SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
___________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
January 20, 1998
Date of report (Date of earliest event reported)
MASCOTECH, INC.
(Exact Name of Registrant as Specified in Charter)
Delaware 1-12068 38-251395
(State or Other Jurisdiction (Commission File Number) (IRS Employer
of Incorporation) Identification No.)
21001 Van Born Road, Taylor, Michigan 48180
(Address of Principal Executive Offices) (Zip Code)
(313) 274-7405
(Registrant's telephone number, including area code)
<PAGE>
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
On January 20, 1998, MascoTech, Inc. ("MascoTech") accepted for payment
all shares of TriMas Corporation ("TriMas") tendered pursuant to its previously
announced tender offer. Under the terms of the offer, MascoTech, through its
wholly-owned subsidiary, MascoTech Acquisition, Inc. ("Merger Sub"), paid $34.50
net per share of TriMas common stock tendered. Approximately 24.7 million
shares were tendered, which with the shares that could not be tendered due to
restrictions under the TriMas stock plans and the 15.2 million shares previously
owned by MascoTech, represent approximately 99% of the outstanding shares of
TriMas common stock. The press release issued January 19, 1998 by MascoTech is
included herewith as Exhibit 99.
The value of the transaction is approximately $900 million. MascoTech
borrowed funds under a credit agreement with The First National Bank of Chicago,
as Administrative Agent, and Bank of America NT&SA and NationsBank, N.A., as
Syndication Agents. The consideration was determined after arms-length
negotiations between Special Committees of independent directors of MascoTech
and TriMas, and with the assistance of third party financial advisers.
As of a result of a merger on January 22, 1998 of Merger Sub into TriMas,
TriMas became a wholly-owned subsidiary of MascoTech.
TriMas is a diversified proprietary products company with leadership
product positions in commercial, industrial and consumer niche markets.
MascoTech intends to continue the business conducted by TriMas.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(a) As of the date hereof, it is impracticable to provide the required
financial information for TriMas. MascoTech intends to file such required
financial information as soon as it becomes available, but in no event later
than April 6, 1998.
(b) As of the date hereof, pro forma financial information required
pursuant to Article 11 of Regulation S-X is unavailable. MascoTech intends to
file the required pro forma financial information as soon as it becomes
available, but in no event later than April 6, 1998.
(c) Exhibits. The following exhibits are filed herewith:
2 Agreement and Plan of Merger dated as of December 10, 1997 as
amended by Amendment No. 1 dated December 15, 1997 among TriMas
Corporation, MascoTech, Inc. and MascoTech Acquisition, Inc. (1),
and as amended by Amendment No. 2 dated as of January 13, 1998
(2).
2
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4 $1,300,000,000 Credit Agreement dated as of January 16, 1998
among MascoTech, Inc., MascoTech Acquisition, Inc., the banks
party thereto from time to time, The First National Bank of
Chicago, as Administrative Agent, Bank of America NT&SA and
NationsBank, N.A., as Syndication Agents.
99 Press Release dated January 19, 1998 (3).
_______________________
(1) Incorporated by reference to the Exhibits filed with MascoTech's Schedule
14D-1 dated December 17, 1997.
(2) Incorporated by reference to the Exhibits filed with MascoTech's Amendment
No. 4 to Schedule 14D-1 dated January 14, 1998.
(3) Incorporated by reference to the Exhibits filed with MascoTech's Final
Amendment to Schedule 14D-1 dated January 20, 1998.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, hereunto duly authorized.
MASCOTECH, INC.
By: /s/Timothy Wadhams
Timothy Wadhams
Vice President/Controller and
Treasurer
Date: January 30, 1998
<PAGE>
EXHIBIT INDEX
2 Agreement and Plan of Merger dated as of December 10, 1997 as
amended by Amendment No. 1 dated December 15, 1997 among TriMas
Corporation, MascoTech, Inc. and MascoTech Acquisition, Inc. (1),
and as amended by Amendment No. 2 dated as of January 13, 1998 (2).
4 $1,300,000,000 Credit Agreement dated as of January 16, 1998 among
MascoTech, Inc., MascoTech Acquisition, Inc., the banks party
thereto from time to time, The First National Bank of Chicago, as
Administrative Agent, Bank of America NT&SA and NationsBank, N.A.,
as Syndication Agents.
99 Press Release dated January 19, 1998 (3).
_______________________
(1) Incorporated by reference to the Exhibits filed with MascoTech's Schedule
14D-1 dated December 17, 1997.
(2) Incorporated by reference to the Exhibits filed with MascoTech's Amendment
No. 4 to Schedule 14D-1 dated January 14, 1998.
(3) Incorporated by reference to the Exhibits filed with MascoTech's Final
Amendment to Schedule 14D-1 dated January 20, 1998.
MASCOTECH, INC.,
MASCOTECH ACQUISITION, INC.,
and
THE BORROWING SUBSIDIARIES,
as Borrowers
________________________________________________
$1,300,000,000
CREDIT AGREEMENT
dated as of January 16, 1998
______________________________________________
THE FIRST NATIONAL BANK OF CHICAGO
as Administrative Agent
BANK OF AMERICA NT&SA
and
NATIONSBANK, N.A.
as Syndication Agents
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TABLE OF CONTENTS
ARTICLE I.
DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . 2
1.1 Certain Definitions. . . . . . . . . . . . . . . . . . 2
1.2 Accounting Terms . . . . . . . . . . . . . . . . . . . 23
1.3 Other Definitions; Rules of Construction . . . . . . . 24
ARTICLE II. . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
TERMINATION OF EXISTING CREDIT AGREEMENT . . . . . . . 24
ARTICLE III.
THE LOANS AND LETTER OF CREDIT ISSUANCES . . . . . . . 24
3.1 Revolving Loans . . . . . . . . . . . . . . . . . . . 24
3.2 Term Loans . . . . . . . . . . . . . . . . . . . . . . 25
3.3 Letters of Credit. . . . . . . . . . . . . . . . . . . 25
3.4 Bid-Option Borrowings. . . . . . . . . . . . . . . . . 29
3.5 Swing Line Loans . . . . . . . . . . . . . . . . . . . 34
3.6 Alternate Currency Syndicated Loans. . . . . . . . . . 35
3.7 Notice to Banks; Funding of Loans. . . . . . . . . . . 37
3.8 The Notes. . . . . . . . . . . . . . . . . . . . . . . 40
3.9 Certain Fees . . . . . . . . . . . . . . . . . . . . . 40
3.10 Optional Termination or Reduction of Commitments . . . 41
3.11 Mandatory Termination of Commitments . . . . . . . . . 41
3.12 Borrowing Subsidiaries . . . . . . . . . . . . . 42
ARTICLE IV.
PRINCIPAL PAYMENTS; INTEREST; ETC. . . . . . . . . . . 42
4.1 Scheduled Principal Payments . . . . . . . . . . . . . 42
4.2 Prepayments of Principal . . . . . . . . . . . . . . . 43
4.3 Interest Payments . . . . . . . . . . . . . . . . . . 45
4.4 Payment Procedures . . . . . . . . . . . . . . . . . . 46
4.5 Computation of Interest and Fees . . . . . . . . . . . 48
4.6 No Setoff or Deduction . . . . . . . . . . . . . . . . 48
4.7 Types for all Loans. . . . . . . . . . . . . . . . . . 48
4.8 Method of Selecting Types and Interest Periods for
Conversion and Continuation of Loans . . . . . . . . . 49
(A) Right to Convert. . . . . . . . . . . . . . . . . 49
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(B) Automatic Conversion and Continuation . . . . . . 49
(C) No Conversion After Default . . . . . . . . . . . 49
(D) Conversion/Continuation Notice. . . . . . . . . . 49
4.9 Other Provisions Applicable to Alternate Currency Loans49
ARTICLE V.
CHANGE IN CIRCUMSTANCES. . . . . . . . . . . . . . . . 50
5.1 Impossibility; Interest Rate Inadequate or Unfair. . . 50
5.2 Illegality . . . . . . . . . . . . . . . . . . . . . . 50
5.3 Increased Cost; Yield Protection . . . . . . . . . . . 51
5.4 Substitute Loans . . . . . . . . . . . . . . . . . . . 54
5.5 Funding Losses . . . . . . . . . . . . . . . . . . . . 54
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . 55
6.1 Corporate Existence and Power. . . . . . . . . . . . . 55
6.2 Corporate Authority; No Violations; Governmental
Filings; Etc . . . . . . . . . . . . . . . . . . . . . 55
6.3 Binding Effect . . . . . . . . . . . . . . . . . . . . 56
6.4 Litigation . . . . . . . . . . . . . . . . . . . . . . 56
6.5 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . 56
6.6 Financial Condition. . . . . . . . . . . . . . . . . . 56
6.7 Compliance with ERISA. . . . . . . . . . . . . . . . . 56
6.8 Environmental Matters. . . . . . . . . . . . . . . . . 57
6.9 Compliance with Laws . . . . . . . . . . . . . . . . . 57
6.10 Subordinated Debt. . . . . . . . . . . . . . . . . . . 57
ARTICLE VII.
COVENANTS . . . . . . . . . . . . . . . . . . . . . . 58
7.1 Financial Statements . . . . . . . . . . . . . . . . . 58
7.2 Certificates of No Default and Compliance. . . . . . . 59
7.3 Preservation of Corporate Existence, Etc.. . . . . . . 60
7.4 Minimum Capitalization . . . . . . . . . . . . . . . . 60
7.5 Fixed Charge Coverage Ratio. . . . . . . . . . . . . . 60
7.6 Maximum Leverage Ratio . . . . . . . . . . . . . . . . 61
7.7 Subsidiary Indebtedness. . . . . . . . . . . . . . . . 62
7.8 Negative Pledge. . . . . . . . . . . . . . . . . . . . 62
7.9 Dispositions of Assets; Mergers and Consolidations . . 63
7.10 Changes in Subordinated Debt . . . . . . . . . . . . . 64
7.11 Use of Proceeds. . . . . . . . . . . . . . . . . . . . 64
7.12 Fiscal Year. . . . . . . . . . . . . . . . . . . . . . 64
iii
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7.13 Compliance with Laws . . . . . . . . . . . . . . . . . 64
7.14 Interest Rate Agreements . . . . . . . . . . . . . . . 65
7.15 Restricted Payments. . . . . . . . . . . . . . . . . . 65
7.16 Guaranties and Pledges . . . . . . . . . . . . . . . . 65
ARTICLE VIII.
CONDITIONS OF BORROWINGS AND LETTER OF CREDIT ISSUANCES66
8.1 Each Borrowing and Letter of Credit Issuance . . . . . 66
8.2 Initial Borrowing or Letter of Credit Issuance . . . . 67
8.3 Closing . . . . . . . . . . . . . . . . . . . . . . . 70
ARTICLE IX.
EVENTS OF DEFAULT AND REMEDIES . . . . . . . . . . . . 71
9.1 Events of Default. . . . . . . . . . . . . . . . . . . 71
9.2 Remedies . . . . . . . . . . . . . . . . . . . . . . . 74
9.3 Set Off. . . . . . . . . . . . . . . . . . . . . . . . 74
ARTICLE X.
THE AGENTS AND THE BANKS . . . . . . . . . . . . . . . 75
10.1 Appointment and Authorization. . . . . . . . . . . . . 75
10.2 Administrative Agent and Affiliates. . . . . . . . . . 75
10.3 Scope of Agent's Duties. . . . . . . . . . . . . . . . 75
10.4 Reliance by Administrative Agent . . . . . . . . . . . 75
10.5 Default. . . . . . . . . . . . . . . . . . . . . . . . 76
10.6 Liability of Administrative Agent. . . . . . . . . . . 76
10.7 Nonreliance on Administrative Agent and Other Banks. . 76
10.8 Indemnification. . . . . . . . . . . . . . . . . . . . 77
10.9 Resignation of Administrative Agent. . . . . . . . . . 77
10.10 Sharing of Payments. . . . . . . . . . . . . . . . . . 78
10.11 Withholding Tax Exemption. . . . . . . . . . . . . . . 78
10.12 The Syndication Agents and Arrangers . . . . . . . . . 79
ARTICLE XI.
MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . 79
11.1 Amendments, Etc. . . . . . . . . . . . . . . . . . . . 79
11.2 Notices. . . . . . . . . . . . . . . . . . . . . . . . 80
11.3 No Waiver By Conduct; Remedies Cumulative. . . . . . . 81
11.4 Reliance on and Survival of Various Provisions . . . . 81
iv
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11.5 Expenses and Indemnification . . . . . . . . . . . . . 81
11.6 Successors and Assigns . . . . . . . . . . . . . . . . 83
11.7 Confidentiality. . . . . . . . . . . . . . . . . . . . 86
11.8 Counterparts; Effectiveness of Telecopied Signatures . 87
11.9 Table of Contents and Headings . . . . . . . . . . . . 87
11.10 Construction of Certain Provisions . . . . . . . . . . 87
11.11 Independence of Covenants. . . . . . . . . . . . . . . 87
11.12 Interest Rate Limitation . . . . . . . . . . . . . . . 87
11.13 Substitution of Banks. . . . . . . . . . . . . . . . . 88
11.14 Governing Law. . . . . . . . . . . . . . . . . . . . . 88
11.15 Integration and Severability . . . . . . . . . . . . . 88
11.16 WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . 89
11.17 Alternate Currency Addenda Binding on Each Bank;
Provisions Regarding Alternate Currency Agents . . . . 89
11.18 Unification of Certain Currencies. . . . . . . . . . . 89
v
<PAGE>
SCHEDULES AND EXHIBITS
SCHEDULES
Schedule 1 - Applicable Margin Chart
Schedule 2 - Certain Industrial Revenue Bonds (see Section 9.1(e) of
the Credit Agreement)
EXHIBITS
Exhibit A-1 - Form of Revolving Note
Exhibit A-2 - Form of Term Note
Exhibit A-3 - Form of Alternate Currency Syndicated Note
Exhibit B-1 - Form of Bid-Option Note
Exhibit B-2 - Form of Swing Line Note
Exhibit C-1 - Notice of Syndicated Borrowing
Exhibit C-2 - Notice of Swing Line Borrowing
Exhibit D - Request for Letter of Credit Issuance
Exhibit E - Bid-Option Quote Request
Exhibit F - Invitation for Bid-Option Quotes
Exhibit G - Bid-Option Quote
Exhibit H - Notice of Disbursement of Alternate Currency Loan
Exhibit I - Notice of Receipt of Alternate Currency Loan Payment
Exhibit J - Securities Purchase Agreement
Exhibit K - Assignment and Acceptance
Exhibit L - Notice of Substitution of Bank(s)
vi
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Exhibit M - Opinion of Counsel for the Borrowers
Exhibit N - Opinion of Special New York Counsel for the Borrowers
Exhibit O - Terms of Subordination
Exhibit P-1 - Form of Alternate Currency Addendum for Pounds Sterling
Exhibit P-2 - Form of Alternate Currency Addendum for Deutsche Marks
Exhibit P-3 - Form of Alternate Currency Addendum for Italian Lire
Exhibit Q - Form of Guaranty
Exhibit R - Form of Pledge Agreement
Exhibit S - Form of Assumption Letter
Exhibit T - Conversion/Continuation Notice
vii
<PAGE>
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of January 16, 1998 (as amended,
supplemented or otherwise modified from time to time, this "Agreement"), is by
and among MASCOTECH, INC., a Delaware corporation (together with its successors,
"MascoTech"), MASCOTECH ACQUISITION, INC., a Delaware corporation (together with
its successors, "Acquisition"), any Borrowing Subsidiaries which are now or may
hereafter become a party hereto from time to time (each individually a
"Borrowing Subsidiary" and collectively, the "Borrowing Subsidiaries")
(MascoTech, Acquisition and each Borrowing Subsidiary referred to individually
as a "Borrower" and collectively as the "Borrowers"), the Banks party hereto
from time to time (collectively, the "Banks" and individually, a "Bank"), The
First National Bank of Chicago (the "Administrative Agent"), Bank of America
NT&SA and NationsBank, N.A. (the "Syndication Agents", and collectively with the
Administrative Agent, the "Agents"), and First Chicago Capital Markets, Inc.,
BancAmerica Robertson Stephens, Inc., and NationsBanc Montgomery Securities,
Inc. (each individually an "Arranger" and collectively, the "Arrangers").
RECITALS:
A. MascoTech, the Existing Banks (as hereinafter defined) and the
Existing Agent (as hereinafter defined) have entered into the Existing Credit
Agreement (as hereinafter defined), pursuant to which the Existing Banks
provided to MascoTech a revolving credit facility in the maximum aggregate
principal amount of $575,000,000 (the "Existing Bank Facility").
B. The Borrowers now desire to replace the Existing Bank Facility under
the Existing Credit Agreement with a new facility evidenced by this Agreement
which shall include a revolving credit facility in an aggregate principal amount
the Dollar Equivalent (as hereinafter defined) of which does not exceed
$800,000,000 and a term loan facility in an aggregate principal amount the
Dollar Equivalent of which does not exceed $500,000,000 to provide funds (i) to
refinance the Existing Bank Facility, (ii) to finance the purchase of capital
stock of TriMas Corporation, a Delaware corporation (the "Target"), acquired
pursuant to a tender offer by Acquisition announced December 11, 1997 (the
"Tender Offer"), (iii) to finance the merger of the Target with Acquisition (the
"Merger") and (iv) to refinance the current credit facilities of the Target.
C. The Banks are willing to provide such a replacement credit facility
on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
promises contained herein, the parties hereto agree as follows:
<PAGE>
ARTICLE I.
DEFINITIONS
1.1 Certain Definitions. As used in this Agreement, and in any
certificate, report, other agreement or other document made or delivered
pursuant to this Agreement, the following terms shall have the following
respective meanings (such meanings to be equally applicable to both the singular
and plural forms of the terms defined unless the context otherwise requires):
"Absolute Rate Dollar Bid-Option Borrowing" means any Borrowing consisting
of an Absolute Rate Dollar Bid-Option Loan.
"Absolute Rate Dollar Bid-Option Loan" means a Loan which pursuant to the
applicable Notice of Borrowing is made at the Bid-Option Absolute Rate.
"Acquired Debt" means, with respect to any Person who becomes a Subsidiary
after the Closing Date, Debt of such Person which was outstanding before such
Person became a Subsidiary and which was not created in contemplation of such
Person becoming a Subsidiary.
"Additional Bank" shall have the meaning ascribed thereto in Section
11.13(b).
"Adjusted Net Worth" means, as of any date, the sum of (a) Net Worth, plus
(b) the amount of all Subordinated Debt which by its terms matures at least
thirty days after the then existing Scheduled Expiration Date, plus (c), at any
time prior to March 31, 2002, the Available Masco Corporation Funding
Commitment, plus (d) (without duplication) the principal amount of any trust
convertible debt securities or similar securities issued by MascoTech.
"Affiliate", when used with respect to any Person, means any other Person
which, directly or indirectly, controls or is controlled by or is under common
control with such Person. For purposes of this definition, "control"
(including the correlative meanings of the terms "controlled by" and "under
common control with"), with respect to any Person, shall mean possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting
securities or by contract or otherwise.
"Alternate Currency" means (i) so long as such currencies remain Eligible
Currencies, Pounds Sterling, Deutsche Marks and Italian Lire, (ii) any other
Eligible Currency which MascoTech requests the Administrative Agent to include
as an Alternate Currency hereunder and which is acceptable to one-hundred
percent (100%) of the applicable Alternate Currency Banks and with respect to
which an Alternate Currency Addendum has been executed among MascoTech, one or
more Alternate Currency Banks and an Alternate Currency Agent in connection
therewith; and, (iii) in the case of Alternate Currency Bid-Option Loans, any
currency acceptable to the applicable Bank.
2
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"Alternate Currency Addendum" means an addendum (i) substantially in the
form of Exhibit P-1, P-2 or P-3 (ii) or, in the case of any addendum relating to
a currency other than Pounds Sterling, Deutsche Marks and Italian Lire, in such
form as shall be approved by the Administrative Agent, in each case entered into
among MascoTech, one or more Alternate Currency Banks and an Alternate Currency
Agent.
"Alternate Currency Agent" means one or more entities (which may be the
Administrative Agent or its local affiliates), satisfactory to the
Administrative Agent, as specified in the applicable Alternate Currency
Addendum.
"Alternate Currency Bank" means any Bank (or any Affiliate, branch or
agency thereof) party to an Alternate Currency Addendum. If any agency or
Affiliate of a Bank shall be a party to an Alternate Currency Addendum, such
agency or Affiliate shall, to the extent of any commitment extended and any
Loans made by it, have all the rights of such Bank hereunder; provided, however,
that such Bank shall to the exclusion of such agency or Affiliate, continue to
have all the voting rights vested in it by the terms hereof.
"Alternate Currency Bid-Option Borrowing" means any Borrowing consisting
of an Alternate Currency Bid-Option Loan.
"Alternate Currency Bid-Option Loan" means a Bid-Option Loan made in an
Alternate Currency.
"Alternate Currency Bid-Option Percentage" means, with respect to any Bank
and any Alternate Currency Bid-Option Borrowing, the percentage of the aggregate
outstanding principal amount of all the Alternate Currency Bid-Option Loans
comprising such Borrowing represented by the outstanding principal amount of the
Alternate Currency Bid-Option Loan made by such Bank as part of such Borrowing.
"Alternate Currency Borrowing" means any Borrowing consisting of a Loan
made in an Alternate Currency.
"Alternate Currency Commitment" means, for each Alternate Currency Bank
for each Alternate Currency, the obligation of such Alternate Currency Bank to
make Alternate Currency Syndicated Loans not exceeding the Dollar Equivalent set
forth in the applicable Alternate Currency Addendum, as such amount may be
modified from time to time pursuant to the terms of this Agreement and the
applicable Alternate Currency Addendum.
"Alternate Currency Loan" means an Alternate Currency Bid-Option Loan or
an Alternate Currency Syndicated Loan.
"Alternate Currency Share" means, with respect to any Alternate Currency
Bank for any particular Alternate Currency, the percentage obtained by dividing
(A) such Alternate Currency Bank's
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Alternate Currency Commitment at such time as set forth in the applicable
Alternate Currency Addendum by (B) the aggregate of the Alternate Currency
Commitments at such time of all Alternate Currency Banks with respect to such
Alternate Currency as set forth in the applicable Alternate Currency Addendum.
"Alternate Currency Syndicated Interest Period" means, with respect to any
Alternate Currency Syndicated Loan, the Interest Period as set forth on the
applicable Alternate Currency Addendum.
"Alternate Currency Syndicated Loan" means any Loan denominated in an
Alternate Currency made by one or more of the Alternate Currency Banks to a
Borrower pursuant to Section 3.6 and an Alternate Currency Addendum.
"Alternate Currency Syndicated Note" means a promissory note of any
Borrower, substantially in the form of Exhibit A-3 attached hereto, evidencing
the obligation of such Borrower to repay Alternate Currency Syndicated Loans, as
amended or modified from time to time and together with any promissory note or
notes issued in exchange or replacement therefor.
"Applicable Facility Fee Rate" means, with respect to any Application
Period for Facility Fees, the percentage found in the applicable chart set forth
on Schedule 1 attached hereto by reading down the column of Leverage Ratio
ranges to the row for the range into which the Leverage Ratio as of the relevant
Determination Date falls. For the period from the Closing Date to but excluding
the date that occurs three months after the Closing Date, the Applicable
Facility Fee Rate shall be 0.25% per annum, and for the period from and
including the date that occurs three months after the Closing Date to but
excluding the date that occurs six months after the Closing Date, the Applicable
Facility Fee Rate shall not be less than 0.225% per annum.
"Applicable Lending Office" means, as to any Bank, its Domestic Lending
Office, Eurodollar Lending Office or any other office of such Bank or of any
Affiliate of such Bank selected and notified to the Borrowers and the
Administrative Agent as the applicable lending office for a particular Loan or
type of Loan by such Bank; provided that the Borrowers shall not be responsible
for the increase, if any, in costs hereunder that (a) are due to any Bank
changing its Applicable Lending Office with respect to a particular Loan or type
of Loan and (b) arise because of circumstances existing at the time of such
change.
"Applicable Margin" means, with respect to any Application Period for
Eurodollar Rate Syndicated Loans, Facility Fees and Letters of Credit, the
percentage found in the applicable chart set forth on Schedule 1 attached hereto
by reading down the column of Leverage Ratio ranges to the row for the range
into which the Leverage Ratio as of the relevant Determination Date falls. For
the purpose of this definition of the term "Applicable Margin", the Leverage
Ratio shall be calculated as prescribed in Section 7.6. For purposes of this
definition of the term "Applicable Margin", (a) the term "Application Period"
means a period commencing with and including the 60th day after the end of the
most recently completed fiscal quarter of the Borrowers to and including the
59th day after the end of the next following fiscal quarter of the Borrowers,
(b) the term "Determination Date" means, with
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respect to any Application Period, the last day of the Determination Period for
such Application Period, (c) the term "Determination Period" means, with respect
to any Application Period, the period of four consecutive fiscal quarters of the
Borrowers ending with the fiscal quarter ending immediately preceding such
Application Period, and (d) any change in the Applicable Margin during any
Interest Period for any Syndicated Loan or applicable to any Letter of Credit
shall be effective as to such Syndicated Loan or such Letter of Credit, as the
case may be, upon such change in the Applicable Margin taking effect pursuant to
this definition. For the period from the Closing Date to but excluding the date
that occurs three months after the Closing Date, the Applicable Margin shall be
0.875% per annum and for the period from and including the date that occurs
three months after the Closing Date to but excluding the date that occurs six
months after the Closing Date, the Applicable Margin shall not be less than
0.775% per annum.
"Application Period" shall have the meaning ascribed thereto in the
definition of the term "Applicable Margin".
"Approximate Equivalent Amount" of any currency with respect to any amount
of Dollars shall mean the equivalent amount of such currency with respect to
such amount of Dollars calculated on the basis of the arithmetical mean of the
buy and sell spot rates of exchange of the Administrative Agent for such other
Alternate Currency at 11:00 a.m. (London time) two Business Days prior to the
date of determination for purposes of this Agreement (i) if such currency is
Pounds Sterling, Deutsche Marks or Italian Lire, rounded up to the nearest
100,000 of such currency and (ii) if such currency is any other Alternate
Currency, rounded up to the nearest amount of such currency as determined by the
Administrative Agent from time to time.
"Arrangers" means First Chicago Capital Markets, Inc., BancAmerica
Robertson Stephens, Inc. and NationsBanc Montgomery Securities, Inc.
"Asset Sale" means, with respect to any Person, the sale, lease,
conveyance, disposition or other transfer by such Person of any of its assets
(including by way of a sale-leaseback transaction and including the sale or
other transfer of any of the Equity Interests of any Subsidiary of such Person);
provided that (i) a sale, lease, conveyance, disposition or other transfer
between or among MascoTech and any of its Consolidated Subsidiaries shall not
constitute an Asset Sale and (ii) any sale or other disposition of any Cash or
Cash Equivalents or any Marketable Securities shall not be construed as an Asset
Sale; and provided further that a sale of "margin stock" (as defined in
Regulation U of the Board of Governors of the Federal Reserve System), to the
extent that the value of such margin stock would exceed 25% of the value of the
assets of MascoTech and its Subsidiaries, shall not constitute an Asset Sale.
"Assignment and Acceptance" is defined in Section 11.6(d).
"Assumption Letter" means a letter agreement of a Subsidiary of MascoTech
addressed to the Banks substantially in the form of Exhibit S hereto pursuant to
which such Subsidiary agrees to become a "Borrowing Subsidiary" and agrees to be
bound by the terms hereof.
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"Authorized Officer" means any of the chief executive officer, chief
financial officer, treasurer, controller, secretary, assistant treasurer or vice
president corporate counsel of MascoTech, acting singly.
"Available Masco Corporation Funding Commitment" means, as of any date,
any unused and available amount of the "Commitment" of Masco Corporation under,
and as defined in, the Securities Purchase Agreement, provided that such amount
for purposes of this definition shall not exceed $200,000,000, provided that
such "Commitment" relates only to the purchase by Masco Corporation of equity
securities of MascoTech or of Subordinated Debt of MascoTech.
"Benefit Arrangement" means at any time an employee benefit plan within
the meaning of Section 3(3) of ERISA that is not a Plan or a Multiemployer Plan
and which is maintained or otherwise contributed to by a Borrower or any ERISA
Affiliate of a Borrower.
"Bid-Option Absolute Rate" means, with respect to any Absolute Rate Dollar
Bid-Option Loan or Alternate Currency Bid-Option Loan, the Bid-Option Absolute
Rate, as defined in Section 3.4(d)(ii)(D), that is offered for such Loan.
"Bid-Option Auction" means a solicitation of Bid-Option Quotes setting
forth Bid-Option Absolute Rates or Bid-Option Eurodollar Rate Margins, as the
case may be, pursuant to Section 3.4(b).
"Bid-Option Eurodollar Rate" means the sum of (a) the Bid-Option
Eurodollar Rate Margin plus (b) the Eurodollar Base Rate.
"Bid-Option Eurodollar Rate Margin" means, with respect to any Eurodollar
Rate Bid-Option Loan, the Bid-Option Eurodollar Rate Margin, as defined in
Section 3.4(d)(ii)(E), that is offered for such Loan.
"Bid-Option Interest Period" means (a) with respect to each Eurodollar
Rate Bid-Option Borrowing, the Eurodollar Rate Interest Period applicable
thereto, and (b) with respect to each Absolute Rate Dollar Bid-Option Borrowing
and Alternate Currency Bid-Option Borrowing, the period commencing on the date
of such Borrowing and ending on the date elected by the applicable Borrower in
the applicable Notice of Borrowing, which date shall be not less than 15 and not
more than 360 days after the date of such Borrowing; provided that:
(i) any such Interest Period that would otherwise end on a day that is
not a Business Day shall be extended to the next succeeding Business Day; and
(ii) no such Interest Period that would end after the Scheduled
Expiration Date shall be permitted.
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"Bid-Option Loan" means a Loan which is made by a Bank pursuant to a Bid-
Option Auction.
"Bid-Option Note" means a promissory note of a Borrower in substantially
the form of Exhibit B-1 hereto evidencing the obligation of such Borrower to
repay Bid-Option Loans, as amended or modified from time to time and together
with any promissory note or notes issued in exchange or replacement therefor.
"Bid-Option Quote" means an offer by a Bank to make a Bid-Option Loan in
accordance with Section 3.4(d).
"Bid-Option Quote Request" shall have the meaning ascribed thereto in
Section 3.4(b).
"Borrower" means, as applicable, MascoTech, Acquisition and their
respective successors and assigns and any Borrowing Subsidiary.
"Borrowing" means a borrowing hereunder consisting of Loans made to a
Borrower on a single date, of a single Type and currency and for a single
Interest Period.
"Borrowing Subsidiary" means any Borrowing Subsidiary duly designated by
MascoTech pursuant to Section 3.12 hereof to request Loans hereunder, provided
at least 95% of the Capital Stock of such Subsidiary is owned directly or
indirectly by MascoTech and such Subsidiary shall have delivered to the
Administrative Agent an Assumption Letter in accordance with Section 3.12 and
such other documents, instruments and agreements as may be required pursuant to
the terms of this Agreement.
"Business Day" means any day on which commercial banks are open for
domestic and international business (including dealings in Dollar deposits) in
New York City and Chicago, Illinois and, with respect to Eurodollar Rate Loans
and the related Interest Periods, in London, and with respect only to Alternate
Currency Loans and the related Interest Periods, on which dealings in deposits
in the relevant Alternate Currency are carried out in the relevant interbank
market and in the principal financial center of the country issuing the relevant
Alternate Currency.
"Capital Expenditures" means, for any period, the aggregate amount of
capital expenditures of MascoTech and its Consolidated Subsidiaries during such
period, determined on a consolidated basis in accordance with generally accepted
accounting principles.
"Capital Lease" of any Person means any lease which, in accordance with
generally accepted accounting principles, is required to be capitalized on the
books of such Person.
"Capital Stock" means (i) in the case of a corporation, corporate stock,
(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock and (iii) in the case of a partnership, partnership interests
(whether general or limited).
