
Company and CVC.(1)
10.7 Management Subscription Agreement dated as of January 3, 1997 between
the Company and certain executive officers of the Company.(1)
10.8 Deferred Compensation Plan.(1)
10.9 Employment Agreement dated as of January 3, 1997 between the Company and
Frederick K. Minturn.(1)
10.10 Services Agreement dated as of May 21, 1998 between MSX International, Inc.,
and St. Clair Group, Inc.(6)
10.11 Stock Purchase Agreement dated as of July 25, 1997 between MSX International
(Holdings), Inc. and Ford.(1)
10.12 Acquisition Agreement dated as of November 12, 1996 among the Company,
MascoTech and ASG Holdings Inc.(1)
10.13 Asset Purchase Agreement dated as of October 23, 1998, between MSX
International Engineering Services, Inc. and Lexstra International, Inc.
and Lexus Temporaries, Inc.(2)
10.14 Stock Purchase Agreement dated as of December 22, 1998 between MSX
Engineering Services, Inc. and MegaTech Engineering, Inc.(3)
10.15 Stock Purchase Agreement dated as of September 17, 1999 between MSX
Engineering Services, Inc. and Chelsea Computer Consultants, Inc.(4)
10.16 Amended and Restated Credit Agreement dated as of November 30, 1999
between MSX International, Inc., the Borrowing Subsidiaries, and Bank One NA.
10.17 Stock Purchase Agreement dated as of August 6, 1999 between MSX International
Holding Ltd. and Satiz S.p.A.
12.1 Statement re: Computation of Ratio of Earnings to Fixed Charges.
21.1 Subsidiaries of the Company.
27 Financial Data Schedule.
</TABLE>
- ---------------------
(1) Incorporated by reference to the Exhibits filed with MSX International's
Registration Statement on Form S-4 filed July 21, 1998 (Amendment No. 3).
(2) Incorporated by reference to the Exhibits filed with MSX International's
Quarterly Report on Form 10-Q filed November 11, 1998.
(3) Incorporated by reference to the Exhibits filed with MSX International's
Current Report on Form 8-K filed June 30, 1999.
(4) Incorporated by reference to the Exhibits filed with MSX International's
Current Report on Form 8-K filed October 26, 1999.
(5) Incorporated by reference to the Exhibits filed with MSX International's
Current Report on Form 8-K filed March 13, 2000.
(6) Incorporated by reference to the Exhibits filed with MSX International's
Annual Report on Form 10-K filed April 1, 1999.
<PAGE> 1
EXHIBIT 10.16
MSX INTERNATIONAL, INC.
THE BORROWING SUBSIDIARIES PARTY HERETO
--------------------------------------
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of November 30, 1999
--------------------------------------
THE LENDERS PARTY HERETO
and
BANK ONE, NA, as Agent
<PAGE> 2
THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of November 30,
1999 (this "Agreement"), is by and among MSX INTERNATIONAL, INC., a Delaware
corporation (the "Company"), each of the Borrowing Subsidiaries (as defined
below) of the Company party hereto from time to time (the Company and the
Borrowing Subsidiaries may each be referred to as a "Borrower" and,
collectively, as the "Borrowers"), the lenders party hereto from time to time
(collectively, the "Lenders" and individually, a "Lender"), and BANK ONE, NA, a
national banking association, as agent for the Lenders (in such capacity, the
"Agent").
In consideration of the premises and of the mutual agreements herein
contained, the parties hereto agree as follows:
RECITALS
A. The Borrowers, the lenders party thereto and NBD Bank (now known as
Bank One, Michigan, and an affiliate of the Agent), as agent for such lenders,
executed an Amended and Restated Credit Agreement dated as of April 14, 1998
(the "Existing Credit Agreement"). Bank One, Michigan has assigned its rights
and obligations as agent and as a lender under the Existing Credit Agreement to
Bank One, NA.
B. The Borrowers have requested that the Lenders, including each Lender
becoming a Lender on the date hereof, and the Agent amend and restate the
Existing Credit Agreement as herein provided, and the Lenders and the Agent are
willing to amend and restate the Existing Credit Agreement on the terms and
conditions herein set forth.
AGREEMENT
In consideration of the premises and of the mutual agreements herein
contained, the parties hereto agree that the Existing Credit Agreement shall be
amended and restated as follows:
ARTICLE I
DEFINITIONS
1.1. Certain Definitions. As used herein the following terms shall
have the following respective meanings:
"Acquisition" shall mean any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Company or any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any firm, corporation, partnership, limited
liability company or other business entity, or division thereof, whether through
purchase of assets, merger or otherwise or (ii) directly or indirectly acquires
(in one transaction or as the most recent transaction in a series of
transactions) at least a majority of the Capital Stock (by percentage or voting
power) of any Person.
"Advance" shall mean any Loan and any Letter of Credit Advance.
"Affiliate", when used with respect to any Person, shall mean any other
Person which, directly or indirectly, controls or is controlled by or is under
common control with such Person. For purposes of this definition "control"
(including the correlative meanings of the terms "controlled by" and "under
common control with"), with respect to any Person, shall mean possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting
securities or by contract or otherwise. Without limiting the foregoing
definition of Affiliate, any
MSX CREDIT AGREEMENT Page 1
<PAGE> 3
Person shall be deemed to control another Person if the controlling Person owns
or controls 10% or more of any class of Voting Stock of the controlled Person.
"Aggregate Credit Exposure" shall mean the sum of the Aggregate
Revolving Credit Exposure, the Aggregate Term Loan A Exposure and the Aggregate
Term Loan B Exposure.
"Aggregate Revolving Credit Exposure" shall mean (a) prior to the
termination of the Revolving Credit Commitments, the aggregate amount of the
Revolving Credit Commitments of all Lenders, and (b) on and after the
termination of the Revolving Credit Commitments, the sum of the aggregate
outstanding principal amount of all Revolving Credit Advances and Swingline
Loans, provided that (i) the amount of the Aggregate Revolving Credit Exposure
held by any Lender under this clause (b) shall equal the amount of Revolving
Credit Loans of such Lender plus the amount of participations purchased by such
Lender in Letters of Credit and Swingline Loans (unless such Lender is a
Defaulting Lender) and (ii) the amount of the Aggregate Revolving Credit
Exposure under this clause (b) held by the Agent with respect to any Letters of
Credit and Swingline Loans shall be net of any participations purchased therein
by any other Lender (unless such Lender is a Defaulting Lender).
"Aggregate Term Loan A Exposure" shall mean (a) prior to the date Term
Loan A is made, the aggregate amount of the Term Loan A Commitments of all
Lenders, and (b) on and after the date Term Loan A is made, the aggregate
outstanding principal amount of Term Loan A.
"Aggregate Term Loan B Exposure" shall mean (a) prior to the date Term
Loan B is made, the aggregate amount of the Term Loan B Commitments of all
Lenders, and (b) on and after the date Term Loan B is made, the aggregate
outstanding principal amount of Term Loan B.
"Applicable Lending Installation" shall mean, with respect to any
office(s), branch(es), Subsidiary(ies) or Affiliate(s) of such Lender selected
by such Lender and notified to the Company and the Agent by such Lender from
time to time and, with respect to the Agent, any office(s), branch(es),
Subsidiary(ies) or Affiliate(s) of the Agent selected by the Agent and notified
to the Company and the Lenders.
"Applicable Margin" shall mean, with respect to any Floating Rate Loan,
Eurodollar Loan, Eurocurrency Loan, Letter of Credit fee under Section 2.3(b)(i)
and facility fee under Section 2.3(a), as the case may be, the applicable
percentage set forth in the applicable table below based upon the Total Leverage
Ratio, as adjusted on each date a certificate is required to be delivered
pursuant to Section 5.1(d)(ii) or (iii), with the first such change to
Applicable Margin being made based upon the Total Leverage Ratio for the fiscal
quarter of the Company ending April 2, 2000, and shall remain in effect until
the next change to be effected pursuant to this definition, based upon the Total
Leverage Ratio as of the last day of the most recently ended fiscal quarter,
provided that (a) if any Event of Default has occurred and is continuing the
Total Leverage Ratio as of the end of the most recently ended fiscal quarter
shall, for the purposes of this definition, be deemed to be greater than 3.75,
and (b) as of the Effective Date, the Applicable Margin shall be based upon a
Total Leverage Ratio of greater than 3.75.
MSX CREDIT AGREEMENT Page 2
<PAGE> 4
<TABLE>
<CAPTION>
- ---------------- ----------- ------------- ------------------ ------------- -------------- ------------- -------------
Total Leverage Facility Floating Eurodollar Floating Eurodollar Floating Eurodollar
Ratio Fee Rate Revolving Loan, Rate Term Term Loan A Rate Term Term Loan B
Revolving Eurocurrency Loan A Loan B
Loan Revolving Loan
and Letter of
Credit Fee
- ---------------- ----------- ------------- ------------------ ------------- -------------- ------------- -------------
<S> <C> <C> <C> <C> <C> <C> <C>
<=2.75:1 37.5 bps 0 bps 112.5 bps 37.5 bps 150 bps 200 bps 325 bps
- ---------------- ----------- ------------- ------------------ ------------- -------------- ------------- -------------
>2.75 but 50 bps 25 bps 150 bps 75 bps 200 bps 200 bps 325 bps
<=3.25:1
- ---------------- ----------- ------------- ------------------ ------------- -------------- ------------- -------------
>3.25 but 50 bps 75 bps 200 bps 125 bps 250 bps 200 bps 325 bps
<=3.75:1
- ---------------- ----------- ------------- ------------------ ------------- -------------- ------------- -------------
>3.75 50 bps 100 bps 225 bps 150 bps 275 bps 225 bps 350 bps
- ---------------- ----------- ------------- ------------------ ------------- -------------- ------------- -------------
</TABLE>
"Assignment and Acceptance" is defined in Section 9.6(c).
"Assumption Agreement" is defined in Section 9.6(g).
"Bank One" shall mean Bank One, NA, a national banking association,
including any of its branches and affiliates.
"Benefit Arrangement" shall mean at any time an employee benefit plan
within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by any
member of the ERISA Group.
"Board of Directors" shall mean the Board of Directors of the Company,
or any authorized committee of the Board of Directors.
"Borrowing" shall mean the aggregation of Advances, including each
Letter of Credit Advance, of the Lenders to be made to a Borrower, or
continuations and conversions of such Loans, made pursuant to Article II on a
single date and, in the case of any Fixed Rate Loans, of a single type and for a
single Interest Period, which Borrowings may be classified for purposes of this
Agreement by reference to the type of Loans or the type of Advances comprising
the related Borrowing, e.g., a "Eurodollar Borrowing" is a Borrowing comprised
of Eurodollar Loans and a "Letter of Credit Borrowing" is an Advance comprised
of a single Letter of Credit.
"Borrowing Base" shall mean, as of any date, an amount equal to the sum
of (a) 85% of the amount of Eligible Accounts Receivable and (b) 65% of the
amount of Eligible Unbilled Receivables.
"Borrowing Base Certificate" for any date shall mean an appropriately
completed report as of such date and substantially in the form of Exhibit A
hereto, certified as true and correct as of such date by a duly authorized
officer of the Company.
"Borrowing Subsidiary" shall mean each Subsidiary listed as a Borrowing
Subsidiary in Schedule 1.1(a) as amended from time to time in accordance with
Section 9.1.
MSX CREDIT AGREEMENT Page 3
<PAGE> 5
"Business Day" shall mean (a) when such term is used in respect of a
day on which a Loan denominated in an Eligible Currency is to be made, a payment
is to be made in respect of such Loan or any other dealing in such Eligible
Currency is to be carried out pursuant to this Agreement, such term shall mean a
LIBOR Business Day which is also a day on which banks are open for general
banking business in the city which is the principal financial center of the
country of issuance of such Eligible Currency and, if the Advances which are the
subject of such borrowing, payment or rate selection are denominated in euro, a
day upon which such clearing system as is determined by the Agent to be suitable
for clearing or settlement of the euro is open for business; (b) when such term
is used to describe a day on which a borrowing, payment or interest rate
determination is to be made in respect of a Eurodollar Loan, such day shall be a
LIBOR Business Day; and (c) when such term is used in any context in this
Agreement (including as described in the foregoing clauses (a) and (b)), such
term shall mean a day which, in addition to complying with any applicable
requirements set forth in the foregoing clauses (a) and (b), is a day other than
a Saturday, Sunday or other day on which commercial banks in Chicago, Detroit or
New York are authorized or required by law to close.
"Capital Expenditures" shall mean, for any period, the additions to
property, plant and equipment and other capital expenditures of the Company and
its Subsidiaries for such period, as the same are (or should be) set forth, in
accordance with Generally Accepted Accounting Principles, in consolidated
financial statements of the Company and its Subsidiaries for such period;
provided, however, that each of the following shall be excluded from this
definition of Capital Expenditures: (a) such additions to property, plant and
equipment made with insurance or condemnation proceeds, (b) Capital Expenditures
for Creative Technologies provided per a separate schedule to the Agent and the
Lenders on or prior to the Effective Date in an amount not to exceed the amount
set forth in such schedule applicable to such Investment, (c) Capital
Expenditures made contemporaneously with, and in connection with, an Acquisition
or those made by a target of any Acquisition prior to the date such target is
acquired, in each case to the extent reasonably satisfactory to the Agent, and
(d) Capital Expenditures made to purchase any property which is sold within 180
days of the date purchased pursuant to a permitted sale leaseback transaction.
"Capital Lease" of any Person shall mean any lease which, in accordance
with Generally Accepted Accounting Principles, is or should be capitalized on
the books of such Person.
"Capital Stock" shall mean (i) in the case of any corporation, all
capital stock (whether common, preferred or any other type) and any securities
exchangeable for or convertible into capital stock and any warrants, rights or
other options to purchase or otherwise acquire capital stock or such securities
or any other form of equity securities, (ii) in the case of an association or
business entity, any and all shares, interests, participations, rights or other
equivalents (however designated) of corporate stock, (iii) in the case of a
partnership or limited liability company, partnership or membership interests
(whether general or limited) and (iv) any other interest or participation that
confers on a Person the right to receive a share of the profits and losses of,
or distribution of assets of, the issuing Person.
"Cash Equivalent" shall mean (i) cash in Dollars or, so long as not
held for speculative purposes, any Eligible Currency, (ii) securities issued or
directly and fully guaranteed or insured by the United States of America,
France, Germany, the U.K., any other member state of the European Union,
Australia or any other sovereign nation acceptable to the Agent or any agency or
instrumentality thereof having maturities of not more than six months from the
date of acquisition, (iii) marketable direct obligations issued by any state of
the United States of America or any political subdivision of any such state or
any public instrumentality thereof maturing within one year from the date of
acquisition thereof and, at the time of acquisition, having one of the two
highest ratings obtainable from either Standard & Poor's Corporation ("S&P") or
Moody's Investors Service, Inc. ("Moody's"), (iv) certificates of deposit and
eurodollar time deposits with maturities of six months or less from the date of
acquisition, bankers' acceptances with maturities not exceeding six months and
overnight bank deposits, in each case with any
MSX CREDIT AGREEMENT Page 4
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Lender or with any domestic or foreign commercial bank or U.S. branch of a
foreign bank licensed under the laws of the United States or a State thereof
having capital and surplus in excess of $250,000,000 and a Keefe Bank Watch
Rating of "B" or better or the equivalent rating from comparable foreign rating
agencies, and certificates of deposit and time deposits with maturities of one
month or less from the date of acquisition and overnight bank deposits with
reputable foreign commercial banks, (v) repurchase obligations with a term of
not more than seven days for underlying securities of the types described in
clauses (ii), (iii) and (iv) above entered into with any financial institution
meeting the qualifications specified in clause (iv) above, (vi) commercial paper
having one of the two highest ratings obtained from Moody's or S&P or the
equivalent ratings from comparable foreign rating agencies and in each case
maturing within six months after the date of acquisition and (vii) investments
in money market funds which invest substantially all their assets in securities
of the type described in clauses (i) through (vii) above.
"Change of Control" shall mean the occurrence of any of the following:
(i) prior to the first public offering of Voting Stock of the
Company, the Permitted Investors cease to be entitled (by "beneficial ownership"
(as defined in Rules 13d-3 and 13d-5 under the Exchange Act) of Voting Stock,
contract or otherwise) to elect or cause the election of directors having, a
majority in the aggregate of the total voting power of the Board of Directors,
whether as a result of issuance of securities of the Company, any merger,
consolidation, liquidation or dissolution of the Company, any direct or indirect
transfer of securities by the Permitted Investors or otherwise (for purposes of
this clause (i) and clause (ii) below, the Permitted Investors shall be deemed
to beneficially own any Voting Stock of any entity (the "specified entity") held
by any other entity (the "parent entity") so long as the Permitted Investors
beneficially own (as so defined), directly or indirectly, in the aggregate a
majority of the voting power of the Voting Stock of the parent entity);
(ii) after the first public offering of Voting Stock of the
Company, any "person" (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act), other than one or more Permitted Holders, is or becomes the
beneficial owner (as defined in clause (i) above, except that for purposes of
this clause (ii) such person shall be deemed to have "beneficial ownership" of
all shares that any such person has the right to acquire, directly or
indirectly), of more than 35% of the total voting power of the Voting Stock of
the Company and either (x) the Permitted Holders beneficially own (as defined in
clause (i) above) directly or indirectly, in the aggregate a lesser percentage
of the total voting power of the Voting Stock of the Company than such other
person and do not have the right or ability by voting power, contract or
otherwise to elect or designate for election a majority of the Board of
Directors or (y) such other person is entitled to elect directors having a
majority of the total voting power of the Board of Directors;
(iii) after the first public offering of Voting Stock of the
Company, during any period of not greater than two consecutive years beginning
after the Effective Date, individuals who at the beginning of such period
constituted the Board of Directors (together with any new directors whose
election by such Board of Directors or whose nomination for election by the
shareholders of the Company was approved by a vote of a majority of the
directors of the Company then still in office who were either directors at the
beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of the
Board of Directors then in office; or
(iv) any "Change of Control" or similar term, as defined in the
Senior Subordinated Note Indenture.
MSX CREDIT AGREEMENT Page 5
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"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated thereunder.
"Commitments" shall mean, with respect to each Lender, the Revolving
Credit Commitment, Term Loan A Commitment and Term Loan B Commitment of such
Lender.
"Consent and Amendment" shall mean the Consent and Amendment of
Security Documents dated as of the Effective Date by each of the Borrowers and
Guarantors in favor of the Agent and the Lenders.
"Consolidated" or "consolidated" shall mean, when used with reference
to any financial term in this Agreement, the aggregate for two or more Persons
of the amounts signified by such term for all such Persons determined on a
consolidated basis in accordance with Generally Accepted Accounting Principles.
"Contingent Liabilities" shall mean as to any Person any obligation of
such Person guaranteeing or intended to guarantee any indebtedness, obligations
and liabilities ("primary obligations") of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, including, without
limitation, any obligation of such Person, whether or not contingent, (a) to
purchase any such primary obligation or any property constituting direct or
indirect security therefor, (b) to advance or supply funds (i) for the purchase
or payment of any such primary obligation or (ii) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligator, (c) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such primary
obligation or (d) otherwise to assure or hold harmless the owner of such primary
obligation against loss in respect thereof, provided however, that the term
Contingent Liabilities shall not include endorsements of instruments for deposit
or collection in the ordinary course of business; provided further, that, for
purposes of calculating the financial covenants contained in Sections 5.2(a)
through (e), Contingent Liabilities shall be only those Contingent Liabilities
that are described in clause (iv) of the definition of Total Debt. The amount of
any Contingent Liability shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Contingent Liability is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as determined by such Person in good faith.
"Contractual Obligation" shall mean, 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.
"Corporate Base Rate" means a rate per annum equal to the corporate
base rate of interest announced or established by Bank One, NA from time to time
or, when used in connection with any Advance denominated in any Eligible
Currency, "Corporate Base Rate" shall mean the correlative floating rate of
interest customarily applicable to similar extensions of credit to corporate
borrowers denominated in such currency in the country of issue, as determined by
the Agent from time to time, which Corporate Base Rate shall change
simultaneously with any change in such announced, determined or established
rates.
"Creative Technologies" shall mean Creative Technology Services LLC, a
Michigan limited liability company, and its successors.
"CVC" shall mean Citicorp Venture Capital, Ltd., a New York
corporation.
MSX CREDIT AGREEMENT Page 6
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"CVC Investor" shall mean (i) CVC, (ii) Citicorp, N.A. and (iii) any
officer, employee, or director of CVC so long as such person shall be an
employee, officer or director of CVC.
"Defaulting Lender" shall mean any Lender that fails to make available
to the Agent such Lender's Loans required to be made hereunder or shall have not
made a payment required to be made to the Agent hereunder. Once a Lender becomes
a Defaulting Lender, such Lender shall continue as a Defaulting Lender until
such time as such Defaulting Lender makes available to the Agent the amount of
such Defaulting Lender's Loans and all other amounts required to be paid to the
Agent pursuant to this Agreement.
"Deutsche Marks" or "DM" means the lawful money of Germany.
"Disqualified Stock" shall mean any Capital Stock that, by its terms
(or by the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the holder thereof, in whole or in part prior to a date one year
after the Termination Date.
"Dollar Equivalent" shall mean as of any date, with respect to any
amount in a currency other than Dollars, the sum in Dollars resulting from the
conversion of such amount from such currency into Dollars at the most favorable
spot exchange rate determined by the Agent to be available to it for the
purchase of such currency with Dollars at approximately 11:00 a.m. local time of
the Applicable Lending Installation on such date as a determination of the
Dollar Equivalent is made.
"Dollars" and "$" shall mean the lawful money of the United States of
America.
"Domestic Subsidiary" shall mean each present and future Subsidiary of
the Company which is not a Foreign Subsidiary.
"EBITDA" shall mean, for any period, Net Income for such period plus
all amounts deducted in determining such Net Income on account of (a) Total
Interest Expense, (b) income taxes (including Michigan Single Business Tax
expense), and (c) depreciation and amortization expense, all as determined for
the Company and its Subsidiaries on a consolidated basis in accordance with
Generally Accepted Accounting Principles.
"Effective Date" shall mean December 7, 1999.
"Eligible Accounts Receivable" shall mean, as of any date, those
accounts receivable evidenced by an invoice owned by the Company or any
Subsidiary which are payable in Dollars or in any currency that is readily
available, freely traded and convertible into Dollars (valued at the Dollar
Equivalent thereof) valued at the face amount thereof less sales, excise or
similar taxes outstanding and (to the extent not deducted pursuant to clauses
(a) through (j) below) less returns, discounts, credits and allowances of any
nature at any time claimed in writing or issued, owing or granted; but shall not
include any such account receivable (a) that is not a bona fide existing
obligation created by the sale and actual delivery of inventory, goods or other
property or the furnishing of services or other good and sufficient
consideration to customers of the Company or any Subsidiary, as the case may be,
in the ordinary course of business, (b) that is more than 90 days past due or
that contains any deferred payment terms or dating terms outside the ordinary
course of business and not customarily included by the Company or its
Subsidiaries or not acceptable to the Agent (acting in a commercially reasonable
manner), (c) that is subject to any dispute, contra-account, defense, offset or
counterclaim or any Lien (except those in favor of the Agent under the Security
Documents), or the inventory, goods, property, services or other consideration
of which such account receivable constitutes proceeds are subject to any such
Lien, but only to the extent of such dispute, contra-account, defense, offset,
MSX CREDIT AGREEMENT Page 7
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counterclaim or Lien, (d) in respect of which the inventory, goods, property,
services or other consideration have been rejected or the amount is in dispute,
but only to the extent of such dispute, (e) that is due from any Affiliate
(other than MascoTech or any of the consolidated Subsidiaries of MascoTech) or
Subsidiary of the Company, (f) that is payable by the United States or any of
its departments, agencies or instrumentalities or by any state or other
governmental entity or by any foreign government unless the Company or such
Subsidiary, as the case may be, if requested by the Agent fully complies with
the Assignment of Claims Act and executes all documents and agreements and
causes all documents and agreements to be executed in connection therewith or
any similar foreign statute in the case of accounts receivable payable by a
foreign government, (g) that is payable by any Person as to which 25% (or 50% in
the case of any account debtor incorporated or formed in any jurisdiction other
than any State of the United States of America) or more of the aggregate amount
of such accounts receivable payable by such Person to the Company or any
Subsidiary, as the case may be, do not otherwise constitute Eligible Accounts
Receivable pursuant to clause (b) of this definition, (h) that are payable by
any Person that is the subject of any proceeding seeking to adjudicate it a
bankrupt or insolvent or seeking liquidation, winding up or reorganization,
arrangement, adjustment, protection, relief or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief or
protection of debtors or seeking the appointment of a receiver, trustee,
custodian or other similar official for it or for any substantial part of its
property, or that is not generally paying its debts as they become due or has
admitted in writing its inability to pay its debts generally or has made a
general assignment for the benefit of creditors, (i) which is evidenced by a
promissory note or other instrument, other than those trade accounts receivable
evidenced by promissory notes or other instruments in the ordinary course of
business and consistent with the past practice of the Company or its
Subsidiaries, or (j) that for any other reason is at any time deemed by the
Agent (acting in a commercially reasonable manner) to be ineligible.
"Eligible Currency" shall mean the euro, Francs, Deutsche Marks, Pounds
Sterling, Italian Lire, Australian Dollars and any other currency (other than
Dollars) which is approved and designated as an Eligible Currency by the Agent
and the Lenders, provided that each of the foregoing currencies is and remains
readily available, freely traded, in which deposits are customarily offered to
banks in the London interbank market, convertible into Dollars in the
international interbank market and as to which the Dollar Equivalent may be
readily calculated. If, after the designation of any currency as an Eligible
Currency, currency control or other exchange regulations are imposed in the
country in which such currency is issued with the result that different types of
such currency are introduced, or such country's currency is, in the
determination of the Agent, no longer readily available or freely traded or as
to which, in the determination of the Agent, a Dollar Equivalent is not readily
calculable, then the Agent shall promptly notify the Company and such country's
currency shall no longer be an Eligible Currency until such time as the Agent
agrees to reinstate such country's currency as an Eligible Currency and
promptly, but in any event within five (5) Business Days of receipt of such
notice from the Agent, the Borrowers with respect to such Currency shall repay
all Loans in such affected currency or convert such Loans into Loans in Dollars
or an Eligible Currency, as applicable, subject to the other terms contained in
this Agreement.
"Eligible Unbilled Receivables" shall mean, as of any date, those
obligations owing the Company or any Subsidiary which would constitute an
Eligible Account Receivable (valued at the Dollar Equivalent thereof) but for
the fact that an invoice has not been sent by the Company or Subsidiary,
provided that each of the following conditions is satisfied for each such
obligation: (a) such obligation is covered under a written work order or other
agreement between the Company or such Subsidiary and the Person owing such
obligation, including price verification, which is binding and enforceable on
such Person to pay such obligation, (b) such obligation has not been classified
as an Eligible Unbilled Receivable for more than 120 days and (c) such
obligation is not at any time otherwise deemed by the Agent (acting in a
commercially reasonable manner) to be ineligible.
MSX CREDIT AGREEMENT Page 8
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"Environmental Certificate" shall mean an appropriately completed
environmental certificate in the form of Exhibit B attached hereto delivered by
the Borrowers and the Guarantors.
"Environmental Laws" at any date shall mean all provisions of law,
statutes, ordinances, rules, regulations, judgments, writs, injunctions,
decrees, orders, awards and standards promulgated by the government of the
United States of America or any foreign government or by any state, province,
municipality or other political subdivision thereof or therein or by any court,
agency, instrumentality, regulatory authority or commission of any of the
foregoing concerning the protection of, or regulating the discharge of hazardous
substances into, the environment.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations thereunder.
"ERISA Group" shall mean the Company, its Subsidiaries and all members
of a controlled group of corporations and all trades or businesses (whether or
not incorporated) under common control which, together with the Company or any
Subsidiary, are treated as a single employer under Section 414 of the Code.
"euro" and/or "EUR" shall mean the euro referred to in Council
Regulation (EC) No. 1103/97 dated June 17, 1997 passed by the Council of the
European Union, or, if different, the then lawful currency of the member states
of the European Union that participate in the third stage of Economic and
Monetary Union.
"Eurocurrency Base Rate" shall mean, with respect to each Interest
Period for a Eurocurrency Loan, the rate per annum obtained by dividing (i) the
per annum interest rates at which deposits in the relevant Eligible Currency are
offered to the Applicable Lending Installation of the Agent by other prime banks
in the London interbank market in an amount comparable to the Agent's (or the
Agent's Affiliate's) portion of such Eurocurrency Loan and for a period equal to
such Interest Period at approximately 11:00 a.m. London time two (2) Business
Days prior to the first day of such Interest Period, divided by (ii) an amount
equal to one minus the stated maximum rate (expressed as a decimal) of all
reserve requirements (including, without limitation, any marginal, emergency,
supplemental, special or other reserves) that are specified on the first day of
such Interest Period by the Board of Governors of the Federal Reserve System (or
any successor agency thereto) for determining the maximum reserve requirement
with respect to Eurocurrency funding (currently referred to as "Eurocurrency
liabilities" in Regulation D of such Board) maintained by a member bank of such
System or by any other governmental entity, foreign or domestic, and other fees,
charges and other requirements similar thereto or the functional equivalent
thereof which the Agent determines to be market practice to take into account in
determining the Eurocurrency Base Rate all as conclusively determined by the
Agent (absent manifest error), such sum to be rounded up, if necessary, to the
nearest whole multiple of one sixteenth of one percent (1/16 of 1%); provided
that with respect to any Eurocurrency Loans, an alternative formula shall apply
if (a) the Borrower and the Agent shall have agreed to such alternative formula,
(b) such formula is based on the rate determined pursuant to clause (i) above
and (c) the Agent shall have determined that such alternative formula more
accurately compensates Lenders for the cost of maintaining reserves and similar
requirements in respect of such Eurocurrency Loans.
"Eurocurrency Loan" shall mean a Loan which bears interest at the
Eurocurrency Rate.
"Eurocurrency Rate" shall mean, with respect to each day during each
Interest Period pertaining to a Eurocurrency Loan, the sum of (a) the Applicable
Margin for such day plus (b) the Eurocurrency Base Rate for such Interest
Period.
MSX CREDIT AGREEMENT Page 9
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"Eurocurrency Revolving Loan" shall mean a Revolving Credit Loan which
bears interest at the Eurocurrency Rate.
"Eurodollar Base Rate" shall mean the rate per annum obtained by
dividing (i) the per annum rate of interest at which deposits in Dollars for
such Interest Period and in an aggregate amount comparable to the amount of such
Eurodollar Loan to be made by the Agent are offered to the Agent (or any
Affiliate of the Agent which is a Lender hereunder) by other prime banks in the
London interbank market at approximately 11:00 a.m. local time in London on the
second LIBOR Business Day prior to the first day of such Interest Period by (ii)
an amount equal to one minus the stated maximum rate (expressed as a decimal) of
all reserve requirements (including, without limitation, any marginal,
emergency, supplemental, special or other reserves) that is specified on the
first day of such Interest Period by the Board of Governors of the Federal
Reserve System (or any successor agency thereto) for determining the maximum
reserve requirement with respect to eurocurrency funding (currently referred to
as "Eurocurrency liabilities" in Regulation D of such Board) maintained by a
member bank of such System; all as conclusively determined by the Agent, such
sum to be rounded up, if necessary, to the nearest whole multiple of one
one-hundredth of one percent (1/100 of 1%).
"Eurodollar Loan" shall mean a Loan which bears interest at a
Eurodollar Rate.
"Eurodollar Rate" shall mean, with respect to any Eurodollar Loan and
for each day during the related Interest Period, the per annum rate that is
equal to the sum of (a) the Applicable Margin for such day, plus (b) the
Eurodollar Base Rate for such Interest Period.
"Eurodollar Revolving Loan" shall mean a Revolving Credit Loan which
bears interest at a Eurodollar Rate.
"Eurodollar Term Loan A" shall mean any portion of Term Loan A which
bears interest at a Eurodollar Rate.
"Eurodollar Term Loan B" shall mean any portion of Term Loan B which
bears interest at a Eurodollar Rate.
"Event of Default" shall mean any of the events or conditions described
in Section 6.1.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Excess Cash Flow" shall mean for any period, the total of the
following, without duplication, for such period for the Company and its
Subsidiaries on a consolidated basis: (a) EBITDA, plus (b) increases in deferred
income taxes, plus (c) decreases in working capital, less (d) Capital
Expenditures (without giving effect to the deduction of the amounts described in
clauses (a), (b), (c) and (d) of the definition of Capital Expenditures) and the
cash costs of any Acquisitions, without duplication, less (e) Total Interest
Expense, less (f) all principal payments (other than payments on any revolving
credit facilities of any kind) on any Indebtedness of the Company and its
Subsidiaries and required earn out payments during such period in connection
with Acquisitions, less (g) decreases in deferred incomes taxes, less (h)
increases in working capital, less (i) income taxes paid or accrued, without
duplication, less (j) any cash dividends, payments or other distributions in
respect of the Capital Stock of the Company, to the extent permitted under
Section 5.2(k), less (k) any extraordinary or non-recurring cash losses of the
Company and its Subsidiaries for such period.
"Excluded Collateral" is defined in Section 2.10(a).
MSX CREDIT AGREEMENT Page 10
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"Factoring" shall mean any receivable sales and/or factoring in the
ordinary course of business consistent with customary practices by any
Subsidiary and which is non-recourse to such Subsidiary.
"Federal Funds Rate" shall mean, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10 a.m. (Detroit
time) on such day on such transactions received by the Agent from three Federal
funds brokers of recognized standing selected by the Agent in its sole
discretion or, when used in connection with any Advance in any Eligible
Currency, "Federal Funds Rate" shall mean, for any day, an interest rate per
annum equal to the local cost of funds rate for obligations in such currency as
determined by the Agent..
"Financial Contract" of a Person shall mean (i) any exchange-traded or
over-the-counter futures, forward, swap or option contract or other financial
instrument with similar characteristics, or (ii) any agreements, devices or
arrangements providing for payments related to fluctuations of interest rates,
exchange rates or forward rates, including, but not limited to, interest rate
exchange agreements, forward currency exchange agreements, interest rate cap or
collar protection agreements, forward rate currency or interest rate options.
"Fixed Charge Coverage Ratio" shall mean, as of the last day of any
fiscal quarter of the Company, the ratio of (a) EBITDA plus Rental Charges,
minus Capital Expenditures, to (b) Fixed Charges, in each case as calculated for
the four consecutive fiscal quarters then ending, all as determined in
accordance with Generally Accepted Accounting Principles.
"Fixed Charges" shall mean, for any period, the sum, without
duplication, of (a) Total Interest Expense plus (b) all payments of principal
and other sums scheduled to be paid during such period by the Company or its
Subsidiaries with respect to Indebtedness of the Company or its Subsidiaries,
plus (c) Rental Charges accrued during such period by the Company and its
Subsidiaries, plus (d) all dividends, distributions and other obligations paid
(other than those paid with common stock) with respect to any class of the
Company's Capital Stock or any dividend, payment or distribution paid (other
than those paid with common stock) in connection with the redemption, purchase,
retirement or other acquisition, directly or indirectly, of any shares of the
Company's Capital Stock, plus (e) all accrued income taxes (including Michigan
Single Business Tax expense) for such period for the Company or its Subsidiaries
(but excluding all deferred income taxes unless paid or payable in such period).
"Fixed Rate Loan" shall mean any Eurocurrency Loan or Eurodollar Loan.
