<PAGE> 1
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
Date of Report (Date of earliest event reported) May 4, 1999
--------------
LEAR CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 1-11311 13-3386776
- -------------------------------- ---------------------- ---------------------
(State or other jurisdiction of (Commission (I.R.S. Employer
incorporation or organization) File Number) Identification No.)
21557 Telegraph Road
Southfield, Michigan 48086-5008
- -------------------------------------------------- ---------------------
(Address of principal executive offices) (zip code)
(248) 447-1500
---------------------------------------------------------
(Telephone number, including
area code, of agent for service)
No Change
--------------------------------------------------------
(Former name or former address,
if changes since last report)
<PAGE> 2
ITEM 2. ACQUISITION OF ASSETS
On May 4, 1999, Lear Corporation acquired UT Automotive, Inc., a
wholly-owned operating segment of United Technologies Corporation. UT Automotive
is a supplier of electrical, electronic, motor and interior products and systems
to the global automotive industry. Headquartered in Dearborn, Michigan, UT
Automotive has annual sales of approximately $3 billion, 44,000 employees and 90
facilities located in 18 countries.
The purchase price for UT Automotive was approximately $2.3 billion
(subject to post-closing adjustments) and was based upon estimates of future
earnings and evaluations of the net worth of the assets acquired. Funds for the
UT Automotive acquisition were provided by borrowings under our primary credit
facilities.
In connection with the UT Automotive acquisition, we amended and
restated our prior senior credit facility and entered into new credit
facilities. Our primary credit facilities now consist of an amended and
restated $2.1 billion revolving credit facility which matures on September 30,
2001, a new $500 million revolving credit facility which matures on May 4, 2004,
a new $500 million term loan having scheduled amortization beginning in October
2000 and a final maturity of May 4, 2004 and a new $1.4 billion interim loan
maturing on May 3, 2000.
2
<PAGE> 3
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
A. Historical Financial Statements.
1) Three Year Audited Financial Statements
UT AUTOMOTIVE, INC.
(WHOLLY-OWNED BY UNITED TECHNOLOGIES CORPORATION)
COMBINED FINANCIAL STATEMENTS
DECEMBER 31, 1998, 1997 AND 1996
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Shareowners of
United Technologies Corporation
In our opinion, the accompanying combined balance sheets and the related
combined statements of operations and statements of changes in UTC investment
and of cash flows present fairly, in all material respects, the financial
position of UT Automotive, Inc. and its automotive affiliates described in Note
1 (the Company) at December 31, 1998 and 1997, and the results of their
operations and their cash flows for each of the three years in the period ended
December 31, 1998, in conformity with generally accepted accounting principles.
These financial statements are the responsibility of the Company's management;
our responsibility is to express an opinion on these financial statements based
on our audits. We conducted our audits of these statements in accordance with
generally accepted auditing standards which require that we plan and perform the
audit to obtain reasonable assurance about whether the financial statements are
free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements,
assessing the accounting principles used and significant estimates made by
management, and evaluating the overall financial statement presentation. We
believe that our audits provide a reasonable basis for the opinion expressed
above.
PricewaterhouseCoopers LLP
Bloomfield Hills, Michigan
March 31, 1999
<PAGE> 4
UT AUTOMOTIVE, INC. 2
(WHOLLY-OWNED BY UNITED TECHNOLOGIES CORPORATION)
COMBINED BALANCE SHEETS
(DOLLAR AMOUNTS IN THOUSANDS)
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
DECEMBER 31,
1998 1997
<S> <C> <C>
ASSETS
Cash and cash equivalents $ 43,396 $ 26,815
Accounts receivable (net of allowances of $3,880 and $1,793
at December 31, 1998 and 1997, respectively) 575,192 526,460
Inventories 170,672 177,113
Prepaid expenses 12,721 7,409
Deferred income tax benefits 57,354 62,635
---------- ----------
Total current assets 859,335 800,432
Investments and receivables due after one year 42,111 29,427
Fixed assets, net 709,706 635,922
Goodwill (net of accumulated amortization of $115,529 and
$102,283 at December 31, 1998 and 1997, respectively) 333,112 343,474
Deferred income tax benefits 1,816 7,732
Other assets 41,333 51,698
---------- ----------
Total assets $1,987,413 $1,868,685
========== ==========
LIABILITIES AND UTC INVESTMENT
Short-term borrowings and long-term debt currently due $ 9,445 $ 13,261
Accounts payable 376,972 300,101
Accrued liabilities 181,775 188,962
Income taxes currently payable 11,671 11,728
---------- ----------
Total current liabilities 579,863 514,052
Deferred income taxes 38,394 39,442
Long-term debt 5,212 6,370
Other long-term liabilities 96,509 125,346
Commitments and contingent liabilities (Note 19)
Minority interests in subsidiary companies 2,459 4,279
---------- ----------
Total liabilities 722,437 689,489
UTC investment 1,264,976 1,179,196
---------- ----------
Total liabilities and UTC investment $1,987,413 $1,868,685
========== ==========
</TABLE>
See accompanying notes to combined financial statements.
<PAGE> 5
UT AUTOMOTIVE, INC. 3
(WHOLLY-OWNED BY UNITED TECHNOLOGIES CORPORATION)
COMBINED STATEMENTS OF OPERATIONS
(DOLLAR AMOUNTS IN THOUSANDS)
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
FOR THE YEARS ENDED
DECEMBER 31,
------------------------------------------------
1998 1997 1996
<S> <C> <C> <C>
Net sales $ 2,900,337 $ 2,927,305 $ 3,085,580
Cost of goods sold 2,378,402 2,445,294 2,673,676
----------- ----------- -----------
Gross profit 521,935 482,011 411,904
Engineering, research and development 147,427 118,255 108,063
Selling, general and administrative 210,622 209,074 210,957
Allocated UTC costs 4,612 4,760 4,069
----------- ----------- -----------
159,274 149,922 88,815
Other income (expense)
Interest expense (22,238) (9,921) (8,476)
Other income, net 1,494 10,680 96,157
----------- ----------- -----------
Income before income taxes and minority interests 138,530 150,681 176,496
Income taxes 57,533 71,046 64,149
----------- ----------- -----------
Income before minority interests 80,997 79,635 112,347
Less - Minority interests in subsidiaries' earnings 855 253 1,192
----------- ----------- -----------
Net income $ 80,142 $ 79,382 $ 111,155
=========== =========== ===========
</TABLE>
See accompanying notes to combined financial statements.
<PAGE> 6
UT AUTOMOTIVE, INC. 4
(WHOLLY-OWNED BY UNITED TECHNOLOGIES CORPORATION)
COMBINED STATEMENTS OF CHANGES IN UTC INVESTMENT
(DOLLAR AMOUNTS IN THOUSANDS)
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
ACCUMULATED NON-
OTHER SHAREOWNER
NON-SHAREOWNER CHANGES IN
UTC CHANGES IN EQUITY FOR
INVESTMENT EQUITY TOTAL THE PERIOD
<S> <C> <C> <C> <C>
December 31, 1995 $ 1,136,571 $ 13,708 $ 1,150,279
Net income 111,155 111,155 $ 111,155
Foreign currency translation adjustment (2,576) (2,576) (2,576)
UTC investment activity (177,831) (177,831)
----------- ----------- ----------- -----------
December 31, 1996 1,069,895 11,132 1,081,027 $ 108,579
===========
Net income 79,382 79,382 $ 79,382
Foreign currency translation adjustment (32,977) (32,977) (32,977)
UTC investment activity 51,764 51,764
----------- ----------- ----------- -----------
December 31, 1997 1,201,041 (21,845) 1,179,196 $ 46,405
===========
Net income 80,142 80,142 $ 80,142
Foreign currency translation adjustment 10,216 10,216 10,216
UTC investment activity (4,578) (4,578)
----------- ----------- ----------- -----------
December 31, 1998 $ 1,276,605 $ (11,629) $ 1,264,976 $ 90,358
=========== =========== =========== ===========
</TABLE>
See accompanying notes to combined financial statements.
<PAGE> 7
UT AUTOMOTIVE, INC. 5
(WHOLLY-OWNED BY UNITED TECHNOLOGIES CORPORATION)
COMBINED STATEMENTS OF CASH FLOWS
(DOLLAR AMOUNTS IN THOUSANDS)
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
FOR THE YEARS ENDED
DECEMBER 31,
----------------------------------------------
1998 1997 1996
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net income $ 80,142 $ 79,382 $ 111,155
Adjustments to reconcile net income to net cash
flows from operating activities
Gain on disposition of business unit (78,000)
Depreciation 111,285 114,499 115,082
Goodwill amortization 13,005 12,820 12,045
(Gain) loss on fixed asset sales 4,861 227 (156)
Equity in earnings of investees (3,986) (1,439) (2,553)
Minority interests in subsidiaries' earnings 855 253 1,192
Deferred income taxes 9,552 (6,192) (17,497)
Change in operating assets and liabilities
(net of acquisitions and dispositions)
Accounts receivable (37,303) (32,567) (23,169)
Inventories 11,030 10,960 (1,688)
Prepaid expenses (5,088) 2,842 (2,063)
Accounts payable 69,433 (3,227) 20,145
Accrued liabilities (10,628) (43,661) 45,217
Other (net noncurrent) (14,532) (5,656) 15,724
--------- --------- ---------
NET CASH FLOWS FROM OPERATING ACTIVITIES 228,626 128,241 195,434
--------- --------- ---------
CASH FLOWS FROM INVESTING ACTIVITIES
Proceeds from disposition of business unit 139,820
Purchase of fixed assets (192,902) (161,026) (137,292)
Sale of fixed assets 11,697 41,862 5,324
Investments and other, net (15,820) (49,463) (23,593)
--------- --------- ---------
NET CASH FLOWS USED FOR INVESTING ACTIVITIES (197,025) (168,627) (15,741)
--------- --------- ---------
CASH FLOWS FROM FINANCING ACTIVITIES
Long-term debt, net (2,357) (18,499) (5,980)
Short-term borrowings, net (3,405) (1,114) 5,465
UTC investment activity (4,578) 51,764 (177,831)
Other (4,846) (5,893) 284
--------- --------- ---------
NET CASH FLOWS (USED FOR) PROVIDED BY
FINANCING ACTIVITIES (15,186) 26,258 (178,062)
--------- --------- ---------
Effect of foreign exchange rate changes on cash and
cash equivalents 166 (3,346) (300)
--------- --------- ---------
NET INCREASE (DECREASE) IN CASH
AND CASH EQUIVALENTS 16,581 (17,474) 1,331
Cash and cash equivalents- beginning of year 26,815 44,289 42,958
--------- --------- ---------
Cash and cash equivalents- end of year $ 43,396 $ 26,815 $ 44,289
========= ========= =========
</TABLE>
See accompanying notes to combined financial statements.
<PAGE> 8
UT AUTOMOTIVE, INC. 6
(WHOLLY-OWNED BY UNITED TECHNOLOGIES CORPORATION)
NOTES TO COMBINED FINANCIAL STATEMENTS
(DOLLAR AMOUNTS IN THOUSANDS)
- --------------------------------------------------------------------------------
1. BASIS OF PRESENTATION
UT Automotive, Inc. is a wholly-owned operating segment of United
Technologies Corporation ("UTC"). The accompanying combined financial
statements were prepared to show the historical operating results of the
entities comprising UTC's Automotive Business, which includes UT
Automotive, Inc. and certain affiliated entities which are subsidiaries
of other UTC operating units (collectively, "UT Automotive, Inc.", "UTA"
or the "Company"). Throughout the period covered by the combined
financial statements, the Company was treated as an operating segment of
UTC. Historically, separate financial statements were not prepared for
UTA.
The combined financial statements were prepared using UTC's historical
basis in the assets and liabilities of UTA. Changes in indebtedness
between the Company and UTC are reflected as part of the UTC investment
in the accompanying combined balance sheets.
The combined financial statements include all revenues, costs, assets and
liabilities directly attributable to UTA. Allocation of costs for
facilities, functions and certain services performed by UTC organizations
for UTA, including environmental and other risk management, internal
audit, transportation services, administration of benefit and insurance
programs and certain tax, legal and treasury functions have been made on
the basis described in Note 4. All of the allocations and estimates in
the combined financial statements are based on assumptions that UTA and
UTC management believe are reasonable in the circumstances. The Company's
financial information included herein is not necessarily indicative of
the financial position, results of operations and cash flows of the
Company in the future or indicative of the results that would have been
reported if the Company had operated as an unaffiliated enterprise.
2. SUMMARY OF ACCOUNTING PRINCIPLES
BUSINESS ACTIVITIES
The Company's operating activities include the design, development,
manufacture and sale of integrated automotive components and systems,
primarily for automotive original equipment manufacturers (OEMs).
PRINCIPLES OF COMBINATION
The combined financial statements include the accounts and activities of
UTA and its majority controlled and owned subsidiaries and affiliates
which comprise the Automotive Business of UTC. Majority-owned
subsidiaries in which the minority shareowners have rights that overcome
the presumption for consolidation are accounted for on the equity method.
All material intercompany transactions between operations included in the
combined financial statements have been eliminated in combination. Sales
from UTA to other non-Automotive UTC affiliates are not significant.
Transactions between UTA and UTC (and other UTC business units) are
herein referred to as "related party" or "affiliated" transactions.
Beginning January 1, 1997, international operating subsidiaries, which
had generally been included in the financial statements based on fiscal
years ending November 30, are included in the combined financial
statements based on fiscal years ending December 31. December 1996
results from these international subsidiaries, which were not
significant, were included in UTC investment.
<PAGE> 9
UT AUTOMOTIVE, INC. 7
(WHOLLY-OWNED BY UNITED TECHNOLOGIES CORPORATION)
NOTES TO COMBINED FINANCIAL STATEMENTS
(DOLLAR AMOUNTS IN THOUSANDS)
- --------------------------------------------------------------------------------
2. SUMMARY OF ACCOUNTING PRINCIPLES (CONTINUED)
The preparation of combined financial statements in conformity with
generally accepted accounting principles requires management to make
estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the
date of the financial statements and the reported amounts of revenues and
expenses during the reporting periods. Actual results could differ from
those estimates.
REVENUE RECOGNITION
Accounts receivable represent receivables for shipments made to customers
or for other amounts due in connection with customer orders (including
tooling and freight). Revenue is recognized upon shipment of the product
to the customer.
TOOLING
Tooling receivables represent costs incurred on tooling projects which
are reimbursable from customers.
INVENTORIES
Inventories are stated at the lower of cost or estimated realizable
value. Approximately 18% and 20% of total inventories were carried on the
last-in, first-out (LIFO) cost method at December 31, 1998 and 1997,
respectively. The remaining inventories are carried on the first-in,
first-out (FIFO) method. Included in cost are direct material, direct
labor, and allocations of certain manufacturing overhead costs.
FIXED ASSETS
Fixed assets are stated at cost. Cost includes capitalized interest of
$2,246, $1,464 and $1,923 in 1998, 1997 and 1996, respectively.
Provisions for depreciation of plant and equipment have generally been
made using the straight-line method for financial reporting purposes.
Estimated useful lives generally range from 20 to 40 years for buildings
and improvements, from 3 to 12 years for machinery and equipment, and
from 3 to 10 years for office equipment. Expenditures for non-reimbursed
tooling are capitalized and are generally amortized over 3 years.
Improvements to leased property are amortized over the life of the lease.
<PAGE> 10
UT AUTOMOTIVE, INC. 8
(WHOLLY-OWNED BY UNITED TECHNOLOGIES CORPORATION)
NOTES TO COMBINED FINANCIAL STATEMENTS
(DOLLAR AMOUNTS IN THOUSANDS)
- --------------------------------------------------------------------------------
2. SUMMARY OF ACCOUNTING PRINCIPLES (CONTINUED)
ENVIRONMENTAL ACTIVITIES
Provisions for environmental remediation activities, including costs
relating to closed or sold facilities, are recorded when remedial efforts
are probable and related amounts can be reasonably estimated. This
generally occurs when a remedial investigation or a feasibility study has
been completed and sometimes at an earlier time, based on the specific
circumstances and past experience. Provisions include costs for
remediation, environmental studies, post-closure monitoring and other
incremental costs related to remediation activities. When no amount
within a range of estimates is more likely, the minimum is accrued. For
sites with multiple responsible parties, the Company considers its likely
proportionate share of the anticipated remediation costs and the ability
of the other parties to fulfill their obligations in establishing a
provision for these costs. Liabilities with fixed or reliably
determinable future cash payments are discounted.
Potential insurance reimbursements are not recorded based upon the
uncertainty of recovery. Amounts related to anticipated reimbursements
due under environmental remediation indemnification agreements are
recorded when recovery is assessed as probable. The Company periodically
assesses its environmental liabilities and, separately, the amount and
collectibility of the related indemnification assets, through reviews of
contractual commitments, site assessments, feasibility studies, formal
remedial design and action plans and review of financial viability of the
indemnifying parties.
ENGINEERING, RESEARCH AND DEVELOPMENT AND OTHER COSTS
Engineering, research and development costs are generally charged to
operations as incurred. Selling, general and administrative expenses are
also charged to operations as incurred.
GOODWILL AND OTHER LONG-LIVED ASSETS
Cost in excess of values assigned to the underlying net assets of
acquired companies are generally being amortized using the straight-line
method over periods ranging from 10 to 40 years.
The Company evaluates potential impairment of goodwill on an ongoing basis
and other long-lived assets when appropriate. If the carrying amount of an
asset exceeds the sum of its undiscounted expected future cash flows, the
asset's carrying value is written down to fair value.
<PAGE> 11
UT AUTOMOTIVE, INC. 9
(WHOLLY-OWNED BY UNITED TECHNOLOGIES CORPORATION)
NOTES TO COMBINED FINANCIAL STATEMENTS
(DOLLAR AMOUNTS IN THOUSANDS)
- --------------------------------------------------------------------------------
2. SUMMARY OF ACCOUNTING PRINCIPLES (CONTINUED)
INCOME TAXES
The Company and its domestic combined affiliates are included in the
consolidated U.S. federal income tax return of UTC. It is generally the
policy of the Company to determine its income tax provision on a separate
return basis. Under an arrangement with UTC, income taxes are charged to
members of the U.S. consolidated group based upon amounts they would pay
or receive if they filed a separate income tax return. The provision for
income taxes has been prepared as if a consolidated U.S. federal income
tax return had been filed separately by the Company and its combined
affiliates under a similar arrangement. Deferred income taxes are
provided on the differences in the book and tax bases of assets and
liabilities at the statutory tax rates expected to be in effect when such
differences are reversed. A valuation allowance is provided on the tax
benefits otherwise associated with certain tax attributes unless it is
considered more likely than not that the benefits will be realized. UTC
pays domestic taxes on behalf of the Company and reflects the funding
through the UTC investment account.
CASH AND CASH EQUIVALENTS
For purposes of the combined statements of cash flows, the Company
considers highly liquid investments with a maturity of three months or
less at the time of purchase to be cash equivalents. UTC provides
centralized treasury functions and financing for UTA, including
substantially all domestic investing and borrowing activities for UTA. As
part of this practice, surplus cash is remitted to UTC and UTC advances
cash, as necessary, to UTA. As of December 31, 1998, cash and cash
equivalents included approximately $3,400 of cash pledged against open
lines of credit.
HEDGING ACTIVITY
The Company enters into forward foreign exchange contracts to hedge
foreign currency denominated receivables and payables. The Company
utilizes such instruments as risk management tools and not for trading or
speculative purposes. Gains and losses relating to derivatives used for
hedging purposes that satisfy the appropriate criteria are deferred and
included in income when the related operating revenues and expenses are
recognized. Such contracts (notional amounts approximating $46,326 and
$39,042 at December 31, 1998 and 1997, respectively) generally have
maturities of one year or less and the counterparties are typically major
international financial institutions or UTC affiliates. Cash flows
attributable to the derivative contracts are generally included with the
cash flows from the associated hedged receivables or payables. Derivative
instruments that are not effective as hedges would be reported at market
value and the related gains or losses would be recognized in earnings.
In June 1998, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards No. 133, "Accounting for Derivative
Instruments and Hedging Activities" which is effective January 1, 2000.
Management believes adoption of this standard will not have a material
impact on the Company's financial position, results of operations or cash
flows.
<PAGE> 12
UT AUTOMOTIVE, INC. 10
(WHOLLY-OWNED BY UNITED TECHNOLOGIES CORPORATION)
NOTES TO COMBINED FINANCIAL STATEMENTS
(DOLLAR AMOUNTS IN THOUSANDS)
- --------------------------------------------------------------------------------
2. SUMMARY OF ACCOUNTING PRINCIPLES (CONTINUED)
FOREIGN CURRENCY TRANSLATION
The Company's significant international combined affiliates, excluding
Mexico, the Philippines, Honduras and Hungary, use the local currency as
the functional currency and translate all assets and liabilities at year
end exchange rates, all income and expense accounts at average rates and
record adjustments resulting from the translations as a separate
component of UTC investment.
The remaining international entities (Mexico, the Philippines, Honduras
and Hungary) utilize the U.S. dollar as the functional currency and
translate monetary assets and liabilities at period-end exchange rates
and inventories, property and nonmonetary assets and liabilities at
historical rates. Income and expense accounts are translated at the
average rates in effect during the period, except that depreciation and
cost of sales are translated at historical rates. Adjustments resulting
from translations of these entities are included in the results of
operations. Gains and losses resulting from transactions of the Company
and its subsidiaries which are made in currencies different from their
own are included in results of operations as they occur. Total currency
transaction gains and losses are included in other income, net in the
accompanying statements of operations.
3. SUPPLEMENTAL CASH FLOW INFORMATION
<TABLE>
<CAPTION>
FOR THE YEARS ENDED
DECEMBER 31,
-------------------------------------
1998 1997 1996
<S> <C> <C> <C>
Cash paid for interest $ 22,184 $ 9,873 $ 8,548
Cash paid for income taxes $ 47,795 $ 78,490 $ 79,076
</TABLE>
Interest expense includes $20,310, $5,991 and $4,021 of charges from UTC
affiliates in 1998, 1997 and 1996, respectively. The amounts shown as
income taxes paid include amounts paid by UTC and charged to the Company
relating to the tax liabilities of the Company recorded in the combined
financial statements.
<PAGE> 13
UT AUTOMOTIVE, INC. 11
(WHOLLY-OWNED BY UNITED TECHNOLOGIES CORPORATION)
NOTES TO COMBINED FINANCIAL STATEMENTS
(DOLLAR AMOUNTS IN THOUSANDS)
- --------------------------------------------------------------------------------
4. RELATED PARTY TRANSACTIONS
INTERCOMPANY ACTIVITIES
UTC provides the Company with certain environmental and other risk
management, internal audit, legal, tax, pension fund management,
transportation services and domestic cash management services. In
addition, as discussed below and in Note 16, UTA employees participate in
certain UTC employee benefit programs which are sponsored and
administered by UTC. All direct costs relating to these services and
participation in these plans are charged to the Company and indirect
costs are allocated using allocation methods UTC and UTA management
believe are reasonable.
In addition to direct charges, the combined financial statements include
a corporate overhead allocation which is based upon estimated allocations
of costs incurred by UTC which directly benefit the Company. This charge
was $4,612, $4,760 and $4,069 for the years ended December 31, 1998, 1997
and 1996, respectively. Indirect cost allocations are made based upon
employee headcount, estimated percent of UTA use of various services and
level-of-effort based methodologies, as appropriate.
UTC provides centralized treasury functions and financing, including
substantially all domestic investing and borrowing activities for the
Company. As part of this practice, surplus cash is remitted to UTC and
UTC advances cash, as necessary, to the Company. No interest is charged
or paid on the net UTC investment amount. Interest is charged or credited
on notes receivable and notes payable from or to affiliates.
United Technologies Research Center provides the Company with certain
research services. Charges for these services were $3,321, $3,028 and
$3,695 for the years ended December 31, 1998, 1997 and 1996,
respectively. The Company's sales to and purchases from other UTC
business units are not material.
EMPLOYEE BENEFIT ADMINISTRATION
The Company's employees participate in tax-qualified defined benefit
pension plans, defined contribution savings plans and various welfare
benefit plans sponsored and administered by UTC. UTC has historically
charged back to the Company its pro rata share of administration and
funding expenses incurred by UTC in the operation of these plans for the
benefit of UTA employees. The Company has been responsible for the cost
of funding pension and savings plan benefits accrued by its employees.
Welfare benefit programs are generally self-insured and experience-rated
on the basis of Company employees without regard to the claims experience
of employees of other affiliated companies. The Company independently
administers a small number of benefit plans in connection with certain
plants or facilities that maintain separate benefit programs. The size of
these independent programs is not material in relation to the aggregate
employee benefit programs of the Company.
<PAGE> 14
UT AUTOMOTIVE, INC. 12
(WHOLLY-OWNED BY UNITED TECHNOLOGIES CORPORATION)
NOTES TO COMBINED FINANCIAL STATEMENTS
(DOLLAR AMOUNTS IN THOUSANDS)
- --------------------------------------------------------------------------------
5. ACQUISITION AND DIVESTITURE ACTIVITY
During 1998, the Company paid approximately $3,300 for a 47% interest in
NTTF, an Indian components manufacturer; approximately $8,500 ($760 to be
paid in 1999) for a 50% interest in Ri Yong, a Chinese cooling fan module
manufacturer; approximately $4,000 to buyout the remaining 25% minority
interest in its Loewe operation; and $2,000 for a preferred share
interest of 6% in Eclipse International, Inc., a US based technology
company specializing in software and hardware critical to the development
of the AutoPC. In addition, during 1998, the Company assumed the
remaining minority interest in its Xianfeng venture, to facilitate its
closure and redistribution of assets to the Company's other Chinese
operations, and contributed net assets of $3,055 for a 45% interest in a
newly-formed battery cable joint venture with Saturn Electronics.
During 1997, the Company paid approximately $34,400 for a 75% interest in
Loewe GmbH, a German electronic switch manufacturer and $8,500 for a 50%
interest in MMA, a producer of motors based in Argentina. The purchase
price for Loewe exceeded the estimated fair value of the net assets
acquired and, accordingly, $20,498 was recorded as goodwill and is being
amortized over its estimated useful life of 20 years.
During 1996, the Company sold its interest in its steering wheels
business. The proceeds on the sale approximated $140,000 and the pre-tax
gain recorded on this sale was approximately $78,000. In addition, during
1996, the Company paid approximately $42,100 to purchase the remaining
30% minority interest in Gate SpA, including approximately $16,900
assigned to intangible assets.
<PAGE> 15
UT AUTOMOTIVE, INC. 13
(WHOLLY-OWNED BY UNITED TECHNOLOGIES CORPORATION)
NOTES TO COMBINED FINANCIAL STATEMENTS
(DOLLAR AMOUNTS IN THOUSANDS)
- --------------------------------------------------------------------------------
6. COST REDUCTION AND OTHER ACTIONS
During 1998, 1997 and 1996, the Company recorded pre-tax charges
totalling $9,245, $25,478 and $41,835, respectively, related to ongoing
efforts to reduce costs in response to industry conditions. The following
table summarizes the costs and related reserves relating to these
actions:
<TABLE>
<CAPTION>
SEVERANCE FACILITY ASSET
AND RELATED AND OTHER WRITE-
COSTS COSTS DOWNS TOTAL
<S> <C> <C> <C> <C>
1996 Charges $ 15,802 $ 4,513 $ 21,520 $ 41,835
Utilized in 1996 (3,073) (21,520) (24,593)
-------- -------- -------- --------
Balance at December 31, 1996 12,729 4,513 17,242
1997 Charges 15,673 4,100 5,705 25,478
Utilized in 1997 (18,851) (2,659) (5,705) (27,215)
Adjustments in 1997 (826) (826)
-------- -------- -------- --------
Balance at December 31, 1997 8,725 5,954 14,679
1998 Charges 4,887 1,180 3,178 9,245
Utilized in 1998 (6,780) (2,354) (3,178) (12,312)
Adjustments in 1998 (4,728) (1,691) (6,419)
-------- -------- -------- --------
Balance at December 31, 1998 $ 2,104 $ 3,089 $ -- $ 5,193
======== ======== ======== ========
</TABLE>
Provisions for cost reduction and other actions are included in cost of
goods sold in the statements of operations except as described below.
Generally, costs relating to severance and related costs and facility and
other costs are cash charges. Fixed asset provisions are non-cash
charges.
1998 ACTIONS
The Company provided $9,245 for the closure of its Valls, Spain and Bay
Valley, Michigan facilities. Included in this charge were termination
benefits of $4,887 related to approximately 426 employees, $3,178 for
fixed asset write downs and $1,180 for facility closing costs. The
business and related revenues will be transferred to other UTA
facilities. Other than facility closing costs, these actions are expected
to be substantially completed during 1999. In addition, during 1998, the
estimated costs of a workforce reduction action recorded during 1996 were
reduced by $3,900, the estimated facility closing costs recorded during
1997 and 1996 were reduced by $1,300 due to additional customer
requirements and additional adjustments of $1,200 relate to differences
between estimated costs and actual costs incurred.
1997 ACTIONS
In response to market conditions during 1997, the Company provided
approximately $14,910 on a pre-tax basis for the restructuring of certain
North American and European operations, including the elimination of
excess plant capacity and personnel reductions. The provisions included
$5,105 for severance and related benefit payments to approximately 579
employees, $5,705 for asset write-downs and $4,100 for facility closing
costs and other. Adjustments during 1997 relate to differences between
estimated costs and actual costs incurred.
<PAGE> 16
UT AUTOMOTIVE, INC. 14
(WHOLLY-OWNED BY UNITED TECHNOLOGIES CORPORATION)
NOTES TO COMBINED FINANCIAL STATEMENTS
(DOLLAR AMOUNTS IN THOUSANDS)
- --------------------------------------------------------------------------------
6. COST REDUCTION AND OTHER ACTIONS (CONTINUED)
In addition, included in selling general and administrative expense, the
Company provided approximately $10,568 on a pre-tax basis for
administrative work force reductions of approximately 345 employees at
its Worldwide Headquarters facility. These actions are substantially
completed at December 31, 1998.
1996 ACTIONS
In 1996, the Company recorded charges of $41,835 on a pre-tax basis for
cost reduction and other actions, including the discontinuance of certain
product lines and the consolidation of certain production facilities.
These actions were taken in response to changing industry conditions and
to enhance cost structure and competitive position. The provisions
included $15,802 for employee severance and related benefits for
approximately 1,602 employees, $21,520 for asset write-downs and $4,513
for facility carrying costs and other. These actions are substantially
complete at December 31, 1998.
7. SIGNIFICANT CUSTOMERS
The Company has direct sales to three customers that accounted for the
following amounts of total sales for the years ended December 31:
<TABLE>
<CAPTION>
1998 1997 1996
<S> <C> <C> <C>
Ford Motor Company $1,003,287 $1,123,098 $1,223,517
DaimlerChrysler AG 396,181 450,115 504,885
General Motors Corporation 273,246 307,358 286,965
</TABLE>
In addition to the direct sales to the customers noted above, the Company
has significant sales to certain suppliers of these customers. Although
the Company is directly affected by the economic well-being of the
automotive industry and the significant customers noted above, management
does not believe significant credit risk exists at the current time. The
Company performs ongoing credit evaluations of its customers' financial
condition and does not require collateral. Historically, the Company has
not experienced significant losses related to receivables from individual
customers.
<PAGE> 17
UT AUTOMOTIVE, INC. 15
(WHOLLY-OWNED BY UNITED TECHNOLOGIES CORPORATION)
NOTES TO COMBINED FINANCIAL STATEMENTS
(DOLLAR AMOUNTS IN THOUSANDS)
- --------------------------------------------------------------------------------
8. ACCOUNTS RECEIVABLE
<TABLE>
<CAPTION>
DECEMBER 31,
1998 1997
-------------------------------
<S> <C> <C>
Trade $ 484,435 $ 437,002
Tooling - billed 15,400 14,727
Tooling - unbilled 46,723 45,660
Other current receivables 32,514 30,864
Less - allowances (3,880) (1,793)
------------- --------------
$ 575,192 $ 526,460
============= ==============
9. INVENTORIES
<CAPTION>
DECEMBER 31,
1998 1997
-------------------------------
Raw materials and work-in-process $ 137,001 $ 140,499
Finished goods 67,273 76,840
LIFO reserve (23,049) (27,441)
Other reserves (10,553) (12,785)
------------- --------------
$ 170,672 $ 177,113
============= ==============
</TABLE>
During 1998, 1997 and 1996, certain inventories carried under the LIFO
valuation method were reduced. These reductions resulted in a liquidation
of LIFO inventory quantities carried at costs that prevailed in prior
years which were lower than the cost of current purchases. The effect of
the liquidation of LIFO inventories decreased cost of goods sold by
approximately $2,973, $640 and $917 and increased net income by
approximately $1,843, $397 and $569 for the years ended December 31,
1998, 1997 and 1996, respectively.
10. INVESTMENTS AND RECEIVABLES DUE AFTER ONE YEAR
<TABLE>
<CAPTION>
DECEMBER 31,
1998 1997
-------------------------------
<S> <C> <C>
Joint venture investments $ 30,863 $ 13,926
Other 11,248 15,501
------------- --------------
$ 42,111 $ 29,427
============= ==============
</TABLE>
Joint Venture investments accounted for under the equity method include a
51% interest in Furukawa, a Mexican wire harness manufacturer; a 50%
interest in MMA, an Argentinean electrical motor and cooling fan module
manufacturer; a 50% interest in Ri Yong, a Chinese electric motor
manufacturer; a 45% interest in Saturn, a battery cable manufacturer; and
a 47% interest in NTTF, a switch, components and tooling manufacturer
located in India.
<PAGE> 18
UT AUTOMOTIVE, INC. 16
(WHOLLY-OWNED BY UNITED TECHNOLOGIES CORPORATION)
NOTES TO COMBINED FINANCIAL STATEMENTS
(DOLLAR AMOUNTS IN THOUSANDS)
- --------------------------------------------------------------------------------
11. FIXED ASSETS
<TABLE>
<CAPTION>
DECEMBER 31,
1998 1997
---------------------------------------
<S> <C> <C>
Fixed assets, at cost
Land $ 16,501 $ 16,602
Buildings and improvements 224,718 212,240
Machinery, tools and equipment 1,062,251 943,548
Construction-in-progress 47,286 42,029
---------- ----------
1,350,756 1,214,419
Less - accumulated depreciation (641,050) (578,497)
---------- ----------
$ 709,706 $ 635,922
========== ==========
12. ACCRUED LIABILITIES
<CAPTION>
DECEMBER 31,
1998 1997
---------------------------------------
Employee benefits $ 53,619 $ 44,911
Workers' compensation 18,188 21,564
Payroll 20,912 21,350
Environmental 11,500 10,347
Warranty 27,990 9,712
Other 49,566 81,078
-------- --------
$181,775 $188,962
======== ========
13. OTHER LONG-TERM LIABILITIES
<CAPTION>
DECEMBER 31,
1998 1997
---------------------------------------
Environmental $60,096 $ 70,960
Warranty 20,131 34,072
Other 16,282 20,314
------- --------
$96,509 $125,346
======= ========
</TABLE>
<PAGE> 19
UT AUTOMOTIVE, INC. 17
(WHOLLY-OWNED BY UNITED TECHNOLOGIES CORPORATION)
NOTES TO COMBINED FINANCIAL STATEMENTS
(DOLLAR AMOUNTS IN THOUSANDS)
- --------------------------------------------------------------------------------
14. BORROWINGS AND LINES OF CREDIT
The following summarizes the short-term borrowings and long-term debt of
the Company and its subsidiaries (including the weighted average interest
rate at December 31, 1998).
<TABLE>
<CAPTION>
SHORT-TERM BORROWINGS
DECEMBER 31,
-----------------------------
1998 1997
<S> <C> <C>
Short term foreign note and
bank borrowings (4.6%) $ 7,871 $ 10,822
Current portion of long-term debt
and capital lease obligations 1,574 2,439
---------- ----------
$ 9,445 $ 13,261
========== ==========
<CAPTION>
LONG-TERM DEBT MATURITY AT
DECEMBER 31, 1998
Notes and other debt
Denominated in foreign currency (3.22%) 1999-2010 $ 2,416 $ 2,398
Denominated in U.S. dollars - 730
Capital lease obligations (9.65%) 1999-2013 4,370 5,681
---------- ----------
Total long-term debt and capital
lease obligations 6,786 8,809
Less - current portion of long-
term debt and capital lease obligations 1,574 2,439
---------- ----------
$ 5,212 $ 6,370
========== ==========
</TABLE>
At December 31, 1998, approximately $59,900 was available under
short-term lines of credit with local banks at the Company's various
international operations. Capital lease obligations related primarily to
buildings at certain foreign subsidiaries.
Principal payments required on long-term debt and capital lease
obligations as of December 31, 1998 are as follows:
<TABLE>
<S> <C>
1999 $ 1,574
2000 1,250
2001 1,077
2002 1,053
2003 308
Thereafter 1,524
----------
$ 6,786
==========
</TABLE>
<PAGE> 20
UT AUTOMOTIVE, INC. 18
(WHOLLY-OWNED BY UNITED TECHNOLOGIES CORPORATION)
NOTES TO COMBINED FINANCIAL STATEMENTS
(DOLLAR AMOUNTS IN THOUSANDS)
- --------------------------------------------------------------------------------
15. TAXES ON INCOME
The provision for income taxes is comprised of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
----------------------------------------
1998 1997 1996
<S> <C> <C> <C>
Current
United States
Federal $ 8,827 $ 12,561 $ 45,719
State 1,545 2,100 6,241
Foreign 35,210 53,441 28,112
----------- ----------- -----------
45,582 68,102 80,072
----------- ----------- -----------
Deferred
United States
Federal 3,382 7,293 (14,591)
State (273) 315 (999)
Foreign 8,842 (4,664) (333)
----------- ----------- -----------
11,951 2,944 (15,923)
----------- ----------- -----------
$ 57,533 $ 71,046 $ 64,149
=========== =========== ===========
</TABLE>
Deferred income taxes represent the tax effects of differences in the
book and tax reporting bases of assets and liabilities at the statutory
tax rates expected to be in effect when such differences reverse.
Temporary differences and carryforwards that gave rise to a significant
portion of deferred tax assets and liabilities at December 31 include:
<PAGE> 21
UT AUTOMOTIVE, INC. 19
(WHOLLY-OWNED BY UNITED TECHNOLOGIES CORPORATION)
NOTES TO COMBINED FINANCIAL STATEMENTS
(DOLLAR AMOUNTS IN THOUSANDS)
- --------------------------------------------------------------------------------
15. TAXES ON INCOME (CONTINUED)
<TABLE>
<CAPTION>
DECEMBER 31,
1998 1997
-----------------------
<S> <C> <C>
CURRENT
Deferred tax assets
Net state deferred tax asset $ 6,163 $ 7,239
Net foreign deferred tax asset 1,180 709
Inventory provisions 12,737 11,244
Provisions for warranty 9,817 1,570
Environmental remediation provisions 4,025 3,621
Insurance and employee benefits 15,141 15,987
Other nondeductible provisions 7,018 17,774
Allowance for doubtful accounts 51 235
Other items (net) 1,222 4,256
-------- --------
Total current deferred tax assets 57,354 62,635
-------- --------
Deferred tax liabilities
Net foreign deferred tax liabilities 111
-------- --------
111
-------- --------
Net current deferred asset $ 57,354 $ 62,524
======== ========
NONCURRENT
Deferred tax assets
Other asset amortization $ 3,904 $ --
Provisions for warranty 3,782 11,596
Insurance and employee benefits 235
Environmental remediation provisions 21,034 24,941
Federal, state and foreign loss carryforward 7,733 8,005
Net foreign deferred tax asset 1,816 7,732
Other items (net) 104
Valuation allowance (7,733) (8,005)
-------- --------
Total noncurrent deferred tax asset $ 30,875 $ 44,269
======== ========
</TABLE>
<PAGE> 22
UT AUTOMOTIVE, INC. 20
(WHOLLY-OWNED BY UNITED TECHNOLOGIES CORPORATION)
NOTES TO COMBINED FINANCIAL STATEMENTS
(DOLLAR AMOUNTS IN THOUSANDS)
- --------------------------------------------------------------------------------
15. TAXES ON INCOME (CONTINUED)
<TABLE>
<CAPTION>
DECEMBER 31,
------------------------------
1998 1997
<S> <C> <C>
Deferred tax liabilities
Tax depreciation and capital allowance $ 36,028 $ 47,056
Other provisions 8,310 8,378
Net state deferred tax liability 1,910 3,306
Foreign depreciation 15,554 15,779
Other net foreign deferred tax liabilities 5,651 1,460
-------- --------
Total deferred tax liability 67,453 75,979
-------- --------
Net noncurrent deferred liability $(36,578) $(31,710)
======== ========
Net deferred tax asset $ 20,776 $ 30,814
======== ========
</TABLE>
The Company has provided a valuation allowance for certain tax benefits
of affiliates' foreign net operating loss carryforwards of approximately
$30,200, (tax effect of $7,733) which expire between 1999 and 2003.
During the periods UTA generated foreign tax credits which were utilized
by UTC on a consolidated basis but which could not be utilized by UTA
currently (or reasonably be expected to be used by UTA in the future) on
a stand alone basis. The benefits of these credits have not been included
in the UTA tax provision.
The sources of income (loss) before income taxes and minority interest
were:
<TABLE>
<CAPTION>
DECEMBER 31,
-------------------------------
1998 1997 1996
<S> <C> <C> <C>
United States $ 26,704 $ 31,526 $ 75,923
Foreign 111,826 119,155 100,573
-------- -------- --------
$138,530 $150,681 $176,496
======== ======== ========
</TABLE>
Deferred income taxes generally have not been provided on undistributed
earnings of international subsidiaries of approximately $236,626, which
are included in UTC investment at December 31, 1998.
<PAGE> 23
UT AUTOMOTIVE, INC. 21
(WHOLLY-OWNED BY UNITED TECHNOLOGIES CORPORATION)
NOTES TO COMBINED FINANCIAL STATEMENTS
(DOLLAR AMOUNTS IN THOUSANDS)
- --------------------------------------------------------------------------------
15. TAXES ON INCOME (CONTINUED)
Differences between the effective income tax rate and the statutory U.S.
federal income tax rate are as follows:
<TABLE>
<CAPTION>
DECEMBER 31,
---------------------------------
1998 1997 1996
<S> <C> <C> <C>
Statutory U.S. federal income tax rate 35.0% 35.0% 35.0%
State and local income tax rate, net of
federal income tax benefit 0.6 1.0 2.0
Amortization of goodwill without tax effect 2.9 2.7 4.8
Foreign rate difference on foreign provision (1.1) (5.2) (4.0)
Additional U.S. cost of foreign transactions 6.9 18.3 0.8
Other (2.8) (4.7) (2.3)
---- ---- ----
Effective income tax rate 41.5% 47.1% 36.3%
==== ==== ====
</TABLE>
16. EMPLOYEE BENEFIT PLANS
EMPLOYEE PENSION BENEFITS
The Company and its domestic subsidiaries participate with UTC in certain
defined benefit pension plans covering substantially all U.S. employees.