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"Cash and Cash Equivalents" means (a) all cash of MascoTech and its
Consolidated Subsidiaries on hand or on deposit, plus (b) cash equivalents as
determined in accordance with generally accepted accounting principles, plus (c)
all investments of MascoTech and its Consolidated Subsidiaries of the following
generally accepted accounting principles: (i) commercial paper of any United
States issuer having a rating of A1 or better by Moody's Investors Service, Inc.
or P1 or better by Standard & Poor's Ratings Group, (ii) direct obligations of,
and obligations fully guaranteed by, the United States of America, and (iii)
certificates of deposit of (A) any commercial bank which is a member of the
Federal Reserve System and which has capital, surplus and undivided profits (as
shown on its most recently published statement of condition) aggregating not
less than $100,000,000 or (B) any Bank, provided that each of the foregoing
investments has a maturity date not later than 180 days after the date of
acquisition thereof by MascoTech or any of its Consolidated Subsidiaries.
"Closing Date" means the first day on which the initial Borrowing under
this Agreement shall have occurred.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and the regulations thereunder.
"Commitment" means, with respect to each Bank, its Revolving Credit
Commitment and its Term Loan Commitment.
"Consolidated" or "consolidated" refers to the consolidation of the
accounts of a Person and its Subsidiaries in accordance with generally accepted
accounting principles.
"Consolidated Subsidiary" of any corporation means any Subsidiary which
would be consolidated on the consolidated balance sheet of such corporation in
accordance with generally accepted accounting principles.
"Corporate Base Rate" means a rate per annum equal to the corporate base
rate of interest announced by The First National Bank of Chicago from time to
time, changing when and as said corporate base rate changes.
"Current Assets" means, at any time, the current assets of MascoTech and
its Consolidated Subsidiaries, determined as to amount and classification on a
consolidated basis in accordance with generally accepted accounting principles.
"Debt" means (a) indebtedness for money borrowed; (b) the capitalized
portion of lease rentals under Capital Leases; (c) other indebtedness incurred
in connection with the acquisition of any real or personal property, stock, debt
or other assets (to the extent that any of the foregoing acquisition
indebtedness is represented by any notes, bonds, debentures or similar evidences
of indebtedness); and (d) obligations in respect of obligations or indebtedness
of others of the types referred to in each of the foregoing clauses (a)-(c), for
the payment of which MascoTech or any Consolidated Subsidiary is
8
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directly or contingently liable, or which is secured by any property of
MascoTech or any Consolidated Subsidiary (whether or not MascoTech or any such
Consolidated Subsidiary is liable therefor); provided, however, any trust
convertible debt securities or similar securities issued by MascoTech shall not
be deemed to be Debt to the extent such securities are not treated as debt of
MascoTech in accordance with generally accepted accounting principles..
"Debt Securities" means any securities (as defined under the Securities
Act of 1933, as amended) evidencing Debt.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Determination Date" shall have the meaning ascribed thereto in the
definition of the term "Applicable Margin".
"Determination Period" shall have the meaning ascribed thereto in the
definition of the term "Applicable Margin".
"Deutsche Marks" or "DM" means the lawful money of the Republic of
Germany.
"Dollar Bid-Option Borrowing" means any Borrowing consisting of a Dollar
Bid-Option Loan.
"Dollar Bid-Option Loan" means a Bid-Option Loan made in Dollars.
"Dollar Bid-Option Percentage" means, with respect to any Bank and any
Dollar Bid-Option Borrowing, the percentage of the aggregate outstanding
principal amount of all the Dollar Bid-Option Loans comprising such Borrowing
represented by the outstanding principal amount of the Dollar Bid-Option Loan
made by such Bank as part of such Borrowing.
"Dollar Equivalent" means, as of any date, (a) with respect to any amount
of Dollars, the amount thereof, and (b) with respect to any amount of any
Alternate Currency, the amount of Dollars that could be purchased with such
amount of such Alternate Currency at the spot rate of exchange quoted by the
Administrative Agent at approximately 10:00 a.m. (Chicago time) on such date or
such number of Business Days before such date as may reasonably be deemed
necessary by the Administrative Agent for purposes of this Agreement.
"Dollars" and "$" shall mean the lawful money of the United States.
"Domestic Lending Office" means, as to any Bank, its office identified on
the signature pages hereof as its Domestic Lending Office or such other office
as such Bank may hereafter designate as its Domestic Lending Office.
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<PAGE>
"Domestic Subsidiary" means a Subsidiary that is incorporated under the
laws of the United States of America or any State thereof.
"EBITDA" means, for any rolling four fiscal quarter period, on a
consolidated basis for MascoTech and its Consolidated Subsidiaries, the sum of
the amounts for such period, without duplication, of (i) Net Income for such
period, plus (ii) Interest Charges for such period, plus (iii) charges against
income for taxes (including the Michigan Single Business Tax) to the extent
deducted in computing Net Income during such period, plus (iv) depreciation
expense to the extent deducted in computing Net Income during such period, plus
(v) amortization expense, including without limitation, amortization of goodwill
and other intangible assets, and fees, costs and expenses in connection with the
Tender Offer and the Merger to the extent deducted in computing Net Income
during such period, plus (vi) other non-cash charges (excluding any non-cash
charges that require an accrual or reserve for cash charges for any future
period, other than accruals for future retiree medical obligations, made
pursuant to SFAS No. 87, No. 112 and No. 106, as amended or modified) to the
extent deducted in computing Net Income during such period, minus (vii)
extraordinary gains to the extent they are non-cash items and to the extent
included in computing Net Income during such period, plus (viii) extraordinary
losses to the extent they are non-cash items and to the extent deducted in
computing Net Income during such period; minus (ix) if EBITDA Certain Items is
positive, (a) zero, if EBITDA Certain Items is less than or equal to $30,000,000
and (b) the amount by which EBITDA Certain Items exceeds $30,000,000; plus (x)
if EBITDA Certain Items is negative, the lesser of (a) the absolute value of
EBITDA Certain Items and (b) $30,000,000; provided further that in the event
MascoTech or any of its Consolidated Subsidiaries acquires any corporation or
business, EBITDA shall be calculated on a pro forma basis (which, to the extent
deemed reasonable to the Administrative Agent, may include as pro forma
adjustments, reasonable eliminations of excess compensation (including salaries)
and other adjustments that are attributable to the change in ownership or
management of the corporation or business) as if MascoTech or such Subsidiary
had owned the acquired corporation or business for the four fiscal quarters
preceding its acquisition.
"EBITDA Certain Items" is the sum (which may be positive or negative) of
(a) non-recurring and (without duplication) extraordinary gains to the extent
they are cash items and to the extent included in computing Net Income during
such period, plus (b) non-cash earnings from equity investments to the extent
included in computing Net Income during such period, minus (c) non-recurring and
(without duplication) extraordinary losses to the extent they are cash items and
to the extent included in computing Net Income during such period, minus (d)
non-cash losses from equity investments to the extent included in computing Net
Income during such period.
"Eligible Currency" means any currency other than Dollars that is readily
available, freely traded, in which deposits are customarily offered to banks in
the London interbank market, convertible into Dollars in the international
interbank market and as to which the Dollar Equivalent may be readily
calculated. If, (i) after the designation by the Administrative Agent of any
currency as an Alternate Currency, currency control or other exchange
regulations are imposed in the country in which such currency is issued with the
result that different types of such currency are introduced, (ii) such country's
currency is, in the determination of the Administrative Agent, no longer readily
available or
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freely traded, or (iii) in the determination of the Administrative Agent, a
Dollar Equivalent for such country's currency is not readily calculable, then
the Administrative Agent shall promptly notify the Alternate Currency Agent and
MascoTech, and such country's currency shall no longer be an Alternate Currency
until such time as the Administrative Agent agrees to reinstate such country's
currency as an Alternate Currency and promptly, but in any event within five (5)
Business Days of receipt of such notice from the Administrative Agent, the
Borrowers with respect to such Alternate Currency shall repay all Loans in such
affected currency or convert such Loans into Loans in Dollars or an Alternate
Currency, as applicable, subject to the other terms contained in Articles III
and IV.
"Environmental Laws" means any and all applicable United States federal,
state and local statutes, laws, regulations, ordinances, rules, judgments,
orders, decrees, permits, concessions, grants, franchises, licenses, agreements
and other governmental restrictions relating to the environment or to emissions,
discharges or releases of pollutants, contaminants, petroleum or petroleum
products, chemicals or industrial, toxic or hazardous substances or wastes into
the environment including, without limitation, ambient air, surface water,
ground water, or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, petroleum or petroleum products, chemicals or
industrial, toxic or hazardous substances or wastes or the clean-up or other
remediation thereof.
"Equity Interests" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations thereunder.
"ERISA Affiliate" means all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common control
which, together with any Borrower, are treated as a single employer under
Section 414(b), (c) or (m), or the regulations prescribed under Section 414(o),
of the Code.
"Euro" means the lawful currency adopted by the European Economic
Community.
"Eurodollar Base Rate" applicable to any Eurodollar Rate Interest Period
means the per annum rate obtained by dividing (a) the per annum rate of interest
at which deposits in Dollars for such Interest Period and in an aggregate amount
comparable to (i) in the case of Eurodollar Rate Syndicated Loans, the amount of
the related Eurodollar Rate Syndicated Loans to be made by the Eurodollar
Reference Banks in their capacity as Banks hereunder, and (ii) in the case of
Eurodollar Rate Bid-Option Loans, the aggregate amount of the Eurodollar Rate
Bid-Option Borrowing set forth in the related Bid-Option Quote Request, are
offered to the Eurodollar Reference Banks by other prime banks in the London or
Nassau interbank market, selected in the Eurodollar Reference Banks' discretion,
at approximately 11:00 a.m. London or Nassau time, as the case may be, on the
second Business Day prior to the first day of such Eurodollar Rate Interest
Period, by (b) an amount equal to
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one minus the stated maximum rate (expressed as a decimal) of all reserve
requirements (including, without limitation, any marginal, emergency,
supplemental, special or other reserves) that is specified on the first day of
such Eurodollar Rate Interest Period by the Board of Governors of the Federal
Reserve System (or any successor agency thereto) for determining the maximum
reserve requirement with respect to Eurodollar funding (currently referred to as
"Eurodollar liabilities" in Regulation D of such Board) maintained by a member
bank of such System; all as conclusively determined, absent manifest error, by
the Administrative Agent.
"Eurodollar Borrowing" means any Borrowing consisting of a Eurodollar Rate
Loan.
"Eurodollar Lending Office" means, as to any Bank, its office identified
on the signature pages hereof as its Eurodollar Lending Office or such other
branch (or Affiliate) of such Bank as such Bank may hereafter designate as its
Eurodollar Lending Office.
"Eurodollar Rate Bid-Option Borrowing" means any Borrowing consisting of a
Eurodollar Rate Bid-Option Loan.
"Eurodollar Rate Bid-Option Loan" means a Loan which pursuant to the
applicable Notice of Borrowing is made at the Bid-Option Eurodollar Rate.
"Eurodollar Rate Interest Period" means, with respect to each Eurodollar
Rate Syndicated Loan, the period commencing on the date of such Eurodollar Rate
Syndicated Loan and ending one month, two months, three months, four months,
five months or six months thereafter, or twelve months if such proposed twelve-
month Eurodollar Rate Interest Period is specifically agreed to by all Banks,
and with respect to each Eurodollar Rate Bid-Option Loan, the period commencing
on the date of such Eurodollar Rate Bid-Option Loan and ending on a date between
fifteen days and twelve months thereafter, as a Borrower may request in the
applicable Notice of Borrowing; provided that:
(a) any such Interest Period that would otherwise end on a day
that is not a Business Day shall be extended to the next succeeding Business Day
unless such Business Day falls in another calendar month in which case such
Interest Period shall end on the next preceding Business Day;
(b) unless such Interest Period is for less than one month, any
such Interest Period that begins on the last Business Day of a calendar month or
on a day for which there is no numerically corresponding day in the calendar
month during which such Eurodollar Interest Period is to end shall end on the
last Business Day of such calendar month; and
(c) no such Interest Period that would end after the Scheduled
Expiration Date shall be permitted.
"Eurodollar Rate" means with respect to a Eurodollar Rate Loan for the
relevant Interest
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<PAGE>
Period, the Eurodollar Base Rate applicable to such Interest Period plus the
then Applicable Margin.
"Eurodollar Rate Loan" means any Eurodollar Rate Bid-Option Loan or
Eurodollar Rate Syndicated Loan.
"Eurodollar Rate Syndicated Loan" means a Syndicated Loan which bears
interest at the Eurodollar Rate.
"Eurodollar Rate Syndicated Revolving Loan" means a Syndicated Revolving
Loan which bears interest at the Eurodollar Rate.
"Eurodollar Reference Bank" means the principal London office of each of
The First National Bank of Chicago, Bank of America NT&SA and NationsBank, N.A.,
or such other Eurodollar Reference Banks as may be appointed pursuant to Section
11.6.
"Events of Default" has the meaning ascribed thereto in Section 9.1.
"Excess Cash Flow" means, for any period, (i) Net Income for such period
minus (ii) scheduled amortization payments of the principal portion of all Debt
(excluding the installment due January 31, 2002) with an original maturity in
excess of one year during such period minus (iii) the aggregate amount of all
dividends in respect of any preferred stock of MascoTech and its Consolidated
Subsidiaries up to an amount not to exceed $15,000,000 in any four fiscal
quarter period. Excess Cash Flow shall be calculated on a quarterly basis on
each Determination Date.
"Existing Agent" means NBD Bank, a Michigan banking corporation, formerly
known as NBD Bank, N.A., in its capacity as agent for the Existing Banks.
"Existing Banks" means the banks that are parties to the Existing Credit
Agreement.
"Existing Bid-Option Loans" means the "Bid-Option Loans" (as defined in
the Existing Credit Agreement) outstanding on the Closing Date.
"Existing Commitment" means, with respect to each Bank, the amount, if
any, of such Bank's "Commitment" (as defined in the Existing Credit Agreement)
immediately prior to the Closing Date.
"Existing Credit Agreement" means the Credit Agreement dated as of
February 28, 1997, among MascoTech, the Existing Banks and the Existing Agent,
as amended, supplemented or otherwise modified, and as in force immediately
prior to the Closing Date.
"Existing Debt" shall have the meaning ascribed thereto in the definition
of the term "Senior Debt".
"Existing Notes" means the "Notes" (as defined in the Existing Credit
Agreement) held by the
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Existing Banks under the Existing Credit Agreement.
"Facility Fees" means the facility fees payable pursuant to Section
3.9(a).
"Federal Funds Rate" means, as of any day, the per annum rate that is
equal to the average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers, as
published by the Federal Reserve Bank of New York for such day (or, in the case
of any day on which the federal funds market is not open, for the immediately
preceding day on which it was open), or, if such rate is not so published for
any day (or, in the case of any day on which the federal funds market is not
open, for the immediately preceding day on which it was open), the average of
the quotations for such rates received by the Administrative Agent from three
federal funds brokers of recognized standing selected by the Administrative
Agent in its discretion; all as conclusively determined, absent manifest error,
by the Administrative Agent, such average to be rounded up, if necessary, to the
nearest whole multiple of one-hundredth of one percent (1/100 of 1%); which
Federal Funds Rate shall change simultaneously with any change in such published
or quoted rates.
"Financing" means, with respect to any Person, the issuance or sale by
such Person of any Equity Interests of such Person or any Debt Securities of
such Person other than (i) any Equity Interests or Debt Securities issued to
MascoTech or any of its Subsidiaries, (ii) any Equity Securities issued in
connection with any employee stock option, employee stock award or any related
benefit plan, (iii) any Debt Securities issued by any Subsidiary to the extent
permitted under Section 7.7 and (iv) any Debt Securities secured by a Lien
permitted pursuant to Section 7.8(c) or (f).
"Fixed Charge Coverage Ratio" has the meaning ascribed thereto in Section
7.5.
"Fixed Rate Loan" means any Eurodollar Rate Syndicated Loan, Alternate
Currency Syndicated Loan or Bid-Option Loan.
"Floating Rate" means, with respect to any Floating Rate Loan, the greater
of (a) the Corporate Base Rate and (b) the per annum rate equal to the sum of
(i) one-half percent (1/2%) plus (ii) the Federal Funds Rate; which Floating
Rate shall change simultaneously with any change in such Corporate Base or
Federal Funds Rate, as the case may be.
"Floating Rate Borrowing" means any Borrowing consisting of a Floating
Rate Loan.
"Floating Rate Loan" means a Loan which pursuant to the applicable Notice
of Borrowing is made at the Floating Rate.
"Floating Rate Revolving Loan" means a Revolving Loan which bears interest
at the Floating Rate.
"Floating Rate Syndicated Loan" means a Syndicated Loan which bears
interest at the Floating
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Rate.
"Indemnified Person" shall have the meaning ascribed thereto in Section
11.5(a) hereto.
"Interest Charges" means, for any period, the sum of interest that is
expensed (or, under generally accepted accounting principles, would be expensed)
during such period by MascoTech and its Consolidated Subsidiaries on Debt of
MascoTech and its Consolidated Subsidiaries, including any interest expense in
connection with any trust convertible debt securities issued by MascoTech to the
extent it is treated as interest expense in accordance with generally accepted
accounting principles.
"Interest Payment Date" means, with respect to each Floating Rate Loan,
the last Business Day of each month, with respect to each Swing Line Loan, the
date such Loan is repaid, and with respect to each other Loan, the last day of
each Interest Period with respect to such Loan and, in the case of any Interest
Period exceeding (a) with respect to Eurodollar Rate Loans and the Alternate
Currency Syndicated Loans, three months or (b) with respect to Absolute Rate
Dollar Bid-Option Loans, ninety days, those days that occur during such Interest
Period at intervals of three months and ninety days, respectively, after the
first day of such Interest Period.
"Interest Period" means any Eurodollar Rate Interest Period, Bid-Option
Interest Period or Alternate Currency Syndicated Interest Period; provided,
however, notwithstanding anything in this Agreement to the contrary for the
period from the Closing Date to the earlier of (x) the date that is 90 days
after the Closing Date and (y) the date 30 days after the date upon which the
Arrangers confirm that the loan syndication process has been complete but not
later than March 15, 1998 (the "Syndication Period"), "Interest Period" means,
with respect to a Eurodollar Rate Loan (except as the Administrative Agent
otherwise approves), a period of seven (7) or fourteen (14) days.
"Invitation for Bid-Option Quotes" means an Invitation for Bid-Option
Quotes in the form referred to in Section 3.4(c).
"Italian Lire" means the lawful money of Italy.
"Letter of Credit" shall mean a standby letter of credit issued for the
account of MascoTech or any of its Consolidated Subsidiaries pursuant to this
Agreement.
"Letter of Credit Documents" shall have the meaning ascribed thereto in
Section 3.3(f).
"Letter of Credit Issuance" shall mean any issuance by the Administrative
Agent of a Letter of Credit pursuant to Section 3.3.
"Letter of Credit Obligations Amount" means, as of any date, the amount
equal to the sum of (a) the maximum aggregate amount available to be drawn under
all outstanding Letters of Credit at any time on or before the stated expiry
date thereof, plus (b) the amount of any draws under all Letters of Credit that
have not been reimbursed as provided in Section 3.3(e).
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"Leverage Ratio" has the meaning ascribed thereto in Section 7.6.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
security interest or similar encumbrance in respect of such asset; provided that
a subordination agreement shall not be deemed to create a Lien. For the
purposes of this Agreement, MascoTech or any Consolidated Subsidiary shall be
deemed to own subject to a Lien any asset which it has acquired or holds subject
to the interest of a vendor or lessor under any conditional sale agreement,
Capital Lease or other similar title retention agreement relating to such asset.
"Loan" means any (a) Swing Line Loan or (b) Term Loan or (c) Revolving
Loan or (d) Bid-Option Loan or (e) Alternate Currency Loan.
"Marketable Securities" means any securities which are marketable
securities included in current assets in accordance with generally accepted
accounting principles and any future or forward contracts related thereto.
"Masco Corporation" means Masco Corporation, a Delaware corporation.
"Masco Group" means Masco Corporation or any Person who, on the date
hereof, is an Affiliate of Masco Corporation or who hereafter becomes an
Affiliate controlled by Masco Corporation.
"Material Adverse Change" means any event, occurrence, development or
state of circumstances or facts which has had or has a reasonable probability of
having, individually or in the aggregate, a material adverse effect on MascoTech
and its Consolidated Subsidiaries (including the Target and its Consolidated
Subsidiaries, to the extent the Target is owned by MascoTech or Acquisition,
which, with respect to the funding to purchase the shares of the Target acquired
pursuant to the Tender Offer, would take into effect the shares to be purchased)
taken as a whole.
"Merger" means the merger of the Target and Acquisition pursuant to the
Merger Agreement.
"Merger Agreement" means that certain Agreement and Plan of Merger dated
as of December 10, 1997, as amended by Amendment No. 1 dated as of December 15,
1997 and Amendment No. 2 dated as of January 13, 1998, among Target, MascoTech
and Acquisition.
"Moody's" means Moody's Investors Service, Inc. or any successor thereto.
Any rating or change in rating given by Moody's shall be deemed effective, and
in effect, when publicly announced by Moody's.
"Multiemployer Plan" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which a Borrower or any
ERISA Affiliate is then making, or, pursuant to an applicable collective
bargaining agreement, accruing an obligation to make contributions or has within
the preceding five plan years made contributions, including for these purposes
any Person
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which ceased to be an ERISA Affiliate during such five-year period.
"Net Cash Proceeds" means, with respect to any Asset Sale or any Financing
by any Person, (a) cash (freely convertible into Dollars) received by such
Person or any Subsidiary of such Person from such Asset Sale or such Financing
(or, in the case of a Receivables Sale, the Receivables Sale Amount with respect
to such Receivables Sale), after (i) provision for all income or other taxes
measured by or resulting from such Asset Sale, (ii) payment of all brokerage
commissions and other fees and expenses related to such Asset Sale or such
Financing, and (iii) all amounts used to repay Debt secured by a Lien on any
asset disposed of in such Asset Sale or which is or may be required (by the
express terms of the instrument governing such Debt) to be repaid in connection
with such Asset Sale (including payments made to obtain or avoid the need for
the consent of any holder of such Debt); and (b) cash payments in respect of any
other consideration received by such Person or any Subsidiary of such Person
from such Asset Sale upon receipt of such cash payments by such Person or such
Subsidiary.
"Net Income" means, for any period, the consolidated net income of
MascoTech and its Consolidated Subsidiaries (after deduction for income and
other taxes of MascoTech and its Consolidated Subsidiaries determined by
reference to income or profits of MascoTech and its Consolidated Subsidiaries)
for such period, all as determined in accordance with generally accepted
accounting principles.
"Net Worth" means, as of any date, (a) the amount of total shareholders'
equity of MascoTech and its Consolidated Subsidiaries on such date, determined
on a consolidated basis in accordance with generally accepted accounting
principles, minus (or, if the amount determined pursuant to the following clause
(b) is negative, plus the absolute amount thereof) (b) to the extent included in
total shareholders' equity the amount of the foreign currency translation
adjustment account, plus (c) the amount of the foreign currency translation
adjustment account shown on the consolidated balance sheet of MascoTech and its
Consolidated Subsidiaries dated September 30, 1997, which amount is $4,520,000.
"New Debt" shall have the meaning ascribed thereto in the definition of
the term "Senior Debt".
"Note" means any Revolving Note, Term Loan Note, Bid-Option Note or Swing
Line Note or any note issued to evidence the Alternate Currency Loans.
"Notice of Bid-Option Borrowing" shall have the meaning ascribed thereto
in Section 3.4(f).
"Notice of Borrowing" means any Notice of Syndicated Borrowing or Notice
of Bid-Option Borrowing or Notice of Swing Line Borrowing.
"Notice of Syndicated Borrowing" shall have the meaning ascribed thereto
in Section 3.7(a).
"Overdue Rate" means (a) in respect of the principal of any Loan, the
rate per annum that is
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equal to the sum of two percent (2%) per annum plus the per annum rate otherwise
applicable to such Loan until the end of the then current Interest Period for
such Loan and, thereafter, a rate per annum that is equal to the sum of two
percent (2%) per annum plus the Floating Rate; and (b) in respect of other
amounts payable by the Borrowers hereunder (other than interest), a per annum
rate that is equal to the sum of two percent (2%) per annum plus the Floating
Rate.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, corporation, partnership, joint venture,
trust, association, limited liability company or unincorporated organization, or
a government or any agency or political subdivision thereof.
"Plan" means at any time any employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Code and either (a) is
maintained, or contributed to, by a Borrower or any ERISA Affiliate for
employees of such Borrower or any ERISA Affiliate, or (b) has at any time within
the preceding five years been maintained, or contributed to, by a Borrower or
any Person which was at such time an ERISA Affiliate for employees of such
Borrower or any Person which was at such time an ERISA Affiliate.
"Pounds Sterling" means the lawful money of the United Kingdom.
"Pro Rata Share" means, with respect to any Bank, the percentage obtained
by dividing (a) such Bank's Revolving Credit Commitment at such time (in each
case, as adjusted from time to time in accordance with the provisions of this
Agreement) plus the outstanding balance of such Bank's Term Loans by (b) the
aggregate amount of all of the Revolving Credit Commitments at such time plus
the outstanding principal balance of all of the Term Loans; provided, however,
if all of the Revolving Credit Commitments are terminated pursuant to the terms
of this Agreement, then "Pro Rata Share" means the percentage obtained by
dividing (x) the sum of such Bank's Revolving Loans and Term Loans by (y) the
aggregate amount of all Revolving Loans and Term Loans.
"Receivables Sale" means any Asset Sale consisting of the sale of accounts
or notes receivable and associated assets, other than any such sale in bulk as
part of a sale or other disposition of all or substantially all of the assets or
stock of any Person or of any principal division or lines of business of any
Person.
"Receivables Sale Amount" means in the case of a single sale of
receivables, the cash proceeds received by the transferor, and, in the case of a
revolving receivables sales facility, the cash proceeds received by the seller
representing incremental new funding in excess of any previous level of funding
made available under such facility, net of repayments of Debt or repurchases
under, or proceeds otherwise required to refinance, any previous receivables
sales facility.
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"Reference Bank" means any Eurodollar Reference Bank.
"Refunded" shall have the meaning ascribed thereto in the definition of
the term "Senior Debt".
"Refunding Borrowing" means a Borrowing which, after application of the
proceeds of such Borrowing, results in no net increase in the Dollar Equivalent
of the aggregate outstanding principal amount of the Loans made by any Bank.
"Reimbursement Amount" shall have the meaning ascribed thereto in Section
3.3(e).
"Request for a New Alternate Currency Facility" shall have the meaning
ascribed thereto in Section 3.6(b).
"Request for Letter of Credit Issuance" shall have the meaning ascribed
thereto in Section 3.3(b).
"Required Banks" means Banks having not less than 51% of the aggregate
amount of the Commitments or, if the Commitments have terminated, Banks holding
Notes evidencing not less than 51% of the aggregate unpaid principal amount of
the Loans.
"Restricted Payment" means, without duplication, (i) any dividend or other
distribution on account of any Equity Interest of MascoTech now or hereafter
outstanding, (ii) any redemption, retirement, purchase or other acquisition for
value of any Equity Interests of MascoTech now or hereafter outstanding, (iii)
any redemption, purchase, retirement, defeasance, prepayment or other
acquisition for value, direct or indirect, of any Subordinated Debt or any trust
convertible debt securities or similar securities to the extent such securities
are not treated as debt of MascoTech in accordance with generally accepted
accounting principles, in each case prior to the stated maturity thereof or (iv)
an amendment or modification of any term or provision of any instrument or
agreement relating to any Subordinated Debt such that it would not constitute
Subordinated Debt as defined in this Agreement or would mature or any principal
payment thereunder would be due prior to the Termination Date, but in the case
of any of the foregoing shall exclude issuances of, or purchases of, Equity
Interests, or the payment of dividends, in connection with employee stock
option, employee stock award or any related benefit plans.
"Revolving Credit Commitment" means, with respect to each Bank whose
commitment has not been terminated pursuant to Section 11.13, the commitment of
such Bank to make Revolving Loans pursuant to Section 3.1, to participate in the
risk of Letters of Credit pursuant to Section 3.3 and to participate in the risk
of the Swing Line Loans pursuant to Section 3.5 and Alternate Currency Loans
pursuant to Section 3.6 in an aggregate principal amount the Dollar Equivalent
of which does not exceed (a) in the case of each Bank originally a party hereto,
the amount set forth opposite the name of such Bank on the signature pages
hereof, and (b) in the case of each Bank becoming a party hereto in accordance
with Section 11.6(d) or 11.13, the aggregate amount assigned to it, in each case
(i) less the aggregate amount, if any, subsequently assigned by it in accordance
with Section 11.6(d), (ii) plus the
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aggregate amount, if any, subsequently assigned to it under Section 11.6(d) or
11.13 and (iii) subject to activation pursuant to Section 3.1, and as such
amount may be reduced from time to time pursuant to Section 3.10.
"Revolving Credit Commitment Percentage" means, with respect to any Bank,
the percent of the aggregate amount of all the Revolving Credit Commitments
represented by the amount of such Bank's Revolving Credit Commitment.
"Revolving Loan" means any Loan made pursuant to Section 3.1.
"Revolving Note" means a promissory note of any Borrower substantially in
the form of Exhibit A-1 hereto evidencing the obligation of such Borrower to
repay Revolving Loans, as amended or modified from time to time and together
with any promissory note or notes issued in exchange or replacement therefor.
"S&P" means Standard & Poor's Ratings Group or any successor thereto. Any
rating or change in rating given by S&P shall be deemed effective, and in
effect, when publicly announced by S&P.
"Scheduled Expiration Date" means November 15, 2003.
"Securities Purchase Agreement" means the Amended and Restated Securities
Purchase Agreement dated as of November 23, 1993, as amended by that certain
Amendment No. 1 to Amended and Restated Securities Purchase Agreement made as of
October 31, 1996, between MascoTech and Masco Corporation, as in effect on the
Closing Date in the form attached hereto as Exhibit J, and as heretofore or
hereafter amended, supplemented or otherwise modified from time to time.
Nothing in this Agreement shall prohibit MascoTech and Masco Corporation from
amending or terminating such Securities Purchase Agreement, provided that at the
time of such amendment or termination, and immediately after giving effect
thereto, no Default exists or would exist, and, provided, that MascoTech
delivers a copy of any such amendment to the Administrative Agent within 30 days
of the date of such amendment.
"Securitization Amount" means, as of any date, the aggregate amount of
proceeds received by MascoTech or any of its Consolidated Subsidiaries, as the
transferor, with respect to any Receivables Sale at such date to the extent the
related transferee is entitled at such time to the recovery of such amount out
of the proceeds of the assets transferred pursuant thereto.
"Senior Debt" means all Debt of MascoTech and its Consolidated
Subsidiaries, determined on a consolidated basis, except Subordinated Debt,
provided that, for purposes of this definition, if any Debt ("Existing Debt") is
to be Refunded (as hereinafter defined) with the proceeds of other money
borrowed ("New Debt"), the Existing Debt to be so Refunded shall be excluded
from Senior Debt when the New Debt is incurred. For purposes of this
definition, Existing Debt is to be "Refunded" by New Debt if, and to the extent
that, (i) no later than five (5) Business Days after the New Debt is
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incurred, MascoTech delivers to the Administrative Agent written notice stating
that the purpose of such New Debt is to refund Existing Debt and specifying the
Existing Debt to be refunded, (ii) the proceeds of such New Debt are held in the
form of Cash and Cash Equivalents (free of any Lien except a Lien securing the
specified Existing Debt to be refunded and no other indebtedness or obligations)
until such specified Existing Debt is repaid and (iii) such specified Existing
Debt is repaid within 45 (forty-five) days after the New Debt is incurred.
"Senior Debt Coverage Ratio" means, at any time from and including the
last day of any fiscal quarter of MascoTech to but excluding the last day of the
following fiscal quarter of MascoTech, the ratio of (a) Senior Debt as of the
end of such fiscal quarter to (b) EBITDA for the immediately preceding four
fiscal quarters.
"Significant Subsidiary" means any Subsidiary which is a "significant
subsidiary" of MascoTech as defined in Rule 1-02 of Regulation S-X under the
Securities Exchange Act of 1934, except that during fiscal year 1998, TriMas
Corporation shall be treated as if it were a Subsidiary of MascoTech as of
December 31, 1997, determined on a pro forma basis.