"Floating Rate" shall mean the per annum rate equal to the sum of (a)
the Applicable Margin, plus (b) the greater of the Corporate Base Rate or the
sum of the Federal Funds Rate plus 1%, in each case as in effect from time to
time, which Floating Rate shall change simultaneously with any change in such
Corporate Base Rate or Federal Funds Rate, as the case may be.
"Floating Rate Loan" shall mean any Loan which bears interest at the
Floating Rate.
"Floating Rate Revolving Loan" shall mean any Revolving Credit Loan
which bears interest at the Floating Rate.
"Floating Rate Term Loan A" shall mean any portion of Term Loan A which
bears interest at the Floating Rate.
MSX CREDIT AGREEMENT Page 11
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"Floating Rate Term Loan B" shall mean any portion of Term Loan B which
bears interest at the Floating Rate.
"Foreign Subsidiary" shall mean any Subsidiary incorporated or formed
in any jurisdiction other than any State of the United States of America.
"Foreign Subsidiary Borrower" shall mean any Borrowing Subsidiary which
is a Foreign Subsidiary.
"Francs" or "FF" shall mean the lawful money of France.
"France" shall mean the Republic of France.
"Generally Accepted Accounting Principles" shall mean generally
accepted accounting principles as in effect from time to time, applied on a
basis consistent (except for changes concurred in by the Company's independent
public accountants) with the most recent audited consolidated financial
statements of the Company and its Subsidiaries delivered to the Lenders.
"Germany" shall mean the Federal Republic of Germany.
"Guaranties" shall mean the guaranties entered into by each of the
Guarantors for the benefit of the Agent and the Lenders pursuant to this
Agreement in substantially the form of Exhibit C hereto, as amended by the
Consent and Amendment and as further amended or modified from time to time.
"Guarantor" shall mean
(a) with respect to the Lender Indebtedness of each Borrowing Subsidiary:
(i) the Company,
(ii) each present and future Domestic Subsidiary (including without
limitation Creative Technologies at such time as it becomes a Subsidiary) of the
Company required to execute a Guaranty under Section 2.10,
(iii) each "Subsidiary Guarantor" as defined in the Senior Subordinated
Debt Documents or any other guarantor with respect to any Subordinated Debt at
any time,
(iv) additionally, in the case of each Foreign Borrowing Subsidiary,
each parent corporation of such Foreign Subsidiary Borrower and Subsidiary of
such Foreign Subsidiary Borrower or parent required to execute a Guaranty under
Section 2.10, and
(v) any other Person executing a Guaranty at any time with respect to
the Lender Indebtedness of such Borrowing Subsidiary.
(b) with respect to the Lender Indebtedness of the Company:
(i) each present and future Domestic Subsidiary (including without
limitation Creative Technologies at such time as it becomes a Subsidiary) of the
Company required to execute a Guaranty under Section 2.10,
MSX CREDIT AGREEMENT Page 12
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(ii) each "Subsidiary Guarantor" as defined in the Senior Subordinated
Debt Documents or any other guarantor with respect to any Subordinated Debt at
any time, and
(iii) any other Person executing a Guaranty at any time with respect to
the Lender Indebtedness of the Company.
"Indebtedness" of any Person shall mean, as of any date, without
duplication, (a) all obligations of such Person for borrowed money evidenced by
bonds, notes, debentures or similar instruments, (b) all reimbursement and
similar obligations under outstanding letters of credit, banker's acceptances or
similar instruments in respect of drafts or other claims which may be presented
or have been presented and have not yet been paid, (c) all obligations of such
Person as lessee which are capitalized in accordance with Generally Accepted
Accounting Principles under any Capital Lease, (d) all obligations which are
secured by any Lien existing on any asset or property of such Person whether or
not the obligation secured thereby shall have been assumed by such Person, (e)
the unpaid purchase price for goods, property or services acquired by such
Person, except for trade accounts and accrued expenses payable arising in the
ordinary course of business which are not past due within customary payment
terms, (f) the aggregate outstanding amount of all Factoring, Permitted
Securitization Transactions and Off Balance Sheet Liabilities, based on the
aggregate outstanding amount sold, assigned, discounted or otherwise transferred
or financed, whether or not shown as a liability on a consolidated balance sheet
of the Company and its Subsidiaries, as reasonably satisfactory to the Agent,
(g) all bank overdrafts, other than bank overdrafts in the United States in the
ordinary course of business and which are not material in the aggregate and are
outstanding for less than three Business Days, and (h) all Contingent
Liabilities of such Person with respect to or relating to Indebtedness of others
similar in character to those described in clauses (a) through (g) of this
definition.
"Interest Coverage Ratio" shall mean, as of the last day of any fiscal
quarter of the Company, the ratio of (a) EBITDA to (b) Total Interest Expense,
in each case as calculated for the four consecutive fiscal quarters then ending,
all as determined in accordance with Generally Accepted Accounting Principles.
"Interest Payment Date" shall mean (a) with respect to any Fixed Rate
Loan, the last day of each Interest Period with respect to such Fixed Rate Loan,
and, in the case of any Interest Period exceeding three months, those days that
occur during such Interest Period at intervals of three months after the first
day of such Interest Period and (b) in all other cases, the first Business Day
of each fiscal quarter of the Company occurring after the date hereof,
commencing with the first such Business Day occurring after the date of this
Agreement.
"Interest Period" means with respect to any Eurodollar Loan or
Eurocurrency Loan:
(a) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such Eurodollar
Loan or Eurocurrency Loan and ending one, two, three, or six 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, provided that prior to the syndication of this
Agreement as determined by the Agent, the Borrowers shall be permitted
to elect Interest Periods for periods of time between 7 and 14 days and
may not elect any Interest Period in excess of 14 days until the
earlier of completion of the syndication of this Agreement as
determined by the Agent or 90 days after the Effective Date; and
(b) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Eurodollar Loan or
Eurocurrency Loan and ending one, two, three or six months thereafter,
as selected by the relevant Borrower by irrevocable notice to the Agent
not less than three Business Days prior to the last day of the then
current Interest Period with respect thereto;
MSX CREDIT AGREEMENT Page 13
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provided that, all of the foregoing provisions relating to Interest
Periods are subject to the following:
(i) if any Interest Period pertaining to a Eurodollar
Loan or Eurocurrency 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
Eurocurrency Loan that would otherwise extend beyond the
Termination Date, shall end on the Termination Date;
(iii) any Interest Period pertaining to a Eurodollar Loan
or Eurocurrency 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.
"Investment" of a Person shall mean any loan, advance (other than
commission, travel and similar advances to officers and employees made in the
ordinary course of business), extension of credit (other than accounts
receivable and/or accrued expenses arising in the ordinary course of business
payable in accordance with customary practices and loans to employees in the
ordinary course of business) or contribution of capital by such Person; stocks,
bonds, mutual funds, partnership interests, notes, debentures or other
securities owned by such Person; any deposit accounts and certificates of
deposit owned by such Person; and structured notes, derivative financial
instruments and other similar instruments or contracts owned by such Person.
"Joinder Agreement" shall mean any joinder agreement entered into by a
Borrowing Subsidiary subsequent to the date hereof, which shall be in form and
substance satisfactory to the Agent.
"Lender Indebtedness" shall mean (a) the Advances and all other
indebtedness, obligations and liabilities of each Borrower and of each Guarantor
to the Agent or the Lenders under any Loan Document, and (b) all indebtedness,
obligations and liabilities of each Borrower and of each of their respective
Subsidiaries to any Lender or such Lender's Affiliates in respect of any Swaps.
"Letter of Credit" shall mean a standby letter of credit having a
stated expiry date or a date upon which the draft must be reimbursed not later
than twelve months after the date of issuance (subject to annual extensions) and
not later than the fifth Business Day before the Termination Date, issued by the
Agent on behalf of the Lenders for the account of a Borrower pursuant to Section
2.1(a) under an application and related documentation acceptable to the Agent
requiring, among other things, reimbursement by the Company or such Subsidiary
to the Agent in respect of all drafts or other demand for payment honored
thereunder in accordance with Section 3.3 and all expenses paid or incurred by
the Agent relative thereto. Additionally, all outstanding letters of credit as
of the Effective Date issued by the Agent for the account of the Company shall
for all purposes be deemed "Letters of Credit" issued hereunder.
"Letter of Credit Advance" shall mean any issuance of a Letter of
Credit under Section 2.4 made pursuant to Section 2.1(a) in which each Lender
acquires a pro rata participation.
"Letter of Credit Documents" shall have the meaning ascribed thereto in
Section 3.3(b).
MSX CREDIT AGREEMENT Page 14
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"LIBOR Business Day" shall mean a day which is both a Business Day and
a day on which dealings in Dollar and Eligible Currency deposits are carried out
in the London interbank market.
"Lien" shall mean any pledge, assignment, hypothecation, mortgage,
security interest deposit arrangement, conditional sale or title retaining
contract, sale and leaseback transaction, lessor's or lessee's interest under
any capital lease, subordination of any claim or right, or any other type of
lien, charge or encumbrance.
"Loan" shall mean any Revolving Credit Loan, Term Loan A, Term Loan B
and any Swingline Loan. Any such Loan or portion thereof may also be denominated
as a Floating Rate Loan, Eurocurrency Loan or a Eurodollar Loan and such
Floating Rate Loans, Eurocurrency Loans and Eurodollar Loans are referred to
herein as "types" of Loans.
"Loan Document" shall mean, collectively, this Agreement, the Notes,
the Letter of Credit Documents, the Security Documents and any other agreement,
instrument or document executed in connection with any of the foregoing at any
time.
"Management Investors" shall mean each of the officers, employees and
directors of the Company who own Voting Stock in the Company on the Effective
Date, in each case so long as such person shall remain an officer, employee or
director of the Company.
"Margin Stock" means "margin stock" as such term is defined in
Regulation T, U or X.
"MascoTech" shall mean MascoTech, Inc., a Delaware corporation.
"Material Adverse Effect" shall mean (i) a material adverse effect on
the financial condition, results of operations, properties, assets, business or
prospects of the Company and its Subsidiaries, taken as a whole, (ii) a material
adverse effect on the ability of the Company to perform its obligations under
the Loan Documents or (iii) a material adverse effect on the rights and remedies
of the Agent or the Lenders under any of the Loan Documents.
"Material Plan" shall mean at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $5,000,000.
"Maturity Date A" shall mean the earlier to occur of (a) December 7,
2004 and (b) the date Term Loan A is accelerated pursuant to Section 6.2.
"Maturity Date B" shall mean the earlier to occur of (a) December 7,
2006 and (b) the date Term Loan B is accelerated pursuant to Section 6.2.
"Multiemployer Plan" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions, including for these
purposes any Person which ceased to be a member of the ERISA Group during such
five year period.
"Negotiated Rate" shall mean, as to each Swingline Loan, the rate
agreed to by the Borrower of such Swingline Loan and the Agent at the time of
such Swingline Loan. The Negotiated Rate may be a fixed or a floating rate, and
more than one Negotiated Rate may be in effect at any time.
MSX CREDIT AGREEMENT Page 15
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"Net Cash Proceeds" shall mean, (a) in connection with any sale or
other disposition of any asset or any settlement by, or receipt of payment in
respect of, any property insurance claim or condemnation award, the cash
proceeds (including any cash payments received by way of deferred payment of
principal pursuant to a note or installment receivable or purchase price
adjustment receivable or otherwise, but only as and when received) of such sale,
settlement or payment, net of reasonable and documented attorneys' fees,
accountants' fees, investment banking fees, amounts required to be applied to
the repayment of Indebtedness secured by a Lien expressly permitted hereunder on
any asset which is the subject of such sale, insurance claim or condemnation
award (other than any Lien in favor of the Agent for the benefit of the Agent
and the Lenders) and other customary fees actually incurred in connection
therewith and net of taxes and other liabilities paid or reasonably estimated to
be payable as a result thereof and (b) in connection with any issuance or sale
of any equity securities or debt securities or instruments or the incurrence of
loans, the cash proceeds received from such issuance or incurrence, net of
investment banking fees, reasonable and documented attorneys' fees, accountants'
fees, underwriting discounts and commissions and other reasonable and customary
fees and expenses actually incurred in connection therewith.
"Net Income" shall mean, for any period, the net income (or loss) of
the Company and its Subsidiaries on a consolidated basis for such period taken
as a single accounting period, determined in accordance with Generally Accepted
Accounting Principles; provided that in determining Net Income there shall be
excluded, without duplication: (a) the income (or loss) of any Person (other
than a Subsidiary of the Company) in which any Person other than the Company or
any of its Subsidiaries has a joint interest or partnership interest or other
ownership interest, except to the extent of the amount of dividends or other
distributions actually paid to the Company or any of its Subsidiaries by such
Person during such period, (b) the income of any Person accrued prior to the
date it becomes a Subsidiary of the Company or is merged into or consolidated
with the Company or any of its Subsidiaries or that Person's assets are acquired
by the Company or any of its Subsidiaries, unless such income is calculated on a
pro forma basis acceptable to the Agent in accordance with Section 1.3, in which
case such income shall not be excluded from Net Income, (c) the net proceeds of
any insurance policy, (d) gains (or non cash losses) from the sale, exchange,
transfer or other disposition of property or assets not in the ordinary course
of business of the Company and its Subsidiaries, and related tax effects in
accordance with Generally Accepted Accounting Principles, (e) any other
extraordinary or non-recurring gains (or non cash losses) of the Company or its
Subsidiaries, and related tax effects in accordance with Generally Accepted
Accounting Principles, and (f) the income of any Subsidiary of the Company to
the extent that the declaration or payment of dividends or similar distributions
by that Subsidiary of that income is not at the time permitted by operation of
the terms of its charter or of any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to that Subsidiary.
"Net Worth" shall mean, as of any date, the amount of any capital
stock, paid in capital and similar equity accounts, including minority
interests, but exclusive of any foreign currency translation adjustment account
shown as a capital account of the Company and its Subsidiaries, all on a
consolidated basis in accordance with Generally Accepted Accounting Principles.
"Note" shall mean any Revolving Credit Note, any Term Note A, any Term
Note B or the Swingline Note.
"Off-Balance Sheet Liability" of a Person shall mean (i) any repurchase
obligation or liability of such Person with respect to accounts or notes
receivable sold by such Person, (ii) any liability under any sale and leaseback
transaction which is not a Capital Lease, (iii) any liability under any
so-called "synthetic lease" or "tax ownership operating lease" transaction
entered into by such Person, or (iv) any obligation arising with respect to any
other transaction which is the functional equivalent of or takes the place of
borrowing (as reasonably determined by the Agent) but which does not constitute
a liability on the balance sheets of such Person, but excluding from this clause
(iv) operating leases.
MSX CREDIT AGREEMENT Page 16
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"Overdue Rate" shall mean (a) in respect of principal of Floating Rate
Loans, a rate per annum that is equal to the sum of two percent (2%) per annum
plus the Floating Rate, (b) in respect of principal of Fixed Rate Loans, a rate
per annum that is equal to the sum of two percent (2%) per annum plus the per
annum rate in effect thereon until the end of the then current Interest Period
for such Loan and, thereafter, a rate per annum that is equal to the sum of two
percent (2%) per annum plus the Floating Rate, and (c) in respect of other
amounts payable by any Borrower hereunder (other than interest), a per annum
rate that is equal to the sum of two percent (2%) per annum plus the Floating
Rate.
"PBGC" shall mean the Pension Benefit Guaranty Corporation and any
entity succeeding to any or all of its functions under ERISA.
"Permitted Business" is defined in Section 5.2(j).
"Permitted Currency" shall mean Dollars or any Eligible Currency.
"Permitted Holders" shall mean the CVC Investors, MascoTech, the
Management Investors and their respective Permitted Transferees; provided,
however, that any Management Investor and any CVC Investor and any Permitted
Transferee of a Management Investor or CVC Investor (other than CVC or Citicorp,
N.A. or any direct or indirect Subsidiary of CVC or Citicorp, N.A. or any other
Person controlled by CVC or Citicorp, N.A.) shall not be a "Permitted Holder" if
such Person is the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under
the Exchange Act), directly or indirectly, of Voting Stock that represents at
least 30% of the aggregate voting power of all classes of the Voting Stock of
the Company, voting together as a single class (without giving effect to the
attribution of beneficial ownership as a result of any stockholders' agreement
as in effect on the Effective Date, and any amendment to such agreement that
does not materially change the allocation of voting power provided in such
agreement).
"Permitted Investors" shall mean (i) MascoTech and its Permitted
Transferees, (ii) the CVC Investors and (iii) the Management Investors and their
respective Permitted Transferees, provided that the Management Investors and
their Permitted Transferees do not in the aggregate beneficially own more than
30% of the aggregate voting power of the Voting Stock of the Company (without
giving effect to any attribution of beneficial ownership which may result from
the Stockholders' Agreement, and any amendment to such agreement that does not
materially change the allocation of voting power provided for in such
agreement).
"Permitted Liens" shall mean Liens permitted by Section 5.2(g) hereof.
"Permitted Securitization Transaction" means any transaction or series
of transactions pursuant to which Company or any of its Subsidiaries may sell,
convey, or otherwise transfer to a Securitization Entity (in the case of a
transfer by Company or any of its Subsidiaries) or any other Person (in case of
a transfer by a Securitization Entity), or may grant a security interest in, any
accounts receivable (whether now existing or arising or acquired in the future)
of Company or any of its Subsidiaries, and any assets related thereto including,
without limitation, all collateral securing such accounts receivable, all
contracts and contract rights and all guarantees or other obligations in respect
to such accounts receivable, proceeds of such accounts receivable and other
assets (including contract rights) which are customarily transferred or in
respect of which security interests are customarily granted in connection with
asset securitization transactions involving accounts receivable, provided (i)
the aggregate Indebtedness with respect to all such transactions shall not
exceed the amount permitted under this Agreement and (ii) the terms and
conditions of such transactions are reasonably acceptable to the Agent.
MSX CREDIT AGREEMENT Page 17
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"Permitted Transferee" shall mean (a) with respect to any CVC Investor
who is an employee, officer or director of CVC or any Wholly-Owned (other than
directors' qualifying shares) Subsidiary of CVC, any spouse or lineal descendent
(including by adoption) of such CVC Investor so long as such CVC Investor shall
be an employee, officer or director of CVC; (b) with respect to MascoTech, any
direct or indirect Subsidiary or any other Person controlled by MascoTech; and
(c) with respect to any Management Investor, any spouse or lineal descendent
(including by adoption) of such Management Investor so long as such Management
Investor shall be an employee, officer or director of the Company.
"Person" shall include an individual, a corporation, an association, a
partnership, a trust or estate, a joint stock company, an unincorporated
organization, a joint venture, a trade or business (whether or not
incorporated), a government (foreign or domestic) and any agency or political
subdivision thereof, or any other entity.
"Plan" shall mean at any time an employee pension benefit plan (other
than a Multiemployer Plan) which is covered by Title IV of ERISA or subject to
the minimum funding standards under Section 412 of the Code and either (i) is
maintained, or contributed to, by any member of the ERISA Group for employees of
any member of the ERISA Group or (ii) has at any time within the preceding five
years been maintained, or contributed to, by any Person which was at such time a
member of the ERISA Group for employees of any Person which was at such time a
member of the ERISA Group.
"Pledge Agreements" shall mean each Pledge Agreement entered into by
the Company or any of its Subsidiaries for the benefit of the Agent and the
Lenders pursuant to this Agreement substantially in the forms attached hereto as
Exhibits D-1 and D-2, as amended by the Consent and Amendment and as further
amended or modified from time to time.
"Pledged Subsidiaries" shall mean those Foreign Subsidiaries 65% of
whose Capital Stock has been pledged to the Agent pursuant to a Pledge
Agreement.
"Pounds Sterling" means the lawful money of the U. K.
"Preferred Stock" as applied to the Capital Stock of any corporation,
shall mean Capital Stock of any class or classes (however designated) which is
preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"Regulation T" means Regulation T of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the purpose of purchasing or carrying margin
stocks applicable to member banks of the Federal Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the purpose of purchasing or carrying margin
stocks applicable to member banks of the Federal Reserve System.
"Regulation X" means Regulation X of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the purpose of purchasing or carrying margin
stocks applicable to member banks of the Federal Reserve System.
MSX CREDIT AGREEMENT Page 18
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"Reimbursement Agreements" shall mean the Standby Letter of Credit
Applications and Reimbursement Agreements executed in connection with the
Letters of Credit, as amended or modified from time to time.
"Related Fund" shall mean, with respect to any Term Loan B Lender that
is a fund that invests in bank loans, any other fund that invests in bank loans
and is managed by the same investment advisor as such Term Loan B Lender or by
an Affiliate of such investment advisor.
"Rental Charges" shall mean, for any period, the maximum amount of all
rents and other payments (exclusive of property taxes, property and liability
insurance premiums and maintenance costs) accrued by the Company or its
Subsidiaries during such period under any lease of real or personal property in
respect of which the Company or its Subsidiaries are obligated as a lessee or
user, other than any Capital Lease.
"Reportable Event" shall mean a reportable event as described in
Section 4043(b) of ERISA including without limitation those events as to which
the thirty (30) day notice period is waived under Part 2615 of the regulations
promulgated by the PBGC under ERISA.
"Required Lenders" shall mean Lenders holding not less than 51% of the
Aggregate Credit Exposure.
"Required Revolving Credit Lenders" shall mean Lenders holding not less
than 51% of the Aggregate Revolving Credit Exposure.
"Required Term Loan A Lenders" shall mean Lenders holding not less than
51% of the Aggregate Term Loan A Exposure.
"Required Term Loan B Lenders" shall mean Lenders holding not less than
51% of the Aggregate Term Loan B Exposure.
"Requirement of Law" shall mean 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.
"Revolving Credit Advance" shall mean any Revolving Credit Loan and any
Letter of Credit Advance.
"Revolving Credit Commitment" shall mean, with respect to each Lender,
the commitment of such Lender to make Revolving Credit Advances in an amount not
exceeding in the aggregate principal amount outstanding at any time the
Revolving Credit Commitment amount for such Lender set forth next to the name of
such Lender on the signature pages hereof, or, as to any Lender becoming a party
hereto after the Effective Date, as set forth in the applicable Assignment and
Acceptance, in each case as modified pursuant to Section 9.6.
"Revolving Credit Lenders" shall mean those Lenders which have a
Revolving Credit Commitment or, if such Commitment shall have been terminated,
have outstanding Revolving Credit Advances.
"Revolving Credit Loan" shall mean any borrowing under Section 2.4
evidenced by the Revolving Credit Notes and made pursuant to Section 2.1(a).
MSX CREDIT AGREEMENT Page 19
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"Revolving Credit Notes" shall mean the promissory notes of the
Borrowers evidencing the Revolving Credit Loans, in substantially the form
annexed hereto as Exhibit E, as amended or modified from time to time and
together with any promissory note or notes issued in exchange or replacement
therefor.
"Securitization Entity" means a wholly-owned Subsidiary that engages in
no activities other than Permitted Securitization Transactions and any necessary
related activities and that is designated by the Board of Directors of the
Company as a Securitization Entity, (i) no portion of the Indebtedness
(contingent or otherwise) of which (a) is guaranteed by Company or any
Subsidiary of the Company, (b) is recourse to or obligates Company or any
Subsidiary of Company in any way, other than pursuant to customary
representations, warranties, covenants and indemnities entered into in
connection with a Permitted Securitization Transaction, and (ii) to which
neither Company nor any Subsidiary of Company has any obligation to maintain or
preserve such entity's financial condition or cause such entity to achieve
certain levels of operating results.
"Security Agreements" shall mean each Security Agreement entered into
by the Company or any Guarantor for the benefit of the Agent and the Lenders
pursuant to this Agreement substantially in the forms attached hereto as Exhibit
F-1 and F-2, as amended by the Consent and Amendment and as further amended or
modified from time to time, and any other agreement executed by the Company or
any of its Subsidiaries granting a Lien for the benefit of the Agent and the
Lenders in form or substance satisfactory to the Agent, as amended or modified
from time to time.
"Security Documents" shall mean the Pledge Agreements, the Security
Agreements, the Guaranties, the Reimbursement Agreements, the Consent and
Amendment and all other agreements and documents delivered pursuant to the
Existing Credit Agreement, this Agreement or otherwise entered into by any
Person to secure or guaranty the obligations of the Borrowers under this
Agreement.
"Senior Debt" shall mean Total Debt minus any amount of Total Debt
which constitutes Subordinated Debt.
"Senior Leverage Ratio" shall mean, at any time, the ratio of (a)
Senior Debt at such time to (b) EBITDA, as calculated as of the four most
recently completed fiscal quarters of the Company, all as determined in
accordance with Generally Accepted Accounting Principles.
"Senior Subordinated Debt Documents" shall mean the Senior Subordinated
Note Indenture, the Senior Subordinated Notes and all agreements and documents
executed in connection therewith at any time, including without limitation those
agreements and documents listed on Schedule 1.1(b) hereto.
"Senior Subordinated Notes " shall mean the 11-3/8% Senior Subordinated
Notes issued by the Company in the aggregate principal amount of $130,000,000
due 2008 issued pursuant to the Senior Subordinated Note Indenture and any other
securities issued pursuant to the Senior Subordinated Note Indenture at any
time.
"Senior Subordinated Note Indenture" shall mean the Senior Subordinated
Indenture between the Company, the subsidiary guarantors named therein and IBJ
Schroder Bank & Trust Company, as trustee, dated as of January 15, 1998, as
amended or modified from time to time.
"Significant Subsidiary" shall mean any one or more Subsidiaries which,
if considered in the aggregate as a single Subsidiary would be a "significant
subsidiary" as defined in Rule 1-02 of Regulation S-X under the Exchange Act,
provided that no Domestic Subsidiary which is not by itself a Significant
Subsidiary shall be included in any Significant Subsidiary if all Domestic
Subsidiaries which
MSX CREDIT AGREEMENT Page 20
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are not by themselves Significant Subsidiaries or Guarantors would not
constitute a Significant Subsidiary and no Foreign Subsidiary which is not by
itself a Significant Subsidiary shall be included in any Significant Subsidiary
if all Foreign Subsidiaries which are not by themselves Significant Subsidiaries
or Pledged Subsidiaries would not constitute a Significant Subsidiary.
"Subordinated Debt" shall mean, in the case of the Company, all
Indebtedness owing pursuant to the Senior Subordinated Notes and any extensions,
refinancings, renewals or refundings thereof and any increases in the amount
thereof and, for any Person, any other Indebtedness of such Person which is
fully subordinated to all Lender Indebtedness by written agreements and
documents in form and substance satisfactory to the Agent and which is governed
by terms and provisions, including without limitation maturities, covenants,
defaults, rates and fees, acceptable to the Agent.
"Subordinated Debt Documents" shall mean the Senior Subordinated Debt
Documents and any other agreement or document evidencing or relating to any
Subordinated Debt, whether under the Senior Subordinated Notes or any other
Subordinated Debt.
"Subsidiary" of any Person shall mean any other Person (whether now
existing or hereafter organized or acquired) in which (other than directors'
qualifying shares required by law) at least a majority of the securities or
other ownership interests of each class having ordinary voting power or
analogous right (other than securities or other ownership interests which have
such power or right only by reason of the happening of a contingency), at the
time as of which any determination is being made, are owned, beneficially and of
record, by such Person or by one or more of the other Subsidiaries of such
Person or by any combination thereof. Notwithstanding anything herein to the
contrary, an Unrestricted Subsidiary shall not be considered a Subsidiary. Any
reference in this Agreement to a Subsidiary shall be deemed reference to a
Subsidiary of the Company unless otherwise indicated.
"Substantial Portion" shall mean, with respect to the property of the
Company and its Subsidiaries, property which (a) represents more than 10% of the
consolidated assets of the Company and its Subsidiaries as would be shown in the
consolidated financial statements of the Company and its Subsidiaries as at the
beginning of the twelve-month period ending with the month in which such
determination is made, (b) is responsible for more than 10% of the consolidated
net sales or of the consolidated net income of the Company and its Subsidiaries
as reflected in the financial statements referred to in clause (a) above, (c)
represents more than 25% of the consolidated assets of the Company and its
Subsidiaries as would be shown in the consolidated financial statements of the
Company and its Subsidiaries as of the Effective Date or (d) is responsible for
more than 25% of the consolidated net sales or of the consolidated net income of
the Company and its Subsidiaries as reflected in the financial statements
referred to in clause (c) above.
"Swaps" shall mean any interest rate or currency swaps, rate caps or
similar transactions, provided that such transactions are entered into by the
Company or any of its Subsidiaries to protect against fluctuations in interest
rates on Indebtedness of the Company and its Subsidiaries or in exchange rates,
and not for speculative purposes.
"Swingline Loan" shall mean any loan under Section 2.4 evidenced by the
Swingline Note and made by the Agent to a Borrower pursuant to Section 2.1(b).
"Swingline Note" shall mean any promissory note of the Borrowers
evidencing the Swingline Loans in substantially the form of Exhibit G hereto, as
amended or modified from time to time and together with any promissory note or
notes issued in exchange or replacement therefor.
"Term Loan A" shall mean the single borrowing under Section 2.4
evidenced by the Term Loan A Notes and made to the Company pursuant to Section
2.1(c).
MSX CREDIT AGREEMENT Page 21
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"Term Loan A Commitment" shall mean, with respect to each Lender, the
commitment of each Lender to make Term Loan A in an amount not exceeding in the
aggregate principal amount outstanding at any time the Term Loan A Commitment
amount for such Lender set forth next to the name of such Lender on the
signature pages hereof, or, as to any Lender becoming a party hereto after the
Effective Date, as set forth in the applicable Assignment and Acceptance, in
each case as reduced by payments on the Term Loan A or modified pursuant to
Section 9.6.
"Term Loan A Lenders" shall mean those Lenders which have a Term Loan A
Commitment or, if such Commitments have been terminated, have an outstanding
portion of Term Loan A.
"Term Loan A Notes" shall mean the promissory notes of the Company
evidencing Term Loan A, in substantially the form of Exhibit H-1, as amended or
modified from time to time and together with any promissory note or notes issued
in exchange or replacement therefor, and "Term Loan A Note" shall mean any one
of such Term Loan A Notes.
"Term Loan B" shall mean the single borrowing under Section 2.4
evidenced by the Term Loan B Notes and made to the Company pursuant to Section
2.1(d).
"Term Loan B Commitment" shall mean, with respect to each Lender, the
commitment of each Lender to make Term Loan B in an amount not exceeding in the
aggregate principal amount outstanding at any time the Term Loan B Commitment
amount for such Lender set forth next to the name of such Lender on the
signature pages hereof, or, as to any Lender becoming a party hereto after the
Effective Date, as set forth in the applicable Assignment and Acceptance, in
each case as reduced by payments on the Term Loan B or modified pursuant to
Section 9.6.
"Term Loan B Lenders" shall mean those Lenders which have a Term Loan B
Commitment or, if such Commitments have been terminated, have an outstanding
portion of the Term Loan B.
"Term Loan B Notes" shall mean the promissory notes of the Company
evidencing Term Loan B, in substantially the form of Exhibit H-2, as amended or
modified from time to time and together with any promissory note or notes issued
in exchange or replacement therefor, and "Term Loan B Note" shall mean any one
of such Term Loan B Notes.
"Term Loans" shall mean Term Loan A and Term Loan B.
"Termination Date" shall mean the earlier to occur of (a) December 7,
2004, and (b) the date on which the Revolving Credit Commitments shall be
terminated pursuant to Section 2.2 or 6.2.
"Total Debt" as of any date, shall mean all Indebtedness of the Company
and its Subsidiaries on a consolidated basis and without duplication, but
excluding Indebtedness permitted under Section 5.2(f)(x) and (xi), and minus the
amount of cash and Cash Equivalents of the Company and its Subsidiaries in
excess of $2,000,000 in aggregate amount.
"Total Interest Expense" shall mean, for any period, total interest and
related expense (including, without limitation, that portion of any Capitalized
Lease obligation attributable to interest expense in conformity with Generally
Accepted Accounting Principles, amortization of debt discount, all capitalized
interest, the interest portion of any deferred payment obligations, all
commissions, discounts and other fees and charges owed with respect to letter of
credit and bankers acceptance financing, the net costs and net payments under
any interest rate hedging, cap or similar agreement or arrangement, prepayment
charges, agency fees, administrative fees, facility fees and capitalized
transaction costs allocated to interest expense)
MSX CREDIT AGREEMENT Page 22
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paid, payable or accrued during such period, without duplication for any other
period, with respect to all outstanding Indebtedness of the Company and its
Subsidiaries, all as determined for the Company and its Subsidiaries on a
consolidated basis for such period in accordance with Generally Accepted
Accounting Principles.
"Total Leverage Ratio" shall mean, at any time, the ratio of (a) Total
Debt at such time to (b) EBITDA, as calculated as of the four most recently
completed fiscal quarters of the Company, all as determined in accordance with
Generally Accepted Accounting Principles.
"U.K." shall mean the United Kingdom of Great Britain and Northern
Ireland.
"Unfunded Liabilities" shall mean, with respect to any Plan at any
time, the amount (if any) by which (i) the value of all benefit liabilities
under such Plan, determined on a plan termination basis using the assumptions
prescribed by the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the
fair market value of all Plan assets allocable to such liabilities under Title
IV of ERISA (excluding any accrued but unpaid contributions), all determined as
of the then most recent valuation date for such Plan, but only to the extent
that such excess represents a potential liability of a member of the ERISA Group
to the PBGC or any other Person under Title IV of ERISA.
"Unmatured Event" shall mean any event or condition which with notice
or lapse of time or both would, unless cured or waived, become an Event of
Default.
"Unrestricted Subsidiary" shall mean any Subsidiary designated by the
Company as an Unrestricted Subsidiary and approved by the Agent in its
discretion, provided that (a) neither the Company nor any Subsidiary of the
Company which is not an Unrestricted Subsidiary shall be liable, directly or
indirectly, for any of the indebtedness, obligations or other liabilities of any
such Unrestricted Subsidiary or for any Contingent Liabilities with respect to
any Unrestricted Subsidiary and (b) after giving effect to such designation, no
Event of Default or Unmatured Event exists or would be caused thereby, on a pro
forma basis acceptable to the Agent. Any Unrestricted Subsidiary may be
designated as a Subsidiary by the Company at any time provided that (i) such
designation is approved by the Agent and (ii) no Event of Default or Unmatured
Event exists or would be caused thereby, all on a pro forma basis acceptable to
the Agent.
"Voting Stock" of a Person shall mean all classes of Capital Stock of
such Person then outstanding and normally entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or
trustees thereof.
"Year 2000 Issues" means anticipated costs, problems and uncertainties
associated with the inability of certain computer applications to effectively
handle data including dates on and immediately after January 1, 2000, as such
inability affects the business, operations and financial condition of the
Company and its Subsidiaries.
"Year 2000 Program" is defined in Section 4.21.
1.2. Other Definitions; Rules of Construction. As used herein, the
terms "Agent", "Lenders", "Company", "Borrowing Subsidiary", "Borrower",
"Borrowers" and "this Agreement" shall have the respective meanings ascribed
thereto in the introductory paragraph of this Agreement. Such terms, together
with the other terms defined in Section 1.1, shall include both the singular and
the plural forms thereof and shall be construed accordingly. Use of the terms
"herein", "hereof", and "hereunder" shall be deemed references to this Agreement
in its entirety and not to the Section or clause in which such term
MSX CREDIT AGREEMENT Page 23
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appears. References to "Sections" and "subsections" shall be to Sections and
subsections, respectively, of this Agreement unless otherwise specifically
provided.