For salaried employees, plan benefits are generally based on years of
service and the employee's compensation during the last several years of
employment. For hourly employees, plan benefits are generally based on
years of service and the benefit level established at each facility.
Expenses for these plans are allocated from UTC on an actuarial basis
utilizing participant and plan design data. Certain foreign subsidiaries
of the Company have defined benefit pension plans or severance indemnity
plans covering their employees. The Company and UTC account for the cost
of their defined benefit plans in accordance with Statement of Financial
Accounting Standards No. 87 (FAS 87), "Employers' Accounting for
Pensions." Certain additional employees, primarily located in foreign
countries, are covered by benefit arrangements which do not meet the
reporting requirements of FAS 87.
Summarized below are the components of net periodic pension cost for the
Company's net pension cost for participation in the UTC U.S. plans,
foreign defined benefit plans and other costs for pension and severance
indemnity plans.
<TABLE>
<CAPTION>
DECEMBER 31,
-----------------------
1998 1997 1996
<S> <C> <C> <C>
Participation in UTC U.S. plans $2,815 $3,608 $7,560
UTA foreign defined benefit plans 723 882 847
Other costs, principally foreign
service indemnity plans 487 213 261
------ ------ ------
Total pension cost $4,025 $4,703 $8,668
====== ====== ======
</TABLE>
<PAGE> 24
UT AUTOMOTIVE, INC. 22
(WHOLLY-OWNED BY UNITED TECHNOLOGIES CORPORATION)
NOTES TO COMBINED FINANCIAL STATEMENTS
(DOLLAR AMOUNTS IN THOUSANDS)
- --------------------------------------------------------------------------------
16. EMPLOYEE BENEFIT PLANS (CONTINUED)
Unfunded liabilities for pension plans of certain international
subsidiaries and for employee severance benefits, including those
accruing to employees under foreign government regulations, are included
in other long-term liabilities in the accompanying combined balance
sheets.
EMPLOYEE HEALTHCARE AND INSURANCE BENEFITS
UTC provides certain employee healthcare and insurance benefits. In
situations where full-time salaried employees retire from the Company
between age 55 and age 65, most are eligible to receive, at a cost that
varies on the basis of service with the Company, certain healthcare
benefits identical to those available to active employees. Coverage ends
at age 65. Certain retired employees of businesses acquired by the
Company are covered under other healthcare plans that vary in terms of
coverage, deductibles and retiree contributions. In addition, certain
retirees may elect, at retirement, to continue life insurance coverage of
up to twice their annual base pay as of that date. Expenses for these
plans are allocated from UTC on an actuarial basis utilizing participant
and plan design data. Net periodic postretirement benefit cost
approximated $2,400, $1,817 and $1,702 for the years ended December 31,
1998, 1997 and 1996, respectively.
For purposes of the combined financial statements, UTA accounts for its
participation in UTC pension and postretirement benefit plans as if they
participated in multi-employer plans.
Pension assets or liabilities under UTC sponsored domestic pension plans
have been included as part of the UTC investment balance in the
accompanying combined balance sheets.
The accompanying combined balance sheets do not include liabilities for
active and retired salaried and hourly employees of the Company who
participate in the UTC retiree health and life insurance benefit plans.
These amounts are included in the UTC investment balance in the
accompanying combined balance sheets.
EMPLOYEE INCENTIVE PLANS
The Company participated in UTC long-term incentive plans utilizing
various types of market and performance based incentive awards, which may
be granted to officers and employees, including grants of UTC common
stock and stock options. The exercise prices of stock options, which are
to be set at the time of the grant, will not be less than the fair market
value of the shares on the date of grant.
During the years ended December 31, 1998, 1997 and 1996, the Company
expensed $5,000, $6,033 and $7,625, respectively, with respect to the
costs of UTA management participation in the incentive compensation
plans.
EMPLOYEE SAVINGS PLAN
The Company participates in UTC's Employee Stock Ownership Plan. The
amounts expensed relative to the Company's participation in that plan,
including administrative fees, totaled $4,100, $3,877 and $3,871 for the
years ended December 31, 1998, 1997 and 1996, respectively.
<PAGE> 25
UT AUTOMOTIVE, INC. 23
(WHOLLY-OWNED BY UNITED TECHNOLOGIES CORPORATION)
NOTES TO COMBINED FINANCIAL STATEMENTS
(DOLLAR AMOUNTS IN THOUSANDS)
- --------------------------------------------------------------------------------
17. OTHER INCOME, NET
Other income includes the following:
<TABLE>
<CAPTION>
FOR THE YEARS ENDED
DECEMBER 31,
-------------------------
1998 1997 1996
<S> <C> <C> <C>
Interest income $ 4,118 $ 6,309 $ 6,018
Royalty income 2,550 2,794 3,612
Gain (loss) on fixed asset dispositions (4,861) (227) 156
Foreign exchange gains (losses) (5,970) (4,328) 262
Equity in earnings of investees 3,986 1,439 2,553
Gain on disposition of business unit - - 78,000
Other 1,671 4,693 5,556
------- ------- -------
$ 1,494 $10,680 $96,157
======= ======= =======
</TABLE>
Interest income includes $2,179, $4,037 and $2,994 earned on transactions
with UTC affiliates in 1998, 1997 and 1996, respectively.
18. FAIR VALUE OF FINANCIAL INSTRUMENTS
The following methods and assumptions were used to estimate the fair
value of those financial instruments included in the following
categories:
CASH AND CASH EQUIVALENTS, ACCOUNTS AND NOTES RECEIVABLE AND SHORT-TERM
BORROWINGS
The carrying amount approximates fair value because of the short maturity
of those instruments.
RECEIVABLES DUE AFTER ONE YEAR
The long-term receivables generally relate to refundable taxes in foreign
jurisdictions and customer reimbursable tooling. It is not practicable to
estimate the future timing of receipts to determine the current fair
value of these amounts.
DEBT
The fair value of the Company's debt is estimated to approximate book
value based on current market rates available to the Company.
FOREIGN EXCHANGE CONTRACTS
The fair values are estimated based on the amount the Company would
receive or pay to terminate the agreements at the reporting dates, and
approximated the carrying amount at December 31, 1998 and 1997.
<PAGE> 26
UT AUTOMOTIVE, INC. 24
(WHOLLY-OWNED BY UNITED TECHNOLOGIES CORPORATION)
NOTES TO COMBINED FINANCIAL STATEMENTS
(DOLLAR AMOUNTS IN THOUSANDS)
- --------------------------------------------------------------------------------
19. COMMITMENTS AND CONTINGENT LIABILITIES
LEASE COMMITMENTS
The Company and its combined affiliates occupy space and use certain
equipment under lease arrangements. Rental commitments at December 31,
1998 under long-term noncancelable operating leases are as follows:
<TABLE>
<CAPTION>
LAND, MACHINERY,
BUILDINGS AND TOOLS AND
OFFICE SPACE EQUIPMENT
<S> <C> <C>
1999 $ 9,807 $ 2,381
2000 8,518 1,493
2001 8,401 840
2002 8,248 394
2003 6,641 264
After 2003 4,963 209
----------- ----------
$ 46,578 $ 5,581
=========== ==========
</TABLE>
Rent expense totaled $22,660, $19,507 and $19,602 for the years ended
December 31, 1998, 1997 and 1996, respectively.
PURCHASE COMMITMENTS
In the normal course of business, the Company enters into commitments for
the purchase of certain raw materials and components utilized in its
manufacturing process. These agreements are generally for one year or
less and management believes the required purchases are not in excess of
anticipated needs.
ENVIRONMENTAL
The Company is subject to federal, state, local and foreign laws and
regulations relating to environmental matters. These laws provide for
control of pollutants released into the air, water and ground and require
responsible parties to undertake remediation of hazardous waste disposal
sites.
Although it is not presently possible to estimate the exact timing and
ultimate amount of future expenditures for environmental remediation, the
Company has recorded environmental liabilities of approximately $72,000
and $81,000 as of December 31, 1998 and 1997, respectively. Accrued
liabilities include $11,500 and $10,347 for the current portion of the
estimated cleanup expenditures at December 31, 1998 and 1997,
respectively. The balance of spending anticipated to be incurred in
future years is shown as a component of other long-term liabilities.
Liabilities with cash flows that are fixed or reliably determinable of
approximately $31,300 have been recorded at their discounted value of
$18,050 at December 31, 1998 utilizing a 7.5% interest rate. Other assets
in the accompanying combined balance sheets include approximately $26,300
and $30,300 at December 31, 1998 and 1997, respectively, expected to be
recoverable under indemnification agreements. Legal proceedings have been
instituted on behalf of a subsidiary of the Company against its
historical insurers seeking insurance coverage for remediation and
related expenditures. These proceedings are expected to last several
years. Potential insurance reimbursements are not recorded based upon the
uncertainty of collection.
27
<PAGE> 27
UT AUTOMOTIVE, INC. 25
(WHOLLY-OWNED BY UNITED TECHNOLOGIES CORPORATION)
NOTES TO COMBINED FINANCIAL STATEMENTS
(DOLLAR AMOUNTS IN THOUSANDS)
- --------------------------------------------------------------------------------
19. COMMITMENTS AND CONTINGENT LIABILITIES (CONTINUED)
Management believes that the ultimate resolution of these environmental
matters should not have a material adverse effect on the combined
financial position of the Company. However, it is possible that the
Company's results of operations and cash flows in certain future
quarterly or annual periods could be materially affected.
WARRANTY
The Company provides its customers with product quality assurances
considered by management to be standard in the industry. The Company
accrues for these costs when such obligations are probable and the
amounts can be reasonably estimated. Warranty reserves approximated
$48,100 and $43,800 at December 31, 1998 and 1997, respectively.
OTHER
The Company also has other commitments and contingent liabilities related
to legal proceedings and other matters arising out of the normal course
of business. Management believes that resolution of these matters will
not have a material adverse effect on the financial position, results of
operations or cash flows of the Company.
20. SEGMENT FINANCIAL DATA
The Company and its subsidiaries design, develop, manufacture and sell
products, classified in four principle operating segments. The Company's
operating segments were generally determined on the basis of geographic
regions and product segments.
Electrical Systems-Americas products include electrical distribution,
electronic and eletromechanical systems and components such as wire
assemblies, control modules, switches, actuators, relays, terminals and
connectors, smart junction boxes, power network boxes, in addition to,
starter motors and wiper systems, manufactured principally in North
America.
Interior Systems International products include instrument panels,
modular headliners, door panels, door and sidewall trim, painted and
decorated trim components, exterior mirrors and acoustic and sealing
products, manufactured principally in the United States.
European Managed Operations products include electrical distribution,
electronic and eletromechanical systems and components such as wire
assemblies, control modules, switches, actuators, relays, terminals and
connectors, smart junction boxes, power network boxes, in addition to
fractional horsepower DC motors, analog and digital auto amplifiers and
video modules, manufactured principally in Europe.
Asia Pacific Operations products include electronic and eletromechanical
systems and components such as wire assemblies, control modules, in
addition to fractional horsepower DC motors, manufactured principally in
Asia.
<PAGE> 28
UT AUTOMOTIVE, INC. 26
(WHOLLY-OWNED BY UNITED TECHNOLOGIES CORPORATION)
NOTES TO COMBINED FINANCIAL STATEMENTS
(DOLLAR AMOUNTS IN THOUSANDS)
- --------------------------------------------------------------------------------
20. SEGMENT DATA (CONTINUED)
Operating segment and geographic data include the results of all majority
owned subsidiaries, consistent with the management reporting of these
businesses. For two subsidiaries, minority shareholders have rights,
which under the provisions of EITF 96-16, overcome the presumption of
consolidation. In the Company's consolidated results, these subsidiaries
are accounted for using the equity method of accounting. Adjustments to
reconcile segment reporting to consolidated results are included in
"Headquarters, Eliminations, Other", which also includes corporate
support administration centers and, for comparability purposes, the
impact of the steering wheels operations and divestiture in 1996.
Operating profits are comprised of income before interest expense, taxes
and minority interests.
<TABLE>
<CAPTION>
FOR THE YEARS ENDED
DECEMBER 31,
---------------------------------------------
1998 1997 1996
<S> <C> <C> <C>
NET SALES
Electrical Systems America $ 1,353,148 $ 1,434,480 $ 1,470,915
Interior Systems International 566,420 583,514 628,287
European Managed Operations 1,023,622 953,931 930,520
Asia Pacific Operations 16,284 11,471 2,714
Headquarters, Eliminations, Other (59,137) (56,091) 53,144
----------- ----------- -----------
Total net sales $ 2,900,337 $ 2,927,305 $ 3,085,580
=========== =========== ===========
OPERATING PROFITS
Electrical Systems America $ 164,185 $ 190,240 $ 198,108
Interior Systems International 21,734 3,666 (2,070)
European Managed Operations 83,541 80,496 79,156
Asia Pacific Operations (1,499) 37 (4,858)
Headquarters, Eliminations, Other (107,193) (113,837) (85,364)
----------- ----------- -----------
Total operating profits $ 160,768 $ 160,602 $ 184,972
=========== =========== ===========
CAPITAL EXPENDITURES
Electrical Systems America $ 69,720 $ 56,200 $ 44,242
Interior Systems International 40,977 29,291 30,380
European Managed Operations 71,448 64,468 54,481
Asia Pacific Operations 367 548 1,739
Headquarters, Eliminations, Other 10,390 10,519 6,450
----------- ----------- -----------
Total capital expenditures $ 192,902 $ 161,026 $ 137,292
=========== =========== ===========
DEPRECIATION AND AMORTIZATION
Electrical Systems America $ 43,741 $ 47,825 $ 49,295
Interior Systems International 22,164 20,727 20,783
European Managed Operations 41,897 40,031 36,125
Asia Pacific Operations 497 597 555
Headquarters, Eliminations, Other 15,991 18,139 20,369
----------- ----------- -----------
Total depreciation and amortization $ 124,290 $ 127,319 $ 127,127
=========== =========== ===========
</TABLE>
<PAGE> 29
UT AUTOMOTIVE, INC. 27
(WHOLLY-OWNED BY UNITED TECHNOLOGIES CORPORATION)
NOTES TO COMBINED FINANCIAL STATEMENTS
(DOLLAR AMOUNTS IN THOUSANDS)
- --------------------------------------------------------------------------------
20. SEGMENT DATA (CONTINUED)
A substantial portion of the Company's revenues and assets are
attributable to international operations. The Company has significant
manufacturing facilities in Italy, Spain, Honduras, the Philippines and
Mexico.
Geographic segment information follows:
<TABLE>
<CAPTION>
FOR THE YEARS ENDED
DECEMBER 31,
--------------------------------
1998 1997 1996
<S> <C> <C> <C>
NET SALES
North American operations $1,873,957 $1,944,614 $2,148,356
International operations
Europe 1,001,978 942,289 928,177
Asia Pacific 114,573 118,916 87,592
Other 46,990 34,740 13,966
Eliminations (137,161) (113,254) (92,511)
---------- ---------- ----------
Total net sales $2,900,337 $2,927,305 $3,085,580
========== ========== ==========
<CAPTION>
DECEMBER 31,
----------------------
1998 1997
<S> <C> <C>
LONG-LIVED ASSETS
North American operations $ 749,119 $727,183
International operations
Europe 237,976 206,380
Asia Pacific 29,704 26,193
Other 26,019 19,640
---------- --------
Total $1,042,818 $979,396
========== ========
</TABLE>
<PAGE> 30
UT AUTOMOTIVE, INC. 28
(WHOLLY-OWNED BY UNITED TECHNOLOGIES CORPORATION)
NOTES TO COMBINED FINANCIAL STATEMENTS
(DOLLAR AMOUNTS IN THOUSANDS)
- --------------------------------------------------------------------------------
20. SEGMENT DATA (CONTINUED)
SALES
Sales by operating segment or by geographic area include intersegment
sales as well as sales and transfers between geographic areas, which are
generally made at prices approximating those that the selling entity is
able to obtain on external sales. Other international sales include sales
of products produced by the Company's Philippine operations, which are
generally sold to U.S. customers.
Sales from United States operations include export sales as follows:
<TABLE>
<CAPTION>
DECEMBER 31,
----------------------------
1998 1997 1996
<S> <C> <C> <C>
Europe $ 62,921 $ 71,438 $ 70,552
Asia Pacific 5,607 13,581 7,117
Other 144,084 97,371 83,622
-------- -------- --------
$212,612 $182,390 $161,291
======== ======== ========
</TABLE>
ELIMINATIONS
Eliminations made in reconciling geographic area data with the related
combined amounts include sales and transfers between geographic areas,
unrealized profits in inventory and similar items.
LONG-LIVED ASSETS
Long-lived assets include net fixed assets and net goodwill which can be
attributed to the specific geographic regions.
21. SUBSEQUENT EVENTS
In March 1999, UTC entered into an agreement to sell the Company to Lear
Corporation for approximately $2,300,000, subject to certain adjustments.
Consummation of the sale is subject to customary conditions of closing.
The financial statements do not give effect to this transaction.
<PAGE> 31
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
B. Unaudited Pro Forma Consolidated Financial Statements.
The following unaudited pro forma consolidated statement of operations
of Lear for the year ended December 31, 1998 was prepared to illustrate the
effects of the completion of the acquisition of Delphi Seating, which was
completed on September 1, 1998, the UT Automotive acquisition, the amendment and
restatement of our prior senior credit facility and borrowings under our new
credit facilities (collectively, the "Transactions"), as if such Transactions
had occurred on January 1, 1998.
The following unaudited pro forma consolidated balance sheet
(collectively with the unaudited pro forma consolidated statement of operations,
the "Pro Forma Statements") was prepared as if the Transactions had occurred as
of December 31, 1998. The Pro Forma Statements are not necessarily indicative of
the results that actually would have been achieved if the Transactions reflected
therein had been completed on the dates indicated or the results which may be
attained in the future.
The pro forma adjustments are based upon available information and upon
certain assumptions that we believe are reasonable. The Pro Forma Statements
exclude the estimated effects related to our planned refinancing of the $1.4
billion interim term loan. The Pro Forma Statements and accompanying notes
should be read in conjunction with the historical financial statements of Lear,
UT Automotive and Delphi Seating, including the notes thereto.
32
<PAGE> 32
UNAUDITED PRO FORMA CONSOLIDATED STATEMENT OF OPERATIONS
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, 1998
=========================================================================================================================
Operating and Delphi Pro Forma
Lear UT Automotive Financing Seating as
Historical Historical(1) Adjustments Pro Forma Pro Forma (2) Adjusted
- ---------------------------------------------------------------------------------------------------------------------------
(Dollars in millions, except per share data)
<S> <C> <C> <C> <C> <C> <C>
Net sales $ 9,059.4 $ 2,900.3 $ - $11,959.7 $ 669.0 $12,628.7
Cost of sales 8,198.0 2,365.4 - 10,563.4 651.2 11,214.6
- ---------------------------------------------------------------------------------------------------------------------------
Gross profit 861.4 534.9 - 1,396.3 17.8 1,414.1
Selling, general and
administrative expenses 337.0 362.7 - 699.7 41.5 741.2
Restructuring and other charges 133.0 - - 133.0 - 133.0
Amortization 49.2 13.0 20.2 (3) 82.4 3.2 85.6
- ---------------------------------------------------------------------------------------------------------------------------
Operating income 342.2 159.2 (20.2) 481.2 (26.9) 454.3
Interest expense 110.5 22.2 140.4 (4) 273.1 9.1 282.2
Other (income)/expense, net 22.3 (.6) - 21.7 (6.1) 15.6
- ---------------------------------------------------------------------------------------------------------------------------
Income before income taxes 209.4 137.6 (160.6) 186.4 (29.9) 156.5
Income taxes 93.9 57.5 (49.1)(5) 102.3 (11.9) 90.4
- ---------------------------------------------------------------------------------------------------------------------------
Net income $ 115.5 $ 80.1 $(111.5) 84.1 $ (18.0) $ 66.1
===========================================================================================================================
Diluted net income per share $ 1.70 $ .97
Weighted average shares
outstanding (in millions) 68.0 68.0
EBITDA (6) $ 561.9 $ 283.5 - $ 845.4 $ (14.8) $ 830.6
===========================================================================================================================
</TABLE>
(1) The UT Automotive historical information represents amounts derived from
the audited results of operations for UT Automotive's fiscal year ended
December 31, 1998. Certain amounts have been reclassified to conform to
Lear's presentation.
(2) The Delphi Seating pro forma information reflects (i) Delphi Seating
historical unaudited results of operations for the period from January 1,
1998 through September 1, 1998, the date on which Delphi Seating was
acquired by Lear and (ii) adjustments to reflect the elimination of net
sales between Delphi Seating and Lear, estimated interest on borrowings to
finance the acquisition of Delphi Seating, amortization of goodwill from
the acquisition of Delphi Seating, income tax effects of the adjustments
and the elimination of items with no continuing impact on Lear's results of
operations, including the capitalization of fixed asset purchases which
were accounted for as impaired assets by Delphi Seating, operating losses
at plants which were not included in the acquisition, a charge related to
the employee benefit obligations not assumed by Lear and the elimination of
certain expenses allocated from the parent.
(3) The adjustment to amortization represents the following:
<TABLE>
<CAPTION>
=========================================================================================================================
Year Ended
December 31, 1998
- ---------------------------------------------------------------------------------------------------------------------------
(Dollars in millions)
<S> <C>
Amortization of goodwill from the acquisition of UT Automotive (over 40 years) $ 33.2
Elimination of the historical goodwill amortization of UT Automotive (13.0)
- ---------------------------------------------------------------------------------------------------------------------------
$ 20.2
=========================================================================================================================
</TABLE>
(4) The adjustment to interest expense represents the following:
<TABLE>
<CAPTION>
=========================================================================================================================
Year Ended
December 31, 1998
- ---------------------------------------------------------------------------------------------------------------------------
(Dollars in millions)
<S> <C>
Estimated interest on borrowings under our primary credit facilities to finance
the UT Automotive acquisition $ 145.7
Other changes in interest expense, commitment fees and amortization of
deferred finance fees due to the new credit facilities and the amendment and restatement
of our prior senior credit facility 15.0
Elimination of interest expense on UT Automotive intercompany debt retired upon acquisition (20.3)
- ---------------------------------------------------------------------------------------------------------------------------
$ 140.4
===========================================================================================================================
</TABLE>
(5) Reflects the income tax effects of the operating and financing adjustments.
(6) "EBITDA" is operating income plus depreciation and amortization. EBITDA
does not represent and should not be considered as an alternative to net
income or cash flow from operations as determined by generally accepted
accounting principles. EBITDA includes the effect of the $133 million
restructuring and other charges ($92.5 million or $1.36 per diluted share,
after tax).
33
<PAGE> 33
UNAUDITED PRO FORMA CONSOLIDATED BALANCE SHEET
AS OF DECEMBER 31, 1998
<TABLE>
<CAPTION>
===========================================================================================================================
Acquisition Operating and
Lear UT Automotive and Valuation Financing
Historical Historical(1) of UT Automotive(2) Adjustments Pro Forma
- ---------------------------------------------------------------------------------------------------------------------------
(Dollars in millions)
ASSETS
Current Assets:
<S> <C> <C> <C> <C> <C>
Cash and cash equivalents $ 30.0 $ 43.4 $(2,312.9) $2,312.9(4) $ 73.4
Accounts receivable, net 1,373.9 575.2 - - 1,949.1
Inventories 349.6 170.7 - - 520.3
Recoverable customer engineering and tooling 221.4 - - - 221.4
Other current assets 223.1 70.0 - - 293.1
- -----------------------------------------------------------------------------------------------------------------------
2,198.0 859.3 (2,312.9) 2,312.9 3,057.1
- -----------------------------------------------------------------------------------------------------------------------
Property, plant and equipment, net 1,182.3 709.7 - - 1,892.0
- -----------------------------------------------------------------------------------------------------------------------
Goodwill and other intangibles, net 2,019.8 333.1 993.5 - 3,346.4
Other 277.2 85.3 (26.7)(3) 18.6(5) 354.4
- -----------------------------------------------------------------------------------------------------------------------
$ 5,677.3 $ 1,987.4 $(1,346.1) $2,331.5 $ 8,650.1
=======================================================================================================================
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities:
Short-term borrowings $ 82.7 $ 7.8 $ - $ - $ 90.5
Accounts payable and drafts 1,600.8 377.0 - - 1,977.8
Accrued liabilities 797.5 193.5 (15.2)(3) - 975.8
Current portion of long-term debt 16.5 1.6 - - 18.1
- -----------------------------------------------------------------------------------------------------------------------
2,497.5 579.9 (15.2) - 3,062.2
Long-Term Liabilities:
Long-term debt 1,463.4 5.2 - 2,331.5(6) 3,800.1
Deferred national income taxes 39.0 38.4 - - 77.4
Other 377.4 98.9 (65.9)(3) - 410.4
- -----------------------------------------------------------------------------------------------------------------------
1,879.8 142.5 (65.9) 2,331.5 4,287.9
Stockholders' Equity 1,300.0 1,265.0 (1,265.0) - 1,300.0
- -----------------------------------------------------------------------------------------------------------------------
$ 5,677.3 $ 1,987.4 $(1,346.1) $ 2,331.5 $8,650.1
=======================================================================================================================
</TABLE>
(1) The UT Automotive historical information represents amounts obtained from
the audited balance sheet of UT Automotive as of December 31, 1998.
Certain amounts have been reclassified to conform to Lear's presentaion.
(2) Assumes a purchase price of $2,312.9 million which consists of
$2,300.0 million to acquire all of the common stock of UT Automotive and
$12.9 million to pay estimated fees and expenses related to the acquisition
of UT Automotive. The acquisition of UT Automotive was accounted for using
the purchase method of accounting, and the total purchase price was
allocated first to assets and liabilities based on their respective fair
values, with the remainder ($1,326.6 million) allocated to goodwill. The
adjustment to stockholders' equity reflects the elimination of UT
Automotive's equity. The allocation of the purchase price above is based on
historical costs and management's estimates which may differ from the final
allocation due to appraisals of fixed assets and the finalization of plans
of restructuring.
(3) Represents the elimination of certain items which are being retained by the
seller of UT Automotive.
(4) Reflects proceeds of borrowings under our primary credit facilities of
$2,312.9 million.
(5) Reflects the capitalization of fees incurred in establishing our new credit
facilities of $18.6 million.
(6) Reflects the effects of the Transactions as follows:
<TABLE>
<CAPTION>
===========================================================================================================================
<S> <C>
Borrowings under our primary credit facilities to finance the acquisition of UT
Automotive $ 2,312.9
Borrowings under our primary credit facilities to pay fees and expenses incurred
in establishing the new credit facilities 18.6
- ---------------------------------------------------------------------------------------------------------------------------
$ 2,331.5
===========================================================================================================================
</TABLE>
34
<PAGE> 34
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
C. Exhibits
10.1 Amended and Restated Credit and Guarantee Agreement, dated as
of May 4, 1999, among Lear, Lear Corporation Canada Ltd., the
Foreign Subsidiary Borrowers (as defined therein), the Lenders
Party thereto, Bankers Trust Company and Bank of America National
Trust & Savings Association, as Co-Syndication Agents, The Bank of
Nova Scotia, as Documentation Agent and Canadian Administrative
Agent, and The Chase Manhattan Bank, as General Administrative
Agent;
10.2 Interim Term Loan Agreement, dated as of May 4, 1999, among
Lear, the Lenders parties thereto, Citicorp USA, Inc. and Credit
Suisse First Boston, as Co-Syndication Agents, Deutsche Bank AG New
York Branch, as Documentation Agent, the other Agents named
therein, and The Chase Manhattan Bank, as Administrative Agent;
10.3 Revolving Credit and Term Loan Agreement, dated as of May 4,
1999, among Lear, certain of its Foreign Subsidiaries, the Lenders
parties thereto, Citicorp USA, Inc. and Morgan Stanley Senior
Funding, Inc., as Co-Syndication Agents, Toronto Dominion (Texas),
Inc., as Documentation Agent, the other Agents named therein, and
The Chase Manhattan Bank, as Administrative Agent;
10.4 Stock Purchase Agreement dated as of March 16, 1999 by and between
Nevada Bond Investment Corp. II and Lear Corporation (incorporated
by reference to Exhibit 99.1 to the Company's Current Report on
Form 8-K dated March 16, 1999).
23.1 Consent of PricewaterhouseCoopers LLP
53
<PAGE> 35
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.
LEAR CORPORATION
/s/ Donald J. Stebbins
-------------------------------
Donald J. Stebbins
Senior Vice President and
Chief Financial Officer
May 6, 1999
<PAGE> 36
INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION
- ----------- -----------
10.1 Amended and Restated Credit and Guarantee Agreement,
dated as of May 4, 1999, among Lear, Lear Corporation
Canada Ltd., the Foreign Subsidiary Borrowers (as defined
therein), the Lenders party thereto, Bankers Trust Company
and Bank of America National Trust & Savings Association,
as Co-Syndication Agents, The Bank of Nova Scotia, as
Documentation Agent and Canadian Administrative Agent, and
The Chase Manhattan Bank, as General Administrative Agent.
10.2 Interim Term Loan Agreement, dated as of May 4, 1999,
among Lear, the Lenders parties thereto. Citicorp USA, Inc.
and Credit Suisse First Boston, as Co-Syndication Agents,
Deutsche Bank AG New York Branch, as Documentation Agent,
the other Agents named therein, and The Chase Manhattan
Bank, as Administrative Agent.
10.3 Revolving Credit and Term Loan Agreement, dated as of
May 4, 1999, among Lear, certain of its Foreign
Subsidiaries, the Lenders parties thereto, Citicorp USA,
Inc. and Morgan Stanley Senior Funding, Inc., as
Co-Syndication Agents, Toronto Dominion (Texas), Inc., as
Documentation Agent, the other Agents named therein, and
The Chase Manhattan Bank, as Administrative Agent.
10.4 Stock Purchase Agreement dated as of March 16, 1999
by and between Nevada Bond Investment Corp. II and Lear
Corporation (incorporated by reference to Exhibit 99.1 to
the Company's Current Report on Form 8-K dated March 16,
1999).
23.1 Consent of PricewaterhouseCoopers LLP
36
<PAGE> 1
EXHIBIT 10.1
EXECUTION COPY
================================================================================
$2,100,000,000
SECOND AMENDED AND RESTATED
CREDIT AND GUARANTEE AGREEMENT
Dated as of May 4, 1999
among
LEAR CORPORATION,
LEAR CORPORATION CANADA LTD.,
THE FOREIGN SUBSIDIARY BORROWERS,
The Lenders Party Hereto,
BANKERS TRUST COMPANY
and
BANK OF AMERICA NT & SA,
as Co-Syndication Agents,
THE BANK OF NOVA SCOTIA,
as Documentation Agent and Canadian Administrative Agent
and
THE CHASE MANHATTAN BANK,
as General Administrative Agent
------------------------------------
CHASE SECURITIES INC.,
as Sole Book Manager and Sole Lead Arranger
================================================================================
<PAGE> 2
i
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
SECTION 1. DEFINITIONS.................................................................................1
1.1 Defined Terms.......................................................................................1
1.2 Other Definitional Provisions......................................................................36
SECTION 2. AMOUNT AND TERMS OF U.S. REVOLVING CREDIT
COMMITMENTS.............................................................................36
2.1 U.S. Revolving Credit Commitments..................................................................36
2.2 Repayment of U.S. Revolving Credit Loans; Evidence of Debt.........................................36
2.3 Procedure for U.S. Revolving Credit Borrowing......................................................37
2.4 Termination or Reduction of U.S. Revolving Credit Commitments......................................38
2.5 Borrowings of U.S. Revolving Credit Loans and Refunding of Loans...................................38
SECTION 3. AMOUNT AND TERMS OF SWING LINE
COMMITMENTS.............................................................................41
3.1 Swing Line Commitments.............................................................................41
3.2 Procedure for Swing Line Borrowings; Interest Rate.................................................41
3.3 Repayment of Swing Line Loans; Evidence of Debt....................................................42
3.4 Refunding of Swing Line Borrowings.................................................................43
3.5 Participating Interests............................................................................43
SECTION 4. AMOUNT AND TERMS OF CAF ADVANCES...........................................................44
4.1 CAF Advances.......................................................................................44
4.2 Procedure for CAF Advance Borrowing................................................................44
4.3 CAF Advance Payments...............................................................................47
4.4 Evidence of Debt...................................................................................48
4.5 Certain Restrictions...............................................................................48
SECTION 5. AMOUNT AND TERMS OF THE CANADIAN
COMMITMENTS.............................................................................48
5.1 Canadian Revolving Credit Commitments..............................................................48
5.2 Repayment of Canadian Revolving Credit Loans; Evidence of Debt.....................................49
5.3 Procedure for Canadian Revolving Credit Borrowing..................................................50
5.4 Termination or Reduction of Canadian Revolving Credit Commitments..................................50
SECTION 6. AMOUNT AND TERMS OF CANADIAN
ACCEPTANCE FACILITY.....................................................................51
6.1 Acceptance Commitments.............................................................................51
6.2 Creation of Acceptances............................................................................51
6.3 Discount of Acceptances............................................................................52
</TABLE>
- i -
<PAGE> 3
ii
<TABLE>
<S> <C>
6.4 Stamping Fees......................................................................................53
6.5 Acceptance Reimbursement Obligations...............................................................53
6.6 Converting Canadian Revolving Credit Loans to Acceptances and Acceptances to
Canadian Revolving Credit Loans............................................................54
6.7 Allocation of Acceptances..........................................................................55
6.8 Special Provisions Relating to Acceptance Notes....................................................55
6.9 Existing Acceptances and Acceptance Notes..........................................................56
SECTION 7. AMOUNT AND TERMS OF MULTICURRENCY
COMMITMENT..............................................................................56
7.1 Multicurrency Commitments..........................................................................56
7.2 Repayment of Multicurrency Loans; Evidence of Debt.................................................57
7.3 Procedure for Multicurrency Borrowing..............................................................57
7.4 Termination or Reduction of Multicurrency Commitments..............................................58
7.5 Redenomination and Alternative Currencies..........................................................58
SECTION 8. ALTERNATE CURRENCY FACILITIES .............................................................58
8.1 Terms of Alternate Currency Facilities.............................................................58
8.2 Reporting of Alternate Currency Outstandings.......................................................60
SECTION 9. LETTERS OF CREDIT..........................................................................60
9.1 Letters of Credit..................................................................................60
9.2 Procedure for Issuance of Letters of Credit........................................................61
9.3 Participating Interests............................................................................62
9.4 Payments...........................................................................................62
9.5 Further Assurances.................................................................................63
9.6 Obligations Absolute...............................................................................64
9.7 Letter of Credit Application.......................................................................64
9.8 Purpose of Letters of Credit.......................................................................64
9.9 Currency Adjustments...............................................................................65
SECTION 10. GENERAL PROVISIONS APPLICABLE TO LOANS .........................................................65
10.1 Interest Rates and Payment Dates..................................................................65
10.2 Conversion and Continuation Options...............................................................66
10.3 Minimum Amounts of Tranches.......................................................................67
10.4 Optional and Mandatory Prepayments................................................................67
10.5 Facility Fees; Other Fees.........................................................................69
10.6 Computation of Interest and Fees..................................................................70
10.7 Inability to Determine Interest Rate..............................................................71
10.8 Pro Rata Treatment and Payments...................................................................71
10.9 Illegality........................................................................................75
10.10 Requirements of Law..............................................................................76
10.11 Indemnity........................................................................................77
</TABLE>
- ii -
<PAGE> 4
iii
<TABLE>
<S> <C>
10.12 Taxes ...........................................................................................77
10.13 Assignment of Commitments Under Certain Circumstances............................................80
10.14 Use of Proceeds..................................................................................81
SECTION 11. REPRESENTATIONS AND WARRANTIES..................................................................81
11.1 Financial Statements..............................................................................81
11.2 No Change.........................................................................................81
11.3 Corporate Existence; Compliance with Law..........................................................81
11.4 Corporate Power; Authorization; Enforceable Obligations...........................................82
11.5 No Legal Bar; Senior Debt.........................................................................82
11.6 No Material Litigation............................................................................83
11.7 No Default........................................................................................83
11.8 Ownership of Property; Liens......................................................................83
11.9 Taxes ...........................................................................................83
11.10 Securities Law, etc. Compliance..................................................................84
11.11 ERISA ...........................................................................................84
11.12 Investment Company Act; Other Regulations........................................................84
11.13 Subsidiaries, etc. ..............................................................................84
11.14 Accuracy and Completeness of Information.........................................................85
11.15 Security Documents...............................................................................85
11.16 Patents, Copyrights, Permits and Trademarks......................................................85
11.17 Environmental Matters............................................................................85
11.18 Year 2000 Matters................................................................................87
SECTION 12. CONDITIONS PRECEDENT............................................................................87
12.1 Conditions to Closing Date........................................................................87
12.2 Conditions to Each Extension of Credit............................................................89
SECTION 13. AFFIRMATIVE COVENANTS...........................................................................90
13.1 Financial Statements..............................................................................90
13.2 Certificates; Other Information...................................................................91
13.3 Performance of Obligations........................................................................92
13.4 Conduct of Business, Maintenance of Existence and Compliance with Obligations
and Laws...................................................................................92
13.5 Maintenance of Property; Insurance................................................................92
13.6 Inspection of Property; Books and Records; Discussions............................................92
13.7 Notices...........................................................................................93
13.8 Maintenance of Liens of the Security Documents....................................................94
13.9 Environmental Matters.............................................................................94
13.10 Security Documents; Guarantee Supplement.........................................................95
SECTION 14. NEGATIVE COVENANTS..............................................................................96
14.1 Financial Covenants...............................................................................96
</TABLE>
- iii -
<PAGE> 5
iv
<TABLE>
<S> <C>
14.2 Limitation on Indebtedness........................................................................97
14.3 Limitation on Liens...............................................................................98
14.4 Limitation on Guarantee Obligations..............................................................100
14.5 Limitations on Fundamental Changes...............................................................101
14.6 Limitation on Sale of Assets.....................................................................101
14.7 Limitation on Dividends..........................................................................102
14.8 Limitation on Subsidiary and Secured Indebtedness.........................................103
14.9 Limitation on Investments, Loans and Advances....................................................103
14.10 Limitation on Optional Payments and Modification of Debt Instruments; Certain
Derivative Transactions...................................................................105
14.11 Transactions with Affiliates....................................................................105
14.12 Corporate Documents.............................................................................106
14.13 Fiscal Year.....................................................................................106
14.14 Limitation on Restrictions Affecting Subsidiaries...............................................106
14.15 Special Purpose Subsidiary......................................................................106
14.16 Interest Rate Agreements........................................................................107
SECTION 15. GUARANTEE......................................................................................107
15.1 Guarantee........................................................................................107
15.2 No Subrogation...................................................................................107
15.3 Amendments, etc. with respect to the Obligations; Waiver of Rights...............................108
15.4 Guarantee Absolute and Unconditional.............................................................108
15.5 Reinstatement....................................................................................109
15.6 Payments.........................................................................................109
SECTION 16. EVENTS OF DEFAULT..............................................................................110
SECTION 17. THE ADMINISTRATIVE AGENTS; THE
DOCUMENTATION AGENT AND CO-SYNDICATION
AGENTS.................................................................................113
17.1 Appointment......................................................................................113
17.2 Delegation of Duties.............................................................................114
17.3 Exculpatory Provisions...........................................................................114
17.4 Reliance by Administrative Agent.................................................................114
17.5 Notice of Default................................................................................115
17.6 Non-Reliance on Administrative Agents and Other Lender...........................................115
17.7 Indemnification..................................................................................116
17.8 Administrative Agents in their Individual Capacity...............................................116
17.9 Successor Administrative Agents..................................................................116
17.10 The Documentation Agent and Co-Syndication Agents...............................................117
17.11 Actions Under Security Documents................................................................117
17.12 Intercreditor Agreement.........................................................................117
</TABLE>
- iv -
<PAGE> 6
v
<TABLE>
<S> <C>
SECTION 18. MISCELLANEOUS..................................................................................117
18.1 Amendments and Waivers...........................................................................117
18.2 Notices..........................................................................................120
18.3 No Waiver; Cumulative Remedies...................................................................121
18.4 Survival of Representations and Warranties.......................................................121
18.5 Payment of Expenses and Taxes....................................................................121
18.6 Successors and Assigns; Participations and Assignments...........................................122
18.7 Adjustments; Set-Off.............................................................................126
18.8 Loan Conversion/Participations...................................................................126
18.9 Counterparts.....................................................................................128
18.10 Severability....................................................................................128
18.11 Integration.....................................................................................128
18.12 GOVERNING LAW...................................................................................128
18.13 Submission to Jurisdiction; Waivers.............................................................128
18.14 Acknowledgments.................................................................................129
18.15 WAIVERS OF JURY TRIAL...........................................................................129
18.16 Power of Attorney...............................................................................129
18.18 Release of Collateral and Guarantees............................................................130
18.19 Judgment........................................................................................131
18.20 Confidentiality.................................................................................131
18.21 Effect of Amendment and Restatement of the Existing Credit Agreement............................131
18.22 Conflicts.......................................................................................132
</TABLE>
- v -
<PAGE> 7
vi
SCHEDULES:
I Commitments; Addresses
II Foreign Subsidiary Borrowers
III Administrative Schedule
IV Security Documents
V [Reserved]
VI Subsidiaries
VII Hazardous Material
VIII Contractual Obligation Restrictions
EXHIBITS:
A Form of U.S. Revolving Credit Note
B Form of Canadian Revolving Credit Note
C Form of Draft
D Form of Power of Attorney
E Form of Acceptance Note
F Form of CAF Advance Request
G Form of CAF Advance Offer
H Form of CAF Advance Confirmation
I Form of Joinder Agreement
J Form of Alternate Currency Facility Addendum
K Form of Assignment and Acceptance
L Form of Opinion of Winston & Strawn
M Form of Opinion of Tory, Tory, Deslauriers & Binnington
N Matters to be Covered by Foreign Subsidiary Opinion
O Form of Subsidiary Guarantee
P Form of Intercreditor Agreement
Q Form of Pledge Agreement
- vi -
<PAGE> 8
SECOND AMENDED AND RESTATED CREDIT AND GUARANTEE AGREEMENT,
dated as of May 4, 1999, among LEAR CORPORATION, a Delaware corporation (the
"U.S. Borrower"), LEAR CORPORATION CANADA LTD., a company organized under the
laws of the province of Ontario, Canada (the "Canadian Borrower"), each FOREIGN
SUBSIDIARY BORROWER (as hereinafter defined) (together with the U.S. Borrower
and the Canadian Borrower, the "Borrowers"), the several banks and other
financial institutions from time to time parties hereto (the "Lenders"), BANKERS
TRUST COMPANY and BANK OF AMERICA NT & SA, as co-syndication agents (the
"Co-Syndication Agents"), THE BANK OF NOVA SCOTIA, a Canadian chartered bank, as
documentation agent (in such capacity, the "Documentation Agent") and Canadian
administrative agent for the Lenders hereunder (as hereinafter defined, in such
capacity, the "Canadian Administrative Agent"), and THE CHASE MANHATTAN BANK, a
New York banking corporation (as hereinafter defined, the "General
Administrative Agent"), as general administrative agent for the Lenders
hereunder.