"Subordinated Debt" means, without duplication, (a) all Debt now
outstanding or hereafter created, issued, guaranteed, incurred or assumed by any
of the Borrowers which is subordinated to payment of principal, premium, if any,
and interest on the Notes by provisions not less favorable in any material
respect to the holders of the Notes than the provisions set forth on Exhibit O;
(b) Debt evidenced by MascoTech's 4-1/2% Convertible Subordinated Debentures due
2003, in the original principal amount of $345,000,000 and (c) Debt hereafter
issued pursuant to the Securities Purchase Agreement; provided, however, that
any of such Debt shall cease to be "Subordinated Debt" upon and to the extent of
the Borrowers' repurchase or redemption of such Debt as permitted hereunder or
the Borrowers' transfer, conveyance, assignment or delivery to any trustee,
paying agent or other fiduciary for the benefit of the holder(s) of such Debt of
any cash, securities or other assets of the Borrowers in payment or on account
of, or as provision for, the principal of such Debt; provided further, however,
that any of such Debt referred to in clauses (b) and (c) of this definition
shall cease to be "Subordinated Debt" upon any amendment or other modification
to the Debentures referred to in such clause (b) or any instrument issued
pursuant to the Securities Purchase Agreement referred to in clause (c)
evidencing such Debt, relating to the subordination thereof, unless, in any such
case, the provisions of such Debentures after giving effect to such amendment or
modification are not less favorable in any material respect to the holders of
the Notes than the provisions set forth on Exhibit O.
"Subsidiary" of any Person means (a) any limited partnership (whether now
existing or hereafter organized) of which such Person or another Subsidiary of
such Person is the general partner, (b) any general partnership or limited
liability company (whether now existing or hereafter organized) of which such
Person or one or more of the other Subsidiaries of such Person own at least a
majority of the ownership or membership interests and (c) any corporation
(whether now existing or hereafter organized or acquired) in which (other than
directors' qualifying shares required by law) at least a majority of the
securities having ordinary voting power for the election of directors (other
than securities having such power only by reason of the happening of a
contingency), at the time as of which
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any determination is being made, is owned, beneficially and of record, by such
Person or by one or more of the other Subsidiaries of such Person or by any
combination thereof. Unless the context otherwise requires, references to
"Subsidiary" or "Subsidiaries" herein refer to MascoTech's Subsidiaries.
"Substitute Loan" means any Loan made by a Bank pursuant to Section 5.4.
"Swing Line Bank" means The First National Bank of Chicago.
"Swing Line Borrowing" means any Borrowing consisting of a Swing Line
Loan.
"Swing Line Commitment" means the obligation of the Swing Line Bank to
make Swing Line Loans up to a maximum principal amount of $25,000,000 at any one
time outstanding.
"Swing Line Loan" means a loan made available to any of the Borrowers by
the Swing Line Bank pursuant to Section 3.5.
"Swing Line Loan Note" means a Note in substantially the form of
Exhibit B-2 hereto duly executed by the applicable Borrowers and payable to the
order of the Swing Line Bank in the amount of the Swing Line Commitment.
"Syndicated Loan" means any Revolving Loan or Term Loan.
"Syndicated Revolving Credit Borrowing" means any Borrowing consisting of
a Revolving Loan made to a Borrower on a syndicated basis.
"Syndication Period" shall have the meaning ascribed thereto in the
definition of the term "Interest Period".
"Synthetic Lease Agreement" shall have the meaning ascribed thereto in the
definition of the term "Synthetic Lease Amount".
"Synthetic Lease Amount" means, as of any date, 85% of the aggregate fair
market value of all real property subject to an agreement (a "Synthetic Lease
Agreement") for the use or possession of such real property by MascoTech or any
of its Consolidated Subsidiaries in effect at such date creating obligations
which do not appear on the balance sheet of any such Person but which, upon the
insolvency of such Person, would be characterized as Debt of such Person
(without regard to accounting treatment). For purposes of this definition, the
fair market value of each real property subject to a Synthetic Lease Agreement
shall be determined at the time of execution of such Synthetic Lease Agreement.
"Term Loan" means a Loan made pursuant to Section 3.2(a).
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"Term Loan Commitment" means, with respect to each Bank whose commitment
has not been terminated pursuant to Section 11.13, the commitment of such Bank
to make Term Loans pursuant to Section 3.2, in an aggregate principal amount
which does not exceed, (a) in the case of each Bank originally a party hereto,
the amount set forth opposite the name of such Bank on the signature pages
hereof, and (b) in the case of each Bank becoming a party hereto in accordance
with Section 11.6(d) or 11.13, the aggregate amount assigned to it, in each case
(i) less the aggregate amount, if any, subsequently assigned by it in accordance
with Section 11.6(d) and (ii) plus the aggregate amount, if any, subsequently
assigned to it under Section 11.6(d) or 11.13.
"Term Note" means a promissory note, in substantially the form of Exhibit
A-2 hereto, duly executed by a Borrower and payable to the order of Bank in the
amount of its Term Loan Commitment, including any amendment, restatement
modification, renewal or replacement of such Term Note.
"Termination Date" means the earlier to occur of (a) the Scheduled
Expiration Date and (b) the date on which the Commitments shall be terminated
pursuant to Section 3.11 or 9.1.
"Type" means, with respect to any Loan, its nature as a Floating Rate Loan
or Eurodollar Rate Loan.
"Unfunded Benefit Liabilities" means, with respect to any Plan at any
time, the amount (if any) by which (a) the present value of all vested
nonforfeitable benefits under such Plan exceeds (b) the fair market value of all
Plan assets allocable to such benefits (excluding any accrued but unpaid
contributions), all determined as of the then most recent valuation date for
such Plan, but only to the extent that such excess represents a potential
liability of a Borrower or any ERISA Affiliate to the PBGC or any other Person
under Title IV of ERISA.
1.2 Accounting Terms. Unless otherwise specified herein, all accounting
terms used herein shall be interpreted, all accounting determinations hereunder
shall be made, and all financial statements required to be delivered hereunder
shall be prepared in accordance with generally accepted accounting principles as
in effect from time to time, on a basis consistent, to the extent required by
such principles, with the most recent audited consolidated financial statements
of MascoTech and its Consolidated Subsidiaries filed with the Securities and
Exchange Commission on Form 10-K and delivered to the Banks prior to the Closing
Date; provided that, if MascoTech notifies the Administrative Agent that the
Borrowers wish to amend any covenant in Article VII to eliminate the effect of
any change in generally accepted accounting principles in the operation of such
covenant (or if the Administrative Agent notifies the Borrowers that the
Required Banks wish to amend Article VII for such purpose), then the Borrowers'
compliance with such covenant shall be determined on the basis of generally
accepted accounting principles in effect immediately before the relevant change
in generally accepted accounting principles became effective, until either such
notice is withdrawn or such covenant is amended in a manner satisfactory to the
Borrowers and the Required Banks. Without limiting the foregoing, all transfers
of receivables shall be recognized as sales, and not as Debts or Liens, if they
would be recognized as sales in accordance with generally accepted accounting
principles, provided
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that all probable adjustments in connection with the recourse provisions are
accrued, all as more specifically described in Statement of Financial Accounting
Standards No. 125.
1.3 Other Definitions; Rules of Construction. As used herein, the terms
"Acquisition", "Administrative Agent", "Agents", "Bank", "Banks", "Borrowers",
"MascoTech", "Syndication Agents", "Target" and "this Agreement" shall have the
respective meanings ascribed thereto in the introductory paragraph of this
Agreement. Use of the terms "herein", "hereof" and "hereunder" shall be deemed
references to this Agreement in its entirety and not solely to the Section or
clause in which such term appears. Unless otherwise specified herein,
references to "Sections" and "subsections" shall be to Sections and subsections,
respectively, of this Agreement.
Except as provided in the definition of Eurodollar Rate Interest Period, if any
payment, report, financial statement, notice or other obligation is due
hereunder on a day which is not a Business Day, then the due date thereof shall
be extended to the next Business Day.
ARTICLE II.
TERMINATION OF EXISTING CREDIT AGREEMENT
Termination. The Borrowers and the Banks acknowledge and agree that,
effective as of the initial Borrowing pursuant to Section 8.2(b), the Existing
Commitment of each Existing Bank shall hereby be terminated. Each Existing Bank
that is a party hereto shall cancel all Existing Notes (other than notes
evidencing Existing Bid-Option Loans that the holder thereof has agreed may
remain outstanding past the Closing Date) held by it and return them to
MascoTech promptly after all amounts payable thereunder have been paid in full.
Notwithstanding the foregoing, MascoTech and each of the Banks acknowledge and
agree that each Existing Bid-Option Loan made by any of the Banks which has
agreed that such Loan may remain outstanding past the Closing Date shall
continue with its existing principal amount, interest rate and Interest Period,
except that each such Existing Bid-Option Loan shall be deemed a Bid-Option Loan
under this Agreement and shall be governed by the provisions of this Agreement.
ARTICLE III.
THE LOANS AND LETTER OF CREDIT ISSUANCES
3.1 Revolving Loans. Each Bank agrees, for itself only, subject to the
terms and conditions set forth in this Agreement, to make Revolving Loans in
Dollars to any Borrower from time to time from the Closing Date to but excluding
the Termination Date; provided that the aggregate outstanding principal amount
of such Bank's Revolving Loans shall not at any time exceed the excess of (a)
the amount of its Revolving Credit Commitment, over (b) the sum of (i) its
Revolving Credit
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Commitment Percentage of the Letter of Credit Obligations Amount plus (ii) its
Revolving Credit Commitment Percentage of the aggregate outstanding principal
balance of the Swing Line Loans plus (iii) its Revolving Credit Commitment
Percentage of the Dollar Equivalent of the aggregate outstanding principal
amount of all Bid-Option Loans made by the Banks (using for purposes of such
determination, in the case of any Alternate Currency Loans, the Dollar
Equivalent as determined on the last Business Day of the month then most
recently ended); provided, however, that at no time shall the aggregate
outstanding principal balance of the Revolving Loans, Swing Line Loans,
Alternate Currency Loans, Bid-Option Loans and Letter of Credit Obligations
exceed $800,000,000. Each Eurodollar Borrowing shall be in an aggregate
principal amount of $10,000,000 or any larger multiple of $5,000,000 and each
Floating Rate Borrowing shall be in an aggregate principal amount of $5,000,000
or any larger multiple of $5,000,000; provided that any such Borrowing may be in
the aggregate amount of the unused Revolving Credit Commitments. Each such
Borrowing shall be made by the several Banks ratably in accordance with their
respective Revolving Credit Commitment Percentages. Within the foregoing
limits, each Borrower may borrow Revolving Loans under this Section 3.1, repay
such Revolving Loans, prepay such Loans to the extent permitted or required by
this Agreement and reborrow under this Section 3.1. Default by any Bank with
respect to its obligations hereunder shall not excuse any non-performance by any
other Bank, provided that no Bank shall be liable for the non-performance by any
other Bank of its obligations hereunder.
3.2 Term Loans. Subject to the terms and conditions set forth in
this Agreement, each Bank on the Closing Date severally and not jointly agrees
to make a term loan, in Dollars, to one or more of the Borrowers in an aggregate
amount not to exceed such Bank's Term Loan Commitment (each individually, a
"Term Loan" and, collectively, the "Term Loans"). All Term Loans shall be made
by the Banks on the Closing Date simultaneously and pro rata, it being
understood that no Bank shall be responsible for any failure by any other Bank
to perform its obligation to make any Term Loan hereunder nor shall the Term
Loan Commitment of any Bank be increased or decreased as a result of any such
failure.
3.3 Letters of Credit.
(a) Subject to the terms and conditions set forth in this
Agreement, the Administrative Agent agrees to issue for the account of and upon
the application of any of the Borrowers, and each Bank further agrees for itself
only to participate in the risk of, Letters of Credit from time to time from the
Closing Date to but excluding the Termination Date; provided that the Letter of
Credit Obligations Amount shall not at any time exceed the lesser of (i)
$150,000,000 and (ii) the excess of (A) the aggregate amount of the Revolving
Credit Commitments over (B) the aggregate outstanding principal amount of the
Revolving Loans plus the outstanding principal amount of the Swing Line Loans
plus the outstanding principal balance of the Bid-Option Loans plus the
aggregate outstanding principal amount of the Alternate Currency Syndicated
Loans. No Letter of Credit shall have a stated expiry date earlier than 30 days
after the date of its issuance, and no Letter of Credit shall have a stated
expiry date or, if by its terms it is periodically renewable, be subject to
being terminated by the Administrative Agent (unless renewal is permitted by the
Administrative Agent in its sole discretion, in which case the Administrative
Agent will not permit renewal to a date beyond that
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determined in accordance with the following portion of this sentence), later
than the earlier of (i) the one year anniversary of its issuance (or, if
renewable and renewal has been permitted, the one year anniversary of its last
renewal) and (ii) the fifth Business Day before the Scheduled Expiration Date.
Each Letter of Credit shall be in a minimum amount of $1,000,000 or as otherwise
agreed to by the Administrative Agent. Subject to the terms and conditions set
forth in this Agreement, the Administrative Agent shall, on the date any Letter
of Credit is requested to be issued, issue the related Letter of Credit for the
pro rata risk of the Banks. Notwithstanding anything herein to the contrary,
the Administrative Agent may decline to issue any Letter of Credit if the
beneficiary or the conditions of drawing are reasonably unacceptable to the
Administrative Agent, or if the purpose of issuance is illegal or is in
contravention of any law, rule, regulation or public policy or any judgment,
decree, writ, injunction, order or award of any arbitrator, court or
governmental authority.
(b) The applicable Borrower shall give the Administrative Agent
written notice in substantially the form attached hereto as Exhibit D (a
"Request for Letter of Credit Issuance") not later than 10:00 a.m. (Detroit
time) on the fifth Business Day before each requested Letter of Credit Issuance
or such later time as is acceptable to the Administrative Agent.
(c) The applicable Borrower agrees (i) to pay to the
Administrative Agent for the account of the Banks a fee computed at the per
annum rate equal to the Applicable Margin for Letters of Credit based on the
maximum amount available to be drawn from time to time under the related Letter
of Credit for the period from and including the date of such Letter of Credit
Issuance to but excluding the stated expiry date of such Letter of Credit, and
(ii) to pay an additional fee to the Administrative Agent for its own account
computed at the rate of one-eighth of one percent (1/8 of 1%) per annum of such
maximum amount for such period, such fees with respect to any Letter of Credit
to be paid quarterly in arrears, in each case with respect to each calendar
quarter or portion thereof not later than the tenth day after the end of each
March, June, September and December, commencing with the first such calendar
quarter-end after the Closing Date, and on the Termination Date, based upon the
Applicable Margin for Letters of Credit in effect from time to time during such
period. The applicable Borrower further agrees to pay to the Administrative
Agent, on demand, such other customary administrative fees, charges and expenses
of the Administrative Agent in respect of the issuance, negotiation, acceptance,
amendment, transfer and payment of such Letter of Credit or otherwise payable
pursuant to the application and related documentation under which such Letter of
Credit is issued.
(d) Nothing in this Agreement shall be construed to require or
authorize any Bank to issue any Letter of Credit, it being recognized that the
Administrative Agent has the sole obligation under this Agreement to issue
Letters of Credit for the risk of the Banks. Upon each Letter of Credit
Issuance, each Bank shall automatically acquire a pro rata risk participation
interest in the related Letter of Credit based on its respective Revolving
Credit Commitment Percentage. If the Administrative Agent shall honor a draft
or other demand for payment presented or made under any Letter of Credit, the
Administrative Agent shall provide notice thereof to each Bank on the date such
draft or demand is honored unless the applicable Borrower shall have satisfied
its reimbursement obligation under subsection (e) of this Section 3.3 by payment
to the Administrative Agent on such date. Each Bank,
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on such date, shall make an amount equal to its Revolving Credit Commitment
Percentage of the amount paid by the Administrative Agent available in
immediately available funds at the principal office of the Administrative Agent
for the account of the Administrative Agent. If and to the extent such Bank
shall not have made such amount available to the Administrative Agent, such Bank
and the applicable Borrower severally agree to pay to the Administrative Agent
forthwith on demand such amount, together with interest thereon for each day
from the date such amount was paid by the Administrative Agent until such amount
is so made available to the Administrative Agent at (i) in the case of such
Bank, the Federal Funds Rate and (ii) in the case of the applicable Borrower,
the per annum rate equal to the interest rate applicable during such period to
the related Borrowing deemed (or that could have been deemed) disbursed under
subsection (e) of this Section 3.3 in respect of the reimbursement obligation of
the applicable Borrower. If such Bank shall pay such amount to the
Administrative Agent together with such interest, if any, accrued, such amount
so paid shall constitute a Revolving Loan by such Bank as part of the Borrowing
disbursed in respect of the reimbursement obligation of the applicable Borrower
under subsection (e) of this Section 3.3 for purposes of this Agreement. The
failure of any Bank to make an amount equal to its Revolving Credit Commitment
Percentage of any such amount paid by the Administrative Agent available to the
Administrative Agent shall not relieve any other Bank of its obligation to make
available an amount equal to such other Bank's Revolving Credit Commitment
Percentage of such amount, but no Bank shall be responsible for failure of any
other Bank to make its share available to the Administrative Agent.
(e)(i) Whether a Letter of Credit was issued for the account of any
Borrower or any Consolidated Subsidiary of such Borrower, and without limiting
the reimbursement obligation of such other Consolidated Subsidiary, such
Borrower agrees to pay to the Administrative Agent, not later than 3:00 p.m.
(Detroit time) on the date on which the Administrative Agent shall honor a draft
or other demand for payment presented or made under such Letter of Credit, an
amount equal to the amount paid by the Administrative Agent in respect of such
draft or other demand under such Letter of Credit and all expenses paid or
incurred by the Administrative Agent relative thereto (the "Reimbursement
Amount"). The Administrative Agent shall, on the date of each demand for
payment under any Letter of Credit, give such Borrower notice thereof and of the
amount of such Borrower's reimbursement obligation and liability for expenses
relative thereto; provided that the failure of the Administrative Agent to give
such notice shall not affect the reimbursement and other obligations of such
Borrower under this Section 3.3. Unless such Borrower shall have made such
payment to the Administrative Agent on such day, upon each such payment by the
Administrative Agent, such Borrower shall be deemed to have elected to satisfy
its reimbursement obligation by a Floating Rate Borrowing of a Revolving Loan in
an amount equal to the amount so paid by the Administrative Agent in respect of
such draft or other demand under such Letter of Credit, and the Administrative
Agent shall be deemed to have disbursed to such Borrower, for the account of the
Banks, the Revolving Loans comprising such Floating Rate Borrowing, and each
Bank shall make its share of each such Floating Rate Borrowing available to the
Administrative Agent in accordance with Section 3.7(d). Such Revolving Loans
shall be deemed disbursed notwithstanding any failure to satisfy any conditions
for disbursement of any Loan set forth in Article VIII and, to the extent of the
Revolving Loans so disbursed, the reimbursement obligation of such Borrower
under this subsection (e)(i) shall be deemed satisfied.
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(ii) If, for any reason (including without limitation as a
result of the occurrence of an Event of Default with respect to any of the
Borrowers pursuant to Section 9.1(f) or (g)), Revolving Loans may not be made by
the Banks as described in Section 3.3(e)(i), then (A) such Borrower agrees that
each Reimbursement Amount not paid pursuant to the first sentence of Section
3.3(e)(i) shall bear interest, payable on demand by the Administrative Agent, at
the interest rate then applicable to Revolving Loans, and (B) effective on the
date each such Revolving Loans would otherwise have been made, each Bank
severally agrees that it shall unconditionally and irrevocably, without regard
to the occurrence of any Default, to the extent of such Bank's Revolving Credit
Commitment Percentage, purchase a participating interest in each Reimbursement
Amount. Each Bank will immediately transfer to the Administrative Agent, in
same day funds, the amount of its participation. Each Bank shall share on a pro
rata basis (calculated by reference to its Revolving Credit Commitment
Percentage) in any interest which accrues thereon and in all repayments
thereof. If and to the extent that any Bank shall not have so made the amount of
such participating interest available to the Administrative Agent, such Bank
agrees to pay to the Administrative Agent forthwith on demand such amount
together with interest thereon, for each day from the date of demand by the
Administrative Agent until the date such amount is paid to the Administrative
Agent, at the Federal Funds Rate.
(f) The reimbursement obligation of the Borrowers under this
Section 3.3 with respect to each Letter of Credit shall be absolute,
unconditional and irrevocable and shall remain in full force and effect until
all such obligations of the Borrowers to the Banks and the Administrative Agent
with respect to such Letter of Credit shall have been satisfied, and such
obligations of the Borrowers shall not be affected, modified or impaired upon
the happening of any event, including without limitation, any of the following,
whether or not with notice to, or the consent of, the Borrowers:
(i) Any lack of validity or enforceability of any Letter of Credit
or any documentation relating to any Letter of Credit or to any
transaction related in any way to such Letter of Credit (the "Letter of
Credit Documents");
(ii) Any amendment, modification, waiver, consent, or any
substitution, exchange or release of or failure to perfect any interest in
collateral or security, with respect to any of the Letter of Credit
Documents;
(iii) The existence of any claim, setoff, defense or other right
which the Borrowers may have at any time against any beneficiary or any
transferee of any Letter of Credit (or any persons or entities for whom
any such beneficiary or any such transferee may be acting), the
Administrative Agent or any Bank or any other Person, whether in
connection with any of the Letter of Credit Documents, the transactions
contemplated herein or therein or any unrelated transactions;
(iv) Any draft or other statement or document presented under any
Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect;
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(v) Payment by the Administrative Agent to the beneficiary under
any Letter of Credit against presentation of documents which do not comply
with the terms of the Letter of Credit, including failure of any documents
to bear any reference or adequate reference to such Letter of Credit;
(vi) Any failure, omission, delay or lack on the part of the
Administrative Agent or any Bank or any party to any of the Letter of
Credit Documents to enforce, assert or exercise any right, power or remedy
conferred upon the Administrative Agent, any Bank or any such party; or
(vii) Any other event or circumstance that would, in the absence of
this clause, result in the release or discharge by operation of law or
otherwise of the Borrowers from the performance or observance of any
obligation, covenant or agreement contained in this Section 3.3.
No setoff, counterclaim, reduction or diminution of any obligation or any
defense of any kind or nature which the Borrowers have or may have against the
beneficiary of any Letter of Credit shall be available hereunder to the
Borrowers against the Administrative Agent or any Bank. Nothing in this Section
3.3 shall limit the liability, if any, of the Administrative Agent to the
Borrowers pursuant to Section 11.5(c).
3.4 Bid-Option Borrowings.
(a) The Bid-Option. In addition to Syndicated Borrowings that are
made pursuant to Sections 3.1 and 3.2, so long as the most recently determined
Senior Debt Coverage Ratio is less than 3.0 to 1.0 (except as provided in
Article II with respect to Existing Bid-Option Loans), the Borrowers may, as set
forth in this Section, from time to time after the Closing Date to but excluding
the Termination Date request the Banks to offer to make Bid-Option Loans to any
one or more of the Borrowers. Each Bank may, but shall have no obligation to,
make such offers; furthermore, each Bank may limit the aggregate amount of Bid-
Option Loans when quoting rates for more than one Bid-Option Interest Period in
any Bid-Option Quote, provided that such limitation shall not be less than the
minimum amounts required hereunder for Bid-Option Loans and the applicable
Borrower may choose among the Bid-Option Loans if such limitation is imposed.
The applicable Borrower may, but shall have no obligation to, accept any such
offers, in the manner set forth in this Section; provided that the Dollar
Equivalent of the aggregate outstanding principal amount of Bid-Option Loans
(using for purposes of such determination, in the case of any Alternate Currency
Loans, the Dollar Equivalent determined on the last Business Day of the month
then most recently ended) shall not, at any time exceed the lesser of (i) the
excess of (A) the aggregate amount of the Revolving Credit Commitments over (B)
the sum of the aggregate outstanding principal amount of Revolving Loans plus
the Letter of Credit Obligations Amount plus the outstanding principal balance
of the Swing Line Loans plus the outstanding principal balance of the Alternate
Currency Syndicated Loans, or (ii) fifty percent (50%) of the sum of the
aggregate amount of the Revolving Credit Commitments and the aggregate principal
amount of the Term Loans (as the same may be reduced in accordance with the
terms of this
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Agreement during any applicable Bid-Option Interest Period); and provided,
further, that the Dollar Equivalent of the aggregate outstanding principal
amount of Alternate Currency Bid-Option Loans shall not exceed $200,000,000
(when taken together with the Alternate Currency Syndicated Loans).
(b) Bid-Option Quote Requests. When the applicable Borrower
wishes to request offers to make Bid-Option Loans under this Section, it shall
transmit to the Administrative Agent by telex or telecopy a request
substantially in the form attached hereto as Exhibit E (a "Bid-Option Quote
Request") so as to be received no later than 10:00 a.m. (Detroit time) on (i)
the Business Day next preceding the date of the Borrowing proposed therein, in
the case of a Bid-Option Auction for Absolute Rate Dollar Bid-Option Loans, (ii)
the fifth Business Day next preceding the date of the Borrowing in the case of a
Bid-Option Auction for Eurodollar Rate Bid-Option Loans, or (iii) the fifth
Business Day prior to the date of Borrowing proposed therein, in the case of a
Bid-Option Auction for Alternate Currency Bid-Option Loans, specifying:
(A) the proposed date of the Borrowing, which shall be a Business
Day;
(B) whether the Borrowing is to be an Absolute Rate Dollar Bid-
Option Borrowing, a Eurodollar Rate Bid-Option Borrowing or an Alternate
Currency Bid-Option Borrowing and, if an Alternate Currency Bid-Option
Borrowing, the desired Alternate Currency;
(C) the aggregate amount of such Borrowing, which shall be (A)
$25,000,000 or a larger multiple of $5,000,000, in the case of a Dollar Bid-
Option Borrowing, or (B) not less than the Dollar Equivalent of $5,000,000, in
the case of a Alternate Currency Bid-Option Borrowing; and
(D) the duration of the Interest Period applicable thereto,
subject to the provisions of the definition of the applicable Interest Period.
The Borrowers may request offers to make Bid-Option Loans for more than one
Interest Period in a single Bid-Option Quote Request. The Borrowers may not
request offers to make Bid-Option Loans in more than one currency in any Bid-
Option Quote Request and may not make more than five Bid-Option Borrowings
during any month without the consent of the Administrative Agent.
(c) Invitation for Bid-Option Quotes. Promptly upon receipt of a
Bid-Option Quote Request, the Administrative Agent shall send to the Banks by
telex or telecopy (or telephone promptly confirmed by telex or telecopy) an
Invitation for Bid-Option Quotes substantially in the form attached hereto as
Exhibit F, which shall constitute an invitation by the applicable Borrower to
each
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Bank to submit Bid-Option Quotes offering to make the Bid-Option Loans to which
such Bid-Option Quote Request relates in accordance with this Section.
(d) Submission and Contents of Bid-Option Quotes. (i) Each Bank
may submit a Bid-Option Quote containing an offer or offers to make Bid-Option
Loans in response to any Invitation for Bid-Option Quotes. Each Bid-Option
Quote must comply with the requirements of this subsection (d) and must be
submitted to the Administrative Agent by telex or telecopy (or by telephone
promptly confirmed by telex or telecopy) not later than (A) 9:00 a.m. (Detroit
time) on the proposed date of the Borrowing, in the case of a Bid-Option Auction
for Absolute Rate Dollar Bid-Option Loans, (B) 10:00 a.m. (Detroit time) on the
fourth Business Day prior to the proposed date of the Borrowing, in the case of
a Bid-Option Auction for Eurodollar Rate Bid-Option Loans, or (C) 2:00 p.m.
(Detroit time) on the third Business Day prior to the proposed date of the
Borrowing, in the case of a Bid-Option Auction for Alternate Currency Bid-Option
Loans; provided that Bid-Option Quotes submitted by the Administrative Agent (or
any Affiliate of the Administrative Agent) in its capacity as a Bank may be
submitted, and may only be submitted, if the Administrative Agent or such
Affiliate notifies the applicable Borrower of the terms of the offer or offers
contained therein not later than (A) 8:45 a.m. (Detroit time) on the proposed
date of the Borrowing, in the case of a Bid-Option Auction for Absolute Rate
Dollar Bid-Option Loans, (B) 9:45 a.m. (Detroit time) on the fourth Business Day
prior to the proposed date of the Borrowing, in the case of a Bid-Option Auction
for Eurodollar Rate Bid-Option Loans, or (C) 1:00 p.m. (Detroit time) on the
third Business Day prior to the proposed date of the Borrowing in the case of a
Bid-Option Auction for Alternate Currency Bid-Option Loans. Subject to Section
3.4(e), Article VIII and Article IX, any Bid-Option Quote so made shall be
irrevocable except with the written consent of the Administrative Agent given on
the instructions of the applicable Borrower.
(ii) Each Bid-Option Quote shall be in substantially the form
attached hereto as Exhibit G and shall in any case specify:
(A) the proposed date of the Borrowing;
(B) whether the Bid-Option Loans for which the
offers are made are Absolute Rate Dollar Bid-Option
Loans, Eurodollar Rate Bid-Option Loans or Alternate
Currency Bid-Option Loans, which must match the
type of Borrowing stated in the related Invitation for
Bid-Option Quotes;
(C) the principal amount of the Bid-Option Loan
for which each such offer is being made, the Dollar
Equivalent of which (1) may, together with the Dollar
Equivalent of the aggregate outstanding principal
amount of all other Loans made by the quoting Bank,
exceed the amount of the Commitment of the quoting
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Bank, (2) must be (y) in the case of any Dollar Bid-
Option Loan, $5,000,000 or a larger multiple thereof,
or (z) in the case of any Alternate Currency Bid-Option
Loan, not less than $1,000,000, and (3) may not
exceed the Dollar Equivalent of the aggregate principal
amount of the Bid-Option Borrowing specified in the
related Invitation for Bid-Option Quotes;
(D) in the case of a Bid-Option Auction for
Absolute Rate Dollar Bid-Option Loans or Alternate
Currency Bid-Option Loans, the rate of interest per
annum (the "Bid-Option Absolute Rate") offered for
each such Bid-Option Loan;
(E) in the case of a Bid-Option Auction for
Eurodollar Rate Bid-Option Loans, the applicable
margin, which may be positive or negative (the "Bid-
Option Eurodollar Rate Margin"), expressed as a
percentage, offered for each such Bid-Option Loan;
(F) the Interest Period(s) for which each such Bid-
Option Absolute Rate or Bid-Option Eurodollar Rate
Margin, as the case may be, is offered; and
(G) the identity of the quoting Bank.
(iii) Any Bid-Option Quote shall be disregarded if it:
(A) is not substantially in the form of Exhibit G
hereto or does not specify all of the information
required by subsection (d)(ii) above;
(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in addition to
those set forth in the applicable Invitation for Bid-
Option Quotes; or
(D) arrives after the time set forth in subsection (d)(i);
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provided that a Bid-Option Quote shall not be disregarded pursuant to clause (B)
or (C) above solely because it indicates that an allocation that might otherwise
be made to it pursuant to Section 3.4(g) would be unacceptable.
(e) Notice to Borrowers. The Administrative Agent shall promptly
notify the applicable Borrower of the terms (i) of any Bid-Option Quote
submitted by a Bank that is in accordance with subsection (d) of this Section
and (ii) of any Bid-Option Quote that amends, modifies or is otherwise
inconsistent with a previous Bid-Option Quote submitted by such Bank with
respect to the same Bid-Option Quote Request. Any such subsequent Bid-Option
Quote shall be disregarded by the Administrative Agent unless such subsequent
Bid-Option Quote is submitted solely to correct a manifest error in such former
Bid-Option Quote. The Administrative Agent's notice to the applicable Borrower
shall specify (i) the Dollar Equivalent of the aggregate principal amount of
Bid-Option Loans for which offers have been received for each Interest Period
specified in the related Bid-Option Quote Request and (ii) the respective Dollar
Equivalent of the principal amounts and respective Bid-Option Absolute Rates or
Bid-Option Eurodollar Rate Margins, as the case may be, so offered.
(f) Acceptance and Notice by Borrowers. Not later than 10:00 a.m.