1.3. Accounting Terms and Determinations.
(a) Except as otherwise expressly provided herein, all
accounting terms used herein shall be interpreted, and all financial statements
and certificates and reports as to financial matters required to be delivered to
the Lenders hereunder shall (unless otherwise disclosed to the Lenders in
writing at the time of delivery thereof in the manner described in subsection
(b) below) be prepared, in accordance with Generally Accepted Accounting
Principles provided that, if the Company notifies the Agent that it wishes to
amend any covenant in Article V to eliminate the effect of any change in
Generally Accepted Accounting Principles (or if the Agent notifies the Company
that the Required Lenders wish to amend Article V for such purpose), then the
Company's compliance with such covenants shall be determined on the basis of
Generally Accepted Accounting Principles in effect immediately before the
relevant change in Generally Accepted Accounting Principles became effective
until either such notice is withdrawn or such covenant or any such defined term
is amended in a manner satisfactory to the Company and the Required Lenders.
Except as otherwise expressly provided herein, all references to a time of day
shall be references to Detroit, Michigan time. Notwithstanding anything herein,
in any financial statements of the Company or in Generally Accepted Accounting
Principles to the contrary, for purposes of calculating and determining
compliance with the financial covenants in Sections 5.2(a), (b), (c), (d) and
(e), including defined terms used therein, (i) no Unrestricted Subsidiary shall
be consolidated with the Company and its other Subsidiaries and each
Unrestricted Subsidiary shall be treated as if it were an equity interest and
all income (except to the extent received by the Company in cash), liabilities
and assets of each Unrestricted Subsidiary shall be excluded from all such
calculations and determinations thereunder and (ii) any Acquisitions made by the
Company or any of its Subsidiaries, including through mergers or consolidations
and including any related financing transactions, during the period for which
such financial covenants were calculated shall be deemed to have occurred on the
first day of the relevant period for which such financial covenants were
calculated on a pro forma basis acceptable to the Agent (including, without
limitation, adding back such transaction expenses and other charges in
connection with acquisitions acceptable to the Agent and excluding such amounts
from such pro forma calculations as required by the Agent).
(b) The Company shall deliver to the Lenders at the same
time as the delivery of any annual or monthly financial statement under Section
5.1(d) hereof (i) a description in reasonable detail of any material variation
between the application or other modification of accounting principles employed
in the preparation of such statement and the application or other modification
of accounting principles employed in the preparation of the immediately prior
annual or quarterly financial statements as to which no objection has been made
in accordance with the last sentence of subsection (a) above and (ii) if
requested by the Agent, reasonable estimates of the difference between such
statements arising as a consequence thereof.
(c) To enable the ready and consistent determination of
compliance with the covenants set forth in Section 5.2 hereof, the Company will
not change the last day of its fiscal year from the date set forth in Schedule
1.3 for each year set forth on such Schedule, or the last days of the first
three fiscal quarters in each of its fiscal years from the thirteenth,
twenty-sixth and thirty-ninth Sunday after the end of the immediately preceding
fiscal year.
MSX CREDIT AGREEMENT Page 24
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2. ARTICLE II
THE COMMITMENTS AND THE ADVANCES
2.1. Commitments of the Lenders.
(a) Revolving Credit Advances. Each Revolving Credit Lender
agrees, for itself only, subject to the terms and conditions of this Agreement,
to make Revolving Credit Loans to the Borrowers pursuant to Section 2.4, to
participate in Swingline Loans pursuant to Section 2.1(b)(iii) and to
participate in Letter of Credit Advances to the Borrowers pursuant to Section
3.3, from time to time from and including the Effective Date to but excluding
the Termination Date, not to exceed in aggregate principal amount at any time
outstanding the amount determined pursuant to Section 2.1(e).
(b) Swingline Loans.
(i) Any Borrower may request the Agent to make, and
the Agent may, in its sole discretion, make Swingline Loans to such Borrower
from time to time on any Business Day during the period from the Effective Date
until the Termination Date in an aggregate principal amount not to exceed at any
time the lesser of (A) $30,000,000 or the Dollar Equivalent thereof in Eligible
Currencies (the "Swingline Facility") and (B) the aggregate amount of Revolving
Credit Advances that could be but is not borrowed as of such date. Except for
purposes of clause (B) of the immediately preceding sentence, each Lender's
Revolving Credit Commitment shall be deemed utilized by an amount equal to such
Lender's pro rata share (based on such Lender's Revolving Credit Commitment) of
each Swingline Loan for purposes of determining the amount of Revolving Credit
Advances required to be made by such Lender. Each Swingline Loan shall bear
interest at the Negotiated Rate and shall mature as agreed by the Agent and such
Borrower, not to exceed 30 days after the date thereof. Within the limits of the
Swingline Facility, so long as the Agent, in its sole discretion, elects to make
Swingline Loans, the Borrowers may borrow and reborrow under this Section
2.1(b)(i).
(ii) The Agent may at any time in its sole and
absolute discretion require that any Swingline Loan be refunded by a Revolving
Credit Loan which is in the currency of such Swingline Loan from the Revolving
Credit Lenders, and upon written notice thereof by the Agent to the Lenders and
such Borrower, such Borrower shall be deemed to have requested a Revolving
Credit Loan in an amount equal to the amount of such Swingline Loan (which
requested Revolving Credit Loan, absent any specification by the Borrower, shall
be a Floating Rate if such Swingline Loan is in Dollars and shall be a
Eurocurrency Loan with an Interest Period of one month if such Swingline Loan is
denominated in an Eligible Currency), and such Floating Rate Borrowing shall be
made to refund such Swingline Loans. Each Revolving Credit Lender shall be
absolutely and unconditionally obligated to fund its pro rata share (based on
such Lender's Revolving Credit Commitment) of such Floating Rate Borrowing or,
if applicable, purchase a participating interest in the Swingline Loans pursuant
to Section 2.1(b)(iii) and such obligation shall not be affected by any
circumstance, including, without limitation, (A) any set-off, counterclaim,
recoupment, defense or other right which such Revolving Credit Lender has or may
have against the Agent or any Borrower or any if its Subsidiaries or anyone else
for any reason whatsoever; (B) the occurrence or continuance of an Unmatured
Event or an Event of Default, subject to Section 2.1(b)(iii); (C) the occurrence
of any Material Adverse Effect; (D) any breach of this Agreement or any other
agreement by any other Lender, any Borrower or any Guarantor; or (E) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing (including without limitation any Borrower's failure to satisfy
any conditions contained in Article II or any other provision of this
Agreement).
MSX CREDIT AGREEMENT Page 25
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(iii) If, due to any Event of Default pursuant to
Section 6.1(h) Loans as described in Section 2.1(b)(ii) may not be made by the
Revolving Credit Lenders, then (A) the Borrowers agree that each Swingline Loan
not paid pursuant to Section 2.1(b)(ii) shall bear interest, payable on demand
by the Agent, at the Overdue Rate, and (B) effective on the date each such Loan
would otherwise have been made, each Lender severally agrees that it shall
unconditionally and irrevocably, without regard to the occurrence of any
Unmatured Event or Event of Default or any other circumstances, in lieu of
deemed disbursement of loans, to the extent of such Revolving Credit Lender's
Revolving Credit Commitment, purchase a participating interest in the Swingline
Loans by paying its participation percentage thereof. Each Revolving Credit
Lender will immediately transfer to the Agent, in same day funds and in the
currency in which such Swingline Loan was made, the amount of its participation.
After such payment to the Agent, each Lender shall share on a pro rata basis in
any interest which accrues thereon and in all repayments thereof (calculated by
reference to its Revolving Credit Commitment). If and to the extent that any
Revolving Credit Lender shall not have so made the amount of such participating
interest available to the Agent, such Revolving Credit Lender and the Borrowers
severally agree to pay to the Agent forthwith on demand such amount together
with interest thereon, for each day from the date of demand by the Agent until
the date such amount is paid to the Agent, at (x) in the case of any Borrower,
the interest rate specified above and (y) in the case of such Revolving Credit
Lender, the Federal Funds Rate for the first five days after the date of demand
by the Agent and thereafter at the interest rate specified above.
(c) Term Loan A. Each Term Loan A Lender further agrees,
for itself only, subject to the terms and conditions of this Agreement, to make
its pro rata share, based on its Term Loan A Commitment, of a single five-year
term loan to the Company in an amount not to exceed $30,000,000. Such Term Loan
A shall be made, at Company's request in accordance with Section 2.4, in a
single draw on or within three Business Days after the Effective Date of this
Agreement.
(d) Term Loan B. Each Term Loan B Lender further agrees,
for itself only, subject to the terms and conditions of this Agreement, to make
its pro rata share, based on its Term Loan B Commitment, of a seven-year term
loan to the Company in an amount (i) equal to $50,000,000 to be funded on the
Effective Date and (ii) not to exceed an additional $25,000,000 to be funded
after the Effective Date but on or before the earlier of the date the Agent
deems syndication of this Agreement complete or March 31, 2000. Such Term Loan B
shall be made, at Company's request in accordance with Section 2.4, in a single
draw on or within three Business Days after the Effective Date of this Agreement
with respect to the amount of Term Loan B described in clause (i) above and in
one or more drawings on or before the earlier of the date the Agent deems
syndication of this Agreement complete or March 31, 2000
MSX CREDIT AGREEMENT Page 26
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with respect to the amount of Term Loan B described in clause (ii) above. Any
Term Loan B Lender to be added after the Effective Date will become a Term Loan
B Lender hereunder and party to this Agreement upon the prior written consent of
the Company and the Agent and the execution of an assumption agreement in form
and substance acceptable to the Company and the Agent and signed by such new
Term Loan B Lender, the Company and the Agent.
(e) Limitation on Amount of Advances. Notwithstanding
anything in this Agreement to the contrary:
(i) the Dollar Equivalent of the aggregate
principal amount of the Advances outstanding to the Borrowers shall not exceed
the amount of the Borrowing Base;
(ii) the Dollar Equivalent of the aggregate
principal amount of Letters of Credit outstanding at any time shall not exceed
$20,000,000;
(iii) the Dollar Equivalent of the aggregate
principal amount of Advances outstanding at any time in currencies other than
Dollars shall not exceed the Dollar Equivalent of $50,000,000;
(iv) the aggregate amount of Term Loan A shall not
exceed $30,000,000, and the pro rata share of any Term Loan A Lender's share of
the Term Loan A shall not exceed the amount of such Lender's Term Loan A
Commitment;
(v) the aggregate amount of Term Loan B shall not
exceed $75,000,000, and the pro rata share of any Term Loan B Lender's share of
Term Loan B shall not exceed the amount of such Lender's Term Loan B Commitment;
and
(vi) the aggregate amount of the Revolving Credit
Advances and Swingline Loans shall
not exceed the aggregate amount of the Revolving Credit Commitments, and the pro
rata share of any Lender's share of the Revolving Credit Advances shall not
exceed the amount of such Lender's Revolving Credit Commitment.
(f) Amendment and Restatement.This Agreement amends and
restates the Existing Credit Agreement as of the Effective Date, provided that
the Borrowers may give notice of a request for an Advance as of November 30,
1999 for purposes of satisfying the notice requirements for requests for
Advances and Section 3.11 shall be effective as of November 30, 1999. All
Advances and Letters of Credit outstanding under the Existing Credit Agreement
shall constitute Advances and Letters of Credit under this Agreement and all
fees and other obligations accrued under the Existing Credit Agreement will
continue to accrue and be paid under this Agreement under the terms of this
Agreement. The Advances and other obligations pursuant hereto are issued in
exchange and replacement for the Advances and other obligations under the
Existing Credit Agreement, shall not be a novation or satisfaction thereof and
shall be entitled to the same collateral with the same priority. The Lenders
acknowledge and agree that such transfers of rights and interests under the Loan
Documents shall take place among the Lenders as of the Effective Date to give
effect to Commitments set forth on the signature pages hereof.
MSX CREDIT AGREEMENT Page 27
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2.2. Termination and Reduction of Commitments.
(a) The Company shall have the right to terminate or reduce
the Revolving Credit Commitments at any time and from time to time, provided
that (i) the Company shall give not less than three Business Days' notice of
such termination or reduction to the Agent specifying the amount and effective
date thereof, (ii) each partial reduction of the Revolving Credit Commitment
shall be in a minimum amount of $5,000,000 and in an integral multiple of
$500,000 and shall reduce the Revolving Credit Commitments of all of the Lenders
proportionately in accordance with the respective Revolving Credit Commitment
amounts for each such Lender, (iii) no such termination or reduction shall be
permitted with respect to any portion of the Revolving Credit Commitments as to
which a request for a Revolving Credit Advance pursuant to Section 2.4 is then
pending, and (iv) the Revolving Credit Commitments may not be terminated if any
Revolving Credit Advances are then outstanding and may not be reduced below the
principal amount of Revolving Credit Advances then outstanding. The Revolving
Credit Commitments or any portion thereof terminated or reduced pursuant to this
Section 2.2 may not be reinstated.
(b) For purposes of this Agreement, a Letter of Credit
Advance (i) shall be deemed outstanding in an amount equal to the sum of the
maximum amount available to be drawn under the related Letter of Credit on or
after the date of determination and on or before the stated expiry date thereof
plus the amount of any draws under such Letter of Credit that have not been
reimbursed as provided in Section 3.3 and (ii) shall be deemed outstanding at
all times on and before such stated expiry date or such earlier date on which
all amounts available to be drawn under such Letter of Credit have been fully
drawn, and thereafter until all related reimbursement obligations have been paid
pursuant to Section 3.3. As provided in Section 3.3, upon each payment made by
the Agent in respect of any draft or other demand for payment under any Letter
of Credit, the amount of any Letter of Credit outstanding immediately prior to
such payment shall be automatically reduced by the amount of each Revolving
Credit Loan deemed advanced in respect of the related reimbursement obligation
of the relevant Borrower.
2.3. Fees
(a) The Company agrees to pay to the Agent for the account
of the Lenders a facility fee on the Revolving Credit Commitments, whether used
or unused, for each day during the period from the Effective Date to but
excluding the Termination Date, at a rate equal to the Applicable Margin for
such day. Accrued facility fees shall be payable quarterly in arrears within 15
days after the end of each calendar quarter, commencing with the last calendar
quarter of 1999, and on the Termination Date.
(b) Each Borrower agrees to pay to the Agent (i) with
respect to each Letter of Credit issued for its account, a fee for each day
during the period from and including the date of issuance of such Letter of
Credit to and including the stated expiry of such Letter of Credit computed at
the Applicable Margin for such day calculated on the maximum amount available to
be drawn on such day under such Letter of Credit, which fee shall be paid
quarterly in arrears within 15 days after the end of each calendar quarter,
which fees shall be for the pro rata benefit of the Lenders and (ii) in addition
to all other fees, with respect to each Letter of Credit issued for its account,
a fee computed at the rate of 0.15% per annum for each day during the period
from and including the date of issuance of such Letter of Credit to and
including the stated expiry of such Letter of Credit calculated on the face
amount of each Letter of Credit, which fee shall be paid quarterly in arrears
within 15 days after the end of each calendar quarter and shall be solely for
the account of the Agent. Each Borrower further agrees to pay to the Agent, on
demand, such other customary administrative fees, charges and expenses of the
Agent in respect of the issuance, negotiation, acceptance, amendment, transfer
and payment of such Letter of Credit or otherwise payable pursuant to the
application and related documentation under which such Letter of Credit is
issued.
MSX CREDIT AGREEMENT Page 28
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(c) For each day on which the aggregate principal amount of
the outstanding Revolving Credit Advances is less than 50% of the aggregate
amount of the Revolving Credit Commitments of all of the Revolving Credit
Lenders, the Company further agrees to pay to the Agent for the account of each
Revolving Credit Lender a non-usage fee on the unused Revolving Credit
Commitments for each such day during the period from the Effective Date to but
excluding the Termination Date, at a per annum rate equal to 0.25%. For purposes
of this Section 2.3(c), Swingline Loans shall be considered usage, and will be
deemed usage of each Revolving Credit Lender's Revolving Credit Commitment on a
pro rata basis. Accrued non-usage fees shall be payable quarterly in arrears
fifteen days after the end of each calendar quarter, commencing with the last
calendar quarter of 1999, and on the Termination Date.
(d) The Company agrees to pay to the Agent agency fees for
its services as Agent under this Agreement and for other services in such
amounts as may from time to time be agreed to in writing between the Company and
the Agent.
2.4. Disbursement of Advances.
(a) Each Borrower shall give the Agent notice of its
request for each Advance in substantially the form of Exhibit I hereto not later
than 11:00 a.m. Detroit time (i) three LIBOR Business Days prior to the date
such Advance is requested to be made if such Advance is to be made as a
Eurodollar Borrowing, (ii) five Business Days prior to the date any Letter of
Credit Advance is requested to be made, (iii) five Business days prior to the
date such Advance is requested to be made if such Advance is to be made as a
Eurocurrency Borrowing, (iv) on the Business Day such Advance is requested to be
made in the case of any Swingline Loan denominated in Dollars or such other day
prior to the date any Swingline Loan denominated in any Eligible Currency is
requested to be made as agreed upon between the Agent and such Borrower, (v)
three Business Days prior to the date any Term Loan is requested to be made, and
(vi) on the Business Day prior to the date such Advance is requested to be made
in all other cases, which notice shall specify whether a Eurodollar Borrowing, a
Floating Rate Borrowing, a Eurocurrency Borrowing, a Swingline Loan or a Letter
of Credit Advance is requested and, in the case of each requested Fixed Rate
Borrowing, the Interest Period to be initially applicable to such Borrowing and,
in the case of each Letter of Credit Advance, such information as may be
necessary for the issuance thereof by the Agent. The Agent shall promptly
provide notice of such requested Advance (other than Swingline Loans) to each
Lender. Subject to the terms and conditions of this Agreement, the proceeds of
each such requested Advance (other than a Letter of Credit Advance) shall be
made available to such Borrower by depositing the proceeds thereof, in
immediately available funds, in an account maintained and designated by such
Borrower at the Applicable Lending Installation of the Agent or as otherwise
agreed to between the Agent and such Borrower. Subject to the terms and
conditions of this Agreement, the Agent shall, on the date such Letter of Credit
Advance is requested to be made, issue the related Letter of Credit on behalf of
the Lenders for the account of such Borrower. Notwithstanding anything herein to
the contrary, (a) the Agent may decline to issue any requested Letter of Credit
on the basis that the beneficiary, the purpose of issuance or the terms or the
conditions of drawing are contrary to any policy of the Agent applicable to
borrowers generally, (b) Revolving Credit Loans denominated in any Permitted
Currency other than Dollars may only be made as Eurocurrency Loans and (c) the
Term Loans may be denominated only in Dollars.
(b) Each Lender, not later than 2:00 p.m. local time on the
date any Borrowing in the form of a Loan is required to be made, shall make its
pro rata share of such Borrowing available in immediately available funds in the
currency requested at the Applicable Lending Installation of the Agent for
disbursement to such Borrower. Unless the Agent shall have received notice from
any Lender prior to the date such Borrowing is requested to be made under this
Section 2.4 that such Lender will not make available to the Agent such Lender's
pro rata portion of such Borrowing, the Agent may assume that such Lender has
made such portion available to the Agent on the date such Borrowing is requested
to be made in
MSX CREDIT AGREEMENT Page 29
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accordance with this Section 2.4. If and to the extent such Lender shall not
have so made such pro rata portion available to the Agent, the Agent may (but
shall not be obligated to) make such amount available to the Company, and such
Lender and such Borrower severally agree to pay to the Agent forthwith on demand
such amount together with interest thereon, for each day from the date such
amount is made available to such Borrower by the Agent until the date such
amount is repaid to the Agent, at a rate per annum equal to, in the case of such
Borrower the interest rate applicable to such Borrowing during such period and,
in the case of any Lender, at the Federal Funds Rate for the first five days and
at the interest rate applicable to such Borrowing thereafter. If such Lender
shall pay such amount to the Agent together with interest, such amount so paid
shall constitute a Loan by such Lender as a part of such Borrowing for purposes
of this Agreement. The failure of any Lender to make its pro rata portion of any
such Borrowing available to the Agent shall not relieve any other Lender of its
obligations to make available its pro rata portion of such Borrowing on the date
such Borrowing is requested to be made, but no Lender shall be responsible for
failure of any other Lender to make such pro rata portion available to the Agent
on the date of any such Borrowing.
(c) All Revolving Credit Loans shall be evidenced by the
Revolving Credit Notes, Term Loan A shall be evidenced by the Term Loan A Notes,
Term Loan B shall be evidenced by the Term Loan B Notes, and the Swingline Loans
shall be evidenced by the Swingline Note and all such Loans shall be due and
payable and bear interest as provided in Article III. Each Lender and the Agent
is hereby authorized by each Borrower to record on the schedule attached to the
Notes, or in its books and records, the date, and amount and type of each Loan
and the duration of the related Interest Period (if applicable), the amount of
each payment or prepayment of principal thereon, and the other information
provided for on such schedule, which schedule or books and records, as the case
may be, shall constitute prima facie evidence of the information so recorded,
provided, however, that failure of any Lender or the Agent to record, or any
error in recording, any such information shall not relieve any Borrower of its
obligation to repay the outstanding principal amount of the Loans, all accrued
interest thereon and other amounts payable with respect thereto in accordance
with the terms of the Notes and this Agreement. Subject to the terms and
conditions of this Agreement, the Borrowers may borrow Revolving Credit Advances
under this Section 2.4 and under Section 3.3, prepay Revolving Credit Advances
pursuant to Section 3.1 and reborrow Revolving Credit Advances under this
Section 2.4.
(d) Nothing in this Agreement shall be construed to require
or authorize any Lender to issue any Letter of Credit, it being recognized that
the Agent has the sole obligation under this Agreement to issue Letters of
Credit for the risk of the Lenders. Upon issuance of a Letter of Credit by the
Agent, each Revolving Credit Lender shall automatically acquire a pro rata
participation interest in such Letter of Credit Advance based on its respective
Revolving Credit Commitment. If the Agent shall honor a draft or other demand
for payment presented or made under any Letter of Credit, the Agent shall
provide notice thereof to each Lender on the date such draft or demand is
honored unless such Borrower or any of its Subsidiaries shall have satisfied its
reimbursement obligation under Section 3.3 by payment to the Agent on such date.
Each Lender, on such date, shall make its pro rata share of the amount paid by
the Agent available in immediately available funds at the principal office of
the Agent for the account of the Agent. If and to the extent such Revolving
Credit Lender shall not have made any required pro rata portion available to the
Agent, such Revolving Credit Lender and the Borrowers, unconditionally and
irrevocably, severally agree to pay to the Agent forthwith on demand such amount
together with interest thereon, for each day from the date such amount was paid
by the Agent until such amount is so made available to the Agent at a per annum
rate equal to the interest rate applicable during such period to the related
Loan disbursed under Section 3.3 in respect of the reimbursement obligation of
the Borrowers and the portion of the Loan deemed to have been made by such
Defaulting Lender shall be deemed not to have been made. If such Revolving
Credit Lender shall pay such amount to the Agent together with such interest, if
any, accrued, such amount so paid shall constitute a Revolving Credit Loan by
such Lender as part of the Revolving Credit Borrowing
MSX CREDIT AGREEMENT Page 30
<PAGE> 32
disbursed in respect of the reimbursement obligation of the Borrowers under
Section 3.3 for purposes of this Agreement. The failure of any Revolving Credit
Lender to make its pro rata portion of any such amount paid by the Agent
available to the Agent shall not relieve any other Revolving Credit Lender of
its obligation to make available its pro rata portion of such amount, but no
Revolving Credit Lender shall be responsible for failure of any other Revolving
Credit Lender to make such pro rata portion available to the Agent.
Notwithstanding anything herein to the contrary, it is acknowledged and agreed
that Letters of Credit hereunder may be issued for the account of any of the
Subsidiaries of the Company, provided that for all purposes of this Agreement
and all other Loan Documents both the Company and such Subsidiary shall be
deemed the account party thereon and shall be jointly and severally liable for
all obligations in connection therewith and the Company shall have obtained an
agreement from such Subsidiary that such Subsidiary shall be bound all of the
terms and provisions of this Agreement with respect to Letters of Credit, such
agreement to be in form and substance satisfactory to the Agent.
2.5. Conditions for First Disbursement. The obligation of the Lenders
to make the first Advance hereunder is subject to receipt by the Agent of the
following documents and completion of the following matters, in form and
substance satisfactory to the Agent:
(a) Charter Documents. Certificates of recent date of the
appropriate authority or official of each Borrower's and each Guarantor's
respective jurisdiction of organization listing all charter documents of each
Borrower or each Guarantor, respectively, on file in that office and certifying
as to the good standing and corporate existence of each Borrower or each
Guarantor, respectively, together with copies of such charter documents of each
Borrower or each Guarantor certified as of a recent date by such authority or
official and certified as true and correct as of the Effective Date by a duly
authorized officer of each Borrower or each Guarantor, respectively;
(b) By-Laws and Corporate Authorizations. Copies of the
by-laws of each Borrower and each Guarantor together with all authorizing
resolutions and evidence of other corporate action taken by each Borrower and
each Guarantor to authorize the execution, delivery and performance by each
Borrower and each Guarantor of this Agreement, the Notes and the Security
Documents to which each Borrower or such Guarantor, respectively, is a party and
the consummation by such Borrower or such Guarantor, respectively, of the
transactions contemplated hereby, certified as true and correct as of the
Effective Date by a duly authorized officer of each Borrower or each Guarantor,
respectively;
(c) Incumbency Certificate. Certificates of incumbency of
each Borrower and each Guarantor containing, and attesting to the genuineness
of, the signatures of those officers or members, as the case may be, authorized
to act on behalf of each Borrower or each Guarantor in connection with this
Agreement, the Notes and the Security Documents to which each Borrower and each
Guarantor is a party and the consummation by such Borrower or such Guarantor of
the transactions contemplated hereby, certified as true and correct as of the
Effective Date by a duly authorized officer of each Borrower and each Guarantor;
(d) Notes. The Notes duly executed on behalf of each
Borrower for each Lender;
(e) Security Documents. The Security Documents duly
executed on behalf of the Company and the Guarantors, as the case may be,
granting to the Lenders and the Agent the collateral and security intended to be
provided pursuant to Section 2.10, or a confirmation pursuant to the Consent and
Amendment of the existing Security Documents executed and delivered pursuant to
the Existing Credit Agreement, as determined by the Agent, together with:
MSX CREDIT AGREEMENT Page 31
<PAGE> 33
(i) Recording, Filing, Etc. Delivery of financing
statements and original stock certificates and transfer powers and completion of
such other action (including payment of any applicable taxes or fees) in such
jurisdictions as the Agent may deem necessary or appropriate with respect to the
Security Documents, together with Uniform Commercial Code record searches in
such offices as the Lenders or the Agent may request;
(ii) Casualty and Other Insurance. Evidence that the
casualty and other insurance required pursuant to Section 5.1(c) and the
Security Documents is in full force and effect;
(iii) Consents. A consent and acknowledgement in
form and substance satisfactory to the Agent of any owners of any Capital Stock
of any Guarantor, other than the Company or any of its Subsidiaries fully
consenting to and acknowledging the guaranty obligations and grant security
interests pursuant to the Security Documents and containing such other
provisions required by the Agent;
(f) Legal Opinions. The favorable written opinions of
counsel for each Borrower and each Guarantor, substantially in the forms of
Exhibits J-1, J-2 and J-3 attached hereto and as to such other matters as the
Agent may reasonably request;
(g) Consents, Approvals, Etc. Copies of all governmental
and nongovernmental consents, approvals, authorizations, declarations,
registrations or filings, if any, required on the part of any Borrower or any
Guarantor in connection with the execution, delivery and performance of the Loan
Documents or the transactions contemplated hereby or as a condition to the
legality, validity or enforceability of the Loan Documents, certified as true
and correct and in full force and effect as of the Effective Date by a duly
authorized officer of the Company, or if none are required, a certificate of
such officer to that effect;
(h) Environmental Certificate. An Environmental Certificate
duly executed by the Borrowers and the Guarantors, or a confirmation thereof
pursuant to the Consent and Amendment;
(i) Certificates. A pro forma covenant compliance
certificate, as of the Effective Date, in form and substance satisfactory to the
Agent, and a Borrowing Base Certificate as the last day of the month most
recently ended prior to the Effective Date; and
(j) Other Conditions. Such other documents and completion
of such other matters as the Agent or any Lender may reasonably request,
including without limitation copies of all final projections and financial
statements.
2.6. Further Conditions for Disbursement. The obligation of the
Lenders to make any Advance (including the first Advance) is further subject to
the satisfaction of the following conditions precedent:
(a) The representations and warranties contained in Article
IV hereof and in the Security Documents shall be true and correct in all
material respects on and as of the date such Advance is made (both before and
after such Advance is made) as if such representations and warranties were made
on and as of such date;
(b) No Event of Default or Unmatured Event shall exist or
shall have occurred and be continuing on the date such Advance is made and the
making of such Advance shall not cause an Event of Default or Unmatured Event;
MSX CREDIT AGREEMENT Page 32
<PAGE> 34
(c) The Agent shall have received the Borrowing Base
Certificate pursuant to Section 5.1(d)(v) as of the close of business on the
last day of the month preceding the date such Advance is made;
(d) In addition to all other applicable conditions, in the
case of any Letter of Credit Advance, a Borrower shall have delivered to the
Agent issuing the related Letter of Credit an application for such Letter of
Credit and other related documentation requested by and acceptable to the Agent
appropriately completed and duly executed on behalf of such Borrower; and
(e) The Borrowers shall be deemed to have made a
representation and warranty to the Lenders at the time of the making of each
Advance to the effects set forth in clauses (a) and (b) of this Section 2.6. For
purposes of this Section 2.6, the representations and warranties contained in
Section 4.6 hereof shall be deemed made with respect to both the financial
statements referred to therein and the most recent financial statements
delivered pursuant to Section 5.1(d)(ii) and (iii).
2.7. Subsequent Elections as to Borrowings. As to Revolving Credit
Loans, a Borrower may elect (a) to continue a Fixed Rate Borrowing, or a portion
thereof, as a Fixed Rate Borrowing or (b) to convert a Eurodollar Rate
Borrowing, or a portion thereof, to a Floating Rate Borrowing or (c) to convert
a Floating Rate Borrowing, or a portion thereof, to a Eurodollar Rate Borrowing,
in each case by giving notice thereof to the Agent in substantially the form of
Exhibit K hereto not later than 10:00 a.m. Detroit time three LIBOR Business
Days prior to the date any such continuation of or conversion to a Eurodollar
Borrowing is to be effective, 10:00 a.m. local time five LIBOR Business Days
prior to the date any such continuation of or conversion to a Eurocurrency
Borrowing is to be effective and not later than 10:00 a.m. Detroit time one
Business Day prior to the date such continuation or conversion is to be
effective in all other cases, provided that an outstanding Eurodollar Borrowing
may only be converted on the last day of the then current Interest Period with
respect to such Borrowing, and provided, further, if a continuation of a
Borrowing as, or a conversion of a Borrowing to, a Eurodollar Borrowing is
requested, such notice shall also specify the Interest Period to be applicable
thereto upon such continuation or conversion and no Event of Default or
Unmatured Event shall have occurred and be continuing. The Agent shall promptly
provide notice of such election to the Lenders. If the Company shall not timely
deliver such a notice with respect to any outstanding Eurodollar Borrowing, the
Company shall be deemed to have elected to convert such Eurodollar Borrowing to
a Floating Rate Borrowing on the last day of the then current Interest Period
with respect to such Borrowing. If a Borrowing Subsidiary shall not timely
deliver such notice with respect to any outstanding Eurocurrency Borrowing, such
Borrower shall be deemed to have elected to convert such Eurocurrency Borrowing
to a Eurocurrency Borrowing with an Interest Period of one month on the last day
of the then current Interest Period with respect to such Borrowing.
2.8. Minimum Amounts; Limitation on Number of Borrowings. Except for
(a) Advances and conversions thereof which exhaust the entire remaining amount
of the Commitments and (b) payments required pursuant to Section 3.8, each
Borrowing and each continuation or conversion pursuant to Section 2.7 and each
prepayment thereof shall be in a minimum amount of, in the case of Fixed Rate
Borrowings, $2,000,000 and in integral multiples of $500,000, and in the case of
Floating Rate Borrowings, $500,000 and in integral multiples of $500,000. No
more than eight Interest Periods shall be permitted to exist at any one time
with respect to all Borrowings outstanding hereunder from time to time.
2.9. Borrowing Base Adjustments. The Borrowers agree that if at any
time any trade account receivable of the Company or any Subsidiary fails to
constitute Eligible Accounts Receivable for any reason or any amount included
within Eligible Unbilled Receivables fails to constitute Eligible Unbilled
Receivables for any reason, the Agent may, at any time upon written notice to
the Company and notwithstanding any prior classification of eligibility,
classify such asset as ineligible and exclude the same from the computation of
the Borrowing Base. Additionally, the Agent may establish such reserves against
MSX CREDIT AGREEMENT Page 33
<PAGE> 35
the Eligible Accounts Receivables and Eligible Unbilled Receivables from time to
time as determined by the Agent (in a commercially reasonable manner), in each
case without in any way impairing the rights of the Lenders and the Agent in and
to the same under the Security Agreements.
2.10. Guaranties; Security and Collateral. To secure and guarantee, as
the case may be, the payment when due of the Lender Indebtedness, the Borrowers
and each Guarantor shall execute and deliver, or cause to be executed and
delivered, to the Lenders and the Agent Security Documents granting the
following:
(a) Security interests in all present and future accounts,
inventory, equipment, fixtures and all other personal property of the Company,
each other Borrower which is a Domestic Subsidiary and each Guarantor which is a
Domestic Subsidiary, excluding the following (the following described assets in
this parenthetical are defined as the "Excluded Collateral") (i) motor vehicles,
instruments and chattel paper with an aggregate value for all of the foregoing
less than $1,000,000, (ii) real property leases and (iii) rights arising under
any contracts or licenses (other than, in each of the foregoing cases, any right
to receive payment) as to which a grant of a security interest would constitute
a violation of a valid and enforceable restriction in favor of a third party on
such grant, unless and until any required consents shall have been obtained,
provided that the Company shall notify the Agent of any such restriction and
shall use all reasonable efforts to obtain any required consent to the extent
requested by the Agent;
(b) Pledges of 100% of the Capital Stock of certain
Subsidiaries which are Domestic Subsidiaries owned directly by the Company or
any Domestic Subsidiary and 65% of all Capital Stock of certain Foreign
Subsidiaries owned directly by the Company or by any Domestic Subsidiary and
Guaranties of certain present and future Domestic Subsidiaries such that, at all
times, the Domestic Subsidiaries which are not Guarantors and that do not have
100% of their Capital Stock pledged pursuant to Pledge Agreements and the
Foreign Subsidiaries owned directly by the Company that do not have 65% of their
Capital Stock pledged pursuant to Pledge Agreements do not, if considered in the
aggregate as a single Subsidiary, constitute a Significant Subsidiary; provided,
however, that Chelsea Computer Consultants, Inc. shall not be required to
execute a Guaranty, and shall be excluded for purposes of determining the
Subsidiaries that are required to become Gaurantors under this Section 2.10(b),
so long as Chelsea Computer Consultants, Inc. is prohibited by its agreements
existing as of the date hereof from becoming a Guarantor, provided, further,
that the Company will not permit Chelsea Computer Consultants, Inc. to extend
such prohibition or make such prohibition more restrictive. In connection with
the delivery of any such Guaranties and Pledge Agreements, the Company and the
Guarantors shall provide such other documentation to the Agent, including,
without limitation, if requested by the Agent, one or more opinions of counsel
satisfactory to the Agent, corporate documents and resolutions and consents and
other documents (further including, without limitation, such consents from any
shareholders or other owners of any Subsidiary to the execution and performance
of such Loan Documents by such Subsidiary), which in the opinion of the Agent
are necessary or advisable in connection therewith;
(c) Guaranties of each other Guarantor, other than Domestic
Subsidiaries covered by clause (b) above; and
(d) All other security and collateral described in the
Security Documents.