W I T N E S S E T H :
WHEREAS, the U.S. Borrower, the Canadian Borrower and the
Foreign Subsidiary Borrowers are parties to the Amended and Restated Credit
Agreement, dated as of December 20, 1996 (as heretofore amended, supplemented or
otherwise modified, the "Existing Credit Agreement"), with the lenders parties
thereto, the managing agents, co-agents and lead managers identified therein,
The Bank of Nova Scotia, as Canadian administrative agent, and The Chase
Manhattan Bank, as general administrative agent; and
WHEREAS, the Borrowers have requested that the Existing Credit
Agreement be amended and restated;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements contained herein, the parties hereto agree that on the Closing
Date, as provided in subsection 18.21, the Existing Credit Agreement shall be
amended and restated in its entirety as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following
terms shall have the following meanings:
"ABR Loans": U.S. Revolving Credit Loans or Swing Line Loans,
the rate of interest applicable to which is based upon the Alternate Base Rate.
"Acceptance": a Draft drawn by the Canadian Borrower and
accepted by a Canadian Lender which is (a) denominated in Canadian Dollars, (b)
for a term of not less than 30 days nor more than 180 days and which matures
prior to the Revolving Credit Termination Date and (c) issuable and payable only
in Canada; provided that to the extent
<PAGE> 9
2
the context shall require, each Acceptance Note shall be deemed to be an
Acceptance; provided, further, that "Acceptance" includes a depository note
within the meaning of the Depository Bills and Notes Act (Canada) and a bill of
exchange within the meaning of the Bills of Exchange Act (Canada).
"Acceptance Note": as defined in subsection 6.8(b).
"Acceptance Purchase Price": in respect of an Acceptance of a
specified maturity, the result (rounded to the nearest whole cent, and with
one-half cent being rounded up) obtained by dividing (a) the face amount of such
Acceptance by (b) the sum of (i) one and (ii) the product of (A) the Reference
Discount Rate for Acceptances of the same maturity expressed as a decimal and
(B) a fraction, the numerator of which is the term to maturity of such
Acceptance and the denominator of which is equal to 365, where (b) above is
rounded to the fifth decimal place and 0.000005 is rounded up to 0.00001.
"Acceptance Reimbursement Obligations": the obligation of the
Canadian Borrower to the Canadian Lenders (a) to reimburse the Canadian Lenders
for maturing Acceptances pursuant to subsection 6.5 and (b) to make payments in
respect of the Acceptance Notes in accordance with the terms thereof.
"Acceptance Tranche": the collective reference to Acceptances
all of which were created on the same date and have the same maturity date.
"Acceptances to be Converted": as defined in subsection
18.8(a).
"Acquired Indebtedness": Indebtedness of a Person or any of
its Subsidiaries existing at the time such Person becomes a Subsidiary of the
U.S. Borrower or assumed in connection with the acquisition of assets from such
Person and not incurred by such Person in contemplation of such Person becoming
a Subsidiary of the U.S. Borrower or such acquisition, and any refinancings
thereof.
"Adjusted Aggregate Committed Outstandings": with respect to
each Lender, the Aggregate Committed Outstandings of such Lender, plus the
amount of any participating interests purchased by such Lender pursuant to
subsection 18.8, minus the amount of any participating interests sold by such
Lender pursuant to subsection 18.8.
"Adjustment Date": with respect to any fiscal quarter, (a) the
second Business Day following receipt by the General Administrative Agent of
both (i) the financial statements required to be delivered pursuant to
subsection 13.1(a) or (b), as the case may be, for the most recently completed
fiscal period and (ii) the compliance certificate required pursuant to
subsection 13.2(b) with respect to such financial statements or (b) if such
compliance certificate and financial statements have not been delivered in a
timely manner, the date upon which such compliance certificate and financial
statements were due; provided, however, that in the event that the Adjustment
Date is determined in accordance with the provisions of clause (b) of this
definition, then the date which is two
<PAGE> 10
3
Business Days following the date of receipt of the financial statements and
compliance certificate referenced in clause (a) of this definition also shall be
deemed to constitute an Adjustment Date.
"Administrative Agents": the collective reference to the
General Administrative Agent and the Canadian Administrative Agent.
"Administrative Schedule": Schedule III, which contains
interest rate definitions and administrative information in respect of each
Available Foreign Currency.
"Affiliate": of any Person, (a) any other Person (other than a
Wholly Owned Subsidiary of such Person) which, directly or indirectly, is in
control of, is controlled by, or is under common control with, such Person or
(b) any other Person who is a director or executive officer of (i) such Person,
(ii) any Subsidiary of such Person (other than a Wholly Owned Subsidiary) or
(iii) any Person described in clause (a) above. For purposes of this definition,
a Person shall be deemed to be "controlled by" such other Person if such other
Person possesses, directly or indirectly, power either to (A) vote 10% or more
of the securities having ordinary voting power for the election of directors of
such first Person or (B) direct or cause the direction of the management and
policies of such first Person whether by contract or otherwise.
"Aggregate Alternate Currency Outstandings": as at any date of
determination with respect to any Lender, an amount in the applicable Alternate
Currencies equal to the aggregate unpaid principal amount of such Lender's
Alternate Currency Loans.
"Aggregate Available Canadian Revolving Credit Commitments":
as at any date of determination with respect to all Canadian Lenders, an amount
in Canadian Dollars equal to the Available Canadian Revolving Credit Commitments
of all Canadian Lenders on such date.
"Aggregate Available Multicurrency Commitments": as at any
date of determination with respect to all Multicurrency Lenders, an amount in
U.S. Dollars equal to the Available Multicurrency Commitments of all
Multicurrency Lenders on such date.
"Aggregate Available U.S. Revolving Credit Commitments": as at
any date of determination with respect to all U.S. Lenders, an amount in U.S.
Dollars equal to the Available U.S. Revolving Credit Commitments of all U.S.
Lenders on such date.
"Aggregate Canadian Revolving Credit Outstandings": as at any
date of determination with respect to any Canadian Lender, an amount in Canadian
Dollars equal to the sum of the following, without duplication: (a) the
aggregate unpaid principal amount of such Canadian Lender's Canadian Revolving
Credit Loans on such date, (b) the aggregate undiscounted face amount of all
outstanding Acceptances of such Canadian Lender on such date and (c) the
aggregate unpaid principal amount of such Canadian Lender's Acceptance Notes on
such date.
<PAGE> 11
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"Aggregate Committed Outstandings": as at any date of
determination with respect to any Lender, an amount in U.S. Dollars equal to the
sum of (a) the Aggregate U.S. Revolving Credit Outstandings of such Lender, (b)
the U.S. Dollar Equivalent of the Aggregate Canadian Revolving Credit
Outstandings of such Lender and such Lender's Counterpart Lender, (c) the U.S.
Dollar Equivalent of the Aggregate Multicurrency Outstandings of such Lender and
(d) the U.S. Dollar Equivalent of the Aggregate Alternate Currency Outstandings
of such Lender.
"Aggregate Multicurrency Outstandings": as at any date of
determination with respect to any Lender, an amount in the applicable Available
Foreign Currencies equal to the aggregate unpaid principal amount of such
Lender's Multicurrency Loans.
"Aggregate Total Outstandings": as at any date of
determination with respect to any Lender, an amount in U.S. Dollars equal to the
sum of (a) the Aggregate U.S. Outstandings of such Lender, (b) the U.S. Dollar
Equivalent of the Aggregate Canadian Revolving Credit Outstandings of such
Lender and such Lender's Counterpart Lender, (c) the U.S. Dollar Equivalent of
the Aggregate Multicurrency Outstandings of such Lender and (d) the U.S. Dollar
Equivalent of the Aggregate Alternate Currency Outstandings of such Lender.
"Aggregate U.S. Outstandings": as at any date of determination
with respect to any U.S. Lender, an amount in U.S. Dollars equal to the sum of
(a) the Aggregate U.S. Revolving Credit Outstandings of such Lender on such date
and (b) the aggregate unpaid principal amount of such U.S. Lender's CAF Advances
on such date.
"Aggregate U.S. Revolving Credit Commitments": the aggregate
amount of the U.S. Revolving Credit Commitments of all the Lenders.
"Aggregate U.S. Revolving Credit Outstandings": as at any date
of determination with respect to any U.S. Lender, an amount in U.S. Dollars
equal to the sum of (a) the aggregate unpaid principal amount of such U.S.
Lender's U.S. Revolving Credit Loans on such date, (b) such U.S. Lender's U.S.
Revolving Credit Commitment Percentage of the aggregate unpaid principal amount
of all Swing Line Loans on such date and (c) such U.S. Lender's U.S. Revolving
Credit Commitment Percentage of the aggregate Letters of Credit Obligations.
"Agreement": this Second Amended and Restated Credit and
Guarantee Agreement, as the same may be amended, supplemented or otherwise
modified from time to time.
"Agreement Currency": as defined in subsection 18.19(b).
"Alternate Base Rate": for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the greatest of:
<PAGE> 12
5
(a) the U.S. Prime Rate in effect on such day; and
(b) the Federal Funds Effective Rate in effect on
such day plus 1/2 of 1%.
If for any reason the General Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error) that it is unable to
ascertain the Federal Funds Effective Rate for any reason, including the
inability or failure of the General Administrative Agent to obtain sufficient
quotations in accordance with the terms thereof, the Alternate Base Rate shall
be determined without regard to clause (b) above, until the circumstances giving
rise to such inability no longer exist. Any change in the Alternate Base Rate
due to a change in the U.S. Prime Rate or the Federal Funds Effective Rate shall
be effective as of the opening of business on the effective day of such change
in the U.S. Prime Rate or the Federal Funds Effective Rate, respectively.
"Alternate Currency": any currency other than U.S. Dollars
which is freely transferrable and convertible into U.S. Dollars and approved by
the General Administrative Agent.
"Alternate Currency Borrower": each Subsidiary of the U.S.
Borrower organized under the laws of a jurisdiction outside the United States
that the U.S. Borrower designates as an "Alternate Currency Borrower" in an
Alternate Currency Facility Addendum.
"Alternate Currency Facility": any Qualified Credit Facility
that the U.S. Borrower designates as an "Alternate Currency Facility" pursuant
to an Alternate Currency Facility Addendum.
"Alternate Currency Facility Addendum": an Alternate Currency
Facility Addendum received by the General Administrative Agent, substantially in
the form of Exhibit J, and conforming to the requirements of Section 8.
"Alternate Currency Facility Agent": with respect to each
Alternate Currency Facility, the Alternate Currency Lender acting as agent or
representative for the Alternate Currency Lenders parties thereto (and, in the
case of any Alternate Currency Facility to which only one Lender is a party,
such Lender).
"Alternate Currency Facility Maximum Borrowing Amount": as
defined in subsection 8.1(b).
"Alternate Currency Lender": any Lender (or, if applicable,
any affiliate, branch or agency thereof) party to an Alternate Currency
Facility.
"Alternate Currency Lender Maximum Borrowing Amount": as
defined in subsection 8.1(b).
<PAGE> 13
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"Alternate Currency Loan": any loan made pursuant to an
Alternate Currency Facility.
"Applicable Margin": at any time, the rate per annum set forth
below opposite the Level of Coverage Ratio most recently determined:
Level of Applicable
Coverage Ratio Margin
- -------------- -------
Level I:
Coverage Ratio is
less than 4.0 to 1 .625%
Level II:
Coverage Ratio is
equal to or greater than 4.0 to 1
but less than 5.0 to 1 .400%
Level III:
Coverage Ratio is
equal to or greater than 5.0 to 1
but less than 6.0 to 1 .300%
Level IV
Coverage Ratio is
greater than or equal to 6.0 to 1 .275%;
provided that (a) the Applicable Margin shall be that set forth above opposite
Level I from the Closing Date until the first Adjustment Date following the
Closing Date, (b) the Applicable Margin determined for any Adjustment Date shall
remain in effect until a subsequent Adjustment Date for which the Coverage Ratio
falls within a different Level, and (c) if the financial statements and related
compliance certificate for any fiscal period are not delivered by the date due
pursuant to subsections 13.1 and 13.2(b), the Applicable Margin shall be (i) for
the first 5 days subsequent to such due date, that in effect on the day prior to
such due date, and (ii) thereafter, that set forth above opposite Level I, in
either case, until the subsequent Adjustment Date.
"Assignee": as defined in subsection 18.6(c).
"Available Canadian Revolving Credit Commitment": as at any
date of determination with respect to any Canadian Lender (after giving effect
to the making and payment of any U.S. Revolving Credit Loans required to be made
on such date pursuant to subsection 2.5), an amount in U.S. Dollars equal to the
lesser of (a) the excess, if any, of (i) the amount of such Canadian Lender's
Canadian Revolving Credit Commitment in
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7
effect on such date over (ii) the U.S. Dollar Equivalent of the Aggregate
Canadian Revolving Credit Outstandings of such Canadian Lender on such date and
(b) the excess, if any, of (i) the amount of the U.S. Revolving Credit
Commitment of such Canadian Lender's Counterpart Lender on such date over (ii)
the Aggregate Committed Outstandings of such Canadian Lender's Counterpart
Lender on such date.
"Available Foreign Currencies": Pounds Sterling, euro, Swedish
Kroner, and any other available and freely-convertible non-U.S. Dollar currency
selected by the U.S. Borrower and approved by the General Administrative Agent
and the Majority Multicurrency Lenders in the manner described in subsection
18.1(b).
"Available Multicurrency Commitment": as at any date of
determination with respect to any Multicurrency Lender (after giving effect to
the making and payment of any U.S. Revolving Credit Loans required to be made on
such date pursuant to subsection 2.5), an amount in U.S. Dollars equal to the
lesser of (a) the excess, if any, of (i) the amount of such Multicurrency
Lender's Multicurrency Commitment in effect on such date over (ii) the U.S.
Dollar Equivalent of the Aggregate Multicurrency Outstandings of such
Multicurrency Lender on such date and (b) the excess, if any, of (i) the amount
of such Multicurrency Lender's U.S. Revolving Credit Commitment in effect on
such date over (ii) the Aggregate Committed Outstandings of such Multicurrency
Lender on such date.
"Available U.S. Revolving Credit Commitment": as at any date
of determination with respect to any U.S. Lender (after giving effect to the
making and payment of any U.S. Revolving Credit Loans required to be made on
such date pursuant to subsection 2.5), an amount in U.S. Dollars equal to the
excess, if any, of (a) the amount of such U.S. Lender's U.S. Revolving Credit
Commitment in effect on such date over (b) the Aggregate Committed Outstandings
of such U.S. Lender on such date.
"Bank Act (Canada)": the Bank Act (Canada), as amended from
time to time.
"Benefitted Lender": as defined in subsection 18.7.
"Board": the Board of Governors of the Federal Reserve System
(or any successor thereto).
"Bond Guarantee": the guarantee entered into by any Subsidiary
Guarantor in respect of up to an aggregate principal amount of $1,400,000,000 of
senior unsecured debt securities to be issued by the U.S. Borrower, all or a
portion of the proceeds of which will be used to repay in full the Interim Term
Loans outstanding under (and as defined in) the Interim Term Loan Agreement.
"Borrowers": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified in a notice
pursuant to subsection 2.3, 3.2, 4.2, 5.3 or 7.3 as a date on which a Borrower
requests the Lenders to make Loans
<PAGE> 15
8
hereunder or, with respect to a Request for Acceptances, the date with respect
to which the Canadian Borrower has requested the Canadian Lenders to accept
Drafts or, with respect to Alternate Currency Loans, the date on which an
Alternate Currency Borrower requests Alternate Currency Lenders to make
Alternate Currency Loans to such Alternate Currency Borrower pursuant to the
Alternate Currency Facility to which such Alternate Currency Borrower and
Alternate Currency Lenders are parties.
"Business Day": (a) when such term is used in respect of a day
on which a Loan in an Available Foreign Currency or Alternate Currency is to be
made, a payment is to be made in respect of such Loan, an Exchange Rate is to be
set in respect of such Available Foreign Currency or Alternate Currency or any
other dealing in such Available Foreign Currency or Alternate Currency is to be
carried out pursuant to this Agreement, such term shall mean a London Banking
Day which is also a day on which banks are open for general banking business in
(x) the city which is the principal financial center of the country of issuance
of such Available Foreign Currency or Alternate Currency (or, in the case of
Multicurrency Loans in Pounds Sterling, Paris) and (y) in the case of euro only,
Frankfurt am Main, Germany (or such other principal financial center as the
General Administrative Agent may from time to time designate for this purpose),
(b) when such term is used in respect of a day on which a Loan is to be made to
the Canadian Borrower or an Acceptance is to be created, a payment is to be made
in respect of such Loan or Acceptance, an Exchange Rate is to be set in respect
of Canadian Dollars or any other dealing in Canadian Dollars is to be carried
out pursuant to this Agreement, such term shall mean a day other than a
Saturday, Sunday or other day on which commercial banks in Toronto, Ontario are
authorized or required by law to close, (c) when such term is used to describe a
day on which a borrowing, payment or interest rate determination is to be made
in respect of a LIBO Rate CAF Advance, such day shall be a London Banking Day
and (d) when such term is used in any context in this Agreement (including as
described in the foregoing clauses (a), (b) and (c)), such term shall mean a day
which, in addition to complying with any applicable requirements set forth in
the foregoing clauses (a), (b) and (c), is a day other than a Saturday, Sunday
or other day on which commercial banks in New York City are authorized or
required by law to close; provided, that when such term is used for the purpose
of determining the date on which the Eurocurrency Rate is determined under this
Agreement for any Multicurrency Loan denominated in euro for any Interest Period
therefor and for purposes of determining the first and last day of any such
Interest Period, references in this Agreement to Business Days shall be deemed
to be references to Target Operating Days.
"CAF Advance": each CAF Advance made pursuant to subsection
4.1.
"CAF Advance Availability Period": the period from and
including the Closing Date to and including the date which is 7 days prior to
the Revolving Credit Termination Date.
"CAF Advance Confirmation": each confirmation by the U.S.
Borrower of its acceptance of CAF Advance Offers, which confirmation shall be
substantially in the form
<PAGE> 16
9
of Exhibit H and shall be delivered to the General Administrative Agent by
facsimile transmission.
"CAF Advance Interest Payment Date": as to each CAF Advance,
each interest payment date specified by the U.S. Borrower for such CAF Advance
in the related CAF Advance Request.
"CAF Advance Maturity Date": as to any CAF Advance, the date
specified by the U.S. Borrower pursuant to paragraph 4.2(d)(ii) in its
acceptance of the related CAF Advance Offer.
"CAF Advance Offer": each offer by a Lender to make CAF
Advances pursuant to a CAF Advance Request, which offer shall contain the
information specified in Exhibit G and shall be delivered to the General
Administrative Agent by telephone, immediately confirmed by facsimile
transmission.
"CAF Advance Request": each request by the U.S. Borrower for
Lenders to submit bids to make CAF Advances, which request shall contain the
information in respect of such requested CAF Advances specified in Exhibit F and
shall be delivered to the General Administrative Agent in writing, by facsimile
transmission, or by telephone, immediately confirmed by facsimile transmission.
"Canadian Administrative Agent": The Bank of Nova Scotia,
together with its affiliates, as administrative agent for the Canadian Lenders
under this Agreement and the other Loan Documents, and any successor thereto
appointed pursuant to subsection 17.9.
"Canadian Base Rate": at any day, the higher of (a) the rate
of interest per annum publicly announced from time to time by the Canadian
Administrative Agent (and in effect on such day) as its reference rate for U.S.
Dollar commercial loans made in Canada, as adjusted automatically from time to
time and without notice to any of the Borrowers upon change by the Canadian
Administrative Agent and (b) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1%.
"Canadian Base Rate Loans": all Canadian Revolving Credit
Loans denominated in U.S. Dollars, which shall bear interest at a rate based
upon the Canadian Base Rate.
"Canadian Borrower": as defined in the preamble hereto.
"Canadian Dollars" and "C$": dollars in the lawful currency of
Canada.
"Canadian Dollar Equivalent": with respect to an amount
denominated in any currency other than Canadian Dollars, the equivalent in
Canadian Dollars of such amount determined at the Exchange Rate on the date of
determination of such equivalent.
"Canadian Lenders": the Lenders listed in Part B of Schedule I
hereto.
<PAGE> 17
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"Canadian Reference Lenders": the collective reference to the
Schedule I Canadian Reference Lenders and the Schedule II Canadian Reference
Lenders.
"Canadian Revolving Credit Commitment": as to any Canadian
Lender at any time, its obligation to make Canadian Revolving Credit Loans to,
and/or create Acceptances and discount on behalf of (or, in lieu thereof, to
make loans pursuant to the Acceptance Notes to), the Canadian Borrower, in an
aggregate amount not to exceed at any one time outstanding the Canadian Dollar
Equivalent of the lesser of (a) the U.S. Dollar amount set forth opposite such
Canadian Lender's name in Schedule I under the heading "Canadian Revolving
Credit Commitment", and (b) the U.S. Revolving Credit Commitment of such
Canadian Lender's Counterpart Lender, in each case as such amount may be reduced
from time to time as provided in subsection 5.4 and the other applicable
provisions hereof.
"Canadian Revolving Credit Commitment Percentage": as to any
Canadian Lender at any time, the percentage which such Canadian Lender's
Canadian Revolving Credit Commitment then constitutes of the aggregate Canadian
Revolving Credit Commitments (or, if the Canadian Revolving Credit Commitments
have terminated or expired, the percentage which (a) the Aggregate Canadian
Revolving Credit Outstandings of such Canadian Lender at such time constitutes
of (b) the Aggregate Canadian Revolving Credit Outstandings of all Canadian
Lenders at such time).
"Canadian Revolving Credit Loan": as defined in subsection
5.1.
"Canadian Revolving Credit Note": as defined in subsection
5.2(e).
"Capital Stock": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants, rights or options to purchase any of the foregoing.
"Cash Equivalents": (a) securities issued or unconditionally
guaranteed or insured by the United States Government or the Canadian Government
or any agency or instrumentality thereof having maturities of not more than
twelve months from the date of acquisition, (b) securities issued or
unconditionally guaranteed or insured by any state of the United States of
America or province of Canada or any agency or instrumentality thereof having
maturities of not more than twelve months from the date of acquisition and
having one of the two highest ratings obtainable from either S&P or Moody's, (c)
time deposits, certificates of deposit and bankers' acceptances having
maturities of not more than twelve months from the date of acquisition, in each
case with any U.S. Lender or Canadian Lender or with any commercial bank
organized under the laws of the United States of America or any state thereof or
the District of Columbia, Japan, Canada or any member of the European Economic
Community or any U.S. branch of a foreign bank having at the date of acquisition
capital and surplus of not less than $100,000,000, (d) repurchase obligations
with a term of not more than seven days for underlying securities
<PAGE> 18
11
of the types described in clauses (a), (b) and (c) entered into with any bank
meeting the qualifications specified in clause (c) above, (e) commercial paper
issued by the parent corporation of any U.S. Lender and commercial paper rated,
at the time of acquisition, at least A-1 or the equivalent thereof by S&P or P-1
or the equivalent thereof by Moody's and in either case maturing within twelve
months after the date of acquisition, (e) deposits maintained with money market
funds having total assets in excess of $300,000,000, (f) demand deposit accounts
maintained in the ordinary course of business with banks or trust companies, (g)
temporary deposits, of amounts received in the ordinary course of business
pending disbursement of such amounts, in demand deposit accounts in banks
outside the United States and (h) deposits in mutual funds which invest
substantially all of their assets in preferred equities issued by U.S.
corporations rated at least AA (or the equivalent thereof) by S&P.
"CDOR Rate": the rate per annum determined by the Canadian
Administrative Agent by reference to the average rate quoted on the Reuters
Monitor Screen, Page "CDOR" (or such other Page as may replace such Page on such
screen for the purpose of displaying Canadian interbank bid rates for Canadian
Dollar bankers' acceptances with a 90 day term as of 10:00 a.m. (Toronto time)
one Business Day prior to the first day of such 90 day term. If for any reason
the Reuters Monitor Screen rates are unavailable, CDOR Rate means the rate of
interest determined by the Canadian Administrative Agent which is equal to the
arithmetic mean of the rates quoted by such reference banks as may be specified
from time to time by the Canadian Administrative Agent, after consultation with
the Canadian Borrower, in respect of Canadian Dollar bankers' acceptances with a
90 day term as of 10:00 a.m. one Business Day prior to the first day of such 90
day term.
"Chase": The Chase Manhattan Bank, a New York banking
corporation.
"Chase Delaware": Chase Manhattan Bank Delaware.
"Closing Date": the date on which all of the conditions
precedent set forth in subsection 12.1 shall have been satisfied or waived.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral": any collateral in which a security interest is
created pursuant to any Security Document.
"Commercial Letters of Credit": as defined in subsection
9.1(a).
"Commitments": the collective reference to the U.S. Revolving
Credit Commitments, the Canadian Revolving Credit Commitments and the
Multicurrency Commitments.
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"Committed Outstandings Percentage": on any date with respect
to any Lender, the percentage which the Adjusted Aggregate Committed
Outstandings of such Lender constitutes of the Adjusted Aggregate Committed
Outstandings of all Lenders.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the U.S. Borrower within the
meaning of Section 4001 of ERISA or is part of a group which includes the U.S.
Borrower and which is treated as a single employer under Section 414 of the
Code.
"Consolidated Assets": at a particular date, all amounts which
would be included under total assets on a consolidated balance sheet of the U.S.
Borrower and its Subsidiaries as at such date, determined in accordance with
GAAP.
"Consolidated Indebtedness": at a particular date, all
Indebtedness of the U.S. Borrower and its Subsidiaries which would be included
under indebtedness on a consolidated balance sheet of the U.S. Borrower and its
Subsidiaries as at such date, determined in accordance with GAAP, less any cash
of the U.S. Borrower and its Subsidiaries as at such date.
"Consolidated Interest Expense": for any fiscal period, the
amount which would, in conformity with GAAP, be set forth opposite the caption
"interest expense" (or any like caption) on a consolidated income statement of
the U.S. Borrower and its Subsidiaries for such period; provided, that
Consolidated Interest Expense for any period shall (a) exclude (i) fees payable
in respect of such period under subsection 10.5 of this Agreement and similar
fees payable in respect of such period under the Other Credit Agreements, and
(ii) any amortization or write-off of deferred financing fees during such period
and (b) include any interest income during such period.
"Consolidated Net Income": for any fiscal period, the
consolidated net income (or deficit) of the U.S. Borrower and its Subsidiaries
for such period (taken as a cumulative whole), determined in accordance with
GAAP; provided that (a) any provision for post-retirement medical benefits, to
the extent such provision calculated under FAS 106 exceeds actual cash outlays
calculated on the "pay as you go" basis, shall not to be taken into account, and
(b) there shall be excluded (i) the income (or deficit) of any Person accrued
prior to the date it becomes a Subsidiary or is merged into or consolidated with
the U.S. Borrower or any Subsidiary, (ii) the income (or deficit) of any Person
(other than a Subsidiary) in which the U.S. Borrower or any Subsidiary has an
ownership interest, except to the extent that any such income has been actually
received by the U.S. Borrower or such Subsidiary in the form of dividends or
similar distributions, (iii) the undistributed earnings of any Subsidiary to the
extent that the declaration or payment of dividends or similar distributions by
such Subsidiary is not at the time permitted by the terms of any Contractual
Obligation or Requirement of Law (other than (a) prior to January 1, 2000, any
Contractual Obligation or Requirement of Law in effect on the Closing Date
affecting Subsidiaries acquired in the UT Automotive Acquisition, and (b) any
Requirement of Law of Germany) applicable to such Subsidiary, and (iv) in the
case of a successor to the
<PAGE> 20
13
U.S. Borrower or any Subsidiary by consolidation or merger or as a transferee of
its assets, any earnings of the successor corporation prior to such
consolidation, merger or transfer of assets; provided, further that the
exclusions in clauses (i) and (iv) of this definition shall not apply to the
mergers or consolidations of the U.S. Borrower or its Subsidiaries with their
respective Subsidiaries.
"Consolidated Operating Profit": for any fiscal period,
Consolidated Net Income for such period excluding (a) extraordinary gains and
losses arising from the sale of material assets and other extraordinary and/or
non-recurring gains and losses (including the restructuring and related charges
in the amount of $133,000,000 recorded by the U.S. Borrower in the fourth
quarter of fiscal year 1998), (b) charges, premiums and expenses associated with
the discharge of Indebtedness, (c) charges relating to FAS 106, (d) license fees
(and any write-offs thereof), (e) stock compensation expense, (f) deferred
financing fees (and any write-offs thereof), (g) write-offs of goodwill, (h)
foreign exchange gains and losses, (i) miscellaneous income and expenses and (j)
miscellaneous gains and losses arising from the sale of assets plus, to the
extent deducted in determining Consolidated Net Income, the excess of (i) the
sum of (A) Consolidated Interest Expense, (B) any expenses for taxes, (C)
depreciation and amortization expense and (D) minority interests in income of
Subsidiaries over (ii) net equity earnings in Affiliates (excluding
Subsidiaries). For purposes of calculating the ratio set forth in subsection
14.1(b), Consolidated Operating Profit for any fiscal period shall in any event
include the Consolidated Operating Profit for such fiscal period of any entity
acquired by the U.S. Borrower or any of its Subsidiaries during such period; and
for purposes of calculating the ratio set forth in subsections 14.1(a) and 18.18
for the periods of four consecutive fiscal quarters ending on or about 6/30/99,
9/30/99, 12/31/99 and 3/31/00, Consolidated Operating Profit shall include the
Consolidated Operating Profit during such periods of the entities acquired by
the U.S. Borrower in the UT Automotive Acquisition.
"Consolidated Revenues": for any fiscal period, the
consolidated revenues of the U.S. Borrower and its Subsidiaries for such period,
determined in accordance with GAAP.
"Continuing Directors": the directors of the U.S. Borrower on
the Closing Date and each other director, if such other director's nomination
for election to the Board of Directors of the U.S. Borrower is recommended by a
majority of the then Continuing Directors.
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Conversion Date": any date on which either (a) an Event of
Default under Section 16(i) has occurred or (b) the Commitments shall have been
terminated prior to the Revolving Credit Termination Date and/or the Loans shall
have been declared immediately due and payable, in either case pursuant to
Section 16.
<PAGE> 21
14
"Conversion Sharing Percentage": on any date with respect to
any Lender and any Loans or Acceptances, as the case may be, of such Lender
outstanding in any currency other than U.S. Dollars, the percentage of such
Loans or Acceptances, as the case may be, such that, after giving effect to the
conversion of such Loans or Acceptances, as the case may be, to U.S. Dollars and
the purchase and sale by such Lender of participating interests as contemplated
by subsection 18.8, the Committed Outstandings Percentage of such Lender will
equal such Lender's U.S. Revolving Credit Commitment Percentage on such date
(calculated immediately prior to giving effect to any termination or expiration
of the U.S. Revolving Credit Commitments on the Conversion Date).
"Converted Acceptances": as defined in subsection 18.8(a).
"Converted Loans": as defined in subsection 18.8(a).
"Co-Syndication Agents": as defined in the preamble hereto.
"Counterpart Lender": (a) as to any U.S. Lender, the Canadian
Lender (if any) set forth opposite such U.S. Lender's name in Schedule I under
the heading "Counterpart Lender" and (b) as to any Canadian Lender, the U.S.
Lender set forth opposite such Canadian Lender's name in Schedule I under the
heading "Counterpart Lender".
"Coverage Ratio": for any Adjustment Date the ratio of (a)
Consolidated Operating Profit for the four fiscal quarters most recently ended
to (b) Consolidated Interest Expense for the four fiscal quarters most recently
ended.
"CSI": Chase Securities Inc.
"Currency Agreement": any foreign exchange contract, currency
swap agreement, futures contract, option contract, synthetic cap or other
similar agreement or arrangement designed to protect the U.S. Borrower or any
Subsidiary against fluctuations in currency values.
"Currency Agreement Obligations": all obligations of the U.S.
Borrower or any Subsidiary to any financial institution under any one or more
Currency Agreements.
"Default": any of the events specified in Section 16, whether
or not any requirement for the giving of notice, the lapse of time, or both, or
any other condition, has been satisfied.
"Documentation Agent": as defined in the preamble hereto.
"Dollars", "U.S. Dollars" and "$": dollars in lawful currency
of the United States of America.
<PAGE> 22
15
"Domestic Loan Party": each Loan Party that is organized under
the laws of any jurisdiction of the United States.
"Domestic Pledge Agreements": the collective reference to all
Pledge Agreements pursuant to which the Capital Stock of any Domestic Subsidiary
is pledged.
"Domestic Subsidiary": any Subsidiary other than a Foreign
Subsidiary.
"Draft": a draft substantially in the form of Exhibit C or in
such other form as the Canadian Administrative Agent may from time to time
reasonably request (or to the extent the context shall require, an Acceptance
Note, delivered in lieu of a draft), as the same may be amended, supplemented or
otherwise modified from time to time.
"EMU": Economic and Monetary Union as contemplated in the
Treaty on European Union.
"EMU Legislation": legislative measures of the European Union
for the introduction of, changeover to or operation of the euro in one or more
member states.
"Environmental Complaint": any complaint, order, citation,
notice or other written communication from any Person with respect to the
existence or alleged existence of a violation of any Environmental Laws or legal
liability resulting from air emissions, water discharges, noise emissions,
Hazardous Material or any other environmental, health or safety matter.
"Environmental Laws": any and all applicable Federal, foreign,
state, provincial, local or municipal laws, rules, orders, regulations,
statutes, ordinances, codes, decrees, requirements of any Governmental Authority
and any and all common law requirements, rules and bases of liability
regulating, relating to or imposing liability or standards of conduct concerning
pollution or protection of the environment or the Release or threatened Release
of Hazardous Materials, as now or hereafter in effect.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"euro": the single currency of the European Union as
constituted by the Treaty on European Union and as referred to in EMU
Legislation.
"Eurocurrency Liabilities": at any time, the aggregate of the
rates (expressed as a decimal fraction) of any reserve requirements in effect at
such time (including, without limitation, basic, supplemental, marginal and
emergency reserves under any regulations of the Board or other Governmental
Authority having jurisdiction with respect thereto) dealing with reserve
requirements prescribed for eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D of the Board) maintained by a member
bank of the Federal Reserve System.
<PAGE> 23
16
"Eurocurrency Rate": with respect to each Interest Period
pertaining to a Multicurrency Loan, the Eurocurrency Rate determined for such
Interest Period and the Available Foreign Currency in which such Multicurrency
Loan is denominated in the manner set forth in the Administrative Schedule.
"Eurodollar Loans": U.S. Revolving Credit Loans the rate of
interest applicable to which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each Interest Period
pertaining to a Eurodollar Loan, the rate per annum equal to the average
(rounded upward to the nearest 1/16th of 1%) of the respective rates notified to
the General Administrative Agent by each of the U.S. Reference Lenders as the
rate at which such U.S. Reference Lender is offered Dollar deposits at or about
10:00 a.m., New York City time, two Business Days prior to the beginning of such
Interest Period,
(a) in the interbank eurodollar market where the eurodollar
and foreign currency exchange operations in respect of its Eurodollar Loans then
are being conducted,
(b) for delivery on the first day of such Interest Period,
(c) for the number of days contained therein, and
(d) in an amount comparable to the amount of its Eurodollar
Loan to be outstanding during such Interest Period.
"euro unit": the currency unit of the euro as defined in the
EMU Legislation.
"Event of Default": any of the events specified in Section 16,
provided that any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Exchange Act": the Securities Exchange Act of 1934, as
amended.
"Exchange Rate": with respect to Canadian Dollars on any date,
the Bank of Canada noon spot rate on such date, and with respect to any other
non-U.S. Dollar currency on any date, the rate at which such currency may be
exchanged into U.S. Dollars, as set forth on such date on the relevant Reuters
currency page at or about 11:00 A.M., London time, on such date. In the event
that such rate does not appear on any Reuters currency page, the "Exchange Rate"
with respect to such non-U.S. Dollar currency shall be determined by reference
to such other publicly available service for displaying exchange rates as may be
agreed upon by the General Administrative Agent and the U.S. Borrower or, in the
absence of such agreement, such "Exchange Rate" shall instead be the General
Administrative Agent's spot rate of exchange in the interbank market where its
foreign currency exchange operations in respect of such non-U.S. Dollar
<PAGE> 24
17
currency are then being conducted, at or about 10:00 A.M., local time, on such
date for the purchase of U.S. Dollars with such non-U.S. Dollar currency, for
delivery two Business Days later; provided, that if at the time of any such
determination, no such spot rate can reasonably be quoted, the General
Administrative Agent may use any reasonable method as it deems applicable to
determine such rate, and such determination shall be conclusive absent manifest
error.
"Existing Credit Agreement": as defined in the recitals
hereto.
"Existing Letters of Credit": as defined in subsection 9.1(b).
"Extension of Credit": as to any Lender, the making of a Loan
by such Lender, the acceptance of a Draft or an Acceptance Note by such Lender
or the issuance of any Letter of Credit. For purposes of Section 12.2, it is
expressly understood and agreed that the following do not constitute Extensions
of Credit for purposes of this Agreement: (a) the conversions and continuations
of U.S. Revolving Credit Loans as or to Eurodollar Loans or ABR Loans pursuant
to subsection 10.2, (b) the substitution of maturing Acceptances with new
Acceptances, (c) the conversion of Acceptances to Canadian Revolving Credit
Loans, (d) the conversion of Canadian Revolving Credit Loans to Acceptances, (e)
the continuation of Multicurrency Loans for additional Interest Periods and (f)
the continuation of Alternate Currency Loans for additional interest periods.
"Facility Fee Rate": at any time, the rate per annum set forth
below opposite the Level of Coverage Ratio most recently determined:
Level of Facility
Coverage Ratio Fee Rate
- -------------- --------
Level I:
Coverage Ratio is
less than 4.0 to 1 0.250%
Level II:
Coverage Ratio is
equal to or greater than 4.0 to 1
but less than 5.0 to 1 0.225%
Level III:
Coverage Ratio is
equal to or greater than 5.0 to 1
but less than 6.0 to 1 0.175%
Level IV:
Coverage Ratio is 0.150%;
greater than or equal to 6.0 to 1
<PAGE> 25
18
provided that (a) the Facility Fee Rate shall be that set forth above opposite
Level I from the Closing Date until the first Adjustment Date following the
Closing Date, (b) the Facility Fee Rate determined for any Adjustment Date shall
remain in effect until a subsequent Adjustment Date for which the Coverage Ratio
falls within a different Level, and (c) if the financial statements and related
compliance certificate for any fiscal period are not delivered by the date due
pursuant to subsections 13.1 and 13.2(b), the Facility Fee Rate shall be (i) for
the first 5 days subsequent to such due date, that in effect on the day prior to
such due date, and (ii) thereafter, that set forth above opposite Level I, in
either case, until the subsequent Adjustment Date.
"Federal Funds Effective Rate": for any day, the weighted
average of the rates per annum on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day which is a Business Day,
the average of the quotations for the day of such transactions received by the
General Administrative Agent from three federal funds brokers of recognized
standing selected by it.
"Financing Lease": (a) any lease of property, real or
personal, the obligations under which are capitalized on a consolidated balance
sheet of the U.S. Borrower and its Subsidiaries and (b) any other such lease to
the extent that the then present value of the minimum rental commitment
thereunder should, in accordance with GAAP, be capitalized on a balance sheet of
the lessee.
"First Lender": as defined in subsection 18.8(c).
"Fixed Rate CAF Advance": any CAF Advance made pursuant to a
Fixed Rate CAF Advance Request.
"Fixed Rate CAF Advance Request": any CAF Advance Request
requesting the Lenders to offer to make CAF Advances at a fixed rate (as opposed
to a rate composed of the LIBO Rate plus (or minus) a margin).
"Foreign Letter of Credit": a Letter of Credit whose
beneficiary is a Person which is directly or indirectly extending credit to a
Foreign Subsidiary.
"Foreign Subsidiaries": each of the Subsidiaries so designated
on Schedule VI and any Subsidiaries organized outside the United States which
are created after the effectiveness hereof.
"Foreign Subsidiary Borrower": each Foreign Subsidiary listed
as a Foreign Subsidiary Borrower in Schedule II as amended from time to time in
accordance with subsection 18.1(b)(i).
<PAGE> 26
19
"Foreign Subsidiary Opinion": with respect to any Foreign
Subsidiary Borrower, a legal opinion of counsel to such Foreign Subsidiary
Borrower addressed to the Administrative Agents and the Lenders covering the
matters set forth on Exhibit N, with such assumptions, qualifications and
deviations therefrom as the General Administrative Agent shall approve (such
approval not to be unreasonably withheld).
"Funding Commitment Percentage": as at any date of
determination (after giving effect to the making and payment of any Loans made
on such date pursuant to subsection 2.5), with respect to any U.S. Lender, that
percentage which the Available U.S. Revolving Credit Commitment of such U.S.
Lender then constitutes of the Aggregate Available U.S. Revolving Credit
Commitments.
"GAAP": generally accepted accounting principles in the United
States of America in effect from time to time.
"General Administrative Agent": Chase, together with its
affiliates, as arranger of the Commitments and as general administrative agent
for the Lenders under this Agreement and the other Loan Documents, and any
successor thereto appointed pursuant to subsection 17.9.
"Governmental Authority": any nation or government, any state,
province or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guarantee Obligation": as to any Person, any obligation of
such Person guaranteeing or in effect guaranteeing any Indebtedness, leases,
dividends or other obligations (the "primary obligations") of any other Person
(the "primary obligor") in any manner, whether directly or indirectly,
including, without limitation, any obligation of such Person, whether or not
contingent (a) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (b) to advance or supply
funds (i) for the purchase or payment of any such primary obligation or (ii) to
maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor, (c) to purchase
property, securities or services primarily for the purpose of assuring the owner
of any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation or (d) otherwise to assure or hold harmless
the owner of any such primary obligation against loss in respect thereof;
provided, however, that the term Guarantee Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary course of
business. The amount of any Guarantee Obligation shall be deemed to be an amount
equal to the value as of any date of determination of the stated or determinable
amount of the primary obligation in respect of which such Guarantee Obligation
is made (unless such Guarantee Obligation shall be expressly limited to a lesser
amount, in which case such lesser amount shall apply) or, if not stated or
determinable, the value as of any date of determination of the maximum
reasonably anticipated liability in respect thereof as determined by such Person
in good faith.