(Detroit time) on (i) the proposed date of the Borrowing, in the case of a Bid-
Option Auction for Absolute Rate Dollar Bid-Option Loans, (ii) the third
Business Day prior to the proposed date of the Borrowing, in the case of a Bid-
Option Auction for Eurodollar Rate Bid-Option Loans, or (iii) the second
Business Day prior to the proposed date of the Borrowing, in the case of a Bid-
Option Auction for Alternate Currency Bid-Option Loans, the applicable Borrower
shall notify the Administrative Agent of its acceptance or non-acceptance of the
offers so notified to it pursuant to subsection (e) of this Section 3.4. In the
case of acceptance, such notice (a "Notice of Bid-Option Borrowing") shall
specify the aggregate principal amount of accepted offers for the applicable
Interest Period(s). The applicable Borrower may accept any Bid-Option Quote in
whole or in part; provided that:
(A) the Dollar Equivalent of the aggregate principal
amount of each Bid-Option Borrowing may not exceed
the applicable amount set forth in the related Bid-Option Quote
Request;
(B) the Dollar Equivalent of the aggregate principal
amount of each Bid-Option Borrowing must be (1) in
the case of Dollar Bid-Option Borrowings,
$25,000,000 or a larger multiple of $5,000,000, unless
the aggregate amount of the related Bid-Option Loans
for which Bid-Option Quotes were received is less than
$25,000,000, in which case the aggregate principal
amount of the Dollar Bid-Option Borrowing may be
any amount less than $25,000,000, and (2) in the case
of Alternate Currency Bid-Option Loans, not less than
$5,000,000 (or, if less, the aggregate amount of the
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related Bid-Option Loans for which Bid-Option
Quotes were received);
(C) acceptance of offers may only be made on the
basis of ascending Bid-Option Absolute Rates or Bid-
Option Eurodollar Rate Margins, as the case may be;
and
(D) a Borrower may not accept any offer that is
described in clause (iii) of subsection (d) of this Section
or that otherwise fails to comply with the requirements
of this Agreement.
(g) Allocation by Administrative Agent. If offers are made by two
or more Banks with the same Bid-Option Absolute Rates or Bid-Option Eurodollar
Rate Margins, as the case may be, for a greater aggregate principal amount than
the amount in respect of which offers are accepted for the related Interest
Period, the principal amount of Bid-Option Loans in respect of which such offers
are accepted shall be allocated by the Administrative Agent among such Banks as
nearly as possible (in such multiples, not greater than the Dollar Equivalent of
$500,000, as the Administrative Agent may deem appropriate) in proportion to the
aggregate principal amount of such offers (excluding any Bank that has indicated
in its offer that an allocation which otherwise would be made to it is
unacceptable). Determinations by the Administrative Agent of the amounts of
Bid-Option Loans shall be conclusive in the absence of manifest error.
3.5 Swing Line Loans. (a) Amount of Swing Line Loans. Upon the
satisfaction of the conditions precedent set forth in Sections 8.1 8.2 and 8.3,
from and including the date of this Agreement and prior to the Termination Date,
the Swing Line Bank agrees, on the terms and conditions set forth in this
Agreement, to make Swing Line Loans in Dollars to the Borrowers from time to
time in an amount not to exceed the lesser of (i) $25,000,000 (minus the
outstanding principal balance of all Swing Line Loans then outstanding) or (ii)
an amount equal to the aggregate amount of the Revolving Credit Commitments
minus the outstanding principal balance of the Revolving Loans minus the Letter
of Credit Obligations Amount minus the outstanding principal balance of the Bid-
Option Loans minus the outstanding principal balance of all Swing Line Loans at
such time minus the outstanding principal balance of the Alternate Currency
Syndicated Loans at such time, in each case after giving effect to the
application of the proceeds of any Swing Line Loans made at such time (using for
purposes of such determination, in the case of any Alternate Currency Loans, the
Dollar Equivalent determined on the last Business Day of the month then most
recently ended). Each Swing Line Loan shall be in a minimum amount of not less
than $1,000,000 (or such lesser amount as may be agreed to by the Swing Line
Bank) or an integral multiple of $1,000,000 (or such lesser amount as may be
agreed to by the Swing Line Bank) in excess thereof, and all interest payable on
the Swing Line Loans shall be payable to the Swing Line Bank for its account.
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(b) Borrowing Notice. The applicable Borrower shall deliver to the
Administrative Agent and the Swing Line Bank a Borrowing Notice in substantially
the form attached hereto as Exhibit C-2 ("Notice of Swing Line Borrowing")
signed by it not later than 2:00 p.m. (Detroit time) (or such later time as
shall be agreed upon between such Borrower and the Swing Line Bank) on the
Borrowing Date of each Swing Line Loan specifying (i) the applicable Borrowing
Date (which shall be a Business Day) and (ii) the aggregate amount of the
requested Swing Line Loan. The Swing Line Loans shall at all times be at rates
agreed to between the applicable Borrower and the Swing Line Bank.
(c) Repayment of Swing Line Loans. The Swing Line Loans shall be
evidenced by the Swing Line Loan Notes and each Swing Line Loan shall be paid in
full on or before the sixth Business Day after the Borrowing Date for such Swing
Line Loan (or such longer period as may be agreed to by the Swing Line Bank).
Outstanding Swing Line Loans may be repaid from the proceeds of Revolving Loans
or Swing Line Loans. Any repayment of a Swing Line Loan shall be accompanied by
accrued interest thereon and shall be in the minimum amount of $1,000,000 (or
such lesser amount as may be agreed to by the Swing Line Bank) and in increments
of $1,000,000 (or such lesser amount as may be agreed to by the Swing Line Bank)
in excess thereof or the full amount of such Swing Line Loan. If the applicable
Borrower at any time fails to repay a Swing Line Loan on the applicable date
when due, the applicable Borrower shall be deemed to have elected to borrow a
Floating Rate Loan under Section 3.1 as of such date equal in amount to the
unpaid amount of such Swing Line Loan (notwithstanding the minimum amount of
Floating Rate Loans as provided in Section 3.1). The proceeds of any such Loan
shall be used to repay such Swing Line Loan. Unless the Administrative Agent
upon the request of or with the consent of the Required Banks shall have
notified the Swing Line Bank prior to making any Swing Line Loan, that the
applicable conditions precedent set forth in Article VIII have not then been
satisfied, each Bank's obligation to make Loans pursuant to Section 3.1 and to
repay such Swing Line Loan pursuant to this Section 3.5 shall be unconditional,
continuing, irrevocable and absolute and shall not be affected by any
circumstances, including the occurrence or continuance of a Default. In the
event that any Bank fails to make payment to the Administrative Agent of any
amount due under this Section 3.5(c), the Administrative Agent shall be entitled
to receive, retain and apply against such obligation the principal and interest
otherwise payable to such Bank hereunder until the Administrative Agent receives
such payment from such Bank or such obligation is otherwise fully satisfied. In
addition to the foregoing, if for any reason any Bank fails to make payment to
the Administrative Agent of any amount due under this Section 3.5(c), such Bank
shall be deemed, at the option of the Administrative Agent, to have
unconditionally and irrevocably purchased from the Swing Line Bank, without
recourse or warranty, an undivided interest in and participation in the Swing
Line Loan in the amount of the Loan such Bank was required to make pursuant to
this Section 3.5(c) and such interest and participation may be recovered from
such Bank together with interest thereon at the Federal Funds Rate for each day
during the period commencing on the date of demand by the Administrative Agent
and ending on the date such obligation is fully satisfied.
3.6 Alternate Currency Syndicated Loans.
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(a) Upon the satisfaction of the conditions precedent set forth in
Sections 8.1, 8.2 and 8.3 hereof and set forth in the applicable Alternate
Currency Addendum, from and including the later of the date of this Agreement
and the date of execution of the applicable Alternate Currency Addendum and
prior to the Termination Date (unless an earlier termination date shall be
specified in the applicable Alternate Currency Addendum), each applicable
Alternate Currency Bank agrees, on the terms and conditions set forth in this
Agreement and in the applicable Alternate Currency Addendum, to make Alternate
Currency Syndicated Loans under such Alternate Currency Addendum to the
applicable Borrower party to such Alternate Currency Addendum from time to time
in the applicable Alternate Currency, in an amount not to exceed each such
Alternate Currency Bank's applicable Alternate Currency Commitment; provided,
however, at no time shall the Dollar Equivalent of the outstanding principal
amount of the Alternate Currency Loans for all Alternate Currencies exceed
$200,000,000 other than as a result of currency fluctuations and then only to
the extent permitted in Section 4.2(h); provided, further, at no time shall the
Dollar Equivalent of the Alternate Currency Syndicated Loans for any specific
Alternate Currency exceed the maximum amount specified as the maximum amount for
such Alternate Currency in the applicable Alternate Currency Addendum other than
as a result of currency fluctuations and then only to the extent permitted in
Section 4.2(h). Each Alternate Currency Syndicated Loan under this Section 3.6
shall consist of Alternate Currency Syndicated Loans made by each applicable
Alternate Currency Bank ratably in proportion to such Alternate Currency Bank's
respective Alternate Currency Share. Subject to the terms of this Agreement and
the applicable Alternate Currency Addendum, the Borrowers may borrow, repay and
reborrow Alternate Currency Syndicated Loans at any time prior to the
Termination Date. On the Termination Date, the outstanding principal balance of
the Alternate Currency Loans shall be paid in full by the applicable Borrower
and prior to the Termination Date prepayments of the Alternate Currency Loans
shall be made by the applicable Borrower if and to the extent required in
Section 4.2.
(b) MascoTech may, by written notice to the Administrative Agent request
the establishment of additional Alternate Currency Commitments in additional
Alternate Currencies other than Pounds Sterling, Deutsche Marks and Italian
Lire, provided the Dollar Equivalent of the aggregate amount of all of the
Alternate Currency Commitments does not exceed $200,000,000 ("Request for a New
Alternate Currency Facility"). The Administrative Agent will promptly forward
to the Banks any Request for a New Alternate Currency Facility received from
MascoTech; provided each Bank shall be deemed not to have agreed to such request
unless its written consent thereto has been received by the Administrative Agent
within ten (10) Business Days from the date of such notification by the
Administrative Agent to such Bank. In the event that sufficient Banks consent
to such Request for a New Alternate Currency Facility, upon execution of the
applicable Alternate Currency Addendum and the other documents, instruments and
agreements required pursuant to this Agreement and such Alternate Currency
Addendum, the Alternate Currency Loans with respect thereto may be made.
(c) Except as otherwise required by applicable law, in no event shall
the Alternate Currency Agent or Alternate Currency Banks have the right to
accelerate the Alternate Currency Loans outstanding under any Alternate Currency
Addendum or to terminate their commitments (if any)
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thereunder to make Alternate Currency Loans prior to the stated termination date
in respect thereof, except that such Alternate Currency Agent and Alternate
Currency Banks shall, in each case, have such rights upon an acceleration of the
Loans and a termination of the Revolving Credit Commitments pursuant to Article
IX.
(d) Each Alternate Currency Agent shall furnish to the Administrative
Agent and the applicable Alternate Currency Banks, not less frequently than
monthly, and at any other time at the reasonable request of the Administrative
Agent, a statement setting forth the outstanding Alternate Currency Loans made
and repaid during the period since the last such report under such Alternate
Currency Addendum.
(e) Immediately and automatically upon the occurrence of an Event of
Default under Section 9.1(a), (f) or (g), each Bank shall be deemed to have
unconditionally and irrevocably purchased from each Alternate Currency Bank,
without recourse or warranty, an undivided interest in and participation in each
Alternate Currency Syndicated Loan ratably in accordance with such Bank's
Revolving Credit Commitment Percentage of the amount of such Loan, and
immediately and automatically all Alternate Currency Syndicated Loans shall be
converted to and redenominated in Dollars equal to the Dollar Equivalent of each
such Alternate Currency Loan determined as of the date of such conversion. Each
of the Banks shall pay to the applicable Alternate Currency Bank not later than
two (2) Business Days following a request for payment from such Alternate
Currency Bank, in Dollars, an amount equal to the undivided interest in and
participation in the Alternate Currency Syndicated Loan purchased by such Bank
pursuant to this Section 3.6(e). In the event that any Bank fails to make
payment to the applicable Alternate Currency Bank of any amount due under this
Section 3.6(e), the Administrative Agent shall be entitled to receive, retain
and apply against such obligation the principal and interest otherwise payable
to such Bank hereunder until the Administrative Agent receives from such Bank an
amount sufficient to discharge such Bank's payment obligation as prescribed in
this Section 3.6(e) together with interest thereon at the Federal Funds Rate for
each day during the period commencing on the date of demand by the
Administrative Agent and ending on the date such obligation is fully satisfied.
The Administrative Agent will promptly remit all payments received as provided
above to the applicable Alternate Currency Bank.
3.7 Notice to Banks; Funding of Loans.
(a) Notice of Syndicated Borrowings. The applicable Borrower shall
give the Administrative Agent or the applicable Alternate Currency Agent, as
required, written notice in substantially the form attached hereto as Exhibit C-
1 (a "Notice of Syndicated Borrowing") signed by an Authorized Officer or person
designated by an Authorized Officer not later than 12:00 noon (Detroit time) on
the Business Day of each Borrowing of a Floating Rate Revolving Loan, not later
than 11:00 a.m. (Detroit time) on the third Business Day before each Borrowing
of a Eurodollar Rate Syndicated Loan, and not later than 11:00 a.m. (Detroit
time) on the fourth Business Day before each Borrowing of an Alternate Currency
Syndicated Loan, or as specified in the applicable Alternate Currency Addendum,
specifying: (i) the date of such Borrowing, which shall be a Business Day, (ii)
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whether such Borrowing is pursuant to a Term Loan, a Revolving Credit Syndicated
Loan or an Alternate Currency Syndicated Loan, (iii) the aggregate amount of
such Borrowing and, in the case of each Alternate Currency Syndicated Loan, the
Dollar Equivalent of such Borrowing and the currency in which such Borrowing is
denominated, (iv) whether the Loans comprising such Borrowing are to be, in the
case of Term Loans or Revolving Loans, Floating Rate Loans or Eurodollar Rate
Syndicated Loans or Alternate Currency Syndicated Loans and (v) in the case of
each Eurodollar Rate Syndicated Borrowing or Alternate Currency Syndicated Loan,
the duration of the Interest Period applicable thereto, which shall comply with
the provisions of the definition of the applicable Interest Period.
(b) Request for Letter of Credit Issuance; Notice of Bid-Option
Borrowing; Notice of Swing Line Borrowing. The applicable Borrower shall give
the Administrative Agent or the applicable Alternate Currency Agent, as
required, written notice in conformity with the Section 3.3(b) in the case of a
Request for Letter of Credit Issuance, Section 3.4(f) in the case of a Notice of
Bid-Option Borrowing and Section 3.5(b) in the case of a Notice of Swing Line
Borrowing.
(c) Upon receipt of a Notice of Borrowing or Request for Letter of
Credit Issuance, the Administrative Agent or the Alternate Currency Agent, as
applicable, shall promptly notify each applicable Bank of the contents thereof
and of such Bank's share, if any, of such Borrowing or the related Letter of
Credit risk, as the case may be. A Notice of Borrowing or Request for Letter of
Credit Issuance shall be irrevocable by the applicable Borrower once the
Administrative Agent, or the applicable Alternate Currency Agent, begins
notifying any Bank of the contents thereof.
(d) Each Bank, not later than 1:00 p.m. (Detroit time) on the date
any Borrowing is requested to be made, other than an Alternate Currency
Borrowing or a Borrowing of a Swing Line Loan, shall make its share, if any, of
such Borrowing available to the Administrative Agent in immediately available
funds, at the Administrative Agent's address specified in or pursuant to Section
11.2, for disbursement to the applicable Borrower. Unless the Administrative
Agent determines that any applicable condition specified in Article VIII has not
been satisfied, the Administrative Agent will make funds actually so received
from the Banks available to the applicable Borrower at the Administrative
Agent's aforesaid address. Unless the Administrative Agent shall have received
notice from any Bank prior to the date such Borrowing is requested to be made
that such Bank will not make available to the Administrative Agent such Bank's
share of such Borrowing, the Administrative Agent may assume that such Bank has
made such share available to the Administrative Agent on the date such Borrowing
is requested to be made in accordance with this Section 3.7. If and to the
extent such Bank shall not have so made such share available to the
Administrative Agent, the Administrative Agent may (but shall not be obligated
to) make such amount available to the applicable Borrower, and such Bank and the
applicable Borrower severally agree to pay to the Administrative Agent forthwith
on demand such amount, together with interest thereon for each day from the date
such amount is made available to the applicable Borrower by the Administrative
Agent until the date such amount is repaid to the Administrative Agent at (i) in
the case of such Bank, the Federal Funds Rate and (ii) in the case of the
applicable Borrower, a rate per annum equal to the interest rate applicable to
such Borrowing during such period. If such Bank shall pay such amount to the
Administrative Agent together with interest, such amount so paid shall
constitute a Loan by such Bank as a part of the related
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Borrowing for purposes of this Agreement. The failure of any Bank to make its
share of any Borrowing available to the Administrative Agent shall not relieve
any other Bank of its obligation to make available to the Administrative Agent
its share, if any, of such Borrowing on the date such Borrowing is requested to
be made, but no Bank shall be responsible for failure of any other Bank to make
such share available to the Administrative Agent on the date of such Borrowing.
(e)(i) Each Bank making an Alternate Currency Bid-Option Loan shall
make its share, if any, of such Borrowing available to the applicable Borrower
not later than 11:00 a.m. (local time in the principal financial center of the
country issuing the Alternate Currency) on the date any Alternate Currency Bid-
Option Borrowing is requested to be made by depositing the proceeds thereof in
an account maintained and designated by the applicable Borrower at an office or
branch of such Bank (or of an Affiliate of such Bank) located in the principal
financial center of the country issuing the Alternate Currency in which such
Borrowing is denominated or, if neither such Bank nor any Affiliate of such Bank
has an office or branch in such financial center, at such Bank's Eurodollar
Lending Office or Domestic Lending Office as selected by such Bank, or by such
other means requested by the applicable Borrower and acceptable to such Bank.
Promptly upon any such disbursement of an Alternate Currency Bid-Option Loan,
the Bank making such Loan shall give written notice to the Administrative Agent
by telex or telecopy of the making of such Loan, which notice shall be
substantially in the form attached hereto as Exhibit H.
(ii) Subject to the procedures set forth in the applicable
Alternate Currency Addendum, each Alternate Currency Bank shall make available
its Alternate Currency Syndicated Loan or Loans, in funds immediately available
to the Alternate Currency Agent at its office designated in the Alternate
Currency Addendum for payments of such Alternate Currency in the Alternate
Currency. The Alternate Currency Agent will promptly make the funds so received
from the Alternate Currency Banks available to the applicable Borrower. Promptly
upon any such disbursement of an Alternate Currency Syndicated Loan, the
Alternate Currency Agent, shall give written notice to the Administrative Agent
by telex or telecopy of the making of such Loan, which notice shall be
substantially in the form attached hereto as Exhibit H.
(iii) If for any reason any applicable Alternate Currency Bank fails
to make payment to the applicable Alternate Currency Agent of any amount due
under Section 3.7(e)(ii) and the applicable Alternate Currency Addendum, the
applicable Alternate Currency Agent shall be entitled to receive, retain and
apply against such obligation the principal and interest otherwise payable to
such Alternate Currency Bank hereunder until the Alternate Currency Agent
receives such payment from such Alternate Currency Bank or such obligation is
otherwise fully satisfied. In addition to the foregoing, if for any reason any
Alternate Currency Bank fails to make payment to the applicable Alternate
Currency Agent of any amount due under Section 3.7(e)(ii) and the applicable
Alternate Currency Addendum, such Alternate Currency Bank shall be deemed, at
the option of the applicable Alternate Currency Agent, to have unconditionally
and irrevocably purchased from the applicable Alternate Currency Agent, without
recourse or warranty, an undivided interest in and participation in the
applicable Alternate Currency Loan in the amount such Alternate Currency Bank
was required to pay pursuant to Section 3.7(e)(ii) and the applicable Alternate
Currency Addendum, and such interest
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and such participation may be recovered from such Alternate Currency Bank
together with interest thereon at the Federal Funds Rate for each day during the
period commencing on the date of demand by the applicable Alternate Currency
Agent and ending on the date such obligation is fully satisfied.
3.8 The Notes.
(a) The Revolving Loans of each Bank shall be evidenced by a
Revolving Credit Note payable to the order of such Bank in an amount equal to
the Revolving Credit Commitment of such Bank.
(b) The Term Loans of each Bank shall be evidenced by a Term Loan
Note payable to the order of such Bank in an amount equal to the Term Loan
Commitment of such Bank.
(c) The Bid-Option Loans of each Bank shall be evidenced by a
single Bid-Option Note payable to the order of such Bank in an amount equal to
the Dollar Equivalent of the aggregate unpaid principal amount of such Bank's
Bid-Option Loans.
(d) The Alternate Currency Syndicated Loans of each Alternate
Currency Bank shall be evidenced by a single Alternate Currency Syndicated Note
payable to the order of such Bank in an amount equal to the Alternate Currency
Commitment of such Bank.
(e) Upon receipt of each Bank's Notes pursuant to Section 8.2, the
Administrative Agent shall forward such Notes to such Bank. Each Bank shall
record on its books and records, and prior to any transfer of its Notes shall
endorse on the schedules forming a part thereof appropriate notations to
evidence, the date of disbursement, amount and maturity of each Loan made by it,
the interest rate and Interest Period applicable thereto and the date and amount
of each payment of principal made by the applicable Borrowers with respect
thereto. Any notations made by such Bank shall be prima facie evidence of the
matters so recorded or endorsed. Each Bank is hereby irrevocably authorized by
the Borrowers to make such records, so to endorse schedules to its Notes and to
attach to and make a part of any Note a continuation of any such schedule as
and when required. Failure by any Bank to make such records or so to endorse
the schedules to its Notes, or any error in recording or so endorsing any such
information, shall not affect the Borrowers' liability hereunder or under any
Note.
3.9 Certain Fees.
(a) Facility Fee. MascoTech will pay to the Administrative Agent
for the respective accounts of the Banks a facility fee, for each calendar
quarter or portion thereof from the Closing Date to but not including the
Termination Date, on the amount of each Bank's Revolving Credit Commitment and
Term Loans, whether used or unused, during such period, at a rate equal to the
Applicable Facility Fee Rate. All accrued facility fees hereunder shall be
payable in arrears with respect to each calendar quarter or portion thereof not
later than the tenth day after the end of each March, June, September and
December, commencing with the first such calendar quarter-end after the
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Closing Date, and on the Termination Date. Promptly upon receipt of such
facility fees for any calendar quarter or portion thereof, the Administrative
Agent shall distribute such facility fees to the Banks ratably in accordance
with their respective Pro Rata Shares.
(b) Agents' and Arrangers' Fees and Closing Fee. MascoTech will
pay to the Agents and to the Arrangers fees in such amounts and at such times as
are agreed to in the Agents and Arrangers Fee Letter and the Administrative
Agent Fee Letter, each dated as of December 10, 1997 and the Administrative
Agent shall distribute out of such fees, closing fees to the Banks on the
Closing Date.
3.10 Optional Termination or Reduction of Commitments.
Subject to Section 5.5, the Borrowers shall have the right at any
time and from time to time, upon one Business Day's prior written notice to the
Administrative Agent, to terminate or proportionately reduce the amount of the
Revolving Credit Commitments or the Alternate Currency Commitments, provided,
that (i) any partial reduction of the amount of the Revolving Credit Commitments
shall be in the amount of $5,000,000 or a multiple of $1,000,000 in excess
thereof and any partial reduction of any Alternative Currency Commitment shall
be in the Approximate Equivalent Amount of $1,000,000 or any integral multiple
thereof, (ii) no such reduction shall be permitted with respect to any portion
of the Revolving Credit Commitments not in excess of the sum of the Dollar
Equivalent of the aggregate outstanding principal amount of all Revolving Loans,
Bid-Option Loans plus Alternative Currency Syndicated Loans and Swing Line
Loans, plus the Letter of Credit Obligations Amount, plus the Dollar Equivalent
of the aggregate amount of all Borrowings for which a Notice of Borrowing is
then pending, plus the aggregate amount of all Letters of Credit for which a
Request for Letter of Credit Issuance is then pending, (iii) the Commitments may
not be terminated if any Loans or Letters of Credit are then outstanding or any
Notice of Borrowing or Request for Letter of Credit Issuance is then pending and
(iv) no such termination or reduction shall be permitted if, after giving effect
thereto, the Dollar Equivalent of the aggregate principal amount of the
outstanding Bid-Option Loans would exceed fifty percent (50%) of the aggregate
amount of the sum of the Revolving Credit Commitments and the outstanding
aggregate principal amount of the Term Loans. The Revolving Credit Commitments
or any portion thereof terminated or reduced pursuant to this Section may not be
reinstated. The accrued facility fees with respect to the terminated Revolving
Credit Commitments or the amount of any reduction therein shall be payable on
the effective date of such notice. Upon receipt of any notice from the
Borrowers pursuant to this Section, the Administrative Agent shall promptly
notify each Bank of the contents thereof and of such Bank's share of any
reduction of the Commitments. Each such notice shall be irrevocable by the
Borrowers once the Administrative Agent begins notifying any Bank of the
contents thereof.
3.11 Mandatory Termination of Commitments. The Revolving Credit
Commitments shall terminate on the Termination Date. The Term Loan Commitments
shall terminate upon disbursement of the Term Loans on the Closing Date.
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3.12 Borrowing Subsidiaries. MascoTech may at any time or from time to
time, with the consent of the Administrative Agent, which consent shall not be
unreasonably withheld, add as a party to this Agreement any Subsidiary to be a
"Borrowing Subsidiary" hereunder by the execution and delivery to the
Administrative Agent of a duly completed Assumption Letter by such Subsidiary,
with the written consent of MascoTech at the foot thereof. Upon such execution,
delivery and consent, such Subsidiary shall for all purposes be a party hereto
as a Borrowing Subsidiary as fully as if it had executed and delivered this
Agreement. So long as the principal of and interest on any Loans made to any
Borrowing Subsidiary under this Agreement shall have been repaid or paid in
full, all Letters of Credit issued for the account of such Borrowing Subsidiary
have expired or been returned and terminated and all other obligations (other
than contingent indemnification obligations) of such Borrowing Subsidiary under
this Agreement shall have been fully performed, MascoTech may, by not less than
five Business Days' prior notice to the Administrative Agent (which shall
promptly notify the Banks thereof), terminate such Borrowing Subsidiary's status
as a Borrowing Subsidiary.
ARTICLE IV.
PRINCIPAL PAYMENTS; INTEREST; ETC
4.1 Scheduled Principal Payments. (a) General. Unless earlier payment
is required under this Agreement or is made pursuant to Section 4.1(b) or
Section 4.2, on the last day of the Interest Period applicable to each Loan, the
Borrowers shall continue or convert such Loan in accordance with Section 4.8 or
repay such Loan.
(b) Repayment of the Term Loans. (i) The Term Loans shall be repaid by
the Borrowers in twenty-five (25) installments payable on the dates set forth
below in the amounts set forth below corresponding to such dates and the Term
Loans shall be permanently reduced by the amount of each installment on the date
payment thereof is made hereunder.
Installment Date Installment Amount
March 31, 1998 $6,250,000
June 30, 1998 $6,250,000
September 30, 1998 $6,250,000
December 31, 1998 $6,250,000
March 31, 1999 $10,000,000
June 30, 1999 $10,000,000
September 30, 1999 $10,000,000
December 31, 1999 $10,000,000
March 31, 2000 $15,000,000
June 30, 2000 $15,000,000
September 30, 2000 $15,000,000
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December 31, 2000 $15,000,000
March 31, 2001 $18,750,000
June 30, 2001 $18,750,000
September 30, 2001 $18,750,000
December 31, 2001 $18,750,000
January 31, 2002 $100,000,000
March 31, 2002 $22,500,000
June 30, 2002 $22,500,000
September 30, 2002 $22,500,000
December 31, 2002 $22,500,000
March 31, 2003 $25,000,000
June 30, 2003 $25,000,000
September 30, 2003 $25,000,000
November 15, 2003 $35,000,000
Notwithstanding the foregoing, the final installment shall be in the amount of
the then outstanding principal balance of the Term Loans. In addition, the then
outstanding principal balance of the Term Loans, if any, shall be due and
payable on the Termination Date. No installment of any Term Loan shall be
reborrowed once repaid.
4.2 Prepayments of Principal. The following provisions apply in respect
of prepayment of the Loans, other than Swing Line Loans, by any Borrower:
(a) The Borrowers may prepay Floating Rate Loans in whole or in part on
any Business Day in amounts aggregating $5,000,000 or multiples of $1,000,000 in
excess thereof (unless such prepayment would cause the aggregate outstanding
principal amount of Floating Rate Loans to be less than $5,000,000, in which
event prepayment may only be made in an amount equal to the entire outstanding
principal amount of Floating Rate Loans), by paying the principal amount being
prepaid together with accrued interest thereon to the date of prepayment. Each
prepayment in part of such Loans shall be applied to such Loans of the Banks
ratably in accordance with their respective shares of the aggregate outstanding
principal amount of the Floating Rate Loans.
(b) The Borrowers may, upon at least three Business Days' notice to the
Administrative Agent, prepay any Eurodollar Rate Syndicated Loan in whole or in
part on any Business Day in the amount of $5,000,000 or the Approximate
Equivalent Amount of $1,000,000 of any Alternate Currency Syndicated Loan or
multiples of $1,000,000 or the Approximate Equivalent Amount of $1,000,000 of
any Alternate Currency in excess thereof (unless, in the case of prepayment of
any Eurodollar Rate Syndicated Loan, such prepayment would cause the aggregate
outstanding principal amount of such Eurodollar Rate Syndicated Loan to be less
than $5,000,000, in which event prepayment may only be made in an amount equal
to the outstanding unpaid principal amount of such Eurodollar Rate Syndicated
Loan), by paying the principal amount being prepaid together with accrued
interest thereon to the date of prepayment; provided, however, that the
Borrowers shall
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compensate the Banks pursuant to Section 5.5 for any losses or expenses incurred
as a result thereof. Each prepayment in part of any Eurodollar Rate Syndicated
Loan shall be applied to the Eurodollar Rate Syndicated Loans comprising such
Borrowing of the Banks ratably in accordance with their respective shares of the
aggregate outstanding principal amount of such Loans.
(c) Unless otherwise required by this Agreement, the Borrowers may not
prepay any Bid-Option Loan in whole or in part without the consent of the Bank
that made such Bid-Option Loan.
(d) Notwithstanding Section 4.2(a), (b) and (c), if on any date:
(i) the sum of (A) the Dollar Equivalent of the aggregate
outstanding principal amount of Loans plus (B) the Letter of
Credit Obligations Amount exceeds the sum of the aggregate
amount of the Revolving Credit Commitments and the outstanding
aggregate principal amount of the Term Loans; or
(ii) the Dollar Equivalent of the aggregate outstanding
principal amount of Bid-Option Loans exceeds fifty percent
(50%) of the sum of the Revolving Credit Commitments and the
aggregate outstanding principal amount of the Term Loans; or
(iii) the Dollar Equivalent of the aggregate outstanding
principal amount of Alternate Currency Bid-Option Loans and the
Alternate Currency Syndicated Loans exceeds $200,000,000,
then the Borrowers shall pay forthwith the principal amount of such excess,
together with accrued interest thereon to the date of payment; provided,
however, that the Borrowers shall compensate the Banks pursuant to Section 5.5
for any losses or expenses incurred as a result thereof; and provided further,
however, that (A) no such payment otherwise required under clause (i) of this
Section 4.2(d) solely because of currency exchange rate fluctuations affecting
the Dollar Equivalent of the aggregate outstanding principal amount of Alternate
Currency Syndicated Loans or Alternate Currency Bid-Option Loans shall be
required unless such payment is due on a date when a payment of principal of any
Loan is otherwise due hereunder, and (B) notwithstanding clause (A) of this
proviso, no such payment otherwise required under subsection (ii) or (iii) of
this Section 4.2(d) shall be required if due solely because of currency exchange
rate fluctuations affecting the Dollar Equivalent of the aggregate outstanding
principal amount of Alternate Currency Syndicated Loans and Alternate Currency
Bid-Option Loans since the last date on which any of such Alternate Currency
Syndicated Loans or Alternate Currency Bid-Option Loans, as the case may be,
were made.