Upon request of the Agent, (i) the Company and the Guarantors which are Domestic
Subsidiaries shall execute and deliver such agreements and documents reasonably
requested by the Agent to grant a first priority lien and security interest on
all real property owned by the Company and the Guarantors, (ii) each Borrowing
Subsidiary (which shall include, without limitation, the Borrowing Subsidiary in
the U.K.) shall execute and deliver all agreements and documents reasonably
requested by the Agent to grant a first priority lien and security interest on
all assets owned by such Borrowing Subsidiary, to secure the
MSX CREDIT AGREEMENT Page 34
<PAGE> 36
indebtedness and other obligations of such Borrowing Subsidiary owing pursuant
to the Loan Documents, unless it is prohibited by applicable law or existing
contractual restrictions from doing so or it is reasonably determined by the
Agent to be impractical or unreasonably costly, and (iii) each parent
corporation of a Foreign Subsidiary Borrower and Subsidiary of such Foreign
Subsidiary Borrower or parent that is organized under the same jurisdiction as
such Foreign Subsdiary Borrower will execute a Guaranty with respect to the
Lender Indebtedness of such Foreign Borrowing Subsidiary and will execute and
deliver all agreements and documents reasonably requested by the Agent to grant
a first priority lien and security interest on all of its assets to secure such
Guaranty, unless it is prohibited by applicable law or existing contractual
restrictions from doing so or it is reasonably determined by the Agent to be
impractical or unreasonably costly.
ARTICLE III
PAYMENTS AND PREPAYMENTS OF ADVANCES
3.1. Principal Payments.
(a) Unless earlier payment is required under this
Agreement, each Borrower shall pay on the Termination Date the entire
outstanding principal amount of its Revolving Credit Advances outstanding.
(b) The Company hereby unconditionally promises to pay to
the Agent for the pro rata account of each Term Loan A Lender the unpaid
principal amount of Term Loan A in 20 quarterly principal payments as follows:
<TABLE>
<CAPTION>
- ------------------------------------------------------------ ---------------------------------------------------------
PAYMENT DATE PRINCIPAL INSTALLMENT
============================================================ =========================================================
<S> <C>
March 31, 2000 $750,000
- ------------------------------------------------------------ ---------------------------------------------------------
June 30, 2000 $750,000
- ------------------------------------------------------------ ---------------------------------------------------------
September 30, 2000 $750,000
- ------------------------------------------------------------ ---------------------------------------------------------
December 31, 2000 $750,000
- ------------------------------------------------------------ ---------------------------------------------------------
March 31, 2001 $1,125,000
- ------------------------------------------------------------ ---------------------------------------------------------
June 30, 2001 $1,125,000
- ------------------------------------------------------------ ---------------------------------------------------------
September 30, 2001 $1,125,000
- ------------------------------------------------------------ ---------------------------------------------------------
December 31, 2001 $1,125,000
- ------------------------------------------------------------ ---------------------------------------------------------
March 31, 2002 $1,500,000
- ------------------------------------------------------------ ---------------------------------------------------------
June 30, 2002 $1,500,000
- ------------------------------------------------------------ ---------------------------------------------------------
September 30, 2002 $1,500,000
- ------------------------------------------------------------ ---------------------------------------------------------
December 31, 2002 $1,500,000
- ------------------------------------------------------------ ---------------------------------------------------------
March 31, 2003 $1,875,000
- ------------------------------------------------------------ ---------------------------------------------------------
June 30, 2003 $1,875,000
- ------------------------------------------------------------ ---------------------------------------------------------
September 30, 2003 $1,875,000
- ------------------------------------------------------------ ---------------------------------------------------------
December 31, 2003 $1,875,000
- ------------------------------------------------------------ ---------------------------------------------------------
March 31, 2004 $2,250,000
- ------------------------------------------------------------ ---------------------------------------------------------
June 30, 2004 $2,250,000
- ------------------------------------------------------------ ---------------------------------------------------------
</TABLE>
MSX CREDIT AGREEMENT Page 35
<PAGE> 37
<TABLE>
<CAPTION>
- ------------------------------------------------------------ ---------------------------------------------------------
PAYMENT DATE PRINCIPAL INSTALLMENT
============================================================ =========================================================
<S> <C>
September 30, 2004 $2,250,000
- ------------------------------------------------------------ ---------------------------------------------------------
Maturity Date A $2,250,000
- ------------------------------------------------------------ ---------------------------------------------------------
</TABLE>
Term Loan A shall be paid in full on Maturity Date A. Notwithstanding
the foregoing, any of the above payments (other than the payment due on Maturity
Date A) may be made on or within six Business Days of the payment date listed
above to facilitate the making of payments at the end of an Interest Period.
(c) The Company hereby unconditionally promises to pay to
the Agent for the pro rata account of each Term Loan B Lender in the unpaid
principal amount of Term Loan B in 28 quarterly principal payments as follows:
<TABLE>
<CAPTION>
- ------------------------------------------------------------ ---------------------------------------------------------
PAYMENT DATE PRINCIPAL INSTALLMENT
============================================================ =========================================================
<S> <C>
March 31, 2000 0.25% of the final amount of Term Loan B
- ------------------------------------------------------------ ---------------------------------------------------------
June 30, 2000 0.25% of the final amount of Term Loan B
- ------------------------------------------------------------ ---------------------------------------------------------
September 30, 2000 0.25% of the final amount of Term Loan B
- ------------------------------------------------------------ ---------------------------------------------------------
December 31, 2000 0.25% of the final amount of Term Loan B
- ------------------------------------------------------------ ---------------------------------------------------------
March 31, 2001 0.25% of the final amount of Term Loan B
- ------------------------------------------------------------ ---------------------------------------------------------
June 30, 2001 0.25% of the final amount of Term Loan B
- ------------------------------------------------------------ ---------------------------------------------------------
September 30, 2001 0.25% of the final amount of Term Loan B
- ------------------------------------------------------------ ---------------------------------------------------------
December 31, 2001 0.25% of the final amount of Term Loan B
- ------------------------------------------------------------ ---------------------------------------------------------
March 31, 2002 0.25% of the final amount of Term Loan B
- ------------------------------------------------------------ ---------------------------------------------------------
June 30, 2002 0.25% of the final amount of Term Loan B
- ------------------------------------------------------------ ---------------------------------------------------------
September 30, 2002 0.25% of the final amount of Term Loan B
- ------------------------------------------------------------ ---------------------------------------------------------
December 31, 2002 0.25% of the final amount of Term Loan B
- ------------------------------------------------------------ ---------------------------------------------------------
March 31, 2003 0.25% of the final amount of Term Loan B
- ------------------------------------------------------------ ---------------------------------------------------------
June 30, 2003 0.25% of the final amount of Term Loan B
- ------------------------------------------------------------ ---------------------------------------------------------
September 30, 2003 0.25% of the final amount of Term Loan B
- ------------------------------------------------------------ ---------------------------------------------------------
December 31, 2003 0.25% of the final amount of Term Loan B
- ------------------------------------------------------------ ---------------------------------------------------------
March 31, 2004 0.25% of the final amount of Term Loan B
- ------------------------------------------------------------ ---------------------------------------------------------
June 30, 2004 0.25% of the final amount of Term Loan B
- ------------------------------------------------------------ ---------------------------------------------------------
September 30, 2004 0.25% of the final amount of Term Loan B
- ------------------------------------------------------------ ---------------------------------------------------------
December 31, 2004 0.25% of the final amount of Term Loan B
- ------------------------------------------------------------ ---------------------------------------------------------
March 31, 2005 0.25% of the final amount of Term Loan B
- ------------------------------------------------------------ ---------------------------------------------------------
June 30, 2005 0.25% of the final amount of Term Loan B
- ------------------------------------------------------------ ---------------------------------------------------------
September 30, 2005 0.25% of the final amount of Term Loan B
- ------------------------------------------------------------ ---------------------------------------------------------
December 31, 2005 0.25% of the final amount of Term Loan B
- ------------------------------------------------------------ ---------------------------------------------------------
March 31, 2006 23.5% of the final amount of Term Loan B
- ------------------------------------------------------------ ---------------------------------------------------------
June 30, 2006 23.5% of the final amount of Term Loan B
- ------------------------------------------------------------ ---------------------------------------------------------
September 30, 2006 23.5% of the final amount of Term Loan B
- ------------------------------------------------------------ ---------------------------------------------------------
Maturity Date B 23.5% of the final amount of Term Loan B
- ------------------------------------------------------------ ---------------------------------------------------------
</TABLE>
Term Loan B shall be paid in full on Maturity Date B. Notwithstanding
the foregoing, any of the above payments (other than the payment due on Maturity
Date B) may be made on or within six Business Days of the payment date listed
above to facilitate the making of payments at the end of an Interest Period.
MSX CREDIT AGREEMENT Page 36
<PAGE> 38
(d) In addition to all other payments of the Term Loans
required hereunder, the Company shall prepay the Term Loans by an amount equal
to 100% of all of the Net Cash Proceeds from any sale or other disposition of
any assets (other than the sale of inventory in the ordinary course of business
upon customary credit terms, sales of scrap or obsolete material or equipment
which are not material in the aggregate, sales of assets pursuant to a Permitted
Securitization Transaction, disposition of Cash Equivalents, sales of assets
described on Schedule 5.2(i) and transfers of assets, including without
limitation Capital Stock, between Guarantors or between the Company and
Guarantors or between Subsidiaries which are not Guarantors or from a Subsidiary
which is not a Guarantor to a Guarantor or the Company) in excess of $2,000,000
in aggregate amount in any fiscal year (other than such Net Cash Proceeds from
the sale of assets which are used or contractually committed to be used within
180 days of the date received to replace the assets so sold or otherwise
disposed of with an asset of comparable value or to acquire an asset of
comparable value), which payments shall be due 20 days after the end of each
month for all such sales and other dispositions during such month. The Company
shall provide a certificate to the Agent within 20 days after each sale of
assets which, but for the above parenthetical, would cause a prepayment under
this Section 3.1(d), which certificate shall describe such sale of assets and
estimate when such Net Cash Proceeds will be used to purchase assets of a
comparable value, and if such Net Cash Proceeds are not used or contractually
committed to be used within 180 days after such sale or such earlier date when
the Company has determined not to purchase assets of comparable value with such
Net Cash Proceeds the Company will then prepay the Loans with such Net Cash
Proceeds. Subject to Section 3.1(i), such mandatory prepayments shall be applied
pro rata between the Term Loans and shall be applied to installments thereon in
the inverse order or maturities until paid in full.
(e) In addition to all other payments of the Loans required
hereunder, the Company shall prepay the Term Loans by an amount equal to 50% of
the Excess Cash Flow for each fiscal year of the Company, commencing with the
2000 fiscal year, payable 105 days after the end of each fiscal year. Subject to
Section 3.1(i), such mandatory prepayments shall be applied pro rata between the
Term Loans and shall be applied to installments thereon in the inverse order or
maturities until paid in full.
(f) In addition to all payments of the Term Loans required
hereunder, the Company shall prepay the Term Loans by an amount equal to 100% of
the Net Cash Proceeds from (i) the issuance or other sale of any Capital Stock
of the Company or any of its Subsidiaries (excluding such Net Cash Proceeds from
Capital Stock issued to employees, directors or consultants of the Company or
its Subsidiaries up to $10,000,000 in any 12 month period) or (ii) the
incurrence of any Subordinated Debt by the Company or any of its Subsidiaries on
or after the Effective Date to the extent the amount of such Subordinated Debt
in the aggregate exceeds an amount equal to $150,000,000 minus the aggregate
amount of Term Loan B made at any time. Subject to Section 3.1(i), such
mandatory prepayments on the Term Loans shall be applied pro rata between the
Term Loans and shall be applied to installments thereon in the inverse order or
maturities until paid in full.
(g) In addition to any other payment required hereunder, if
the Advances at any time exceed the amount allowed pursuant to Section 2.1(e),
the Borrowers shall prepay the Advances by an amount equal to or greater than
such excess. Any such payments required under this clause (g) shall be applied
first to Revolving Credit Advances until paid in full, and if any additional
payments are required under this clause (g) such payments shall be applied to
the Term Loans if an Event of Default has occurred and is continuing or, if no
Event of Default has occurred and is continuing, at the option of the Company,
such payment shall be applied to the Term Loans or deposited into a special cash
collateral account to be held by the Agent as collateral security for the
payment and performance of the Lender Indebtedness and to be released by the
Agent to the Borrower to the extent the amount therein is greater than the
amount by which the Advances exceed the amount allowed pursuant to Section
2.1(e).
MSX CREDIT AGREEMENT Page 37
<PAGE> 39
(h) The Borrowers shall (i) give the Agent at least three
Business Days' notice of each prepayment that the Borrowers expect to make on
Term Loan B pursuant to Sections 3.1(d), (e) and (f), in each case specifying
the amount of such prepayment and a brief description of the event or events
which cause such prepayment to be made.
(i) (i) At least five Business Days before the date (an
"Unscheduled Prepayment Date") on which any prepayment of the Term Loan B (a
"Term Loan B Unscheduled Prepayment") would, but for the provisions of this
subsection (i), become payable pursuant to Sections 3.1(d), (e) and (f) the
Company shall deliver a notice conforming to the requirements of paragraph (ii)
below (a "Term Loan B Prepayment Notice") to the Agent and on or before such
Unscheduled Prepayment Date, the Company shall deposit in a cash collateral
account with the Agent an amount equal to such Term Loan B Unscheduled
Prepayment (together with interest accrued thereon to but excluding the Deferred
Term Loan B Prepayment Date specified in such Term Loan B Prepayment Notice).
Such Term Loan B Unscheduled Prepayment shall not be made on such Unscheduled
Payment Date but shall instead be deferred as provided in this subsection (i).
Upon receipt of any Term Loan B Prepayment Notice, the Agent shall promptly
notify each Term Loan B Lender of the contents hereof.
(ii) Each Term Loan B Prepayment Notice shall (w)
set forth the amount of the relevant Term Loan B Unscheduled Prepayment and the
portion thereof that each Term Loan B Lender will be entitled to receive if it
accepts prepayment of its Term Loan B Loans in accordance with this subsection,
(x) contain an offer to prepay on a specified date (a "Deferred Term Loan B
Prepayment Date"), which shall not be less than 10 days or more than 25 days
after the date of such Term Loan B Prepayment Notice, the Term Loan B Loans of
such Term Loan B Lender by an aggregate principal amount equal to such Term Loan
B Lender's share of such Term Loan B Unscheduled Prepayment, (y) request such
Term Loan B Lender to notify the Company and the Agent in writing, no later than
the fifth Business Day before the Deferred Term Loan B Prepayment Date, of such
Term Loan B Lender's acceptance or rejection (in each case, in whole and not in
part) of such offer of prepayment and (z) inform such Term Loan B Lender that,
if it fails to reject such offer in writing on or before the fifth Business Day
before such Deferred Term Loan B Prepayment Date, it shall be deemed to accept
such offer. Each Term Loan B Prepayment Notice shall be given by facsimile and
confirmed by hand delivery or overnight courier service, in each case addressed
to the Agent and each Term Loan B Lender as provided herein.
(iii) On each Deferred Term Loan B Prepayment Date,
the Agent shall withdraw from such cash collateral account the amount deposited
therein with respect to the relevant Term Loan B Unscheduled Prepayment (and any
interest earned thereon) and shall apply such amount as follows:
(x) to prepay a portion of the principal of the
Term Loan B Loans of each Term Loan B Lender that shall have
accepted (or be deemed to have accepted) such prepayment in
accordance with the related Term Loan B Prepayment Notice (an
"Accepting Term Loan B Lender") equal to the portion of the
relevant Term Loan B Unscheduled Prepayment initially allocated
to such Accepting Term Loan B Lender;
(y) to prepay a portion of the principal of the
Term Loan A and the Term Loan B Loans of the Accepting Term Loan
B Lenders, ratably in proportion to the then outstanding
principal amounts thereof, in an aggregate amount equal to the
portion of the relevant Term Loan B Unscheduled Prepayment
initially allocated to the Term Loan B Lenders that rejected
such prepayment; and
(z) to pay interest accrued on the principal
amounts so prepaid to the date of prepayment.
MSX CREDIT AGREEMENT Page 38
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If the amount withdrawn from such cash collateral account is not sufficient to
make the foregoing payments, the Company shall pay to the Agent on such Deferred
Term Loan B Prepayment Date an amount equal to the shortfall. Notwithstanding
anything herein to the contrary, if all of the Revolving Credit Loans and Term
Loan A are paid in full, the Term Loan B Lenders may not refuse a prepayment on
Term Loan B.
(j) In the event that the Company makes any prepayment of Term
Loan B at any time (i) on or prior to the date one year after the Effective
Date, the Company shall pay to each Term Loan B Lender a prepayment premium
equal to 1.50% of the amount prepaid to such Lender or (ii) after the date one
year after the Effective Date but on or prior to the date two years after the
Effective Date, the Company shall pay each Term Loan B Lender a prepayment
premium equal to 0.50% of the amount prepaid to such Lender. The Company agrees
that the amounts payable pursuant to this Section are a reasonable preestimate
of loss and not a penalty. Such amounts are payable as liquidated damages for
the loss of bargain and payment of such amounts shall not in any way reduce,
affect or impair any other obligations of the Company under this Agreement.
(k) Subject to Section 3.1(g) hereof, the Borrowers may at any
time and from time to time prepay all or a portion of the Loans, without premium
or penalty, provided that (i) the Borrowers may not prepay any portion of any
Loan as to which an election of or a conversion to a Fixed Rate Loan is pending
pursuant to 2.7, (ii) the Borrowers shall comply with all requirements of
Section 3.11 in connection with any payment of any Fixed Rate Loan and (iii) the
Borrowers will provide three Business Days' prior written notice of any
prepayment of a Fixed Rate Loan and shall provide one Business Day's prior
written notice of any prepayment of a Floating Rate Loan.
3.2. Interest Payments. Each Borrower shall pay interest to the Lenders
on the unpaid principal amount of each of its Loans, for the period commencing
on the date such Loan is made until such Loan is paid in full, on each Interest
Payment Date and at maturity (whether at stated maturity, by acceleration or
otherwise), and thereafter on demand, at the following rates per annum:
(a) During such periods that such Loan is an Floating Rate Loan,
the Floating Rate.
(b) During such periods that such Loan is a Eurodollar Loan, the
Eurodollar Rate applicable to such Loan for each related Interest Period.
(c) During such periods that such Loan is a Eurocurrency Loan, the
Eurocurrency Rate applicable to such Loan for such related Interest Period.
(d) With respect to Swingline Loans, at the Negotiated Rate.
Notwithstanding the foregoing paragraphs (a), (b), (c) and (d), each Borrower
shall pay interest on demand at the Overdue Rate on the outstanding principal
amount of any of its Loans and any other amount payable by it hereunder (other
than interest) which is not paid when due, whether at stated maturity, by
acceleration or otherwise.
3.3. Letter of Credit Reimbursement Payments. (a) (i) Each Borrower
agrees to pay to the Agent, not later than 1:00 p.m. local time on the date on
which the Agent shall honor a draft or other demand for payment presented or
made under a Letter of Credit issued for the account of such Borrower (or on the
Business Day after receipt by such Borrower from the Agent of the notice
referred to in the next sentence, if later), an amount equal to the amount paid
by the Agent in respect of such draft or other
MSX CREDIT AGREEMENT Page 39
<PAGE> 41
demand under such Letter of Credit and all reasonable expenses paid or incurred
by the Agent relative thereto (the "Reimbursement Amount"). The Agent shall, on
the date of each demand for payment under any Letter of Credit issued by the
Agent, give such Borrower notice thereof and of the amount of such Borrower's
reimbursement obligation and liability for expenses relative thereto. In the
case of the Company, if the Company shall not have made such payment to the
Agent on such day, upon each such payment by the Agent, the Company shall be
deemed to have elected to satisfy its reimbursement obligation by a Floating
Rate Borrowing in an amount equal to the amount so paid by the Agent in respect
of such draft or other demand under such Letter of Credit, and the Agent shall
be deemed to have disbursed to the Company, for the account of the Revolving
Credit Lenders, the Floating Rate Loans comprising such Floating Rate Borrowing,
and each Revolving Credit Lender shall make its share of each such Floating Rate
Borrowing available to the Agent in accordance with this Agreement. Such
Floating Rate Loans shall be deemed disbursed notwithstanding any failure to
satisfy any conditions for disbursement of any Loan and, to the extent of the
Floating Rate Loans so disbursed, the reimbursement obligation of the Company
with respect to such Letter of Credit under this subsection (a)(i) shall be
deemed satisfied.
(ii) If, for any reason (including without limitation as a result
of the occurrence of an Event of Default with respect to any Borrower pursuant
to Section 6.1(h)) Floating Rate Loans may not be made by the Revolving Credit
Lenders as described in subsection (a)(i) of this Section 3.3 or in the case of
any Letter of Credit Advance made to any Borrowing Subsidiary, (A) each Borrower
agrees that each Reimbursement Amount not paid pursuant to the first sentence of
subsection (a)(i) of this Section 3.3 shall bear interest, payable on demand by
the Agent, at the interest rate then applicable to Floating Rate Loans in the
case of any Letters of Credit denominated in Dollars and at the correlative
floating rate of interest customarily applicable to similar transactions of
credit to corporate borrowers denominated in such currency in the country of
issue, as determined by the Agent, in the case of any Letter of Credit
denominated in any Eligible Currency, and (B) effective on the date each such
Floating Rate Loan would otherwise have been made with respect to any Letter of
Credit in the case of any Letter of Credit denominated in Dollars or, in the
case of any Letter of Credit denominated in any Eligible Currency, effective on
the date the Reimbursement Amount is due thereunder, each Revolving Credit
Lender severally agrees that it shall unconditionally and irrevocably, without
regard to the occurrence of any Event of Default or Unmatured Event or any other
event or condition to the extent of such Revolving Credit Lender's pro rata
share (based on the percentage of the aggregate Revolving Credit Commitments of
all Revolving Credit Lenders then constituted by such Revolving Credit Lender's
Revolving Credit Commitment) purchase a participating interest in each
unreimbursed draft under a Letter a Credit. Each such Revolving Credit Lender
will immediately transfer to the Agent, in same day funds, the amount of its
participation. Each such Revolving Credit Lender shall share on a pro rata basis
in any interest which accrues thereon and in all repayments thereof. If and to
the extent that any Revolving Credit Lender shall not have so made the amount of
such participating interest available to the Agent, such Revolving Credit Lender
agrees to pay to the Agent forthwith on demand such amount together with
interest thereon, for each day from the date of demand by the Agent until the
date such amount is paid to the Agent, at the Federal Funds Rate for the first
five days after such demand and at the Overdue Rate thereafter.
(iii) Each Revolving Credit Lender shall be obligated, absolutely
and unconditionally, to make Floating Rate Loans pursuant to Section 3.3(a)(i)
to purchase and fund participation interests in Letters of Credit pursuant to
Section 2.4(d) and 3.3(a)(ii) and the obligation shall not be affected by any
circumstance whatsoever, including, without limitation, (i) any set off,
counterclaim, recoupment, defense or other right which such Revolving Credit
Lender or any Borrower may have against the Agent, any Borrower or anyone else
for any reason whatsoever, (ii) the occurrence of any Event of Default or
Unmatured Event (iii) the occurrence of any Material Adverse Effect, (iv) any
breach of this Agreement by any Borrower, any of their respective Subsidiaries,
the Agent, or any other Revolving Credit Lender, or (v) any other circumstance,
happening or event whatsoever, whether or not similar to any of the
MSX CREDIT AGREEMENT Page 40
<PAGE> 42
foregoing, including without limitation any termination or other limitation on
the Revolving Credit Commitments or any failure to satisfy any conditions
precedent to any Advance contained herein or any other provision of this
Agreement.
(b) To the fullest extent permitted by law, the reimbursement
obligation of each Borrower under this Section 3.3 shall be absolute,
unconditional and irrevocable and shall remain in full force and effect until
all obligations of such Borrower to the Revolving Credit Lenders hereunder shall
have been satisfied, and such obligations of such Borrower shall not be
affected, modified or impaired upon the happening of any event, including
without limitation, any of the following, whether or not with notice to, or the
consent of, such Borrower:
(i) Any lack of validity or enforceability of any Letter of
Credit or any documentation relating to any Letter of Credit or to any
transaction related in any way to such Letter of Credit (the "Letter of Credit
Documents");
(ii) Any amendment, modification, waiver, consent, or any
substitution, exchange or release of or failure to perfect any interest in
collateral or security, with respect to any of the Letter of Credit Documents;
(iii) The existence of any claim, setoff, defense or other
right which any Borrower may have at any time against any beneficiary or any
transferee of any Letter of Credit (or any Persons or entities for whom any such
beneficiary or any such transferee may be acting), the Agent or any Lender or
any other Person or entity, whether in connection with any of the Letter of
Credit Documents, the transactions contemplated herein or therein or any
unrelated transactions;
(iv) Any draft or other statement or document presented under
any Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect;
(v) Payment by the Agent to the beneficiary under any Letter
of Credit against presentation of documents which do not comply with the terms
of the Letter of Credit, including failure of any documents to bear any
reference or adequate reference to such Letter of Credit;
(vi) Any failure, omission, delay or lack on the part of the
Agent or any Lender or any party to any of the Letter of Credit Documents to
enforce, assert or exercise any right, power or remedy conferred upon the Agent
any Lender or any such party under this Agreement or any of the Letter of Credit
Documents, or any other acts or omissions on the part of the Agent any Lender or
any such party; or
(vii) Any other event or circumstance that would, in the
absence of this clause, result in the release or discharge by operation of law
or otherwise of any Borrower from the performance or observance of any
obligation, covenant or agreement contained in this Section 3.3.
No setoff, counterclaim, reduction or diminution of any obligation or any
defense of any kind or nature which any Borrower has or may have against the
beneficiary of any Letter of Credit shall be available hereunder to any Borrower
against the Agent or any Lender. Nothing in this Section 3.3 shall limit the
liability, if any, of the Agent or the Lenders to any Borrower pursuant to
Section 3.3(c).
(c) Each Borrower hereby indemnifies and agrees to hold harmless
the Lenders, the Agent and their respective officers, directors, employees and
agents, from and against any and all claims,
MSX CREDIT AGREEMENT Page 41
<PAGE> 43
damages, losses, liabilities, costs or expenses of any kind or nature whatsoever
which the Lenders, the Agent or any such Person may incur or which may be
claimed against any of them by reason of or in connection with any Letter of
Credit issued for its account, and neither any Lender, the Agent nor any of
their respective officers, directors, employees or agents shall be liable or
responsible for: (i) the use which may be made of any Letter of Credit or for
any acts or omissions of any beneficiary in connection therewith; (ii) the
validity, sufficiency or genuineness of documents or of any endorsement thereon,
even if such documents should in fact prove to be in any or all respects
invalid, insufficient, fraudulent or forged; (iii) payment by the Agent to the
beneficiary under any Letter of Credit against presentation of documents which
do not comply with the terms of any Letter of Credit, including failure of any
documents to bear any reference or adequate reference to such Letter of Credit;
(iv) any error, omission, interruption or delay in transmission, dispatch or
delivery of any message or advice, however transmitted, in connection with any
Letter of Credit; or (v) any other event or circumstance whatsoever arising in
connection with any Letter of Credit; provided, however, that no Borrower shall
be required to indemnify the Lenders, the Agent and such other Persons, and the
Lenders shall be severally liable to such Borrower to the extent, but only to
the extent, of any direct, as opposed to consequential or incidental, damages
suffered such Borrower which were caused by (A) the Agent's wrongful dishonor of
any Letter of Credit after the presentation to it by the beneficiary thereunder
of a draft or other demand for payment and other documentation strictly
complying with the terms and conditions of such Letter of Credit, or (B) the
payment by the Agent to the beneficiary under any Letter of Credit against
presentation of documents which do not comply with the terms of the Letter of
Credit to the extent, but only to the extent, that such payment constitutes
gross negligence or wilful misconduct of the Agent; provided that none of the
Agent, any Lender or any such Person shall have the right to be indemnified
hereunder for its own gross negligence or wilful misconduct as determined by a
court of competent jurisdiction. It is understood that in making any payment
under a Letter of Credit the Agent will rely on documents presented to it under
such Letter of Credit as to any and all matters set forth therein without
further investigation and regardless of any notice or information to the
contrary, and such reliance and payment against documents presented under a
Letter of Credit substantially complying with the terms thereof shall not be
deemed gross negligence or wilful misconduct of the Agent in connection with
such payment. It is further acknowledged and agreed that the Borrowers may have
rights against the beneficiary or others in connection with any Letter of Credit
with respect to which the Lenders or the Agent are alleged to be liable and it
shall be a precondition of the assertion of any liability of the Lenders or the
Agent under this Section that the Borrowers shall first have exhausted all
remedies in respect of the alleged loss against such beneficiary and any other
parties obligated or liable in connection with such Letter of Credit and any
related transactions.
(d) For purposes of this Agreement, the outstanding amount of any
Letter of Credit issued in any currency other than Dollars shall equal the
Dollar Equivalent thereof.
3.4. Payment Method.
(a) All payments to be made by any Borrower hereunder will be made
in Dollars or the Permitted Currency in which the related obligations were
incurred and in immediately available funds to the Agent for the account of the
Lenders at its Applicable Lending Installation not later than 1:00 p.m. local
time on the date on which such payment shall become due. Payments received after
1:00 p.m. local time shall be deemed to be payments made prior to 1:00 p.m.
local time on the next succeeding Business Day. Each Borrower hereby authorizes
the Agent to charge its account with the Agent in order to cause timely payment
of principal, interest and fees due under Section 2.3 (subject to sufficient
funds being available in such account for that purpose).
(b) At the time of making each such payment, the relevant Borrower
shall, subject to the other terms and conditions of this Agreement, specify to
the Agent that Advance or other obligation of
MSX CREDIT AGREEMENT Page 42
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such Borrower hereunder to which such payment is to be applied. In the event
that such Borrower fails to so specify the relevant obligation or if an Event of
Default shall have occurred and be continuing, the Agent may apply such payments
as it may determine.
(c) On the day such payments are deemed received, the Agent shall
remit to the Lenders their pro rata shares of such payments in immediately
available funds, (i) in the case of payments of principal and interest on any
Borrowing, determined with respect to each such Lender by the ratio which the
outstanding principal balance of its Loan included in such Borrowing bears to
the outstanding principal balance of the Loans of all the Lenders included in
such Borrowing and (ii) in the case of fees paid pursuant to Section 2.3 and
other amounts payable hereunder (other than the Agent's fees payable pursuant to
Section 2.3(c) and amounts payable to any Lender under Section 2.4, 3.9 or
3.11), determined with respect to each such Lender by the ratio which the
Revolving Credit Commitment of such Lender bears to the Revolving Credit
Commitments of all the Lenders.
3.5. No Setoff or Deduction. All payments of principal and interest on
the Loans and other amounts payable by the Borrowers hereunder shall be made by
the Borrowers without setoff or counterclaim, and free and clear of, and without
deduction or withholding for, or on account of, any present or future taxes,
levies, imposts, duties, fees, assessments, or other charges of whatever nature,
imposed by any governmental authority, or by any department, agency or other
political subdivision or taxing authority. If any such taxes, levies, imposts,
duties, fees, assessments, or other charges are required to be withheld from any
amounts payable hereunder with respect to any Advance in any Eligible Currency,
the amounts so payable shall be increased to the extent necessary to yield to
the payee thereof the interest or any such other amounts payable hereunder at
the rates and in the amounts specified in this Agreement.
3.6. Payment on Non-Business Day; Payment Computations. Except as
otherwise provided in this Agreement to the contrary, whenever any installment
of principal of, or interest on, any Loan or any other amount due hereunder
becomes due and payable on a day which is not a Business Day, the maturity
thereof shall be extended to the next succeeding Business Day and, in the case
of any installment of principal, interest shall be payable thereon at the rate
per annum determined in accordance with this Agreement during such extension.
Computations of interest and other amounts due under this Agreement shall be
made on the basis of a year of 360 days for the actual number of days elapsed,
including the first day but excluding the last day of the relevant period,
provided that the computation of interest at the Floating Rate shall be made on
the basis of a year of 365 days for the actual number of days elapsed, including
the first day but excluding the last day of the relevant period.
3.7. Impossibility; Interest Rate Inadequate or Unfair. If before the
beginning of any Interest Period:
(a) deposits in the relevant Permitted Currency (in the applicable
amounts) are not being offered to the Agent in the relevant market for such
Interest Period, or
(b) the Required Lenders advise the Agent that the Eurodollar Base
Rate or Eurocurrency Base Rate, as the case may be, will not adequately and
fairly reflect the cost to such Lenders of maintaining, making or funding, for
such Interest Period, the Fixed Rate Loans to which such Interest Period
applies,
the Agent shall forthwith give notice thereof to the Borrowers and the
Lenders, whereupon until the Agent notifies the Borrowers that the circumstances
giving rise to such suspension no longer exist, the obligations, if any, of the
Lenders to make such Fixed Rate Loans, as the case may be, shall be suspended.
In the case of Eurodollar Loans, unless the relevant Borrower notifies the Agent
not later than 3:00 p.m. (Detroit time)
MSX CREDIT AGREEMENT Page 43
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on the Business Day before the beginning of such Interest Period that such
Borrower elects not to borrow on such date, such Borrowing shall, subject to the
provisions of Section 2.6, be a Floating Rate Borrowing. Promptly after the
Agent receives any such notice from a Borrower under this Section 3.7, the Agent
shall notify each Lender of the contents thereof. Any such notice from any
Borrower shall be irrevocable once the Agent begins notifying any Lender of the
contents thereof.
3.8. Illegality. If, after the date of this Agreement, the introduction
of, or any change in, any applicable law, rule or regulation or the
interpretation or administration thereof by any governmental authority charged
with the interpretation or administration thereof or compliance by any Lender
(or its Applicable Lending Installation) with any request or directive (whether
or not having the force of law) of any such authority shall make it unlawful or
impossible for such Lender (or its Applicable Lending Installation) to honor its
binding legal obligations, if any, hereunder to make, maintain or fund any type
of Fixed Rate Loans, such Lender shall so notify the Agent, and the Agent shall
forthwith give notice thereof to the Borrowers, whereupon until such Lender
notifies the Agent that the circumstances giving rise to such suspension no
longer exist, the obligation, if any, of such Lender to make such type of Fixed
Rate Loans shall be suspended. Before any Lender gives any notice of
unlawfulness or impossibility to the Agent under this Section 3.8, such Lender
shall designate a different Applicable Lending Installation if such designation
will avoid the need for giving such notice and will not, in the judgment of such
Lender, be otherwise disadvantageous to such Lender. Upon receipt of such
notice, the applicable Borrowers shall prepay in full the then outstanding
principal amount of each affected Fixed Rate Loan of such Lender together with
accrued interest thereon (a) on the last day of the then current Interest Period
applicable to such Loan if such Lender may lawfully continue to maintain and
fund such Loan to such day, or (b) immediately if such Lender may not lawfully
continue to fund and maintain such Loan to such day.