<PAGE> 27
20
"Guarantor Supplement": a supplement to the Subsidiary
Guarantee, substantially in the form of Annex A to the Subsidiary Guarantee,
whereby a Subsidiary of the U.S. Borrower becomes a "Guarantor" under the
Subsidiary Guarantee.
"Hazardous Materials": any solid wastes, toxic or hazardous
substances, materials or wastes, defined, listed, classified or regulated as
such in or under any Environmental Laws, including, without limitation,
asbestos, petroleum or petroleum products (including gasoline, crude oil or any
fraction thereof), polychlorinated biphenyls, and urea- formaldehyde insulation,
and any other substance the presence of which may give rise to liability under
any Environmental Law.
"Indebtedness": of a Person, at a particular date, the sum
(without duplication) at such date of (a) indebtedness for borrowed money or for
the deferred purchase price of property or services in respect of which such
Person is liable as obligor, (b) indebtedness secured by any Lien on any
property or asset owned or held by such Person regardless of whether the
indebtedness secured thereby shall have been assumed by or is a primary
liability of such Person, (c) obligations of such Person under Financing Leases,
(d) the face amount of all letters of credit issued for the account of such
person and, without duplication, the unreimbursed amount of all drafts drawn
thereunder and (e) obligations (in the nature of principal or interest) of such
Person in respect of acceptances or similar obligations issued or created for
the account of such Person; but excluding (i) trade and other accounts payable
in the ordinary course of business in accordance with customary trade terms and
which are not overdue for more than 120 days or, if overdue for more than 120
days, as to which a dispute exists and adequate reserves in conformity with GAAP
have been established on the books of such Person, (ii) deferred compensation
obligations to employees and (iii) any obligations otherwise constituting
Indebtedness the payment of which such Person has provided for pursuant to the
terms of such Indebtedness or any agreement or instrument pursuant to which such
Indebtedness was incurred, by the irrevocable deposit in trust of an amount of
funds or a principal amount of securities, which deposit is sufficient, either
by itself or taking into account the accrual of interest thereon, to pay the
principal of and interest on such obligations when due.
"Industrial Revenue Bonds": industrial revenue bonds issued
for the benefit of the U.S. Borrower or its Subsidiaries and in respect of which
the U.S. Borrower or its Subsidiaries will be the source of repayment, provided
that such financings (including, without limitation, the indenture related
thereto) shall be in form and substance reasonably satisfactory to the Issuing
Lender that issues a Letter of Credit backing such Industrial Revenue Bonds.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section 4245 of
ERISA.
"Insolvent": pertaining to a condition of Insolvency.
<PAGE> 28
21
"Intercreditor Agreement": the Intercreditor Agreement,
substantially in the form of Exhibit P, to be entered into pursuant to
subsection 18.17, as amended or otherwise modified from time to time.
"Interest Payment Date": (a) as to any ABR Loan and any Prime
Rate Loan, the last day of each March, June, September and December to occur
while such Loan is outstanding, (b) as to any Eurodollar Loan or Multicurrency
Loan having an Interest Period of three months or less, the last day of such
Interest Period, (c) as to any Eurodollar Loan or Multicurrency Loan having an
Interest Period longer than three months, (i) each day which is three months, or
a whole multiple thereof, after the first day of such Interest Period and (ii)
the last day of such Interest Period and (d) as to any Money Market Rate Swing
Line Loan, the last day of the interest period with respect thereto selected by
the U.S. Borrower and the Swing Line Lender.
"Interest Period": with respect to any Eurodollar Loan or
Multicurrency Loan:
(a) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such Eurodollar Loan or
Multicurrency Loan and ending one, two, three or six months thereafter, and if
deposits in the relevant currency for such longer Interest Periods are available
to all relevant Lenders (as determined by such Lenders), nine or twelve months
thereafter, as selected by the relevant Borrower in its notice of borrowing or
notice of conversion, as the case may be, given with respect thereto; and
(b) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Eurodollar Loan or
Multicurrency Loan and ending one, two, three or six months thereafter, and if
deposits in the relevant currency for such longer Interest Periods are available
to all relevant Lenders (as determined by such Lenders), nine or twelve months
thereafter, as selected by the relevant Borrower by irrevocable notice to the
General Administrative Agent not less than three Business Days prior to the last
day of the then current Interest Period with respect thereto; provided that all
of the foregoing provisions relating to Interest Periods are subject to the
following:
(i) if any Interest Period pertaining to a
Eurodollar Loan or Multicurrency Loan would otherwise end on a
day that is not a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless the result
of such extension would be to carry such Interest Period into
another calendar month in which event such Interest Period
shall end on the immediately preceding Business Day;
(ii) any Interest Period applicable to a
Eurodollar Loan or Multicurrency Loan that would otherwise
extend beyond the Revolving Credit Termination Date shall end
on the Revolving Credit Termination Date; and
<PAGE> 29
22
(iii) any Interest Period pertaining to a
Eurodollar Loan or Multicurrency Loan that begins on the last
Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last
Business Day of a calendar month.
"Interest Rate Agreement": any interest rate protection
agreement, interest rate swap or other interest rate hedge arrangement (other
than any interest rate cap or other similar agreement or arrangement pursuant to
which the U.S. Borrower has no credit exposure), to or under which the U.S.
Borrower or any of its Subsidiaries is a party or a beneficiary.
"Interest Rate Agreement Obligations": all obligations of the
U.S. Borrower or any Subsidiary to any financial institution under any one or
more Interest Rate Agreements.
"Interim Term Loan Agreement": the Interim Term Loan
Agreement, dated as of May 4, 1999, among the U.S. Borrower, the lenders parties
thereto, Chase, as administrative agent, and others, as the same may be amended,
supplemented or otherwise modified from time to time, and any Refinancing
Agreement in respect thereof.
"Investment Grade Status": shall exist at any time when the
actual or implied rating of the U.S. Borrower's senior long-term unsecured debt
is at or above BBB- from S&P and at or above Baa3 from Moody's; if either of S&P
or Moody's shall change its system of classifications after the date of this
Agreement, Investment Grade Status shall exist at any time when the actual or
implied rating of the U.S. Borrower's senior long-term unsecured debt is at or
above the new rating which most closely corresponds to the above-specified level
under the previous rating system.
"Issuing Lender": Chase (or Chase Delaware), in its capacity
as issuer of the Letters of Credit and any other U.S. Lender which the U.S.
Borrower, the General Administrative Agent and the Majority U.S. Lenders shall
have approved, in its capacity as issuer of the Letters of Credit.
"Judgment Currency": as defined in subsection 18.19(b).
"Lear Germany": Lear Corporation Beteiligungs GmbH.
"Lenders": as defined in the preamble hereto, provided that no
Person shall become a "Lender" hereunder after the Closing Date without
compliance with subsection 18.6(c).
"Letter of Credit Applications": (a) in the case of Standby
Letters of Credit, a letter of credit application for a Standby Letter of Credit
on the standard form of the applicable Issuing Lender for standby letters of
credit, and (b) in the case of Commercial
<PAGE> 30
23
Letters of Credit, a letter of credit application for a Commercial Letter of
Credit on the standard form of the applicable Issuing Lender for commercial
letters of credit.
"Letter of Credit Obligations": at any particular time, all
liabilities of the U.S. Borrower and any Subsidiary with respect to Letters of
Credit, whether or not any such liability is contingent, including (without
duplication) the sum of (a) the aggregate undrawn face amount of all Letters of
Credit then outstanding plus (b) the aggregate amount of all unpaid
Reimbursement Obligations and Subsidiary Reimbursement Obligations.
"Letter of Credit Participation Certificate": a participation
certificate in the form customarily used by the Issuing Lender for such purpose
at the time such certificate is issued.
"Letters of Credit": as defined in subsection 9.1(a).
"LIBO Rate": in respect of any LIBO Rate CAF Advance, the
London interbank offered rate for deposits in Dollars for the period commencing
on the date of such CAF Advance and ending on the CAF Advance Maturity Date with
respect thereto which appears on Telerate Page 3750 as of 11:00 A.M., London
time, two Business Days prior to the beginning of such period.
"LIBO Rate CAF Advance": any CAF Advance made pursuant to a
LIBO Rate CAF Advance Request.
"LIBO Rate CAF Advance Request": any CAF Advance Request
requesting the Lenders to offer to make CAF Advances at an interest rate equal
to the LIBO Rate plus (or minus) a margin.
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, any conditional sale or other
title retention agreement or any Financing Lease having substantially the same
economic effect as any of the foregoing).
"Loan Documents": the collective reference to this Agreement,
any Notes, the Drafts, the Acceptances, the Acceptance Notes, any documents or
instruments evidencing or governing any Alternate Currency Facility and the
Security Documents.
"Loan Parties": the collective reference to the Borrowers,
each guarantor or grantor party to any Security Document and each issuer of
pledged stock under each Pledge Agreement.
"Loans": the collective reference to the Revolving Credit
Loans, the Swing Line Loans, the CAF Advances, the Multicurrency Loans and the
Alternate Currency Loans.
<PAGE> 31
24
"Loans to be Converted": as defined in subsection 18.8(a).
"London Banking Day": any day on which banks in London are
open for general banking business, including dealings in foreign currency and
exchange.
"Majority Canadian Lenders": at any time, Canadian Lenders
whose Canadian Revolving Credit Commitment Percentages aggregate more than 50%.
"Majority Lenders": (a) at any time prior to the termination
of the Revolving Credit Commitments, the Majority U.S. Lenders; and (b) at any
time after the termination of the Revolving Credit Commitments, Lenders whose
Aggregate Total Outstandings aggregate more than 50% of the Aggregate Total
Outstandings of all Lenders; provided that for purposes of this definition the
Aggregate Total Outstandings of each Lender shall be adjusted up or down so as
to give effect to any participations purchased or sold pursuant to subsection
18.8.
"Majority Multicurrency Lenders": at any time, Multicurrency
Lenders whose Multicurrency Commitment Percentages aggregate more than 50%.
"Majority U.S. Lenders": at any time, U.S. Lenders whose U.S.
Revolving Credit Commitment Percentages aggregate more than 50%.
"Material Subsidiary": each Loan Party and any other
Subsidiary which (a) for the most recent fiscal year of the U.S. Borrower
accounted for more than 10% of Consolidated Revenues or (b) as of the end of
such fiscal year, was the owner of more than 10% of Consolidated Assets, all as
shown on the consolidated financial statements of the U.S. Borrower for such
fiscal year.
"Money Market Rate": as defined in subsection 3.2(b).
"Money Market Rate Swing Line Loan": as defined in subsection
3.2(b).
"Moody's": Moody's Investors Service, Inc. or any successor
thereto.
"Multicurrency Commitment": as to any Multicurrency Lender at
any time, its obligation to make Multicurrency Loans to the U.S. Borrower or
Foreign Subsidiary Borrowers in an aggregate amount in Available Foreign
Currencies of which the U.S. Dollar Equivalent does not exceed at any time
outstanding the lesser of (a) the amount set forth opposite such Multicurrency
Lender's name in Schedule I under the heading "Multicurrency Commitment", and
(b) the U.S. Revolving Credit Commitment of such Multicurrency Lender, in each
case as such amount may be reduced from time to time as provided in subsection
7.4 and the other applicable provisions hereof.
"Multicurrency Commitment Percentage": as to any Multicurrency
Lender at any time, the percentage which such Multicurrency Lender's
Multicurrency Commitment then
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25
constitutes of the aggregate Multicurrency Commitments (or, if the Multicurrency
Commitments have terminated or expired, the percentage which (a) the U.S. Dollar
Equivalent of the Aggregate Multicurrency Outstandings of such Multicurrency
Lender at such time constitutes of (b) the U.S. Dollar Equivalent of the
Aggregate Multicurrency Outstandings of all Multicurrency Lenders at such time).
"Multicurrency Lender": each Lender having an amount greater
than zero set forth opposite such Lender's name in Schedule I under the heading
"Multicurrency Commitment."
"Multicurrency Loans": as defined in subsection 7.1.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA . "National Currency Unit": the unit of
currency (other than a euro unit) of a Participating Member State.
"Net Proceeds": shall mean the gross proceeds received by the
U.S. Borrower or any Subsidiary from a sale or other disposition of any asset of
the U.S. Borrower or such Subsidiary less (a) all reasonable fees, commissions
and other out-of-pocket expenses incurred by the U.S. Borrower or such
Subsidiary in connection therewith, (b) Federal, state, local and foreign taxes
assessed in connection therewith and (c) the principal amount, accrued interest
and any related prepayment fees of any Indebtedness (other than the Loans) which
is secured by any such asset and which is required to be repaid in connection
with the sale thereof.
"New Revolving Credit Agreement": the Revolving Credit and
Term Loan Agreement, dated as of May 4, 1999, among the U.S. Borrower, certain
of its Foreign Subsidiaries, the lenders parties thereto, Chase, as
administrative agent, and others, as the same may be amended, supplemented or
otherwise modified from time to time, and any Refinancing Agreement in respect
thereof.
"9 1/2% Subordinated Note Indenture": the Indenture dated as
of July 1, 1996, between the U.S. Borrower and The Bank of New York, as trustee,
as the same may be amended, supplemented or otherwise modified from time to time
in accordance with subsection 14.10.
"9 1/2% Subordinated Notes": the 9 1/2% Subordinated Notes of
the U.S. Borrower due 2006, issued pursuant to the 9 1/2% Subordinated Note
Indenture.
"Non-Canadian Lender": each U.S. Lender which is not a U.S.
Common Lender.
"Non-Multicurrency Lender": each U.S. Lender which is not a
Multicurrency Lender.
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26
"Notes": the collective reference to the U.S. Revolving Credit
Notes and the Canadian Revolving Credit Notes.
"Notice of Alternate Currency Outstandings": with respect to
each Alternate Currency Facility Agent, a notice from such Alternate Currency
Facility Agent containing the information, delivered to the Person, in the
manner and by the time, specified for a Notice of Alternate Currency
Outstandings in the Administrative Schedule.
"Notice of Multicurrency Loan Borrowing": with respect to a
Multicurrency Loan, a notice from the Borrower (or the U.S. Borrower on its
behalf) in respect of such Loan, containing the information in respect of such
Loan and delivered to the Person, in the manner and by the time, specified for a
Notice of Multicurrency Loan Borrowing in respect of the currency of such Loan
in the Administrative Schedule.
"Notice of Multicurrency Loan Continuation": with respect to a
Multicurrency Loan, a notice from the Borrower (or the U.S. Borrower on its
behalf) in respect of such Loan, containing the information in respect of such
Loan and delivered to the Person, in the manner and by the time, specified for a
Notice of Multicurrency Loan Continuation in respect of the currency of such
Loan in the Administrative Schedule.
"Obligations": collectively, the unpaid principal of and
interest on the Loans, the Reimbursement Obligations, the Subsidiary
Reimbursement Obligations, Interest Rate Agreement Obligations to any Lender,
Currency Agreement Obligations to any Lender and all other obligations and
liabilities (including, with respect to the Canadian Borrower, Acceptance
Reimbursement Obligations) of (a) the U.S. Borrower under or in connection with
this Agreement (including, without limitation, the obligations under Section 15
hereof) and the other Loan Documents, (b) the Canadian Borrower under this
Agreement and the other Loan Documents, (c) each Foreign Subsidiary Borrower
under this Agreement and the other Loan Documents and (d) each Alternate
Currency Borrower under any Alternate Currency Facility to which it is a party
and under this Loan Agreement and the other Loan Documents (including, without
limitation, interest accruing at the then applicable rate provided in this
Agreement or any other applicable Loan Document after the maturity of the Loans
and interest accruing at the then applicable rate provided in this Agreement or
any other applicable Loan Document after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the U.S. Borrower, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding), whether
direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in connection
with, this Agreement, the Notes, the Acceptances, the Acceptance Notes, the
Letters of Credit, the Letter of Credit Applications, the other Loan Documents
or any other document made, delivered or given in connection therewith, in each
case whether on account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise (including, without limitation, all
fees and disbursements of counsel to the Administrative Agents or
<PAGE> 34
27
to the Lenders that are required to be paid by any Borrower pursuant to the
terms of this Agreement or any other Loan Document).
"Other Credit Agreements": the collective reference to the New
Revolving Credit Agreement and the Interim Term Loan Agreement.
"Other Lender": as defined in subsection 18.8(c).
"Participants": as defined in subsection 18.6(b).
"Participating Interest": with respect to any Letter of Credit
(a) in the case of the Issuing Lender with respect thereto, its interest in such
Letter of Credit and any Letter of Credit Application relating thereto after
giving effect to the granting of any participating interests therein pursuant
hereto and (b) in the case of each Participating Lender, its undivided
participating interest in such Letter of Credit and any Letter of Credit
Application relating thereto.
"Participating Lender": any U.S. Lender (other than the
Issuing Lender) with respect to its Participating Interest in a Letter of
Credit.
"Participating Member State": any member state of the EMU
which has the euro as its lawful currency.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Person": an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which
is covered by ERISA and in respect of which the U.S. Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5)
of ERISA.
"Pledge Agreements": the collective reference to the Pledge
Agreements listed in Schedule IV and each other pledge agreement or similar
agreement that may be delivered to the General Administrative Agent as
collateral security for any or all of the Obligations of the U.S. Borrower
hereunder, and the obligations of the U.S. Borrower under the Other Credit
Agreements, in each case as such Pledge Agreements or similar agreements may be
amended, supplemented or otherwise modified from time to time.
"Pledged Stock": as defined in each of the Pledge Agreements.
"Powers of Attorney": as defined in subsection 6.2(b).
<PAGE> 35
28
"Prime Rate": at any day, the greater on such day of (a) the
rate per annum announced by the Canadian Administrative Agent from time to time
(and in effect on such day) as its prime rate for Canadian Dollar commercial
loans made in Canada, as adjusted automatically from time to time and without
notice to any of the Borrowers upon change by the Canadian Administrative Agent,
and (b) 1% above the CDOR Rate from time to time (and in effect on such day), as
advised by the Canadian Administrative Agent to the Canadian Borrower from time
to time pursuant hereto. The Prime Rate is not intended to be the lowest rate of
interest charged by the Canadian Administrative Agent in connection with
extensions of credit in Canadian Dollars to debtors.
"Prime Rate Loans": all Canadian Revolving Credit Loans
denominated in Canadian Dollars, which shall bear interest at a rate based upon
the Prime Rate.
"Property": each parcel of real property owned or operated by
the U.S. Borrower and its Subsidiaries.
"Proprietary Rights": as defined in subsection 11.16.
"Qualified Credit Facility": a credit facility (a) providing
for one or more Alternate Currency Lenders to make loans denominated in an
Alternate Currency to one or more Alternate Currency Borrowers, (b) providing
for such loans to bear interest at a rate or rates determined by the U.S.
Borrower and such Alternate Currency Lender or Alternate Currency Lenders and
(c) otherwise conforming to the requirements of Section 8.
"Quotation Day": in respect of the determination of the
Eurocurrency Rate for any Interest Period for Multicurrency Loans in any
Available Foreign Currency, the day on which quotations would ordinarily be
given by prime banks in the London interbank market (or, if such Available
Foreign Currency is Pounds Sterling, in the Paris interbank market) for deposits
in such Available Foreign Currency for delivery on the first day of such
Interest Period; provided, that if quotations would ordinarily be given on more
than one date, the Quotation Day for such Interest Period shall be the last of
such dates. On the date hereof, the Quotation Day in respect of any Interest
Period for any Available Foreign Currency (other than the euro) is customarily
the last London Banking Day prior to the beginning of such Interest Period which
is (a) at least two London Banking Days prior to the beginning of such Interest
Period and (b) a day on which banks are open for general banking business in the
city which is the principal financial center of the country of issue of such
Available Foreign Currency (and, in the case of Pounds Sterling, in Paris); and
the Quotation Day in respect of any Interest Period for the euro is the day
which is two Target Operating Days prior to the first day of such Interest
Period.
"Receivable Financing Transaction": any transaction or series
of transactions involving a sale for cash of accounts receivable, without
recourse based upon the collectibility of the receivables sold, by the U.S.
Borrower or any of its Subsidiaries to a Special Purpose Subsidiary and a
subsequent sale or pledge of such accounts receivable
<PAGE> 36
29
(or an interest therein) by such Special Purpose Subsidiary, in each case
without any guarantee by the U.S. Borrower or any of its Subsidiaries (other
than the Special Purpose Subsidiary).
"Reference Discount Rate": on any date with respect to each
Draft requested to be accepted by a Canadian Lender, (a) if such Canadian Lender
is a Schedule I Canadian Lender, the arithmetic average of the discount rates
(expressed as a percentage calculated on the basis of a year of 365 days) quoted
by the Toronto offices of each of the Schedule I Canadian Reference Lenders, at
10:00 A.M. (Toronto time) on the Borrowing Date as the discount rate at which
each such Schedule I Canadian Reference Lender would, in the normal course of
its business, purchase on such date Acceptances having an aggregate face amount
and term to maturity as designated by the Canadian Borrower pursuant to Section
6.2 and (b) if such Canadian Lender is a Schedule II Canadian Lender, the
arithmetic average of the discount rates (expressed as a percentage calculated
on the basis of a year of 365 days) quoted by the Toronto offices of each of the
Schedule II Canadian Reference Lenders, at 10:00 A.M. (Toronto time) on the
Borrowing Date as the discount rate at which each such Schedule II Canadian
Reference Lender would, in the normal course of its business, purchase on such
date Acceptances having an aggregate face amount and term to maturity as
designated by the Canadian Borrower pursuant to subsection 6.2. The Canadian
Administrative Agent shall advise the Canadian Borrower and the Canadian
Lenders, either in writing or verbally, by 11:00 A.M. (Toronto time) on the
Borrowing Date as to the applicable Reference Discount Rate and corresponding
Acceptance Purchase Price in respect of Acceptances having the maturities
selected by the Canadian Borrower for such Borrowing Date. Notwithstanding the
foregoing, the Canadian Borrower, the Canadian Administrative Agent and the
Canadian Lenders, may agree upon alternative methods of determining the
Reference Discount Rate from time to time.
"Refinancing Agreement": with respect to the Interim Term Loan
Agreement or the New Revolving Credit Agreement, as the case may be, a successor
agreement satisfying the following criteria: (a) such successor agreement
refinances in whole, and replaces the commitments under, the Interim Term Loan
Agreement or the New Revolving Credit Agreement, as the case may be, (b) either
(i) the covenants, representations and warranties and events of default set
forth in such successor agreement shall be equivalent to the corresponding
provisions set forth in the Interim Term Loan Agreement or the New Revolving
Credit Agreement, as the case may be or (ii) to the extent such provisions are
more restrictive on the U.S. Borrower and its Subsidiaries than the provisions
of this Agreement, the U.S. Borrower shall, contemporaneously with entering into
such Refinancing Agreement, enter into with the General Administrative Agent an
amendment to this Agreement reasonably satisfactory to the General
Administrative Agent pursuant to which such more restrictive provisions shall be
incorporated herein (the Lenders hereby authorizing the General Administrative
Agent to enter into such amendment), (c) such successor agreement shall not be
guaranteed by any Person other than the Subsidiary Guarantors pursuant to the
Subsidiary Guarantee and, if applicable, the U.S. Borrower and shall not be
secured except pursuant to the Security
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30
Documents and (d) the lenders under such successor agreement (or an agent for
such lenders) shall have entered into an intercreditor agreement with the
General Administrative Agent, in form and substance reasonably satisfactory to
the General Administrative Agent, which shall, in any event, contain customary
indemnities, liability limitations, exculpation provisions and other customary
protective provisions in favor of the General Administrative Agent, in its
capacity as Agent under (and as defined in) the Subsidiary Guarantee and the
Security Documents, substantially equivalent to those set forth in the
corresponding provisions of the Interim Term Loan Agreement or the New Revolving
Credit Agreement, as the case may be.
"Register": as defined in subsection 18.6(d).
"Reimbursement Obligation": the obligation of the U.S.
Borrower to reimburse the Issuing Lender in accordance with the terms of this
Agreement and the related Letter of Credit Application for any payment made by
the Issuing Lender under any Letter of Credit.
"Release" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, escaping, leaking, dumping, disposing,
spreading, depositing or dispersing of any Hazardous Materials in, unto or onto
the environment.
"Release Status": shall exist at any time when the actual or
implied rating of the U.S. Borrower's senior long-term unsecured debt is at or
above BBB- from S&P or at or above Baa3 from Moody's; if either of S&P or
Moody's shall change its system of classifications after the date of this
Agreement Release Status shall exist at any time when the actual or implied
rating of the U.S. Borrower's senior long-term unsecured debt is at or above the
new rating which most closely corresponds to the above-specified level under the
previous rating system.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.
"Reportable Event": any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the thirty day notice
period is waived under any of subsections .13, .14, .16, .18, .19 or .20 of PBGC
Reg. ss. 4043 or any successor regulation thereto.
"Requested Acceptances": as defined in subsection 2.5(a).
"Requested Alternate Currency Loans": as defined in subsection
2.5(c).
"Requested Canadian Revolving Credit Loans": as defined in
subsection 2.5(a).
"Requested Multicurrency Loans": as defined in subsection
2.5(b).
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31
"Request for Acceptances": as defined in subsection 6.2(a).
"Requirement of Law": as to (a) any Person, the certificate of
incorporation and by-laws or the partnership or limited partnership agreement or
other organizational or governing documents of such Person, and any law, treaty,
rule or regulation or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is
subject, and (b) any property, any law, treaty, rule, regulation, requirement,
judgment, decree or determination of any Governmental Authority applicable to or
binding upon such property or to which such property is subject, including,
without limitation, any Environmental Laws.
"Responsible Officer": with respect to any Loan Party, the
chief executive officer, the president, the chief financial officer, any vice
president, the treasurer or the assistant treasurer of such Loan Party.
"Revolving Credit Commitment Period": the period from and
including the Closing Date to but not including the Revolving Credit Termination
Date, or such earlier date on which the Revolving Credit Commitments shall
terminate as provided herein.
"Revolving Credit Commitments": the collective reference to
the U.S. Revolving Credit Commitments and the Canadian Revolving Credit
Commitments.
"Revolving Credit Loans": the collective reference to the U.S.
Revolving Credit Loans and the Canadian Revolving Credit Loans; each,
individually, a "Revolving Credit Loan".
"Revolving Credit Termination Date": September 30, 2001.
"Schedule I Canadian Lender": each Canadian Lender listed on
Schedule I to the Bank Act (Canada).
"Schedule I Canadian Reference Lenders": The Bank of Nova
Scotia, Bank of Montreal, Canadian Imperial Bank of Commerce and Royal Bank of
Canada.
"Schedule II Canadian Lender": each Canadian Lender which is
not a Schedule I Canadian Lender.
"Schedule II Canadian Reference Lenders": one or more Schedule
II Canadian Lenders selected by the U.S. Borrower with the consent of all the
Schedule II Canadian Lenders.
"Securities Act": the Securities Act of 1933, as amended.
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32
"Security Documents": the collective reference to the Pledge
Agreements, the Subsidiary Guarantee and each other guarantee, security document
or similar agreement that may be delivered to the General Administrative Agent
as collateral security for any or all of the Obligations, in each case as
amended, supplemented or otherwise modified from time to time, including,
without limitation, to give effect to any Refinancing Agreement permitted
hereunder.
"Single Employer Plan": any Plan which is covered by Title IV
of ERISA, but which is not a Multiemployer Plan.
"S&P": Standard & Poor's Ratings Group or any successor
thereto.
"Special Affiliate": any Affiliate of the U.S. Borrower (a) as
to which the U.S. Borrower holds, directly or indirectly, (i) power to vote 20%
or more of the securities having ordinary voting power for the election of
directors of such Affiliate or (ii) a 20% ownership interest in such Affiliate
and (b) which is engaged in business of the same or related general type as now
being conducted by the U.S. Borrower and its Subsidiaries.
"Special Entity": any Person which is engaged in business of
the same or related general type as now being conducted by the U.S. Borrower and
its Subsidiaries.
"Special Purpose Subsidiary": any Wholly Owned Subsidiary of
the U.S. Borrower created by the U.S. Borrower for the sole purpose of
facilitating a Receivable Financing Transaction.
"Standby Letters of Credit": as defined in subsection 9.1(a).
"Subordinated Debt": any obligations (for principal, interest
or otherwise) evidenced by or arising under or in respect of the Subordinated
Notes and the 9 1/2% Subordinated Notes.
"Subordinated Debt Indentures": the collective reference to
the Subordinated Note Indenture and the 9 1/2% Subordinated Note Indenture.
"Subordinated Note Indenture": the Indenture, dated as of
February 1, 1994, between the U.S. Borrower and State Street Bank and Trust
Company (as successor to The First National Bank of Boston), as trustee, as the
same may be amended, supplemented or otherwise modified from time to time in
accordance with subsection 14.10.
"Subordinated Notes": the 8 1/4% Subordinated Notes of the
U.S. Borrower due 2002, issued pursuant to the Subordinated Note Indenture.
"Subsequent Participant": any member state of the EMU that
adopts the euro as its lawful currency after January 1, 1999.
<PAGE> 40
33
"Subsidiary": as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests having
such power only by reason of the happening of a contingency) to elect a majority
of the board of directors or other managers of such corporation, partnership or
other entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly, through one or more intermediaries, or both,
by such Person (exclusive of any Affiliate in which such Person has a minority
ownership interest). Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a Subsidiary
or Subsidiaries of the U.S. Borrower.
"Subsidiary and Secured Indebtedness": the collective
reference (without duplication) to (a) any Indebtedness of any Subsidiary, other
than Indebtedness permitted by paragraphs (a) through (e) of subsection 14.2,
(b) any Guarantee Obligation of any Subsidiary, other than Guarantee Obligations
permitted by paragraph (a) through (e) of subsection 14.4, (c) any Indebtedness
or Guarantee Obligation of any Person that is secured by any Lien on any
property, assets or revenues of the U.S. Borrower or any of its Subsidiaries,
other than Liens permitted by paragraphs (a) through (n) of subsection 14.3. For
purposes of clause (b) of the preceding sentence, the amount of any Guarantee
Obligation shall be determined as set forth in the definition of "Guarantee
Obligation" in this subsection 1.1; and for purposes of clause (c) of the
preceding sentence, the amount of any Indebtedness or Guarantee Obligation that
is secured by a Lien on any property, assets or revenues of the U.S. Borrower or
any of its Subsidiaries shall equal the lesser of (x) the amount of any such
Indebtedness or Guarantee Obligation and (y) the fair market value as of the
date of determination of the property, assets or revenues subject to such Lien.
At any time of determination, the amount of Subsidiary and Secured Indebtedness
outstanding shall be determined without duplication of any other Subsidiary and
Secured Indebtedness then outstanding.
"Subsidiary Guarantee": the Subsidiary Guarantee, dated as of
the date hereof, made by certain Subsidiaries of the U.S. Borrower in favor of
the General Administrative Agent, substantially in the form of Exhibit O, as the
same may be amended, supplemented or otherwise modified from time to time.
"Subsidiary Guarantor": each Subsidiary that is a guarantor
party to the Subsidiary Guarantee, so long as the Subsidiary Guarantee remains
in effect.
"Subsidiary Reimbursement Obligation": the obligation of any
Subsidiary to reimburse the Issuing Lender in accordance with the terms of this
Agreement and the related Letter of Credit Application for any payment made by
the Issuing Lender under any Letter of Credit.
"Swing Line Commitment": as to the Swing Line Lender, in its
capacity as a Swing Line Lender, its obligation to make Swing Line Loans to the
U.S. Borrower in an aggregate principal amount not to exceed, at any one time
outstanding $150,000,000.
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34
"Swing Line Lender": Chase, in its capacity as provider of the
Swing Line Loans.
"Swing Line Loans" and "Swing Line Loan": as defined in
subsection 3.1.
"Target Operating Day": any day that is not (a) a Saturday or
Sunday, (b) Christmas Day or New Year's Day or (c) any other day on which the
Trans-European Real-time Gross Settlement Operating System (or any successor
settlement system) is not operating (as determined by the General Administrative
Agent).
"Tax Act": the Income Tax Act (Canada), as amended from time
to time.
"Taxes": as defined in subsection 10.12(a).
"Tranche": the collective reference to Eurodollar Loans or
Multicurrency Loans the then current Interest Periods with respect to all of
which begin on the same date and end on the same later date (whether or not such
Loans shall originally have been made on the same day).
"Transferee": as defined in subsection 18.6(f).
"Treaty on European Union": the Treaty of Rome of March 25,
1957, as amended by the Single European Act 1986 and the Maastricht Treaty
(which was signed at Maastricht on February 7, 1992, and came into force on
November 1, 1993), as amended from time to time.
"Type": as to any U.S. Revolving Credit Loan, its nature as an
ABR Loan or a Eurodollar Loan, and as to any Canadian Revolving Credit Loan, its
nature as a Canadian Base Rate Loan or a Prime Rate Loan.
"U.S. Borrower": as defined in the preamble hereto.
"U.S. Common Lender": each U.S. Lender which has a Counterpart
Lender.
"U.S. Dollar Equivalent": with respect to an amount
denominated in any currency other than U.S. Dollars, the equivalent in U.S.
Dollars of such amount determined at the Exchange Rate on the date of
determination of such equivalent. In making any determination of the U.S. Dollar
Equivalent for purposes of calculating the amount of Loans to be borrowed from,
or the face amount of Acceptances to be created by, the respective Lenders on
any Borrowing Date, the General Administrative Agent or the Canadian
Administrative Agent, as the case may be, shall use the relevant Exchange Rate
in effect on the date on which the interest rate for such Loans or the
Acceptance Purchase Price for such Acceptances, as the case may be, is
determined pursuant to the provisions of this Agreement and the other Loan
Documents.
"U.S. Lenders": the Lenders listed in Part A of Schedule I
hereto.
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35
"U.S. Prime Rate": the rate of interest per annum publicly
announced from time to time by the General Administrative Agent as its prime
rate in effect at its principal office in New York City. The U.S. Prime Rate is
not intended to be the lowest rate of interest charged by the General
Administrative Agent in connection with extensions of credit to borrowers.
"U.S. Reference Lenders": Chase and The Bank of Nova Scotia.
"U.S. Revolving Credit Commitment": as to any U.S. Lender at
any time, its obligation to make U.S. Revolving Credit Loans to, and/or
participate in Swing Line Loans made to and Letters of Credit issued for the
account of, the U.S. Borrower and its Subsidiaries in an aggregate amount not to
exceed at any time outstanding the U.S. Dollar amount set forth opposite such
U.S. Lender's name in Schedule I under the heading "U.S. Revolving Credit
Commitment", as such amount may be reduced from time to time pursuant to
subsection 2.4 and the other applicable provisions hereof.
"U.S. Revolving Credit Commitment Percentage": as to any U.S.
Lender at any time, the percentage which such U.S. Lender's U.S. Revolving
Credit Commitment then constitutes of the aggregate U.S. Revolving Credit
Commitments of all U.S. Lenders (or, if the U.S. Revolving Credit Commitments
have terminated or expired, the percentage which (a) the Aggregate U.S.
Revolving Credit Outstandings of such U.S. Lender at such time then constitutes
of (b) the Aggregate U.S. Revolving Credit Outstandings of all U.S. Lenders at
such time).
"U.S. Revolving Credit Lender": each U.S. Lender having an
amount greater than zero set forth under the heading "U.S. Revolving Credit
Commitment" opposite its name on Schedule I.
"U.S. Revolving Credit Loan": as defined in subsection 2.1.
"U.S. Revolving Credit Note": as defined in subsection 2.2(e).
"UT Automotive Acquisition": the acquisition by the U.S.
Borrower (or a Subsidiary as its designee) of the capital stock of Lear
Corporation Automotive Holdings, a Delaware corporation formerly known as UT
Automotive, Inc., and certain related entities, pursuant to the UT Automotive
Acquisition Agreement.
"UT Automotive Acquisition Agreement": the Stock Purchase
Agreement, dated as of March 16, 1999, between Nevada Bond Investment Corp. II,
a Nevada corporation, as Seller, and the U.S. Borrower (or a Subsidiary as its
designee), as Buyer, as amended, supplemented or otherwise modified, and certain
related agreements.
"Wholly Owned Subsidiary": as to any Person, a corporation,
partnership or other entity of which (a) 100% of the common capital stock or
other ownership interests of such corporation, partnership or other entity or
(b) more than 95% of the common capital
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36
stock or other ownership interests of such corporation, partnership or
other entity where the portion of the common capital stock or other
ownership interests not held by such Person is held by other Persons to
satisfy applicable legal requirements, is owned, directly or
indirectly, by such Person; provided, however, that so long as the U.S.
Borrower owns, directly or indirectly, more than 95% of the capital
stock of Lear Italia, Lear Italia shall be deemed a Wholly Owned
Subsidiary of the U.S. Borrower.
1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in the Notes, the other Loan Documents or any certificate or
other document made or delivered pursuant hereto.
(b) As used herein and in the Notes and any other Loan
Document, and any certificate or other document made or delivered pursuant
hereto or thereto, accounting terms relating to the U.S. Borrower and its
Subsidiaries not defined in subsection 1.1 and accounting terms partly defined
in subsection 1.1, to the extent not defined, shall have the respective meanings
given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF U.S. REVOLVING CREDIT
COMMITMENTS
2.1 U.S. Revolving Credit Commitments. (a) Subject to the
terms and conditions hereof, each U.S. Lender severally agrees to make revolving
credit loans (each, a "U.S. Revolving Credit Loan") in U.S. Dollars to the U.S.
Borrower from time to time during the Revolving Credit Commitment Period so long
as after giving effect thereto (i) the Available U.S. Revolving Credit
Commitment of each U.S. Lender is greater than or equal to zero and (ii) the
Aggregate Total Outstandings of all Lenders do not exceed the Aggregate U.S.
Revolving Credit Commitments. During the Revolving Credit Commitment Period the
U.S. Borrower may use the U.S. Revolving Credit Commitments by borrowing,
prepaying the U.S. Revolving Credit Loans in whole or in part, and reborrowing,
all in accordance with the terms and conditions hereof.
(b) The U.S. Revolving Credit Loans may from time to time be
(i) Eurodollar Loans, (ii) ABR Loans or (iii) a combination thereof, as
determined by the U.S. Borrower and notified to the General Administrative Agent
in accordance with subsections 2.3 and 10.2, provided that no U.S. Revolving
Credit Loan shall be made as a Eurodollar Loan after the day that is one month
prior to the Revolving Credit Termination Date.
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2.2 Repayment of U.S. Revolving Credit Loans; Evidence of
Debt. (a) The U.S. Borrower hereby unconditionally promises to pay to the
General Administrative Agent for the account of each U.S. Lender the then unpaid
principal amount of each U.S. Revolving Credit Loan of such U.S. Lender (whether
made before or after the termination or expiration of the U.S. Revolving Credit
Commitments) on the Revolving Credit Termination Date and on such other date(s)
and in such other amounts as may be required from time to time pursuant to this
Agreement. The U.S. Borrower hereby further agrees to pay interest on the unpaid
principal amount of the U.S. Revolving Credit Loans from time to time
outstanding until payment thereof in full at the rates per annum, and on the
dates, set forth in subsection 10.1.
(b) Each U.S. Lender shall maintain in accordance with its
usual practice an account or accounts evidencing indebtedness of the U.S.
Borrower to such U.S. Lender resulting from each U.S. Revolving Credit Loan of
such U.S. Lender from time to time, including the amounts of principal and
interest payable thereon and paid to such U.S. Lender from time to time under
this Agreement.
(c) The General Administrative Agent (together with the
Canadian Administrative Agent) shall maintain the Register pursuant to
subsection 18.6(d), and a subaccount therein for each U.S. Lender, in which
shall be recorded (i) the date and amount of each U.S. Revolving Credit Loan
made hereunder, the Type thereof and each Interest Period applicable thereto,
(ii) the date of each continuation thereof pursuant to subsection 10.2, (iii)
the date of each conversion of all or a portion thereof to another Type pursuant
to subsection 10.2, (iv) the date and amount of any principal or interest due
and payable or to become due and payable from the U.S. Borrower to each U.S.
Lender hereunder in respect of the U.S. Revolving Credit Loans and (v) both the
date and amount of any sum received by the General Administrative Agent
hereunder from the U.S. Borrower in respect of the U.S. Revolving Credit Loans
and each U.S. Lender's share thereof.
(d) The entries made in the Register and the accounts of each
U.S. Lender maintained pursuant to subsection 2.2(b) shall, to the extent
permitted by applicable law, be prima facie evidence of the existence and
amounts of the obligations of the U.S. Borrower therein recorded; provided,
however, that the failure of any U.S. Lender or the Administrative Agents to
maintain the Register or any such account, or any error therein, shall not in
any manner affect the obligations of the U.S. Borrower to repay (with applicable
interest) the U.S. Revolving Credit Loans made to the U.S. Borrower by such U.S.
Lender in accordance with the terms of this Agreement.
(e) The U.S. Borrower agrees that, upon the request to the
General Administrative Agent by any U.S. Lender, the U.S. Borrower will execute
and deliver to such U.S. Lender a promissory note of the U.S. Borrower
evidencing the Revolving Credit Loans of such U.S. Lender, substantially in the
form of Exhibit A with appropriate insertions as to date and principal amount
(each, a "U.S. Revolving Credit Note"); provided, that the delivery of such U.S.
Revolving Credit Notes shall not be a condition precedent to the Closing Date.
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2.3 Procedure for U.S. Revolving Credit Borrowing. The U.S.
Borrower may borrow under the U.S. Revolving Credit Commitments during the
Revolving Credit Commitment Period on any Business Day, provided that the U.S.
Borrower shall give the General Administrative Agent irrevocable notice (which
notice must be received by the General Administrative Agent prior to 12:00 Noon,
New York City time, at least (a) three Business Days prior to the requested
Borrowing Date, if all or any part of the requested U.S. Revolving Credit Loans
are to be initially Eurodollar Loans, or (b) one Business Day prior to the
requested Borrowing Date, otherwise), specifying in each case (i) the amount to
be borrowed, (ii) the requested Borrowing Date, (iii) whether the borrowing is
to be of Eurodollar Loans, ABR Loans or a combination thereof and (iv) if the
borrowing is to be entirely or partly of Eurodollar Loans, the amount of such
Type of Loan and the length of the initial Interest Period therefor. Each
borrowing under the U.S. Revolving Credit Commitments (other than a borrowing
under subsection 2.5, subsection 3.4 or to pay a like amount of Reimbursement
Obligations or Subsidiary Reimbursement Obligations) shall be in an amount equal
to (A) in the case of ABR Loans, except any ABR Loan made pursuant to subsection
3.4, $10,000,000 or a whole multiple of $1,000,000 in excess thereof (or, if the
then Aggregate Available U.S. Revolving Credit Commitments are less than
$10,000,000, such lesser amount) and (B) in the case of Eurodollar Loans,
$10,000,000 or a whole multiple of $1,000,000 in excess thereof. Upon receipt of
any such notice from the U.S. Borrower, the General Administrative Agent shall
promptly notify each U.S. Lender and the Canadian Administrative Agent thereof.