(e) Upon receipt of a notice of prepayment pursuant to this Section, the
Administrative Agent shall promptly notify each Bank of the contents thereof and
of such Bank's share (in accordance with Section 4.4) of such prepayment. Each
such notice shall be irrevocable by the Borrowers once the Administrative Agent
begins notifying any Bank of the contents thereof.
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(f) At any time that the most recently determined Senior Debt Coverage
Ratio is greater than 3.0 to 1.0 (after giving pro forma effect to the
application of proceeds prescribed herein below), upon the consummation of any
Asset Sale or any Financing by MascoTech or any of its Consolidated Subsidiaries
(other than (i) sales of inventory in the ordinary course of business and (ii)
sales or other dispositions of equipment which in the reasonable judgment of
MascoTech is no longer used or useful in the business of MascoTech) except to
the extent that the Net Cash Proceeds of such Asset Sale, when combined with the
Net Cash Proceeds of all such Asset Sales during the immediately preceding
twelve-month period, do not exceed $25,000,000, and except as provided in the
immediately succeeding sentence, within three (3) Business Days after
MascoTech's or any of its Subsidiaries' receipt of any Net Cash Proceeds from
any such Asset Sale or Financing, the Borrowers shall make a mandatory
prepayment in an amount equal to one hundred percent (100%) of such Net Cash
Proceeds or such lesser amount as is sufficient to reduce the Senior Debt
Coverage Ratio (calculated using EBITDA for the most recently concluded four
fiscal quarter period and using Debt as of the last day of such four fiscal
quarter period, taking into account the reduction in such Debt as a result of
such mandatory prepayment on a pro forma basis) to 3.0 to 1.0. Net Cash
Proceeds of Asset Sales of capital assets with respect to which the Borrowers
shall have given the Agent written notice of its intention to replace such
capital assets within six months following such Asset Sale shall not be subject
to the provisions of the preceding sentence unless and to the extent that such
applicable period shall have expired without such replacement having been made.
Each such mandatory prepayment shall be applied first to the Term Loan
installment due January 31, 2002 and after such installment is paid in full to
each of the then remaining installments payable under the Term Loans in the
inverse order of maturity; and following the payment in full of the Term Loans,
the amount of each such prepayment shall be applied to repay Revolving Loans
(but shall reduce Revolving Loan Commitments only at the option of the
Borrowers). Subject to the preceding provisions of this Section 4.2(f), all of
the mandatory prepayments made pursuant to this Section 4.2(f) shall be applied
first to Floating Rate Loans and to any Eurodollar Rate Loans maturing on such
date. The Administrative Agent shall hold the remaining portion of such
mandatory prepayment as cash collateral in an interest bearing deposit account
and shall apply funds from such account to Eurodollar Rate Loans at the end of
the applicable Interest Period.
(g) All voluntary prepayments of the Term Loans shall be applied, at the
Borrowers' option, either to the installment due January 31, 2002 or to the
other remaining installments of the Term Loans, pro rata, or any combination of
the foregoing.
(h) If on the last Business Day of any month, the Dollar Equivalent of
all outstanding Alternate Currency Syndicated Loans under the Alternate Currency
Addenda exceeds 105% of the aggregate Alternate Currency Commitments with
respect thereto, the applicable Borrowers shall on such date prepay Alternate
Currency Syndicated Loans in an aggregate amount such that after giving effect
thereto the Dollar Equivalent of all such Alternate Currency Syndicated Loans is
less than or equal to the aggregate Alternate Currency Commitments with respect
thereto.
4.3 Interest Payments. The Borrowers shall pay interest to the Banks on
the unpaid principal amount of each Loan, for the period commencing on the date
such Loan is made until such
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Loan is paid in full, on each Interest Payment Date and at maturity (whether at
stated maturity, by acceleration or otherwise), and thereafter on demand, at the
following rates per annum (subject, however, to the provisions of Section
11.12):
(a) With respect to each Floating Rate Loan, at the Floating Rate.
(b) With respect to each Loan which bears interest at the Eurodollar
Rate, the Eurodollar Rate, provided that if any Eurodollar Rate Syndicated
Revolving Loan or any portion thereof shall, as a result of clause (c) of the
definition of Eurodollar Rate Interest Period, have an Interest Period of less
than one month, such Loan or portion thereof shall bear interest during such
Interest Period at the Floating Rate.
(c) With respect to each Eurodollar Rate Bid-Option Loan, the Bid-Option
Eurodollar Rate, provided that if any Eurodollar Rate Bid-Option Loan or any
portion thereof shall, as a result of clause (c) of the definition of Eurodollar
Rate Interest Period, have an Interest Period of less than one month, in the
case of a Eurodollar Rate Syndicated Loan, or fifteen days, in the case of a
Eurodollar Rate Bid-Option Loan, such Loan or portion thereof shall bear
interest during such Interest Period at the Floating Rate.
(d) With respect to each Absolute Rate Dollar Bid-Option Loan and
Alternate Currency Bid-Option Loan, the Bid-Option Absolute Rate quoted for such
Loan by the Bank making such Loan.
(e) With respect to each Alternate Currency Syndicated Loan, the rate
prescribed in the applicable Alternate Currency Addendum.
(f) Notwithstanding the foregoing subsections (a) through (e), the
Borrowers shall (subject to the provisions of Section 11.12), at the option of
the Required Banks, pay interest on demand at the Overdue Rate on the
outstanding principal amount of all Loans and any other amount payable by the
Borrowers hereunder after the occurrence and during the continuance of an Event
of Default under Section 9.1(a), (b), (d), (e), (f), (g) or (k).
4.4 Payment Procedures.
(a) All payments of any facility fees, closing fees, Letter of
Credit fees, Agent's fees, or other fees hereunder and of principal of, and
interest on, the Loans, other than Alternate Currency Loans, and of
reimbursement obligations in respect of Letters of Credit shall be made in
Dollars and in funds immediately available at the Administrative Agent's
principal office in Detroit, Michigan not later than 1:00 p.m. (Detroit time) on
the date on which such payment shall become due. All payments of principal of,
and interest on, the Alternate Currency Loans shall be made in the currencies in
which such Loans are denominated and in funds immediately available, freely
transferable and cleared at the office or branch from which the Loan was made
under Section 3.4(a) and 3.6 not later than 3:00 p.m. local time on the date on
which such payment shall become due. Promptly upon receipt of any payment of
principal of the Alternate Currency Loans the Bank receiving
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such payment shall give written notice to the Administrative Agent by telex or
telecopy of the receipt of such payment, which notice shall be substantially in
the form attached hereto as Exhibit I. Whenever any payment of principal of, or
interest on, the Loans or of any fee shall be due on a day which is not a
Business Day, the date for payment thereof shall be extended to the next
succeeding Business Day (unless as a result thereof, in respect of Eurodollar
Rate Loans and Alternate Currency Syndicated Loans, such date would fall in the
next calendar month, in which case it shall be advanced to the next preceding
Business Day) and, in the case of a payment of principal, interest thereon shall
be payable for any such extended time.
(b) Payments of principal of Syndicated Loans that comprise a
Syndicated Borrowing, including any Substitute Loan made by a Bank as part of
any Borrowing of a Eurodollar Rate Syndicated Revolving Loan, shall be promptly
distributed by the Administrative Agent to the Banks that made such Syndicated
Loans ratably in proportion to their respective shares of the outstanding
principal amount of such Syndicated Borrowing. Payments of interest on
Syndicated Loans that comprise a Syndicated Borrowing, including any Substitute
Loan made by a Bank as part of any Borrowing of a Eurodollar Rate Syndicated
Revolving Loan, shall be promptly distributed by the Administrative Agent to the
Banks that made such Syndicated Loans so that each such Bank receives a portion
of such payment equal to the amount of interest then owing to such Bank on such
Loans multiplied by a fraction, the denominator of which is the total amount of
interest then owing to all such Banks on such Loans and the numerator of which
is the amount of such payment. Payments of principal of any Dollar Bid-Option
Loans that comprise a Dollar Bid-Option Borrowing shall be promptly distributed
by the Administrative Agent to the Banks that made such Dollar Bid-Option Loans
ratably in accordance with their respective Dollar Bid-Option Percentages
together with interest ratably in accordance with the respective interest rates
applicable to such Loans .
(c) During any period when Dollar Bid-Option Loans are
outstanding, if the Administrative Agent cannot reasonably determine whether a
particular payment received by the Administrative Agent from the applicable
Borrower was intended to be applied to the principal of or interest on one or
more Dollar Bid-Option Borrowings or to the principal of or interest on
Syndicated Borrowings, or if the amount of any payment by the Borrowers is
insufficient to pay all amounts then due and payable with respect to Dollar Bid-
Option Loans and Syndicated Loans (including Substitute Loans), the
Administrative Agent shall first apportion such payment between the Dollar Bid-
Option Loans and the Syndicated Loans (including Substitute Loans) (i) if such
payment is of principal, ratably in accordance with the aggregate principal
amount of each such type of Loans on which payment is then due, and (ii) if such
payment is of interest, ratably in accordance with the aggregate amount of
interest that is then due on each such type of Loans. After such apportionment,
(i) the Administrative Agent shall distribute the portion of the payment
received and allocated to the Syndicated Loans (including Substitute Loans) to
the Banks as provided for payments of principal of or interest on, as the case
may be, Syndicated Loans under Section 4.4(b), and (ii) the portion of the
payment received and allocated to the Dollar Bid-Option Loans on which a payment
is then due shall first be allocated among the different Dollar Bid-Option
Borrowings of which such Dollar Bid-Option Loans are a part (A) if such payment
is of principal, ratably in accordance with the aggregate principal amount of
each such Dollar Bid-Option Borrowing, and (B) if such payment is of interest,
ratably in accordance with the
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aggregate amount of interest that is then due on each such Dollar Bid-Option
Borrowing. After such allocation, the Administrative Agent shall distribute the
amount allocated to each Dollar Bid-Option Borrowing to the Banks that made the
Dollar Bid-Option Loans comprising such Dollar Bid-Option Borrowing ratably in
accordance with their respective Dollar Bid-Option Percentages.
(d) Any prepayments of Bid-Option Loans made under Section 4.2(d)
may be applied to any one or more Bid-Option Borrowings as the Borrowers may
select; provided that such payments of principal shall be applied by the
Administrative Agent, in the case of Dollar Bid-Option Loans, or made directly
by the Borrowers, in the case of Alternate Currency Bid-Option Loans, to the
Banks participating in any such Bid-Option Borrowing ratably in accordance with
their respective Dollar Bid-Option Percentages or Alternate Currency Bid-Option
Percentages, as the case may be together with interest ratably in accordance
with the respective interest rates applicable to such Loans.
4.5 Computation of Interest and Fees. Except as may be otherwise
prescribed in the applicable Alternate Currency Addendum, facility fees,
Administrative Agent fees and Letter of Credit fees, and interest on the
Floating Rate Loans and Alternate Currency Syndicated Loans and other amounts
due hereunder, other than Fixed Rate Loans (other than Alternate Currency
Syndicated Loans), shall be computed on the basis of a year of 365 or 366 days,
as the case may be, and actual days elapsed. Interest on the Fixed Rate Loans
shall be computed on the basis of a year of 360 days and actual days elapsed.
4.6 No Setoff or Deduction. All payments of principal of and interest
on the Loans and other amounts payable by the Borrowers hereunder shall be made
by the Borrowers without setoff or counterclaim, and free and clear of, and
without deduction or withholding for, or on account of, any present or future
taxes, levies, imposts, duties, fees, assessments, or other charges of whatever
nature, imposed by any governmental authority, or by any department, agency or
other political subdivision or taxing authority.
4.7 Types for all Loans. The Syndicated Loans (other than Alternate
Currency Syndicated Loans) may be Floating Rate Loans or Eurodollar Rate Loans,
or a combination thereof, selected by the applicable Borrower in accordance with
Section 4.8. The Term Loans and Revolving Loans made on the Closing Date shall
initially be Floating Rate Loans and thereafter may be continued as Floating
Rate Loans or converted into Eurodollar Rate Loans as provided in Section 4.8.
The applicable Borrower may select, in accordance with Section 4.8, Types and
Interest Periods applicable to portions of the Revolving Loans and the Term
Loans. Notwithstanding anything herein to the contrary, the Borrower may not,
without the written consent of the Administrative Agent, select the Eurodollar
Rate with Interest Periods other than seven (7) or fourteen (14) days for any
Loans during the Syndication Period.
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4.8 Method of Selecting Types and Interest Periods for Conversion and
Continuation of Loans.
(A) Right to Convert. The Borrowers may elect from time to time, subject
to the provisions of Section 4.7 and this Section 4.8, to convert all or any
part of a Loan (other than a Swing Line Loan, an Alternate Currency Syndicated
Loan or a Bid-Option Loan) of any Type into any other Type or Types of Loans;
provided that any conversion of any Eurodollar Rate Syndicated Loan shall be
made on, and only on, the last day of the Interest Period applicable thereto,
unless the applicable Borrower makes the payments required pursuant to Section
5.5.
(B) Automatic Conversion and Continuation. Floating Rate Loans shall
continue as Floating Rate Loans unless and until such Floating Rate Loans are
converted into Eurodollar Rate Syndicated Loans. Eurodollar Rate Syndicated
Loans shall continue as Eurodollar Rate Syndicated Loans until the end of the
then applicable Interest Period therefor, at which time such Eurodollar Rate
Syndicated Loans shall be automatically converted into Floating Rate Loans
unless the Borrower shall have given the Administrative Agent notice requesting
that, at the end of such Interest Period, such Eurodollar Rate Syndicated Loans
continue as a Eurodollar Rate Syndicated Loan.
(C) No Conversion After Default. Notwithstanding anything to the
contrary contained in Section 4.8(A) or Section 4.8(B), no Loan may be converted
into or continued as a Eurodollar Rate Syndicated Loan if the Required Banks so
direct after any Default or Event of Default has occurred and is continuing.
(D) Conversion/Continuation Notice. The Borrowers shall give the
Administrative Agent irrevocable notice (a "Conversion/Continuation Notice"), in
substantially the form attached hereto as Exhibit T or Exhibit C-1, as
applicable, of each conversion of a Floating Rate Loan into a Eurodollar Rate
Syndicated Loan or continuation of a Eurodollar Rate Syndicated Loan not later
than 11:00 a.m. (Detroit time) three Business Days prior to the date of the
requested conversion or continuation, specifying: (1) the requested date (which
shall be a Business Day) of such conversion or continuation; (2) the amount and
Type of the Loan to be converted or continued; and (3) the amounts of Eurodollar
Rate Syndicated Loan(s) into which such Loan is to be converted or continued and
the duration of the Interest Periods applicable thereto.
4.9 Other Provisions Applicable to Alternate Currency Loans. The
specification of payment of Alternate Currency Loans in the related Alternate
Currency at a specific place pursuant to this Agreement is of the essence. Such
Alternate Currency shall be the currency of account and payment of such Loans
under this Agreement and the Notes. Notwithstanding anything in this Agreement,
the obligation of the applicable Borrower in respect of such Loans shall not be
discharged by an amount paid in any other currency or at another place, whether
pursuant to a judgment or otherwise, to the extent the amount so paid, on prompt
conversion into the applicable Alternate Currency and transfer to such Bank
under normal banking procedure, does not yield the amount of such Alternate
Currency due under this Agreement and the Notes. In the event that any payment,
whether pursuant to a judgment or otherwise, upon conversion and transfer, does
not result in payment
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of the amount of such Alternate Currency due under this Agreement and the Notes,
such Bank shall have an independent cause of action against the Borrowers for
the currency deficit.
ARTICLE V.
CHANGE IN CIRCUMSTANCES
5.1 Impossibility; Interest Rate Inadequate or Unfair. (a) If before
the beginning of any Eurodollar Rate Interest Period:
(i) the Administrative Agent is advised by any Reference Bank that
deposits in Dollars (in the applicable amounts) are not being offered to such
Reference Bank in the relevant market for such Eurodollar Rate Interest Period,
or
(ii) the Required Banks advise the Administrative Agent that the
Eurodollar Base Rate will not adequately and fairly reflect the cost to such
Banks of maintaining, making or funding, for such Eurodollar Rate Interest
Period, Eurodollar Rate Syndicated Loans to which such Eurodollar Rate Interest
Period applies,
the Administrative Agent shall forthwith give notice thereof to the Borrowers
and the Banks, whereupon until the Administrative Agent notifies the Borrowers
that the circumstances giving rise to such suspension no longer exist, the
obligations, if any, of the Banks to make Eurodollar Rate Loans, as the case may
be, shall be suspended. In the case of Eurodollar Rate Loans, unless the
Borrowers notify the Administrative Agent not later than 3:00 p.m. (Detroit
time) on the Business Day before the beginning of such Eurodollar Rate Interest
Period that the Borrowers elect not to borrow on such date, such Borrowing
shall, subject to the provisions of Section 8.1, be a Floating Rate Borrowing.
Promptly after the Administrative Agent receives any such notice from the
Borrowers under this Section 5.1(a), the Administrative Agent shall notify each
Bank of the contents thereof. Any such notice from the Borrowers shall be
irrevocable once the Administrative Agent begins notifying any Bank of the
contents thereof.
(b) If deposits in Dollars (in the applicable amounts) are not
being offered to a Reference Bank in the relevant market for any Eurodollar Rate
Interest Period, by reason of circumstances affecting such Reference Bank and
not affecting the London or Nassau Interbank Market, generally, the
Administrative Agent shall, in consultation with the Borrowers and with the
consent of the Required Banks, appoint another Bank to act as a Reference Bank
hereunder.
5.2 Illegality. If, after the date of this Agreement, the introduction
of, or any change in, any applicable law, rule or regulation or in the
interpretation or administration thereof by any governmental authority charged
with the interpretation or administration thereof or compliance by any
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Bank (or its Applicable Lending Office) with any request or directive (whether
or not having the force of law) of any such authority shall make it unlawful or
impossible for such Bank (or its Applicable Lending Office) to honor its binding
legal obligations, if any, hereunder to make, maintain or fund any type of Fixed
Rate Loans, such Bank shall so notify the Administrative Agent, and the
Administrative Agent shall forthwith give notice thereof to the Borrowers,
whereupon until such Bank notifies the Administrative Agent that the
circumstances giving rise to such suspension no longer exist, the obligation, if
any, of such Bank to make such type of Fixed Rate Loans shall be suspended.
Before any Bank gives any notice of unlawfulness or impossibility to the
Administrative Agent under this Section 5.2, such Bank shall designate a
different Applicable Lending Office if such designation will avoid the need for
giving such notice and will not, in the judgment of such Bank, be otherwise
disadvantageous to such Bank. Upon receipt of such notice, the applicable
Borrowers shall prepay in full the then outstanding principal amount of each
affected Fixed Rate Loan of such Bank together with accrued interest thereon (a)
on the last day of the then current Interest Period applicable to such Loan if
such Bank may lawfully continue to maintain and fund such Loan to such day, or
(b) immediately if such Bank may not lawfully continue to fund and maintain such
Loan to such day. Concurrently with prepaying each such Fixed Rate Loan, the
applicable Borrowers shall borrow a Floating Rate Loan (or, if the applicable
Borrowers so elect by at least three Business Days' notice to the Administrative
Agent and such Bank, a Eurodollar Rate Syndicated Loan of an unaffected type) in
an equal principal amount from such Bank, for an Interest Period coinciding with
the remaining term of the Interest Period applicable to such Fixed Rate Loan,
and such Bank shall make such a Loan, provided that there has been no
acceleration of the amounts due under the Notes pursuant to Article IX.
5.3 Increased Cost; Yield Protection.
(a) If, after the date hereof, the introduction of, or any change
in, any applicable law, treaty, rule or regulation (whether domestic or foreign
and including, without limitation, the Federal Deposit Insurance Act, as
amended, and Regulation D of the Board of Governors of the Federal Reserve
System) or in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its Applicable Lending
Office) with any request or directive of any such authority, central bank or
comparable agency (whether or not having the force of law),
(i) shall subject any Bank (or its Applicable Lending Office) to any
tax, duty or other charge with respect to its obligation to make any Loans, its
Notes, any of its Loans or any of the Letters of Credit or shall change the
basis of taxation of payments to any Bank (or its Applicable Lending Office) of
the principal of or interest on any of its Fixed Rate Loans or in respect of its
obligation, if any, to make any Loans or to participate in the risk of Letters
of Credit (except for changes in the rate of tax on the overall net income of
such Bank or its Applicable Lending Office imposed by the jurisdiction in which
such Bank's principal executive office or Applicable Lending Office is located),
or
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(ii) shall impose, modify or deem applicable any reserve
(including, without limitation, any imposed by the Board of Governors of the
Federal Reserve System, but excluding with respect to any Eurodollar Rate
Syndicated Loan any reserve requirements to the extent included in clause (b) of
the definition of Eurodollar Base Rate when calculating the Eurodollar Base Rate
with respect to such Eurodollar Rate Syndicated Loan), special deposit or
similar requirement (including, without limitation, any deposit insurance
assessment in respect of deposits held outside the United States, against assets
of, deposits with or for the account of, or credit extended by, any Bank's
Applicable Lending Office, or shall impose on any Bank (or its Applicable
Lending Office or the relevant interbank market or the United States certificate
of deposit market) any other condition affecting its obligation, if any, to make
Loans or to participate in the risk of Letters of Credit or affecting its Loans
or the Letters of Credit or affecting the Borrowers' obligations under the Notes
in respect of such Loans,
and the result of any of the foregoing is to increase the cost to such Bank (or
its Applicable Lending Office) of making or maintaining its existing or future
Fixed Rate Loans or of participating in the risk of Letters of Credit, or to
reduce the amount of any sum received or receivable by such Bank (or its
Applicable Lending Office) under this Agreement or under the Notes (in respect
of Fixed Rate Loans or Letters of Credit) by an amount deemed by such Bank to be
material, then such Bank may notify the Borrowers (with a copy of any such
notice to be provided to the Administrative Agent) of any such fact of which it
has knowledge and demand compensation therefor; provided that, if such Bank
fails to demand such compensation (or notify the Borrowers that it will or may
demand such compensation) promptly upon becoming aware of the facts entitling it
to do so or, if such Bank is contesting the cause of such increased cost or
reduced sum received or receivable, promptly after the earlier of (A) the final
determination of such contest or (B) an officer of such Bank who is responsible
for the administration of the credit outstanding under this Agreement from such
Bank to the Borrowers becoming aware of such facts, such Bank shall not be
entitled to such compensation for the period before the date on which it
actually demands (or notifies the Borrowers that it will or may demand) such
compensation; provided, further, that if such Bank is contesting the cause of
such increased cost or reduced sum received or receivable, such Bank shall not
in any event be entitled to such compensation for any period prior to six months
before it notifies the Borrowers that such Bank may or will demand such
compensation. The Borrowers agree to pay to such Bank such additional amount or
amounts as will compensate such Bank for such increased cost or reduction within
15 days after demand by such Bank. A certificate of such Bank setting forth the
basis for determining such additional amount or amounts necessary to compensate
such Bank shall be conclusive in the absence of manifest error. Each such Bank
will designate a different Applicable Lending Office if such designation would
avoid the need for, or reduce the amount of such compensation and would not, in
the judgment of such Bank, be otherwise disadvantageous to such Bank. In the
event that any Borrower is required to compensate any Bank for any increased
cost to such Bank pursuant to this Section 5.3(a), such Borrower shall have the
right, upon at least five Business Days' prior notice to such Bank through the
Administrative Agent,
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to prepay in full any outstanding Fixed Rate Loans that are related to such
increased cost of such Bank, together with accrued interest thereon to the date
of prepayment; provided that prepayment of such Fixed Rate Loans shall not
relieve such Borrower of its obligation to compensate such Bank in accordance
with this Section 5.3(a), the amount of which compensation shall be due at the
time of such prepayment, notwithstanding any other provision of this Section
5.3(a). Concurrently with prepaying each such Fixed Rate Loan of such Bank,
such Borrower shall borrow a Floating Rate Loan (or, if such Borrower shall so
elect in its notice of prepayment, a Fixed Rate Loan of another Type) in an
equal principal amount from such Bank for an Interest Period coinciding with the
remaining term of the Interest Period applicable to such Fixed Rate Loan, and
such Bank shall make such a Floating Rate Loan (or Fixed Rate Loan of the other
Type), provided that there has been no acceleration of the amount due under the
Notes pursuant to Article IX. The Borrowers shall pay compensation owing to any
Bank(s) under this Section 5.3(a) notwithstanding any subsequent replacement
(pursuant to Section 11.13) of the Bank(s) making demand for such compensation.
(b) In the event that any applicable law, treaty, rule or
regulation (whether domestic or foreign) now or hereafter in effect and whether
or not presently applicable to any Bank or Administrative Agent, or any
interpretation or administration thereof by any governmental authority charged
with the interpretation or administration thereof, or compliance by any Bank or
Administrative Agent with any guideline, request or directive of any such
authority (whether or not having the force of law), including any risk-based
capital guidelines, affects or would affect the amount of capital required or
expected to be maintained by such Bank or the Administrative Agent (or any
corporation controlling such Bank or the Administrative Agent) and such Bank or
the Administrative Agent, as the case may be, determines that the amount of such
capital is increased by or based upon the existence of such Bank's or Agent's
obligations or Loans hereunder and such increase has the effect of reducing the
rate of return on such Bank's or Agent's (or such controlling corporation's)
capital as a consequence of such obligations or Loans hereunder to a level below
that which such Bank or the Administrative Agent (or such controlling
corporation) could have achieved but for such circumstances (taking into
consideration its policies with respect to capital adequacy) by an amount deemed
by such Bank or the Administrative Agent to be material, then such Bank or the
Administrative Agent may notify the Borrowers of any such fact of which it has
knowledge and the Borrowers shall pay to such Bank or the Administrative Agent,
as the case may be, from time to time, upon request by such Bank (with a copy of
such request to be provided to the Administrative Agent) or the Administrative
Agent, additional amounts sufficient to compensate such Bank or Administrative
Agent (or such controlling corporation) for any increase in the amount of
capital and reduced rate of return which such Bank or the Administrative Agent
reasonably determines to be allocable to the existence of such Bank's or
Agent's obligations or Loans hereunder; provided that, if such Bank or the
Administrative Agent fails to notify the Borrowers of any such fact promptly
upon becoming aware thereof or, if such Bank or the Administrative Agent is
contesting the cause of such increase in the amount of capital or reduced rate
of return, promptly after the earlier of (A) the final determination of such
contest or (B) an officer of such Bank who is responsible for the administration
of the credit outstanding under this Agreement from such Bank to the Borrowers
becoming aware of any such fact, such Bank or the Administrative Agent, as the
case may be, shall not be entitled to such compensation for the period before
the date on which it actually notifies the Borrowers of such fact; provided,
further, that if such Bank or the
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Administrative Agent is contesting the cause of such increase in the amount of
capital or reduced rate of return, such Bank or the Administrative Agent, as the
case may be, shall not in any event be entitled to such compensation for any
period prior to six months before it notifies the Borrowers that such Bank or
the Administrative Agent, as the case may be, may or will demand such
compensation. A statement as to the amount of such compensation, prepared in
good faith and in reasonable detail by such Bank or the Administrative Agent, as
the case may be, and submitted by such Bank or Administrative Agent to the
Borrowers, shall be conclusive in the absence of manifest error in computation.
The Borrowers shall pay such compensation for the periods covered by such notice
notwithstanding any replacement (pursuant to Section 11.13) of the Bank(s)
making demand for such compensation.
5.4 Substitute Loans. If (a) the obligation, if any, of any Bank to
make any type of Fixed Rate Loans has been suspended pursuant to Section 5.2 or
(b) any Bank has demanded compensation under Section 5.3(a) and the Borrowers
shall, by at least five Business Days' prior notice to such Bank through the
Administrative Agent, have elected that the provisions of this Section 5.4 shall
apply to such Bank, then, unless and until such Bank notifies the Borrowers that
the circumstances giving rise to such suspension or demand for compensation no
longer apply:
(i) all Loans which would otherwise be made by such Bank as the
affected type of Fixed Rate Loans shall be made instead as Floating Rate Loans,
for an Interest Period coincident with the related Fixed Rate Borrowing, and
(ii) after each of its affected Fixed Rate Loans has been repaid,
all payments of principal which would otherwise be applied to repay such Fixed
Rate Loans shall be applied to repay its Substitute Loans instead.
5.5 Funding Losses. If any Borrower makes any payment of principal with
respect to any Fixed Rate Loan on any other date than the last day of an
Interest Period applicable thereto (whether pursuant to Section 3.10, 4.2 (other
than 4.2(f)), 5.1, 5.2, 5.3 or 5.4, Article IX or otherwise), or if the
applicable Borrower fails to borrow any Fixed Rate Loan after the related Notice
of Borrowing has been given to the Administrative Agent, or if the applicable
Borrower fails to make any payment of principal or interest in respect of a
Fixed Rate Loan when due, the applicable Borrower shall reimburse each Bank on
demand for any resulting loss or expense incurred by such Bank, including
without limitation any loss incurred in obtaining, liquidating or employing
deposits from third parties, whether or not such Bank shall have funded or
committed to fund such Loan. A statement as to the amount of such loss or
expense, prepared in good faith and in reasonable detail by such Bank and
submitted by such Bank to the applicable Borrower, shall be conclusive and
binding for all purposes absent manifest error in computation. Calculation of
all amounts payable to each Bank under this Section 5.5 shall be made as though
such Bank shall have actually funded or committed to fund the relevant Fixed
Rate Loan through the purchase of an underlying deposit in an amount equal to
the amount of such Loan and having a maturity comparable to the related Interest
Period; provided, however, that such Bank may fund any Fixed Rate Loan in any
manner it sees fit and the foregoing assumption shall be utilized only for the
purpose of calculation of amounts payable under this Section 5.5. In connection
with any
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assignment by any Bank of any portion of the Loans made pursuant to Section 11.6
and made during the Syndication Period, and if, notwithstanding the provisions
of Section 4.7, the Borrowers have requested and the Administrative Agent has
consented to the use of the Eurodollar Rate with an Interest Period other than
seven (7) or fourteen (14) days, the Borrowers shall be deemed to have repaid
all outstanding Eurodollar Rate Loans as of the effective date of such
assignment and reborrowed such amount as a Floating Rate Loan and/or Eurodollar
Rate Loan (chosen in accordance with the provisions of Section 4.7) and the
indemnification provisions under this Section 5.5 shall apply.
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES
Each Borrower hereby represents and warrants to the Administrative Agent
and the Banks that:
6.1 Corporate Existence and Power. Each of MascoTech and its Domestic
Subsidiaries is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of its incorporation, and is duly qualified
as a foreign corporation in each State or other jurisdiction in the United
States of America in which the conduct of its operations or the ownership of its
properties requires such qualification and failure so to qualify would
materially and adversely affect MascoTech and its Subsidiaries taken as a
whole. All of such corporations have all requisite corporate power to own their
properties and to carry on their businesses, considered as a whole,
substantially as now owned and as now being conducted. Each of the Borrowers
has full power, authority and legal right to execute and deliver this Agreement
and the Notes, to perform and observe the terms and provisions hereof and
thereof, and to borrow hereunder.
6.2 Corporate Authority; No Violations; Governmental Filings; Etc. The
execution, delivery and performance by each of the Borrowers of this Agreement,
the issuance of the Notes and the borrowings hereunder have been duly authorized
by all necessary corporate action and do not and will not violate the provisions
of any applicable law or regulation or of the certificate of incorporation or
by-laws of MascoTech or any Subsidiary or any order of any court, regulatory
body or arbitral tribunal and do not and will not result in the breach of, or
constitute a default or require any consent under, or create any lien, charge or
encumbrance upon any property or assets of MascoTech or any Subsidiary pursuant
to, any indenture or other agreement or instrument to which MascoTech or any
Subsidiary is a party or by which MascoTech or any Subsidiary or its property
may be bound or affected. Neither the execution, delivery and performance of
this Agreement nor the issuance of the Notes nor any borrowing hereunder
requires, for the validity thereof, nor does the enforceability of this
Agreement or any of the Notes require, any filing with, or consent,
authorization or approval of, any state or federal agency or regulatory
authority, other than filings, consents or approvals which have been made or
obtained or which, in the case of any such borrowing, will be made or obtained
prior to the due date for such filing, consent or approval.
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6.3 Binding Effect. This Agreement constitutes, and the Notes when
executed and delivered by each Borrower for value will constitute, the legal,
valid and binding obligations of such Borrower, enforceable against such
Borrower in accordance with their respective terms.