3.9. Increased Cost; Yield Protection.
(a) If, after the date hereof, the introduction of, or any change
in, any applicable law, treaty, rule or regulation (whether domestic or foreign
and including, without limitation, the Federal Deposit Insurance Act, as
amended, and Regulation D of the Board of Governors of the Federal Reserve
System) or in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its Applicable Lending
Installation) with any request or directive of any such authority, central
Lender or comparable agency (whether or not having the force of law),
(i) shall subject any Lender (or its Applicable Lending
Installation) to any tax, duty or other charge with respect to its obligation to
make any Loans, its Notes, any of its Loans or any of the Letters of Credit or
shall change the basis of taxation of payments to any Lender (or its Applicable
Lending Installation) of the principal of or interest on any of its Fixed Rate
Loans or in respect of its obligation, if any, to make any Loans or to
participate in the risk of Letters of Credit (except for changes in the rate of
tax on the overall net income of such Lender or its Applicable Lending
Installation imposed by the jurisdiction in which such Lender's principal
executive office or Applicable Lending Installation is located), or
(ii) shall impose, modify or deem applicable any reserve
(including, without limitation, any imposed by the Board of Governors of the
Federal Reserve System, but excluding with respect to any Fixed Rate Loan any
reserve requirements to the extent included in clause (b) of the definition of
Eurodollar Base Rate or Eurocurrency Base Rate, as the case may be, when
calculating the Eurodollar Base Rate or Eurocurrency Base Rate, as the case may
be, with respect to such Fixed Rate Loan), special deposit or similar
requirement (including, without limitation, any deposit insurance assessment in
respect of deposits held outside the United States, against assets of, deposits
with or for the
MSX CREDIT AGREEMENT Page 44
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account of, or credit extended by, any Lender's Applicable Lending Installation,
or shall impose on any Lender (or its Applicable Lending Installation or the
relevant interbank market) any other condition affecting its obligation, if any,
to make Loans or to participate in the risk of Letters of Credit or affecting
its Loans or the Letters of Credit or affecting the Borrowers' obligations under
the Notes in respect of such Loans, and the result of any of the foregoing is to
increase the cost to such Lender (or its Applicable Lending Installation) of
making or maintaining its existing or future Fixed Rate Loans or of
participating in the risk of Letters of Credit, or to reduce the amount of any
sum received or receivable by such Lender (or its Applicable Lending
Installation) under this Agreement or under the Notes (in respect of Fixed Rate
Loans) or Letters of Credit by an amount deemed by such Lender to be material,
then such Lender may notify the Borrowers (with a copy of any such notice to be
provided to the Agent) of any such fact of which it has knowledge and demand
compensation therefor; provided that, if such Lender fails to demand such
compensation (or notify the Borrowers that it will or may demand such
compensation) promptly upon becoming aware of the facts entitling it to do so
or, if such Lender is contesting the cause of such increased cost or reduced sum
received or receivable, promptly after the earlier of (A) the final
determination of such contest or (B) an officer of such Lender who is
responsible for the administration of the credit outstanding under this
Agreement from such Lender to the Borrowers becoming aware of such facts, such
Lender shall not be entitled to such compensation for the period before the date
on which it actually demands (or notifies the Borrowers that it will or may
demand) such compensation; provided, further, that if such Lender is contesting
the cause of such increased cost or reduced sum received or receivable, such
Lender shall not in any event be entitled to such compensation for any period
prior to twelve months before it notifies the Borrowers that such Lender may or
will demand such compensation. The Borrowers agree to pay to such Lender such
additional amount or amounts as will compensate such Lender for such increased
cost or reduction in connection with their respective Loans within 15 days after
demand by such Lender. A certificate of such Lender setting forth the basis for
determining such additional amount or amounts necessary to compensate such
Lender shall be conclusive in the absence of manifest error. Each such Lender
will designate a different Applicable Lending Installation if such designation
would avoid the need for, or reduce the amount of such compensation and would
not, in the judgment of such Lender, be otherwise disadvantageous to such
Lender. In the event that any Borrower is required to compensate any Lender for
any increased cost to such Lender pursuant to this Section 3.9(a), such Borrower
shall have the right, upon at least five Business Days' prior notice to such
Lender through the Agent, to prepay in full any outstanding Fixed Rate Loans
that are related to such increased cost of such Lender, together with accrued
interest thereon to the date of prepayment; provided that prepayment of such
Fixed Rate Loans shall not relieve such Borrower of its obligation to compensate
such Lender in accordance with this Section 3.9(a), the amount of which
compensation shall be due at the time of such prepayment, notwithstanding any
other provision of this Section 3.9(a). Concurrently with prepaying each such
Fixed Rate Loan of such Lender, such Borrower shall borrow a Loan at the
Floating Rate (or, if such Borrower shall so elect in its notice of prepayment,
a Fixed Rate Loan of another type) in an equal principal amount from such Lender
for an Interest Period coinciding with the remaining term of the Interest Period
applicable to such Fixed Rate Loan, and such Lender shall make such a Floating
Rate Loan (or Fixed Rate Loan of the other type), provided that there has been
no acceleration of the amount due under the Notes pursuant to Section 6.2. The
Borrowers shall pay compensation owing to any Lender(s) under this Section
3.9(a) notwithstanding any subsequent replacement of the Lender(s) making demand
for such compensation.
(b) In the event that any applicable law, treaty, rule or
regulation (whether domestic or foreign) now or hereafter in effect and whether
or not presently applicable to any Lender or Agent, or any interpretation or
administration thereof by any governmental authority charged with the
interpretation or administration thereof, or compliance by any Lender or Agent
with any guideline, request or directive of any such authority (whether or not
having the force of law), including any risk-based capital guidelines, affects
or would affect the amount of capital required or expected to be maintained by
such Lender or the Agent (or any corporation controlling such Lender or the
Agent) and such Lender or the Agent, as the case
MSX CREDIT AGREEMENT Page 45
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may be, determines that the amount of such capital is increased by or based upon
the existence of such Lender's or Agent's obligations or Loans hereunder and
such increase has the effect of reducing the rate of return on such Lender's or
Agent's (or such controlling corporation's) capital as a consequence of such
obligations or Loans hereunder to a level below that which such Lender or the
Agent (or such controlling corporation) could have achieved but for such
circumstances (taking into consideration its policies with respect to capital
adequacy) by an amount deemed by such Lender or the Agent to be material, then
such Lender or the Agent may notify the Borrowers of any such fact of which it
has knowledge and each Borrower shall pay to such Lender or the Agent, as the
case may be, from time to time, upon request by such Lender (with a copy of such
request to be provided to the Agent) or the Agent, additional amounts sufficient
to compensate such Lender or Agent (or such controlling corporation) for any
increase in the amount of capital and reduced rate of return which such Lender
or the Agent reasonably determines to be allocable to the existence of such
Lender's or Agent's obligations or Loans to such Borrower hereunder; provided
that, if such Lender or the Agent fails to notify the Borrowers of any such fact
promptly upon becoming aware thereof or, if such Lender or the Agent is
contesting the cause of such increase in the amount of capital or reduced rate
of return, promptly after the earlier of (A) the final determination of such
contest or (B) an officer of such Lender who is responsible for the
administration of the credit outstanding under this Agreement from such Lender
to the Borrowers becoming aware of any such fact, such Lender or the Agent, as
the case may be, shall not be entitled to such compensation for the period
before the date on which it actually notifies the Borrowers of such fact;
provided, further, that if such Lender or the Agent is contesting the cause of
such increase in the amount of capital or reduced rate of return, such Lender or
the Agent, as the case may be, shall not in any event be entitled to such
compensation for any period prior to six months before it notifies the Borrowers
that such Lender or the Agent, as the case may be, may or will demand such
compensation. A statement as to the amount of such compensation, prepared in
good faith and in reasonable detail by such Lender or the Agent, as the case may
be, and submitted by such Lender or Agent to the Borrowers, shall be conclusive
in the absence of manifest error in computation. The Borrowers shall pay such
compensation for the periods covered by such notice notwithstanding any
replacement of the Lender(s) making demand for such compensation.
3.10. Substitute Loans. If (a) the obligation, if any, of any Lender to
make any type of Fixed Rate Loans has been suspended pursuant to Section 3.8 or
(b) any Lender has demanded compensation under Section 3.9(a) and the Borrowers
shall, by at least five Business Days' prior notice to such Lender through the
Agent, have elected that the provisions of this Section 3.10 shall apply to such
Lender, then, unless and until such Lender notifies the Borrowers that the
circumstances giving rise to such suspension or demand for compensation no
longer apply:
(i) all Loans which would otherwise be made by such Lender as
the affected type of Fixed Rate Loans shall be made instead as Loans at the
Floating Rate, for an Interest Period coincident with the related Fixed Rate
Borrowing, and
(ii) after each of its affected Fixed Rate Loans has been
repaid, all payments of principal which would otherwise be applied to repay such
Fixed Rate Loans shall be applied to repay its substitute loans instead.
3.11. Funding Losses. If any Borrower makes any payment of principal
with respect to any Fixed Rate Loan on any other date than the last day of an
Interest Period applicable thereto (whether pursuant to Sections 3.1, 3.7, 3.8,
3.10, 6.2, or otherwise), or if the applicable Borrower fails to borrow any
Fixed Rate Loan after the related notice of Borrowing has been given to the
Agent, or if the applicable Borrower fails to make any payment of principal or
interest in respect of a Fixed Rate Loan when due, the applicable Borrower shall
reimburse each Lender on demand for any resulting loss or expense incurred by
such Lender, including without limitation any loss incurred in obtaining,
liquidating or employing deposits
MSX CREDIT AGREEMENT Page 46
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from third parties, whether or not such Lender shall have funded or committed to
fund such Loan but excluding loss of margin for the period after such payment or
failure. A statement as to the amount of such loss or expense, prepared in good
faith and in reasonable detail by such Lender and submitted by such Lender to
the applicable Borrower, shall be conclusive and binding for all purposes absent
manifest error in computation. Calculation of all amounts payable to each Lender
under this Section 3.11 shall be made as though such Lender shall have actually
funded or committed to fund the relevant Fixed Rate Loan through the purchase of
an underlying deposit in an amount equal to the amount of such Loan and having a
maturity comparable to the related Interest Period; provided, however, that such
Lender may fund any Fixed Rate Loan in any manner it sees fit and the foregoing
assumption shall be utilized only for the purpose of calculation of amounts
payable under this Section 3.11
3.12. Substitution of Lender. If (i) the obligation of any Lender to
make or maintain Eurodollar Loans has been suspended pursuant to Section 3.8
when not all Lenders' obligations have been suspended (ii) any Lender has
demanded compensation under Section 3.9 or (iii) any Lender is a Defaulting
Lender, the Company shall have the right, if no Unmatured Event or Event of
Default then exists, to replace such Lender (a "Replaced Lender") with one or
more other lenders (collectively, the "Replacement Lender") acceptable to the
Agent, provided that (x) at the time of any replacement pursuant to this Section
3.12, the Replacement Lender shall enter into one or more Assignment and
Acceptances, pursuant to which the Replacement Lender shall acquire the
Commitments and outstanding Advances and other obligations of the Replaced
Lender and, in connection therewith, shall pay to the Replaced Lender in respect
thereof an amount equal to the sum of (A) the amount of principal of, and all
accrued interest on, all outstanding Loans of the Replaced Lender, (B) the
amount of all accrued, but theretofore unpaid, fees owing to the Replaced Lender
under Section 2.3 and (C) the amount which would be payable by the Borrowers to
the Replaced Lender pursuant to Section 3.9 or 3.11 if the Borrowers prepaid at
the time of such replacement all of the Loans of such Replaced Lender
outstanding at such time and (y) all obligations of the Borrowers then owing to
the Replaced Lender (other than those specifically described in clause (x) above
in respect of which the assignment purchase price has been, or is concurrently
being, paid) shall be paid in full to such Replaced Lender concurrently with
such replacement. Upon the execution of the respective Assignment and
Acceptances, the payment of amounts referred to in clauses (x) and (y) above
and, if so requested by the Replacement Lender, delivery to the Replacement
Lender of the appropriate Note or Notes executed by the Borrowers, the
Replacement Lender shall become a Lender hereunder and the Replaced Lender shall
cease to constitute a Lender hereunder. The provisions of this Agreement
(including without limitation Sections 3.9, 3.11 and 9.5) shall continue to
govern the rights and obligations of a Replaced Lender with respect to any Loans
made or any other actions taken by such lender while it was a Lender. Nothing
herein shall release any Defaulting Lender from any obligation it may have to
the Borrowers, the Agent or any other Lender. Each Lender agrees to take such
actions, at the Company's expense, as may be reasonably necessary to effect the
foregoing if it shall become a Replaced Lender.
3.13. Applicable Lending Installation. Each Lender and the Agent may
make and book its Loans and, in the case of the Agent, issue Letters of Credit,
at any Applicable Lending Installation(s) selected by such Lender or the Agent,
as the case may be, and each Lender and the Agent may change its Applicable
Lending Installation(s) from time to time. Each Lender may, by written notice to
the Agent and the applicable Borrower, designate one or more Applicable Lending
Installations which are to make and book Loans and for whose account Loan
payments are to be made. The Agent may, by written notice to the applicable
Borrower, designate one or more Applicable Lending Installations which are to
make and book Swingline Loans and issue and book Letters of Credit and for whose
accounts Loan payments and Letter of Credit reimbursements are to be made and
through which its functions are to be performed. All terms of this Agreement
shall apply to any such Applicable Lending Installation(s) and the Notes shall
be deemed held by each Lender and the Agent, as the case may be, for the benefit
of such Applicable Lending Installation.
MSX CREDIT AGREEMENT Page 47
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants that:
4.1. Corporate Existence and Power. Each of the Borrowers and the
Guarantors is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of incorporation or organization,
and is duly qualified to do business, and is in good standing, in all additional
jurisdictions where such qualification is necessary under applicable law, except
for those jurisdictions where the failure to so qualify or be in good standing
could not reasonably be expected to result in any Material Adverse Effect. Each
of the Borrowers and the Guarantors has all requisite corporate power to own or
lease the properties used in its business and to carry on its business
substantially as now being conducted and as proposed to be conducted, and to
execute and deliver the Loan Documents to which it is a party and to engage in
the transactions contemplated by the Loan Documents.
4.2. Corporate Authority. The execution, delivery and performance by
each of the Borrowers and the Guarantors of the Loan Documents to which it is a
party have been duly authorized by all necessary corporate action and are not in
contravention of any law, rule or regulation, or any judgment, decree, writ,
injunction, order or award of any arbitrator, court or governmental authority,
or of the terms of any Borrower's or any Guarantor's charter or by-laws, or of
any material contract or undertaking to which any Borrower or any Guarantor is a
party or by which any Borrower or any Guarantor or their respective material
property may be bound or affected or result in the imposition of any Lien except
for Permitted Liens.
4.3. Binding Effect. The Loan Documents to which any Borrower or any
Guarantor is a party are the legal, valid and binding obligations of the
Borrowers and the Guarantors, respectively, enforceable against each Borrower
and Guarantor in accordance with their respective terms, subject to the effect
of bankruptcy, insolvency, reorganization, moratorium and other similar laws
affecting the rights of creditors generally and by general principles of equity.
4.4. Subsidiaries. Schedule 4.4 hereto correctly sets forth the
corporate name, jurisdiction of organization and ownership of each Subsidiary of
the Company as of the date hereof. Each such Subsidiary and each Person becoming
a Subsidiary of the Company after the date hereof is and will be a corporation
or limited liability company duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation or organization and
is and will be duly qualified to do business in each additional jurisdiction
where such qualification is or may be necessary under applicable law, except for
those jurisdictions where the failure to so qualify or be in good standing could
not reasonably be expected to result in any Material Adverse Effect. Each
Subsidiary of the Company has and will have all corporate or comparable
requisite power to own or lease the properties used in its business and to carry
on its business substantially as now being conducted and as proposed to be
conducted, except where the failure to have such power could not reasonably be
expected to result in a Material Adverse Effect.
4.5. Litigation. Except as set forth in Schedule 4.5 hereto, there is
no action, suit or proceeding pending or, to the best of the Company's
knowledge, threatened against or affecting the Company or any of its
Subsidiaries before or by any court, governmental authority or arbitrator, which
if adversely decided
MSX CREDIT AGREEMENT Page 48
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could reasonably be expected to result, either individually or collectively, in
any Material Adverse Effect and, to the best of the Company's knowledge, there
is no basis for any such action, suit or proceeding.
4.6. Financial Condition. The audited consolidated balance sheet of the
Company and its Subsidiaries and the audited consolidated statements of
operations and cash flows of the Company and its Subsidiaries for the fiscal
year ending January 3, 1999 and the unaudited consolidated balance sheet of the
Company and its Subsidiaries and the unaudited consolidated statements of
operations and cash flows of the Company and its Subsidiaries for the six months
ended July 4, 1999, copies of which have been furnished to the Lenders, fairly
present, and the financial statements of the Company and its Subsidiaries
delivered pursuant to Section 5.1(d) will fairly present, in all material
respects, the consolidated financial position of the Company and its
Subsidiaries as at the respective dates thereof, and the consolidated results of
operations of the Company and its Subsidiaries for the respective periods
indicated, all in accordance with Generally Accepted Accounting Principles
(subject, in the case of said interim statements, to year-end audit adjustments
and the absence of footnotes). The budgeted consolidated and consolidating
financial statements of the Company and its Subsidiaries and the pro forma
projections of consolidated financial results of the Company and its
Subsidiaries for each of the fiscal years ending in 1999, 2000, 2001, 2002 and
2003 have been prepared in good faith and are based on reasonable assumptions
and, to the Company's knowledge, the best information available as of the
Effective Date. There has been no Material Adverse Effect since January 3, 1999.
There is no material Contingent Liability of the Company or any of its
Subsidiaries that is not reflected in such financial statements or in the notes
thereto and has not otherwise been described in writing to the Agent and the
Lenders.
4.7. Use of Advances. The Borrowers will use all Advances for general
corporate purposes (including Acquisitions). Neither the Company nor any of its
Subsidiaries extends or maintains, in the ordinary course of business, credit
for the purpose, whether immediate, incidental, or ultimate, of buying or
carrying Margin Stock, and no part of the proceeds of any Advance will be used
for the purpose, whether immediate, incidental, or ultimate, of buying or
carrying any such Margin Stock or maintaining or extending credit to others for
such purpose.
4.8. Consents, Etc. Except for such consents, approvals,
authorizations, declarations, registrations or filings delivered by the Company
pursuant to Section 2.5(g), if any, each of which is in full force and effect,
and filings required pursuant to Section 2.10, no consent, approval or
authorization of or declaration, registration or filing with any governmental
authority or any nongovernmental Person or entity, including without limitation
any creditor, lessor or stockholder of the Company or any of its Subsidiaries,
is required on the part of the Company or any of its Subsidiaries in connection
with the execution, delivery and performance of any Loan Document or the
transactions contemplated hereby or as a condition to the legality, validity or
enforceability of any Loan Document.
4.9. Taxes. The Company and its Subsidiaries have filed all U.S. tax
returns (and all material foreign, state and local tax returns) required to be
filed and have paid all taxes shown thereon to be due and required to be paid
including interest and penalties, or have established adequate financial
reserves on their respective books and records for payment thereof. Neither the
Company nor any of its Subsidiaries knows of any material actual or proposed tax
assessment or any basis therefor, and no extension of time for the assessment of
deficiencies in any federal or state tax has been granted by the Company or any
Subsidiary.
4.10. Title to Properties. Except as otherwise disclosed in the latest
balance sheet delivered pursuant to Section 4.6 or 5.1(d) of this Agreement, the
Company or one or more of its Subsidiaries have good and marketable fee simple
title to all of the real property reflected in said balance sheet, and a valid
and indefeasible ownership interest in all of the other material properties and
assets reflected in said balance sheet or subsequently acquired by the Company
or any Subsidiary. All of such properties and
MSX CREDIT AGREEMENT Page 49
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assets are free and clear of any Lien except for Permitted Liens. The
representations and warranties in the Security Documents are true and correct in
all material respects.
4.11. ERISA. Each member of the ERISA Group has fulfilled its
obligations under the minimum funding standards of ERISA and the Code with
respect to each Plan and is in compliance in all material respects with the
presently applicable provisions of ERISA and the Code with respect to each Plan,
except to the extent the aggregate amount of liabilities for all of the
foregoing would not exceed $5,000,000. No member of the ERISA Group has (i)
sought a waiver of the minimum funding standard under Section 412 of the Code in
respect of any Plan, (ii) failed to make any contribution or payment to any Plan
or Multiemployer Plan or in respect of any Benefit Arrangement, or made any
amendment to any Plan or Benefit Arrangement, which has resulted or could result
in the imposition of a Lien or the posting of a bond or other security under
ERISA or the Code or (iii) incurred any liability under Title IV of ERISA other
than a liability to the PBGC for premiums under Section 4007 of ERISA, except to
the extent the aggregate amount of liabilities for all of the foregoing would
not exceed $5,000,000.
4.12. Disclosure. As of the Effective Date, such reports and other
information furnished in writing or on behalf of the Company or any Subsidiary
to any Lender or the Agent in connection with the negotiation or administration
of this Agreement do not, taken as a whole, to the best of its knowledge contain
any material misstatement of fact or omit to state any material fact or any fact
necessary to make the statements contained therein not misleading.
Notwithstanding the foregoing, no representation is made as to any assumptions,
estimates, projections or opinions except that they are, to the Company's
knowledge, based on the best information available to the Company as of the date
of the relevant disclosure and are reasonable in light of such information. No
Loan Document nor any document or certificate furnished to any Lender or the
Agent by or on behalf of the Company or any Subsidiary in connection with the
transactions contemplated hereby contains any untrue statement of a material
fact or omits to state a material fact in order to make the statements contained
herein and therein not misleading. As of the Effective Date, there is no fact
known to the Company which has had or could reasonably be expected to have a
Material Adverse Effect, which has not been set forth in this Agreement or in
the other documents, certificates, statements, reports and other information
furnished in writing to the Agent by or on behalf of the Company or any
Subsidiary in connection with the transactions contemplated hereby taken as a
whole, including without limitation the offering memorandum for the Senior
Subordinated Notes.
4.13. Environmental and Safety Matters. All representations and
warranties made by the Borrowers and the Guarantors in the Environmental
Certificate delivered pursuant to Section 2.5(i) and Section 5.1(d)(x) are true
and correct in all material respects.
4.14. Borrowing Base. All trade accounts receivable and unbilled
receivables of the Company and each of its Subsidiaries represented or reported
by the Company to be, or are otherwise included in, Eligible Accounts Receivable
or Eligible Unbilled Receivables, as the case may be, comply in all respects
with the requirements therefor set forth in the definitions thereof, and the
computations of the Borrowing Base set forth in each Borrowing Base Certificate
are true and correct.
4.15. No Default. Neither the Company nor any Subsidiary is in default
or has received any written notice of default under or with respect to any of
its Contractual Obligations in any respect which is reasonably likely to result
in a Material Adverse Effect. No Unmatured Event or Event of Default has
occurred and is continuing.
4.16. Intellectual Property. The Company and each of its Subsidiaries
owns, or is licensed to use, all trademarks, tradenames, service marks,
copyrights, technology, know-how and processes necessary for the conduct of its
business as currently conducted (the "Intellectual Property") except for those
the
MSX CREDIT AGREEMENT Page 50
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failure to own or license which could not reasonably be expected to have a
Material Adverse Effect. No claim has been asserted and is pending by any Person
challenging or questioning the use of any such Intellectual Property or the
validity or effectiveness of any such Intellectual Property, nor does the
Company or any of its Subsidiaries know of any valid basis for any such claim,
the use of such Intellectual Property by the Company and each of its
Subsidiaries does not infringe on the rights of any Person, and, to the
knowledge of the Company, no Intellectual Property has been infringed,
misappropriated or diluted by any other Person except for such claims,
infringements, misappropriation and dilutions that, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
4.17. Labor Matters. There are no strikes or other labor disputes
against the Company or any Subsidiary pending or, to the knowledge of the
Company, threatened that (individually or in the aggregate) could reasonably be
expected to have a Material Adverse Effect. Hours worked by and payment made to
employees of the Company and its Subsidiaries have not been in violation of the
Fair Labor Standards Act, if applicable, or any other applicable Requirement of
Law dealing with such matters that (individually or in the aggregate) could
reasonably be expected to have a Material Adverse Effect. All payments due from
the Company and each of its Subsidiaries on account of employee health and
welfare insurance that (individually or in the aggregate) could reasonably be
expected to have a Material Adverse Effect if not paid have been paid or accrued
as a liability on the books of the Company and its Subsidiaries.
4.18. Solvency
(a) After giving effect to the transactions described herein and
to the incurrence or assumption of any Indebtedness (including without
limitation the Subordinated Debt, all Advances and all other obligations being
incurred or assumed in connection herewith and therewith) (i) the fair value of
the assets of the Company and its Subsidiaries on a consolidated basis, at a
fair valuation, will exceed the debts and liabilities, subordinated, contingent
or otherwise, of the Company and its Subsidiaries on a consolidated basis; (ii)
the present fair saleable value of the property of the Company and its
Subsidiaries on a consolidated basis will be greater than the amount that will
be required to pay the probable liability of the Company and its Subsidiaries on
a consolidated basis on their debts and other liabilities, subordinated,
contingent or otherwise, as such debts and other liabilities become absolute and
matured; (iii) the Company and its Subsidiaries on a consolidated basis will be
able to pay their debts and liabilities, subordinated, contingent or otherwise,
as such debts and liabilities become absolute and matured; and (iv) the Company
and its Subsidiaries on a consolidated basis will not have unreasonably small
capital with which to conduct the businesses in which they are engaged as such
businesses are now conducted and are proposed to be conducted after the date
hereof.
(b) The Company does not intend to, or to permit any of its
Subsidiaries to, and does not believe that it or any of its Subsidiaries will,
incur debts beyond its ability to pay such debts as they mature, taking into
account the timing of and amounts of cash to be received by it or any such
Subsidiary and the timing of the amounts of cash to be payable on or in respect
of its Indebtedness or the Indebtedness of any such Subsidiary.
4.19. Not an Investment Company; Other Regulations. Neither the Company
nor any of its Subsidiaries is an "investment company" within the meaning of the
Investment Company Act of 1940, as amended. Neither the Company nor any of its
Subsidiaries is subject to any regulation under any federal or state statute or
regulation (except those applicable to corporations generally) which limits its
ability to incur Indebtedness.
4.20. Senior Subordinated Debt Documents. All representations and
warranties of the Company contained in any Senior Subordinated Debt Document are
true and correct in all material respects. As of
MSX CREDIT AGREEMENT Page 51
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the Effective Date, the outstanding principal balance of the Senior Subordinated
Notes is $130,000,000, and all agreements, instruments and documents executed or
delivered pursuant to the original issuance of the Senior Subordinated Notes are
described on Schedule 1.1(b) hereto. All Lender Indebtedness, including without
limitation all present and future Revolving Credit Advances and the Term Loans
and all other Lender Indebtedness, is "Senior Indebtedness" and "Designated
Senior Indebtedness" as defined in the Senior Subordinated Indenture and is and
will be incurred in compliance with the Senior Subordinated Indenture. This
Agreement and the other Loan Documents are the "Senior Credit Facility" as
defined in the Senior Subordinated Indenture. Other than the Lender
Indebtedness, there is no other "Designated Senior Indebtedness" thereunder.
Each Term Loan is being incurred pursuant to, and in full compliance with,
Section 4.3(a) of the Senior Subordinated Note Indenture, and each Term Loan is
classified as Indebtedness incurred under Section 4.3(a) of the Senior
Subordinated Note Indenture and is not classified as Indebtedness outstanding or
incurred pursuant to Section 4.3(b)(1) of the Senior Subordinated Note
Indenture. All Revolving Credit Advances, up to the full amount of the aggregate
Revolving Credit Commitments, are incurred pursuant to Section 4.3(b)(i) of the
Senior Subordinated Note Indenture and do not need to meet the requirements of
Section 4.3(a). There is no event of default or event or condition which would
become an event of default with notice or lapse of time or both, under the
Senior Subordinated Debt Documents and each of the Senior Subordinated Debt
Documents is in full force and effect. Other than pursuant to the Senior
Subordinated Debt Documents, there is no obligation pursuant to any Senior
Subordinated Debt Document or other document or agreement evidencing or relating
to any Subordinated Debt outstanding or to be outstanding on the Effective Date
which obligates the Company or any of its Subsidiaries to pay any principal or
interest or redeem any of its Capital Stock or incur any other monetary
obligation, and the Senior Subordinated Notes and any other promissory note or
other instrument evidencing any Subordinated Debt issued at any time pursuant to
the Senior Subordinated Debt Documents are and will be "Securities" as defined
in the Senior Subordinated Indenture.
4.21 Year 2000. The Company has made a full and complete assessment of
the Year 2000 Issues and has a realistic and achievable program for remediating
the Year 2000 Issues on a timely basis (the "Year 2000 Program"). Based on such
assessment and on the Year 2000 Program the company does not reasonably
anticipate that Year 2000 Issues will have a Material Adverse Effect.
MSX CREDIT AGREEMENT Page 52
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ARTICLE V
COVENANTS
5.1. Affirmative Covenants. Each Borrower covenants and agrees that,
from and including the Effective Date until the Termination Date and thereafter
until payment in full of all Lender Indebtedness under the Loan Documents and
the performance of all other obligations of each of the Borrowers under the Loan
Documents, unless the requisite Lenders pursuant to Section 9.1 shall otherwise
consent in writing, it shall, and, shall cause each of its Subsidiaries to:
(a) Preservation of Corporate Existence, Etc. Do or cause to be
done all things necessary to preserve, renew and keep in full force and effect
its legal existence and its qualification as a foreign corporation or limited
liability company, as the case may be (other than any merger permitted pursuant
to Section 5.2(h) and other than any dissolution or liquidations of any
Subsidiary if the assets of such Subsidiary are transferred to the Company or
any Guarantor in connection with such dissolution or liquidation), in good
standing in each jurisdiction in which such qualification is necessary under
applicable law, except where the failure to be so qualified or in good standing
could not reasonably be expected to have a Material Adverse Effect and the
rights, licenses, permits (including those required under Environmental Laws),
franchises, patents, copyrights, trademarks and trade names material to the
conduct of its businesses; provided, however, that the Company shall not be
required to preserve any such right, license or franchise, or the corporate,
partnership or other existence of any of its Subsidiaries, if the Board of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company and its Subsidiaries, taken as a
whole, and that the loss thereof is not adverse in any material respect to the
Agent or the Lenders; and defend all of the foregoing against all claims,
actions, demands, suits or proceedings at law or in equity or by or before any
governmental instrumentality or other agency or regulatory authority except
where the failure to do so could not reasonably be expected to have a Material
Adverse Effect.
(b) Compliance with Laws, Etc. Comply in all material respects
with all applicable laws, rules, regulations and orders of any governmental
authority whether federal, state, local or foreign (including without limitation
ERISA, the Code and Environmental Laws), in effect from time to time, the
enforcement of which could have a Material Adverse Effect; and pay and
discharge, before any interest or penalty for nonpayment thereof becomes
payable, all taxes, assessments and governmental charges or levies imposed upon
it or upon its income, revenues or property, before the same shall become
delinquent or in default, as well as all material lawful claims for labor,
materials and supplies or otherwise, which, if unpaid, might give rise to Liens
(other than Permitted Liens) upon such properties or any portion thereof, except
to the extent that payment of any of the foregoing is then being contested in
good faith and with respect to which adequate financial reserves have been
established on the books and records of the Company or such Subsidiary.
(c) Maintenance of Properties; Insurance. Maintain, preserve and
protect all property that is material to the conduct of the business of the
Company or any of its Subsidiaries and keep such property in good repair,
working order and condition and from time to time make, or cause to be made all
needful and proper repairs, renewals, additions, improvements and replacements
thereto necessary in order that the business carried on in connection therewith
may be properly conducted at all times in accordance with customary and prudent
business practices for similar businesses; and maintain in full force and effect
insurance with responsible and reputable insurance companies or associations in
such amounts, on such terms and covering such risks, including fire and other
risks insured against by extended coverage, as is
MSX CREDIT AGREEMENT Page 53
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usually carried by companies engaged in similar businesses and owning similar
properties similarly situated and maintain in full force and effect public
liability insurance, insurance against claims for personal injury or death or
property damage occurring in connection with any of its activities or any
properties owned, occupied or controlled by it, in such amount as it shall
reasonably deem necessary, and maintain such other insurance as may be required
by law or as may be reasonably requested by the Required Lenders for purposes of
assuring compliance with this Section 5.1(c).