Not later than 12:00 Noon, New York City time, on each requested Borrowing Date
each U.S. Lender shall make an amount equal to its Funding Commitment Percentage
of the principal amount of the U.S. Revolving Credit Loans requested to be made
on such Borrowing Date available to the General Administrative Agent at its
office specified in subsection 18.2 in U.S. Dollars and in immediately available
funds. Except as otherwise provided in subsection 2.5 or 3.4, the General
Administrative Agent shall on such date credit the account of the U.S. Borrower
on the books of such office with the aggregate of the amounts made available to
the General Administrative Agent by the U.S. Lenders and in like funds as
received by the General Administrative Agent.
2.4 Termination or Reduction of U.S. Revolving Credit
Commitments. The U.S. Borrower shall have the right, upon not less than five
Business Days' notice to the General Administrative Agent, to terminate the U.S.
Revolving Credit Commitments or, from time to time, to reduce the amount of the
U.S. Revolving Credit Commitments; provided that no such termination or
reduction shall be permitted if, after giving effect thereto and to any
prepayments of the Loans made on the effective date thereof, the Available U.S.
Revolving Credit Commitment or Available Multicurrency Commitment of any U.S.
Lender, or the Available Canadian Revolving Credit Commitment of any Canadian
Lender, would not be greater than or equal to zero. Any such reduction shall be
in an amount equal to $2,500,000 or a whole multiple of $500,000 in excess
thereof and shall reduce permanently the U.S. Revolving Credit Commitments then
in effect.
2.5 Borrowings of U.S. Revolving Credit Loans and Refunding of
Loans. (a) If on any Borrowing Date on which the Canadian Borrower has requested
the Canadian Lenders to make Canadian Revolving Credit Loans (the "Requested
Canadian Revolving Credit Loans") or to create Acceptances (the "Requested
Acceptances"), (i) the sum of (A) the principal amount of
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the Requested Canadian Revolving Credit Loans to be made by any Canadian Lender
and (B) the aggregate undiscounted face amount of the Requested Acceptances to
be created by such Canadian Lender exceeds the Available Canadian Revolving
Credit Commitment of such Canadian Lender on such Borrowing Date (before giving
effect to the making and payment of any Loans required to be made pursuant to
this subsection 2.5 on such Borrowing Date) and (ii) the U.S. Dollar Equivalent
of the amount of such excess is less than or equal to the aggregate Available
U.S. Revolving Credit Commitments of all Non-Canadian Lenders (before giving
effect to the making and payment of any Loans pursuant to this subsection 2.5 on
such Borrowing Date), each Non-Canadian Lender shall make a U.S. Revolving
Credit Loan to the U.S. Borrower on such Borrowing Date, and the proceeds of
such U.S. Revolving Credit Loans shall be simultaneously applied to repay
outstanding U.S. Revolving Credit Loans, Multicurrency Loans and/or Alternate
Currency Loans of the U.S. Common Lenders (as directed by the U.S. Borrower) in
each case in amounts such that, after giving effect to (1) such borrowings and
repayments and (2) the borrowing from the Canadian Lenders of the Requested
Canadian Revolving Credit Loans or the creation by the Canadian Lenders of the
Requested Acceptances, the Committed Outstandings Percentage of each U.S. Lender
will equal (as nearly as possible) its U.S. Revolving Credit Commitment
Percentage. To effect such borrowings and repayments, (x) not later than 12:00
Noon, New York City time, on such Borrowing Date, the proceeds of such U.S.
Revolving Credit Loans shall be made available by each Non-Canadian Lender to
the General Administrative Agent at its office specified in subsection 18.2 in
U.S. Dollars and in immediately available funds and the General Administrative
Agent shall apply the proceeds of such U.S. Revolving Credit Loans toward
repayment of outstanding U.S. Revolving Credit Loans, Multicurrency Loans and/or
Alternate Currency Loans of the U.S. Common Lenders (as directed by the U.S.
Borrower) and (y) concurrently with the repayment of such Loans on such
Borrowing Date, (I) the Canadian Lenders shall, in accordance with the
applicable provisions hereof, make the Requested Canadian Revolving Credit Loans
(or create the Requested Acceptances) in an aggregate amount equal to the amount
so requested by the Canadian Borrower (but not in any event greater than the
Aggregate Available Canadian Revolving Credit Commitments after giving effect to
the making of such repayment of any Loans on such Borrowing Date) and (II) the
relevant Borrower shall pay to the General Administrative Agent for the account
of the Lenders whose Loans to such Borrower are repaid on such Borrowing Date
pursuant to this subsection 2.5 all interest accrued on the amounts repaid to
the date of repayment, together with any amounts payable pursuant to subsection
10.11 in connection with such repayment.
(b) If on any Borrowing Date on which a Borrower has requested
the Multicurrency Lenders to make Multicurrency Loans (the "Requested
Multicurrency Loans"), (i) the principal amount of the Requested Multicurrency
Loans to be made by any Multicurrency Lender exceeds the Available Multicurrency
Commitment of such Multicurrency Lender on such Borrowing Date (before giving
effect to the making and payment of any Loans required to be made pursuant to
this subsection 2.5 on such Borrowing Date) and (ii) the U.S. Dollar Equivalent
of the amount of such excess is less than or equal to the aggregate Available
U.S. Revolving Credit Commitments of all Non-Multicurrency Lenders (before
giving effect to the making and payment of any Loans pursuant to this subsection
2.5 on such Borrowing Date), each Non-Multicurrency Lender shall make a U.S.
Revolving Credit Loan to the U.S. Borrower on such
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Borrowing Date, and the proceeds of such U.S. Revolving Credit Loans shall be
simultaneously applied to repay outstanding U.S. Revolving Credit Loans,
Canadian Revolving Credit Loans, Multicurrency Loans and/or Alternate Currency
Loans of the Multicurrency Lenders or their Counterpart Lenders (as directed by
the U.S. Borrower) in each case in amounts such that, after giving effect to (1)
such borrowings and repayments and (2) the borrowing from the Multicurrency
Lenders of the Requested Multicurrency Loans, the Committed Outstandings
Percentage of each U.S. Lender will equal (as nearly as possible) its U.S.
Revolving Credit Commitment Percentage. To effect such borrowings and
repayments, (x) not later than 12:00 Noon, New York City time, on such Borrowing
Date, the proceeds of such U.S. Revolving Credit Loans shall be made available
by each Non-Multicurrency Lender to the General Administrative Agent at its
office specified in subsection 18.2 in U.S. Dollars and in immediately available
funds and the General Administrative Agent shall apply the proceeds of such U.S.
Revolving Credit Loans toward repayment of outstanding U.S. Revolving Credit
Loans, Canadian Revolving Credit Loans, Multicurrency Loans and/or Alternate
Currency Loans of the Multicurrency Lenders or their Counterpart Lenders (as
directed by the U.S. Borrower) and (y) concurrently with the repayment of such
Loans on such Borrowing Date, (I) the Multicurrency Lenders shall, in accordance
with the applicable provisions hereof, make the Requested Multicurrency Loans in
an aggregate amount equal to the amount so requested by such Borrower (but not
in any event greater than the Aggregate Available Multicurrency Commitments
after giving effect to the making of such repayment of any Loans on such
Borrowing Date) and (II) the relevant Borrower shall pay to the General
Administrative Agent for the account of the Lenders whose Loans to such Borrower
are repaid on such Borrowing Date pursuant to this subsection 2.5 all interest
accrued on the amounts repaid to the date of repayment, together with any
amounts payable pursuant to subsection 10.11 in connection with such repayment.
(c) If on any Borrowing Date on which an Alternate Currency
Borrower has requested Alternate Currency Lenders to make Alternate Currency
Loans (the "Requested Alternate Currency Loans") under an Alternate Currency
Facility to which such Alternate Currency Borrower and Alternate Currency
Lenders are parties (i) the aggregate principal amount of the Requested
Alternate Currency Loans exceeds the aggregate unused portions of the
commitments of such Alternate Currency Lenders under such Alternate Currency
Facility on such Borrowing Date (before giving effect to the making and payment
of any U.S. Revolving Credit Loans required to be made pursuant to this
subsection 2.5 on such Borrowing Date), (ii) after giving effect to the
Requested Alternate Currency Loans, the U.S. Dollar Equivalent of the aggregate
outstanding principal amount of Alternate Currency Loans of such Alternate
Currency Borrower will be less than or equal to the aggregate commitments of
such Alternate Currency Lenders under such Alternate Currency Facility and (iii)
the U.S. Dollar Equivalent of the amount of the excess described in clause (i)
above is less than or equal to the Aggregate Available U.S. Revolving Credit
Commitments of all U.S. Lenders other than such Alternate Currency Lenders
(before giving effect to the making and payment of any U.S. Revolving Credit
Loans pursuant to this subsection 2.5 on such Borrowing Date), each such other
U.S. Lender shall make a U.S. Revolving Credit Loan to the U.S. Borrower on such
Borrowing Date, and the proceeds of such U.S. Revolving Credit Loans shall be
simultaneously applied to repay outstanding U.S. Revolving Credit Loans,
Canadian Revolving Credit Loans, Multicurrency Loans and/or Alternate Currency
Loans of such Alternate Currency Lenders or their Counterpart
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Lenders (as directed by the U.S. Borrower) in each case in amounts such that,
after giving effect to (1) such borrowings and repayments and (2) the borrowing
from such Alternate Currency Lenders of the Requested Alternate Currency Loans,
the Committed Outstandings Percentage of each U.S. Lender will equal (as nearly
as possible) its U.S. Revolving Credit Commitment Percentage. To effect such
borrowings and repayments, (x) not later than 12:00 Noon, New York City time, on
such Borrowing Date, the proceeds of such U.S. Revolving Credit Loans shall be
made available by each such other Lender to the General Administrative Agent at
its office specified in subsection 18.2 in U.S. Dollars and in immediately
available funds and the General Administrative Agent shall apply the proceeds of
such U.S. Revolving Credit Loans toward repayment of outstanding U.S. Revolving
Credit Loans, Canadian Revolving Credit Loans, Multicurrency Loans and/or
Alternate Currency Loans of such Alternate Currency Lenders or their Counterpart
Lenders (as directed by the U.S. Borrower) and (y) concurrently with the
repayment of such Loans on such Borrowing Date, (I) such Alternate Currency
Lenders shall, in accordance with the applicable provisions hereof, make the
Requested Alternate Currency Loans in an aggregate amount equal to the amount so
requested by such Alternate Currency Borrower and (II) the relevant Borrower
shall pay to the General Administrative Agent for the account of the Lenders
whose Loans to such Borrower are repaid on such Borrowing Date pursuant to this
subsection 2.5 all interest accrued on the amounts repaid to the date of
repayment, together with any amounts payable pursuant to subsection 10.11 in
connection with such repayment.
(d) If any borrowing of U.S. Revolving Credit Loans is
required pursuant to this subsection 2.5, the U.S. Borrower shall notify the
General Administrative Agent in the manner provided for U.S. Revolving Credit
Loans in subsection 2.3, except that the minimum borrowing amounts and threshold
multiples in excess thereof applicable to ABR Loans set forth in subsection 2.3
shall not be applicable to the extent that such minimum borrowing amounts exceed
the amounts of U.S. Revolving Credit Loans required to be made pursuant to this
subsection 2.5.
SECTION 3. AMOUNT AND TERMS OF SWING LINE
COMMITMENTS
3.1 Swing Line Commitments. Subject to the terms and
conditions hereof, the Swing Line Lender agrees to make swing line loans
(individually, a "Swing Line Loan"; collectively, the "Swing Line Loans") in
U.S. Dollars to the U.S. Borrower from time to time during the Revolving Credit
Commitment Period in an aggregate principal amount at any one time outstanding
not to exceed $150,000,000, so long as after giving effect thereto (i) the
Available U.S. Revolving Credit Commitment of each U.S. Lender is greater than
or equal to zero and (ii) the Aggregate Total Outstandings of all Lenders do not
exceed the Aggregate U.S. Revolving Credit Commitments. Amounts borrowed by the
U.S. Borrower under this Section 3 may be repaid and, during the Revolving
Credit Commitment Period, reborrowed.
3.2 Procedure for Swing Line Borrowings; Interest Rate. (a)
The U.S. Borrower shall give the Swing Line Lender irrevocable notice (which
notice must be received by such Swing Line Lender prior to 12:00 P.M., New York
City time on the requested Borrowing Date)
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specifying the amount of the requested Swing Line Loan, which shall be in an
aggregate principal amount of not less than $100,000 or a whole multiple of
$100,000 in excess thereof. The proceeds of the Swing Line Loan will be made
available by the Swing Line Lender to the U.S. Borrower at the office of the
Swing Line Lender by crediting the account of the U.S. Borrower at such office
with such proceeds in U.S. Dollars.
(b) Unless otherwise agreed between the U.S. Borrower and the
Swing Line Lender, each Swing Line Loan shall be an ABR Loan. Any such ABR Loan
may not be converted into a Eurodollar Loan. If, however, the U.S. Borrower and
the Swing Line Lender agree that a Swing Line Loan (a "Money Market Rate Swing
Line Loan") shall bear interest at a fixed interest rate (a "Money Market Rate")
for a fixed interest period of up to 7 days, such Money Market Rate Swing Line
Loan shall bear interest for such interest period at such interest rate so
agreed upon. If a Money Market Rate Swing Line Loan is not repaid on the last
day of the interest period with respect thereto, it shall on such date be
converted automatically to an ABR Loan. A Money Market Rate Swing Line Loan
shall not be optionally prepayable prior to the last day of the interest period
with respect thereto except with the consent of the Swing Line Lender.
3.3 Repayment of Swing Line Loans; Evidence of Debt. (a) The
U.S. Borrower hereby unconditionally promises to pay to the Swing Line Lender
the then unpaid principal amount of the Swing Line Loans on the Revolving Credit
Termination Date and on such other dates and in such other amounts as may be
required from time to time pursuant to this Agreement. The U.S. Borrower hereby
further agrees to pay interest on the unpaid principal amount of the Swing Line
Loans from time to time outstanding until payment thereof in full at the rates
per annum, and on the dates, set forth in subsection 10.1.
(b) The Swing Line Lender shall maintain in accordance with
its usual practice an account or accounts evidencing indebtedness of the U.S.
Borrower resulting from each Swing Line Loan made by it from time to time,
including the amounts of principal and interest payable thereon and paid from
time to time under this Agreement.
(c) The General Administrative Agent (together with the
Canadian Administrative Agent) shall maintain the Register pursuant to
subsection 18.6(d), and a subaccount therein for the Swing Line Lender, in which
shall be recorded (i) the date and amount of each Swing Line Loan made
hereunder, (ii) the amount of each U.S. Lender's participating interest in such
Swing Line Loans, (iii) the date and amount of any principal or interest due and
payable or to become due and payable from the U.S. Borrower hereunder in respect
of the Swing Line Loans and (iv) both the date and amount of any sum received by
the General Administrative Agent hereunder from the U.S. Borrower in respect of
the Swing Line Loans, each U.S. Lender's participating interest therein (if any)
and the amount thereof payable to the Swing Line Lender.
(d) The entries made in the Register and the accounts of the
Swing Line Lender maintained pursuant to this subsection 3.3 shall, to the
extent permitted by applicable law, be prima facie evidence of the existence and
amounts of the obligations of the U.S. Borrower therein recorded; provided,
however, that the failure of the Swing Line Lender or the
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Administrative Agents to maintain the Register or any such account, or any error
therein, shall not in any manner affect the obligation of the U.S. Borrower to
repay (with applicable interest) the Swing Line Loans made to the U.S. Borrower
by the Swing Line Lender in accordance with the terms of this Agreement.
3.4 Refunding of Swing Line Borrowings. The Swing Line Lender,
at any time in its sole and absolute discretion may, on behalf of the U.S.
Borrower (which hereby irrevocably directs and authorizes the Swing Line Lender
to act on its behalf), request each U.S. Lender, including Chase, to make a U.S.
Revolving Credit Loan (which shall be an ABR Loan) in an amount equal to such
U.S. Lender's Funding Commitment Percentage of the principal amount of the Swing
Line Loans (the "Refunded Swing Line Loans") outstanding on the date such notice
is given; provided that the provisions of this subsection shall not affect the
U.S. Borrower's obligations to repay Swing Line Loans in accordance with the
provisions of subsections 3.3 and 10.4(d) and (g). Unless the U.S. Revolving
Credit Commitments shall have expired or terminated (in which event the
procedures of subsection 3.5 shall apply), each U.S. Lender will make the
proceeds of the U.S. Revolving Credit Loan made by it pursuant to the
immediately preceding sentence available to the General Administrative Agent at
the office of the General Administrative Agent specified in subsection 18.2
prior to 12:00 Noon, New York City time, in funds immediately available on the
Business Day next succeeding the date such notice is given. The proceeds of such
U.S. Revolving Credit Loans shall be immediately made available by the General
Administrative Agent to the Swing Line Lender for application to the payment in
full of the Refunded Swing Line Loans. Upon any request by the Swing Line Lender
to the U.S. Lenders pursuant to this subsection 3.4, the General Administrative
Agent shall promptly give notice to the U.S. Borrower of such request.
3.5 Participating Interests. (a) If the U.S. Revolving Credit
Commitments shall expire or terminate at any time while Swing Line Loans are
outstanding, at the request of the Swing Line Lender in its sole discretion,
either (i) each U.S. Lender (including Chase) shall, notwithstanding the
expiration or termination of the U.S. Revolving Credit Commitments, make a U.S.
Revolving Credit Loan (which shall be an ABR Loan) or (ii) each U.S. Lender
(other than Chase) shall purchase an undivided participating interest in the
Swing Line Loans of the Swing Line Lender, in either case in an amount equal to
such U.S. Lender's Funding Commitment Percentage (determined on the date of, and
immediately prior to, expiration or termination of the U.S. Revolving Credit
Commitments) of the aggregate principal amount of such Swing Line Loans. Each
U.S. Lender will make the proceeds of any U.S. Revolving Credit Loan made by it
pursuant to the immediately preceding sentence available to the General
Administrative Agent for the account of the Swing Line Lender at the office of
the General Administrative Agent specified in subsection 18.2 prior to 12:00
Noon, New York City time, in funds immediately available on the Business Day
next succeeding the date of the request by the Swing Line Lender. The proceeds
of such U.S. Revolving Credit Loans shall be immediately applied to repay the
Swing Line Loans outstanding on the date of termination or expiration of the
U.S. Revolving Credit Commitments. In the event that any of the U.S. Lenders
purchase undivided participating interests pursuant to the first sentence of
this subsection 3.5(a), each U.S. Lender shall immediately transfer to the Swing
Line Lender, in immediately available funds, the amount of its participation in
the Swing Line Loans of the Swing Line Lender and upon receipt thereof the
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Swing Line Lender will deliver to any such U.S. Lender that so requests a
confirmation of such U.S. Lender's undivided participating interest in the Swing
Line Loans of the Swing Line Lender dated the date of receipt of such funds and
in such amount.
(b) Whenever, at any time after the Swing Line Lender has
received payment from any U.S. Lender in respect of such U.S. Lender's
participating interest in a Swing Line Loan of the Swing Line Lender, the Swing
Line Lender receives any payment on account thereof, the Swing Line Lender will
distribute to such U.S. Lender its participating interest in such amount
(appropriately adjusted, in the case of interest payments, to reflect the period
of time during which such U.S. Lender's participating interest was outstanding
and funded); provided, however, that in the event that any such payment received
by the Swing Line Lender is required to be returned, such U.S. Lender will
return to the Swing Line Lender any portion thereof previously distributed by
the Swing Line Lender to it.
SECTION 4. AMOUNT AND TERMS OF CAF ADVANCES
4.1 CAF Advances. Subject to the terms and conditions of this
Agreement, the U.S. Borrower may borrow CAF Advances in U.S. Dollars from time
to time on any Business Day during the CAF Advance Availability Period. CAF
Advances may be borrowed in amounts such that the Aggregate Total Outstandings
of all Lenders at any time shall not exceed the Aggregate U.S. Revolving Credit
Commitments at such time. Within the limits and on the conditions hereinafter
set forth with respect to CAF Advances, the U.S. Borrower from time to time may
borrow, repay and reborrow CAF Advances.
4.2 Procedure for CAF Advance Borrowing. (a) The U.S. Borrower
shall request CAF Advances by delivering a CAF Advance Request to the General
Administrative Agent, not later than 12:00 Noon, New York City time, four
Business Days prior to the proposed Borrowing Date (in the case of a LIBO Rate
CAF Advance Request), and not later than 10:00 A.M., New York City time one
Business Day prior to the proposed Borrowing Date (in the case of a Fixed Rate
CAF Advance Request). Each CAF Advance Request in respect of any Borrowing Date
may solicit bids for CAF Advances on such Borrowing Date in an aggregate
principal amount of $5,000,000 or an integral multiple of $1,000,000 in excess
thereof and having not more than five alternative CAF Advance Maturity Dates.
The CAF Advance Maturity Date for each CAF Advance shall be the date set forth
therefor in the relevant CAF Advance Request, which date shall be (i) not less
than 7 days nor more than 360 days after the Borrowing Date therefor, in the
case of a Fixed Rate CAF Advance, (ii) one, two, three, six, nine or twelve
months after the Borrowing Date therefor, in the case of a LIBO CAF Advance and
(iii) not later than the Revolving Credit Termination Date, in the case of any
CAF Advance. The General Administrative Agent shall notify each Lender promptly
by facsimile transmission of the contents of each CAF Advance Request received
by the General Administrative Agent.
(b) In the case of a LIBO Rate CAF Advance Request, upon
receipt of notice from the General Administrative Agent of the contents of such
CAF Advance Request, each Lender may elect, in its sole discretion, to offer
irrevocably to make one or more CAF Advances
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at the applicable LIBO Rate plus (or minus) a margin determined by such Lender
in its sole discretion for each such CAF Advance. Any such irrevocable offer
shall be made by delivering a CAF Advance Offer to the General Administrative
Agent, before 10:30 A.M., New York City time, on the day that is three Business
Days before the proposed Borrowing Date, setting forth:
(i) the maximum amount of CAF Advances for each CAF
Advance Maturity Date and the aggregate maximum amount of CAF Advances
for all CAF Advance Maturity Dates which such Lender would be willing
to make (which amounts may, subject to subsection 4.1, exceed such
Lender's U.S. Revolving Credit Commitment); and
(ii) the margin above or below the applicable LIBO Rate
at which such Lender is willing to make each such CAF Advance.
The General Administrative Agent shall advise the U.S. Borrower before 11:00
A.M., New York City time, on the date which is three Business Days before the
proposed Borrowing Date of the contents of each such CAF Advance Offer received
by it. If the General Administrative Agent, in its capacity as a Lender, shall
elect, in its sole discretion, to make any such CAF Advance Offer, it shall
advise the U.S. Borrower of the contents of its CAF Advance Offer before 10:15
A.M., New York City time, on the date which is three Business Days before the
proposed Borrowing Date.
(c) In the case of a Fixed Rate CAF Advance Request, upon
receipt of notice from the General Administrative Agent of the contents of such
CAF Advance Request, each Lender may elect, in its sole discretion, to offer
irrevocably to make one or more CAF Advances at a rate of interest determined by
such Lender in its sole discretion for each such CAF Advance. Any such
irrevocable offer shall be made by delivering a CAF Advance Offer to the General
Administrative Agent before 9:30 A.M., New York City time, on the proposed
Borrowing Date, setting forth:
(i) the maximum amount of CAF Advances for each CAF
Advance Maturity Date, and the aggregate maximum amount of CAF Advances
for all CAF Advance Maturity Dates, which such Lender would be willing
to make (which amounts may, subject to subsection 4.1, exceed such
Lender's U.S. Revolving Credit Commitment); and
(ii) the rate of interest at which such Lender is willing
to make each such CAF Advance.
The General Administrative Agent shall advise the U.S. Borrower before 10:00
A.M., New York City time, on the proposed Borrowing Date of the contents of each
such CAF Advance Offer received by it. If the General Administrative Agent, in
its capacity as a Lender, shall elect, in its sole discretion, to make any such
CAF Advance Offer, it shall advise the U.S. Borrower of the contents of its CAF
Advance Offer before 9:15 A.M., New York City time, on the proposed Borrowing
Date.
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(d) Before 11:30 A.M., New York City time, three Business Days
before the proposed Borrowing Date (in the case of CAF Advances requested by a
LIBO Rate CAF Advance Request) and before 10:30 A.M., New York City time, on the
proposed Borrowing Date (in the case of CAF Advances requested by a Fixed Rate
CAF Advance Request), the U.S. Borrower, in its absolute discretion, shall:
(i) cancel such CAF Advance Request by giving the
General Administrative Agent telephone notice to that effect, or
(ii) by giving telephone notice to the General
Administrative Agent (immediately confirmed by delivery to the General
Administrative Agent of a CAF Advance Confirmation by facsimile
transmission) (A) subject to the provisions of subsection 4.2(e),
accept one or more of the offers made by any Lender or Lenders pursuant
to subsection 4.2(b) or subsection 4.2(c), as the case may be, and (B)
reject any remaining offers made by Lenders pursuant to subsection
4.2(b) or subsection 4.2(c), as the case may be.
(e) The U.S. Borrower's acceptance of CAF Advances in response
to any CAF Advance Offers shall be subject to the following limitations:
(i) the amount of CAF Advances accepted for each CAF
Advance Maturity Date specified by any Lender in its CAF Advance Offer
shall not exceed the maximum amount for such CAF Advance Maturity Date
specified in such CAF Advance Offer;
(ii) the aggregate amount of CAF Advances accepted for
all CAF Advance Maturity Dates specified by any Lender in its CAF
Advance Offer shall not exceed the aggregate maximum amount specified
in such CAF Advance Offer for all such CAF Advance Maturity Dates;
(iii) the U.S. Borrower may not accept offers for CAF
Advances for any CAF Advance Maturity Date in an aggregate principal
amount in excess of the maximum principal amount requested in the
related CAF Advance Request; and
(iv) if the U.S. Borrower accepts any of such offers, it
must accept offers based solely upon pricing for each relevant CAF
Advance Maturity Date and upon no other criteria whatsoever, and if two
or more Lenders submit offers for any CAF Advance Maturity Date at
identical pricing and the U.S. Borrower accepts any of such offers but
does not wish to (or, by reason of the limitations set forth in
subsection 4.1, cannot) borrow the total amount offered by such Lenders
with such identical pricing, the U.S. Borrower shall accept offers from
all of such Lenders in amounts allocated among them pro rata according
to the amounts offered by such Lenders (with appropriate rounding, in
the sole discretion of the U.S. Borrower, to assure that each accepted
CAF Advance is an integral multiple of $1,000,000); provided that if
the number of Lenders that submit offers for any CAF Advance Maturity
Date at identical pricing is such that, after the U.S. Borrower accepts
such offers pro rata in accordance with the foregoing provisions of
this
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47
paragraph, the CAF Advance to be made by any such Lender would be
less than $5,000,000 principal amount, the number of such Lenders shall
be reduced by the General Administrative Agent by lot until the CAF
Advances to be made by each such remaining Lender would be in a
principal amount of $5,000,000 or an integral multiple of $1,000,000
in excess thereof.
(f) If the U.S. Borrower notifies the General Administrative
Agent that a CAF Advance Request is cancelled pursuant to subsection 4.2(d)(i),
the General Administrative Agent shall give prompt telephone notice thereof to
the Lenders. If the U.S. Borrower fails to notify the General Administrative
Agent of its cancellation or acceptance of CAF Advance Offers by the times
specified in subsection 4.2(d), the corresponding CAF Advance Request shall be
deemed cancelled.
(g) If the U.S. Borrower accepts pursuant to subsection
4.2(d)(ii) one or more of the offers made by any Lender or Lenders, the General
Administrative Agent promptly shall notify each Lender which has made such an
offer of (i) the aggregate amount of such CAF Advances to be made on the
applicable Borrowing Date for each CAF Advance Maturity Date and (ii) the
acceptance or rejection of any offers to make such CAF Advances made by such
Lender. Before 12:00 Noon, New York City time, on the Borrowing Date specified
in the applicable CAF Advance Request, each Lender whose CAF Advance Offer has
been accepted shall make available to the General Administrative Agent at its
office set forth in subsection 18.2 the amount of CAF Advances to be made by
such Lender, in immediately available funds. The General Administrative Agent
will make such funds available to the U.S. Borrower as soon as practicable on
such date at such office of the General Administrative Agent. As soon as
practicable after each Borrowing Date, the General Administrative Agent shall
notify each Lender of the aggregate amount of CAF Advances advanced on such
Borrowing Date and the respective CAF Advance Maturity Dates thereof.
4.3 CAF Advance Payments. (a) The U.S. Borrower shall pay to
the General Administrative Agent, for the account of each Lender which has made
a CAF Advance, on the applicable CAF Advance Maturity Date the then unpaid
principal amount of such CAF Advance. The U.S. Borrower shall not have the right
to prepay any principal amount of any CAF Advance without the consent of the
Lender to which such CAF Advance is owed.
(b) The U.S. Borrower shall pay interest on the unpaid
principal amount of each CAF Advance from the Borrowing Date to the applicable
CAF Advance Maturity Date at the rate of interest specified in the CAF Advance
Offer accepted by the U.S. Borrower in connection with such CAF Advance
(calculated on the basis of a 360-day year for actual days elapsed), payable on
each applicable CAF Advance Interest Payment Date.
(c) If any principal of, or interest on, any CAF Advance shall
not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such CAF Advance shall, without limiting any rights of any Lender
under this Agreement, bear interest from the date on which such payment was due
at a rate per annum which is 2% above the rate which would otherwise be
applicable to such CAF Advance until the stated CAF Advance Maturity Date of
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such CAF Advance, and for each day thereafter at a rate per annum which is 2%
above the ABR, in each case until paid in full (as well after as before
judgment). Interest accruing pursuant to this paragraph (c) shall be payable
from time to time on demand.
4.4 Evidence of Debt. (a) The U.S. Borrower unconditionally
promises to pay to the General Administrative Agent, for the account of each
Lender that makes a CAF Advance, on the CAF Advance Maturity Date with respect
thereto, the principal amount of such CAF Advance. The U.S. Borrower further
unconditionally promises to pay interest on each such CAF Advance for the period
from and including the Borrowing Date of such CAF Advance on the unpaid
principal amount thereof from time to time outstanding at the applicable rate
per annum determined as provided in, and payable as specified in, subsection
4.3(b).
(b) Each Lender shall maintain in accordance with its usual
practice appropriate records evidencing indebtedness of the U.S. Borrower to
such Lender resulting from each CAF Advance of such Lender from time to time,
including the amounts of principal and interest payable and paid to such Lender
from time to time in respect of such CAF Advance.
(c) The General Administrative Agent shall maintain the
Register pursuant to subsection 18.6(d), and a subaccount therein for each
Lender, in which shall be recorded (i) the date and amount of each CAF Advance
made by such Lender, the CAF Advance Maturity Date thereof, the interest rate
applicable thereto and each CAF Advance Interest Payment Date applicable
thereto, and (ii) the date and amount of any sum received by the General
Administrative Agent hereunder from the U.S. Borrower on account of such CAF
Advance.
(d) The entries made in the Register and the records of each
Lender maintained pursuant to this subsection 4.4 shall, to the extent permitted
by applicable law, be prima facie evidence of the existence and amounts of the
obligations of the U.S. Borrower therein recorded; provided, however, that the
failure of any Lender or the General Administrative Agent to maintain the
Register or any such record, or any error therein, shall not in any manner
affect the obligation of the U.S. Borrower to repay (with applicable interest)
the CAF Advances made by such Lender in accordance with the terms of this
Agreement.
4.5 Certain Restrictions. A CAF Advance Request may request
offers for CAF Advances to be made on not more than one Borrowing Date and to
mature on not more than five CAF Advance Maturity Dates. No CAF Advance Request
may be submitted earlier than five Business Days after submission of any other
CAF Advance Request.
SECTION 5. AMOUNT AND TERMS OF THE CANADIAN
COMMITMENTS
5.1 Canadian Revolving Credit Commitments. Subject to the
terms and conditions hereof, each Canadian Lender severally agrees to make
revolving credit loans (each, a "Canadian Revolving Credit Loan") to the
Canadian Borrower in Canadian Dollars or in U.S. Dollars from time to time
during the Revolving Credit Commitment Period so long as after
<PAGE> 56
49
giving effect thereto (i) the Available Canadian Revolving Credit Commitment of
each Canadian Lender is greater than or equal to zero and (ii) the Aggregate
Total Outstandings of all Lenders do not exceed the Aggregate U.S. Revolving
Credit Commitments. During the Revolving Credit Commitment Period, the Canadian
Borrower may use the Canadian Revolving Credit Commitments by borrowing,
repaying the Canadian Revolving Credit Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof. The
Canadian Revolving Credit Loans denominated in Canadian Dollars shall be Prime
Rate Loans, and the Canadian Revolving Credit Loans denominated in U.S. Dollars
shall be Canadian Base Rate Loans.
5.2 Repayment of Canadian Revolving Credit Loans; Evidence of
Debt. (a) The Canadian Borrower hereby unconditionally promises to pay to the
Canadian Administrative Agent for the account of each Canadian Lender the then
unpaid principal amount of each Canadian Revolving Credit Loan of such Canadian
Lender (whether made before or after the termination or expiration of the
Canadian Revolving Credit Commitments) on the Revolving Credit Termination Date
and on such other date(s) and in such other amounts as may be required from time
to time pursuant to this Agreement. The Canadian Borrower hereby further agrees
to pay interest on the unpaid principal amount of the Canadian Revolving Credit
Loans from time to time outstanding until payment thereof in full at the rates
per annum, and on the dates, set forth in subsection 10.1.
(b) Each Canadian Lender shall maintain in accordance with its
usual practice an account or accounts evidencing indebtedness of the Canadian
Borrower to such Canadian Lender resulting from each Canadian Revolving Credit
Loan of such Canadian Lender from time to time, including the amounts of
principal and interest payable thereon and paid to such Canadian Lender from
time to time under this Agreement.
(c) The Canadian Administrative Agent (together with the
General Administrative Agent) shall maintain the Register pursuant to subsection
18.6(d), and a subaccount therein for each Canadian Lender, in which shall be
recorded (i) the date and amount of each Canadian Revolving Credit Loan made
hereunder, (ii) the date and amount of any principal or interest due and payable
or to become due and payable from the Canadian Borrower to each Canadian Lender
hereunder in respect of the Canadian Revolving Credit Loans and (iii) both the
date and amount of any sum received by the Canadian Administrative Agent
hereunder from the Canadian Borrower in respect of the Canadian Revolving Credit
Loans and each Canadian Lender's share thereof.
(d) The entries made in the Register and the accounts of each
Canadian Lender maintained pursuant to subsection 5.2(b) shall, to the extent
permitted by applicable law, be prima facie evidence of the existence and
amounts of the obligations of the Canadian Borrower therein recorded; provided,
however, that the failure of any Canadian Lender or the General Administrative
Agents to maintain the Register or any such account, or any error therein, shall
not in any manner affect the obligation of the Canadian Borrower to repay (with
applicable interest) the Canadian Revolving Credit Loans made to the Canadian
Borrower by such Canadian Lender in accordance with the terms of this Agreement.
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(e) The Canadian Borrower agrees that, upon the request to the
Canadian Administrative Agent by any Canadian Lender, it will execute and
deliver to such Canadian Lender a promissory note of the Canadian Borrower
evidencing the Canadian Revolving Credit Loans of such Canadian Lender,
substantially in the form of Exhibit B with appropriate insertions as to date
and principal amount (each, a "Canadian Revolving Credit Note"); provided, that
the delivery of such Canadian Revolving Credit Notes shall not be a condition
precedent to the Closing Date.
5.3 Procedure for Canadian Revolving Credit Borrowing. The
Canadian Borrower may borrow under the Canadian Revolving Credit Commitments
during the Revolving Credit Commitment Period on any Business Day, provided that
the Canadian Borrower shall give the Canadian Administrative Agent irrevocable
notice (which notice must be received by the Canadian Administrative Agent prior
to 12:00 Noon, Toronto time, at least one Business Day prior to the requested
Borrowing Date), specifying (i) the amount to be borrowed and (ii) the requested
Borrowing Date. Each borrowing in Canadian Dollars under the Canadian Revolving
Credit Commitments shall be in an amount equal to C$5,000,000 or a whole
multiple of C$1,000,000 in excess thereof, and each borrowing in U.S. Dollars
under the Canadian Revolving Credit Commitments shall be in an amount equal to
$5,000,000 or a whole multiple of $1,000,000 in excess thereof (or, in each
case, if the then Aggregate Available Canadian Revolving Credit Commitments are
less than C$5,000,000 or $5,000,000, as the case may be, such lesser amount).
Upon receipt of any such notice from the Canadian Borrower, the Canadian
Administrative Agent shall promptly notify the General Administrative Agent and
each Canadian Lender thereof. Not later than 12:00 Noon, Toronto time, on each
requested Borrowing Date each Canadian Lender shall make an amount equal to its
Canadian Revolving Credit Commitment Percentage of the principal amount of
Canadian Revolving Credit Loans requested to be made on such Borrowing Date
available to the Canadian Administrative Agent at its office specified in
subsection 18.2 in Canadian Dollars or U.S. Dollars, as the case may be, and in
immediately available funds. The Canadian Administrative Agent shall on such
date credit the account of the Canadian Borrower on the books of such office
with the aggregate of the amounts made available to the Canadian Administrative
Agent by the Canadian Lenders and in like funds as received by the Canadian
Administrative Agent.
5.4 Termination or Reduction of Canadian Revolving Credit
Commitments. The U.S. Borrower shall have the right, upon not less than three
Business Days' notice to the Canadian Administrative Agent, to terminate the
Canadian Revolving Credit Commitments or, from time to time, to reduce the
amount of the Canadian Revolving Credit Commitments; provided that no such
termination or reduction shall be permitted (i) unless the U.S. Borrower elects
to terminate or reduce the U.S. Revolving Credit Commitments of the U.S. Common
Lenders by an amount equal to the U.S. Dollar Equivalent of the aggregate
Canadian Revolving Credit Commitments of all Canadian Lenders being reduced or
terminated or (ii) if, after giving effect thereto and to any prepayments of the
Loans made on the effective date thereof, the Available Canadian Revolving
Credit Commitment of any Canadian Lender would be less than zero. Any such
reduction shall be in an amount equal to C$5,000,000 or a whole multiple of
C$1,000,000 in excess thereof and shall reduce permanently the Canadian
Revolving Credit Commitments then in effect.
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SECTION 6. AMOUNT AND TERMS OF CANADIAN
ACCEPTANCE FACILITY
6.1 Acceptance Commitments. (a) Subject to the terms and
conditions hereof, each Canadian Lender severally agrees to create Acceptances
for the Canadian Borrower on any Business Day during the Revolving Credit
Commitment Period by accepting Drafts drawn by the Canadian Borrower so long as
after giving effect to such acceptance, (i) the Available Canadian Revolving
Credit Commitment of such Canadian Lender would be greater than or equal to zero
and (ii) the Aggregate Total Outstandings of all Lenders do not exceed the
Aggregate U.S.
Revolving Credit Commitments.
(b) The Canadian Borrower may utilize the Canadian Revolving
Credit Commitments in the manner contemplated by this Section 6 by authorizing
each Canadian Lender in the manner provided for in subsection 6.2(b) to draw
Drafts on such Canadian Lender and having such Drafts accepted pursuant to
subsection 6.2, paying its obligations with respect thereto pursuant to
subsection 6.5, and again, from time to time, authorizing Drafts to be drawn on
the Canadian Lenders and having them presented for acceptance, all in accordance
with the terms and conditions of this Section 6.
(c) For the purposes of this Agreement, all Acceptances shall
be considered a utilization of the Canadian Revolving Credit Commitments in an
amount equal to the undiscounted face amount of such Acceptance.
6.2 Creation of Acceptances. (a) The Canadian Borrower may
request the creation of Acceptances hereunder by submitting to the Canadian
Administrative Agent at its office specified in subsection 18.2 prior to 11:00
A.M., Toronto time, two Business Days prior to the requested Borrowing Date, (i)
a request for acceptances (each, a "Request for Acceptances") completed in a
manner and in form and substance reasonably satisfactory to the Canadian
Administrative Agent and specifying, among other things, the Borrowing Date,
maturity and face amount of the Drafts to be accepted and discounted, (ii) to
the extent not theretofore supplied to each Canadian Lender, a sufficient number
of Drafts to be drawn on the Canadian Lenders, to be appropriately completed in
accordance with subsection 6.2(d) and (iii) such other certificates, documents
and other papers and information as the Canadian Administrative Agent may
reasonably request. Upon receipt of any such Request for Acceptances, the
Canadian Administrative Agent shall promptly notify each Canadian Lender and the
General Administrative Agent of its receipt thereof.
(b) The Canadian Borrower hereby agrees that it shall deliver
to the Canadian Administrative Agent on or prior to the Closing Date, Powers of
Attorney substantially in the form annexed hereto as Exhibit D (the "Powers of
Attorney") authorizing each Canadian Lender to draw Drafts on such Canadian
Lender on behalf of the Canadian Borrower and to complete such Drafts in
accordance with the Requests for Acceptances submitted from time to time
pursuant to subsection 6.2(a).
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(c) Each Request for Acceptances made by or on behalf of the
Canadian Borrower hereunder shall contain a request for Acceptances denominated
in Canadian Dollars and having an aggregate undiscounted face amount equal to
C$5,000,000 or a whole multiple of C$1,000,000 in excess thereof. Each
Acceptance shall be dated the Borrowing Date specified in the Request for
Acceptances with respect thereto and shall be stated to mature on a Business Day
which is not less than 30 days and not more than 180 days after the date thereof
(and, in any event, prior to the Revolving Credit Termination Date).
(d) Not later than 12:00 Noon, Toronto time, on the Borrowing
Date specified in the relevant Request for Acceptances, and upon fulfillment of
the applicable conditions set forth in subsection 12.2, each Canadian Lender
will, in accordance with such Request for Acceptances, (i) sign each Draft on
behalf of the Canadian Borrower pursuant to the Power of Attorney, (ii) complete
the date, amount and maturity of each Draft to be accepted, (iii) accept such
Drafts and give notice to the Canadian Administrative Agent of such acceptance
and (iv) upon such acceptance, purchase such Acceptances to the extent
contemplated by subsection 6.3. Alternatively, at the request of the Canadian
Administrative Agent, the Canadian Borrower shall deliver to the Canadian
Administrative Agent a "depository note" which complies with the requirements of
the Depository Bills and Notes Act (Canada), and consents to the deposit of any
such depository note in the book-based debt clearance system maintained by the
Canadian Depository of Securities. In such circumstances, the delivery of
Acceptances shall be governed by the clearance procedures established
thereunder.