6.4 Litigation. There are no suits, proceedings, or actions at law or
in equity or by or before any governmental commission, board, bureau, or other
administrative agency, pending or, to the knowledge of the Borrowers, threatened
against MascoTech or any of its Subsidiaries or affecting MascoTech or any of
its Subsidiaries, which, in the reasonable opinion of MascoTech, either (i) are
likely to have a material adverse effect on the financial condition or business
of MascoTech and its Subsidiaries taken as a whole or (ii) will in any manner
affect the enforceability or validity of this Agreement or any Note.
6.5 Taxes. MascoTech and each Subsidiary has filed (or has obtained
extensions of the time by which it is required to file) all United States
federal income tax returns, and all other tax returns which are required to be
filed and are material to the business, operations or financial position of
MascoTech and its Subsidiaries taken as a whole, and has paid all taxes shown
due pursuant to such returns or pursuant to any assessment received by MascoTech
or any Subsidiary, except such taxes, if any, as are being contested in good
faith and as to which, in the reasonable opinion of MascoTech, adequate reserves
have been provided in accordance with generally accepted accounting principles.
MascoTech does not know of any proposed tax assessment against it or any
Subsidiary or of any basis for one, except to the extent any such assessment has
been, in the reasonable opinion of MascoTech, adequately provided for in the
consolidated tax reserves of MascoTech and its Subsidiaries in accordance with
generally accepted accounting principles.
6.6 Financial Condition. The consolidated balance sheet of MascoTech
and its Consolidated Subsidiaries and consolidated statements of income,
shareholders' equity and cash flows of MascoTech and its Consolidated
Subsidiaries for the fiscal year ended December 31, 1996, certified by Coopers &
Lybrand, independent certified public accountants, and the interim unaudited
consolidated balance sheet and interim unaudited consolidated statements of
income, shareholders' equity and cash flows of MascoTech and its Consolidated
Subsidiaries, as of or for the nine-month period ended on September 30, 1997,
copies of which have been furnished to the Banks, fairly present the
consolidated financial position of MascoTech and its Consolidated Subsidiaries
as at the dates thereof, and the consolidated results of operations of MascoTech
and its Consolidated Subsidiaries for the respective periods indicated, all in
accordance with generally accepted accounting principles consistently applied
(except as disclosed in the notes thereto and subject, in the case of interim
statements, to year-end audit adjustments). Except as disclosed in the
financial statements as of or for the nine-month period ended September 30,
1997, there has been no material adverse change in the consolidated operations
or condition, financial or otherwise, of MascoTech and its Consolidated
Subsidiaries considered as a whole, since December 31, 1996.
6.7 Compliance with ERISA. Each of MascoTech and each ERISA Affiliate
of MascoTech (a) has fulfilled its obligations under the minimum funding
standards of ERISA and the
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Code with respect to each Plan and (b) is in compliance in all material respects
with the presently applicable provisions of ERISA and the Code with respect to
each Plan. Neither MascoTech nor any ERISA Affiliate of MascoTech has (x)
sought a waiver of the minimum funding standard under Section 412 of the Code in
respect of any Plan, (y) failed to make any contribution or payment to any Plan
or Multiemployer Plan or in respect of any Benefit Arrangement, or made any
amendment to any Plan or Benefit Arrangement, which has resulted or could result
in the imposition of a Lien or the posting of a bond or other security under
ERISA or the Code, in each case securing an amount greater than $10,000,000, or
(z) incurred any liability under Title IV of ERISA, other than a liability to
the PBGC for premiums under Section 4007 of ERISA, which could materially
adversely affect the business, consolidated financial position or consolidated
results of operations of MascoTech and its Consolidated Subsidiaries.
6.8 Environmental Matters. In the ordinary course of its business,
MascoTech conducts appropriate reviews of the effect of Environmental Laws on
the business, operations and properties of MascoTech and its Subsidiaries, in
the course of which it identifies and evaluates pertinent liabilities and costs
(including, without limitation, capital or operating expenditures required for
clean-up or closure of properties presently or previously owned or for the
lawful operation of its current facilities, required constraints or changes in
operating activities, and evaluation of liabilities to third parties, including
employees, together with pertinent costs and expenses). On the basis of this
review, MascoTech has reasonably concluded that Environmental Laws are not
likely to have a material adverse effect on the business, financial position or
results of operations of MascoTech and its Consolidated Subsidiaries, considered
as a whole.
6.9 Compliance with Laws. MascoTech complies, and has caused each
Subsidiary to comply, in all material respects with all applicable laws,
ordinances, rules, regulations, and requirements of governmental authorities
(including, without limitation, Environmental Laws and ERISA and the rules and
regulations thereunder), except where (a) the necessity of compliance therewith
is contested in good faith by appropriate proceedings and MascoTech has
established appropriate reserves for liability for noncompliance therewith in
accordance with generally accepted accounting principles, (b) no officer of
MascoTech is aware that MascoTech or the relevant Subsidiary has failed to
comply therewith, or (c) MascoTech has reasonably concluded that failure to
comply is not likely to have a material adverse effect on the business,
financial position or results of operations of MascoTech and its Consolidated
Subsidiaries, taken as a whole.
6.10 Subordinated Debt. The existing Subordinated Debt evidenced by the
41/2% Convertible Subordinated Debentures due 2003 in the original principal
amount of $345,000,000 is and shall be subordinated to all Loans under this
Agreement on the same terms that are applicable to the Existing Bank Facility.
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ARTICLE VII.
COVENANTS
Until all the Commitments and Letters of Credit have expired or been
terminated and all Loans and reimbursement and other obligations (other than
contingent indemnification obligations) of the Borrowers hereunder have been
paid in full, each of the Borrowers covenants that:
7.1 Financial Statements. MascoTech will deliver to each of the Banks:
(a) as soon as practicable and in any event within 50 days after
the end of each of the first three fiscal quarters of each fiscal year of
MascoTech, (i) an unaudited consolidated balance sheet of MascoTech and its
Consolidated Subsidiaries, as at the end of each such quarter, and (ii)
unaudited consolidated statements of income and cash flows of MascoTech and its
Consolidated Subsidiaries, for the period commencing at the end of the previous
fiscal year and ending with the end of such quarter, setting forth in each of
the statements required by this subsection (a), in comparative form,
corresponding figures as of the end of and for the corresponding period of the
preceding fiscal year, all in reasonable detail and duly certified (subject to
year-end audit adjustments) by the chief financial officer or chief accounting
officer of MascoTech as having been prepared in all material respects in
accordance with generally accepted accounting principles and as to fairness of
presentation;
(b) as soon as practicable and in any event within 95 days after
the end of each fiscal year of MascoTech, (i) a consolidated balance sheet of
MascoTech and its Consolidated Subsidiaries, as at the end of such year, and
(ii) consolidated statements of income, shareholders' equity, and cash flows of
MascoTech and its Consolidated Subsidiaries for such year, setting forth in each
of the statements required by this subsection (b), in comparative form,
corresponding figures as of the end of and for the preceding fiscal year, and
all in reasonable detail and certified without material qualifications by
Coopers & Lybrand, or by other independent certified public accountants of
recognized national standing selected by MascoTech and reasonably acceptable to
the Administrative Agent;
(c) as soon as practicable and in any event within 30 days after
the sending or filing thereof, copies of all such financial statements and
reports as it shall send to its security holders and of all final prospectuses
under the Securities Act of 1933 (other than form S-8), reports on forms 10-Q,
10-K and 8-K and all similar regular and periodic reports filed by it (i) with
any federal department, bureau, commission or agency from time to time having
jurisdiction with respect to the sale of securities or (ii) with any securities
exchange;
(d) if and when MascoTech or any ERISA Affiliate of MascoTech (i)
gives or is required to give notice to the PBGC of any "reportable event" (as
defined in Section 4043 of ERISA) with respect to any Plan which might
constitute grounds for a termination of such Plan under Title IV of ERISA, or
knows that the plan administrator of any Plan has given or is required to give
notice of any such reportable event, a copy of the notice of such reportable
event given or required to be given
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to the PBGC; (ii) receives notice of complete or partial withdrawal liability
under Title IV of ERISA or notice that any Multiemployer Plan is in
reorganization, is insolvent or has been terminated, a copy of such notice;
(iii) receives notice from the PBGC under Title IV of ERISA of an intent to
terminate, impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or appoint a trustee to administer, any Plan, a copy of
such notice; (iv) applies for a waiver of the minimum funding standard under
Section 412 of the Code, a copy of such application; (v) gives notice of intent
to terminate any Plan under Section 4041(c) of ERISA, a copy of such notice and
other information filed with the PBGC; (vi) gives notice of withdrawal from any
Plan pursuant to Section 4063 of ERISA, a copy of such notice; or (vii) fails to
make any payment or contribution to any Plan or Multiemployer Plan or in respect
of any Benefit Arrangement or makes any amendment to any Plan or Benefit
Arrangement which has resulted or could result in the imposition of a Lien or
the posting of a bond or other security, a certificate of the chief financial
officer or the chief accounting officer of MascoTech setting forth details as to
such occurrence and action, if any, which MascoTech or applicable ERISA
Affiliate is required or proposes to take; provided that no such certificate
shall be required unless the aggregate unpaid actual or potential liability of
MascoTech and the ERISA Affiliates involved in all events referred to in clauses
(ii) through (vii) above of which officers of MascoTech have obtained knowledge
and have not previously reported under this subparagraph (d) exceeds
$15,000,000; and
(e) with reasonable promptness, such other information regarding
the financial condition of MascoTech or any of its Subsidiaries as any Bank may
from time to time reasonably request.
7.2 Certificates of No Default and Compliance.
(a) Concurrently with each delivery of the financial statements
pursuant to subsections (a) and (b) of Section 7.1, MascoTech will deliver to
the Administrative Agent (with a copy delivered to each Bank) a certificate,
signed by the chief accounting officer or chief financial officer of MascoTech
(i) stating that to the best of his knowledge after due inquiry, at the date of
such financial statements no Default had occurred and was continuing, or, if a
Default had occurred and was continuing, specifying the nature and period of
existence thereof and what action MascoTech has taken or proposes to take with
respect thereto; (ii) setting forth as of the date of such financial statements,
in reasonable detail, the calculations employed to determine compliance with
Sections 4.2(f) (but, in the case of any Asset Sale, only to the extent that the
aggregate amount of Net Cash Proceeds during the immediately preceding twelve
months exceeds $25,000,000), 7.4, 7.5, 7.6, 7.7, 7.8, 7.9 and 7.15 and an
explanation in reasonable detail of any differences between generally accepted
accounting principles as then in effect and generally accepted accounting
principles used in making such calculations, as may be permitted under Section
1.2. The certificate will be accompanied by a calculation of the Senior Debt
Coverage Ratio as of the end of such fiscal quarter (calculated on a pro forma
basis as appropriate).
(b) Within 60 days after the end of each fiscal quarter of each
fiscal year of MascoTech (including the last fiscal quarter of each fiscal
year), MascoTech will deliver to the Administrative Agent (with a copy delivered
to each Bank) a certificate, signed by the chief accounting
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officer, chief financial officer, treasurer or assistant treasurer of MascoTech,
setting forth in reasonable detail the calculation of the Leverage Ratio, as of
the Determination Date with respect to the next forthcoming Application Period,
and identifying the Applicable Margin for such Application Period as a result of
such calculations.
(c) Within fifteen Business Days after any officer of MascoTech
obtains knowledge of a Default, MascoTech will, unless the same shall have been
cured within such fifteen Business Day period, give written notice to each of
the Banks thereof, specifying the nature thereof, the period of existence
thereof and what action MascoTech proposes to take with respect thereto.
7.3 Preservation of Corporate Existence, Etc. MascoTech will preserve
and maintain its corporate existence, and qualify and remain qualified as a
validly existing corporation in good standing in each jurisdiction in which the
conduct of its operations or the ownership of its properties requires such
qualification and failure so to qualify would materially and adversely affect
MascoTech and its Subsidiaries taken as a whole.
7.4 Minimum Capitalization. MascoTech shall not permit its Adjusted Net
Worth at any time to be less than the sum of (a) $650,000,000 plus (b) sixty
percent (60%) of (i) Net Income calculated separately for each fiscal year of
MascoTech ending after the Closing Date minus (ii) the aggregate amount of
dividends paid on any preferred stock of MascoTech during such period to the
extent permitted by Section 7.15 minus (c) on or after March 31, 2002,
$200,000,000; provided however, that if such Net Income is negative in any
fiscal year, the amount added for such fiscal year shall be zero and such
negative Net Income shall not reduce the amount of such Net Income added for any
other fiscal year.
7.5 Fixed Charge Coverage Ratio. MascoTech shall maintain a ratio
("Fixed Charge Coverage Ratio") as of the end of each fiscal quarter of (i)
EBITDA minus Capital Expenditures to (ii) the sum of the amounts of (a) Interest
Charges plus (b) scheduled amortization payments of the principal portion of the
Term Loans (exclusive of the installment due January 31, 2002) and scheduled
amortization payments of the principal portion of all other Debt of MascoTech
and its Consolidated Subsidiaries with an original maturity in excess of one
year plus (c) cash taxes paid by MascoTech and its Consolidated Subsidiaries
(excluding cash taxes with respect to gains not included in EBITDA) of at least:
(i) 1.10 to 1.00 as of the last day of each fiscal quarter ending
during the period commencing with the fiscal quarter ending March 31, 1998
through the fiscal quarter ending June 30, 2000; and
(ii) 1.15 to 1.00 as of the last day of each fiscal quarter ending
thereafter until the Termination Date.
In each case, the Fixed Charge Coverage Ratio shall be determined as of the last
day of each fiscal quarter for the four fiscal quarter period ending on such
day, except that Capital Expenditures shall be
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calculated using an amount equal to fifty percent of the Capital Expenditures
during the eight fiscal quarter period ending on such day.
7.6 Maximum Leverage Ratio. MascoTech shall not, as of the last day of
each fiscal quarter, permit the ratio (the "Leverage Ratio") of (i) the sum of
(a) the aggregate principal amount of Debt of MascoTech and its Consolidated
Subsidiaries outstanding at such date plus (b) the amount by which the sum of
the outstanding Synthetic Lease Amount and the outstanding Securitization Amount
exceeds $50,000,000 as of such date minus (c) the aggregate amount of Cash and
Cash Equivalents maintained in the United States in excess of $10,000,000 as of
such date to (ii) EBITDA plus an amount equal to any reduction in EBITDA
attributable to any interest, rental or servicing expense related to any
Synthetic Lease Agreement or Receivables Sale to the extent such amounts are
included in the amount in excess of $50,000,000 determined as provided in clause
(i)(b) of this Section 7.6, for the four fiscal quarters then most recently
ended, to be greater than the ratio set forth below opposite such date:
Quarter Ending Ratio
March 31, 1998 4.85 to 1.00
June 30, 1998 4.85 to 1.00
September 30, 1998 4.75 to 1.00
December 31, 1998 4.50 to 1.00
March 31, 1999 4.50 to 1.00
June 30, 1999 4.50 to 1.00
September 30, 1999 4.50 to 1.00
December 31, 1999 4.25 to 1.00
March 31, 2000 4.25 to 1.00
June 30, 2000 4.00 to 1.00
September 30, 2000 4.00 to 1.00
December 31, 2000 3.75 to 1.00
March 31, 2001 3.75 to 1.00
June 30, 2001 3.50 to 1.00
September 30, 2001 3.50 to 1.00
December 31, 2001 3.00 to 1.00
and the last day of
each fiscal quarter
thereafter
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7.7 Subsidiary Indebtedness. MascoTech will not permit or suffer the
aggregate principal amount of Debt of its Subsidiaries (other than Debt owing to
MascoTech or any of its Subsidiaries or Debt outstanding under this Agreement or
any Note) at any time to be greater than $100,000,000.
7.8 Negative Pledge. MascoTech shall not, nor shall MascoTech permit
any Consolidated Subsidiary to create, assume or suffer to exist any Lien on any
asset now owned or hereafter acquired by it, except:
(a) Liens existing on the date of this Agreement securing Debt
outstanding on the date of this Agreement in an aggregate principal amount not
exceeding $25,000,000;
(b) any Lien existing on any asset of any corporation at the time
such corporation becomes a Consolidated Subsidiary and not created in contempla-
tion of such event;
(c) any Lien on any asset securing Debt incurred or assumed for the
purpose of financing all or any part of the cost of acquiring such asset (or
acquiring a corporation or other entity which owned such asset), provided that
such Lien attaches to such asset concurrently with or within 90 days after such
acquisition;
(d) any Lien on any asset of any corporation existing at the time
such corporation is merged or consolidated with or into MascoTech or a
Consolidated Subsidiary and not created in contemplation of such event;
(e) any Lien existing on any asset prior to the acquisition thereof
by MascoTech or a Consolidated Subsidiary and not created in contemplation of
such acquisition;
(f) any Lien arising out of the refinancing, extension, renewal or
refunding of any Debt secured by any Lien permitted by any of the foregoing
clauses of this Section, provided that such Debt is not increased and is not
secured by any additional assets;
(g) any Lien in favor of the holder of Debt (or any Person acting
for or on behalf of such holder) arising pursuant to any order of attachment,
distraint or similar legal process arising in connection with court proceedings
so long as the execution or other enforcement thereof is effectively stayed and
the claims secured thereby are being contested in good faith by appropriate
proceedings and MascoTech or such Consolidated Subsidiary, as the case may be,
has established appropriate reserves against such claims in accordance with
generally accepted accounting principles;
(h) Liens incidental to the normal conduct of its business or the
ownership of its assets which (i) do not secure Debt and (ii) do not in the
aggregate materially detract (due to the amount of the liability secured by such
Liens or otherwise) from the value of the assets of MascoTech and its
Consolidated Subsidiaries taken as a whole or in the aggregate materially
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impair the use thereof in the operation of the business of MascoTech and its
Consolidated Subsidiaries taken as a whole;
(i) any Lien securing Debt incurred under this Agreement; and
(j) Liens not otherwise permitted by the foregoing clauses of this
Section; provided that (i) the aggregate outstanding principal amount of Debt
secured by all such Liens on Current Assets shall not at any time exceed 10% of
Current Assets and (ii) the aggregate outstanding principal amount of Debt
secured by all such Liens (including Liens referred to in clause (i) of this
proviso) shall not at any time exceed the sum of 5% of Net Worth plus 10% of
Current Assets, provided, further, that for purposes of this Section 7.8(i),
Current Assets shall not include any assets that are classified as Current
Assets solely because they are held for sale;
provided, however, that the restrictions set forth in this Section 7.8 shall not
apply to "margin stock" (as defined in Regulation U of the Board of Governors of
the Federal Reserve System), if and to the extent that the value of the margin
stock with respect to which the rights of MascoTech and its Subsidiaries are
restricted by this Section 7.8 would otherwise exceed 25% of the value of all
assets with respect to which the rights of MascoTech and its Subsidiaries are
restricted by this Section 7.8.
7.9 Dispositions of Assets; Mergers and Consolidations.
(a) (i) MascoTech will not merge or consolidate with any other
Person, unless MascoTech shall be the continuing or surviving corporation of
such merger or consolidation. (ii) No Consolidated Subsidiary of MascoTech will
merge or consolidate with any Person other than MascoTech (subject to subsection
(a)(i)) or another Consolidated Subsidiary, unless such Consolidated Subsidiary
shall be the continuing or surviving corporation, except to the extent the sale
of such Consolidated Subsidiary would be permitted pursuant to subsection (b) of
this Section.
(b) MascoTech will not, and will not permit any Consolidated
Subsidiary to, directly or indirectly sell, lease, transfer or otherwise dispose
of its assets (other than the sale of inventory in the ordinary course of
business) if, immediately after giving effect thereto, the aggregate amount of
such assets (including the Receivables Sales Amount in the case of Receivables
Sales) sold, leased, transferred or otherwise disposed of by MascoTech and its
Consolidated Subsidiaries in the twelve months then ended would exceed 10% of
the total assets of MascoTech and its Consolidated Subsidiaries as shown on the
most recent balance sheet delivered to the Banks under Section 7.1; provided,
however, that the restrictions set forth in this Section 7.9(b) shall not
restrict or prohibit sales of "margin stock" (as defined in Regulation U of the
Board of Governors of the Federal Reserve System) for fair value as determined
in good faith by the Board of Directors of MascoTech, if and to the extent that
the value of the margin stock with respect to which the rights of MascoTech and
its Subsidiaries are restricted by this Section 7.9(b) would otherwise exceed
25% of the value of all assets with respect to which the rights of MascoTech and
its Subsidiaries are restricted by this Section 7.9(b). Other than margin stock
consisting of the stock of TriMas Corporation, MascoTech will not own,
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directly or through one or more of its Subsidiaries, margin stock with a value
in excess of 25% of the value of all assets of MascoTech and its Subsidiaries.
(c) Notwithstanding any other provision of this Section 7.9, no
disposition of assets, merger or consolidation referred to in subsection (a) or
(b) of this Section shall be permitted if, immediately after giving effect
thereto, any Default would exist.
7.10 Changes in Subordinated Debt. MascoTech will not (a) transfer,
convey, assign or deliver to any holder of any Subordinated Debt, or to any
trustee, paying agent or other fiduciary for the benefit of the holder of any
Subordinated Debt (including any defeasance), any cash, securities (other than
securities constituting Subordinated Debt) or other assets of MascoTech or any
Subsidiary in payment or on account of, or as provision for, principal, premium,
if any, or interest on any Subordinated Debt which is not required under the
instruments and agreements relating to such Subordinated Debt (provided that any
payment which is blocked by any creditors of MascoTech or any of its
Subsidiaries pursuant to the terms of the applicable instrument or agreement
shall not be deemed to be required) or (b) or amend, modify or waive any term or
provision of any instrument or agreement relating to any Subordinated Debt such
that it would not constitute "Subordinated Debt" as defined herein if at the
time of any such transfer, conveyance, assignment, delivery, amendment,
modification or waiver there shall exist and be continuing, or if immediately
after giving effect thereto as a reasonably foreseeable result thereof on a pro
forma basis there would exist or would be caused thereby, a Default.
7.11 Use of Proceeds. (a) None of the proceeds of the Loans made under
this Agreement will be used in violation of any applicable law or regulation
including, without limitation, Regulation U of the Board of Governors of the
Federal Reserve System, provided that a Federal Reserve Form U-1 shall have been
completed by the Administrative Agent on behalf of each Bank and reviewed and
approved by the Banks in form and substance satisfactory to MascoTech and the
Administrative Agent on or prior to the Closing.
(b) The proceeds of the Loans made under this Agreement shall be
used (i) to refinance the Existing Bank Facility, (ii) to finance the purchase
of capital stock of the Target acquired pursuant to the Tender Offer, (iii) to
finance the Merger, (iv) to refinance the current credit facilities of the
Target and (v) for general corporate purposes of the Borrowers.
7.12 Fiscal Year. MascoTech will not change its fiscal year from
beginning on January 1 of the calendar year and ending on December 31 of the
calendar year.
7.13 Compliance with Laws. MascoTech will comply, and cause each
Subsidiary to comply, in all material respects with all applicable laws,
ordinances, rules, regulations, and requirements of governmental authorities
(including, without limitation, Environmental Laws and ERISA and the rules and
regulations thereunder) except where (a) the necessity of compliance therewith
is contested in good faith by appropriate proceedings, (b) no officer of
MascoTech is aware that MascoTech or the relevant Subsidiary has failed to
comply therewith or (c) MascoTech has reasonably concluded that
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failure to comply is not likely to have a material adverse effect on the
business, financial position or results of operations of MascoTech and its
Consolidated Subsidiaries, taken as a whole.
7.14 Interest Rate Agreements. Not later than 180 days after the
Closing Date, the Borrowers shall enter into, and shall thereafter maintain
interest rate swap or hedging agreements or other agreements (including (i) new
Financing of either debt securities bearing a fixed rate of interest or equity
securities) which effectively protect the Borrowers against increases in
interest rates that the Borrowers may be required to pay on a notional amount of
not less than $200,000,000 for not less than the first two years following the
Closing Date.
7.15 Restricted Payments. At any time that MascoTech's Leverage Ratio
(calculated as prescribed in Section 7.6 for the most recently completed four
fiscal quarter period, but adjusted to reflect on a pro forma basis the effect
on the Debt of MascoTech and its Consolidated Subsidiaries as a result of any
issuance of Equity Interests or trust convertible debt securities or similar
securities made subsequent to such period but on or prior to the date such
Restricted Payment is to be made) is greater than or equal to 3.0 to 1.0,
MascoTech shall not make any Restricted Payment except: (i) the payment of
dividends on preferred stock in an amount not to exceed $3,750,000 in any one
fiscal quarter, (ii) other Restricted Payments not to exceed in the aggregate
during the term of this Agreement an amount equal to the sum of (a) $40,000,000
plus (b) an amount equal to 75% of any proceeds received by MascoTech in
connection with its issuance of Equity Interests or trust convertible debt
securities or similar securities to the extent such securities are not treated
as debt of MascoTech in accordance with generally accepted accounting principles
to the extent that, after giving pro forma effect to the application of a
portion of such proceeds to Senior Debt, the Senior Debt Coverage Ratio is less
than 3.0 to 1.0 plus (c) an amount equal to 60% of any proceeds received by
MascoTech in connection with the issuance of Subordinated Debt or trust
convertible debt securities or similar securities to the extent such securities
are treated as debt of MascoTech in accordance with generally accepted
accounting principles to the extent that, after giving pro forma effect to the
application of a portion of such proceeds to Senior Debt, the Senior Debt
Coverage Ratio is less than 3.0 to 1.0 plus (d) an amount equal to 50% of the
aggregate amount of the Excess Cash Flow of MascoTech and its Consolidated
Subsidiaries in each fiscal quarter following the Closing Date and ending with
the most recently completed fiscal quarter (or, 100% of such Excess Cash Flow
for any fiscal quarter ending on or after the Senior Debt Coverage Ratio is less
than 3.0 to 1.0), provided, however, that the Restricted Payments described in
clauses (i) and (ii) above shall not be permitted if either an Event of Default
or a Default shall have occurred and be continuing at the date of declaration or
payment thereof or would result therefrom, except that any dividends on the
common or preferred stock of MascoTech which are declared at a time when no
Default or Event of Default shall have occurred and be continuing or would
result therefrom, MascoTech shall be entitled to pay such dividend within sixty
(60) days of such declaration.
7.16 Guaranties and Pledges. (a) Prior to the consummation of the
Merger, MascoTech will (and, if at the expiration of the Tender Offer, MascoTech
and Acquisition have not obtained sufficient shares of the Target to effect a
short-form merger, MascoTech Sintered Components, Inc. ("Sintered"), MascoTech
Sintered Components of Indiana, Inc. ("Sintered Indiana") and MascoTech
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Tubular Products, Inc. ("Tubular Products") will within five business days of
the initial funding to purchase shares of the Target pursuant to the Tender
Offer) guaranty the indebtedness under this Agreement pursuant to a guaranty
substantially in the form of Exhibit Q. The guaranties by Sintered, Sintered
Indiana and Tubular Products will be released automatically after the
consummation of the Merger unless Sintered, Sintered Indiana and Tubular
Products are Significant Subsidiaries. Within five Business Days after the
Merger becomes effective, the entity resulting from the Merger and all
Significant Subsidiaries will guaranty the indebtedness under this Agreement
pursuant to a guaranty substantially in the form of Exhibit Q. Any subsidiary
that thereafter becomes a Significant Subsidiary will guaranty the indebtedness
under this Agreement promptly upon receiving written demand from the
Administrative Agent. MascoTech will notify the Administrative Agent within
ninety-five (95) days of the date it is determined that any Subsidiary has
become a Significant Subsidiary. The guaranty of any such Subsidiary will be
automatically released upon the sale of such Subsidiary if all Net Cash Proceeds
of the sale are applied to the Term Loans, or, if the Term Loans have been paid
in full, to the Revolving Loans, as prescribed in Section 4.2(f). The guaranty
of any Subsidiary that ceases to be a Significant Subsidiary will be
automatically released upon the determination by MascoTech, in the preparation
of its annual financial statements, that such Subsidiary is no longer a
Significant Subsidiary.
(b) All stock of the Target owned by MascoTech, Acquisition and NI
Industries, Inc., a Delaware corporation, including the stock acquired in the
Tender Offer, will be pledged concurrently with the initial Borrowing. The
pledged stock will be released upon MascoTech's achievement of an implied or
actual senior unsecured debt rating of BB+ by S&P or Ba1 by Moody's or a Senior
Debt Coverage Ratio of less than 2.5 to 1.0, but not before the consummation of
the Merger.
ARTICLE VIII.
CONDITIONS OF BORROWINGS AND LETTER OF CREDIT ISSUANCES
The obligation of the Administrative Agent to issue any Letter of Credit,
the obligation of each Bank to make a Syndicated Loan on the occasion of each
Syndicated Borrowing hereunder, and the willingness of any Bank to consider, in
its sole discretion, making any Bid-Option Loan hereunder, is subject to the
performance by the Borrowers of all their obligations under this Agreement and
to the satisfaction of the following further conditions:
8.1 Each Borrowing and Letter of Credit Issuance. In the case of each
Borrowing (other than a Floating Rate Borrowing deemed disbursed under Section
3.3(e) and any Borrowing subject to the conditions precedent in Sections 8.2 and
8.3) and Letter of Credit Issuance hereunder:
(a) Receipt by the Administrative Agent of (i) in the case of each
Borrowing, the Notice of Borrowing from the applicable Borrower containing any
information required by Section 3.4, 3.5, 3.6 or 3.7 as the case may be, and
(ii) in the case of each Letter of Credit Issuance, the Request for Letter of
Credit Issuance from the applicable Borrower as required by Section 3.3, in each
case signed by an Authorized Officer or person designated (by written
notification from such Authorized Officer to the Administrative Agent) by such
Authorized Officer, and, in the case of each Letter of Credit
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Issuance, together with an application for the related Letter of Credit and
other related documentation requested by and acceptable to the Administrative
Agent appropriately completed and duly executed by such designated officer or
other person.
(b) The fact that both before and at the conclusion of the
Borrowing or Letter of Credit Issuance: (i) in the case of a Refunding
Borrowing, no Event of Default shall have occurred and be continuing and (ii) in
the case of any other Borrowing or any Letter of Credit Issuance, no Default
shall have occurred and be continuing;
(c) The fact that the representations and warranties contained in
this Agreement (except, in the case of a Refunding Borrowing, the
representations and warranties set forth in Section 6.4(i), Section 6.5, the
last sentence of Section 6.6, clause (a) of the first sentence of Section 6.7
and Sections 6.8 and 6.9) shall be true and correct in all material respects or,
with respect to such representations and warranties that include a materiality
standard, in all respects, on and as of the date of such Borrowing or Letter of
Credit Issuance with the same force and effect as if made on and as of such
date; and
(d) Receipt by the Administrative Agent of such other opinions,
documents, evidence, materials and information with respect to the matters
contemplated hereby as the Administrative Agent or the Required Banks may
reasonably request.
Each Borrowing by the Borrowers and Letter of Credit Issuance pursuant to this
Agreement, including the first such Borrowing or Letter of Credit Issuance,
shall be deemed to be a representation and warranty by the Borrowers on the date
of such Borrowing or Letter of Credit Issuance as to the facts specified in
clauses (b) and (c) of this Section 8.1.
8.2 Initial Borrowing or Letter of Credit Issuance. In the case of the
initial Borrowing or Letter of Credit Issuance pursuant to this Agreement:
(a)(1) General Conditions. Receipt by the Administrative Agent for
the account of each Bank of a duly executed Revolving Note, a duly
executed Term Loan Note and a duly executed Bid-Option Note, each dated on
or before the date of such Borrowing or Letter of Credit Issuance; and
(2) Receipt by the Administrative Agent of all the items, and completion
of all the matters, required by Section 8.3.
(3) Regulation U Requirements. The Administrative Agent shall have
received on behalf of the Banks a purpose statement on FR Form U-1
referred to in Regulation U in form and substance satisfactory to the
Administrative Agent.