(d) Reporting Requirements. Furnish to the Lenders and the Agent
the following:
(i) Promptly and in any event within five Business Days
after becoming aware of the occurrence of (A) any Unmatured Event or Event of
Default, (B) the commencement of any litigation against, by or affecting the
Company or any of its Subsidiaries, which could reasonably be expected to have a
Material Adverse Effect, and any material developments therein, or (C) entering
into any material contract or undertaking that is not entered into in the
ordinary course of business or (D) any development in the business or affairs of
the Company or any of its Subsidiaries which has resulted in or which is likely
in the reasonable judgment of the Company, to result in a Material Adverse
Effect, a statement of the chief financial officer of the Company setting forth
details of such Unmatured Event, Event of Default, interest or undertaking, or
development, and the action which the Company or such Subsidiary, as the case
may be, has taken and proposes to take with respect thereto;
(ii) As soon as available and in any event within 50 days
after the end of each of the first three fiscal quarters of each fiscal year of
the Company, the consolidated and consolidating balance sheet of the Company and
its Subsidiaries and of its Unrestricted Subsidiaries as of the end of such
quarter, and the related consolidated and consolidating statements of income and
cash flows for such quarter and for the period commencing at the end of the
previous fiscal year and ending with the end of such quarter, setting forth in
each case in comparative form the corresponding figures for the corresponding
date or period of the preceding fiscal year and duly certified (subject to
year-end audit adjustments and the absence of footnotes) by the chief financial
officer of the Company as having been prepared in accordance with Generally
Accepted Accounting Principles, together with a certificate of the chief
financial officer of the Company stating (A) that no Unmatured Event or Event of
Default, has occurred and is continuing or, if an Unmatured Event or Event of
Default has occurred and is continuing, a statement setting forth the details
thereof and the action which the Company has taken and proposes to take with
respect thereto, and (B) that a computation (which computation shall accompany
such certificate and shall be in detail satisfactory to the Agent) showing
compliance (or non-compliance) with Section 5.2 (a), (b), (c), (d), (e) and (q)
is in conformity with the terms of this Agreement;
(iii) As soon as available and in any event within 95 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 of the end of such fiscal
year and the related consolidated statements of income and cash flows for such
fiscal year, with a customary audit report of PricewaterhouseCoopers LLP, or any
of the five largest independent certified public accounting firms in the United
States, without qualifications unacceptable to the Agent, together with, a
certificate of the chief financial officer of the Company stating (A) that no
Unmatured Event or Event of Default has occurred and is continuing or, if an
Unmatured Event or Event of Default has occurred and is continuing, a statement
setting forth the details thereof and the action which the Company has taken and
proposes to take with respect thereto, and (B) that a computation (which
computation shall accompany such certificate and shall be in reasonable detail)
showing compliance (or non-compliance) with Section 5.2 (a), (b), (c), (d), (e)
and (q) is in conformity with the terms of this Agreement;
MSX CREDIT AGREEMENT Page 54
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(iv) Promptly after the sending or filing thereof, copies of
all reports, proxy statements and financial statements which the Company or any
of its Subsidiaries sends to or files with any of their respective security
holders as required by any securities exchange or the Securities and Exchange
Commission or any successor agency thereof;
(v) Within 20 days after the end of each month, a Borrowing
Base Certificate prepared as of the close of business on the last day of each
month, certified as true and correct by the chief financial officer of the
Company, together with such supporting schedules and information as reasonably
requested by the Agent;
(vi) As soon as available and in any event within 20 days
after the end of each month, a report containing an aging as of the end of the
preceding month of accounts receivable and unbilled accounts receivable and
accounts payable of the Company, in a form reasonably satisfactory to the Agent,
if requested by the Agent;
(vii) Promptly and in any event within 10 Business Days after
receipt, a copy of any management letter or comparable analysis prepared by the
auditors for the Company or any of its Subsidiaries;
(viii) If and when any member of the ERISA Group (i) gives or
is required to give notice of PBGC of any Reportable Event with respect to any
Plan which might constitute grounds for a termination of such Plan under Title
IV of ERISA, or knows that the plan administrator of any Plan has given or is
required to give notice of any such Reportable Event, a copy of the notice of
such Reportable Event given or required to be given to the PBGC; (ii) receives
notice of complete or partial withdrawal liability under Title IV of ERISA or
notice that any Multiemployer Plan is in reorganization, is insolvent or has
been terminated, a copy of such notice; (iii) receives notice from the PBGC
under title IV of ERISA of an intent to terminate, impose liability (other than
for premiums under Section 4007 of ERISA) in respect of, or appoint a trustee to
administer any Plan, a copy of such notice; (iv) applies for a waiver of the
minimum funding standard under Section 412 of the Code, a copy of such
application; (v) gives notice of intent to terminate any Plan under Section
4041(c) of ERISA, a copy of such notice and other information filed with the
PBGC; (vi) gives notice of withdrawal from any Plan pursuant to Section 4063 of
ERISA, a copy of such notice; or (viii) fails to make any payment or
contribution to any Plan or Multiemployer Plan or in respect of any Benefit
Arrangement or makes any amendment to any Plan or Benefit Arrangement which has
resulted or could result in the imposition of a Lien or the posting of a bond or
other security, a certificate of the chief financial officer or the chief
accounting officer of the Company setting forth details as to such occurrence
and action, if any, which the Company or applicable member of the ERISA Group is
required or proposes to take;
(ix) As soon as available and in event within 60 days after
the Effective Date, a complete detailed list of all Intellectual Property of the
Company and its Subsidiaries not previously provided by the Company pursuant to
the Existing Credit Agreement; and
(x) Promptly, such other information respecting the
business, properties, operations or condition, financial or otherwise, of the
Company or any of its Subsidiaries as the Agent may from time to time reasonably
request.
(e) Accounting, Access to Records, Books, Etc. Maintain a system
of accounting established and administered in accordance with sound business
practices to permit preparation of financial statements in accordance with
Generally Accepted Accounting Principles and to comply with the requirements of
this Agreement and, at any reasonable time and from time to time, (i) at the
expense of
MSX CREDIT AGREEMENT Page 55
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such Lender or the Agent, permit any Lender or the Agent, or any agents or
representatives thereof, to examine and make copies of and abstracts from the
records and books of account of, and visit the properties of, the Company and
its Subsidiaries, and to discuss the affairs, finances and accounts of the
Company and its Subsidiaries with their respective directors, officers,
employees and independent auditors, and by this provision the Company does
hereby authorize such Persons to discuss such affairs, finances and accounts
with any Lender or the Agent, and (ii) at the expense of the Company, permit the
Agent or any of its agents or representatives to conduct a comprehensive field
audit of its books, records, properties and assets, including without limitation
all collateral subject to the Security Documents and site access, at the
Company's expense, provided that no Event of Default has occurred and is
continuing no more than two such comprehensive field audits may be performed in
any fiscal year of the Company at the expense of the Company, provided that the
Agent shall give the Company reasonable notice of any of the foregoing.
(f) Additional Security and Collateral. Promptly (i) execute and
deliver and cause each Guarantor to execute and deliver, additional Security
Documents, within 30 days after request therefor by the Agent, sufficient to
grant to the Agent for the benefit of the Lenders and the Agent liens and
security interests in any after acquired collateral of the type described in
Section 2.10, and (ii) to the extent required under Section 2.10, cause each
Person becoming a Domestic Subsidiary of the Company from time to time to
execute and deliver to the Lenders and the Agent, within 60 days after such
Person becomes a Domestic Subsidiary, a Guaranty and a Security Agreement,
together with other related documents described in Section 2.5 sufficient to
grant to the Agent for the benefit of the Lenders and the Agent liens and
security interests in all collateral of the type described in Section 2.10. The
Company shall notify the Lenders and the Agent, within 10 days after the
occurrence thereof, of the acquisition of any material property by the Company
or any Guarantor that is not subject to the existing Security Documents, any
Person becoming a Domestic Subsidiary and any other event or condition, other
than the passage of time, that may require additional action of any nature in
order to preserve the effectiveness and perfected status of the liens and
security interests of the Lenders and the Agent with respect to such property
pursuant to the Security Documents, including without limitation delivering the
originals of all promissory notes and other instruments payable to the Company
or any Guarantors to the Agent and delivering the originals of all stock
certificates or other certificates evidencing any Capital Stock owned by the
Company or any Guarantors at any time.
(g) Further Assurances. Execute and deliver, and cause its
Subsidiaries to execute and deliver, within 30 days after request therefor by
the Agent, all further instruments and documents and take all further action
that the Agent may reasonably request, in order to give effect to the intent of,
and to aid in the exercise and enforcement of the rights and remedies of the
Lenders under, this Agreement, the Notes and the Security Documents. In
addition, the Company and each Guarantor agree to deliver to the Agent from time
to time upon the acquisition or creation of any Subsidiary not listed in
Schedule 4.4 hereto supplements to Schedule 4.4 such that such Schedule,
together with such supplements, shall at all times accurately reflect the
information provided for thereon.
5.2. Negative Covenants. From and including the Effective Date until
the Termination Date and thereafter until payment in full of all Lender
Indebtedness under the Loan Documents and the performance of all other
obligations of each of the Borrowers under the Loan Documents, each Borrower
agrees that, unless the requisite Lenders pursuant to Section 9.1 shall
otherwise consent in writing, it shall not, and shall not permit any of its
Subsidiaries, to:
(a) Net Worth. Permit or suffer the consolidated Net Worth of the
Company and its Subsidiaries to be less than the sum of (i) $10,000,000, (ii)
50% of the net income of the Company and its Subsidiaries, added as of the end
of each fiscal year of the Company, commencing with the 1999 fiscal year of the
Company, provided that if such net income is negative in any fiscal year the
amount added for such
MSX CREDIT AGREEMENT Page 56
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fiscal year shall be zero and shall not reduce the amount added for any other
fiscal year and the amount calculated for the 1999 fiscal year of the Company
shall be calculated for the six months ending as of the end of the 1999 fiscal
year, and (iii) 100% of the increase to Net Worth of the Company and its
Subsidiaries pursuant to the sale or the transfer of any its Capital Stock minus
any amounts paid to redeem any Capital Stock of any current or former employee,
director or consultant to the extent permitted by Section 5.2(k).
(b) Total Leverage Ratio. Permit or suffer the Total Leverage
Ratio to be greater than (i) 4.25 to 1.0 at any time from and including the
Effective Date to but excluding the last day of the 1999 fiscal year of the
Company, (ii) 4.00 to 1.0 at any time from and including the last day of the
1999 fiscal year of the Company to but excluding the last day of the second
fiscal quarter of the 2001 fiscal year of the Company, (iii) 3.75 to 1.0 at any
time from and including the last day of the second fiscal quarter of the 2001
fiscal year of the Company to but excluding the last day of the 2002 fiscal year
of the Company, or (iv) 3.50 to 1.0 at any time thereafter.
(c) Fixed Charge Coverage Ratio. Permit or suffer the Fixed Charge
Coverage Ratio to be less than (i) 1.1 to 1.0 as of the end of any fiscal
quarter of the Company ending on or after the Effective Date but before the last
day of the 2000 fiscal year of the Company, (ii) 1.15 to 1.0 as of the end of
any fiscal quarter of the Company ending on or after the last day of the 2000
fiscal year of the Company but before the last day of the 2001 fiscal year of
the Company or (iii) 1.2 to 1.0 as of the end of any fiscal quarter of the
Company thereafter.
(d) Senior Leverage Ratio. Permit or suffer the Senior Leverage
Ratio to be greater than (i) 2.75 to 1.0 at any time from and including the
Effective Date to but excluding the last day of the second fiscal quarter of the
2001 fiscal year of the Company, (ii) 2.50 to 1.0 at any time from and including
the last day of the second fiscal quarter of the 2001 fiscal year of the Company
to but excluding the last day of the 2003 fiscal year of the Company, or (iii)
2.25 to 1.0 at any time thereafter.
(e) Interest Coverage Ratio. Permit or suffer the Interest
Coverage Ratio to be less than (i) 2.50 to 1.0 as of the end of any fiscal
quarter of the Company before the last day of the 2001 fiscal year of the
Company, (ii) 2.75 to 1.0 as of the end of any fiscal quarter of the Company
ending on or after the last day of the 2001 fiscal year of the Company but
before the last day of the 2003 fiscal year of the Company, or (iii) 3.00 to 1.0
as of the end of any fiscal quarter of the Company thereafter.
(f) Indebtedness. Create, incur, assume or in any manner become
liable in respect of, or suffer to exist, or permit or suffer any Subsidiary to
create, incur, assume or in any manner become liable in respect of, or suffer to
exist, any Indebtedness other than:
(i) The Lender Indebtedness;
(ii) The Indebtedness described in Schedule 5.2(f) hereto and
refinancings thereof, but no increase in the amount thereof (or in the case of a
committed facility or line of credit, in the amount of the commitments or credit
line), as such amount is reduced from time to time, provided that Indebtedness
under the Ford Facility (as defined in Schedule 5.2(f)) may be increased to no
more than $10,000,000 (or the Dollar Equivalent thereof);
(iii) Indebtedness of any Subsidiary of the Company owing to
the Company or to any other Subsidiary of the Company and Indebtedness of the
Company owing to any Subsidiary of the Company, provided that any such
Indebtedness the Company or of any Borrowing Subsidiary is subordinated, on
terms acceptable to the Agent, to all Lender Indebtedness of the Company or such
Borrowing Subsidiary;
MSX CREDIT AGREEMENT Page 57
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(iv) Subordinated Debt, provided that such Subordinated Debt
shall be incurred in compliance with all terms and provisions of this Agreement;
(v) Trade accounts payable and accrued expenses arising in
the ordinary course which are past due in an amount which is not material in the
aggregate for the Company and its Subsidiaries on a consolidated basis or which
are being contested in good faith and for which adequate reserves are maintained
on the books of the Company;
(vi) Surety, customs or appeal bonds to which the Company or
any of its Subsidiaries is a party and letters of credit and reimbursement
agreements issued for the account of such Company or any Subsidiary in the
ordinary course of business which are not material in the aggregate and which
would not have a Material Adverse Effect and which are trade letters of credit
or which secure obligations in respect of (A) worker's compensation laws,
unemployment insurance laws or similar legislation, (B) obligations in
connection with bids, tenders, contracts or leases to which the Company or any
of its Subsidiaries is a party for a purpose other than borrowing money or
obtaining credit or (C) public or statutory obligations of the Company or any of
its Subsidiaries;
(vii) Indebtedness not otherwise permitted by this Section
5.2(f) incurred or assumed for the purpose of financing all or any part of the
cost of acquiring any fixed asset (including without limitation through Capital
Leases), in an aggregate principal amount at any time outstanding not greater
than $2,000,000;
(viii) Contingent Liabilities in respect of which the Company
or a Subsidiary is primary obligor otherwise permitted by Section 5.2(l);
(ix) Indebtedness of Foreign Subsidiaries pursuant to
Factoring in an aggregate amount not to exceed $30,000,000 at any time
outstanding for all Foreign Subsidiaries;
(x) Indebtedness pursuant to Permitted Securitization
Transactions in an aggregate amount not to exceed $20,000,000 at any time
outstanding in connection with, and on terms consistent with, the
DaimlerChrysler dealer accounts receivable program described in writing to the
Agent prior to the Effective Date;
(xi) Indebtedness pursuant to the sale and leaseback
transaction for the Company's headquarters in Auburn Hills, Michigan
substantially as described in writing by the Company to the Lenders prior to the
Effective Date;
(xii) Indebtedness pursuant to other Permitted Securitization
Transactions in an aggregate amount not to exceed $25,000,000 at any time
outstanding;
(xiii) Indebtedness of a Subsidiary acquired by the Company or
another Subsidiary of the Company or Indebtedness assumed by the Company or a
Subsidiary of the Company in connection with the acquisition of assets, provided
that (A) in each case the Indebtedness was not created in contemplation of such
acquisition and (B) the aggregate amount of all such Indebtedness does not
exceed $5,000,000 at any time outstanding; and
(xiv) Indebtedness of the Company or any Subsidiary other
than (i) through (xiii) above not exceeding $20,000,000 in aggregate amount at
any time outstanding.
MSX CREDIT AGREEMENT Page 58
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(g) Liens. Create, incur or suffer to exist any Lien on any of the
assets, rights, revenues or property, real, personal or mixed, tangible or
intangible, whether now owned or hereafter acquired, of the Company or any of
its Subsidiaries, other than:
(i) Liens for taxes not delinquent or for taxes being contested
in good faith by appropriate proceedings and as to which adequate financial
reserves have been established on its books and records;
(ii) Liens (other than any Lien imposed by ERISA) created and
maintained in the ordinary course of business which are not material in the
aggregate, and which would not have a Material Adverse Effect and which
constitute (A) pledges or deposits under worker's compensation laws,
unemployment insurance laws or similar legislation, (B) good faith deposits in
connection with bids, tenders, contracts or leases to which the Company or any
of its Subsidiaries is a party for a purpose other than borrowing money or
obtaining credit, including rent security deposits, (C) liens imposed by law,
such as those of landlords, carriers, warehousemen and mechanics, if payment of
the obligation secured thereby is not yet due or which are being contested in
good faith by appropriate legal proceedings and with respect to which adequate
financial reserves have been established on the books and records of Company or
such Subsidiary, (D) liens securing taxes, assessments or other governmental
charges or levies not yet subject to penalties for nonpayment, and (E) pledges
or deposits to secure public or statutory obligations of the Company or any of
its Subsidiaries, or surety, customs or appeal bonds to which the Company or any
of its Subsidiaries is a party;
(iii) Liens affecting real property which constitute minor survey
exceptions or defects or irregularities in title, minor encumbrances, easements
or reservations of, or rights of others for, rights of way, sewers, electric
lines, telegraph and telephone lines and other similar purposes, or zoning or
other restrictions as to the use of such real property, provided that all of the
foregoing, in the aggregate, do not at any time materially detract from the
value of said properties or materially impair their use in the operation of the
businesses of the Company or any of its Subsidiaries;
(iv) Liens created pursuant to the Security Documents and Liens
expressly permitted by the Security Documents;
(v) Each Lien described in Schedule 5.2(g) hereto may be suffered
to exist, provided that there may be no increase in the amount of indebtedness,
obligations or liabilities secured thereby and it may not secure any other
indebtedness, obligations and liabilities other than those secured as of the
Effective Date;
(vi) Any Lien created to secure payment of a portion of the
purchase price of, or existing at the time of acquisition of, any tangible fixed
asset acquired by the Company or any of its Subsidiaries may be created or
suffered to exist upon such fixed asset if the outstanding principal amount of
the Indebtedness secured by such Lien does not at any time exceed the purchase
price paid by the Company or such Subsidiary for such fixed asset, provided that
(A) such Lien does not encumber any other asset at any time owned by the Company
or such Subsidiary, (B) not more than one such Lien shall encumber such fixed
asset at any one time and (C) the aggregate amount of Indebtedness secured by
all such Liens does not exceed the amount permitted by Section 5.2(f)(vii);
(vii) Any Lien on any assets of any Subsidiaries of the Company in
favor of the Company securing permitted Indebtedness of such Subsidiary owing to
the Company, provided that such Lien is subordinated to the Liens of the Agent
by written agreements satisfactory to the Agent;
MSX CREDIT AGREEMENT Page 59
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(viii) Each Lien securing Indebtedness permitted by Section
5.2(f)(xiii) may be suffered to exist, provided that (A) there may be no
increase in the amount of indebtedness, obligations or liabilities secured
thereby and it may not secure any other indebtedness, obligations and
liabilities other than those secured as of the date such Indebtedness was
assumed or incurred, (B) such Lien was not created in contemplation of the
related acquisition and (C) the aggregate amount of all such Indebtedness
secured by such Liens does not exceed $5,000,000 at any time outstanding;
(ix) Any Lien created to secure Indebtedness of a Foreign
Subsidiary permitted pursuant to Section 5.2(f)(xiv) to the extent granting such
a Lien is customary for borrowers generally in the country in which such Foreign
Subsidiary is borrowing and provided that the aggregate amount of Indebtedness
secured by all such Liens does not exceed $10,000,000 (or the Dollar Equivalent
thereof); and
(x) Other Liens securing Indebtedness not exceeding $2,000,000
in aggregate amount outstanding at any time.
(h) Merger; Acquisitions; Etc. Purchase or otherwise acquire, or permit
or suffer any Subsidiary to purchase or otherwise acquire, whether in one or a
series of transactions, all or a substantial portion of the business assets,
rights, revenues or property, real, personal or mixed, tangible or intangible,
of any Person or make any other Acquisition, or all or a substantial portion of
the Capital Stock of or other ownership interest in any other Person; nor merge
or consolidate or amalgamate with any other Person or take any other action
having a similar effect, nor enter into any joint venture or similar arrangement
with any other Person, provided, however, that this Section 5.2(h) shall not
prohibit:
(i) any merger of any Subsidiary with or into another Subsidiary
or any merger of any Subsidiary into the Company, provided that (A) there is no
Unmatured Event or Event of Default either immediately before or immediately
after such merger, (B) if any such merger involves the Company, the Company
shall be the surviving corporation and (C) if any such merger involves the
Company or any Guarantor, the Consolidated Net Worth of the Company or such
Guarantor involved in such merger immediately after the merger would be equal to
or greater than its Consolidated Net Worth immediately preceding such merger, or
(ii) any other Acquisition if (A) immediately before and after
(on a pro forma basis acceptable to the Agent and supported by such certificates
and opinions required by the Agent) such Acquisition: (w) no Unmatured Event or
Event of Default shall exist or shall have occurred and be continuing, (x) the
representations and warranties contained in the Loan Documents shall be true and
correct as if made on the date such Acquisition is consummated, (y) the Company
is able to borrow at least $15,000,000 in Revolving Credit Loans after giving
effect to such acquisition and (z) the Total Leverage Ratio is at least 0.25
below the level required under this Agreement, (B) prior to the consummation of
such acquisition, the Company shall have provided to the Lenders a certificate
of the chief financial officer of the Company (attaching pro forma financial
statements and computations to demonstrate compliance and projected compliance
with all covenants and conditions hereunder), stating that such Acquisition
complies with this Section 5.2(h), customary legal opinions reasonably
acceptable to the Agent if requested by the Agent, evidence that such
Acquisition is in compliance with all laws and regulations and that any other
conditions under this Agreement relating to such transaction have been
satisfied, all in form and substance reasonably satisfactory to the Agent, (C)
the target of such acquisition is engaged in a Permitted Business, (D) prior to
the consummation of such Acquisition, the Agent shall have completed such due
diligence and reviewed such agreements and documents with respect to such
Acquisition as reasonably required by the Agent, and the Agent shall be
reasonably satisfied with such due diligence and such review, (E) the board of
directors or similar governing body of the target of such Acquisition has
recommended such Acquisition
MSX CREDIT AGREEMENT Page 60
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and (F) in the case of all Acquisitions which do not involve the purchase of
assets located in the United States or Canada or the purchase of Capital Stock
of any entity which is not organized under the laws of the United States or
Canada, the aggregate purchase price paid (excluding any payment made in common
stock (or Preferred Stock which is not Disqualified Stock) of the Company) for
all such Acquisitions does not exceed $40,000,000; provided, however, that the
requirements contained in clauses (B) and (D) of this paragraph shall not be
required pursuant to any Acquisitions, which when aggregated with all other
Acquisitions in any fiscal year of the Company, do not involve an aggregate
purchase price paid for all such Acquisitions in any fiscal year in excess of
$20,000,000, or
(iii) the transactions described on Schedule 5.2(h).
(i) Disposition of Assets; Etc. Except for the transactions described
on Schedule 5.2(i), sell, lease, license, transfer, assign or otherwise dispose
of all or any material portion of its business, assets, rights, revenues or
property, real, personal or mixed, tangible or intangible, whether in one or a
series of transactions, other than inventory sold in the ordinary course of
business upon customary credit terms, sales of scrap or obsolete material or
equipment which are not material in the aggregate and sales of assets described
on Schedule 5.2(i), and shall not permit or suffer any Subsidiary to do any of
the foregoing; provided, however, that this Section 5.2(i) shall not prohibit
(i) any such sale, lease, license, transfer, assignment or other disposition if
the aggregate book value (disregarding any write-downs of such book value other
than ordinary depreciation and amortization) of all of the business, assets,
rights, revenues and property disposed of after the Effective Date of this
Agreement shall not constitute a Substantial Portion in the aggregate and if,
immediately after such transaction, no Unmatured Event or Event of Default shall
exist or shall have occurred and be continuing, (ii) sales of assets in the
ordinary course of business as to which proceeds are used or contractually
committed to be used within 180 days to purchase assets of at least equivalent
value to those sold, (iii) sales as to which proceeds are used to make optional
prepayments on the Revolving Credit Advances, provided that such prepayments on
the Revolving Credit Advances also permanently reduce the Revolving Credit
Commitments by the amount of such payments, (iv) transfers of assets, including
without limitation Capital Stock, between Guarantors or between the Company and
Guarantors or between Subsidiaries which are not Guarantors or from a Subsidiary
which is not a Guarantor to a Guarantor or the Company, it being understood that
for purposes of this clause (iv) a Guarantor shall include any Subsidiary which
becomes a Guarantor immediately after such transfer, (v) any investment, loan or
advance permitted by Section 5.2(l), (vi) the disposition of Cash Equivalents in
the ordinary course of business, (vii) the disposition of assets pursuant to a
Permitted Securitization Transaction or Factoring permitted by Section 5.2(f) or
(viii) such transfer of assets as pursuant to a dividend or redemption permitted
by Section 5.2(k); provided, however, in the case of any of the foregoing
permitted sales, leases, licenses, transfers, assignments or other dispositions
(an "Asset Sale") the Company shall not, and shall not permit any of its
Subsidiaries to, consummate an Asset Sale unless (A) except for transfers under
clause (iv), (v) or (vi) above, the Company (or the Subsidiary, as the case may
be) receives consideration at the time of such Asset Sale at least equal to the
fair market value (evidenced by a resolution of the Board of Directors set forth
in an officer's certificate delivered to the Agent) of the assets and (B) except
for transfers under clause (iv), (v) or (vi) above, at least 80% of the
consideration therefor received by the Company or such Subsidiary is in the form
of cash or Cash Equivalents; provided that the amount of (x) any liabilities (as
shown on the Company's or such Subsidiary's' most recent balance sheet) of the
Company or any Subsidiary that are assumed by the transferee of any such assets
such that the Company or such Subsidiary have no further liability and (y) any
securities, notes or other obligations received by the Company or any such
Subsidiary from such transferee that are converted by the Company or such
Subsidiary into cash (to the extent of the cash received) shall be deemed to be
cash for purposes of this provision and the definition of Net Cash Proceeds, and
the Agent promptly shall obtain a first priority security interest in any non
cash consideration for any Asset Sale by the Company or any Guarantor to the
extent such consideration consists of collateral described in Section 2.11.
MSX CREDIT AGREEMENT Page 61
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(j) Nature of Business. Engage in any line or lines of business
activity other than those engaged in on the Effective Date and those
substantially similar thereto (a "Permitted Business").
(k) Dividends and Other Restricted Payments. Except as set forth
in Schedule 5.2(k), make, pay, declare or authorize any dividend, payment or
other distribution in respect of any class of its Capital Stock or any dividend,
payment or distribution in connection with the redemption, purchase, retirement
or other acquisition, directly or indirectly, of any shares of its Capital Stock
other than: (i) such dividends, payments or other distributions to the extent
payable solely in shares of Capital Stock (other than Disqualified Stock) of the
Company, (ii) the repurchase, redemption or other acquisition or retirement for
value of any Capital Stock of the Company held by any employee, director or
consultant of the Company upon termination of employment or services of such
employee, director or consultant, provided that (A) the aggregate consideration
(excluding consideration paid in other Capital Stock of the Company which is not
Disqualified Stock) paid for such repurchased, redeemed, acquired or retired
Capital Stock shall not exceed $4,000,000, plus 10% of Net Income for each
fiscal year of the Company, commencing with the 2000 fiscal year and added as of
the end of each fiscal year, and plus the amount of any increase to Net Worth of
the Company and its Subsidiaries after the Effective Date from the issuance of
any Capital Stock to any employee, director or consultant of the Company, (B) no
Event of Default or Unmatured Event shall have occurred and be continuing
immediately after such transaction on a pro forma basis acceptable to the Agent
and (C) the price paid for such Capital Stock shall be made in accordance with
the existing agreements relating thereto, (iii) such dividends, payments or
other distributions to the extent permitted in Section 5.2(i)(iv), and (iv)
dividends and distributions by Subsidiaries of the Company. The Company will not
issue any Disqualified Stock.
(l) Investments, Loans and Advances. Purchase or otherwise acquire
any Capital Stock of or other ownership interest in, or debt securities of or
other evidences of Indebtedness of, any other Person; nor make any loan or
advance of any of its funds or property or make any other extension of credit
to, or make any other investment or contribution or acquire any interest
whatsoever in, any other Person; nor incur any Contingent Liability except to
the extent permitted under Section 5.2(f) and other Contingent Liabilities in
aggregate amount not to exceed $2,000,000; nor permit any Subsidiary to do any
of the foregoing; other than (i) extensions of trade credit made in the ordinary
course of business on customary credit terms and commission, travel and similar
advances made to officers and employees in the ordinary course of business; (ii)
Cash Equivalents; (iii) Acquisitions permitted pursuant to Section 5.2(h); (iv)
investments, loans and advances in and to any Subsidiary, any person becoming a
Subsidiary as a result thereof, or the Company or otherwise pursuant to a
transaction permitted by Section 5.2(i)(iv), provided, however, that such
investments, loans and advances to any Subsidiary that is not a Guarantor shall
not be permitted unless immediately before and after (on a pro forma basis
acceptable to the Agent and supported by such certificates and opinions as
requested by the Agent) such investment, loan or advance: (w) the terms and
conditions thereof shall be reasonably satisfactory to the Agent, (x) no
Unmatured Event or Event of Default shall exist or shall have occurred and be
continuing, (y) the representations and warranties contained in the Loan
Documents shall be true and correct in all material respects on and as of the
date such investment, loan or advance is made as if made on the date thereof and
giving effect thereto and (z) the Company is able to borrow at least $15,000,000
in Revolving Credit Loans after giving effect to such investment, loan or
advance; (v) investments, loans and advances after the Effective Date of this
Agreement in Unrestricted Subsidiaries in aggregate outstanding amount not
exceeding $5,000,000; (vi) extensions of credit to employees and officers of the
Company and its Subsidiaries in the ordinary course of business of the Company
not in excess of $3,000,000 in aggregate amount at any one time outstanding for
all employees and officers; (vii) those investments, loans, advances and other
transactions described in Schedule 5.2(l) hereto, having the same terms as
existing on the date of this Agreement, but no extension or renewal thereof
shall be permitted; (viii) payroll, travel and similar advances to cover matters
that are
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expected at the time of such advances ultimately to be treated as expenses for
accounting purposes and that are made in the ordinary course of business; (ix)
stock, obligations or securities received in settlement of debts created in the
ordinary course of business and owing to the Company or any Subsidiary or in
satisfaction of judgments; (x) guaranties of Lender Indebtedness; (xi)
investments in joint ventures not to exceed $2,500,000 in aggregate outstanding
amount; (xii) the transactions described on Schedule 5.2(l); and (xiii) other
investments in an aggregate amount not exceeding $5,000,000 at any time
outstanding.
(m) Transactions with Affiliates. Except for transactions
described on Schedule 5.2(m), enter into or permit to exist any transaction or
series of related transactions (including the purchase, sale lease or exchange
of any property, employee compensation arrangements or the rendering of any
service) with any Affiliate of the Company (an "Affiliate Transaction") unless
the terms thereof (1) are no less favorable to the Company or such Subsidiary
than those that could be obtained at the time of such transaction in
arm's-length dealings with a Person who is not such an Affiliate, (2) if such
Affiliate Transaction (or series of related Affiliate Transactions) involve
aggregate payments in an amount in excess of $1,000,000 (i) are set forth in
writing and (ii) comply with clause (1), (3) if such Affiliate Transaction (or
series of related Affiliate Transactions) involves aggregate payments in an
amount in excess of $2,500,000 in any one year, (i) are set forth in writing,
(ii) comply with clause (2) and (iii) have been approved by a majority of the
disinterested members of the Board of Directors, and (4) if such Affiliate
Transaction (or series of related Affiliate Transactions) involves aggregate
payments in an amount in excess of $10,000,000 in any one year, (i) comply with
clause (3) and (ii) have been determined by a nationally recognized investment
banking firm to be fair, from a financial standpoint, to the Company and its
Subsidiaries, provided that (A) (1) any employment or consulting agreement or
arrangement or indemnity agreement entered into by the Company or any of its
Subsidiaries in the ordinary course of business and consistent with the past
practice of the Company or such Subsidiary, (2) transactions between or among
the Company and/or the Guarantors and (3) dividends, payments, distributions and
redemptions pursuant to Section 5.2(k) shall not be subject to clause (4) above
and (B) any loan, advance or investment permitted by Section 5.2 (l) shall not
be subject to clause (4) above and (C) with respect to any transaction between
the Company or a Guarantor and any other Subsidiary, the amount by which the
consideration paid by one party would exceed the amount paid in an arms' length
transaction, as determined by an officer, the board of directors, or an
accounting, appraisal or investment banking firm, as the case may be, shall be
treated as an investment for purposes of Section 5.2(l), and such transaction
shall only be permitted to the extent such investment would be permitted by
Section 5.2(l).
(n) Inconsistent Agreements. Enter into any material agreement or
permit or suffer any Subsidiary to enter into any such agreement containing any
provision which would be violated or breached by this Agreement or any of the
transactions contemplated hereby or by performance by the Company or any of its
Subsidiaries of its obligations in connection therewith.
(o) Negative Pledge Limitation. Enter into any agreement,
including without limitation any amendments to existing agreements, with any
Person other than the Lenders pursuant hereto which prohibits or limits the
ability of the Company or any Subsidiary to create, incur, assume or suffer to
exist any Lien in favor of the Agent and the Lenders securing the Lender
Indebtedness upon any of its assets, rights, revenues or property, real,
personal or mixed, tangible or intangible, whether now owned or hereafter
acquired, except for such restrictions on (i) a Foreign Subsidiary with respect
to Indebtedness of a Foreign Subsidiary permitted pursuant to Section 5.2(f)(v)
and which restrictions are customary in agreements of such type and would not be
inconsistent with any of the terms of this Agreement; (ii) relating to
Indebtedness of a Subsidiary and existing at the time it became a Subsidiary if
such restriction was not created in connection with or in anticipation of the
transaction or series of transactions pursuant to which such Subsidiary became a
Subsidiary or was acquired by the Company or any Subsidiary, (iii) which result
from the refinancing of Indebtedness incurred pursuant to an agreement referred
to in the immediately
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preceding clause (ii) above, provided that such restriction is no less favorable
to the Lenders than those under the agreement evidencing the Indebtedness so
refinanced, (iv) on any Securitization Entity that purchases or sells accounts
receivable or inventory pursuant to the Permitted Securitization Transactions or
any Factoring permitted under this Agreement, (v) relating to Indebtedness that
is permitted to be incurred and secured pursuant to this Agreement that limit
the right of the debtor to dispose of the property or assets securing such
Indebtedness, (vi) encumbering property or assets at the time such property or
assets were acquired by the Company or any Subsidiary, so long as such
restriction relates solely to the property or assets so acquired and was not
created in connection with or in anticipation of such acquisition, (vii)
resulting from customary provisions restricting subletting or assignment of
leases or customary provisions in other agreements that restrict assignment of
such agreements or rights thereunder or (viii) customary restrictions contained
in asset sale agreements limiting the transfer of such property pending the
closing of such sale.
(p) Subsidiary Dividends. Permit any of its Subsidiaries directly
or indirectly to create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction which by its terms
materially restricts the ability of any such Subsidiary to (i) pay dividends or
make any other distributions on such Subsidiary's capital stock, (ii) pay any
Indebtedness owed to the Company or any of its other Subsidiaries, (iii) make
any loans or advances to the Company or any of such other Subsidiaries or (iv)
transfer any material portion of its assets to the Company or any of such other
Subsidiaries, except for (A) such encumbrances or restrictions required by
applicable law; (B) such encumbrances or restrictions consisting of customary
non-assignment provisions in leases governing leasehold interests to the extent
such provisions restrict the transfer of the lease or the property leased
thereunder and (C) such encumbrances or restrictions with respect to
Indebtedness of a Foreign Subsidiary permitted pursuant to Section 5.2(f)(v) and
which encumbrances or restrictions are customary in agreements of such type or
with respect to the Indebtedness owing to National Westminister Bank plc and
described on Schedule 5.2(f) and existing as of the Effective Date.
(q) Payments and Modification of Debt. Make, or permit any
Subsidiary to make, any optional payment, defeasance (whether a covenant
defeasance, legal defeasance or other defeasance), prepayment or redemption of
any of its or any of its Subsidiaries' Subordinated Debt or other Indebtedness
or amend or modify, or consent or agree to any amendment or modification of, any
instrument or agreement under which any of its Subordinated Debt is issued or
created or otherwise related thereto, or enter into any agreement or arrangement
requiring any defeasance of any kind of any of its Subordinated Debt, or
designate any Indebtedness (other than the Lender Indebtedness) as "Designated
Senior Indebtedness" under the Senior Subordinated Debt Documents, or issue any
security, instrument or other document evidencing any of the Subordinated Debt
outstanding pursuant to any of the Senior Subordinated Debt Documents which is
not a "Security" as defined in the Senior Subordinated Note Indenture.
(r) Financial Contracts. Incur or remain liable with respect to
any Financial Contracts except for purposes of hedging and not for speculative
purposes.
(s) Capital Expenditures. The Company will not, as calculated for
the Company and its Subsidiaries on a consolidated basis, expend, or be
committed to expend, for Capital Expenditures for any fiscal year of the
Company, an amount in excess of the sum of (i) $20,000,000 for each of the 1999,
2000 and 2001 fiscal years of the Company or $23,000,000 for each fiscal year
thereafter, plus (ii) the amount of Capital Expenditures allowed for any
previous fiscal year allowed under this clause (i) (commencing with the 2000
fiscal year of the Company and giving effect to any increase in the amount
thereof caused by this clause (ii)) minus the amount of actual Capital
Expenditures for such previous fiscal year, and plus (iii) an amount to be
permanently added on a one time basis at the time of each Acquisition
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equal to 5% of the pro forma sales of the target of such Acquisition for the
most recently ended four fiscal quarters of such target.