6.3 Discount of Acceptances. (a) Each Canadian Lender hereby
severally agrees, on the terms and subject to the conditions set forth in this
Agreement, to purchase Acceptances created by it on the Borrowing Date with
respect thereto at the applicable Reference Discount Rate by making available to
the Canadian Borrower an amount in immediately available funds equal to the
Acceptance Purchase Price in respect thereof, and to notify the Canadian
Administrative Agent that such Draft has been accepted, discounted and purchased
by such accepting Canadian Lender.
(b) In the event that the Canadian Borrower has made a Request
for Acceptances, then (i) prior to 11:00 A.M., Toronto time, on the Borrowing
Date with respect thereto, the Canadian Administrative Agent will notify the
General Administrative Agent, the Canadian Borrower and the Canadian Lenders of
the applicable Reference Discount Rate for such Acceptances and the
corresponding Acceptance Purchase Price and (ii) each Canadian Lender shall make
the Acceptance Purchase Price for such Acceptances discounted by it available to
the Canadian Administrative Agent, for the account of the Canadian Borrower, at
the office of the Canadian Administrative Agent specified in subsection 18.2
prior to 12:00 Noon, Toronto time, on the Borrowing Date, in Canadian Dollars
and in funds immediately available to the Canadian Administrative Agent. Such
borrowing will then be made available to the Canadian Borrower by the Canadian
Administrative Agent crediting the account of the Canadian Borrower on the books
of such office with the aggregate of the amounts made available to the Canadian
Administrative Agent by the Canadian Lenders and in like funds as received by
the Canadian Administrative Agent.
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(c) Acceptances purchased by any Canadian Lender may be held
by it for its own account until maturity or sold by it at any time prior thereto
in the relevant market therefor in Canada in such Canadian Lender's sole
discretion. The doctrine of merger shall not apply with respect to any
Acceptance held by a Lender at maturity.
6.4 Stamping Fees. On the Borrowing Date with respect to each
Acceptance, the Canadian Borrower shall pay to the Canadian Administrative
Agent, for the account of the Canadian Lenders, a stamping fee at a rate per
annum equal to the Applicable Margin in effect on such Borrowing Date for
Eurodollar Loans, computed for the period from and including the Borrowing Date
with respect to such Acceptance to but not including the maturity of such
Acceptance, on the basis of a 365-day year, of the undiscounted face amount of
such Acceptance.
6.5 Acceptance Reimbursement Obligations. (a) The Canadian
Borrower hereby unconditionally agrees to pay to the Canadian Administrative
Agent for the account of each Canadian Lender, on the maturity date (whether at
stated maturity, by acceleration or otherwise) for each Acceptance created by
such Canadian Lender for the account of the Canadian Borrower, the aggregate
undiscounted face amount of each such then-maturing Acceptance.
(b) The obligation of the Canadian Borrower to reimburse the
Canadian Lenders for then-maturing Acceptances may be satisfied by the Canadian
Borrower by:
(i) paying to the Canadian Administrative Agent, for the
account of the Canadian Lenders, an amount in Canadian Dollars and in
immediately available funds equal to the aggregate undiscounted face
amount of all Acceptances created for the account of the Canadian
Borrower hereunder which are then maturing by 12:00 Noon, Toronto time,
on such maturity date; provided that the Canadian Borrower shall have
given not less than one Business Day's prior notice to the Canadian
Administrative Agent (which shall promptly notify each Canadian Lender
thereof) of its intent to reimburse the Canadian Lenders in the manner
contemplated by this clause (i);
(ii) having new Drafts accepted and discounted by the
Canadian Lenders in the manner contemplated by subsections 6.2 and 6.3
in substitution for the then-maturing Acceptances; provided that (A)
the Canadian Borrower shall have delivered to the Canadian
Administrative Agent (which shall promptly provide a copy thereof to
each Canadian Lender) a duly completed Request for Acceptances not
later than 2:00 P.M., Toronto time, one Business Day prior to such
maturity date, together with the documents, instruments, certificates
and other papers and information contemplated by subsections 6.2(a)(ii)
and 6.2(a)(iii), (B) if any Default or Event of Default has occurred
and is then continuing, the Request for Acceptances shall be deemed to
be a request for a Canadian Revolving Credit Loan in an amount equal to
the undiscounted face amount of the Acceptances requested, (C) each
Canadian Lender shall retain the Acceptance Purchase Price for the
Acceptance created by it and apply such Acceptance Purchase Price to
the Acceptance Reimbursement Obligations of the Canadian Borrower in
respect of the maturing Acceptance created by such Canadian Lender, (D)
if the Acceptance Purchase Price so retained by such Canadian Lender is
less than the undiscounted face amount of
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the then-maturing Acceptance, the Canadian Borrower shall have made
arrangements reasonably satisfactory to such Canadian Lender for
payment of such deficiency and (E) if the Acceptance Purchase Price so
retained by the Canadian Lender is greater than the undiscounted face
amount of the then-maturing Acceptance, the Canadian Lender shall make
such excess available to the Canadian Administrative Agent, which in
turn shall make such excess available to the Canadian Borrower, all in
accordance with subsection 6.3(b); or
(iii) to the extent that the Canadian Borrower has not given
to the Canadian Administrative Agent a notice contemplated by clause
(i) or (ii) above, then the Canadian Borrower shall be deemed to have
requested a borrowing pursuant to subsection 5.1 of Canadian Revolving
Credit Loans in an aggregate principal amount equal to the undiscounted
face amount of such then-maturing Acceptance. The Borrowing Date with
respect to such borrowing shall be the maturity date for such
Acceptance. Except to the extent that any of the events contemplated by
paragraph (i) of Section 16 with respect to the Canadian Borrower has
occurred and is then continuing, each Canadian Lender shall be
obligated to make the Canadian Revolving Credit Loan contemplated by
this subsection 6.5(b)(iii) regardless of whether the conditions
precedent to borrowing set forth in this Agreement are then satisfied.
The proceeds of any Canadian Revolving Credit Loans made pursuant to
this subsection 6.5(b)(iii) shall be retained by the Canadian Lenders
and applied by them to the Acceptance Reimbursement Obligations of the
Canadian Borrower in respect of the then-maturing Acceptance.
(c) The unpaid amount of any such Acceptance Reimbursement
Obligations shall be treated as a Canadian Revolving Credit Loan for the
purposes hereof and interest shall accrue on the amount of any such unpaid
Acceptance Reimbursement Obligation from the date such amount becomes due until
paid in full at a fluctuating rate per annum equal to the rate which would then
be payable on Canadian Revolving Credit Loans. Such interest shall be payable by
the Canadian Borrower on demand by the Canadian Administrative Agent.
(d) In no event shall the Canadian Borrower claim from any
Canadian Lender any grace period with respect to the payment at maturity of any
Acceptances created by such Canadian Lender pursuant to this Agreement.
6.6 Converting Canadian Revolving Credit Loans to Acceptances
and Acceptances to Canadian Revolving Credit Loans. (a) Subject to subsection
6.6(b), the Canadian Borrower may at any time and from time to time request that
any then outstanding Canadian Revolving Credit Loan denominated in Canadian
Dollars be converted into an Acceptance by delivering to the Canadian
Administrative Agent (which shall promptly notify the General Administrative
Agent and each Canadian Lender of its receipt thereof) a Request for
Acceptances, together with a statement that the Acceptances so requested are to
be created pursuant to this subsection 6.6(a), such notice to be given not later
than one Business Day prior to the requested conversion date.
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(b) In the event that the Canadian Administrative Agent
receives such a Request for Acceptances and the accompanying statement described
in subsection 6.6(a), then the Canadian Borrower shall pay on the requested
Borrowing Date to the Canadian Administrative Agent, for the account of the
Canadian Lenders, the principal amount of the then outstanding Canadian
Revolving Credit Loans being so converted, and each Canadian Lender shall accept
and discount the Canadian Borrower's Draft having an aggregate face amount at
least equal to the principal amount of the Canadian Revolving Credit Loans of
such Canadian Lender which are then being repaid; it being understood and agreed
that for the purposes of this subsection 6.6(b), such payment by the Canadian
Borrower of such outstanding Canadian Revolving Credit Loans may be from the
proceeds of such discounted Drafts, provided that, (i) following the occurrence
and during the continuance of a Default or an Event of Default, no Acceptances
may be created and (ii) no Acceptance which is permitted to be created hereunder
shall have a maturity that extends beyond the Revolving Credit Termination Date.
(c) The creation of Acceptances pursuant to this subsection
6.6 shall not be subject to the satisfaction of the conditions precedent to
borrowing set forth in this Agreement.
(d) The Canadian Borrower may elect from time to time to
convert outstanding Acceptances to Canadian Revolving Credit Loans denominated
in Canadian Dollars by giving the Canadian Administrative Agent at least one
Business Day's irrevocable notice of such election prior to the maturity of such
Acceptances; provided that any such conversion of Acceptances may only be made
on the maturity thereof.
6.7 Allocation of Acceptances. The Canadian Borrower hereby
agrees that each Request for Acceptances, reimbursement of Acceptances and
conversion of Canadian Revolving Credit Loans to Acceptances shall be made in a
manner so that any such Request for Acceptances, reimbursement or conversion
shall apply ratably to all Canadian Lenders in accordance with their respective
Canadian Revolving Credit Commitment Percentages. In the event that the
aggregate undiscounted face amount of Acceptances requested by the Canadian
Borrower to be created by all Canadian Lenders hereunder pursuant to any Request
for Acceptances is an amount which, if divided ratably among the Canadian
Lenders in accordance with their respective Canadian Revolving Credit Commitment
Percentages, would not result in each Canadian Lender accepting a Draft which
has an undiscounted face amount equal to C$100,000 or a whole multiple of
C$100,000 in excess thereof, then, notwithstanding any provision in this
subsection 6.7 to the contrary, the Canadian Administrative Agent is authorized
by the Canadian Borrower and the Canadian Lenders to allocate among the Canadian
Lenders the Acceptances to be issued in such manner and amounts as the Canadian
Administrative Agent may, in its sole discretion, acting reasonably, consider
necessary, rounding up or down, so as to ensure that no Canadian Lender is
required to accept a Draft for a fraction of $100,000 and, in such event, the
Canadian Lenders' ratable share with respect to such Acceptances shall be
adjusted accordingly.
6.8 Special Provisions Relating to Acceptance Notes. (a) The
Canadian Borrower and each Canadian Lender hereby acknowledge and agree that
from time to time certain Canadian Lenders which are not Canadian chartered
banks or which are Schedule II
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Canadian Lenders may not be authorized to or may, as a matter of general
corporate policy, elect not to accept Drafts, and the Canadian Borrower and each
Canadian Lender agree that any such Canadian Lender may purchase Acceptance
Notes of the Canadian Borrower in accordance with the provisions of subsection
6.8(b) in lieu of creating Acceptances for its account.
(b) In the event that any Canadian Lender described in
subsection 6.8(a) above is unable to, or elects as a matter of general corporate
policy not to, create Acceptances hereunder, such Canadian Lender shall not
create Acceptances hereunder, but rather, if the Canadian Borrower requests the
creation of such Acceptances, the Canadian Borrower shall deliver to such
Canadian Lender non-interest bearing promissory notes (each, an "Acceptance
Note") of the Canadian Borrower, substantially in the form of Exhibit E, having
the same maturity as the Acceptances to be created and in an aggregate principal
amount equal to the undiscounted face amount of such Acceptances. Each such
Canadian Lender hereby agrees to purchase Acceptance Notes from the Canadian
Borrower at a purchase price equal to the Acceptance Purchase Price which would
have been applicable if a Draft in the same aggregate face amount as the
principal amount of its Acceptance Notes and of the same maturity had been
accepted by it (less any stamping fee which would have been paid pursuant to
subsection 5.4 if such Lender had created an Acceptance) and such Acceptance
Notes shall be governed by the provisions of this Section 6 as if they were
Acceptances.
6.9 Existing Acceptances and Acceptance Notes. Any Acceptances
or Acceptance Notes that (i) are outstanding under the Existing Credit Agreement
on the Closing Day and (ii) were created by or issued to, as the case may be,
lenders under the Existing Credit Agreement that are also Lenders hereunder,
shall continue to be outstanding as Acceptances or Acceptance Notes, as the case
may be, under this Agreement from and after the Closing Date and shall be
governed by the terms hereof as if such Acceptances and Acceptance Notes had
been created or issued hereunder.
SECTION 7. AMOUNT AND TERMS OF MULTICURRENCY
COMMITMENT
7.1 Multicurrency Commitments. Subject to the terms and
conditions hereof, each Multicurrency Lender severally agrees to make revolving
credit loans (each, a "Multicurrency Loan") in any Available Foreign Currency to
the U.S. Borrower or any Foreign Subsidiary Borrower from time to time during
the Revolving Credit Commitment Period so long as after giving effect thereto
(a) the Available Multicurrency Commitment of such Multicurrency Lender is
greater than or equal to zero, (b) the aggregate outstanding principal amount of
Multicurrency Loans does not exceed an amount of which the U.S. Dollar
Equivalent is $500,000,000 and (c) the Aggregate Total Outstandings of all
Lenders do not exceed the Aggregate U.S. Revolving Credit Commitments. During
the Revolving Credit Commitment Period, the U.S. Borrower and Foreign Subsidiary
Borrowers may use the Multicurrency Commitments by borrowing, repaying the
Multicurrency Loans in whole or in part, and reborrowing, all in accordance with
the terms and conditions hereof.
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7.2 Repayment of Multicurrency Loans; Evidence of Debt.
(a) Each of the U.S. Borrower and each Foreign Subsidiary Borrower hereby
unconditionally promises to pay to the General Administrative Agent for the
account of each Multicurrency Lender the then unpaid principal amount of each
Multicurrency Loan of such Multicurrency Lender to such Borrower on the
Revolving Credit Termination Date and on such other date(s) and in such other
amounts as may be required from time to time pursuant to this Agreement. Each of
the U.S. Borrower and each Foreign Subsidiary Borrower hereby further agrees to
pay interest on the unpaid principal amount of the Multicurrency Loans advanced
to it and from time to time outstanding until payment thereof in full at the
rates per annum, and on the dates, set forth in subsection 10.1.
(b) Each Multicurrency Lender shall maintain in accordance
with its usual practice an account or accounts evidencing indebtedness of each
Borrower to such Multicurrency Lender resulting from each Multicurrency Loan of
such Multicurrency Lender from time to time, including the amounts of principal
and interest payable thereon and paid to such Multicurrency Lender from time to
time under this Agreement.
(c) The General Administrative Agent shall maintain the
Register pursuant to subsection 18.6(d), and a subaccount therein for each
Multicurrency Lender, in which shall be recorded (i) the date and amount of each
Multicurrency Loan made hereunder, (ii) the date and amount of any principal or
interest due and payable or to become due and payable from each Borrower to each
Multicurrency Lender hereunder in respect of the Multicurrency Loans and (iii)
both the date and amount of any sum received by the General Administrative Agent
hereunder from each Borrower in respect of the Multicurrency Loans and each
Multicurrency Lender's share thereof.
(d) The entries made in the Register and the accounts of each
Multicurrency Lender maintained pursuant to subsection 7.2(b) shall, to the
extent permitted by applicable law, be prima facie evidence of the existence and
amounts of the obligations of each Borrower therein recorded; provided, however,
that the failure of any Multicurrency Lender or the General Administrative Agent
to maintain the Register or any such account, or any error therein, shall not in
any manner affect the obligation of such Borrower to repay (with applicable
interest) the Multicurrency Loans made to such Borrower by such Multicurrency
Lender in accordance with the terms of this Agreement.
7.3 Procedure for Multicurrency Borrowing. The U.S. Borrower
or any Foreign Subsidiary Borrower may request the Multicurrency Lenders to make
Multicurrency Loans during the Revolving Credit Commitment Period on any
Business Day by delivering a Notice of Multicurrency Loan Borrowing. Each
borrowing under the Multicurrency Commitments shall be in an amount in an
Available Foreign Currency of which the U.S. Dollar Equivalent is equal to at
least $10,000,000 (or, if the then Aggregate Available Multicurrency Commitments
are less than $10,000,000, such lesser amount). Upon receipt of any such Notice
of Multicurrency Borrowing from any Borrower, the General Administrative Agent
shall promptly notify each Multicurrency Lender thereof. Not later than the
funding time for the relevant Available Foreign Currency set forth in the
Administrative Schedule each Multicurrency Lender shall make an amount equal to
its Multicurrency Commitment Percentage of the principal amount of Multicurrency
Loans
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requested to be made on such Borrowing Date available to the General
Administrative Agent at the funding office for the relevant Available Foreign
Currency set forth in the Administrative Schedule in the relevant Available
Foreign Currency and in immediately available funds. The amounts made available
by each Multicurrency Lender will then be made available on such Borrowing Date
to the relevant Borrower at the funding office for the relevant Available
Foreign Currency set forth in the Administrative Schedule and in like funds as
received by the General Administrative Agent.
7.4 Termination or Reduction of Multicurrency Commitments. The
U.S. Borrower shall have the right, upon not less than three Business Days'
notice to the General Administrative Agent, to terminate the Multicurrency
Commitments or, from time to time, to reduce the amount of the Multicurrency
Commitments; provided that no such termination or reduction shall be permitted
if, after giving effect thereto and to any prepayments of the Loans made on the
effective date thereof, the Available Multicurrency Commitment of any
Multicurrency Lender would be less than zero. Any such reduction shall be in an
amount equal to $10,000,000 or a whole multiple of $1,000,000 in excess thereof
and shall reduce permanently the Multicurrency Commitments then in effect.
7.5 Redenomination and Alternative Currencies. Each obligation
under this Agreement of a party to this Agreement which has been denominated in
the national currency unit of a Subsequent Participant state shall be
redenominated into the euro unit in accordance with EMU legislation immediately
upon such Subsequent Participant becoming a Participating Member State (but
otherwise in accordance with EMU Legislation).
SECTION 8. ALTERNATE CURRENCY FACILITIES
8.1 Terms of Alternate Currency Facilities. (a) Subject to the
provisions of this Section 8, the U.S. Borrower may in its discretion from time
to time designate any Subsidiary of the U.S. Borrower organized under the laws
of any jurisdiction outside the United States as an "Alternate Currency
Borrower" and any Qualified Credit Facility to which such Alternate Currency
Borrower and any one or more Alternate Currency Lenders is a party as an
"Alternate Currency Facility", with the consent of each such Alternate Currency
Lender in its sole discretion, by delivering an Alternate Currency Facility
Addendum to the General Administrative Agent and the Lenders (through the
General Administrative Agent) executed by the U.S. Borrower, each such Alternate
Currency Borrower (or the U.S. Borrower on its behalf) and each such Alternate
Currency Lender, provided, that on the effective date of such designation no
Event of Default shall have occurred and be continuing. Concurrently with the
delivery of an Alternate Currency Facility Addendum, the U.S. Borrower or the
relevant Alternate Currency Borrower shall furnish to the General Administrative
Agent copies of all documentation executed and delivered by any Alternate
Currency Borrower in connection therewith, together with, if applicable, an
English translation thereof. Except as otherwise provided in this Section 8 or
in the definition of "Qualified Credit Facility" in subsection 1.1, the terms
and conditions of each Alternate Currency Facility shall be determined by mutual
agreement of the relevant Alternate
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Currency Borrower(s) and Alternate Currency Lender(s). The documentation
governing each Alternate Currency Facility shall (i) contain an express
acknowledgment that such Alternate Currency Facility shall be subject to the
provisions of this Section 8 and (ii) if more than one Alternate Currency
Lender is a party thereto, designate an Alternate Currency Facility Agent for
such Alternate Currency Facility. Each of the U.S. Borrower and, by agreeing to
any Alternate Currency Facility designation as contemplated hereby, each
relevant Alternate Currency Lender (if any) party thereto which is an
affiliate, branch or agency of a Lender, acknowledges and agrees that each
reference in this Agreement to any "Lender" shall, to the extent applicable, be
deemed to be a reference to such Alternate Currency Lender. In the event of any
inconsistency between the terms of this Agreement and the terms of any
Alternate Currency Facility, the terms of this Agreement shall prevail.
(b) The documentation governing each Alternate Currency
Facility shall set forth (i) the maximum amount (expressed in U.S. Dollars)
available to be borrowed from all Alternate Currency Lenders under such
Alternate Currency Facility (as the same may be modified from time to time, an
"Alternate Currency Facility Maximum Borrowing Amount") and (ii) with respect to
each Alternate Currency Lender party to such Alternate Currency Facility, the
maximum amount (expressed in U.S. Dollars) available to be borrowed from such
Alternate Currency Lender thereunder (as the same may be modified from time to
time, an "Alternate Currency Lender Maximum Borrowing Amount").
(c) Except as otherwise required by applicable law, in no
event shall the Alternate Currency Lenders party to an Alternate Currency
Facility have the right to accelerate the Alternate Currency Loans outstanding
thereunder, or to terminate their commitments (if any) to make such Alternate
Currency Loans prior to the earlier of the stated termination date in respect
thereof or the Revolving Credit Termination Date, except, in each case, in
connection with an acceleration of the Loans or a termination of the Commitments
pursuant to Section 16, provided, that nothing in this paragraph (c) shall be
deemed to require any Alternate Currency Lender to make an Alternate Currency
Loan if the applicable conditions precedent to the making of such Alternate
Currency Loan set forth in the documentation governing the relevant Alternate
Currency Facility have not been satisfied. No Alternate Currency Loan may be
made under an Alternate Currency Facility if (i) the conditions precedent in
subsection 12.2 are not satisfied on the date such Alternate Currency Loan is
requested to be made or (ii) after giving effect to the making of such Alternate
Currency Loan and the simultaneous application of the proceeds thereof, the
Aggregate Total Outstandings of all Lenders at any time exceeds the Aggregate
U.S. Revolving Credit Commitments.
(d) The relevant Alternate Currency Borrower(s) shall furnish
to the General Administrative Agent copies of any amendment, supplement or other
modification (including any change in commitment amounts or in the Alternate
Currency Lenders participating in any Alternate Currency Facility) to the terms
of any Alternate Currency Facility promptly after the effectiveness thereof
(together with, if applicable, an English translation thereof). If any such
amendment, supplement or other modification to an Alternate Currency Facility
shall (i) add an Alternate Currency Lender thereunder or (ii) change the
Alternate Currency Facility Maximum Borrowing Amount or any Alternate Currency
Lender Maximum Borrowing Amount with
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respect thereto, the U.S. Borrower shall promptly furnish an appropriately
revised Alternate Currency Facility Addendum, executed by the U.S. Borrower, the
relevant Alternate Currency Borrower(s) (or the U.S. Borrower on its behalf) and
the affected Alternate Currency Lenders (or any agent acting on their behalf),
to the General Administrative Agent and the Lenders (through the General
Administrative Agent).
(e) The U.S. Borrower may terminate its designation of a
facility as an Alternate Currency Facility, with the consent of each Alternate
Currency Lender party thereto at the time of such redesignation in its sole
discretion, by written notice to the General Administrative Agent, which notice
shall be executed by the U.S. Borrower, the relevant Alternate Currency
Borrower(s) (or the U.S. Borrower on its behalf) and each Alternate Currency
Lender party to such Alternate Currency Facility (or any agent acting on their
behalf). Once notice of such termination is received by the General
Administrative Agent, such Alternate Currency Facility and the loans and other
obligations outstanding thereunder shall immediately cease to be subject to the
terms of this Agreement.
(f) At no time shall the aggregate Alternate Currency Facility
Maximum Borrowing Amount of all Alternative Currency Facilities exceed
$250,000,000.
8.2 Reporting of Alternate Currency Outstandings. (a) On the
date of the making of any Alternate Currency Loan having a fixed maturity of 30
or more days to an Alternate Currency Borrower and on the last Business Day of
each month on which an Alternate Currency Borrower has any outstanding Alternate
Currency Loans, the Alternate Currency Facility Agent for such Alternate
Currency Facility shall deliver to the General Administrative Agent a Notice of
Alternate Currency Outstandings. The General Administrative Agent will, at the
request of any Alternate Currency Facility Agent, advise such Alternate Currency
Facility Agent of the Exchange Rate used by the General Administrative Agent in
calculating the U.S. Dollar Equivalent of Alternate Currency Loans under the
related Alternate Currency Facility on any date.
(b) For purposes of any calculation under this Agreement in
which the amount of the Aggregate Alternate Currency Outstandings of any Lender
is a component, the General Administrative Agent shall make such calculation on
the basis of the Notices of Alternate Currency Outstandings received by it at
least two Business Days prior to the date of such calculation.
SECTION 9. LETTERS OF CREDIT
9.1 Letters of Credit. (a) Subject to the terms and conditions
of this Agreement, Chase Delaware, as Issuing Lender, agrees, and any other
Issuing Lender may, as agreed between the U.S. Borrower and such Issuing Lender,
agree, on behalf of the U.S. Lenders, and in reliance on the agreement of the
Lenders set forth in subsection 9.3, to issue for the account of the U.S.
Borrower (or in connection with any Foreign Letter of Credit, for the joint and
several accounts of the U.S. Borrower and such applicable Foreign Subsidiary)
letters of credit in an aggregate
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face amount not to exceed at any time outstanding an amount of which the U.S.
Dollar Equivalent is $250,000,000, as follows:
(i) standby letters of credit (collectively, the "Standby
Letters of Credit") in the form of either (A) in the case of standby
letters of credit to be used for the purposes described in subsection
9.8(a) or (c), the Issuing Lender's standard standby letter of credit
or (B) in the case of standby letters of credit to be used for the
purposes described in subsection 9.8(b), a letter of credit reasonably
satisfactory to the Issuing Lender, and in either case, in favor of
such beneficiaries as the U.S. Borrower shall specify from time to time
(which shall be reasonably satisfactory to the Issuing Lender); and
(ii) commercial letters of credit in the form of the
Issuing Lender's standard commercial letters of credit ("Commercial
Letters of Credit") in favor of sellers of goods or services to the
U.S. Borrower, its Subsidiaries or joint ventures that are Special
Entities (the Standby Letters of Credit and Commercial Letters of
Credit being referred to collectively as the "Letters of Credit");
provided that on the date of the issuance of any Letter of Credit, and after
giving effect to such issuance, (i) the Available U.S. Revolving Credit
Commitment of each U.S. Lender is greater than or equal to zero and (ii) the
Aggregate Total Outstandings of all Lenders do not exceed the Aggregate U.S.
Revolving Credit Commitments at such time. Each Standby Letter of Credit shall
(i) have an expiry date no later than (A) with respect to any Standby Letter of
Credit to be used for the purposes described in subsection 9.8(a) or (c), one
year from the date of issuance thereof or, if earlier, the Revolving Credit
Termination Date or (B) with respect to any Standby Letter of Credit to be used
for the purposes described in subsection 9.8(b), the Revolving Credit
Termination Date, (ii) be denominated in Dollars or another freely-convertible
currency acceptable to the Issuing Lender and (iii) be in a minimum face amount
of which the U.S. Dollar Equivalent is a minimum of $500,000 determined at the
time of issuance. Each Commercial Letter of Credit shall (i) provide for the
payment of sight drafts when presented for honor thereunder, or of time drafts,
in each case in accordance with the terms thereof and when accompanied by the
documents described or when such documents are presented, as the case may be,
(ii) be denominated in Dollars or another freely-convertible currency acceptable
to the Issuing Lender and (iii) have an expiry date no later than six months
from the date of issuance thereof or, if earlier, five Business Days prior to
the Revolving Credit Termination Date.
(b) Pursuant to the Existing Credit Agreement, Chase (or Chase
Delaware, as the case may be), as Issuing Lender, has issued certain letters of
credit which are outstanding on the Closing Date (the "Existing Letters of
Credit"). From and after the Closing Date, the Existing Letters of Credit shall
for all purposes be deemed to be Letters of Credit outstanding under this
Agreement.
9.2 Procedure for Issuance of Letters of Credit. The U.S.
Borrower may from time to time request, upon at least three Business Days'
notice, Chase Delaware, as Issuing Lender, to issue a Letter of Credit by
delivering to such Issuing Lender at its address specified in subsection 18.2 a
Letter of Credit Application, completed to the satisfaction of such Issuing
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Lender, together with such other certificates, documents and other papers and
information as such Issuing Lender may reasonably request. Upon receipt of any
Letter of Credit Application from the U.S. Borrower, or, in the case of a
Foreign Letter of Credit, from the U.S. Borrower and
the Foreign Subsidiary that is an account party on such Letter of Credit, such
Issuing Lender will promptly, but in no event later than five Business Days
following receipt of such Letter of Credit Application, notify each U.S. Lender
thereof. Upon receipt of any Letter of Credit Application, Chase Delaware, as
Issuing Lender, will process such Letter of Credit Application, and the other
certificates, documents and other papers delivered in connection therewith, in
accordance with its customary procedures and shall promptly issue such Letter of
Credit (but in no event earlier than three Business Days after receipt by such
Issuing Lender of the Letter of Credit Application relating thereto) by issuing
the original of such Letter of Credit to the beneficiary thereof and by
furnishing a copy thereof to the U.S. Borrower and the Participating Lenders. In
addition, the U.S. Borrower may from time to time agree with Issuing Lenders
other than Chase Delaware upon procedures for issuance by such Issuing Lenders
of Letters of Credit and cause Letters of Credit to be issued by following such
procedures. Such procedures shall be reasonably satisfactory to the General
Administrative Agent. Prior to the issuance of any Letter of Credit, the Issuing
Lender will confirm with the General Administrative Agent that the issuance of
such Letter of Credit is permitted pursuant to Section 9 and subsection 12.2.
Additionally, each Issuing Lender and the U.S. Borrower shall inform the General
Administrative Agent of any modifications made to outstanding Letters of Credit,
of any payments made with respect to such Letters of Credit, and of any other
information regarding such Letters of Credit as may be reasonably requested by
the General Administrative Agent, in each case pursuant to procedures
established by the General Administrative Agent.
9.3 Participating Interests. In the case of each Existing
Letter of Credit, effective on the Closing Date, and in the case of each Letter
of Credit issued in accordance with the terms hereof on or after the Closing
Date, effective as of the date of the issuance thereof, the Issuing Lender in
respect of such Letter of Credit agrees to allot, and does allot, to each other
U.S. Lender, and each such U.S. Lender severally and irrevocably agrees to take
and does take, a Participating Interest in such Letter of Credit and the related
Letter of Credit Application in a percentage equal to such U.S. Lender's U.S.
Revolving Credit Commitment Percentage. On the date that any Purchasing Lender
becomes a party to this Agreement in accordance with subsection 18.6,
Participating Interests in any outstanding Letter of Credit held by the U.S.
Lender from which such Purchasing Lender acquired its interest hereunder shall
be proportionately reallotted between such Purchasing Lender and such transferor
U.S. Lender. Each Participating Lender hereby agrees that its obligation to
participate in each Letter of Credit issued in accordance with the terms hereof
and to pay or to reimburse the Issuing Lender in respect of such Letter of
Credit for its participating share of the drafts drawn thereunder shall be
irrevocable and unconditional; provided that no Participating Lender shall be
liable for the payment of any amount under subsection 9.4(b) resulting solely
from such Issuing Lender's gross negligence or willful misconduct.
9.4 Payments. (a) The U.S. Borrower agrees (and in the case of
a Foreign Letter of Credit, the Foreign Subsidiary for whose account such Letter
of Credit was issued shall also agree, jointly and severally) (i) to reimburse
the General Administrative Agent for the account of
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the relevant Issuing Lender, forthwith upon its demand and otherwise in
accordance with the terms of the Letter of Credit Application, if any, relating
thereto, for any payment made by such Issuing Lender under any Letter of Credit
issued by such Issuing Lender for its account and (ii) to pay to the General
Administrative Agent for the account of such Issuing Lender, interest on any
unreimbursed portion of any such payment from the date of such payment until
reimbursement in full thereof at a fluctuating rate per annum equal to the rate
then borne by ABR Loans pursuant to subsection 10.1(b) plus 2%.
(b) In the event that an Issuing Lender makes a payment under
any Letter of Credit and is not reimbursed in full therefor, forthwith upon
demand of such Issuing Lender, and otherwise in accordance with the terms hereof
or of the Letter of Credit Application, if any, relating to such Letter of
Credit, such Issuing Lender will promptly through the General Administrative
Agent notify each Participating Lender that acquired its Participating Interest
in such Letter of Credit from such Issuing Lender. No later than the close of
business on the date such notice is given (if such notice is received by such
Participating Lender by 12:00 Noon, otherwise no later than 12:00 Noon of the
immediately following Business Day), each such Participating Lender will
transfer to the General Administrative Agent, for the account of such Issuing
Lender, in immediately available funds, an amount equal to such Participating
Lender's pro rata share of the unreimbursed portion of such payment. Upon its
receipt from such Participating Lender of such amount, such Issuing Lender will,
if so requested by such Participating Lender, complete, execute and deliver to
such Participating Lender a Letter of Credit Participation Certificate dated the
date of such receipt and in such amount.
(c) Whenever, at any time, after an Issuing Lender has made
payment under a Letter of Credit and has received from any Participating Lender
such Participating Lender's pro rata share of the unreimbursed portion of such
payment, such Issuing Lender receives any reimbursement on account of such
unreimbursed portion or any payment of interest on account thereof, such Issuing
Lender will distribute to the General Administrative Agent, for the account of
such Participating Lender, its pro rata share thereof; provided, however, that
in the event that the receipt by such Issuing Lender of such reimbursement or
such payment of interest (as the case may be) is required to be returned, such
Participating Lender will promptly return to the General Administrative Agent,
for the account of such Issuing Lender, any portion thereof previously
distributed by such Issuing Lender to it.
9.5 Further Assurances. (a) The U.S. Borrower hereby agrees,
from time to time, to do and perform any and all acts and to execute any and all
further instruments reasonably requested by an Issuing Lender more fully to
effect the purposes of this Agreement and the issuance of the Letters of Credit
hereunder.
(b) It is understood that in connection with Letters of Credit
issued for the purposes described in subsection 9.8(b) it may be customary for
the Issuing Lender in respect of such Letter of Credit to obtain an opinion of
its counsel relating to such Letter of Credit, and each Issuing Lender that
issues such a Letter of Credit agrees to cooperate with the U.S. Borrower in
obtaining such customary opinion, which opinion shall be at the U.S. Borrower's
expense unless otherwise agreed to by such Issuing Lender.
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9.6 Obligations Absolute. The payment obligations of the
U.S. Borrower under subsection 9.4 shall be unconditional and irrevocable and
shall be paid strictly in accordance with the terms of this Agreement under all
circumstances, including, without limitation, under the following circumstances:
(a) the existence of any claim, set-off, defense or other
right which the U.S. Borrower may have at any time against any
beneficiary, or any transferee, of any Letter of Credit (or any Persons
for whom any such beneficiary or any such transferee may be acting),
any Issuing Lender or any Participating Lender, or any other Person,
whether in connection with this Agreement, the transactions
contemplated herein, or any unrelated transaction;
(b) any statement or any other document presented under any
Letter of Credit opened for its account proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect, except under
circumstances involving the gross negligence or willful misconduct of
the Issuing Lender; or
(c) payment by an Issuing Lender under any Letter of Credit
against presentation of a draft or certificate which does not comply
with the terms of such Letter of Credit, except payment resulting
solely from the gross negligence or willful misconduct of such Issuing
Lender; or
(d) any other circumstances or happening whatsoever, whether
or not similar to any of the foregoing, except circumstances or
happenings resulting from the gross negligence or willful misconduct of
such Issuing Lender.
9.7 Letter of Credit Application. To the extent not
inconsistent with the terms of this Agreement (in which case the provisions of
this Agreement shall prevail), provisions of any Letter of Credit Application
related to any Letter of Credit are supplemental to, and not in derogation of,
any rights and remedies of the Issuing Lenders and the Participating Lenders
under this Section 9 and applicable law. The U.S. Borrower acknowledges and
agrees that all rights of the Issuing Lender under any Letter of Credit
Application shall inure to the benefit of each Participating Lender to the
extent of its Participating Interest as fully as if such Participating Lender
was a party to such Letter of Credit Application.
9.8 Purpose of Letters of Credit. Each Standby Letter of
Credit shall be used by the U.S. Borrower solely (a) to provide credit support
for borrowings by the U.S. Borrower, its Subsidiaries or joint ventures which
are Special Entities, (b) to pay or secure the payment of the principal amount
of, and accrued interest on, and other obligations with respect to, Industrial
Revenue Bonds in accordance with the provisions of the indenture related
thereto, or (c) for other working capital purposes of the U.S. Borrower and
Subsidiaries in the ordinary course of business. Each Commercial Letter of
Credit will be used by the U.S. Borrower and Subsidiaries solely to provide the
primary means of payment in connection with the purchase of goods or services by
the U.S. Borrower and Subsidiaries in the ordinary course of business.
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9.9 Currency Adjustments. (a) Notwithstanding anything to
the contrary contained in this Agreement, for purposes of calculating any fee in
respect of any Letter of Credit in respect of any Business Day, the General
Administrative Agent shall convert the amount available to be drawn under any
Letter of Credit denominated in a currency other than U.S. Dollars into an
amount of U.S. Dollars based upon the Exchange Rate.
(b) Notwithstanding anything to the contrary contained in this
Section 9, prior to demanding any reimbursement from the Participating Lenders
pursuant to subsection 9.4(b) in respect of any Letter of Credit denominated in
a currency other than U.S. Dollars, the Issuing Lender shall convert the
relevant Borrower's obligation under subsection 9.4 to reimburse the Issuing
Lender in such currency into an obligation to reimburse the Issuing Lender in
U.S. Dollars. The U.S. Dollar amount of the reimbursement obligation of the
relevant Borrower and the Participating Lenders shall be computed by the Issuing
Lender based upon the Exchange Rate in effect for the day on which such
conversion occurs.
SECTION 10. GENERAL PROVISIONS APPLICABLE TO LOANS
10.1 Interest Rates and Payment Dates. (a) Each Eurodollar
Loan shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such
Interest Period plus the Applicable Margin in effect for such day.
(b) Each ABR Loan shall bear interest for each day on which it
is outstanding at a rate per annum equal to the Alternate Base Rate for such
day.
(c) Each Prime Rate Loan shall bear interest for each day on
which it is outstanding at a rate per annum equal to the Prime Rate for such
day.
(d) Each Canadian Base Rate Loan shall bear interest for each
day on which it is outstanding at a rate per annum equal to the Canadian Base
Rate for such day.
(e) Each Multicurrency Loan shall bear interest for each day
during each Interest Period with respect thereto at a rate per annum equal to
the Eurocurrency Rate determined for such Interest Period plus the Applicable
Margin in effect for such day.
(f) If all or a portion of (i) the principal amount of any
Loan, (ii) any interest payable thereon or (iii) any fee or other amount payable
hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall bear interest at a rate
per annum equal to the rate that would otherwise be applicable thereto pursuant
to the foregoing provisions of this subsection plus 2%.
(g) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to paragraph (f) of this
subsection shall be payable from time to time on demand.
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(h) Each Money Market Rate Swing Line Loan shall bear interest
during the interest period applicable thereto at a rate per annum equal to the
applicable Money Market Rate; provided, that any Money Market Rate Swing Line
Loan in which Lenders purchase participating interests pursuant to subsection
3.5(a) shall, from and after the date of such purchase, bear interest until the
end of the interest period applicable thereto at a rate per annum equal to the
ABR.
10.2 Conversion and Continuation Options. (a) The U.S.
Borrower may elect from time to time to convert outstanding Eurodollar Loans (in
whole or in part) to ABR Loans by giving the General Administrative Agent at
least one Business Day's prior irrevocable notice of such election, provided
that any such conversion of Eurodollar Loans may only be made on the last day of
an Interest Period with respect thereto unless the U.S. Borrower shall agree to
pay the costs associated therewith as set forth in subsection 10.11(d). The U.S.
Borrower may elect from time to time to convert outstanding ABR Loans made to it
(other than Swing Line Loans) (in whole or in part) to Eurodollar Loans by
giving the General Administrative Agent at least three Business Days' prior
irrevocable notice of such election. Any such notice of conversion to Eurodollar
Loans shall specify the length of the initial Interest Period or Interest
Periods therefor. Upon receipt of any such notice the General Administrative
Agent shall promptly notify each U.S. Lender thereof. All or any part of
outstanding Eurodollar Loans and ABR Loans may be converted as provided herein,
provided that (i) no ABR Loan may be converted into a Eurodollar Loan when any
Default or Event of Default has occurred and is continuing and the General
Administrative Agent or the Majority U.S. Lenders have determined that such
conversion is not appropriate, (ii) any such conversion may only be made if,
after giving effect thereto, subsection 10.3 shall not have been violated, (iii)
no ABR Loan may be converted into a Eurodollar Loan after the date that is one
month prior to the Revolving Credit Termination Date and (iv) Swing Line Loans
may not be converted to Eurodollar Loans.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the U.S.
Borrower giving notice to the General Administrative Agent of the length of the
next Interest Period to be applicable to such Loans determined in accordance
with the applicable provisions of the term "Interest Period" set forth in
subsection 1.1, provided that no Eurodollar Loan may be continued as such (i)
when any Default or Event of Default has occurred and is continuing and the
General Administrative Agent or the Majority U.S. Lenders have determined that
such continuation is not appropriate, (ii) if, after giving effect thereto,
subsection 10.3 would be contravened or (iii) after the date that is one month
prior to the Revolving Credit Termination Date, and provided, further, that if
the U.S. Borrower shall fail to give such notice or if such continuation is not
permitted pursuant to the preceding proviso such Eurodollar Loans shall be
automatically converted to ABR Loans on the last day of such then expiring
Interest Period.
(c) Any Multicurrency Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the U.S.
Borrower or the relevant Foreign Subsidiary Borrower giving a Notice of
Multicurrency Loan Continuation, provided, that if the relevant Foreign
Subsidiary Borrower shall fail to give such Notice of Multicurrency Loan
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Continuation, such Multicurrency Loans shall automatically be continued for an
Interest Period of one month.
10.3 Minimum Amounts of Tranches. (a) All borrowings,
conversions and continuations of U.S. Revolving Credit Loans and Multicurrency
Loans hereunder and all selections of Interest Periods hereunder shall be in
such amounts and be made pursuant to such elections so that, after giving effect
thereto, (i) the aggregate principal amount of the Eurodollar Loans comprising
each Tranche shall be equal to $10,000,000 or a whole multiple of $1,000,000 in
excess thereof, (ii) the aggregate principal amount of the Multicurrency Loans
comprising each Tranche shall be in an amount of which the U.S. Dollar
Equivalent is at least $2,500,000 (determined at the time of borrowing or
continuation) and (iii) there shall not be more than 25 Tranches at any one time
outstanding.