(b) Initial Loans to Finance the Tender Offer. In addition to
satisfying the conditions precedent set forth in Section 8.2(a), in the case of
the initial Borrowing or Letter of Credit Issuance
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under the Revolving Credit Facility or the initial Borrowing under the Term Loan
Facility to finance the purchase of capital stock of the Target acquired by
Acquisition pursuant to the Tender Offer:
(1) (i) Receipt by the Agents of evidence that MascoTech's directors
shall have approved the Tender Offer and Merger and that the Target's
directors shall have approved and recommended acceptance of the Tender
Offer and shall have approved the Merger. (ii) MascoTech, Acquisition and
the Target shall have made all filings with and obtained all approvals and
authorizations from any governmental body, agency, official or authority,
and any applicable waiting period related thereto shall have expired or
been terminated, which filings, approvals or authorizations (or the
expiration of such waiting periods) are legally required to be obtained or
made by them (or to have expired or terminated) prior to the consummation
of the Tender Offer and which, if not obtained or made (or expired or
terminated) would, individually or in the aggregate, have a reasonable
probability of having a material adverse effect on MascoTech or the
Target.
(2) No law or regulation shall have made consummation of the Tender
Offer or the Merger illegal or otherwise prohibited and no judgment,
injunction, order or decree shall have enjoined MascoTech, Acquisition or
the Target from consummating the Tender Offer or the Merger.
(3) The amounts and forms of the consideration to be paid in the Tender
Offer and the Merger shall be acceptable to the Agents if higher than
$34.50 per share, together with evidence of such consideration to be paid
satisfactory to the Agents.
(4) (i) All conditions precedent to Acquisition's consummation of the
Tender Offer shall have been satisfied or waived with the approval of the
Agents. (ii) The terms of the Tender Offer shall not be amended without
the consent of the Agents. (iii) The number of the Target's shares of
capital stock validly tendered pursuant to the Tender Offer and not
properly withdrawn prior to expiration of the Tender Offer shall represent
not less than the minimum number of shares, determined on a fully diluted
basis necessary to effectuate the Merger in accordance with the provisions
of any applicable corporate statute, anti-takeover statute or provision in
the Target's certificate of incorporation or by-laws in order to
consummate the Merger.
(5) The Merger Agreement shall not have been amended or modified or any
of its provisions waived by MascoTech in any respect material to the Banks
without the approval of the Agents and there shall not have occurred or
exist any breach or default by MascoTech material to the Banks under the
Merger Agreement. Except for such inaccuracies or omissions the
consequences of which do not singly or in the aggregate constitute a
material adverse effect on the Target, the representations and warranties
of the Target contained in the Merger Agreement shall be true in all
respects at and as of the time shares are accepted for payment pursuant to
the Tender Offer as if made at and as of such time (except as to those
representations and warranties which are made as of a specified date,
which shall be true and correct as of such date).
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(6) Receipt by the Agents of a copy of any fairness opinion relating to
the Tender Offer.
(7) The Agents shall have received evidence confirming the solvency and
other appropriate factual information in form and substance satisfactory
to them from the chief financial officer of MascoTech supporting the
conclusion that after giving effect to the Tender Offer and the Merger,
MascoTech and its Consolidated Subsidiaries, including the Target, taken
as a whole, is solvent and will be solvent subsequent to incurring the
indebtedness in connection with the Tender Offer and the Merger, will be
able to pay its debts as they become due and will not be left with
unreasonably small capital.
(8) All outstanding payment obligations of the Borrowers under the
Existing Bank Facility shall have been repaid in full with the
indebtedness incurred under this Agreement except Existing Bid-Option
Loans permitted pursuant to Article II.
(9) Compliance with all applicable requirements of Regulations G, T, U
and X of the Board of Governors of the Federal Reserve System.
(10) No Default or Event of Default shall have occurred and be continuing
on the funding date and no Material Adverse Change shall have occurred.
(11) No event, occurrence, development or state of circumstances or facts
which has had or has a reasonable probability of having, individually or
in the aggregate, a material adverse effect on the Target shall have
occurred.
(12) All guaranties, in the form of Exhibit Q attached hereto, and
pledges, in the form of Exhibit R attached hereto, required pursuant to
Section 7.16 shall have been executed.
(13) The representations and warranties contained in Sections 6.1, 6.2
and 6.3 shall be true and correct.
(c) Initial Loans to Finance the Merger. In addition to satisfying the
conditions precedent set forth in Section 8.2(a), in the case of a Borrowing or
Letter of Credit Issuance under the Revolving Credit Facility or a Borrowing
under the Term Loan Facility to finance the Merger:
(1) The Merger shall have become effective in accordance with all
applicable laws and regulations and the Merger Agreement, the provisions
of which shall not have been amended, waived or modified by MascoTech in
any manner material to the Banks without the prior consent of the Required
Banks, and each of the conditions precedent to MascoTech's obligation to
consummate the Merger material to the Banks set forth in the Merger
Agreement shall have been satisfied to the satisfaction of the Required
Banks.
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(2) No law or regulation shall have made consummation of the Merger
illegal or otherwise prohibited and no judgment, injunction, order or
decree shall have enjoined MascoTech, Acquisition or the Target from
consummating the Merger.
(3) After giving effect to consummation of the Merger, no Default shall
have occurred and be continuing and no Material Adverse Change shall have
occurred since the funding of the Tender Offer.
(4) After giving effect to any Loans made on the date of consummation
of the Merger, all outstanding payment obligations of TriMas Corporation
under its existing $350,000,000 Credit Agreement shall have been paid in
full and such Credit Agreement shall have been terminated.
8.3 Closing. On or prior to the Closing Date, the Borrowers shall
furnish to the Banks the following items, and the following matters shall be
completed:
(a) An opinion of each of David Liner, counsel to MascoTech, and
Davis Polk & Wardwell, special New York counsel to MascoTech, substantially in
the form of Exhibit M and Exhibit N, respectively, hereto, and covering such
other matters as any Bank may reasonably request, dated the Closing Date;
(b) Certified copies of all corporate action taken by each
Borrower to authorize the execution, delivery and performance of this Agreement
and the Notes, and the Borrowings and Letter of Credit Issuances hereunder, and
such other corporate documents and other papers as any Bank may reasonably
request, including, without limitation, certified copies of the Borrower's
articles of incorporation and by-laws;
(c) A certificate of a duly authorized officer of each Borrower,
dated the Closing Date, as to the incumbency, and setting forth a specimen or
facsimile signature, of each of the persons (i) who has signed this Agreement on
behalf of the applicable Borrower, (ii) who has signed the Notes on behalf of
the applicable Borrower, and (iii) who will, until replaced by other persons
duly authorized for that purpose, act as the representatives of the applicable
Borrower for the purpose of signing documents in connection with this Agreement
and the transactions contemplated hereby;
(d) A certificate of a senior officer of MascoTech to the effect
set forth in Section 8.2(b)(10), (11) and (13); and
(e) The closing fees payable under Section 3.9, which shall be
paid to the Administrative Agent for the account of the Banks.
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ARTICLE IX.
EVENTS OF DEFAULT AND REMEDIES
9.1 Events of Default. If any one or more of the following events
("Events of Default") shall have occurred and be continuing:
(a) Any Borrower shall fail to pay when due any installment of
principal of any Note or shall fail to pay within five days of the due date
thereof any interest on any Note or any facility fee, closing fee, Letter of
Credit fee, or Agents and Arrangers fee payable under this Agreement, or any
reimbursement obligation under Section 3.3 (unless satisfied by the deemed
disbursement of Floating Rate Loans); or
(b) Any Borrower shall fail to observe or perform any covenant
contained in any of Sections 7.3 to 7.10 inclusive and 7.14 to 7.16 inclusive;
or
(c) Any Borrower shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by clauses (a)
and (b) above) for thirty (30) days after written notice thereof has been given
to such Borrower by any Bank or the Administrative Agent; or
(d) Any representation or warranty of a Borrower or any officer of
a Borrower to the Banks contained herein or in any certificate, statement or
report furnished to the Banks hereunder shall prove to have been incorrect or
misleading in any material respect on the date when made or deemed made,
provided that, if any representation and warranty deemed to have been made by a
Borrower pursuant to the last sentence of Section 8.1 as to the satisfaction of
the condition of borrowing set forth in clause (b)(i) of Section 8.1 shall have
been incorrect solely by reason of the existence of an Event of Default of which
such Borrower was not aware when such representation and warranty was deemed to
have been made and which was cured before or promptly after the Borrower became
aware thereof, then such representation and warranty shall be deemed not to have
been incorrect in any material respect; or
(e) Any Borrower or any Significant Subsidiary (i) shall fail to
pay at maturity, or within any applicable period of grace, any Debt (other than
a Loan and other than Acquired Debt in an aggregate outstanding principal amount
not exceeding $15,000,000) having an aggregate principal amount in excess of
$10,000,000, and such failure has not been waived, or (ii) shall fail to observe
or perform any term, covenant or agreement (other than such a term, covenant or
agreement to or for the benefit of a Bank or Affiliate thereof restricting the
sale, pledge or other disposition by a Borrower or any Significant Subsidiary of
"margin stock" having a value in excess of 25% of the value of the assets
referred to in Section 221.2(g)(2)(i)
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of Regulation U unless the Board of Governors of the Federal Reserve System or
its staff advises the Administrative Agent in writing that the existence of this
subsection (e) without this parenthetical exception would not in such
circumstances render this Agreement "secured directly or indirectly by margin
stock" within the meaning of its Regulation U), contained in any agreement
(other than this Agreement) by which it is bound evidencing or securing
indebtedness for borrowed money (other than Acquired Debt in an aggregate
outstanding principal amount not exceeding $15,000,000) for such period of time
as would cause or permit the holder or holders (or any Persons acting for or on
behalf of such holder or holders) thereof or of any obligations issued
thereunder to accelerate the maturity thereof or of any such obligations in an
aggregate principal amount in excess of $10,000,000, and such failure has not
been waived; provided that for purposes of this subsection (e), a failure by any
Borrower or any Significant Subsidiary to observe or perform any term, covenant
or agreement in respect of the industrial revenue bonds identified on Schedule 2
attached hereto, or to pay on the due date therefor the debt outstanding
thereunder, shall not be deemed a Default or contribute to the $10,000,000
aggregate limitation set forth above, so long as such Borrower or Significant
Subsidiary satisfies all obligations to pay premium, if any, principal of, and
interest when due on such bonds (whether or not related to an acceleration of
maturity) within five days after the due date therefor; or
(f) Any Borrower or any Significant Subsidiary shall (i) apply for
or consent to the appointment of a receiver, custodian, trustee, liquidator or
the like of itself or of a significant portion of its assets; (ii) be unable or
admit in writing its inability to pay its debts as they mature; (iii) make a
general assignment for the benefit of creditors; (iv) be adjudicated a bankrupt
or insolvent; or (v) file a voluntary petition in bankruptcy or a petition or an
answer seeking reorganization or an arrangement with creditors or to take
advantage of any insolvency law, or any answer admitting the material
allegations of a petition filed against it in any bankruptcy, reorganization or
insolvency proceedings, or a resolution of either the shareholders or the Board
of Directors of such corporation shall be adopted for the purpose of effecting
any of the foregoing; or
(g) A proceeding shall be instituted without the application,
approval or consent of a Borrower or any Significant Subsidiary in any court of
competent jurisdiction seeking, in respect of such Borrower or Significant
Subsidiary, adjudication in bankruptcy, dissolution, winding up, reorganization,
a composition or arrangement with creditors, a readjustment of debts, the
appointment of a receiver, custodian, trustee, liquidator or the like of the
Borrower or such Significant Subsidiary or of a significant portion of its
assets, or other like relief in respect of the Borrower or Significant
Subsidiary under any insolvency or bankruptcy law, and the same shall continue
undismissed or unstayed and in effect for any period of sixty consecutive days;
or
(h) Final judgment for the payment of money in excess of
$5,000,000 in amount shall be rendered by a court of record against any Borrower
or Significant Subsidiary and such Borrower or Significant Subsidiary shall not
discharge the same or provide for its discharge, or
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procure a stay of execution thereof, within sixty days from the date of entry
thereof, and within said period of sixty days or such longer period during which
execution of such judgment shall have been stayed, move to vacate said judgment
or appeal therefrom and cause the execution thereof to be stayed pending
determination of such motion or during such appeal; or
(i) Any Borrower or any ERISA Affiliate of any Borrower shall fail
to pay when due an amount or amounts aggregating in excess of $5,000,000 which
it shall have become liable to pay to the PBGC or to a Plan under Title IV of
ERISA; or notice of intent to terminate a Plan or Plans having aggregate
Unfunded Benefit Liabilities in excess of $25,000,000 (collectively, a "Material
Plan") shall be filed under Title IV of ERISA by any Borrower or any ERISA
Affiliate of any Borrower, any plan administrator or any combination of the
foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to
terminate or to cause a trustee to be appointed to administer any Material Plan
and such proceeding shall not have been dismissed within thirty days thereafter;
or a condition shall exist by reason of which the PBGC would be entitled to
obtain a decree adjudicating that any Material Plan must be terminated; or
(j)(i) Any Person or "group" (within the meaning of Section 13(d)
or 14(d) of the Securities Exchange Act of 1934, as amended), other than any
Person in the Masco Group or any group that includes any Person in the Masco
Group (A) shall have acquired beneficial ownership of 25% or more of the capital
stock having ordinary voting power in the election of directors of MascoTech or
(B) shall obtain the power (whether or not exercised) to elect a majority of
MascoTech's directors or (ii) the Board of Directors of MascoTech shall not
consist of a majority of Continuing Directors; "Continuing Directors" shall mean
the directors of MascoTech on the Closing Date and each other director, if such
other director's nomination for election to the Board of Directors of MascoTech
is recommended by a majority of the then Continuing Directors; or
(k) Acquisition and Target shall fail to consummate the Merger
within 180 days of the initial funding of Loans;
then, and in each such case, the Administrative Agent upon being directed to do
so by the Required Banks, shall, by written notice to the Borrowers, (i)
immediately terminate the Commitments, the Swing Line Commitment and the
Alternate Currency Commitments, (ii) declare the principal of and interest
accrued on all the Notes, all unpaid reimbursement obligations in respect of
drawings under Letters of Credit, and all other amounts owing under this
Agreement to be immediately due and payable or (iii) demand immediate delivery
of cash collateral, and the Borrowers agree to deliver such cash collateral upon
demand, in an amount equal to the maximum amount that may be available to be
drawn at any time prior to the stated expiry of all outstanding Letters of
Credit, or any one or more of the foregoing, whereupon the Commitments shall
terminate forthwith and all such amounts, including such cash collateral, shall
become immediately due and payable without presentment or demand for payment,
notice of non-payment, protest or further notice or demand of any kind, all of
which are expressly waived by the Borrowers; provided, however, that in the case
of the occurrence of any event
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described in the foregoing clauses (f) and (g) with respect to MascoTech or with
respect to the Target provided the Target is at such time a Borrower, the
Commitments shall automatically terminate forthwith and all such amounts,
including such cash collateral, shall automatically become immediately due and
payable without action upon the part of the Required Banks and without the
requirement of any such notice, and without presentment, demand, protest or
other notice of any kind, all of which are hereby waived. Such cash collateral
delivered in respect of outstanding Letters of Credit shall be deposited in a
special cash collateral account to be held by the Administrative Agent as
collateral security for the payment and performance of the applicable Borrower's
obligations under this Agreement and the Notes to the Banks and the
Administrative Agent.
9.2 Remedies. The Administrative Agent upon being directed to do so by
the Required Banks, shall, in addition to the remedies provided in Section 9.1,
exercise and enforce any and all other rights and remedies available to it or
the Banks, whether arising under this Agreement, the Notes or under applicable
law, in any manner deemed appropriate by the Administrative Agent, including
suit in equity, action at law, or other appropriate proceedings, whether for the
specific performance (to the extent permitted by law) of any covenant or
agreement contained in this Agreement or in the Notes or in aid of the exercise
of any power granted in this Agreement or the Notes.
9.3 Set Off. Upon the failure of the Borrowers to pay any indebtedness
under this Agreement or the Notes at its maturity (whether at stated maturity,
by acceleration or otherwise) or, in the case of such indebtedness other than
principal of the Loans, when due (after allowing for any grace period provided
with respect thereto under Section 9.1(a)), each Bank may at any time and from
time to time, without notice to the Borrowers (any requirement for such notice
being expressly waived by the Borrowers) set off and apply against any and all
of the obligations of the Borrowers now or hereafter existing under this
Agreement and the Notes, whether owing to such Bank or any other Bank or the
Administrative Agent, any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing
by such Bank to or for the credit or the account of the Borrowers and any
property of the Borrowers from time to time in possession of such Bank,
regardless of whether or not such Bank shall have made any demand hereunder or
any indebtedness owing by such Bank may be contingent and unmatured. The rights
of the Banks under this Section 9.3 are in addition to other rights and remedies
(including, without limitation, other rights of setoff) which the Banks may
have.
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ARTICLE X.
THE AGENTS AND THE BANKS
10.1 Appointment and Authorization. Each Bank hereby irrevocably
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement and the Notes as are
delegated to the Administrative Agent by the terms hereof or thereof, together
with all such powers as are reasonably incidental thereto. The provisions of
this Article X are solely for the benefit of the Administrative Agent and the
Banks, and the Borrowers shall not have any rights as third party beneficiaries
of any of the provisions hereof. In performing its functions and duties under
this Agreement, the Administrative Agent shall act solely as agent of the Banks
and does not assume and shall not be deemed to have assumed any obligation
towards or relationship of agency or trust with or for the Borrowers.
10.2 Administrative Agent and Affiliates. The Administrative Agent in
its capacity as a Bank hereunder shall have the same rights and powers hereunder
as any other Bank and may exercise or refrain from exercising the same as though
it were not the Administrative Agent. The Administrative Agent and its
Affiliates may (without having to account therefor to any Bank) accept deposits
from, lend money to, and generally engage in any kind of banking, trust,
financial advisory or other business with MascoTech or any Subsidiary of
MascoTech as if it were not acting as Administrative Agent hereunder, and may
accept fees and other consideration therefor without having to account for the
same to the Banks.
10.3 Scope of Agent's Duties. The Administrative Agent shall have no
duties or responsibilities except those expressly set forth herein, and shall
not, by reason of this Agreement, have a fiduciary relationship with any Bank,
and no implied covenants, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or shall otherwise exist against the
Administrative Agent. As to any matters not expressly provided for by this
Agreement (including, without limitation, collection and enforcement action
under the Notes), the Administrative Agent shall not be required to exercise any
discretion or take any action, but may request instructions from the Required
Banks. The Administrative Agent shall in all cases be fully protected from
liability to the Banks in acting, or in refraining from acting, pursuant to the
written instructions of the Required Banks or, when expressly required by this
Agreement, all the Banks, which instructions and any action or omission pursuant
thereto shall be binding upon all of the Banks; provided, however, that the
Administrative Agent shall not be required to act or omit to act if, in the
judgment of the Administrative Agent, such action or omission may expose the
Administrative Agent to personal liability or is contrary to this Agreement, any
Note, or applicable law.
10.4 Reliance by Administrative Agent. The Administrative Agent shall be
entitled to rely upon any certificate, notice, document or other communication
(including any cable, telegram, telex, facsimile transmission or oral
communication) believed by it to be genuine and correct and to have been sent or
given by or on behalf of a proper person. The Administrative Agent may treat
the payee
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of any Note as the holder thereof. The Administrative Agent may employ agents
(including, without limitation, collateral agents) and may consult with legal
counsel (who may be counsel for the Borrowers), independent public accountants
and other experts selected by it and shall not be liable to the Banks, except as
to money or property received by it or its authorized agents, for the negligence
or misconduct of any such agent selected by it with reasonable care or for any
action taken or omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts.
10.5 Default. The Administrative Agent shall not be deemed to have
knowledge of the occurrence of any Default, unless the Administrative Agent has
received written notice from a Bank or the Borrowers specifying such Default and
stating that such notice is a "Notice of Default". In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall give
written notice thereof to the Banks.
10.6 Liability of Administrative Agent. Neither the Administrative Agent
nor any of its directors, officers, agents, or employees shall be liable to the
Banks for any action taken or not taken by it or them in connection herewith
with the consent or at the request of the Required Banks or, when expressly
required by this Agreement, all the Banks or in the absence of its or their own
gross negligence or willful misconduct. Neither the Administrative Agent nor
any of its directors, officers, agents or employees shall be responsible for or
have any duty to ascertain, inquire into or verify (a) any recital, statement,
warranty or representation contained in this Agreement or any Note, or in any
certificate, report, financial statement or other document furnished in
connection with this Agreement, (b) the performance or observance of any of the
covenants or agreements of the Borrowers, (c) the satisfaction of any condition
specified in Article VIII, except as to the delivery to the Administrative Agent
of documents that appear on their face to conform to the requirements of Article
VIII (other than requirements of any Bank under Section 8.3(b) that are not
known to the Administrative Agent), or (d) the validity, effectiveness, legal
enforceability, value or genuineness of this Agreement, the Notes, or any other
instrument or document furnished in connection herewith.
10.7 Nonreliance on Administrative Agent and Other Banks. Each Bank
acknowledges and agrees that it has, independently and without reliance on the
Administrative Agent or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of
MascoTech and its Subsidiaries and its own decision to enter into this
Agreement, and that it will, independently and without reliance upon the
Administrative Agent or any other Bank, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
analysis and decision in taking or not taking action under this Agreement. The
Administrative Agent shall not be required to keep itself informed as to the
performance or observance by the Borrowers of this Agreement, the Notes or any
other documents referred to or provided for herein or to inspect the properties
or books of the Borrowers and, except for notices, reports and other documents
and information expressly required to be furnished to the Banks by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Bank with any information concerning the
affairs, financial condition or business of MascoTech or any of its Subsidiaries
which may come into the possession of the Administrative Agent or any of its
Affiliates.
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10.8 Indemnification. The Banks agree to indemnify the Administrative
Agent (to the extent not reimbursed by the Borrowers, but without limiting any
obligation of the Borrowers to make such reimbursement), ratably according to
their respective Pro Rata Shares from and against any and all claims, damages,
losses, liabilities, costs or expenses of any kind or nature whatsoever
(including, without limitation, fees and disbursements of counsel) which may be
imposed on, incurred by, or asserted against the Administrative Agent in any way
relating to or arising out of this Agreement or the transactions contemplated
hereby or any action taken or omitted by the Administrative Agent under this
Agreement; provided, however, that no Bank shall be liable for any portion of
such claims, damages, losses, liabilities, costs or expenses resulting from the
Agent's gross negligence or willful misconduct. Without limitation of the
foregoing, each Bank agrees to reimburse the Administrative Agent promptly upon
demand for its ratable share of any out-of-pocket expenses (including, but not
limited to, reasonable fees and expenses of counsel) incurred by the
Administrative Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, to the extent that the
Administrative Agent is not reimbursed for such expenses by the Borrowers, but
without limiting the obligation of the Borrowers to make such reimbursement;
provided, however, that no Bank shall be liable for any portion of such expenses
incurred as a result of the Agent's gross negligence or willful misconduct.
Each Bank agrees to reimburse the Administrative Agent promptly upon demand for
its ratable share of any amounts owing to the Administrative Agent by the Banks
pursuant to this Section; provided that no Bank shall be responsible for failure
of any other Bank to make such share available to the Administrative Agent. If
the indemnity furnished to the Administrative Agent under this Section shall, in
the reasonable judgment of the Administrative Agent, be insufficient or become
impaired, the Administrative Agent may call for additional indemnity from the
Banks (other than for the Agent's gross negligence or willful misconduct) and
cease, or not commence, to take any action until such additional indemnity is
furnished.
10.9 Resignation of Administrative Agent. The Administrative Agent may
resign as such at any time upon thirty days' prior written notice to the
Borrowers and the Banks. In the event of any such resignation, the Required
Banks shall, by an instrument in writing delivered to the Borrowers and the
Administrative Agent, appoint a successor, which shall be (a) a Bank or (b) a
commercial bank organized under the laws of the United States or any State
thereof and having a combined capital and surplus of at least $500,000,000. If
a successor is not so appointed or does not accept such appointment before the
Agent's resignation becomes effective, the resigning Administrative Agent may
appoint a temporary successor to act until such appointment by the Required
Banks is made and accepted or if no such temporary successor is appointed as
provided above by the resigning Administrative Agent, the Required Banks shall
thereafter perform all the duties of the Administrative Agent hereunder until
such appointment by the Required Banks is made and accepted. Any successor to
the Administrative Agent shall execute and deliver to the Borrowers and the
Banks an instrument accepting such appointment and thereupon such successor
Administrative Agent, without further act, deed, conveyance or transfer shall
become vested with all of the properties, rights, interests, powers, authorities
and obligations of its predecessor hereunder with like effect as if originally
named as Administrative Agent hereunder. Upon request of such successor
Administrative Agent, the
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Borrowers and the resigning Administrative Agent shall execute and deliver such
instruments of conveyance, assignment and further assurance and do such other
things as may reasonably be required for more fully and certainly vesting and
confirming in such successor Administrative Agent all such properties, rights,
interests, powers, authorities and obligations. The provisions of this Article
X shall thereafter remain effective for such resigning Administrative Agent with
respect to any actions taken or omitted to be taken by such Administrative
Agent while acting as the Administrative Agent hereunder.
10.10 Sharing of Payments. The Banks agree among themselves that, in the
event that any Bank shall obtain payment in respect of any Loan or Letter of
Credit reimbursement obligation owing to such Bank under this Agreement through
the exercise of a right of set-off, banker's lien, counterclaim or otherwise in
excess of its ratable share as provided for in this Agreement, such Bank shall
promptly purchase from the other Banks participations in such Loans and other
obligations in such amounts, and make such other adjustments from time to time,
as shall be equitable to the end that all of the Banks share such payment in
accordance with their respective ratable shares as provided for in this
Agreement. The Banks further agree among themselves that if payment to a Bank
obtained by such Bank through the exercise of a right of set-off, banker's lien,
counterclaim or otherwise as aforesaid shall be rescinded or must otherwise be
restored, each Bank which shall have shared the benefit of such payment shall,
by repurchase of participations theretofore sold, return its share of that
benefit to each Bank whose payment shall have been rescinded or otherwise
restored, together with interest thereon at the per annum rate, if any, at which
such Bank whose payment shall have been restored is liable with respect to such
restored payment. The Borrowers agree that any Bank so purchasing such a parti-
cipation may, to the fullest extent permitted by law, exercise all rights of
payment, including set-off, banker's lien or counterclaim, with respect to such
participation as fully as if such Bank were a holder of such Loan or other
obligation in the amount of such participation. The Banks further agree among
themselves that, in the event that amounts received by the Banks and the
Administrative Agent hereunder are insufficient to pay all such obligations when
due, the fees and other amounts owing to the Administrative Agent in such
capacity shall be paid therefrom before payment of obligations owing to the
Banks under this Agreement. Except as otherwise expressly provided in this
Agreement, if any Bank or the Administrative Agent shall fail to remit to the
Administrative Agent or any other Bank an amount payable by such Bank or the
Administrative Agent to the Administrative Agent or such other Bank pursuant to
this Agreement on the date when such amount is due, such payments shall be made
together with interest thereon for each date from the date such amount is due
until the date such amount is paid to the Administrative Agent or such other
Bank at a rate per annum equal to the rate at which borrowings are available to
the payee in its overnight federal funds market.
10.11 Withholding Tax Exemption. Each Bank agrees to file with the
Administrative Agent and the Borrowers, in duplicate, (a) on or before the later
of (i) the Closing Date and (ii) the date such Bank becomes a Bank under this
Agreement, (b) on the date such Bank becomes an Alternate Currency Bank with
respect to an Alternate Currency and (c) thereafter as frequently as required by
applicable law unless not legally able to do so as a result of a change in
applicable tax law enacted, or treaty promulgated, after the date specified in
the preceding clause (a) or (b), as applicable, on or prior to the immediately
following due date of any payment by the Borrowers hereunder, a properly
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completed and executed copy of any form, certification or similar documentation,
if any, necessary for claiming complete exemption from withholding taxes,
including in the case of taxes imposed by the United States, either Internal
Revenue Service Form 4224 or Internal Revenue Service Form 1001 and Internal
Revenue Service Form W-8 or Internal Revenue Service Form W-9 and any additional
form necessary for claiming complete exemption from United States withholding
taxes (or such other form as is required to claim complete exemption from United
States withholding taxes), if and as provided by the Code or other
pronouncements of the United States Internal Revenue Service, and such Bank
warrants to the Borrowers that the form so filed will be true and complete;
provided that such Bank's failure to complete, execute and file such form,
certification or similar documentation shall not relieve the Borrowers of any of
their obligations under this Agreement, other than their obligation under
Section 5.3(a) with respect to increased costs that are a result of such
failure.
10.12 The Syndication Agents and Arrangers. Each Syndication Agent and
Arranger, in such capacities, shall have no authority, duties, responsibilities,
obligations, liabilities or functions under this Agreement or the Notes.
ARTICLE XI.
MISCELLANEOUS
11.1 Amendments, Etc.
(a) No amendment, modification, termination or waiver of any
provision of this Agreement nor any consent to any departure therefrom shall be
effective unless the same shall be in writing and signed by the Borrowers
(except with respect to waivers by the Required Banks or all the Banks) and the
Required Banks and, to the extent any rights or duties of the Administrative
Agent may be affected thereby, by the Administrative Agent, provided, however,
that no such amendment, modification, termination, waiver or consent shall,
without the consent of all of the Banks, (i) authorize or permit the extension
of time for, or any reduction of the amount of, any payment of the principal of,
or interest (including the Applicable Margin) on, any Loan, or any fees or other
amount payable hereunder (except with respect to any modifications of the
provisions relating to prepayments of Loans and except with respect to waiving
the application of the Overdue Rate), or (ii) except as expressly authorized
hereunder, amend, extend or terminate the respective Commitment of any Bank
(other than any Alternate Currency Commitment and except for an extension beyond
the Termination Date), or (iii) modify the provisions of this Section regarding
the taking of any action under this Section, or the definition of Required
Banks, or (iv) permit the Borrowers to assign their rights under this Agreement,
or (v) release all or substantially all of any collateral securing the extension
or maintenance of the credit provided for in this Agreement or release any
guaranty thereof (except as expressly provided in Section 7.16), or (vi) modify
the several nature of the obligations of the Banks hereunder, modify the sharing
provisions among the Banks in Section 10.10, modify this Section 11.1 or the
first sentence of Section 11.6, or modify any other provision of this Agreement
which by its terms requires the consent of all the Banks.
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(b) Any such amendment, waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given.
(c) Notwithstanding anything herein to the contrary, no Bank that
is in default of any of its obligations, covenants or agreements under this
Agreement shall be entitled to vote (whether to consent or to withhold its
consent) with respect to any amendment, modification, termination or waiver of
any provision of this Agreement or any departure therefrom or any direction from
the Banks to the Administrative Agent, and, for purposes of determining the
Required Banks at any time when any Banks are in default under this Agreement,
the Commitments and Loans of such defaulting Banks shall be disregarded;
provided that no action of a type described in the proviso in Section 11.1(a)
shall be binding on a defaulting Bank without its written consent thereto.
11.2 Notices.
(a) Except as otherwise provided in subsection 11.2(c) hereof, all
notices and other communications to or upon the parties hereto shall be deemed
to have been duly given or served if sent in writing (including
telecommunications) to the party to which such notice or other communication is
required or permitted to be given or served under this Agreement, to the address
or telex or telecopy number set forth below the name of such party on the
signature pages hereof, or at such other address or telex or telecopy number as
the parties hereto may hereafter specify to the others in writing. If for
purposes of receiving Invitations for Bid-Option Quotes and information
regarding Notices of Bid-Option Rate Borrowings, a Bank wishes to receive such
communications at an address or telex or telecopy number different from its
address or telex or telecopy number for other purposes under this Agreement, the
Administrative Agent shall communicate with such Bank for such purposes at such
different address, telex or telecopy number following the Administrative
Agent's receipt of a written notice from such Bank requesting that the
Administrative Agent do so. All mailed notices or other communications shall be
by registered or certified mail, postage prepaid, with return receipt
requested. All notices or other communications sent by means of telecopy,
telex or other wire transmission shall be made with request for assurance of
receipt in a manner typical with respect to communications of that type.
Written notices or other communications shall be deemed delivered upon receipt
if delivered by hand, 3 Business Days after mailing if mailed, or 1 Business
Day after deposit with an overnight courier service if delivered by overnight
courier. Notices or other communications provided by any of the other means
referred to above shall be deemed delivered upon receipt. Notwithstanding the
foregoing, all notices to the Administrative Agent shall be effective only when
actually received by the Administrative Agent, and all notices from the
Administrative Agent to any Bank regarding such Bank's obligation to fund Loans
or to make payment under Section 3.3(d) shall be effective only when actually
received by such Bank.