(t) Year 2000. The Company will take and will cause each of its
Subsidiaries to take all such actions as are reasonably necessary to
successfully implement the Year 2000 Program and to assure that Year 2000 Issues
will not have a Material Adverse Effect. At the request of the Agent or any
Lender, the Company will provide a description of the Year 2000 Program,
together with any updates or progress reports with respect thereto.
5.3. Additional Covenants. If at any time the Company shall enter into
or be a party to any instrument or agreement with respect to any Indebtedness
which in the aggregate, together with any related Indebtedness, exceeds
$5,000,000, including all such instruments or agreements in existence as of the
date hereof (other than the Senior Subordinated Debt Documents and the Lender
Indebtedness) and all such instruments or agreements entered into after the date
hereof, relating to or amending any terms or conditions applicable to any of
such Indebtedness which includes financial covenants or the equivalent thereof
not substantially provided for in this Agreement or more favorable to the lender
or lenders thereunder than those provided for in this Agreement, then the
Company shall promptly so advise the Agent and the Lenders. Thereupon, if the
Agent shall request, upon notice to the Company, the Agent and the Lenders shall
enter into an amendment to this Agreement or an additional agreement (as the
Agent may request), providing for substantially the same financial covenants or
the equivalent thereof, as those provided for in such instrument or agreement to
the extent required and as may be selected by the Agent. In addition to the
foregoing, Sections 4.3, 4.5, 4.6, 4.7 and 4.8 of the Senior Subordinated Note
Indenture, together with any related definitions, are hereby incorporated by
reference into this Agreement to the same extent as if set forth fully herein,
and no subsequent amendment, waiver, termination or modification thereof shall
effect any such covenants, terms, conditions or defaults as incorporated herein.
ARTICLE VI
DEFAULT
6.1. Events of Default. The occurrence of any one of the following
events or conditions shall be deemed an "Event of Default" hereunder unless
waived by the requisite Lenders pursuant to Section 9.1:
(a) Nonpayment. Any Borrower shall fail to pay when due any
principal of the Notes, or any reimbursement obligation under Section 3.3
(whether by deemed disbursement of a Revolving Credit Loan or otherwise), or,
within 5 days after becoming due, any interest on the Notes or any fees or any
other amount payable hereunder;
(b) Misrepresentation. Any representation or warranty made by the
Company or any Subsidiary in any Loan Document or any other certificate, report,
financial statement or other document furnished by or on behalf of the Company
or any Subsidiary in connection with this Agreement, shall prove to have been
incorrect in any material respect when made or deemed made;
(c) Certain Covenants. Any Borrower or any Guarantor shall fail to
perform or observe any term, covenant or agreement contained in Section 5.2
(other than clauses (m) and (n) thereof);
(d) Other Defaults. Any Borrower or any Guarantor shall fail to
perform or observe any other term, covenant or agreement contained in any Loan
Document (other than those described in
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Sections 6.1(a) or 6.1(c)), and any such failure shall remain unremedied for 30
calendar days (or 5 calendar days in the case of any failure to perform or
observe the covenants contained in Section 5.1(d)) after written notice thereof
shall have been given to the Borrowers by the Agent (or such longer or shorter
period of time as may be specified in such Loan Document);
(e) Other Indebtedness. The Company or any of its Subsidiaries
shall fail to pay any part of the principal of, the premium, if any, or the
interest on, or any other payment of money due under any of its Indebtedness
(other than Indebtedness hereunder), beyond any period of grace provided with
respect thereto, which individually or together with other such Indebtedness as
to which any such failure exists has an aggregate outstanding principal amount
in excess of $5,000,000; or the Company or any of its Subsidiaries shall fail to
perform or observe any other term, covenant or agreement contained in any
agreement, document or instrument evidencing or securing any such Indebtedness
having such aggregate outstanding principal amount, or under which any such
Indebtedness was issued or created, beyond any period of grace, if any, provided
with respect thereto if the effect of such failure is either (i) to cause, or
permit the holders of such Indebtedness (or a trustee on behalf of such holders)
to cause, any payment in respect of such Indebtedness to become due prior to its
due date or (ii) to permit the holders of such Indebtedness (or a trustee on
behalf of such holders) to elect a majority of the board of directors of the
Company;
(f) Judgments. One or more judgments or orders for the payment of
money (not fully paid or covered without dispute by insurance) in an aggregate
amount of $5,000,000 in any fiscal year shall be rendered against the Company or
any of its Significant Subsidiaries, or any other judgment or order (whether or
not for the payment of money) shall be rendered against or shall affect the
Company or any of its Subsidiaries which causes or could reasonably be expected
to cause or could reasonably be expected to have a Material Adverse Effect, and
either (i) such judgment or order shall have remained unsatisfied and the
Company or such Significant Subsidiary shall not have taken action necessary to
stay enforcement thereof by reason of pending appeal or otherwise, prior to the
expiration of the applicable period of limitations for taking such action or, if
such action shall have been taken, a final order denying such stay shall have
been rendered, or (ii) enforcement proceedings shall have been commenced by any
creditor upon any such judgment or order;
(g) ERISA. Any member of the ERISA Group shall fail to pay when
due an amount or amounts aggregating in excess of $5,000,000 which it shall have
become liable to pay under Title IV of ERISA; or notice of intent to terminate a
Material Plan shall be filed under Title IV of ERISA any member of the ERISA
Group, any plan administrator or any combination of the foregoing; or PBGC shall
institute proceedings under Title IV of ERISA to terminate, to impose liability
(other than for premiums under Section 4007 of ERISA) in respect of, or to cause
a trustee to be appointed to administer any Material Plan; or a condition shall
exist by reason of which the PBGC would be entitled to obtain a decree
adjudicating that any Material Plan must be terminated; or there shall occur a
complete or partial withdrawal from, or a default, within the meaning of Section
4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which
could cause one or more members of the ERISA Group to incur a current payment
obligation in excess of $5,000,000;
(h) Insolvency, Etc.. Any Borrower or any of their Significant
Subsidiaries shall be dissolved or liquidated or any judgment, order or decree
therefor shall be entered (other than dissolutions or liquidations of
Subsidiaries permitted by Section 5.1(a)), or shall generally not pay its debts
as they become due, or shall admit in writing its inability to pay its debts
generally, or shall make a general assignment for the benefit of creditors, or
shall institute, or there shall be instituted against any Borrower or any of
their respective Significant Subsidiaries, any proceeding or case seeking to
adjudicate it a bankrupt or insolvent or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief or
MSX CREDIT AGREEMENT Page 66
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composition of it or its debts under any law relating to bankruptcy, insolvency
or reorganization or relief or protection of debtors or seeking the entry of an
order for relief, or the appointment of a receiver, trustee, custodian or other
similar official for it or for any substantial part of its assets, rights,
revenues or property, and, if such proceeding is instituted against any Borrower
or such Subsidiary and is being contested by such Borrower or such Subsidiary,
as the case may be, in good faith by appropriate proceedings, such proceeding
shall remain undismissed or unstayed for a period of 60 days; or any Borrower or
such Subsidiary shall take any action (corporate or other) to authorize or
further any of the actions described above in this subsection;
(i) Other Documents. Any material provision of any Loan Document
or any Subordinated Debt Document shall at any time for any reason cease to be
valid and binding and enforceable against any obligor thereunder, or the
validity, binding effect or enforceability thereof shall be contested by any
Person or any obligor, shall deny that it has any or further liability or
obligation thereunder, or any Loan Document or any Subordinated Debt Document
shall be terminated, invalidated or set aside, or be declared ineffective or
inoperative or in any way cease to give or provide to the Lenders and the Agent
the benefits purported to be created thereby in any material manner; or
(j) Control. Any Change of Control shall occur.
6.2. Remedies.
(a) Upon the occurrence and during the continuance of any Event of
Default, by notice to the Borrowers (i) the Agent may, and upon being directed
to do so by the Required Lenders shall, terminate the Commitments or (ii) the
Agent may, and upon being directed to do so by the Required Lenders, shall
declare the outstanding principal of, and accrued interest on, the Notes, all
unpaid reimbursement obligations in respect of drawings under Letters of Credit
and all other amounts owing under this Agreement to be immediately due and
payable, or (iii) the Agent may, and upon being directed to do so by the
Required Lenders, shall demand immediate delivery of cash collateral, and the
Borrowers agree to deliver such cash collateral upon demand, in an amount equal
to the maximum amount that may be available to be drawn at any time prior to the
stated expiry of all outstanding Letters of Credit, or any one or more of the
foregoing, whereupon the Commitments shall terminate forthwith and all such
amounts, including such cash collateral, shall become immediately due and
payable, as the case may be, provided that in the case of any event or condition
described in Section 6.1(h), the Commitments shall automatically terminate
forthwith and all such amounts, including such cash collateral, shall
automatically become immediately due and payable without notice; in all cases
without demand, presentment, protest, diligence, notice of dishonor or other
formality, all of which are hereby expressly waived. Such cash collateral
delivered in respect of outstanding Letters of Credit shall be deposited in a
special cash collateral account to be held by the Agent as collateral security
for the payment and performance of the Borrowers' obligations under this
Agreement to the Lenders and the Agent.
(b) The Agent may and, upon being directed to do so by the
Required Lenders, shall, in addition to the remedies provided in Section 6.2(a),
exercise and enforce any and all other rights and remedies available to it or
the Lenders, whether arising under this Agreement or any other Loan Document or
under applicable law, in any manner deemed appropriate by the Agent, including
suit in equity, action at law, or other appropriate proceedings, whether for the
specific performance (to the extent permitted by law) of any covenant or
agreement contained in any other Loan Document or in aid of the exercise of any
power granted in any other Loan Document.
(c) Upon the occurrence and during the continuance of any Event of
Default, each Lender may, subject to Section 7.10, at any time and from time to
time, without notice to the any Borrower
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(any requirement for such notice being expressly waived by the Borrowers) set
off and apply against any and all of the obligations of the any Borrower now or
hereafter existing under this Agreement, whether owing to such Lender or any
other Lender or the Agent, any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Lender or any Affiliate of such Lender to or for the credit
or the account of any Borrower and any property of such Borrower from time to
time in possession of such Lender or any Affiliate of such Lender, irrespective
of whether or not such Lender shall have made any demand hereunder and although
such obligations may be contingent and unmatured. Each Borrower hereby grants to
the Lenders and the Agent a lien on and security interest in all such deposits,
indebtedness and property as collateral security for the payment and performance
of the obligations of such Borrower under this Agreement. The rights of such
Lender under this Section 6.2(c) are in addition to other rights and remedies
(including, without limitation, other rights of setoff) which such Lender may
have.
6.3. Distribution of Proceeds of Collateral. All proceeds of any
realization on the collateral pursuant to the Security Documents and any
payments received by the Agent or any Lender pursuant to the Guaranties
subsequent to and during the continuance of any Event of Default, shall be
allocated and distributed by the Agent as follows:
(a) First, to the payment of all reasonable costs and expenses,
including without limitation all reasonable attorneys' fees, of the Agent in
connection with the enforcement of the Security Documents and otherwise
administering this Agreement;
(b) Second, to the payment of all fees required to be paid under
any Loan Document including facility fees, owing to the Lenders and Agent
pursuant to the Lender Indebtedness on a pro rata basis in accordance with the
Lender Indebtedness consisting of fees owing to the Lenders and Agent under the
Lender Indebtedness, for application to payment of such liabilities;
(c) Third, to the Lenders and Agent on a pro rata basis in
accordance with the Lender Indebtedness consisting of interest owing to the
Lenders and Agent under the Lender Indebtedness, for application to payment of
such liabilities;
(d) Fourth, to the Lenders and the Agent on a pro rata basis in
accordance with the Lender Indebtedness consisting of principal (including
without limitation any cash collateral for any outstanding letters of credit)
and obligations and liabilities relating to Swaps owing any Lender or the Agent,
for application to payment of such liabilities;
(e) Fifth, to the payment of any and all other amounts owing to
the Lenders and the Agent on a pro rata basis in accordance with the total
amount of such Indebtedness owing to each of the Lenders and the Agent, for
application to payment of such liabilities; and
(f) Sixth, to the Borrowers, or such other Person as may be
legally entitled thereto.
Notwithstanding the foregoing, no payments of principal, interest or fees
delivered to the Agent for the account of any Defaulting Lender shall be
delivered by the Agent to such Defaulting Lender. Instead, such payments shall,
for so long as such Defaulting Lender shall be a Defaulting Lender, be held by
the Agent, and the Agent is hereby authorized and directed by all parties hereto
to hold such funds in escrow and apply such funds as follows:
(i) First, if applicable to any payments due from such
Defaulting Lender to the Agent, and
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(ii) Second, to Loans required to be made by such Defaulting
Lender on any borrowing date to the extent such Defaulting Lender fails to make
such Loans.
Notwithstanding the foregoing, upon the termination of all Commitments and the
payment and performance of all of the Advances and other obligations owing
hereunder (other than those owing to a Defaulting Lender), any funds then held
in escrow by the Agent pursuant to the preceding sentence shall be distributed
to each Defaulting Lender, pro rata in proportion to amounts that would be due
to each Defaulting Lender but for the fact that it is a Defaulting Lender.
6.4. Letter of Credit Liabilities. For the purposes of payments and
distributions under Section 6.3, the full amount of Lender Indebtedness on
account of any letter of credit then outstanding but not drawn upon shall be
deemed to be then due and owing. Amounts distributable to the Lenders or Agent
on account of such Lender Indebtedness under such letters of credit shall be
deposited in a separate collateral account in the name of and under the control
of the Agent and held by the Agent first as security for such letter of credit
Lender Indebtedness and then as security for all other Lender Indebtedness and
the amount so deposited shall be applied to the letter of credit Lender
Indebtedness at such times and to the extent that such letter of credit Lender
Indebtedness become absolute liabilities and if and to the extent that the
letter of credit Lender Indebtedness fail to become absolute Lender Indebtedness
because of the expiration or termination of the underlying letters of credit
without being drawn upon then such amounts shall be applied to the remaining
Lender Indebtedness in the order provided in Section 6.3. Each Borrower hereby
grants to the Agent, for the benefit of the Lenders and Agent, a lien and
security interest in all such funds deposited in such separate collateral
account, as security for all the Lender Indebtedness of such Borrower as set
forth above.
ARTICLE VII
THE AGENT AND THE LENDERS
7.1. Appointment; Nature of Relationship. Bank One is hereby appointed
by the Lenders as the Agent hereunder and under each other Loan Document, and
each of the Lenders irrevocably authorizes the Agent to act as the contractual
representative of such Lender with the rights and duties expressly set forth
herein and in the other Loan Documents. The Agent agrees to act as such
contractual representative upon the express conditions contained in this Article
VII. Notwithstanding the use of the defined term "Agent," it is expressly
understood and agreed that the Agent shall not have any fiduciary
responsibilities to any Lender by reason of this Agreement or any other Loan
Document and that the Agent is merely acting as the representative of the
Lenders with only those duties as are expressly set forth in this Agreement and
the other Loan Documents. In its capacity as the Lenders' contractual
representative, the Agent (i) does not hereby assume any fiduciary duties to any
of the Lenders, (ii) is a "representative" of the Lenders within the meaning of
Section 9-105 of the Uniform Commercial Code and (iii) is acting as an
independent contractor, the rights and duties of which are limited to those
expressly set forth in this Agreement and the other Loan Documents. Each of the
Lenders hereby agrees to assert no claim against the Agent on any agency theory
or any other theory of liability for breach of fiduciary duty, all of which
claims each Lender hereby waives.
7.2. Powers. The Agent shall have and may exercise such powers under
the Loan Documents as are specifically delegated to the Agent by the terms of
each thereof, together with such powers as are reasonably incidental thereto.
The Agent shall have no implied duties to the Lenders, or any obligation to
MSX CREDIT AGREEMENT Page 69
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the Lenders to take any action thereunder except any action specifically
provided by the Loan Documents to be taken by the Agent.
7.3. General Immunity. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable to the Company or any of its
Subsidiaries, the Lenders or any Lender for any action taken or omitted to be
taken by it or them hereunder or under any other Loan Document or in connection
herewith or therewith except for its or their own gross negligence or willful
misconduct.
7.4. No Responsibility for Loans, Recitals, etc. Neither the Agent nor
any of its directors, officers, agents or employees shall be responsible for or
have any duty to ascertain, inquire into, or verify (i) any statement, warranty
or representation made in connection with any Loan Document or any borrowing
hereunder; (ii) the performance or observance of any of the covenants or
agreements of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information directly to each
Lender; (iii) the satisfaction of any condition specified in Article II, except
receipt of items required to be delivered to the Agent; (iv) the validity,
enforceability, effectiveness, sufficiency or genuineness of any Loan Document
or any other instrument or writing furnished in connection therewith; or (v) the
value, sufficiency, creation, perfection or priority of any interest in any
collateral security. The Agent shall have no duty to disclose to the Lenders
information that is not required to be furnished by the Company or any
Subsidiary to the Agent at such time, but is voluntarily furnished by the
Company or any Subsidiary to the Agent (either in its capacity as Agent or in
its individual capacity).
7.5. Action on Instructions of Lenders. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, hereunder and under any
other Loan Document in accordance with written instructions signed by the
Required Lenders, and such instructions and any action taken or failure to act
pursuant thereto shall be binding on all of the Lenders and on all holders of
Notes. The Lenders hereby acknowledge that the Agent shall be under no duty to
take any discretionary action permitted to be taken by it pursuant to the
provisions of this Agreement or any other Loan Document unless it shall be
requested in writing to do so by the Required Lenders. The Agent shall be fully
justified in failing or refusing to take any action hereunder and under any
other Loan Document unless it shall first be indemnified to its satisfaction by
the Lenders pro rata against any and all liability, cost and expense that it may
incur by reason of taking or continuing to take any such action.
7.6. Employment of Agents and Counsel. The Agent may execute any of its
duties as Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Agent shall be entitled to advice of
counsel concerning all matters pertaining to the agency hereby created and its
duties hereunder and under any other Loan Document.
7.7. Reliance on Documents; Counsel. The Agent shall be entitled to
rely upon any Note, notice, consent, certificate, affidavit, letter, telegram,
statement, paper or document believed by it to be genuine and correct and to
have been signed or sent by the proper person or persons, and, in respect to
legal matters, upon the opinion of counsel selected by the Agent, which counsel
may be employees of the Agent.
7.8. Agent's Reimbursement and Indemnification. The Lenders agree to
reimburse and indemnify the Agent ratably in proportion to their respective
Commitments (or, if the Commitments have been terminated, in proportion to their
Commitments immediately prior to such termination) (i) for any amounts not
reimbursed by the Borrowers for which the Agent is entitled to reimbursement by
the a Borrower under the Loan Documents, (ii) for any other expenses incurred by
the Agent on behalf of the Lenders, in connection with the preparation,
execution, delivery, administration and enforcement of the
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Loan Documents and (iii) for any liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind and nature whatsoever which may be imposed on, incurred by or asserted
against the Agent in any way relating to or arising out of the Loan Documents or
any other document delivered in connection therewith or the transactions
contemplated thereby, or the enforcement of any of the terms thereof or of any
such other documents, provided that no Lender shall be liable for any of the
foregoing to the extent they arise from the gross negligence or willful
misconduct of the Agent. The obligations of the Lenders under this Section 7.8
shall survive payment of the Obligations and termination of this Agreement.
7.9. Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Unmatured Event or Event of Default
hereunder unless the Agent has received written notice from a Lender or the
Company referring to this Agreement describing such Default or Unmatured Default
and stating that such notice is a "notice of default". In the event that the
Agent receives such a notice, the Agent shall give prompt notice thereof to the
Lenders.
7.10. Rights as a Lender. In the event the Agent is a Lender, the Agent
shall have the same rights and powers hereunder and under any other Loan
Document as any Lender and may exercise the same as though it were not the
Agent, and the term "Lender" or "Lenders" shall, at any time when the Agent is a
Lender, unless the context otherwise indicates, include the Agent in its
individual capacity. The Agent may accept deposits from, lend money to, and
generally engage in any kind of trust, debt, equity or other transaction, in
addition to those contemplated by this Agreement or any other Loan Document,
with the Company or any of its Subsidiaries in which the Company or such
Subsidiary is not restricted hereby from engaging with any other Person. The
Agent, in its individual capacity, is not, subject to Section 8.6, obligated to
remain a Lender.
7.11. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent or any other Lender and based
on the financial statements prepared by the Company and such other documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and the other Loan Documents. Each Lender
also acknowledges that it will, independently and without reliance upon the
Agent or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement and the other Loan Documents.
7.12. Successor Agent. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Company, such resignation to be
effective upon the appointment of a successor Agent or, if no successor Agent
has been appointed, forty-five days after the retiring Agent gives notice of its
intention to resign. Upon any such resignation, the Required Lenders shall have
the right to appoint, on behalf of the Company and the Lenders, a successor
Agent. If no successor Agent shall have been so appointed by the Required
Lenders within thirty days after the resigning Agent's giving notice of its
intention to resign, then the resigning Agent may appoint, on behalf of the
Company and the Lenders, a successor Agent. If the Agent has resigned and no
successor Agent has been appointed, the Lenders may perform all the duties of
the Agent hereunder and the Borrowers shall make all payments in respect of the
Obligations to the applicable Lender and for all other purposes shall deal
directly with the Lenders. No successor Agent shall be deemed to be appointed
hereunder until such successor Agent has accepted the appointment. Any such
successor Agent shall be a commercial bank having capital and retained earnings
of at least $50,000,000. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
resigning Agent. Upon the effectiveness of the resignation of the Agent, the
resigning Agent shall be discharged from its duties and obligations hereunder
and under the Loan Documents. After the effectiveness of the resignation of an
Agent, the provisions of this Article VII shall
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continue in effect for the benefit of such Agent in respect of any actions taken
or omitted to be taken by it while it was acting as the Agent hereunder and
under the other Loan Documents.
7.13. Collateral Management. The Agent is hereby authorized on behalf
of all of the Lenders, without the necessity of any further consent from any
Lender, from time to time prior to an Event of Default, to take any action with
respect to the collateral or the Security Documents which may be necessary (i)
to perfect and maintain perfected the security interest in and liens upon the
collateral granted pursuant to the Security Documents; and (ii) to release
portions of the collateral from the security interests and liens imposed by the
Security Documents in connection with any dispositions of such portions of the
collateral permitted hereby. In the event that the Borrowers or the Guarantors
desire to sell or otherwise dispose of any assets and such sale or disposition
is permitted hereby, the Agent shall, upon timely notice from the Company,
release such portions of the collateral from the security interests and liens
imposed by the Security Documents as may be specified by the Borrowers or the
Guarantors in order for the Borrowers or the Guarantors to consummate such
proposed sale or disposition, provided that at or prior to the time of such
proposed sale or disposition no Unmatured Event or Event of Default shall have
occurred and be continuing, including, without limitation, any Unmatured Event
or Event of Default that would arise upon consummation of such sale or
disposition. For purposes of the preceding sentence, the Company shall give
timely notice if, not less than two Business Days prior to the date of such
proposed sale or disposition, it shall furnish to the Agent an officers'
certificate setting forth in reasonable detail the circumstances of such
proposed sale or disposition.
7.14. Right to Indemnity. The Agent shall be fully justified in failing
or refusing to take any action hereunder unless it shall first be indemnified to
its satisfaction by the Lenders pro rata against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action.
7.15. Sharing of Payments. The Lenders agree among themselves that, in
the event that any Lender shall obtain payment in respect of any Advance or any
other obligation owing to the Lenders under this Agreement through the exercise
of a right of set-off, banker's lien, counterclaim or otherwise in excess of its
ratable share of payments received by all of the Lenders on account of the
Advances and other obligations (or if no Advances are outstanding, ratably
according to the respective amounts of the Commitments), such Lender shall
promptly purchase from the other Lenders participations in such Advances and
other obligations in such amounts, and make such other adjustments from time to
time, as shall be equitable to the end that all of the Lenders share such
payment in accordance with such ratable shares. The Lenders further agree among
themselves that if payment to a Lender obtained by such Lender through the
exercise of a right of set-off, banker's lien, counterclaim or otherwise as
aforesaid shall be rescinded or must otherwise be restored, each Lender which
shall have shared the benefit of such payment shall, by repurchase of
participations theretofore sold, return its share of that benefit to each Lender
whose payment shall have been rescinded or otherwise restored. The Borrowers
agree that any Lender so purchasing such a participation may, to the fullest
extent permitted by law, exercise all rights of payment, including set-off,
banker's lien or counterclaim, with respect to such participation as fully as if
such Lender were a holder of such Advance or other obligation in the amount of
such participation. The Lenders further agree among themselves that, in the
event that amounts received by the Lenders and the Agent hereunder are
insufficient to pay all such obligations or insufficient to pay all such
obligations when due, the fees and other amounts owing to the Agent in such
capacity shall be paid therefrom before payment of obligations owing to the
Lenders under this Agreement. Except as otherwise expressly provided in this
Agreement, if any Lender or Agent shall fail to remit to the Agent or any other
Lender an amount payable by such Lender or Agent to the Agent or such other
Lender pursuant to this Agreement on the date when such amount is due, such
payments shall be made together with interest thereon for each date from the
date such amount is due until the date such amount is paid to the Agent or such
other Lender at a rate per annum equal to the
MSX CREDIT AGREEMENT Page 72
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rate at which borrowings are available to the payee in its overnight federal
funds market. It is further understood and agreed among the Lenders and the
Agent that if the Agent shall engage in any other transactions with the Company
or any of its Subsidiaries and shall have the benefit of any collateral or
security therefor which does not expressly secure the obligations arising under
this Agreement except by virtue of a so-called dragnet clause or comparable
provision, the Agent shall be entitled to apply any proceeds of such collateral
or security first in respect of the obligations arising in connection with such
other transaction before application to the obligations arising under this
Agreement.
7.16. Withholding Tax Exemption. Each Lender that is not organized and
incorporated under the laws of the United States or any State thereof agrees to
file with the Agent and the Company, in duplicate, (a) on or before the later of
(i) the Effective Date and (ii) the date such Lender becomes a Lender under this
Agreement and (b) thereafter, for each taxable year of such Lender (in the case
of a Form 4224) or for each third taxable year of such Lender (in the case of
any other form) during which interest or fees arising under this Agreement and
the Notes are received, unless not legally able to do so as a result of a change
in United States income tax enacted, or treaty promulgated, after the date
specified in the preceding clause (a), on or prior to the immediately following
due date of any payment by the Borrowers hereunder, a properly completed and
executed copy of either Internal Revenue Service Form 4224 or Internal Revenue
Service Form 1001 and Internal Revenue Service Form W-8 or Internal Revenue
Service Form W-9 and any additional form necessary for claiming complete
exemption from United States withholding taxes (or such other form as is
required to claim complete exemption from Unites States withholding taxes), if
and as provided by the Code or other pronouncements of the United States
Internal Revenue Service, and such Lender warrants to the Borrowers that the
form so filed will be true and complete; provided that such Lender's failure to
complete and execute such Form 4224 or Form 1001, or Form W-8 or Form W-9, as
the case may be, and any such additional form (or any successor form or forms)
shall not relieve any Borrower of any of its obligations under this Agreement,
except as otherwise provided in this Section 7.16. Each Lender will promptly
execute such other documents with respect to withholding or similar taxes in any
jurisdiction other than United States or any State thereof if required to do so
to avoid any such withholding tax or similar tax, provided that such Lender is
legally entitled to do so and such Lender would not be materially prejudiced
thereby.
ARTICLE VIII
GUARANTY
As an inducement to the Lenders and the Agent to enter into the
transactions contemplated by this Agreement, the Company agrees with the Lenders
and the Agent as follows:
8.1 Guarantee of Obligations. (a) The Company hereby (i) guarantees,
as principal obligor and not as surety only, to the Lenders the prompt payment
of the principal of and any and all accrued and unpaid interest (including
interest which otherwise may cease to accrue by operation of any insolvency law,
rule, regulation or interpretation thereof) on the Advances and all other
obligations of the Borrowing Subsidiaries to the Lenders and the Agent under
this Agreement when due, whether by scheduled maturity, acceleration or
otherwise, all in accordance with the terms of this Agreement and the Notes,
including, without limitation, fees, reimbursement obligations, default
interest, indemnification payments and all reasonable costs and expenses
incurred by the Lenders and the Agent in connection with enforcing any
obligations of the Borrowing Subsidiaries hereunder, including without
limitation the reasonable fees and disbursements of counsel, (ii) guarantees the
prompt and punctual performance and observance of each and every term, covenant
or agreement contained in this Agreement and the Notes to be performed or
observed on the part of the Borrowing Subsidiaries and (iii)
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agrees to make prompt payment, on demand, of any and all reasonable costs and
expenses incurred by the Lenders or the Agent in connection with enforcing the
obligations of the Company hereunder, including, without limitation, the
reasonable fees and disbursements of counsel (all of the foregoing being
collectively referred to as the "Guaranteed Obligations").
(b) If for any reason any duty, agreement or obligation of any
Borrowing Subsidiary contained in this Agreement shall not be performed or
observed by any Borrowing Subsidiary as provided therein, or if any amount
payable under or in connection with this Agreement shall not be paid in full
when the same becomes due and payable, the Company undertakes to perform or
cause to be performed promptly each of such duties, agreements and obligations
and to pay forthwith each such amount to the Agent for the account of the
Lenders regardless of any defense or setoff or counterclaim which any Borrowing
Subsidiary may have or assert, and regardless of any other condition or
contingency.
8.2 Nature of Guaranty. The obligations of the Company hereunder
constitute an absolute and unconditional and irrevocable guaranty of payment and
not a guaranty of collection and are wholly independent of and in addition to
other rights and remedies of the Lenders and the Agent and are not contingent
upon the pursuit by the Lenders and the Agent of any such rights and remedies,
such pursuit being hereby waived by the Company.
8.3 Waivers and Other Agreements. The Company hereby unconditionally
(a) waives any requirement that the Lenders or the Agent, upon the occurrence of
an Event of Default first make demand upon, or seek to enforce remedies against
any Borrowing Subsidiary before demanding payment under or seeking to enforce
the obligations of the Company hereunder, (b) covenants that the obligations of
the Company hereunder will not be discharged except by complete performance of
all obligations of the Borrowing Subsidiaries contained in this Agreement and
the Notes, (c) agrees that the obligations of the Company hereunder shall remain
in full force and effect without regard to, and shall not be affected or
impaired, without limitation, by any invalidity, irregularity or
unenforceability in whole or in part of this Agreement or the Notes, or any
limitation on the liability of the Borrowing Subsidiaries thereunder, or any
limitation on the method or terms of payment thereunder which may or hereafter
be caused or imposed in any manner whatsoever (including, without limitation,
usury laws), (d) waives diligence, presentment and protest with respect to, and
any notice of default or dishonor in the payment of any amount at any time
payable by the Borrowing Subsidiaries under or in connection with this Agreement
or the Notes, and further waives any requirement of notice of acceptance of, or
other formality relating to, the obligations of the Company hereunder and (e)
agrees that the Guaranteed Obligations shall include any amounts paid by the
Borrowing Subsidiaries to the Lenders or the Agent which may be required to be
returned to the Borrowing Subsidiaries or to their representative or to a
trustee, custodian or receiver for any Borrowing Subsidiary.
8.4 Obligations Absolute. The obligations, covenants, agreements and
duties of the Company under this Agreement shall not be released, affected or
impaired by any of the following whether or not undertaken with notice to or
consent of the Company: (a) an assignment or transfer, in whole or in part, of
the Advances made to any Borrowing Subsidiary or of this Agreement or any Note
although made without notice to or consent of the Company, or (b) any waiver by
any Lender or the Agent or by any other person, of the performance or observance
by any Borrowing Subsidiary of any of the agreements, covenants, terms or
conditions contained in this Agreement or in the other Loan Documents, or (c)
any indulgence in or the extension of the time for payment by any Borrowing
Subsidiary of any amounts payable under or in connection with this Agreement or
any other Loan Document, or of the time for performance by any Borrowing
Subsidiary of any other obligations under or arising out of this Agreement or
any other Loan Document, or the extension or renewal thereof, or (d) the
modification, amendment or waiver (whether material or otherwise) of any duty,
agreement or obligation of any Borrowing Subsidiary set forth in this Agreement
or any other Loan Document (the modification, amendment or waiver from time to
time of this Agreement and the other Loan Documents being
MSX CREDIT AGREEMENT Page 74
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expressly authorized without further notice to or consent of the Company), or
(e) the voluntary or involuntary liquidation, sale or other disposition of all
or substantially all of the assets of any Borrowing Subsidiary or any
receivership, insolvency, bankruptcy, reorganization, or other similar
proceedings, affecting any Borrowing Subsidiary or any of its assets, or (f) the
merger or consolidation of any Borrowing Subsidiary or the Company with any
other person, or (g) the release of discharge of any Borrowing Subsidiary or the
Company from the performance or observance of any agreement, covenant, term or
condition contained in this Agreement or any other Loan Document, by operation
of law, or (h) any other cause whether similar or dissimilar to the foregoing
which would release, affect or impair the obligations, covenants, agreements or
duties of the Company hereunder.
8.5 No Investigation by Lenders or Agent. The Company hereby waives
unconditionally any obligation which, in absence of such provision, the Lenders
or the Agent might otherwise have to investigate or to assure that there has
been compliance with the law of any jurisdiction with respect to the Guaranteed
Obligations recognizing that, to save both time and expense, the Company has
requested that the Lenders and the Agent not undertake such investigation. The
Company hereby expressly confirms that the obligations of the Company hereunder
shall remain in full force and effect without regard to compliance or
noncompliance with any such law and irrespective of any investigation or
knowledge of any Lender or the Agent of any such law.
8.6 Indemnity. As a separate, additional and continuing obligation, the
Company unconditionally and irrevocably undertakes and agrees with the Lenders
and the Agent that, should the Guaranteed Obligations not be recoverable from
the Company under Section 8.1 for any reason whatsoever (including, without
limitation, by reason of any provision of this Agreement or the Notes or any
other agreement or instrument executed in connection herewith being or becoming
void, unenforceable, or otherwise invalid under any applicable law) then,
notwithstanding any knowledge thereof by any Lender or the Agent at any time,
the Company as sole, original and independent obligor, upon demand by the Agent,
will make payment to the Agent for the account of the Lenders and the Agent of
the Guaranteed Obligations by way of a full indemnity in such currency and
otherwise in such manner as is provided in this Agreement and the Notes.
8.7 Subordination, Subrogation, Etc. The Company agrees that any
present or future indebtedness, obligations or liabilities of any Borrowing
Subsidiary to Company shall be fully subordinate and junior in right and
priority of payment to any present or future indebtedness, obligations or
liabilities of the Borrowing Subsidiaries to the Lenders and the Agent. The
Company waives any right of subrogation to the rights of any Lender or the Agent
against any Borrowing Subsidiary or any other person obligated for payment of
the Guaranteed Obligations and any right of reimbursement or indemnity
whatsoever arising or accruing out of any payment which the Company may make
pursuant to this Agreement and the Notes, and any right of recourse to security
for the debts and obligations of each Borrowing Subsidiary, unless and until the
entire principal balance of and interest on the Guaranteed Obligations shall
have been paid in full, and to the extent the Company is an "insider" as defined
in Section 101(2) of the United States Bankruptcy Code, such waiver shall be
permanent and shall not be revoked or terminated in any event, including payment
in full of the principal and interest of the Guaranteed Obligations.