(b) All Acceptances created hereunder, all conversions and
continuations thereof and all selections of maturity dates with respect thereto
shall be made pursuant to such elections so that, after giving effect thereto,
there shall be no more than 10 Acceptance Tranches at any one time outstanding.
10.4 Optional and Mandatory Prepayments. (a) The U.S. Borrower
may at any time and from time to time prepay U.S. Revolving Credit Loans and/or
Swing Line Loans (other than Money Market Rate Swing Line Loans), in whole or in
part without premium or penalty upon at least three Business Days' irrevocable
notice to the General Administrative Agent (in the case of Eurodollar Loans) and
at least one Business Day's irrevocable notice to the General Administrative
Agent (in the case of U.S. Revolving Credit Loans that are ABR Loans) specifying
the date and amount of prepayment and whether the prepayment of U.S. Revolving
Credit Loans is of Eurodollar Loans, ABR Loans or a combination thereof, and, if
a combination thereof, the amount allocable to each. Upon the receipt of any
such notice the General Administrative Agent shall promptly notify each U.S.
Lender thereof. If any such notice is given, the amount specified in such notice
shall be due and payable on the date specified therein. Partial prepayments of
the U.S. Revolving Credit Loans shall be in an aggregate principal amount of
$10,000,000 or a whole multiple of $1,000,000 in excess thereof (or in such
lower amount as may be then outstanding). Partial prepayments of the Swing Line
Loans shall be in aggregate principal amount of $100,000 or a whole multiple of
$100,000 in excess thereof (or in such lower amount as may be then outstanding).
(b) The Canadian Borrower may at any time and from time to
time prepay, without premium or penalty, the Canadian Revolving Credit Loans, in
whole or in part, upon at least one Business Day's irrevocable notice to the
Canadian Administrative Agent specifying the date and amount of prepayment. Upon
the receipt of any such notice, the Canadian Administrative Agent shall promptly
notify each Canadian Lender thereof. If any such notice is given, the amount
specified in such notice shall be due and payable on the date specified therein.
Partial prepayments of Canadian Revolving Credit Loans shall be in an aggregate
principal amount of C$5,000,000 or a whole multiple of C$1,000,000 in excess
thereof (in the case of Canadian Revolving Credit Loans denominated in Canadian
Dollars), U.S.$5,000,000 or a whole multiple of US$1,000,000 in excess thereof
(in the case of Canadian Revolving Credit Loans
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denominated in U.S. Dollars, (or in such lower amount as may be then outstanding
for either denomination).
(c) The U.S. Borrower and Foreign Subsidiary Borrowers may at
any time and from time to time prepay, without premium or penalty, the
Multicurrency Loans, in whole or in part, upon at least three Business Days'
irrevocable notice to the General Administrative Agent specifying the date and
amount of prepayment. Upon the receipt of any such notice, the General
Administrative Agent shall promptly notify each Multicurrency Lender thereof. If
any such notice is given, the amount specified in such notice shall be due and
payable on the date specified therein. Partial prepayments of Multicurrency
Loans shall be in an aggregate principal amount of which the U.S. Dollar
Equivalent is at least $10,000,000 or a whole multiple of $1,000,000 in excess
thereof.
(d) If, at any time during the Revolving Credit Commitment
Period, for any reason the Aggregate Total Outstandings of all Lenders exceed
the Aggregate U.S. Revolving Credit Commitments then in effect by more than 5%,
or the Aggregate Committed Outstandings of any Lender exceeds the Revolving
Credit Commitment of such Lender then in effect by more than 5%, (i) the U.S.
Borrower shall, upon learning thereof or upon the request of the General
Administrative Agent, immediately prepay the Swing Line Loans and the U.S.
Revolving Credit Loans and/or (ii) the Canadian Borrower shall, upon learning
thereof or upon the request of the General Administrative Agent, immediately
prepay the Canadian Revolving Credit Loans and/or (iii) the Foreign Subsidiary
Borrowers shall, upon learning thereof or upon the request of the General
Administrative Agent, immediately prepay the Multicurrency Loans and/or (iv) the
Alternate Currency Borrower shall, upon learning thereof or upon the request of
the General Administrative Agent, immediately prepay Alternate Currency Loans,
in an aggregate principal amount at least sufficient to reduce any such excess
to 0%; provided, however, that nothing in this subsection shall be construed as
requiring the Canadian Borrower to so prepay in amounts (i) that would be in
violation of, and its obligations to so prepay are subject to, the restrictions
on financial assistance set out in the Business Corporations Act (Ontario) or
(ii) outstanding by way of Acceptances; and, provided, further, that the
preceding proviso shall not be construed in any way as limiting or derogating
from the obligations of the Borrowers (other than the Canadian Borrower) set out
in this subsection.
(e) Each prepayment of Loans pursuant to this subsection 10.4
shall be accompanied by accrued and unpaid interest on the amount prepaid to the
date of prepayment and any amounts payable under subsection 10.11 in connection
with such prepayment.
(f) Notwithstanding the foregoing, mandatory prepayments of
Revolving Credit Loans, Multicurrency Loans or Alternate Currency Loans that
would otherwise be required pursuant to this subsection 10.4 solely as a result
of fluctuations in Exchange Rates from time to time shall only be required to be
made pursuant to this subsection 10.4 on the last Business Day of each month on
the basis of the Exchange Rate in effect on such Business Day.
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(g) The U.S. Borrower shall prepay all Swing Line Loans then
outstanding (other than Money Market Rate Swing Line Loans) simultaneously with
each borrowing of U.S.
Revolving Credit Loans.
10.5 Facility Fees; Other Fees. (a) The U.S. Borrower agrees
to pay to the General Administrative Agent for the account of each U.S. Lender,
a facility fee for the period from and including the Closing Date to but
excluding the Revolving Credit Termination Date (or such earlier date on which
the Revolving Credit Commitments shall terminate as provided herein); each such
facility fee shall be computed at the Facility Fee Rate on the amount of the
U.S. Revolving Credit Commitment of such U.S. Lender during the period for which
payment is made, payable quarterly in arrears on the last day of each March,
June, September and December and on the Revolving Credit Termination Date or
such earlier date on which the U.S. Revolving Credit Commitments shall terminate
as provided herein, commencing on the first such date to occur after the date
hereof. Each U.S. Common Lender and its Counterpart Lender may elect, upon
notice to the U.S. Borrowers and the Administrative Agents, to have all or a
portion of the facility fees owed to such U.S. Common Lender by the U.S.
Borrower paid by the Canadian Borrower in Canadian Dollars directly to the
Canadian Administrative Agent for the account of such U.S. Common Lender's
Counterpart Lender. Each U.S. Common Lender and its Counterpart Lender may make
such election no more often than once in any year. If any such election is made,
amounts otherwise due in U.S. Dollars in respect of facility fees shall be
converted to Canadian Dollars at the then Exchange Rate on the date which is one
Business Day prior to the date such amount is due.
(b) The U.S. Borrower shall pay (without duplication of any
other fee payable under this subsection 10.5) to Chase and CSI, for their
respective accounts, all fees separately agreed to by the U.S. Borrower and
Chase or CSI, as the case may be.
(c) The Canadian Borrower shall (without duplication of any
other fee payable under this subsection 10.5) pay to the Canadian Administrative
Agent all fees separately agreed to by the Canadian Borrower and the Canadian
Administrative Agent.
(d) The U.S. Borrower shall (without duplication of any other
fee payable under this subsection 10.5) pay to the General Administrative Agent
all fees separately agreed to by the U.S. Borrower and the General
Administrative Agent.
(e) In lieu of any letter of credit commissions and fees
provided for in any Letter of Credit Application (other than any standard
issuance, amendment and negotiation fees), the U.S. Borrower will pay the
General Administrative Agent, (i) for the account of the Issuing Lender, a
non-refundable fronting fee equal to 0.125% per annum and (ii) for the account
of the U.S. Lenders, a non-refundable Letter of Credit fee equal to the
Applicable Margin less 0.125%, in each case on the amount available to be drawn
under such Letter of Credit. Such fee shall be payable quarterly in arrears on
the last Business Day of each calendar quarter, and shall be calculated on the
average daily amount available to be drawn under the Letters of Credit.
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(f) The U.S. Borrower agrees to pay the Issuing Lender for its
own account its customary administration, amendment, transfer and negotiation
fees charged by the Issuing Lender in connection with its issuance and
administration of Letters of Credit.
10.6 Computation of Interest and Fees. (a) Interest based
on the Eurodollar Rate, the Eurocurrency Rate, the Money Market Rate or the
Alternate Base Rate when it is based upon the Federal Funds Effective Rate shall
be calculated on the basis of a 360-day year for the actual days elapsed; and
facility fees and interest (other than interest based upon the Eurodollar Rate,
the Eurocurrency Rate, the Money Market Rate or the Alternative Base Rate when
it is based upon the Federal Funds Effective Rate) shall be calculated on the
basis of a 365- (or 366-, as the case may be) day year for the actual days
elapsed. The General Administrative Agent shall as soon as practicable notify
the U.S. Borrower and the U.S. Lenders of each determination of a Eurodollar
Rate or Eurocurrency Rate. Any change in the interest rate on a Loan resulting
from a change in the Alternate Base Rate or a change in the Prime Rate shall
become effective as of the opening of business on the day on which such change
becomes effective. The General Administrative Agent shall as soon as practicable
notify the U.S. Borrower and the Lenders of the effective date and the amount of
each such change in the Alternate Base Rate, and the Canadian Administrative
Agent shall as soon as practicable notify the U.S. Borrower and Canadian
Borrower and the Canadian Lenders of each such change in the Prime Rate and the
Canadian Base Rate; provided that a failure by the General Administrative Agent
or the Canadian Administrative Agent to notify the U.S. Borrower or the Canadian
Borrower of such respective rate changes does not affect the obligation of the
U.S. Borrower or the Canadian Borrower to pay interest at the applicable rate as
changed. For purposes of the Interest Act (Canada), whenever any interest under
this Agreement is calculated based on a period which is less than a year (the
"Lesser Period"), the interest rate determined pursuant to such calculation,
when expressed as an annual rate, is equivalent to (i) the applicable rate based
on such Lesser Period, (ii) multiplied by the actual number of days in the
calendar year in which the period for which such interest is payable ends, and
(iii) divided by the number of days in such Lesser Period. The rates of interest
specified in this Agreement are nominal rates and all interest payments and
computations are to be made without allowance or deduction for deemed
reinvestment of interest.
(b) Each determination of an interest rate by the General
Administrative Agent or the Canadian Administrative Agent, as the case may be,
pursuant to any provision of this Agreement shall be conclusive and binding on
the Borrowers and the Lenders in the absence of manifest error. Each
Administrative Agent shall, at the request of a Borrower, deliver to such
Borrower a statement showing in reasonable detail the calculations used by such
Administrative Agent in determining any interest rate pursuant to subsection
10.1(a).
(c) (i) If any U.S. Reference Lender shall for any reason no
longer have a U.S. Revolving Credit Commitment or any U.S. Revolving Credit
Loans, such U.S. Reference Lender shall thereupon cease to be a U.S. Reference
Lender, and if, as a result, there shall only be one U.S. Reference Lender
remaining, the General Administrative Agent, with the consent of the U.S.
Borrower (after consultation with U.S. Lenders) shall, by notice to the U.S.
Borrower and the U.S. Lenders, designate another U.S. Lender as a U.S. Reference
Lender so that there shall at all times be at least two U.S. Reference Lenders.
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(ii) If any Canadian Reference Lender shall for any reason
no longer have a Canadian Revolving Credit Commitment or any Canadian Revolving
Credit Loans, such Canadian Reference Lender shall thereupon cease to be a
Canadian Reference Lender, and if, as a result, there shall only be one Schedule
I Canadian Reference Lender or Schedule II Canadian Reference Lender (as the
case may be) remaining, the Canadian Administrative Agent, with the consent of
the Canadian Borrower (after consultation with the Schedule I Canadian Lenders
or the Schedule II Canadian Lenders, as applicable) shall, by notice to the
Canadian Borrower and the Canadian Lenders, designate another Schedule I
Canadian Lender or Schedule II Canadian Lender, as applicable, as a Schedule I
Canadian Reference Lender or a Schedule II Canadian Reference Lender, as
applicable, so that there shall at all times be at least two Schedule I Canadian
Reference Lenders and two Schedule II Canadian Reference Lenders.
(d) Each U.S. and Canadian Reference Lender shall use its best
efforts to furnish quotations of rates to the applicable Administrative Agent as
contemplated hereby. If any of the U.S. or Canadian Reference Lenders shall be
unable or shall otherwise fail to supply such rates to the applicable
Administrative Agent upon its request, the rate of interest shall, subject to
the provisions of subsection 10.7, be determined on the basis of the quotations
of the remaining U.S. or Canadian Reference Lenders or Reference Lender, as
applicable.
10.7 Inability to Determine Interest Rate. If prior to the
first day of any Interest Period:
(a) the General Administrative Agent shall have determined
(which determination shall be conclusive and binding upon the
Borrowers) that, by reason of circumstances affecting the relevant
market, adequate and reasonable means do not exist for ascertaining the
Eurodollar Rate or the Eurocurrency Rate, as the case may be, for such
Interest Period, or
(b) the General Administrative Agent has received notice from
the Majority U.S. Lenders that the Eurodollar Rate or Eurocurrency
Rate, as the case may be, determined or to be determined for such
Interest Period will not adequately and fairly reflect the cost to such
U.S. Lenders of making or maintaining their Eurodollar Loans or
Multicurrency Loans, as the case may be, during such Interest Period,
the General Administrative Agent shall give telecopy or telephonic notice
thereof to the U.S. Borrower and the U.S. Lenders as soon as practicable
thereafter. Until such time as the Eurodollar Rate or the Eurocurrency Rate, as
the case may be, can be determined by the General Administrative Agent in the
manner specified in the definitions of such terms in subsection 1.1, no further
Eurodollar Loans or Multicurrency Loans (with respect to the Available Currency
for which the Eurocurrency Rate cannot be determined only) shall be continued as
such at the end of the then current Interest Periods or (other than any
Eurodollar Loans or Multicurrency Loans previously requested and with respect to
which the Eurodollar Rate or Eurocurrency Rate, as the case may be, was
determined) shall be made, nor shall the U.S. Borrower have the right to convert
ABR Loans into Eurodollar Loans.
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10.8 Pro Rata Treatment and Payments. (a) (i) Except as
provided in subsection 2.5, each borrowing of U.S. Revolving Credit Loans by the
U.S. Borrower from the U.S. Lenders hereunder shall be made pro rata according
to the Funding Commitment Percentages of the U.S. Lenders in effect on the date
of such borrowing. Each payment by the U.S. Borrower on account of any facility
fee hereunder shall be allocated by the General Administrative Agent among the
U.S. Lenders in accordance with the respective amounts which such U.S. Lenders
are entitled to receive pursuant to subsection 10.5(a). Any reduction of the
U.S. Revolving Credit Commitments of the U.S. Lenders shall be allocated by the
General Administrative Agent among the U.S. Lenders pro rata according to the
U.S. Revolving Credit Commitment Percentages of the U.S. Lenders. Except as
provided in subsection 2.5 or subsection 10.4(d), each payment (other than any
optional prepayment) by the U.S. Borrower on account of principal of or interest
on the U.S. Revolving Credit Loans or the CAF Advances shall be allocated by the
General Administrative Agent pro rata according to the respective principal
amounts thereof then due and owing to each U.S. Lender. Each optional prepayment
by the U.S. Borrower on account of principal of or interest on the U.S.
Revolving Credit Loans shall be allocated by the General Administrative Agent
pro rata according to the respective outstanding principal amounts thereof. All
payments (including prepayments) to be made by the U.S. Borrower hereunder
(other than with respect to Multicurrency Loans), whether on account of
principal, interest, fees or otherwise, shall be made without set-off or
counterclaim and shall be made prior to 12:00 Noon, New York City time, on the
due date thereof to the General Administrative Agent, for the account of the
U.S. Lenders, at the General Administrative Agent's office specified in
subsection 18.2, in Dollars and in immediately available funds. The General
Administrative Agent shall distribute such payments to the U.S. Lenders entitled
to receive the same promptly upon receipt in like funds as received.
(ii) Each borrowing of Canadian Revolving Credit Loans by
the Canadian Borrower from the Canadian Lenders hereunder shall be made, and any
reduction of the Canadian Revolving Credit Commitments of the Canadian Lenders
shall be allocated by the Canadian Administrative Agent, pro rata according to
the Canadian Revolving Credit Commitment Percentages of the Canadian Lenders.
Except as provided in subsection 10.4(d), each payment (other than any optional
prepayment) by the Canadian Borrower on account of principal of or interest on
the Canadian Revolving Credit Loans shall be allocated by the Canadian
Administrative Agent pro rata according to the respective principal amounts of
the Canadian Revolving Credit Loans then due and owing to each Canadian Lender.
Each optional prepayment by the Canadian Borrower on account of principal of or
interest on the Canadian Revolving Credit Loans shall be allocated by the
Canadian Administrative Agent pro rata according to the respective outstanding
principal amounts thereof. All payments (including prepayments) to be made by
the Canadian Borrower hereunder, whether on account of principal, interest, fees
or otherwise, shall be made without set-off or counterclaim and shall be made
prior to 12:00 Noon, Toronto time, on the due date thereof to the Canadian
Administrative Agent, for the account of the Canadian Lenders, at the Canadian
Administrative Agent's office specified in subsection 18.2, in Canadian Dollars
and in immediately available funds. The Canadian Administrative Agent shall
distribute such payments to the Canadian Lenders entitled to receive the same
promptly upon receipt in like funds as received.
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(iii) Each borrowing of Multicurrency Loans by the U.S.
Borrower or any Foreign Subsidiary Borrower shall be made, and any reduction of
the Multicurrency Commitments shall be allocated by the General Administrative
Agent, pro rata according to the Multicurrency Commitment Percentages of the
Multicurrency Lenders. Except as provided in subsection 10.4(d), each payment
(including each prepayment) by the U.S. Borrower or a Foreign Subsidiary
Borrower on account of principal of and interest on Multicurrency Loans shall be
allocated by the General Administrative Agent pro rata according to the
respective principal amounts of the Multicurrency Loans then due and owing by
such Foreign Subsidiary Borrower to each Multicurrency Lender. All payments
(including prepayments) to be made by a Borrower hereunder in respect of
Multicurrency Loans, whether on account of principal, interest, fees or
otherwise, shall be made without set-off or counterclaim and shall be made at or
before the payment time for the currency of such Multicurrency Loan set forth in
the Administrative Schedule, on the due date thereof to the General
Administrative Agent, for the account of the Multicurrency Lenders, at the
payment office for the currency of such Multicurrency Loan set forth in the
Administrative Schedule, in the currency of such Multicurrency Loan and in
immediately available funds. The General Administrative Agent shall distribute
such payments to the Multicurrency Lenders entitled to receive the same promptly
upon receipt in like funds as received.
(iv) If any payment hereunder (other than payments on the
Eurodollar Loans, the Multicurrency Loans and the Acceptances) becomes due and
payable on a day other than a Business Day, the maturity of such payment shall
be extended to the next succeeding Business Day, and, with respect to payments
of principal, interest thereon shall be payable at the then applicable rate
during such extension. If any payment on a Eurodollar Loan or a Multicurrency
Loan becomes due and payable on a day other than a Business Day, the maturity of
such payment shall be extended to the next succeeding Business Day (and, with
respect to payments of principal, interest thereon shall be payable at the then
applicable rate during such extension) unless the result of such extension would
be to extend such payment into another calendar month, in which event such
payment shall be made on the immediately preceding Business Day. Acceptances may
only mature on a Business Day.
(b) A payment in euro shall be deemed to have been made by the
General Administrative Agent on the date on which it is required to be made
under this Agreement if the General Administrative Agent has, on or before that
date, taken all relevant steps to make that payment. With respect to the payment
of any amount denominated in euro, the General Administrative Agent shall not be
liable to any Borrower or any of the Lenders in any way whatsoever for any
delay, or the consequences of any delay, in the crediting to any account of any
amount required by this Agreement to be paid by the General Administrative Agent
if the General Administrative Agent shall have taken all relevant steps to
achieve, on the date required by this Agreement, the payment of such amount in
immediately available, freely transferable, cleared funds in the euro unit to
the account with the bank in the principal financial center in the Participating
Member State which the relevant Borrower or, as the case may be, any Lender
shall have specified for such purpose. In this paragraph (b), "all relevant
steps" means all such steps as may be prescribed from time to time by the
regulations or operating procedures of such clearing
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or settlement system as the General Administrative Agent may from time to time
determine for the purpose of clearing or settling payments of euro.
(c) Unless the applicable Administrative Agent shall have been
notified in writing by any Lender prior to a Borrowing Date that such Lender
will not make the amount that would constitute its share of such borrowing
available to such Administrative Agent, such Administrative Agent may assume
that such Lender is making such amount available to such Administrative Agent,
and such Administrative Agent may, in reliance upon such assumption, make
available to the applicable Borrower a corresponding amount. If such amount is
not made available to such Administrative Agent by the required time on the
Borrowing Date therefor, such Lender shall pay to such Administrative Agent, on
demand, such amount with interest thereon at a rate per annum equal to (i) the
daily average Federal Funds Effective Rate (in the case of a borrowing of U.S.
Revolving Credit Loans or CAF Advances), (ii) the Canadian Administrative
Agent's reasonable estimate of its average daily cost of funds (in the case of a
borrowing of Canadian Revolving Credit Loans or Acceptances) and (iii) the
General Administrative Agent's reasonable estimate of its average daily cost of
funds (in the case of a borrowing of Multicurrency Loans), in each case for the
period until such Lender makes such amount immediately available to such
Administrative Agent. A certificate of such Administrative Agent submitted to
any Lender with respect to any amounts owing under this subsection shall be
conclusive in the absence of manifest error. If such Lender's share of such
borrowing is not made available to such Administrative Agent by such Lender
within three Business Days of such Borrowing Date, the applicable Borrower shall
repay such Lender's share of such borrowing (together with interest thereon from
the date such amount was made available to such Borrower (i) at the rate per
annum applicable to ABR Loans hereunder (in the case of amounts made available
to the U.S. Borrower and amounts made available in U.S. Dollars to the Canadian
Borrower), (ii) at the rate per annum applicable to Prime Rate Loans hereunder
(in the case of amounts made available in Canadian Dollars to the Canadian
Borrower) and (iii) the General Administrative Agent's reasonable estimate of
its average daily cost of funds plus the Applicable Margin applicable to
Multicurrency Loans (in the case of a borrowing of Multicurrency Loans)) to such
Administrative Agent not later than three Business Days after receipt of written
notice from such Administrative Agent specifying such Lender's share of such
borrowing that was not made available to such Administrative Agent. Nothing
contained in this subsection 10.8(b) shall prejudice any claims otherwise
available to any Borrower against any Lender as a result of such Lender's
failure to make its share of any borrowing available to an Administrative Agent
for the account of a Borrower.
(d) Any amount payable by the General Administrative Agent to
the Lenders under this Agreement in the currency of a Participating Member State
shall be paid in the euro unit.
(e) If, in relation to the currency of any Subsequent
Participant, the basis of accrual of interest or fees expressed in this
Agreement with respect to such currency shall be inconsistent with any
convention or practice in the London Interbank Market or, as the case may be,
the Paris Interbank Market for the basis of accrual of interest or fees in
respect of the euro, such convention or practice shall replace such expressed
basis effective as of and from the date
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on which such Subsequent Participant becomes a Participating Member State;
provided, that if any Multicurrency Loan in the currency of such Subsequent
Participant is outstanding immediately prior to such date, such replacement
shall take effect, with respect to such Multicurrency Loan, at the end of the
then current Interest Period.
(f) Without prejudice and in addition to any method of
conversion or rounding prescribed by the EMU legislation, each reference in this
Agreement to a minimum amount (or an integral multiple thereof) in a national
currency unit to be paid to or by the General Administrative Agent shall be
replaced by a reference to such reasonably comparable and convenient amount (or
an integral multiple thereof) in the euro unit as the General Administrative
Agent may from time to time specify.
10.9 Illegality. (i) Notwithstanding any other provision
herein, if the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof shall make it unlawful for any Lender to
make or maintain Eurodollar Loans or Multicurrency Loans as contemplated by this
Agreement, (a) the commitment of such Lender hereunder to make Eurodollar Loans
or Multicurrency Loans, continue Eurodollar Loans or Multicurrency Loans as such
and convert ABR Loans to Eurodollar Loans shall forthwith be cancelled until
such time as it shall no longer be unlawful for such Lender to make or maintain
the affected Loans, (b) such Lender's Loans then outstanding as Eurodollar
Loans, if any, shall be converted automatically to ABR Loans on the respective
last days of the then current Interest Periods with respect to such Eurodollar
Loans or within such earlier period as may be required by law and (c) such
Lender's Multicurrency Loans shall be prepaid on the last day of the then
current Interest Period with respect thereto. If any such conversion of a
Eurodollar Loan occurs on a day which is not the last day of the then current
Interest Period Interest Period with respect thereto, the U.S. Borrower shall
pay to such Lender such amounts, if any, as may be required pursuant to
subsection 10.11.
(ii) Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof shall make it unlawful for any Canadian Lender to create or
maintain Acceptances as contemplated by this Agreement, (a) the commitment of
such Canadian Lender hereunder to accept Drafts, purchase Acceptances, continue
Acceptances as such and convert Canadian Revolving Credit Loans to Acceptances
shall forthwith be cancelled until such time as it shall no longer be unlawful
for such Canadian Lender to create or maintain Acceptances and (b) such Canadian
Lender's then outstanding Acceptances, if any, shall be converted automatically
to Prime Rate Loans on the respective maturities thereof or within such earlier
period as may be permitted and required by law.
(iii) Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof shall make it unlawful for any Canadian Lender to make or
maintain Canadian Base Rate Loans, (a) the commitment of such Canadian Lender
hereunder to make Canadian Base Rate Loans shall forthwith be cancelled until
such time as it shall no longer be unlawful for such Canadian Lender to make or
maintain Canadian Base Rate Loans and (b) such Canadian Lender's then
outstanding Canadian Base Rate Loans, if any, shall be converted automatically
to Canadian Dollars and Prime Rate Loans on the
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respective maturities thereof or within such earlier period as may be permitted
and required by law.
10.10 Requirements of Law. (a) In the event that any
Requirement of Law (or any change therein or in the interpretation or
application thereof) or compliance by any Lender with any request or directive
(whether or not having the force of law) from any central bank or other
Governmental Authority:
(i) does or shall subject any Lender to any tax of any
kind whatsoever with respect to this Agreement, any Note, any
Acceptance created by it, any Letter of Credit issued or participated
in by it or any Loans made by it, or change the basis of taxation of
payments to such Lender of principal, fees, interest or any other
amount payable hereunder (except for taxes covered by subsection 10.12
and changes in the rate of tax on the overall net income of such
Lender);
(ii) does or shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement
against assets held by, or deposits or other liabilities in or for the
account of, advances or loans by, or other credit extended by, or any
other acquisition of funds by, any office of such Lender which are not
otherwise included in the determination of the Eurodollar Rate or
Eurocurrency Rate, including, without limitation, the imposition of any
reserves with respect to Eurocurrency Liabilities under Regulation D of
the Board; or
(iii) does or shall impose on such Lender any other
condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by any amount which such Lender deems to be material, of making, renewing or
maintaining advances or extensions of credit or to reduce any amount receivable
hereunder, in each case in respect of its Loans, its Acceptances or its
Participating Interests, then, in any such case, the applicable Borrower shall
promptly pay such Lender, upon receipt of its demand setting forth in reasonable
detail, any additional amounts necessary to compensate such Lender for such
additional cost or reduced amount receivable, such additional amounts together
with interest on each such amount from the date two Business Days after the date
demanded until payment in full thereof at the ABR. A certificate as to any
additional amounts payable pursuant to the foregoing sentence submitted by such
Lender, through the General Administrative Agent, to the applicable Borrower
shall be conclusive in the absence of manifest error. This covenant shall
survive the termination of this Agreement and payment of all amounts outstanding
hereunder.
(b) In the event that any Lender shall have determined that
the adoption of any law, rule, regulation or guideline regarding capital
adequacy (or any change therein or in the interpretation or application thereof)
or compliance by any Lender or any corporation controlling such Lender with any
request or directive regarding capital adequacy (whether or not having the force
of law) from any central bank or Governmental Authority, including, without
limitation, the issuance of any final rule, regulation or guideline, does or
shall have the effect of reducing the rate of return on such Lender's or such
corporation's capital as a consequence of its obligations
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hereunder to a level below that which such Lender or such corporation could have
achieved but for such adoption, change or compliance (taking into consideration
such Lender's or such corporation's policies with respect to capital adequacy)
by an amount deemed by such Lender to be material, then from time to time, after
submission by such Lender to the U.S. Borrower (with a copy to the General
Administrative Agent) of a written request therefor, the U.S. Borrower shall
promptly pay to such Lender such additional amount or amounts as will compensate
such Lender for such reduction.
(c) If the obligation of any Lender to make Eurodollar Loans
or Multicurrency Loans has been suspended pursuant to subsection 10.7 or 10.9
for more than three consecutive months or any Lender has demanded compensation
under subsection 10.10(a) or 10.10(b), the U.S. Borrower shall have the right to
substitute a financial institution or financial institutions (which may be one
or more of the Lenders) reasonably satisfactory to the General Administrative
Agent by causing such financial institution or financial institutions to
purchase the rights (by paying to such Lender the principal amount of its
outstanding Loans together with accrued interest thereon and all other amounts
accrued for its account or owed to it hereunder and executing an Assignment and
Acceptance) and to assume the obligations of such Lender under the Loan
Documents. Upon such purchase and assumption by such substituted financial
institution or financial institutions, the obligations of such Lender hereunder
shall be discharged; provided such Lender shall retain its rights hereunder with
respect to periods prior to such substitution including, without limitation, its
rights to compensation under this subsection 10.10.
10.11 Indemnity. Each Borrower agrees to indemnify each Lender
and to hold each Lender harmless from any loss or expense which such Lender may
sustain or incur as a consequence of (a) default by such Borrower in payment
when due of the principal amount of or interest on any Loans of such Lender, (b)
default by such Borrower in making a borrowing or conversion after the Borrower
has given a notice of borrowing or a notice of conversion in accordance with
this Agreement, (c) default by such Borrower in making any prepayment after such
Borrower has given a notice in accordance with this Agreement, (d) the making of
a prepayment of a Eurodollar Loan or Multicurrency Loan on a day which is not
the last day of an Interest Period with respect thereto or the making by the
U.S. Borrower of a prepayment of Money Market Rate Swing Line Loans on a day
which is not the last day of the interest period with respect thereto,
including, without limitation, in each case, any such loss or expense arising
from the reemployment of funds obtained by it or from fees payable to terminate
the deposits from which such funds were obtained, or (e) the prepayment of an
Acceptance or an Acceptance Note on a day which is not the maturity date
thereof, including, without limitation, in each case, any such loss or expense
arising from the reemployment of funds obtained by it to maintain its Eurodollar
Loans or Multicurrency Loans hereunder or from fees payable to terminate the
deposits from which such funds were obtained. A certificate as to any such loss
or expense submitted by such Lender shall be conclusive, absent manifest error.
This covenant shall survive termination of this Agreement and payment of all
amounts outstanding hereunder.
10.12 Taxes. (a) All payments made by any Borrower under this
Agreement shall be made free and clear of, and without reduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions
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or withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any Governmental Authority excluding, in the case of each
Administrative Agent and each Lender, income or franchise taxes imposed on such
Administrative Agent or such Lender by the jurisdiction under the laws of which
such Administrative Agent or such Lender is organized or any political
subdivision or taxing authority thereof or therein or by any jurisdiction in
which such Lender's lending office is located or any political subdivision or
taxing authority thereof or therein or as a result of a connection between such
Lender and any jurisdiction other than a connection resulting solely from
entering into this Agreement (all such non-excluded taxes, levies, imposts,
deductions, charges or withholdings being thereinafter called "Taxes"). Subject
to the provisions of subsection 10.12(d), if any Taxes are required to be
withheld from any amounts payable by such Borrower to any Administrative Agent
or any Lender hereunder or under the Notes, the amounts so payable to such
Administrative Agent or such Lender shall be increased to the extent necessary
to yield to such Administrative Agent or such Lender (after payment of all
Taxes) interest or any such other amounts payable hereunder at the rates or in
the amounts specified in this Agreement and the Notes. Whenever any Taxes are
paid by any Borrower with respect to payments made in connection with this
Agreement, as promptly as possible thereafter, such Borrower shall send to the
applicable Administrative Agent for its own account or for the account of such
Lender, as the case may be, a certified copy of an original official receipt
received by such Borrower showing payment thereof. Subject to the provisions of
subsection 10.12(d), if any Borrower fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to the applicable Administrative
Agent the required receipts or other required documentary evidence, such
Borrower shall indemnify such Administrative Agent and the Lenders for any
incremental taxes, interest or penalties that may become payable by such
Administrative Agent or any Lenders as a result of any such failure.
(b) Each U.S. Lender that is not incorporated or organized
under the laws of the United States of America or a state thereof agrees that,
prior to the first date any payment is due to be made to it hereunder or under
any Note, it will deliver to the U.S. Borrower and the General Administrative
Agent (i) two valid, duly completed copies of United States Internal Revenue
Service Form 1001 or 4224 or successor applicable form, as the case may be,
certifying in each case that such Lender is entitled to receive payments by the
U.S. Borrower under this Agreement and the Notes payable to it, without
deduction or withholding of any United States federal income taxes, and (ii) a
valid, duly completed Internal Revenue Service Form W-8 or W-9 or successor
applicable form, as the case may be, to establish an exemption from United
States backup withholding tax. Each Lender which delivers to the U.S. Borrower
and the General Administrative Agent a Form 1001 or 4224 and Form W-8 or W-9
pursuant to the next preceding sentence further undertakes to deliver to the
U.S. Borrower and the General Administrative Agent two further copies of the
said Form 1001 or 4224 and Form W-8 or W-9, or successor applicable forms, or
other manner or certification, as the case may be, on or before the date that
any such form expires or becomes obsolete or otherwise is required to be
resubmitted as a condition to obtaining an exemption from withholding tax, or
after the occurrence of any event requiring a change in the most recent form
previously delivered by it to the U.S. Borrower, and such extensions or renewals
thereof as may reasonably be requested by the U.S. Borrower, certifying in the
case of a Form 1001 or 4224 or successor applicable form that such Lender is
entitled to receive payments by the U.S. Borrower under this Agreement without
deduction or
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withholding of any United States federal income taxes, unless any change in
treaty, law or regulation or official interpretation thereof has occurred prior
to the date on which any such delivery would otherwise be required which renders
all such forms inapplicable or which would prevent such Lender from duly
completing and delivering any such letter or form with respect to it and such
Lender advises the U.S. Borrower that it is not capable of receiving payments
without any deduction or withholding of United States federal income tax, and in
the case of a Form W-8 or W-9 or successor applicable form, establishing an
exemption from United States backup withholding tax (it being agreed that final
and temporary Treasury Regulations promulgated in T.O. 8734 shall not constitute
a change in law, regardless of their effective date).
(c) Each Multicurrency Lender shall, upon request by a Foreign
Subsidiary Borrower (or the U.S. Borrower on its behalf), within a reasonable
period of time after such request, deliver to such Foreign Subsidiary Borrower
or the applicable governmental or taxing authority, as the case may be, any form
or certificate required in order that any payment by such Foreign Subsidiary
Borrower under this Agreement or any Notes to such Lender may be made free and
clear of, and without deduction or withholding for or on account of any Taxes
(or to allow any such deduction or withholding to be at a reduced rate) imposed
on such payment under the laws of the jurisdiction under which such Foreign
Subsidiary Borrower is incorporated or organized, provided that such Lender is
legally entitled to complete, execute and deliver such form or certificate and
in such Lender's reasonable judgment such completion, execution or submission
would not materially prejudice the legal position of such Lender.
(d) Neither the U.S. Borrower nor any other Borrower shall be
required to pay any additional amounts to any Administrative Agent or any Lender
(or Transferee except to the extent such Transferee's transferor was entitled,
at the time of transfer, to receive additional amounts from the U.S. Borrower)
in respect of Taxes pursuant to subsection 10.12(a) if (i) the obligation to pay
such additional amounts would not have arisen but for a failure by the General
Administrative Agent or such Lender (or Transferee) to comply with the
requirements of subsection 10.12(b) or (c) (or in the case of a Transferee, the
requirements of subsection 18.6(h)).
(e) The Canadian Borrower shall not be requested to pay any
additional amounts pursuant to this subsection 10.12 to any Canadian Lender in
respect of any time after which such Canadian Lender has ceased to maintain its
status as a resident of Canada for the purposes of the Tax Act.
(f) Each Lender agrees to use reasonable efforts (including
reasonable efforts to change its lending office) to avoid or to minimize any
amounts which might otherwise be payable pursuant to this subsection 10.12;
provided, however, that such efforts shall not impose on such Lender any
additional costs or legal or regulatory burdens deemed by such Lender in its
reasonable judgment to be material.
(g) The agreements in subsection 10.12(a) shall survive the
termination of this Agreement and the payment of the Notes and all other amounts
payable hereunder until the expiration of the applicable statute of limitations
for such taxes.
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10.13 Assignment of Commitments Under Certain Circumstances.
(a) In the event that any Lender shall have delivered a notice or certificate
pursuant to subsection 10.10 or any Borrower has been required to pay any Taxes
in respect of any Lender pursuant to subsection 10.12, the U.S. Borrower shall
have the right, at its own expense, upon notice to such Lender and the General
Administrative Agent, to require such Lender to transfer and assign without
recourse (in accordance with and subject to the restrictions contained in
subsection 18.6) all its interests, rights and obligations under this Agreement
to another bank or financial institution identified by the U.S. Borrower and
reasonably acceptable to the General Administrative Agent (subject to the
restrictions contained in subsection 18.6) which shall assume such obligations;
provided that (i) no such assignment shall conflict with any law, rule or
regulation or order of any Governmental Authority and (ii) the Borrower or the
assignee, as the case may be, shall pay to the transferor Lender in immediately
available funds on the date of such assignment the principal of and interest
accrued to the date of payment on the Loans made by it hereunder and all other
amounts accrued for its account or owed to it hereunder, including, without
limitation, amounts payable pursuant to subsection 10.10 and any amounts that
would be payable under Subsection 10.11 if such amount were a prepayment made in
the amount and on the date of such assignment.
(b) In the event that any Multicurrency Lender (including a
Transferee) does not, for any reason, deliver all forms and certificates
required to permit all payments by all Foreign Subsidiary Borrowers hereunder to
be made free and clear of, and without deduction or withholding for or on
account of, any Taxes, the U.S. Borrower may, so long as no Event of Default has
occurred and is continuing, require such Multicurrency Lender, upon five
Business Days' prior written notice from the U.S. Borrower, to assign the entire
then outstanding principal amount of the Multicurrency Loans owing to such
Multicurrency Lender and the entire Multicurrency Commitment of such
Multicurrency Lender to one or more Lenders selected by the U.S. Borrower which,
after giving effect to such assignment, will have a U.S. Revolving Credit
Commitment in excess of its Multicurrency Commitment. In the case of any such
assignment to another Lender, such assignee Lender shall assign to such assignor
Multicurrency Lender a principal amount of outstanding U.S. Revolving Credit
Loans owing to such assignee Lender equal to the lesser of (i) the U.S. Dollar
Equivalent of the amount of Multicurrency Loans assigned to such assignee Lender
and (ii) the aggregate outstanding principal amount of U.S. Revolving Credit
Loans owing to such assignee Lender. Any such assignments pursuant to the two
precedent sentences shall be effected in accordance with subsection 18.6(c) and,
as a condition to such assignment, simultaneously with such assignment, the U.S.
Borrower shall pay or cause to be paid all amounts due to the assignor
Multicurrency Lender and the assignee Lender hereunder on the effective date of
such assignments.
10.14 Use of Proceeds. The proceeds of the Loans shall be used
for general corporate purposes of the U.S. Borrower and its Subsidiaries,
including acquisitions permitted hereunder.
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SECTION 11. REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Agreement and to make
the Loans, and to induce the Issuing Lender to issue Letters of Credit, each
Borrower hereby represents and warrants to each Administrative Agent and to each
Lender that:
11.1 Financial Statements. The audited consolidated balance
sheets of the U.S. Borrower as of December 31, 1998 and the related statements
of income and cash flow for the fiscal year ending on such date, heretofore
furnished to the General Administrative Agent and the Lenders and certified by a
Responsible Officer of the U.S. Borrower are complete and correct in all
material respects and fairly present the financial condition of the U.S.
Borrower on such date in conformity with GAAP applied on a consistent basis
(subject to normal year-end adjustments). All liabilities, direct and
contingent, of the U.S. Borrower on such date required to be disclosed pursuant
to GAAP are disclosed in such financial statements.
11.2 No Change. There has been no material adverse change in
the business, operations, assets or financial or other condition of the U.S.
Borrower and its Subsidiaries taken as a whole from that reflected on the
financial statements dated December 31, 1998 referred to in subsection 11.1.
11.3 Corporate Existence; Compliance with Law. The U.S.
Borrower and each of its Material Subsidiaries (a) is duly organized, validly
existing and in good standing (or the functional equivalent thereof in the case
of Foreign Subsidiaries) under the laws of the jurisdiction of its organization,
(b) has the corporate power and authority, and the legal right, to own and
operate its property, to lease the property it operates as lessee and to conduct
the business in which it is currently engaged, (c) is duly qualified as a
foreign corporation and in good standing (or the functional equivalent thereof
in the case of Foreign Subsidiaries) under the laws of each jurisdiction where
its ownership, lease or operation of property or the conduct of its business
requires such qualification except where the failure to be so qualified and in
good standing would not, individually or in the aggregate, have a material
adverse effect on the business, operations, property or financial or other
condition of the U.S. Borrower and its Subsidiaries taken as a whole and would
not adversely affect the ability of any Loan Party to perform its respective
obligations under the Loan Documents to which it is a party and (d) is in
compliance with all Requirements of Law, except to the extent that the failure
to comply therewith would not reasonably be expected to have, individually or in
the aggregate, a material adverse effect on the business, operations, assets or
financial or other condition of the U.S. Borrower and its Subsidiaries taken as
a whole and would not reasonably be expected to adversely affect the ability of
any Loan Party to perform its obligations under the Loan Documents to which it
is a party.
11.4 Corporate Power; Authorization; Enforceable Obligations.
(a) Each Loan Party has the corporate power and authority, and the legal right,
to execute, deliver and perform each of the Loan Documents to which it is a
party or to which this Agreement requires it to become a party. The U.S.