(b) Notices by the Borrowers to the Administrative Agent with
respect to terminations or reductions of the Revolving Credit Commitments
pursuant to Section 3.10, requests for Loans and Letter of Credit Issuances
pursuant to Section 3.3, 3.4, 3.5, 3.6 or 3.7 and notices of prepayment pursuant
to Section 4.2 shall be irrevocable and binding on the Borrowers.
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(c) Any notice to be given by the Administrative Agent or any Bank
to the Administrative Agent or any Bank hereunder, may be given by telephone,
and shall be promptly confirmed in writing upon the request of the recipient.
Any such notice so given by telephone shall be deemed effective upon receipt
thereof by the party to whom such notice is to be given.
11.3 No Waiver By Conduct; Remedies Cumulative. No course of dealing on
the part of the Administrative Agent or any Bank, nor any delay or failure on
the part of the Administrative Agent or any Bank in exercising any right, power
or privilege hereunder or under any Note shall operate as a waiver of such
right, power or privilege or otherwise prejudice the Agent's or such Bank's
rights and remedies hereunder; nor shall any single or partial exercise thereof
preclude any further exercise thereof or the exercise of any other right, power
or privilege. No right or remedy conferred upon or reserved to the
Administrative Agent or any Bank under this Agreement, or any Note, is intended
to be exclusive of any other right or remedy, and every right and remedy shall
be cumulative and in addition to every other right or remedy granted hereunder
or thereunder or now or hereafter existing under any applicable law. Every
right and remedy granted by this Agreement or by applicable law to the
Administrative Agent or any Bank may be exercised from time to time and as often
as may be deemed expedient by the Administrative Agent or any Bank and, unless
contrary to the express provisions of this Agreement, or the Notes, irrespective
of the occurrence or continuance of any Default.
11.4 Reliance on and Survival of Various Provisions. All terms,
covenants, agreements, including, without limitation, under Sections 5.3, 5.5
and 11.5, representations and warranties of the Borrowers made herein or in any
certificate, report, financial statement or other document furnished by or on
behalf of the Borrowers pursuant to this Agreement shall be deemed to be
material and to have been relied upon by the Banks, notwithstanding any
investigation heretofore or hereafter made by any Bank or on such Bank's behalf,
and shall survive the repayment in full of the Loans and the termination of the
Commitments.
11.5 Expenses and Indemnification.
(a) The Borrowers shall pay, or reimburse the Administrative
Agent, Syndication Agents, Arrangers or any Bank, as the case may be (each an
"Indemnified Person"), for (i) all reasonable out-of-pocket expenses of the
Administrative Agent, Syndication Agents and Arrangers, including reasonable
fees and disbursements of special counsel for the Administrative Agent,
Syndication Agents and Arrangers, in connection with the preparation of this
Agreement, any waiver or consent hereunder or any amendment hereof or any
Default, (ii) all reasonable costs and expenses of the Indemnified Person,
including reasonable fees and disbursements of counsel, in connection with any
action or proceeding relating to a court order, injunction or other process or
decree restraining or seeking to restrain the Administrative Agent from paying
any amount under, or otherwise relating in any way to, any Letter of Credit and
any and all costs and expenses which it may incur relative to any payment under
any Letter of Credit, provided, that the Borrowers shall not be liable under
this clause (ii) to the extent, but only to the extent, any such costs and
expenses of the Indemnified Person are caused by the Indemnified Person's breach
of this Agreement or gross negligence or willful misconduct, and (iii) if an
Event of Default occurs, all reasonable expenses incurred by the Indemnified
Person,
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including reasonable fees and disbursements of counsel (including in-house
counsel), in connection with such Event of Default and collection and other
enforcement proceedings resulting therefrom. The Borrowers shall indemnify each
Bank against any transfer taxes, documentary taxes, assessments or charges made
by any governmental authority by reason of the execution and delivery of this
Agreement or the Notes.
(b) The Borrowers shall indemnify each Indemnified Person, and its
respective officers, directors, employees and agents, and hold each Indemnified
Person, and its respective officers, directors, employees and agents, harmless
from and against any and all liabilities, losses, damages, costs and expenses of
any kind (including, without limitation, the reasonable fees and disbursements
of counsel for any Indemnified Person or any such Person in connection with any
investigative, administrative or judicial proceeding, whether or not such
Indemnified Person or any such Person, as the case may be, shall be designated a
party thereto) which may be incurred by any Indemnified Person or by any such
Person, substantially relating to or arising out of any actual or proposed use
of proceeds of Loans or Letters of Credit for the purpose of acquiring assets or
capital stock of any other Person; provided that no Indemnified Person or any
such Person shall have the right to be indemnified hereunder for its own gross
negligence or willful misconduct as determined by a court of competent
jurisdiction.
(c) The Borrowers hereby further indemnify and agree to hold the
Indemnified Persons, and their respective officers, directors, employees and
agents harmless from and against any and all claims, damages, losses,
liabilities, costs and expenses of any kind or nature whatsoever which the
Indemnified Persons or any such Person may incur or which may be claimed against
any of them by reason of or in connection with any Letter of Credit, and no
Indemnified Person or any of its respective officers, directors, employees or
agents shall be liable or responsible for: (i) the use which may be made of any
Letter of Credit or for any acts or omissions of any beneficiary in connection
therewith; (ii) the validity, sufficiency or genuineness of documents or of any
endorsements thereon, even if such documents should in fact prove to be in any
or all respects invalid, insufficient, fraudulent or forged; (iii) payment by
the Administrative Agent to the beneficiary under any Letter of Credit against
presentation of documents which do not comply with the terms of any Letter of
Credit, including failure of any documents to bear any reference or adequate
reference to such Letter of Credit; (iv) any error, omission, interruption or
delay in transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit; or (v) any other event or
circumstance whatsoever arising in connection with any Letter of Credit;
provided, however, that the Borrowers shall not be liable hereunder to the
Indemnified Persons and such other Persons and the Administrative Agent shall be
liable to the Borrowers to the extent, but only to the extent, of any direct, as
opposed to consequential or incidental, damages suffered by the Borrowers which
were caused by (A) the Administrative Agent's wrongful dishonor of any Letter of
Credit after the presentation to it by the beneficiary thereunder of a draft or
other demand for payment and other documentation strictly complying with the
terms and conditions of such Letter of Credit, or (B) the Administrative
Agent's payment under any Letter of Credit to the extent, but only to the
extent, that such payment constitutes gross negligence or willful misconduct of
the Administrative Agent. The inclusion of any event in clauses (i) - (vii) of
Section 3.3(f) shall not by itself preclude a finding that such event
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constitutes gross negligence or willful misconduct of the Administrative Agent.
It is understood that in making any payment under a Letter of Credit the
Administrative Agent will rely on documents presented to it under such Letter of
Credit as to any and all matters set forth therein without further investigation
and regardless of any notice or information to the contrary, and such reliance
and payment against documents presented under a Letter of Credit substantially
complying with the terms thereof shall not be deemed gross negligence or willful
misconduct of the Administrative Agent in connection with the payment.
11.6 Successors and Assigns.
(a) This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns, provided that
the Borrowers may not, without the prior written consent of all the Banks,
assign its rights or obligations hereunder or under the Notes, and the Banks
shall not be obligated to make any Loan hereunder to any Person other than the
Borrowers, and the Administrative Agent shall not be obligated to issue any
Letter of Credit for the account of any Person other than MascoTech or any
Consolidated Subsidiary of MascoTech.
(b) The Administrative Agent from time to time in its sole
discretion may appoint one of its affiliates as its agent for the purpose of
servicing and administering this Agreement and the transactions contemplated
hereby and enforcing or exercising any rights or remedies of the Administrative
Agent provided under this Agreement, the Notes or otherwise. In furtherance of
such agency, the Administrative Agent may from time to time direct that the
Borrowers provide notices, reports and other documents contemplated by this
Agreement (or duplicates thereof) to such agent. The Borrowers hereby consent
to the appointment of such agent and agrees to provide all such notices, reports
and other documents and to otherwise deal with such agent acting on behalf of
the Administrative Agent in the same manner as would be required if dealing with
the Administrative Agent itself.
(c) Any Bank may sell a participation interest to any financial
institution(s), and such financial institution(s) may further sell a
participation interest (undivided or divided) to any financial institution(s),
in its Commitment and the Loans and risk of the Letters of Credit, Swing Line
Loans and Alternate Currency Syndicated Loans and such Bank's or such
participating financial institution's, as the case may be, rights and benefits
under this Agreement and the Notes, and to the extent of that participation,
such participant or participants shall have, to the extent permitted by law, the
same rights and benefits against the Borrowers under Section 9.3 as it or they
would have had if such participant or participants were the Bank making the
Loans to the Borrowers hereunder, provided, however, that in purchasing such
participation interest(s) each such participant shall be deemed to have agreed
to share with the Banks the proceeds thereof as provided in Section 10.10 as
fully as if such participant were a Bank hereunder; and provided further,
however, that (i) the obligations under this Agreement of each Bank selling a
participation interest hereunder shall remain unmodified and fully effective and
enforceable against such Bank, (ii) such Bank shall remain solely responsible to
the other parties hereto for the performance of such obligations, (iii) such
Bank shall remain the holder of its Notes for all purposes of this Agreement,
(iv) the Borrowers, the Administrative Agent and the other Banks shall
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continue to deal solely and directly with such Bank in connection with such
Bank's rights and obligations under this Agreement, and (v) such Bank shall not
grant to its participant(s) any rights to consent or withhold consent to any
action taken by such Bank or the Administrative Agent under this Agreement other
than action requiring the consent of all of the Banks hereunder. Each Bank
shall give the Borrowers prior written notice of each sale by such Bank of a
participation interest under this Section 11.6(c). Each participant shall be
entitled to the benefits of Sections 5.3 and 5.5 with respect to its
participation interest as if it were a Bank; provided that no participant shall
be entitled to receive any greater amount pursuant to such Sections 5.3 and 5.5
than the Bank that originally sold such participation interest would have been
entitled to receive in respect of such participation interest had no such sale
taken place.
(d) Any Bank may, with the prior written consent of the Borrowers
and the Administrative Agent (which consent in each case will not unreasonably
be withheld or delayed, and which consent in the case of MascoTech may not be
withheld if there is any Event of Default under Section 9.1(a), (f) or (g))
assign on a pro rata or non-rata basis to one or more banks or other financial
institutions all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment, the
Syndicated Loans owing to it, its share of the risk of Letters of Credit, Swing
Line Loans and Alternate Currency Syndicated Loans, and the Syndicated Notes
held by it); provided, however, that (i) the amount of the Commitment of any
assignee Bank as of any date, after giving effect to each assignment to such
assignee that is effective on such date, shall in no event be less than
$10,000,000, (ii) except in the case of an assignment of all of a Bank's rights
and obligations under this Agreement, (A) the amount of the Commitment of the
assigning Bank being assigned pursuant to each such assignment (determined as of
the date of the Assignment and Acceptance with respect to each such assignment)
shall in no event be less than $5,000,000 or an integral multiple of $5,000,000,
or such lesser amount as the Borrowers and the Administrative Agent may consent
to and (B) after giving effect to each such assignment, the amount of the
Commitment of the assigning Bank shall in no event be less than $10,000,000,
(iii) the parties to each such assignment shall execute and deliver to the
Administrative Agent, for its acceptance and recording in the Register (as
hereinafter defined), an Assignment and Acceptance in the form of Exhibit K
hereto (an "Assignment and Acceptance"), together with the Notes subject to such
assignment and a processing and recordation fee of $3,500, (iv) any Bank may
without the consent of the Borrowers or the Administrative Agent assign to any
affiliate of such Bank all of its rights and obligations under this Agreement
and (v) any Bank may without the consent of the Borrowers or the Administrative
Agent assign any or all of its rights and obligations under this Agreement to
another Bank, as such term is defined in this Agreement. Upon such execution,
delivery, acceptance and recording, from and after the effective date specified
in such Assignment and Acceptance, (i) the assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance, have the rights and
obligations of a Bank hereunder and (ii) the Bank assignor thereunder shall, to
the extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all of the remaining portion of an assigning
Bank's rights and obligations under this Agreement, such Bank shall cease to be
a party hereto).
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(e) By executing and delivering an Assignment and Acceptance, (i)
the Bank assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (A) other than as
provided in such Assignment and Acceptance, such assigning Bank makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or any instrument or other document furnished pursuant hereto or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of this Agreement or any instrument or other document furnished pursuant hereto;
and (B) such assigning Bank makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrowers or the
performance or observance by the Borrowers of any of their obligations under
this Agreement or any instrument or other document furnished pursuant hereto,
and (ii) the assignee thereunder confirms to the assignor thereunder and the
other parties hereto as follows: (A) such assignee confirms that it has received
a copy of this Agreement, together with copies of the financial statements
referred to in Section 6.6 and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance; (B) such assignee will, independently and
without reliance upon the Administrative Agent, such assigning Bank or any other
Bank and based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not taking
action under this Agreement; (C) such assignee appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement as are delegated to the
Administrative Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (D) such assignee agrees
that it will perform in accordance with their terms all of the obligations that
by the terms of this Agreement are required to be performed by it as a Bank and
agrees that shall be bound by all the terms and provisions of this Agreement.
(f) The Administrative Agent shall maintain a copy of each
Assignment and Acceptance delivered to and accepted by it and a register for the
recordation of the names and addresses of the Banks and the Commitment of, and
principal amount of the Loans owing to, each Bank from time to time (the
"Register"). The entries in the Register shall be conclusive and binding for
all purposes, absent demonstrable error, and the Borrowers, the Administrative
Agent and the Banks may treat each Person whose name is recorded in the Register
as a Bank hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrowers or any Bank at any reasonable time and
from time to time upon reasonable prior notice.
(g) Upon its receipt of an Assignment and Acceptance executed by
an assigning Bank and an assignee and, unless such assignment is of only a
portion of such assigning Bank's rights and obligations hereunder, the Notes
subject to such assignment, the Administrative Agent shall, if such Assignment
and Acceptance has been completed and the Administrative Agent and the Borrowers
have given their written consent under Section 11.6(d) (if required), (i) accept
such Assignment and Acceptance, (ii) record the information contained therein in
the Register and (iii) give prompt notice thereof to the Borrowers. Within five
Business Days after its receipt of such notice, the Borrowers, at their own
expense, shall execute and deliver to the Administrative Agent (in exchange for
the surrendered Notes unless such assignment is of only a portion of such
assigning Bank's rights and
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obligations hereunder) new Revolving Note and Term Note to the order of such
assignee and a new Bid-Option Note to the order of such assignee. Such new
Notes shall be dated the effective date of such Assignment and Acceptance and
shall otherwise be in substantially the form of Exhibits A-1, A-2 and B-1
hereto, as applicable.
(h) If any Reference Bank makes an assignment of all of its
Commitment and Syndicated Loans to an unaffiliated institution pursuant to
subsection (d) above, or if the Fixed Rate Loans of any Reference Bank are
repaid pursuant to Section 5.2 or 5.3, the Administrative Agent shall, with the
consent of the Required Banks and the Borrowers, appoint another Bank to act as
Reference Bank hereunder. No assignee of any Bank shall be entitled to receive
any greater payment under Section 5.3 than such Bank would have been entitled to
receive with respect to the rights assigned or otherwise transferred, unless
such assignment is made by reason of the provisions of Section 5.2 or 5.3
requiring such Bank to designate a different lending office under certain
circumstances or at a time when the circumstances giving rise to such greater
payment did not exist.
(i) Each Bank may assign to one or more banks or other financial
institutions any Bid-Option Note held by it. Any such Bank assigning a Bid-
Option Note shall for all purposes of this Agreement be deemed to be the holder
of such Note, and no assignee under this Section 11.6(i) shall as a result of
such assignment become a "Bank" under this Agreement.
(j) Notwithstanding any other provision set forth in this
Agreement, any Bank may at any time create a security interest in, or assign,
all or any portion of its rights under this Agreement (including, without
limitation, the Loans owing to it and the Note or Notes held by it) in favor of
any Federal Reserve Bank in accordance with Regulation A of the Board of
Governors of the Federal Reserve System; provided that such creation of a
security interest or assignment shall not release such Bank from its obligations
under this Agreement.
11.7 Confidentiality. Each Bank agrees that all documentation and other
information made available by the Borrowers to such Bank under the terms of this
Agreement shall (except (a) to the extent required by legal or governmental
process or otherwise by law, or (b) if such documentation and other information
is publicly available or hereafter becomes publicly available other than by
action of such Bank, or was theretofore known to such Bank independent of any
disclosure thereto by the Borrowers, or (c) to the extent of necessary
disclosure to such Bank's accountants, attorneys or regulators, or (d) in any
litigation or similar proceedings related to this Agreement, the Notes or any
Letter of Credit) be held in the strictest confidence by such Bank and disclosed
only to those officers, employees and agents of such Bank or of any Affiliate of
such Bank involved in the administration of the credit from time to time
outstanding from such Bank to the Borrowers or otherwise involved in servicing,
maintaining or further developing the relationship between such Bank and the
Borrowers, each of which officers, employees and agents shall, except as
permitted under this Section 11.7 generally with respect to such Bank, hold such
documentation and other information in the strictest confidence and to be used
only in connection with this Agreement; provided that (i) such Bank may disclose
such documentation and other information, and all other information that has
been delivered to such Bank by or on behalf of the Borrowers prior to the
Closing Date (including, without limitation,
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the Confidential Information Memorandum dated January, 1998 concerning
MascoTech) in connection with such Bank's credit evaluation of MascoTech and its
Subsidiaries, to any other financial institution to which such Bank sells or
proposes to sell a participation or other interest in any of its Loans hereunder
(or under any other credit agreement with the Borrowers), if such other
financial institution, prior to such disclosure, agrees for the benefit of the
Borrowers to comply with the provisions of this Section 11.7 (including the
provisions of this Section 11.7 allowing further disclosure to other financial
institutions to whom a sale of a participation or other interest is proposed),
or to any Federal Reserve Bank and (ii) such Bank may disclose the provisions of
this Agreement and the Notes and the amounts, maturities and interest rates of
its Loans and the amounts of Letters of Credit (and similar information relating
to any other credit agreement with the Borrowers) to any purchaser or potential
purchaser of any interest of such Bank in any Loan to the Borrowers.
11.8 Counterparts; Effectiveness of Telecopied Signatures. This
Agreement may be executed in any number of counterparts, all of which taken
together shall constitute one and the same instrument and any of the parties
hereto may execute this Agreement by signing any such counterpart. Delivery of
a telecopied signature on this Agreement shall be as effective against the
signer as delivery of its original signature.
11.9 Table of Contents and Headings. The table of contents and the
headings of the various subdivisions hereof are for the convenience of reference
only and shall in no way modify any of the terms or provisions hereof.
11.10 Construction of Certain Provisions. If any provision of this
Agreement refers to any action to be taken by any Person, or which such Person
is prohibited from taking, such provision shall be applicable whether such
action is taken directly or indirectly by such Person, whether or not expressly
specified in such provision.
11.11 Independence of Covenants. All covenants hereunder shall be given
independent effect so that if a particular action or condition is not permitted
by any such covenant, the fact that it would be permitted by an exception to, or
would be otherwise within the limitations of, another covenant shall not avoid
the occurrence of a Default or any event or condition which with notice or lapse
of time, or both, could become such a Default if such action is taken or such
condition exists.
11.12 Interest Rate Limitation. Notwithstanding any provisions of this
Agreement or the Notes, in no event shall the amount of interest paid or agreed
to be paid by the Borrowers exceed an amount computed at the highest rate of
interest permissible under applicable law. If, from any circumstances
whatsoever, fulfillment of any provision of this Agreement or the Notes at the
time performance of such provision shall be due, shall involve exceeding the
interest rate limitation validly prescribed by law which a court of competent
jurisdiction may deem applicable hereto, then, ipso facto, the obligations to be
fulfilled shall be reduced to an amount computed at the highest rate of interest
permissible under applicable law, and if for any reason whatsoever any Bank
shall ever receive as interest an amount which would be deemed unlawful under
such applicable law such interest shall be automatically applied to the payment
of principal of the Loans outstanding hereunder (whether or not
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then due and payable) and not to the payment of interest, or shall be refunded
to the Borrowers if such principal and all other obligations of the Borrowers to
the Banks have been paid in full.
11.13 Substitution of Banks.
(a) After payment by the Borrowers to any Bank of any amount due
pursuant to Section 5.3 or 5.5 that the Borrowers reasonably deem material, and
upon five Business Days' written notice in the form of Exhibit L delivered to
the Administrative Agent and the applicable Bank, the Borrowers may replace any
one or more of the Banks. Upon the date of its effectiveness, such notice shall
terminate the Commitment of such Bank entirely, provided that the Borrowers
shall prepay each Loan of such Bank (if any) in full on the effective date of
such termination, together with accrued interest thereon, all amounts due
pursuant to Sections 5.3 and 5.5, all accrued facility fees with respect to such
Bank and all other amounts owing to such Bank hereunder to such effective date.
(b) If the Borrowers shall terminate the Commitment of any Bank
pursuant to the provisions of subsection (a) of this Section 11.13, the
Borrowers shall designate another bank or other banks (which may be one of the
Banks) (in either case, an "Additional Bank") to be parties to this Agreement,
provided, that (i) without the consent of the Administrative Agent, the total
number of Additional Banks (other than those that were already Banks) may not
exceed the total number of Banks whose Commitments are terminated pursuant to
Section 11.13(a) plus six, (ii) the amount of the Commitment of any Additional
Bank may not be less than $10,000,000, (iii) the amount of the Commitment(s) of
the Additional Bank(s) (or, if any such Additional Bank already is a Bank, the
added portion of such Bank's Commitment) shall in the aggregate equal the amount
of the Commitment so terminated and (iv) the Borrowers or the Additional Bank,
and not the Bank being terminated pursuant to subsection (a) of this Section
11.13, shall pay the processing and recordation fee required under Section
11.6(d)(iv). Any Additional Bank shall become a party to this Agreement and be
considered a Bank hereunder for all purposes if (i) it shall agree in writing to
be bound by all of the terms and provisions of this Agreement, such agreement to
specify the amount of the Commitment of such Additional Bank and to be
otherwise in form and substance satisfactory to the Administrative Agent, (ii)
it shall make Syndicated Loans to the Borrowers in principal amounts which bear
the same ratio to the amounts of the Syndicated Loans of other Banks (including
other Additional Banks) then outstanding or to be concurrently outstanding as
the amount of the Commitment of such Additional Bank bears to the then aggregate
amount of the Commitments of such other Banks (including other Additional
Banks), and (iii) a copy of such agreement and of evidence satisfactory to the
Administrative Agent of the making of such Loans shall be furnished to the
Administrative Agent.
11.14 Governing Law. This Agreement is a contract made under, and shall
be governed by and construed in accordance with, the law of the State of New
York applicable to contracts made and to be performed entirely within such State
and without giving effect to choice of law principles of such State.
11.15 Integration and Severability. This Agreement and the Notes embody
the entire agreement and understanding among the Borrowers, the Administrative
Agent, and the Banks, and
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<PAGE>
supersede all prior agreements and understandings, relating to the subject
matter hereof and thereof. In case any one or more of the obligations of the
Borrowers under this Agreement or any Note shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability of
the remaining obligations of the Borrowers shall not in any way be affected or
impaired thereby, and such invalidity, illegality or unenforceability in one
jurisdiction shall not affect the validity, legality or enforceability of the
obligations of the Borrowers under this Agreement or any Note in any other
jurisdiction.
11.16 WAIVER OF JURY TRIAL. THE BANKS, THE ADMINISTRATIVE AGENT, THE
SYNDICATION AGENTS AND THE BORROWERS, AFTER CONSULTING OR HAVING HAD THE
OPPORTUNITY TO CONSULT WITH COUNSEL, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE ANY RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION BASED
UPON OR ARISING OUT OF THIS AGREEMENT OR ANY RELATED INSTRUMENT OR AGREEMENT OR
ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY COURSE OF CONDUCT,
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY OF THEM RELATED
HERETO OR THERETO. NONE OF THE BANKS, THE ADMINISTRATIVE AGENT, THE SYNDICATION
AGENTS OR THE BORROWERS SHALL, TO THE EXTENT PERMITTED BY APPLICABLE LAW, SEEK
TO CONSOLIDATE, BY COUNTERCLAIM OR OTHERWISE, ANY SUCH ACTION IN WHICH A JURY
TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR
HAS NOT BEEN WAIVED.
11.17 Alternate Currency Addenda Binding on Each Bank; Provisions
Regarding Alternate Currency Agents. Each of the Banks agrees that it shall be
bound by the provisions of each Alternate Currency Addendum entered into in
connection herewith, in particular as it relates to the provisions applicable to
the Alternate Currency Agent appointed thereunder.
11.18 Unification of Certain Currencies. If the Euro (or some other
similar unit of account) becomes a currency in its own right in connection with
European monetary union contemplated by the Maastricht Treaty, then each of the
Borrowers, the Banks and the Administrative Agent agrees to negotiate in good
faith an amendment to this Agreement satisfactory in form and substance to the
Borrowers, the Banks and the Administrative Agent to account therefor. The
introduction of the Euro shall not have the effect of altering any term of any
Note or other instrument or discharging or excusing performance by any party
under any such Note or instrument or giving any party the right to terminate any
such Note or instrument.
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<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers of the
Closing Date, notwithstanding the date and year first above written.
MASCOTECH, INC.,
as Borrower
By:/s/Timothy Wadhams
Timothy Wadhams
Its: Vice President - Controller
and Treasurer
21001 Van Born Road
Taylor, Michigan 48180
Attention: Jim Tompkins
Telephone: (313) 792-6403
Fax: (313) 792-6118
MASCOTECH ACQUISITION, INC.
as Borrower
By:/s/Timothy Wadhams
Timothy Wadhams
Its: Vice President
and Treasurer
21001 Van Born Road
Taylor, Michigan 48180
Attention: Jim Tompkins
Telephone: (313) 792-6403
Fax: (313) 792-6118
<PAGE>
THE FIRST NATIONAL BANK OF CHICAGO,
as Administrative Agent and Bank
By:/s/Richard H. Huttonlocher
Richard H. Huttonlocher
Its: First Vice President
c/o NBD Bank
611 Woodward Avenue
Detroit, Michigan 48226
Attention: Richard H. Huttonlocher
Telephone: (312) 225-2259
Fax: (313) 225-2290
Total Commitment: $300,000,000
Term Loan Commitment: $115,384,615.40
Revolving Credit Commitment: $184,615,384.60
<PAGE>
BANK OF AMERICA NT&SA,
as Syndication Agent and Bank
By:/s/Lewis B. Fisher
Lewis B. Fisher
Its: Managing Director
231 South LaSalle Street, 9th Floor
Chicago, Illinois 60697
Attention: Lewis B. Fisher
Telephone: (312) 828-3137
Fax: (312) 987-7384
Total Commitment: $225,000,000
Term Loan Commitment: $86,538,461.54
Revolving Credit Commitment: $138,461,538.46
<PAGE>
NATIONSBANK, N.A.,
as Syndication Agent and Bank
By:/s/Wallace Harris, Jr.
Its: V.P.
233 South Wacker Drive
Chicago, Illinois 60606
Attention: Wallace Harris, Vice President
Telephone: 312-234-5626
Fax: 312-234-5601
Total Commitment: $225,000,000
Term Loan Commitment: $86,538,461.54
Revolving Credit Commitment: $138,461,538.46
<PAGE>
COMERICA BANK,
as Bank
By:/s/A.J. Anderson
A.J. Anderson
Its: First Vice President
500 Woodward Avenue
Detroit, Michigan 48226
Attention: Nicholas G. Mester
Telephone: (313) 222-9168
Fax: (312) 222-3776
Total Commitment; $100,000,000
Term Loan Commitment: $38,461,538.46
Revolving Credit Commitment: $61,538,461.54
<PAGE>
CIBC INC.,
as Bank
By:/s/Stephanie E. DeVane
Stephanie E. DeVane
Its: Executive Director, CIBC
Oppenheimer Corp., as Agent
425 Lexington Avenue
New York, NY 10017
Attention: Stephanie E. DeVane
Telephone: (212) 856-3727
Fax: (212) 856-3991
Total Commitment: $75,000,000
Term Loan Commitment: $28,846,153.85
Revolving Credit Commitment: $46,153,846.15
<PAGE>
FIRST UNION NATIONAL BANK,
as Bank
By:/s/Glenn F. Edwards
Its: Vice President
One First Union Center, 5th Floor
Charlotte, North Carolina 28288
Attention: Glenn F. Edwards
Telephone: 704-383-3810
Fax: 704-374-2802
Total Commitment; $75,000,000
Term Loan Commitment: $28,846,153.85
Revolving Credit Commitment: $46,153,846.15
<PAGE>
KEYBANK NATIONAL ASSOCIATION,
as Bank
By:/s/Thomas A. Crandell
Thomas A. Crandell
Its: Vice President
127 Public Square, 6th Floor
Cleveland, Ohio 44114
Attention: Thomas A. Crandell
Telephone: (216) 689-3589
Fax: (216) 689-4981
Total Commitment: $75,000,000
Term Loan Commitment: $28,846,153.85
Revolving Credit Commitment: $46,153,846.15
<PAGE>
PNC BANK, NATIONAL ASSOCIATION
as Bank
By:/s/Peter F. Stack
Peter F. Stack
Its: Assistant Vice President
500 West Madison Street, Suite 3140
Chicago, Illinois 60606
Attention: Peter Stack
Telephone: (312) 906-9426
Fax: (312) 906-3420
Total Commitment: $75,000,000
Term Loan Commitment: $28,846,153.85
Revolving Credit Commitment: $46,153,846.15
<PAGE>
THE BANK OF NEW YORK,
as Bank
By:/s/Edward J. Dougherty III
Edward J. Dougherty III
Its: Vice President
U.S. Commercial Banking
One Wall Street, 22nd Floor
New York, New York 10286
Attention: Edward J. Dougherty III
Telephone: (212) 635-1066
Fax: (212) 635-6434
Total Commitment: $75,000,000
Term Loan Commitment: $28,846,153.85
Revolving Credit Commitment: $46,153,846.15
<PAGE>
THE BANK OF NOVA SCOTIA,
as Bank
By:/s/F.C.H. Ashby
F.C.H. Ashby
Its: Senior Manager Loan Operations
Atlanta Agency
Suite 2700
600 Peachtree Street NE
Atlanta, Georgia 30308
Attention: Shannon Dancila
Telephone: (404) 877-1561
Fax: (404) 888-8998
Total Commitment: $75,000,000
Term Loan Commitment: $28,846,153.85
Revolving Credit Commitment: $46,153,846.15
<PAGE>
<TABLE>
SCHEDULE 1
TO
CREDIT AGREEMENT
Pricing Grid
<S> <C> <C> <C>
Applicable Margin over Applicable Margin for Applicable
Leverage Ratio Eurodollar Rate Letters of Credit Facility Fee
Rate
Greater than or equal
to 4.50 to 1.0 1.000% 1.000% 0.250%
Less than 4.50 to 1.0
and greater than or
equal to 4.25 to 1.0 0.875% 0.875% 0.250%
Less than 4.25 to 1.0
and greater than or
equal to 3.75 to 1.0 0.775% 0.775% 0.225%
Less than 3.75 to 1.0
and greater than or
equal to 3.25 to 1.0 0.675% 0.675% 0.200%
Less than 3.25 to 1.0
and greater than or
equal to 2.5 to 1.0 0.575% 0.575% 0.175%
Less than 2.5 to 1.0
and greater than or
equal to 2.0 to 1.0 0.350% 0.350% 0.150%
Less than 2.0 to 1.0 0.225% 0.225% 0.150%
</TABLE>
<PAGE>
SCHEDULE 2
TO
CREDIT AGREEMENT
Industrial Revenue Bonds
1. City of Fort Wayne, Indiana Industrial Development Revenue Bonds (ND Tech
Project)
2. Trust Indenture between Clinton County Redevelopment Authority and Fort
Wayne National Bank, Trustee, dated February 1, 1997
3. Guaranty Agreement dated as of February 1, 1997, between TriMas
Corporation and Fort Wayne National Bank, Trustee