MSX CREDIT AGREEMENT Page 75
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ARTICLE IX
MISCELLANEOUS
1.1. Amendments, Etc.
(a) No amendment, modification, termination or waiver of any
provision of this Agreement nor any consent to any departure therefrom shall be
effective unless the same shall be in writing and signed by the Required Lenders
and, to the extent any rights, obligations or duties of the Agent may be
affected thereby, the Agent; provided, however, that no such amendment,
modification, termination, waiver or consent shall, without the consent of the
Agent and all of the Lenders, (i) authorize or permit the extension of time for,
or any reduction of the amount or rate of, any payment of the principal pursuant
to Section 3.1(a) or (b) of, or interest on, the Notes or any Letter of Credit
reimbursement obligation, or any fees or other amount payable hereunder, (ii)
increase, terminate or otherwise amend the amount of the respective Commitments
of any Lender set forth on the signature pages hereof (except to the extent
allowed as of the Effective Date without giving effect to any amendment or
modification) or modify the provisions of this Section regarding the taking of
any action under this Section or the provisions of Section 7.15 or the
definition of Required Lenders, Required Revolving Credit Lenders, Required Term
Loan A Lenders or Required Term Loan B Lenders, (iii) release any material
Guarantor or any material amount of the collateral (excluding releases of
collateral allowed pursuant to Section 5.2(i), Section 7.13 or any other
provision hereof) or release the Company from its guaranty contained in Article
VIII, or (iv) subordinate the Loans to any other Indebtedness; provided,
further, that no such amendment, modification, termination, waiver or consent,
shall, (A) without the consent of the Required Revolving Credit Lenders, amend
or modify Section 6.3, decrease the mandatory prepayments with respect to the
Revolving Credit Loans or allow the Company to obtain a Revolving Credit Advance
if it would otherwise be unable to absent such amendment, modification,
termination, waiver or consent, (B) without the consent of the Required Term
Loan A Lenders, amend or modify Section 6.3 or decrease the mandatory
prepayments with respect to Term Loan A and (C) without the consent of the
Required Term Loan B Lenders, amend or modify Section 6.3 or decrease the
mandatory prepayments with respect to Term Loan B or amend or modify Section
3.1(h), (i) or (j).
In addition to amendments effected pursuant to the foregoing, Schedule 1.1(a)
may be amended as follows:
(i) Schedule 1.1(a) may be amended to add Subsidiaries of the
Company as additional Borrowing Subsidiaries upon (A) execution and delivery by
the Borrowers, any such Borrowing Subsidiary and the Agent, of a Joinder
Agreement providing for any such Subsidiary to become a Borrowing Subsidiary,
(B) delivery to the Agent of (a) a legal opinion in respect of such additional
Borrowing Subsidiary acceptable to the Agent and (b) such other documents with
respect thereto as the Agent shall reasonably request and (c) the written
approval of the Agent in its sole discretion.
(ii) Schedule 1.1(a) will be amended to remove any Subsidiary
as a Borrowing Subsidiary upon (A) written notice by the Company to the Agent to
such effect and (B) repayment in full of all outstanding Loans of such Borrowing
Subsidiary.
(b) Any such amendment, waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given.
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(c) Notwithstanding anything herein to the contrary, no Defaulting
Lender shall be entitled to vote (whether to consent or to withhold its consent)
with respect to any amendment, modification, termination or waiver of any
provision of this Agreement or any departure therefrom or any direction from the
Lenders to the Agent, and, for purposes of determining the Required Lenders at
any time, the Commitments and the Advances of each Defaulting Lenders shall be
disregarded.
9.2. Notices.
(a) Except as otherwise provided in Section 9.2(c) hereof, all
notices and other communications hereunder shall be in writing and shall be
delivered or sent to the Borrowers, the Agent and the Lenders at the respective
addresses and numbers for notices set forth on the signature pages hereof, or to
such other address as may be designated by any Borrower, the Agent or any Lender
by notice to the other parties hereto. All notices and other communications
shall be deemed to have been given at the time of actual delivery thereof to
such address, or if sent by certified or registered mail, postage prepaid, to
such address, on the third day after the date of mailing, or in the case of
telex notice, upon receipt of the appropriate answerback, or, in the case of
facsimile notice, upon receipt of a confirmation mechanically produced by the
facsimile machine, provided, however, that notices to the Agent shall not be
effective until received.
(b) Notices by the Borrowers to the Agent with respect to
terminations or reductions of the Commitments pursuant to Section 2.2, requests
for Advances pursuant to Section 2.4, requests for continuations or conversions
of Loans pursuant to Section 2.7 and notices of prepayment pursuant to Section
3.1 shall be irrevocable and binding on the Borrowers.
(c) Any notice to be given by the Borrowers to the Agent pursuant
to Sections 2.4, 2.7 or 3.1 and any notice to be given by the Agent or any
Lender hereunder, may be given by telephone, and all such notices given by the
Borrowers must be immediately confirmed in writing in the manner provided in
Section 9.2(a). Any such notice given by telephone shall be deemed effective
upon receipt thereof by the party to whom such notice is to be given.
9.3. No Waiver By Conduct; Remedies Cumulative. No course of dealing on
the part of the Agent or any Lender, nor any delay or failure on the part of the
Agent or any Lender in exercising any right, power or privilege hereunder shall
operate as a waiver of such right, power or privilege or otherwise prejudice the
Agent's or such Lender's rights and remedies hereunder; nor shall any single or
partial exercise thereof preclude any further exercise thereof or the exercise
of any other right, power or privilege. No right or remedy conferred upon or
reserved to the Agent or any Lender under any Loan Document is intended to be
exclusive of any other right or remedy, and every right and remedy shall be
cumulative and in addition to every other right or remedy granted thereunder or
now or hereafter existing under any applicable law. Every right and remedy
granted by any Loan Document or by applicable law to the Agent or any Lender may
be exercised from time to time and as often as may be deemed expedient by the
Agent or any Lender.
9.4. Reliance on and Survival of Various Provisions. All terms,
covenants, agreements, representations and warranties of any Borrower and any
Guarantor made herein or in any other Loan Document or in any certificate,
report, financial statement or other document furnished by or on behalf of any
Borrower and any Guarantor in connection with the negotiation and modification
of this Agreement shall be deemed to have been relied upon by the Lenders,
notwithstanding any investigation heretofore or hereafter made by any Lender or
on such Lender's behalf, and those covenants and agreements of the Borrowers set
forth in Section 3.9, 3.11 and 9.5 hereof shall survive the repayment in full of
the Advances and the termination of the Commitments.
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9.5. Expenses; Indemnification.
(a) The Company agrees to pay, or reimburse the Agent or the
Lenders, as the case may be, for the payment of, on demand, (i) the reasonable
fees and expenses of counsel to the Agent, including without limitation the fees
and expenses of Dickinson Wright PLLC and any other counsel retained by the
Agent in connection with the preparation, execution, delivery and administration
of the Loan Documents and the consummation of the transactions contemplated
hereby, and in connection with advising the Agent as to its rights and
responsibilities with respect thereto, and in connection with any amendments,
waivers or consents in connection therewith or in connection with any
refinancing or restructuring of the credit arrangements provided under this
Agreement, (ii) all stamp and other taxes and fees payable or determined to be
payable in connection with the execution, delivery, filing or recording of the
Loan Documents and the consummation of the transactions contemplated hereby, and
any and all liabilities with respect to or resulting from any delay in paying or
omitting to pay such taxes or fees, (iii) if an Event of Default occurs, all
reasonable costs and expenses of the Agent and each Lender (including reasonable
fees and expenses of counsel and whether incurred through negotiations, legal
proceedings or otherwise) in connection with such Event of Default and
collection, bankruptcy, insolvency and other enforcement proceedings resulting
therefrom and (iv) all reasonable costs and expenses of the Agent (including
reasonable fees and expenses of counsel) in connection with any action or
proceeding relating to a court order, injunction or other process or decree
restraining or seeking to restrain the Agent from paying any amount under, or
otherwise relating in any way to, any Letter of Credit and any and all costs and
expenses which any of them may incur relative to any payment under any Letter of
Credit.
(b) The Company agrees to indemnify each Lender, the Agent and
each of their respective officers, directors, employees and agents
(collectively, the "Indemnified Parties") and hold each Indemnified Party
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the reasonable fees and
disbursements of counsel, which may be incurred by any Indemnified Party in
connection with any investigative, administrative or judicial proceeding
(whether or not such Indemnified Party shall be designated a party thereto)
(collectively, the "Indemnified Liabilities") at any time relating to (whether
before or after the execution of this Agreement) any of the following:
(i) any actual or proposed use of the Advances hereunder by
the Company or any of its Subsidiaries or Unrestricted Subsidiaries or any
transaction financed or to be financed in whole or in part, directly or
indirectly, with the proceeds of any Advance;
(ii) the entering into and performance of this Agreement and
any other Loan Document by any of the Indemnified Parties (including any action
brought by or on behalf of any Borrower as the result of any determination by
any Lender not to make any Advance unless such Advance was required to be made
under this Agreement);
(iii) any investigation, litigation or proceeding related to
any acquisition or proposed acquisition by the Company or any of its
Subsidiaries of all or any portion of the stock or assets of any Person or to
the issuance of, or any other matter relating to, any Subordinated Debt, whether
or not any Indemnified Party is a party thereto;
(iv) any investigation, litigation or proceeding related to
any environmental cleanup, audit, compliance or other matter relating to any
release by the Company or any of its Subsidiaries of any Hazardous Material or
any violations of Environmental Laws; or
MSX CREDIT AGREEMENT Page 78
<PAGE> 80
(v) the presence on or under, or the escape, seepage,
leakage, spillage, discharge, emission, discharging or releases from, any real
property owned or operated by the Company or any Subsidiary thereof of any
Hazardous Material (including any losses, liabilities, damages, injuries, costs,
expenses or claims asserted or arising under any Environmental Law), regardless
of whether caused by, or within the control of, the Company or such Subsidiary,
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the activities of the Indemnified
Party on the property of the Company or any of its Subsidiaries conducted
subsequent to a foreclosure on such property by any Indemnified Party or by
reason of the relevant Indemnified Party's gross negligence or willful
misconduct or breach of this Agreement, and if and to the extent that the
foregoing undertaking may be unenforceable for any reason, the Company hereby
agrees to make the maximum contribution to the payment and satisfaction of each
of the Indemnified Liabilities which is permissible under applicable law. The
Company shall be obligated to indemnify the Indemnified Parties for all
Indemnified Liabilities subject to and pursuant to the foregoing provisions,
regardless of whether the Company or any of its Subsidiaries had knowledge of
the facts and circumstances giving rise to such Indemnified Liability;
provided that no Indemnified Party shall have the right to be indemnified
hereunder for its own gross negligence or willful misconduct as determined by a
court of competent jurisdiction.
9.6. Successors and Assigns.
(a) This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns, provided that
no Borrower may, without the prior consent of all the Lenders, assign their
rights or obligations under any Loan Document and the Lenders shall not be
obligated to make any Advance hereunder to any entity other than a Borrower.
(b) Any Lender may sell a participation interest to any financial
institution or institutions, and such financial institution or institutions may
further sell, a participation interest (undivided or divided) in, the Advances
and such Lender's rights and benefits under the Loan Documents, and to the
extent of that participation, such participant or participants shall have the
same rights and benefits against the Borrowers under Section 6.2(c) as it or
they would have had if participation of such participant or participants were
the Lender making the Advances to the Borrowers hereunder, provided, however,
that (i) such Lender's obligations under this Agreement shall remain unmodified
and fully effective and enforceable against such Lender, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (iii) such Lender shall remain the holder of its Notes for all
purposes of this Agreement, (iv) the Borrowers, the Agent and the other Lenders
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement, (v) such Lender shall
not grant to its participant, unless such paticipant is an Affiliate of such
Lender, any rights to consent or withhold consent to any action taken by such
Lender or the Agent under this Agreement other than action requiring the consent
of all of the Lenders hereunder and (iv) such participation shall in no event be
less than $5,000,000. The Agent from time to time in its sole discretion may
appoint agents for the purpose of servicing and administering this Agreement and
the transactions contemplated hereby and enforcing or exercising any rights or
remedies of the Agent provided under the Loan Documents or otherwise. In
furtherance of such agency, the Agent may from time to time direct that the
Borrowers provide notices, reports and other documents contemplated by this
Agreement (or duplicates thereof) to such agent. The Borrowers hereby consent to
the appointment of such agent and agrees to provide all such notices, reports
and other documents and to otherwise deal with such agent acting on behalf of
the Agent in the same manner as would be required if dealing with the Agent
itself.
(c) Each Lender may, with the prior written consent of the
Company, which consent from the Company shall not be unreasonably withheld or
delayed and shall not be required if any Event of
MSX CREDIT AGREEMENT Page 79
<PAGE> 81
Default has occurred and is continuing or if such assignment is to an Affiliate
of a Lender, another Lender or a Related Fund of a Term Loan B Lender, and the
prior written consent of the Agent, which consent from the Agent shall not be
required if such assignment is to an Affiliate of a Lender, another Lender or a
Related Fund of a Term Loan B Lender, assign to one or more banks or other
entities all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment, the Advances
owing to it and the Note or Notes held by it); provided, however, that (i) each
such assignment shall be of a uniform, and not a varying, percentage of all
rights and obligations, (ii) except in the case of an assignment of all of a
Lender's rights and obligations under this Agreement, (A) other than assignments
among the Lenders, the amount of the Commitments of the assigning Lender being
assigned pursuant to each such assignment (determined as of the date of the
Assignment and Acceptance with respect to such assignment) shall in no event be
less than $2,500,000, and in integral multiples of $1,000,000 thereafter, or
such lesser amount as to which the Company and the Agent may consent, and (B)
after giving effect to each such assignment, the amount of the Commitments of
the assigning Lender shall in no event be less than $2,500,000 or such lesser
amount as to which the Company and the Agent may consent, provided that any two
or more investment funds that invest in commercial loans and that are managed or
advised by the same investment advisor or by an Affiliate of such investment
advisor shall be treated as a single assignee for purposes of the minimum
amounts required under the foregoing clauses (A) and (B), subject to any
assignment to any fund being at least $1,000,000, and (iii) the parties to each
such assignment shall execute and deliver to the Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance in the form of Exhibit L
hereto (an "Assignment and Acceptance"), together with any Note or Notes subject
to such assignment and a processing and recordation fee of $3,500. Upon such
execution, delivery, acceptance and recording, from and after the effective date
specified in such Assignment and Acceptance, (x) the assignee thereunder shall
be a party hereto and, to the extent that rights and obligations hereunder have
been assigned to it pursuant to such Assignment and Acceptance, have the rights
and obligations of a Lender hereunder and (y) the Lender assignor thereunder
shall, to the extent that rights and obligations hereunder have been assigned by
it pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all of the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto).
(d) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the Company
or any of its Subsidiaries or the performance or observance by any Borrower or
Guarantor of any of their obligations under any Loan Document; (iii) such
assignee confirms that it has received a copy of this Agreement, together with
copies of the financial statements referred to in Section 4.6 and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (iv) such
assignee will, independently and without reliance under the Agent, such
assigning Lender or any other Lender and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement; (v) such assignee
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers and discretion under this Agreement as are delegated to
the Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto; and (vi) such assignee agrees that it will
perform in accordance with their terms all of the obligations that by the terms
of this Agreement are required to be performed by it as a Lender.
MSX CREDIT AGREEMENT Page 80
<PAGE> 82
(e) The Agent shall maintain at its address designated on the
signature pages hereof a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and addresses of
the Lenders and the Commitments of, and principal amount of the Advances owing
to, each Lender from time to time (the "Register"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error, and the
Borrowers, the Agent and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Agreement. 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.
(f) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee, together with any Note or Notes subject
to such assignment, the Agent shall, if such Assignment and Acceptance has been
completed, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Company. Within five Business Days after its receipt of such
notice, each Borrower, at its own expense, shall execute and deliver to the
Agent in exchange for the surrendered Note or Notes a new Note or Notes to the
order of such assignee in an amount equal to the Commitments assumed by it
pursuant to such Assignment and Acceptance and, if the assigning Lender has
retained a Commitment hereunder, a new Note to the order of the assigning Lender
in an amount equal to the Commitments retained by it hereunder. Such new Note or
Notes shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered Note or Notes, shall be dated the effective date of
such Assignment and Acceptance and shall otherwise be in substantially the form
of Exhibit L hereto.
(g) The Lenders may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.6, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Company or any of its Subsidiaries,
provided that assignee or participant agrees to the confidentiality provisions
contained in Section 9.19.
(h) Notwithstanding any other provision set forth in this
Agreement, (i) any Lender may at any time create a security interest in, or
assign, all or any portion of its rights under this Agreement (including,
without limitation, the Loans owing to it and the Note or Notes held by it) in
favor of any Federal Reserve Lender in accordance with Regulation A of the Board
of Governors of the Federal Reserve System, provided that such creation of a
security interest or assignment shall not release such Lender from its
obligations under this Agreement and (ii) any Lender which is a fund or
commingled investment vehicle that invests in commercial loans in the ordinary
course of its business may at any time, without the consent of the Company or
the Agent, pledge or assign all or any part of its rights under this Agreement
to a trustee or other representative of holders of obligations owed or
securities issued by such Lender as collateral to secure such obligations or
securities, provided, however, that no such assignment shall release such Lender
from its obligations under this Agreement.
9.7. Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
9.8. Governing Law. This Agreement is a contract made under, and shall
be governed by and construed in accordance with, the law of the State of
Michigan in the same manner applicable to contracts made and to be performed
entirely within such State and without giving effect to choice of law principles
of such State. Each Borrower further agrees that any legal action or proceeding
with respect to any Loan Document or the transactions contemplated hereby may be
brought in any court of the State of Michigan, or in any court of the United
States of America sitting in Michigan, and each Borrower hereby submits to
MSX CREDIT AGREEMENT PAGE 81
<PAGE> 83
and accepts generally and unconditionally the jurisdiction of those courts with
respect to its Person and property and irrevocably consents to the service of
process in connection with any such action or proceeding by personal delivery to
the Company or by the mailing thereof by registered or certified mail, postage
prepaid to the Company at its address set forth on the signature pages hereof or
as provided pursuant to Section 9.2. Nothing in this paragraph shall affect the
right of the Lenders and the Agent to serve process in any other manner
permitted by law or limit the right of the Lenders or the Agent to bring any
such action or proceeding against any Borrower or property in the courts of any
other jurisdiction. Each Borrower hereby irrevocably waives any objection to the
laying of venue of any such suit or proceeding in the above described courts.
9.9. Table of Contents and Headings. The table of contents and the
headings of the various subdivisions hereof are for the convenience of reference
only and shall in no way modify any of the terms or provisions hereof.
9.10. Construction of Certain Provisions. If any provision of this
Agreement refers to any action to be taken by any Person, or which such Person
is prohibited from taking, such provision shall be applicable whether such
action is taken directly or indirectly by such Person, whether or not expressly
specified in such provision.
9.11. Integration and Severability. This Agreement embodies the entire
agreement and understanding between the Borrowers and the Agent and the Lenders,
and supersedes all prior agreements and understandings, relating to the subject
matter hereof. In case any one or more of the obligations of any Borrower under
any Loan Document shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
obligations of such Borrower shall not in any way be affected or impaired
thereby, and such invalidity, illegality or unenforceability in one jurisdiction
shall not affect the validity, legality or enforceability of the obligations of
any Borrower under any Loan Document in any other jurisdiction.
9.12. Independence of Covenants. All covenants hereunder shall be given
independent effect so that if a particular action or condition is not permitted
by any such covenant, the fact that it would be permitted by an exception to, or
would be otherwise within the limitations of, another covenant shall not avoid
the occurrence of an Unmatured Event or an Event of Default or any event or
condition which with notice or lapse of time, or both, could become such an
Unmatured Event or an Event of Default if such action is taken or such condition
exists.
9.13. Interest Rate Limitation. Notwithstanding any provision of any
Loan Document, in no event shall the amount of interest paid or agreed to be
paid by the Borrowers exceed an amount computed at the highest rate of interest
permissible under applicable law. If, from any circumstances whatsoever,
fulfillment of any provision of any Loan Document at the time performance of
such provision shall be due, shall involve exceeding the interest rate
limitation validly prescribed by law which a court of competent jurisdiction may
deem applicable hereto, then, ipso facto, the obligations to be fulfilled shall
be reduced to an amount computed at the highest rate of interest permissible
under applicable law, and if for any reason whatsoever the Lender shall ever
receive as interest an amount which would be deemed unlawful under such
applicable law such interest shall be automatically applied to the payment of
principal of the Advances outstanding hereunder (whether or not then due and
payable) and not to the payment of interest, or shall be refunded to the
Borrowers if such principal and all other obligations of the Borrowers to the
Lenders have been paid in full.
9.14. Judgment and Payment.
MSX CREDIT AGREEMENT PAGE 82
<PAGE> 84
(a) If, for the purpose of obtaining judgment in any court, it
is necessary to convert a sum owing hereunder by any Borrower in one currency
into another currency, each Borrower agrees, to the fullest extent that it may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures in the relevant jurisdiction the
relevant Lender could purchase the first currency with such other currency for
the first currency on the Business Day immediately preceding the day on which
the final judgment is given.
(b) The obligations of any Borrower in respect of any sum due
in Dollars to any party hereto or any holder of the obligations owing hereunder
(the "Applicable Creditor") shall, notwithstanding any payment obligation or
judgment in a currency (the "Payment Currency") other than Dollars, be
discharged only to the extent that, on the Business Day following receipt by the
Applicable Creditor of any sum adjudged to be so due in the Payment Currency,
the Applicable Creditor may in accordance with normal banking procedures in the
relevant jurisdiction purchase Dollars with the Payment Currency; if the amount
of Dollars so purchased is less than the sum originally due to the Applicable
Creditor in Dollars, such Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Applicable Creditor against
such loss. The obligations of the Borrowers contained in this Section 9.14 shall
survive the termination of this Agreement and the payment of all other amounts
owing hereunder.
9.15. Acknowledgments. 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 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 Agent 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.
9.16. Borrowing Subsidiary Payments. Notwithstanding any other
provision in this Agreement to the contrary and without limiting any Borrowing
Subsidiary's obligations under its Guaranty, other Security Documents or
otherwise other than under this Agreement, no Borrowing Subsidiary shall be
liable for any payment obligation hereunder except as such payment obligation
arises out of the Loans and Advances of such Borrowing Subsidiary.
9.17. Confidentiality. Each Lender and the Agent agree to keep any
information delivered or made available by the Borrowers or the Guarantors to it
confidential from anyone other than persons employed or retained by such Lender
who are expected to become engaged in evaluating, approving, structuring or
administering the Loans; provided that nothing herein shall prevent any Lender
from disclosing such information (a) to any other Lender or to the Agent, (b) to
any other person if reasonably incidental to the administration of the Loans,
(c) upon the order of any court or administrative agency or otherwise required
by law, (d) upon the request or demand of any regulatory agency or authority,
(e) which had been publicly disclosed other than as a result of a disclosure by
the Agent or any Lender prohibited by this Agreement, (f) in connection with any
litigation to which the Agent, any Lender or its subsidiaries or parent
corporation may be a party, (g) to the extent necessary in connection with the
exercise of any remedy hereunder, (h) to such Lender's or Agent's legal counsel
and independent auditors and (i) subject to a confidentiality agreement
containing provisions substantially similar to those contained in this Section
MSX CREDIT AGREEMENT PAGE 83
<PAGE> 85
made for the benefit of the Borrowers by such actual or proposed participation
in or assignee of any lender Indebtedness, to any actual or proposed participate
or assignee of any Lender Indebtedness.
9.18. WAIVER OF JURY TRIAL. THE LENDERS AND THE AGENT AND THE
BORROWERS, AFTER CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH
COUNSEL, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT ANY OF THEM
MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION BASED UPON OR ARISING OUT OF ANY
LOAN DOCUMENT OR ANY RELATED INSTRUMENT OR AGREEMENT OR ANY OF THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT OR ANY COURSE OF CONDUCT, DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF EITHER OF THEM. NEITHER ANY LENDER, THE
AGENT NOR ANY BORROWER SHALL SEEK TO CONSOLIDATE, BY COUNTERCLAIM OR OTHERWISE,
ANY SUCH ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN
WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. THESE PROVISIONS SHALL NOT
BE DEEMED TO HAVE BEEN MODIFIED IN ANY RESPECT OR RELINQUISHED BY ANY PARTY
HERETO EXCEPT BY A WRITTEN INSTRUMENT EXECUTED BY SUCH PARTY.
MSX CREDIT AGREEMENT PAGE 84
<PAGE> 86
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
Address for Notices: MSX INTERNATIONAL, INC.
275 Rex Boulevard
Auburn Hills, Michigan 48326
Attention: Chief Financial Officer
Facsimile No.: (248) 299-1013 By: /s/Frederick K. Minturn
-------------------------------
Its: Vice President
---------------------------
275 Rex Boulevard MSX INTERNATIONAL TECHNOLOGY
Auburn Hills,Michigan 48326 SERVICES, INC.
Attention: Chief Financial Officer
Facsimile No.:(248) 299-1013 By: /s/Frederick K. Minturn
------------------------------
Its: Vice President
----------------------------
275 Rex Boulevard MSX INTERNATIONAL (USA), INC.
Auburn Hills, Michigan 48326
Attention: Chief Financial Officer
Facsimile No.: (248) 299-1013 By: /s/Frederick K. Minturn
-------------------------------
Its: Vice President
---------------------------
275 Rex Boulevard MSX INTERNATIONAL BUSINESS SERVICES,
Auburn Hills, Michigan 48326 INC.
Attention: Chief Financial Officer
Facsimile No. (248) 299-1013 By: /s/Frederick K. Minturn
-------------------------------
Its: Vice President
---------------------------
275 Rex Boulevard MSX INTERNATIONAL ENGINEERING
Auburn Hills, Michigan 48326 SERVICES, INC.
Attention: Chief Financial Officer
Facsimile No.: (248) 299-1013 By: /s/Frederick K. Minturn
-------------------------------
Its: Vice President
---------------------------
275 Rex Boulevard MSX INTERNATIONAL, LIMITED
Auburn Hills, Michigan 48326
Attention: Chief Financial Officer
Facsimile No. (248) 299-1013 By: /s/Frederick K. Minturn
-------------------------------
Its: Director
---------------------------
275 Rex Boulevard MSX INTERNATIONAL HOLDINGS, LIMITED
Auburn Hills, Michigan 48326
Attention: Chief Financial Officer
Facsimile No. (248) 299-1013 By: /s/Frederick K. Minturn
-------------------------------
Its: Director
---------------------------
MSX CREDIT AGREEMENT PAGE 85
<PAGE> 87
MSX CREDIT AGREEMENT PAGE 86
<PAGE> 88
Main Chicago Office BANK ONE, NA, as Agent and as a Lender
c/o Bank One, Michigan (Main Chicago Office)
611 Woodward Avenue
Detroit, Michigan 48226
Attention: Automotive Group
Facsimile No.: (313) 225-2290
Revolving Credit Commitment: $41,153,845
Term Loan A Commitment: $12,346,155
Term Loan B Commitment: $27,500,000 By: /s/Richard H. Huttenlocher
---------------------------------
Title: Senior Vice President
---------------------------
MSX CREDIT AGREEMENT PAGE 87
<PAGE> 89
Main Office COMERICA BANK
500 Woodward Avenue
Detroit, Michigan 48226
Attention: Nick Mester
Facsimile No.: (313) 222-3776
Revolving Credit Commitment: $11,538,462
Term Loan A Commitment: $3,461,538
Term Loan B Commitment: $5,000,000 By: /s/Nicholas G. Mester
------------------------------
Title:
-------------------------
MSX CREDIT AGREEMENT PAGE 88
<PAGE> 90
Main Office DRESDNER BANK AG, NEW YORK
190 S. LaSalle Street, Suite 2700 AND GRAND CAYMAN BRANCHES
Chicago, Illinois 60603
Attention: Tom Hasenauer
Facsimile No.: (312) 444-1305
Revolving Credit Commitment: $11,538,462
Term Loan A Commitment: $3,461,538
Term Loan B Commitment: $0 By:/s/John W. Sweeney, John R. Morrison
------------------------------------
Title: Vice President
------------------------------
By: /s/John R. Morrison
------------------------------------
Title: Vice President
------------------------------
MSX CREDIT AGREEMENT PAGE 89
<PAGE> 91
THE FUJI BANK, LIMITED
225 W. Wacker Drive, Suite 2000
Chicago, Illinois 60606
Attention: James Fayen
Facsimile No.: (312) 621-0539
Revolving Credit Commitment: $0
Term Loan A Commitment: $0
Term Loan B Commitment: $5,000,000 By: /s/Petre L. Chinnici
---------------------------------
Title: Senior Vice President &
Group Head
---------------------------
MSX CREDIT AGREEMENT PAGE 90
<PAGE> 92
HUNTINGTON NATIONAL BANK
Huntington Center
Columbus, Ohio 43287
Attention: Craig Brzezinski
Facsimile No.: (614) 480-4814
Revolving Credit Commitment: $15,384,615
Term Loan A Commitment: $4,615,385
Term Loan B Commitment: $0 By: /s/Craig Brzezinski
------------------------------
Title: Vice President
-------------------------
MSX CREDIT AGREEMENT PAGE 91
<PAGE> 93
NATIONAL BANK OF CANADA
27777 Franklin Road, Suite 1570
Southfield, Michigan 48034
Attention: Kevin Finn
Facsimile No.: (248) 354-1768
Revolving Credit Commitment: $5,000,000
Term Loan A Commitment: $1,500,000
Term Loan B Commitment: $2,500,000 By:/s/R. Kevin Finn & Duane K. Bedard
----------------------------------
Title: Vice Presidents
-----------------------------
MSX CREDIT AGREEMENT PAGE 92
<PAGE> 94
NATIONAL CITY BANK
1001 South Worth, R-J40-4A
Birmingham, Michigan 48009
Attention: Ken Ehrhardt
Facsimile No.: (248) 901-2033
Revolving Credit Commitment: $3,846,154
Term Loan A Commitment: $1,153,846
Term Loan B Commitment: $5,000,000 By: /s/Kenneth R. Ehrhardt
---------------------------
Title: Vice President
---------------------
MSX CREDIT AGREEMENT PAGE 93
<PAGE> 95
STANDARD FEDERAL BANK
2600 W. Big Beaver Road
Troy, Michigan 48084
Attention: Robert Martin
Facsimile No.: (248) 637-5003
Revolving Credit Commitment: $11,538,462
Term Loan A Commitment: $3,461,538
Term Loan B Commitment: $5,000,000 By: /s/Robert Martin
---------------------------
Title: First Vice President
---------------------
MSX CREDIT AGREEMENT PAGE 94
<PAGE> 1
EXHIBIT 12.1
MSX INTERNATIONAL, INC. AND CONSOLIDATED SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(dollars in thousands)
<TABLE>
<CAPTION>
PREDECESSOR FISCAL FISCAL FISCAL
------------------------- YEAR YEAR YEAR
YEAR ENDED DECEMBER 31, ENDED ENDED ENDED
------------------------- DECEMBER 29, JANUARY 3, JANUARY 2,
1995 1996 1997 1999 2000
----------- ------- -------------- ----------------------------
<S> <C> <C> <C> <C> <C>
Earnings before income taxes and
fixed charges:
Income from continuing operations
before income taxes $ 10,240 $ 6,620 $ (2,748) $ 5,839 $ 17,189
Add interest on indebtedness, net 1,470 1,310 12,400 16,906 21,141
Add amortization of debt expense - - - 510 695
Add estimated interest factor
for rentals 2,733 1,800 5,867 7,442 8,598
----------- ------- -------------- ----------- --------
Earnings before income taxes and
fixed charges $ 14,443 $ 9,730 $ 15,519 $ 30,697 47,623
=========== ======= ============== =========== ========
Fixed charges:
Interest on indebtedness $ 1,470 $ 1,310 $ 12,400 $ 16,906 $ 21,141
Amortization of debt expense - - 510 695
Estimated interest factor for rentals 2,733 1,800 5,867 7,442 8,598
----------- ------- -------------- ----------- --------
$ 4,203 $ 3,110 $ 18,267 $ 24,858 $ 30,434
=========== ======= ============== =========== ========
Ratio of earnings to fixed charges 3.4 3.1 (a) 1.2 1.6
</TABLE>
(a) Earnings were insufficient to cover fixed charges by $2.7 million for the
fiscal year ended December 28, l997
<PAGE> 1
EXHIBIT 21.1
LIST OF SUBSIDIARIES
MSX International, Inc. (Delaware)
MSX International (Holdings), Inc. (Delaware)
MSX International (USA), Inc. (Delaware)
MSX International do Brasil (Brazil)
MSX International de Mexico, S.A. de C.V. (Mexico)
MSX International Canada Limited (Canada)
MSX International Australia Pty United (Australia)
MSX International Business Services, Inc. (Delaware)
Creative Technology Services, L.L.C. (Michigan)
MSX International Engineering Services, Inc. (Delaware)
dba Lexstra International, Inc. (Delaware)
dba Lexus Temporaries, Inc. (Delaware)
dba Rice Cohen International (Delaware)
Pilot Computer Services, Inc. (California)
MegaTech Engineering, Inc. (Michigan)
MegaTech Academy, a non-profit corporation (Michigan)
Chelsea Computer Consultants, Inc. (Delaware)
Millenium Computer Systems, Inc. (Michigan)
Management Resources International, Inc. (Michigan)
MSX International Technology Services, Inc. (Delaware)
MSX International Dealer Net Services, Inc. (Delaware)
MSX International Dealer Net
Services, B.V. (Netherlands)
MSX International Holdings, Ltd. (UK)
MSX International Holdings GmbH (Germany)
MSX International GmbH (Germany)
MSX International TechServices, S.A.(Spain)
MSX International, Ltd. (UK)
Gold Arrow Contract Services Ltd. (UK)
Canewdon, Ltd. (UK)
Canewdon Consultants Limited (UK)
MSX International SARL (France)
MSX International Holdings Italia S.r.l. (Italy)
Satiz S.r.l. (Italy)
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE MSX
INTERNATIONAL, INC FORM 10-K FOR THE FISCAL YEAR ENDED JANUARY 2, 2000 AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> JAN-02-2000
<PERIOD-END> JAN-02-2000
<CASH> 6,879
<SECURITIES> 0
<RECEIVABLES> 305,473
<ALLOWANCES> (2,031)
<INVENTORY> 4,133
<CURRENT-ASSETS> 328,917
<PP&E> 99,166
<DEPRECIATION> (55,056)
<TOTAL-ASSETS> 524,190
<CURRENT-LIABILITIES> 264,652
<BONDS> 232,556
36,000
0
<COMMON> 1
<OTHER-SE> (20,580)
<TOTAL-LIABILITY-AND-EQUITY> 524,190
<SALES> 759,842
<TOTAL-REVENUES> 759,842
<CGS> 653,542
<TOTAL-COSTS> 653,542
<OTHER-EXPENSES> 67,970
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 21,141
<INCOME-PRETAX> 17,189
<INCOME-TAX> 6,995
<INCOME-CONTINUING> 10,194
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 10,194
<EPS-BASIC> 0
<EPS-DILUTED> 0
</TABLE>