Borrower has the corporate power and authority to borrow hereunder and has taken
all necessary corporate action to authorize the borrowings on the terms and
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conditions of this Agreement and the U.S. Revolving Credit Notes. The Canadian
Borrower has the corporate power and authority to borrow hereunder and has taken
all necessary corporate action to authorize the borrowings on the terms and
conditions of this Agreement and the Canadian Revolving Credit Notes. Each Loan
Party has taken all necessary corporate action to authorize the execution,
delivery and performance of each of the Loan Documents to which it is a party or
to which this Agreement requires it to become a party.
(b) No consent or authorization of, filing with or other act
by or in respect of any Person (including, without limitation, any Governmental
Authority) is required in connection with the borrowings hereunder or with the
execution, delivery, performance, validity or enforceability of the Loan
Documents or the consummation of any of the transactions contemplated hereby or
thereby, except for consents, authorizations, or filings which have been
obtained and are in full force and effect.
(c) This Agreement and each other Loan Document to which any
Loan Party is a party has been, and each other Loan Document to be executed by a
Loan Party hereunder will be, duly executed and delivered on behalf of such Loan
Party. This Agreement and each other Loan Document to which any Loan Party is a
party constitutes, and each other Loan Document to be executed by a Loan Party
hereunder will constitute, a legal, valid and binding obligation of such Loan
Party enforceable against such Loan Party in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
11.5 No Legal Bar; Senior Debt. The execution, delivery and
performance by each Loan Party of the Loan Documents to which it is a party, the
borrowings hereunder and the use of the proceeds thereof, (a) will not violate
any Requirement of Law or any Contractual Obligation of the U.S. Borrower or any
other Loan Party (including, without limitation, the 9 1/2% Subordinated Note
Indenture and the Subordinated Note Indenture) except for violations of
Requirements of Law and Contractual Obligations (other than such Indentures)
which, individually or in the aggregate will not have a material adverse effect
on the business, operations, property or financial or other condition of the
U.S. Borrower and its Subsidiaries taken as a whole and will not adversely
affect the ability of any Loan Party to perform its obligations under any of the
Loan Documents to which it is a party and (b) will not result in, or require,
the creation or imposition of any Lien (other than the Liens created by the
Security Documents) on any of its or their respective properties or revenues
pursuant to any Requirement of Law or Contractual Obligation. The Obligations of
the U.S. Borrower constitute "Senior Indebtedness" benefitting from the
subordination provisions contained in the Subordinated Debt, except to the
extent that such Obligations are owed to an Affiliate of the U.S. Borrower.
11.6 No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the U.S. Borrower, overtly threatened by or against the U.S.
Borrower or any of its Subsidiaries or against any of its or their respective
properties or revenues (a) with respect to any Loan Document or any of the
transactions contemplated hereby or thereby, (b) which would reasonably be
expected to
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have a material adverse effect on the business, operations, property or
financial or other condition of the U.S. Borrower and its Subsidiaries taken as
a whole or (c) which would be reasonably expected to adversely affect the
ability of any Loan Party to perform its obligations under any of the Loan
Documents to which it is a party.
11.7 No Default. Neither the U.S. Borrower nor any of its
Subsidiaries is in default under or with respect to any Contractual Obligation
or any order, award or decree of any Governmental Authority or arbitrator
binding upon it or any of its properties in any respect which would have a
material adverse effect on the business, operations, property or financial or
other condition of the U.S. Borrower and its Subsidiaries taken as a whole or
which would adversely affect the ability of any Loan Party to perform its
obligations under any of the Loan Documents to which it is a party. No Default
or Event of Default has occurred and is continuing.
11.8 Ownership of Property; Liens. The U.S. Borrower and each
of its Material Subsidiaries has good record and marketable title in fee simple
to, or a valid and subsisting leasehold interest in all its material real
property, and good title to all its other property, and none of such property is
subject to any Lien, except as permitted in subsection 14.3 and except, in each
case, where any failure to have good title or a valid and subsisting leasehold
interest or the existence of any Lien would not reasonably be expected to have a
material adverse effect on the business, operations, property or financial or
other condition of the U.S. Borrower and its Subsidiaries taken as a whole.
11.9 Taxes. (a) The U.S. Borrower and each of its Material
Subsidiaries has filed or caused to be filed all tax returns which to the
knowledge of the U.S. Borrower are required to be filed and has paid all taxes
shown to be due and payable on said returns or on any assessments made against
it or any of its property and all other taxes, fees or other charges imposed on
it or any of its property by any Governmental Authority (other than those which,
in the aggregate, are not substantial in amount or those the amount or validity
of which are currently being contested in good faith by appropriate proceedings
and with respect to which reserves in conformity with GAAP have been provided on
the books of the U.S. Borrower or its Subsidiaries, as the case may be and
except insofar as the failure to make such filings or payments would not
reasonably be expected to have a material adverse effect on the business,
operations, property or financial condition of the U.S. Borrower and its
Subsidiaries taken as a whole); and (b) no tax lien (other than a Lien permitted
in subsection 14.3) has been filed and, to the knowledge of the U.S. Borrower,
no claim is being asserted with respect to any such tax, fee or other charge.
11.10 Securities Law, etc. Compliance. All transactions
contemplated by this Agreement and the other Loan Documents comply in all
material respects with all applicable laws and any rules and regulations
thereunder, including takeover, disclosure and other federal, state and foreign
securities law and Regulations T, U and X of the Federal Reserve Board.
11.11 ERISA. As to each Plan other than a Multiemployer Plan,
neither a Reportable Event nor an "accumulated funding deficiency" (within the
meaning of Section 412 of the Code or Section 302 of ERISA) has occurred during
the five-year period prior to the date on which this representation is made or
deemed made with respect to any Plan, and each Plan has
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complied in all material respects with the applicable provisions of ERISA and
the Code. No termination of a Single Employer Plan has occurred and no Lien
under the Code or ERISA in favor of PBGC or a Single Employer Plan has arisen
during the five-year period prior to the date as of which this representation is
deemed made. The present value of all accrued benefits under each Single
Employer Plan maintained by the U.S. Borrower or any Commonly Controlled Entity
(based on those assumptions used to fund the Plans) did not, as of the last
annual valuation date prior to the date on which this representation is made or
deemed made, exceed the value of the assets of such Plan allocable to such
accrued benefits, either individually or in the aggregate with all other Single
Employer Plans under which such accrued benefits exceed such assets, by more
than $125,000,000. Neither the U.S. Borrower nor any Commonly Controlled Entity
has had a complete or partial withdrawal from any Multiemployer Plan during the
five year period prior to the date as of which this representation is made or
deemed made, and neither the U.S. Borrower nor any Commonly Controlled Entity
would become subject to liability under ERISA in the aggregate which exceeds
$145,000,000 if the U.S. Borrower or any such Commonly Controlled Entity were to
withdraw completely from all Multiemployer Plans as of the valuation date most
closely preceding the date hereof, and no such withdrawal is likely to occur. No
such Multiemployer Plan is in Reorganization or Insolvent. The present value
(determined using actuarial and other assumptions which are reasonable in
respect of the benefits provided and the employees participating) of the
liability of the U.S. Borrower and each Commonly Controlled Entity for post
retirement benefits to be provided to their current and former employees under
Plans which are welfare benefit plans (as defined in Section 3(1) of ERISA) does
not, in the aggregate, exceed the assets under all such Plans allocable to such
benefits by an amount in excess of $145,000,000.
11.12 Investment Company Act; Other Regulations. The U.S.
Borrower is not an "investment company" within the meaning of the Investment
Company Act of 1940, as amended. The U.S. Borrower is not subject to regulation
under any federal or state statute or regulation which limits its ability to
incur Indebtedness.
11.13 Subsidiaries, etc. The Subsidiaries of the U.S. Borrower
as of the Closing Date are those listed on Schedule VI. The U.S. Borrower owns,
as of the Closing Date, the percentage of the issued and outstanding capital
stock or other evidences of the ownership of each Subsidiary listed on Schedule
VI as set forth on such Schedule. Except as disclosed on Schedule VI, no such
Subsidiary has issued any securities convertible into shares of its capital
stock (or other evidence of ownership) or any options, warrants or other rights,
to acquire such shares or securities convertible into such shares (or other
evidence of ownership), and the outstanding stock and securities (or other
evidence of ownership) of such Subsidiaries are owned by the U.S. Borrower and
its Subsidiaries free and clear of all Liens, warrants, options or rights of
others of any kind whatsoever except for Liens permitted by subsection 14.3.
11.14 Accuracy and Completeness of Information. All
information, reports and other papers and data with respect to the U.S. Borrower
or this Agreement or any transaction contemplated hereby furnished to the
Lenders by the U.S. Borrower or on behalf of the U.S. Borrower, were, at the
time the same were so furnished, complete and correct in all material respects,
or have been subsequently supplemented by other information, reports or other
papers
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or data, to the extent necessary to give the Lenders a true and accurate
knowledge of the subject matter in all material respects. All projections with
respect to the U.S. Borrower and its Subsidiaries, so furnished by the U.S.
Borrower, as supplemented, were prepared and presented in good faith by the U.S.
Borrower, it being recognized by the Lenders that such projections as to future
events are not to be viewed as facts and that actual results during the period
or periods covered by any such projections may differ materially from the
projected results. No document furnished or statement made in writing to the
Lenders by the U.S. Borrower in connection with the negotiation, preparation or
execution of this Agreement contains any untrue statement of a material fact,
or, to the knowledge of the U.S. Borrower after due inquiry, omits to state any
such material fact necessary in order to make the statements contained therein
not misleading, in either case which has not been corrected, supplemented or
remedied by subsequent documents furnished or statements made in writing to the
Lenders.
11.15 Security Documents. Each Pledge Agreement is effective
to create in favor of the General Administrative Agent, for the ratable benefit
of the Lenders, a legal, valid and enforceable security interest in the pledged
assets described therein. Each Pledge Agreement constitutes a fully perfected
first Lien on, and security interest in, all right, title and interest of the
Loan Party thereto in the pledged assets described therein.
11.16 Patents, Copyrights, Permits and Trademarks. Each of the
U.S. Borrower and its Subsidiaries owns, or has a valid license or sub-license
in, all domestic and foreign letters patent, patents, patent applications,
patent and know-how licenses, inventions, technology, permits, trademark
registrations and applications, trademarks, trade names, trade secrets, service
marks, copyrights, product designs, applications, formulae, processes and the
industrial property rights ("Proprietary Rights") used in the operation of its
businesses in the manner in which they are currently being conducted and which
are material to the business, operations, assets or financial or other condition
of the U.S. Borrower and its Subsidiaries taken as a whole. Neither the U.S.
Borrower nor any of its Subsidiaries is aware of any existing or threatened
infringement or misappropriation of any Proprietary Rights of others by the U.S.
Borrower or any of its Subsidiaries or of any Proprietary Rights of the U.S.
Borrower or any of its Subsidiaries by others which is material to the business
operations, assets or financial or other condition of the U.S.
Borrower and its Subsidiaries taken as a whole.
11.17 Environmental Matters. Except as disclosed in Schedule
VII, and other than such exceptions to any of the following that would not
reasonably be expected to give rise to a material adverse effect on the
business, operations, property or financial condition of the U.S.
Borrower and its Subsidiaries taken as a whole:
(a) To the best knowledge of the U.S. Borrower and its
Subsidiaries, after reasonable investigation, the Properties do not
contain, and have not previously contained, any Hazardous Materials in
amounts or concentrations or under such conditions which (A) constitute
a violation of, or (B) could reasonably give rise to any liability
under any applicable Environmental Laws.
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(b) To the best knowledge of the U.S. Borrower and its
Subsidiaries, after reasonable investigation, the Properties and all
operations at the Properties are in compliance, and have been in
compliance for the time period that each of the Properties has been
owned by the U.S. Borrower or its Subsidiaries, with all Environmental
Laws, and there is no contamination at, on or under the Properties, or
violation of any Environmental Laws with respect to the Properties
which could interfere with the continued operation of the Properties or
impair the fair saleable value thereof. Neither the U.S. Borrower nor
any Subsidiary has knowingly assumed any liability, by contract or
otherwise, of any person under any Environmental Laws.
(c) Neither the U.S. Borrower nor any of its
Subsidiaries has received any Environmental Complaint with regard to
any of the Properties or the operations of the U.S. Borrower or any of
its Subsidiaries, nor does the U.S. Borrower or any of its Subsidiaries
have knowledge or reason to believe that any such notice will be
received or is being threatened.
(d) To the best knowledge of the U.S. Borrower and its
Subsidiaries, based on the U.S. Borrower's and the Subsidiaries'
customary practice of contracting only with licensed haulers for
removal of Hazardous Materials from the Properties only to facilities
authorized to receive such Hazardous Materials, Hazardous Materials
have not been transported or disposed of from the Properties in
violation of, or in a manner or to a location which could reasonably
give rise to liability under, Environmental Laws, nor have any
Hazardous Materials been generated, treated, stored or disposed of at,
on or under any of the Properties in violation of, or in a manner that
could reasonably give rise to liability under any Environmental Laws.
(e) No judicial proceedings or governmental or
administrative action is pending, or, to the knowledge of the U.S.
Borrower and its Subsidiaries, threatened, under any Environmental Law
to which the U.S. Borrower and its Subsidiaries are or will be named as
a party with respect to the Properties, nor are there any consent
decrees or other decrees, consent orders, administrative orders or
other orders, or other administrative or judicial requirements
outstanding under any Environmental Law with respect to the Properties.
(f) To the best knowledge of the U.S. Borrower and its
Subsidiaries after reasonable investigation, there has been no release
or threat of release of Hazardous Materials at or from the Properties,
or arising from or related to the operations of the U.S. Borrower or
its Subsidiaries in connection with the Properties in violation of or
in amounts or in a manner that could reasonably give rise to liability
under any Environmental Laws.
11.18 Year 2000 Matters. Any reprogramming required to permit
the proper functioning, in and following the year 2000, of (i) the U.S.
Borrower's computer systems and (ii) equipment containing embedded microchips
(including systems and equipment supplied by others or with which the U.S.
Borrower's systems interface) and the testing of all such systems
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and equipment, as so reprogrammed, are expected to be completed within such
period of time as is required to avoid a material adverse effect on the
business, operations, property or financial condition of the U.S. Borrower and
its Subsidiaries taken as a whole as a result of the failure to complete such
reprogramming. The cost to the U.S. Borrower of such reprogramming and testing
and of the reasonably foreseeable consequences of year 2000 to the U.S. Borrower
(including, without limitation, reprogramming errors and the failure of others'
systems or equipment) would not reasonably be expected to have a material
adverse effect on the business, operations, property or financial condition of
the U.S. Borrower and its Subsidiaries taken as a whole.
SECTION 12. CONDITIONS PRECEDENT
12.1 Conditions to Closing Date. The Closing Date shall occur
on the date of satisfaction of the following conditions precedent:
(a) Agreement. The General Administrative Agent shall have
received counterparts of this Agreement, duly executed by a Responsible
Officer of each Borrower and by each Agent and Lenders constituting the
Majority Lenders (as defined in the Existing Credit Agreement).
(b) Subsidiary Guarantee. The General Administrative Agent
shall have received the Subsidiary Guarantee duly executed by each
guarantor party thereto.
(c) Domestic Pledge Agreement. The General Administrative
Agent shall have received the Domestic Pledge Agreement listed on
Schedule IV, duly executed by each pledgor party thereto.
(d) Pledged Stock; Stock Powers. The General Administrative
Agent shall have received the certificates representing the shares
pledged pursuant to the Domestic Pledge Agreement listed on Schedule
IV, together with an undated stock power for each such certificate
executed in blank by a duly authorized officer of the pledgor thereof.
(e) Perfection Actions. The General Administrative Agent shall
have received evidence in form and substance satisfactory to it that
all filings, recordings, registrations and other actions necessary or,
in the opinion of the General Administrative Agent, desirable to
perfect the Liens created by the Domestic Pledge Agreements shall have
been completed.
(f) UT Automotive Acquisition. The UT Automotive Acquisition
shall have been consummated in accordance with the UT Automotive
Acquisition Agreement, and the Administrative Agent shall have received
a certificate of a Responsible Officer to such effect.
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(g) UT Automotive Financial Statements. The Lenders shall have
received the audited financial statements of Lear Corporation
Automotive Holdings (formerly known as UT Automotive, Inc.) for the
fiscal year ended December 31, 1998.
(h) Consents. The General Administrative Agent shall have
received, and made available to each Lender, true and correct copies
(in each case certified as to authenticity on such date by a duly
authorized officer of the U.S. Borrower) of all documents and
instruments, including all consents, authorizations and filings,
required under any Requirement of Law or by Contractual Obligation of
the U.S. Borrower or any of its Subsidiaries, in connection with the
execution, delivery, performance, validity and enforceability of this
Agreement and the other Loan Documents, and such consents,
authorizations and filings shall be satisfactory in form and substance
to the Lenders and be in full force and effect.
(i) Incumbency Certificates. The General Administrative Agent
shall have received, with a copy for each Lender, a certificate of the
Secretary or Assistant Secretary of each Domestic Loan Party and the
Canadian Borrower, dated the Closing Date, as to the incumbency and
signature of their respective officers executing each Loan Document to
be entered into on the Closing Date to which it is a party, together
with satisfactory evidence of the incumbency of such Secretary or
Assistant Secretary.
(j) Corporate Proceedings. The General Administrative Agent
shall have received, with a copy for each Lender, a copy of the
resolutions in form and substance satisfactory to the General
Administrative Agent, of the Board of Directors (or the executive
committee thereof) of each Domestic Loan Party and the Canadian
Borrower authorizing (i) the execution, delivery and performance of
each Loan Document to be entered into on the Closing Date to which it
is a party, and (ii) the granting by it of the pledge and security
interests, if any, granted by it pursuant to such Loan Document,
certified by their respective Secretary or an Assistant Secretary as of
the Closing Date, which certificate shall state that the resolutions
thereby certified have not been amended, modified, revoked or rescinded
as of the date of such certificate.
(k) Fees. The General Administrative Agent shall have received
all fees required to be paid to the General Administrative Agent and/or
the Lenders pursuant to Section 10.5 and/or any other written agreement
on or prior to the Closing Date.
(l) Legal Opinion of Counsel to U.S. Borrower. The General
Administrative Agent shall have received, with a copy for each Lender,
an opinion, dated the Closing Date, of Winston & Strawn, special
counsel to the U.S. Borrower and its Subsidiaries and in substantially
the form of Exhibit L and covering such other matters incident to the
transactions contemplated hereby as the Lenders may reasonably require.
(m) Legal Opinion of Canadian Counsel. The General
Administrative Agent shall have received, with a copy for each Lender,
an opinion of Tory, Tory, Deslauriers & Binnington, Canadian counsel to
the U.S. Borrower and the Canadian Borrower, in
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substantially the form of Exhibit M and covering such other matters
incident to the transactions contemplated hereby as the General
Administrative Agent may reasonably require.
(n) Subordinated Debt Indentures. The General Administrative
Agent shall have received, with a copy for each Lender, a certified
true copy of the outstanding Subordinated Debt Indentures.
(o) Existing Credit Agreement. The General Administrative
Agent shall have received evidence that all amounts payable to lenders
under the Existing Credit Agreement shall have been paid (other than
the principal amount of, and accrued interest on, loans outstanding
thereunder owing to lenders thereunder, which loans shall become Loans
hereunder on the Closing Date, and other than acceptances and
acceptance notes created thereunder by lenders thereunder, which
acceptances and acceptance notes shall become Acceptances and
Acceptance Notes hereunder on the Closing Date).
(p) Closing Date under Other Credit Agreements. The Closing
Date under (and as defined in) the Other Credit Agreements shall have
occurred or shall occur simultaneously with the Closing Date hereunder.
12.2 Conditions to Each Extension of Credit. The agreement of
each Lender to make any Extension of Credit requested to be made by it on any
date (including, without limitation, the Closing Date), is subject to the
satisfaction of the following conditions precedent as of the date such Extension
of Credit is requested to be made:
(a) Representations and Warranties. The representations and
warranties made by each of the Loan Parties in or pursuant to the Loan
Documents shall be true and correct in all material respects on and as
of such date as if made on and as of such date (except that any
representation or warranty which by its terms is made as of a specified
date shall be true and correct in all material respects as of such
specified date).
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
Extension of Credit requested to be made on such date.
(c) Foreign Subsidiary Opinion. If such requested Extension of
Credit is the initial Multicurrency Loan to be made to any Foreign
Subsidiary Borrower that is not a party to the Existing Credit
Agreement on the Closing Date, the General Administrative Agent shall
have received (with a copy for each Lender) a Foreign Subsidiary
Opinion in respect of such Foreign Subsidiary Borrower.
(d) Usage of Revolving Credit Facility under New Revolving
Credit Agreement. If such Extension of Credit is any U.S. Revolving
Credit Loan to the U.S. Borrower, all commitments under the New
Revolving Credit Agreement shall have been utilized in full, and such
commitments shall not have been optionally reduced after the Closing
Date.
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Each Extension of Credit made to a Borrower hereunder shall constitute a
representation and warranty by such Borrower as of the date of such Extension of
Credit that the conditions contained in this subsection 12.2 have been
satisfied.
SECTION 13. AFFIRMATIVE COVENANTS
The U.S. Borrower hereby agrees that, so long as the
Commitments (or any of them) remain in effect, any Loan, Acceptance
Reimbursement Obligation, Acceptance Note, Reimbursement Obligation or
Subsidiary Reimbursement Obligation remains outstanding and unpaid or any other
amount is owing to any Lender or either Administrative Agent hereunder or under
any other Loan Document, the U.S. Borrower shall and shall cause each of its
Subsidiaries to:
13.1 Financial Statements. Furnish to each Lender (or to the
General Administrative Agent on behalf of such Lender):
(a) as soon as available, but in any event within 95 days
after the end of each fiscal year of the U.S. Borrower, a copy of the
audited consolidated balance sheet of the U.S. Borrower and its
consolidated Subsidiaries as at the end of such year and the related
consolidated statements of income and cash flows for such year, setting
forth in each case in comparative form the figures for the previous
year, reported on without a "going concern" or like qualification or
exception, or qualification arising out of the scope of the audit, by
independent certified public accountants of nationally recognized
standing;
(b) as soon as available, but in any event not later than 50
days after the end of each of the first three quarterly periods of each
fiscal year of the U.S. Borrower, the unaudited consolidated balance
sheet of the U.S. Borrower and its consolidated Subsidiaries as at the
end of each such quarter and the related unaudited consolidated
statements of income and cash flows of the U.S. Borrower and its
consolidated Subsidiaries for such quarter and the portion of the
fiscal year through such date, setting forth in each case in
comparative form the figures for the corresponding quarterly period of
the previous year, certified by a Responsible Officer (subject to
normal year-end audit adjustments).
The U.S. Borrower covenants and agrees that all such financial statements shall
be complete and correct in all material respects and shall be prepared in
reasonable detail and in accordance with GAAP (subject, in the case of interim
statements, to normal year-end adjustments and to the fact that such financial
statements may be abbreviated and may omit footnotes or contain incomplete
footnotes) applied consistently throughout the periods reflected therein (except
as approved by such accountants or officer, as the case may be, and disclosed
therein).
13.2 Certificates; Other Information. Furnish to each Lender
(or to the General Administrative Agent on behalf of such Lender):
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(a) concurrently with the delivery of the financial statements
referred to in subsection 13.1(a), a certificate of the independent
certified public accountants reporting on such financial statements
stating that in making the examination necessary therefor no knowledge
was obtained of any Default or Event of Default, except as specified in
such certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsection 13.1(a) and (b), a certificate of a
Responsible Officer of the U.S. Borrower (i) stating that such
Responsible Officer has obtained no knowledge of any Default or Event
of Default except as specified in such certificate, (ii) stating, to
the best of such Responsible Officer's knowledge, that all such
financial statements are complete and correct in all material respects
(subject, in the case of interim statements, to normal year-end audit
adjustments) and have been prepared in reasonable detail and in
accordance with GAAP applied consistently throughout the periods
reflected therein (except as disclosed therein) and (iii) showing in
detail the calculations supporting such statements in respect of
subsection 14.1;
(c) promptly upon receipt thereof, copies of all final reports
submitted to the U.S. Borrower by independent certified public
accountants in connection with each annual, interim or special audit of
the books of the U.S. Borrower made by such accountants, including,
without limitation, any management letter commenting on the U.S.
Borrower's internal controls submitted by such accountants to
management in connection with their annual audit;
(d) promptly after the same are sent, copies of all financial
statements and reports which the U.S. Borrower sends to its public
equity holders, and within five days after the same are filed, copies
of all financial statements and reports which the U.S. Borrower may
make to, or file with, the Securities and Exchange Commission or any
successor or analogous Governmental Authority; and
(e) promptly, subject to reasonable confidentiality
requirements and confidentiality agreements to which the U.S. Borrower
or any of its Subsidiaries is a party, such additional financial and
other information as any Lender may from time to time reasonably
request.
13.3 Performance of Obligations. Perform in all material
respects all of its obligations under the terms of each material mortgage,
indenture, security agreement and other debt instrument by which it is bound or
to which it is a party and pay, discharge or otherwise satisfy at or before
maturity or before they become delinquent, as the case may be, all its material
obligations of whatever nature, except when the amount or validity thereof is
currently being contested in good faith by appropriate proceedings and reserves
in conformity with GAAP with respect thereto have been provided for on the books
of the U.S. Borrower or its Subsidiaries, as the case may be.
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13.4 Conduct of Business, Maintenance of Existence and
Compliance with Obligations and Laws. Continue to engage in business of the same
general type as now conducted by it and preserve, renew and keep in full force
and effect its corporate existence and take all reasonable action to maintain
all rights, privileges and franchises necessary or desirable in the normal
conduct of its business except as otherwise permitted pursuant to subsection
14.5 and except, with respect to the corporate existence of Subsidiaries that
are not Loan Parties and any rights, privileges and franchises, to the extent
that the Board of Directors of the U.S. Borrower shall determine in good faith
that the preservation or maintenance thereof is no longer desirable in the
conduct of the business of the U.S. Borrower and its Subsidiaries; comply with
all Contractual Obligations and Requirements of Law except to the extent that
failure to comply therewith would not reasonably be expected to have,
individually or in the aggregate, a material adverse effect on the business,
operations, property or financial or other condition of the U.S. Borrower and
its Subsidiaries taken as a whole and would not reasonably be expected to
adversely affect the ability of the U.S. Borrower or any of its Subsidiaries to
perform their respective obligations under any of the Loan Documents to which
they are a party.
13.5 Maintenance of Property; Insurance. Keep all property
useful and necessary in its business in good working order and condition where
the failure to maintain such property in good working order and condition would
reasonably be expected to have a material adverse effect on the business,
operations, property or financial condition of the U.S. Borrower and its
Subsidiaries taken as a whole; maintain with financially sound and reputable
insurance companies such insurance coverage as is reasonable for the business
activities of the U.S. Borrower and its Subsidiaries; and furnish to the General
Administrative Agent, upon written request, full information as to the insurance
carried.
13.6 Inspection of Property; Books and Records; Discussions.
Keep proper books of records and account in which full, true and correct entries
in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities; and permit
representatives of any Lender (subject to reasonable confidentiality
requirements) to visit and inspect any of its properties and examine and make
abstracts from any of its books and records upon reasonable notice and at any
reasonable time and as often as may reasonably be desired, and to discuss the
business, operations, properties and financial and other condition of the U.S.
Borrower and its Subsidiaries with officers and employees of the U.S. Borrower
and its Subsidiaries and, provided the U.S. Borrower is given an opportunity to
participate, with its independent certified public accountants.
13.7 Notices. Promptly give notice to the General
Administrative Agent and each Lender:
(a) of the occurrence of any Default or Event of Default;
(b) of any (i) default or event of default under any
Contractual Obligation of the U.S. Borrower or any of its Subsidiaries
or (ii) litigation, investigation or proceeding which may exist at any
time between the U.S. Borrower or any of its Subsidiaries and any
Governmental Authority, which in the case of either clause (i) or (ii)
above, would
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reasonably be expected to have a material adverse effect on the
business, operations, property or financial condition of the U.S.
Borrower and its Subsidiaries taken as a whole or would reasonably be
expected to adversely affect the ability of the U.S. Borrower or any of
its Subsidiaries to perform their respective obligations under any of
the Loan Documents to which they are a party;
(c) of any litigation or proceeding affecting the U.S.
Borrower or any of its Subsidiaries in which the then reasonably
anticipated exposure of the U.S. Borrower and its Subsidiaries is
$20,000,000 or more and not covered by insurance, or in which
injunctive or similar relief is sought which is then reasonably
anticipated to have an adverse economic effect on the U.S. Borrower and
its Subsidiaries of $20,000,000 or more;
(d) of the following events, as soon as possible and in any
event within 30 days after the U.S. Borrower knows or has reason to
know thereof: (i) the occurrence or expected occurrence of any
Reportable Event with respect to any Single Employer Plan, a failure to
make any required contribution to any Single Employer Plan, unless such
failure is cured within such 30 days, any Lien under the Code or ERISA
in favor of the PBGC or a Single Employer Plan, or any withdrawal from,
or the termination, Reorganization or Insolvency of any Multiemployer
Plan or (ii) the institution of proceedings or the taking of any other
action by the PBGC or the U.S. Borrower or any Commonly Controlled
Entity or any Multiemployer Plan with respect to the withdrawal from,
or the termination, Reorganization or Insolvency of, any Single
Employer or Multiemployer Plan, where, in connection with any of the
events described in clauses (i) or (ii), the resulting liability would
reasonably be expected to cause a material adverse change in the
business, assets, operations or financial condition of the U.S.
Borrower and its Subsidiaries taken as a whole;
(e) of any Environmental Complaint which would reasonably be
expected to have a material adverse effect on the business, operations,
property or financial condition of the U.S. Borrower and its
Subsidiaries, taken as a whole, and any notice from any Person of (i)
the occurrence of any release, spill or discharge of any Hazardous
Material that is reportable under any Environmental Law, (ii) the
commencement of any clean up pursuant to or in accordance with any
Environmental Law of any Hazardous Material at, on, under or within the
Property or any part thereof or (iii) any other condition,
circumstance, occurrence or event, any of which would reasonably be
expected to have a material adverse effect on the business, operations,
property or financial condition of the U.S. Borrower and its
Subsidiaries, taken as a whole, under any Environmental Law;
(f) of (i) the incurrence of any Lien (other than Liens
permitted pursuant to subsection 14.3) on, or claim asserted against
any of the collateral security in the Security Documents or (ii) the
occurrence of any other event which could reasonably be expected to
have a material adverse effect on the aggregate value of the collateral
under any Security Document; and
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(g) of a material adverse change in the business, operations,
property or financial condition of the U.S. Borrower and its
Subsidiaries taken as a whole.
Each notice pursuant to this subsection 13.7 shall be accompanied by a statement
of a Responsible Officer of the U.S. Borrower setting forth details of the
occurrence referred to therein and stating what action the U.S. Borrower
proposes to take with respect thereto.
13.8 Maintenance of Liens of the Security Documents. Promptly,
upon the reasonable request of any Lender, at the U.S. Borrower's expense,
execute, acknowledge and deliver, or cause the execution, acknowledgment and
delivery of, and thereafter register, file or record, or cause to be registered,
filed or recorded, in an appropriate governmental office, any document or
instrument supplemental to or confirmatory of the Security Documents or
otherwise deemed by the General Administrative Agent necessary or desirable for
the continued validity, perfection and priority of the Liens on the collateral
covered thereby.
13.9 Environmental Matters. (a) Comply in all material
respects with, and use all reasonable efforts to ensure compliance in all
material respects by all tenants and subtenants, if any, with, all Environmental
Laws and all requirements existing thereunder and obtain and comply in all
material respects with and maintain, and use all reasonable efforts to ensure
that all tenants and subtenants obtain, comply in all material respects with and
maintain, any and all licenses, approvals, notifications, registrations or
permits required by Environmental Laws.
(b) Promptly comply in all material respects with all lawful
orders and directives of all Governmental Authorities regarding Environmental
Laws, other than such orders and directives as to which an appeal has been taken
in good faith and the pendency of any and all such appeals does not materially
and adversely affect the U.S. Borrower or any Subsidiary or the operations of
the U.S. Borrower or any Subsidiary.
(c) Defend, indemnify and hold harmless the General
Administrative Agent and the Lenders and their Affiliates, and their respective
employees, agents, officers and directors, from and against any claims, demands,
penalties, fines, liabilities, settlements, damages, costs and expenses of
whatever kind or nature known or unknown, contingent or otherwise, arising out
of, or in any way relating to the violation of, noncompliance with or liability
under any Environmental Laws applicable to the U.S. Borrower or its Subsidiaries
or the Properties, or any orders, requirements or demands of Governmental
Authorities related thereto, including, without limitation, attorney's and
consultant's fees, investigation and laboratory fees, response costs, court
costs and litigation expenses, except to the extent that any of the foregoing
arise solely out of the gross negligence or willful misconduct of the party
seeking indemnification therefor. This indemnity shall continue in full force
and effect regardless of the termination of this Agreement.
13.10 Security Documents; Guarantee Supplement. Subject to
subsection 18.18, (a) within 60 days after the Closing Date, at its own expense,
(i) cause 65% of the capital stock of Lear Germany to be pledged to the General
Administrative Agent, in its capacity as Agent pursuant to the Intercreditor
Agreement, pursuant to a pledge agreement in form and substance satisfactory to
the General Administrative Agent, and (ii) cause the General Administrative
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95
Agent, in its capacity as Agent pursuant to the Intercreditor Agreement, to
receive, with a counterpart for each Lender, a legal opinion of German counsel
acceptable to the General Administrative Agent covering such matters in respect
of such pledge agreement as the General Administrative Agent shall reasonably
request.
(b) As soon as possible and in no event later than 45 days
after the delivery of any financial statements under subsection 13.1(a) or (b),
for any fiscal period ending on or after December 31, 1999, cause (i) all of the
capital stock owned directly or indirectly by the U.S. Borrower of each of the
U.S. Borrower's direct or indirect Domestic Subsidiaries which on the date of
such financial statements constituted at least 10% of Consolidated Assets or for
the twelve month period ended on the date of such financial statements
represented at least 10% of Consolidated Revenues to be pledged to the General
Administrative Agent, in its capacity as Agent pursuant to the Intercreditor
Agreement, pursuant to a pledge agreement in form and substance satisfactory to
the General Administrative Agent, (ii) 65% of the capital stock (or such lesser
amount as may be owned by the U.S. Borrower) of each of the U.S. Borrower's
direct Foreign Subsidiaries which on the date of such financial statements
constituted at least 10% of Consolidated Assets or for the twelve month period
ended on the date of such financial statements represented at least 10% of
Consolidated Revenues to be pledged to the General Administrative Agent, in its
capacity as Agent pursuant to the Intercreditor Agreement, for the ratable
benefit of the Lenders hereunder and the lenders parties to the Other Credit
Agreements, pursuant to a pledge agreement in form and substance satisfactory to
the General Administrative Agent, and (iii) the General Administrative Agent, in
its capacity as Agent pursuant to the Intercreditor Agreement, to receive, with
a counterpart for each Lender, legal opinions of counsel to the U.S. Borrower
acceptable to the General Administrative Agent covering such matters in respect
of such pledges as the General Administrative Agent shall reasonably request.
(c) As soon as possible and in no event later than 45 days
after the delivery of any financial statements under subsection 13.1(a) or (b)
for any fiscal period ending on or after December 31, 1999, cause (i) each of
the U.S. Borrower's direct and indirect Domestic Subsidiaries which on the date
of such financial statements constituted 10% of Consolidated Assets or for the
twelve month period ended on the date of such financial statements represented
at least 10% of Consolidated Revenues to execute and deliver a Guarantee
Supplement to the General Administrative Agent, in its capacity as Agent
pursuant to the Intercreditor Agreement, and (ii) the General Administrative
Agent, in its capacity as Agent pursuant to the Intercreditor Agreement, to
receive, with a counterpart for each Lender, opinions of counsel to the U.S.
Borrower, in form and substance satisfactory to the General Administrative
Agent, covering such matters in respect of the Subsidiary Guarantee as the
General Administrative Agent shall reasonably request; provided, that,
notwithstanding the foregoing, a Domestic Subsidiary shall not be required to
execute and deliver a Guarantee Supplement or otherwise become a party to the
Subsidiary Guarantee if (x) it is a holding company whose only material asset
consists of capital stock of one or more Foreign Subsidiaries and (y) the
capital stock of such Domestic Subsidiary is pledged to the General
Administrative Agent, in its capacity as Agent pursuant to the Intercreditor
Agreement.
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(d) (i) Cause to be pledged to the General Administrative
Agent, in its capacity as Agent pursuant to the Intercreditor Agreement, on the
Closing Date 100% of the Capital Stock of each Domestic Subsidiary which would
have constituted more than 10% of Consolidated Assets on December 31, 1998 or
represented at least 10% of Consolidated Revenues for the twelve-month period
ended on December 31, 1998, and (ii) cause each Domestic Subsidiary described in
the foregoing clause (i) to be Subsidiary Guarantors on the Closing Date;
provided, that (A) Lear Corporation (Germany) Ltd. shall not be required to be a
Subsidiary Guarantor and the U.S. Borrower shall not be required to pledge its
Capital Stock and (B) Lear Corporation EEDS and Interiors shall not be required
to be a Subsidiary Guarantor and the U.S. Borrower shall not be required to
cause its Capital Stock to be pledged unless Lear Corporation EEDS and Interiors
meets the tests set forth in paragraph (c) above in respect of any fiscal period
ending on or after December 31, 1999.
(e) For purposes of calculating Consolidated Assets and
Consolidated Revenues pursuant to the foregoing paragraphs (b), (c) and (d) for
any date on or prior to March 31, 2000, or for twelve-month periods ended on or
prior to March 31, 2000, the assets and revenues of Lear Corporation Automotive
Holdings shall be included on a pro forma basis as if the UT Automotive
Acquisition had occurred on the first day of the relevant period.
SECTION 14. NEGATIVE COVENANTS
The U.S. Borrower hereby agrees that, so long as the
Commitments (or any of them) remain in effect, any Loan, Acceptance
Reimbursement Obligation, Acceptance Note, Reimbursement Obligation or
Subsidiary Reimbursement Obligation remains outstanding and unpaid or any other
amount is owing to any Lender or either Administrative Agent hereunder or under
any other Loan Document, the U.S. Borrower shall not, and shall not permit any
of its Subsidiaries to, directly or indirectly:
14.1 Financial Covenants.
(a) Interest Coverage. Permit the ratio of (i) Consolidated
Operating Profit for any four consecutive fiscal quarters ending during any
period set forth below to (ii) Consolidated Interest Expense for such four
consecutive fiscal quarters, to be less than the ratio set forth opposite such
period below:
Period Ratio
------ -----
Closing - December 31, 1999 2.75x
January 1, 2000 - December 31, 2000 3.00x
January 1, 2001 - December 31, 2001 3.25x
Thereafter 3.50x
;provided, that in calculating the foregoing ratio for the periods of four
consecutive fiscal quarters ending on or about 6/30/99, 9/30/99, 12/31/99 and
3/31/00, Consolidated Interest
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Expense shall be determined giving pro forma effect to the aggregate principal
amount of Indebtedness incurred in connection with the UT Automotive Acquisition
(less the aggregate net cash proceeds received by the U.S. Borrower in respect
of the sale of any part of the business acquired in connection with the UT
Automotive Acquisition) as if such Indebtedness had been incurred on the first
day of the relevant period, and in making such calculation, the interest rate
assumed to be applicable to such Indebtedness shall be (i) with respect to
$1,400,000,000 of such Indebtedness, the weighted average interest rate
applicable during the last fiscal quarter in such period to loans outstanding
under the Interim Term Loan Agreement and/or the debt securities that refinance
the loans under the Interim Term Loan Agreement and (ii) with respect to the
remainder of such Indebtedness, the weighted average interest rate applicable
during the last fiscal quarter in such period to loans in Dollars under the New
Revolving Credit Agreement.
(b) Leverage Ratio. Permit the ratio of (i) Consolidated
Indebtedness at the end of any fiscal quarter ending during any period set forth
below to (ii) Consolidated Operating Profit for the four consecutive fiscal
quarters then ended to be greater than the ratio set forth opposite such period
below:
Period Ratio
------ -----
Closing - June 30, 2000 4.50x
July 1, 2000 through December 31, 2001 4.00x
Thereafter 3.75x
14.2 Limitation on Indebtedness. Permit any Subsidiary to
create, incur, assume or suffer to exist any Indebtedness, except:
(a) (i) Indebtedness in respect of the Extensions of Credit
and other obligations arising under this Agreement and, without
duplication, Indebtedness of any Subsidiary backed by Letters of Credit
issued under this Agreement and (ii) Indebtedness in respect of
extensions of credit under the New Revolving Credit Agreement and,
without duplication, Indebtedness of any Subsidiary backed by letters
of credit issued under the New Revolving Credit Agreement;
(b) Indebtedness under the Subsidiary Guarantee and any Bond
Guarantee;
- - (c) Indebtedness in respect of Interest Rate Agreement Obligations and
Currency Agreement Obligations entered into to protect against
fluctuations in interest rates or exchange rates and not for
speculative reasons;
(d) Indebtedness incurred by a Special Purpose Subsidiary in
connection with a Receivable Financing Transaction;
(e) intercompany Indebtedness permitted by subsection 14.9;
and
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(f) other Indebtedness, subject to the provisions of
subsection 14.8.
14.3 Limitation on Liens. Create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired, except (subject, in the case of Liens described in
paragraphs (o) through (t) below, to the provisions of subsection 14.8):
(a) Liens for taxes not yet due or which are being contested
in good faith by appropriate proceedings; provided that adequate
reserves with respect thereto are maintained on the books of the U.S.
Borrower or its Subsidiaries, as the case may be, in conformity with
GAAP (or, in the case of Foreign Subsidiaries, generally accepted
accounting principles in effect from time to time in their respective
jurisdictions of organization);
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's, suppliers or other like Liens arising in the ordinary
course of business relating to obligations not overdue for a period of
more than 60 days or which are bonded or being contested in good faith
by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation, including any Lien securing letters of credit issued in
the ordinary course of business in connection therewith and deposits
securing liabilities to insurance carriers under insurance and
self-insurance programs;
(d) Liens (other than any Lien imposed by ERISA) incurred on
deposits to secure the performance of bids, trade contracts (other than
for borrowed money), leases, statutory obligations, surety and appeal
bonds, performance bonds, utility payments and other obligations of a
like nature incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred which, in the aggregate, do not materially
interfere with the ordinary conduct of the business of the U.S.
Borrower and its Subsidiaries taken as a whole;
(f) Liens created pursuant to the Security Documents;
(g) attachment, judgment or other similar Liens arising in
connection with court or arbitration proceedings fully covered by
insurance or involving individually or in the aggregate, no more than
$40,000,000 at any one time, provided that the same are discharged, or
that execution or enforcement thereof is stayed pending appeal, within
60 days or, in the case of any stay of execution or enforcement pending
appeal, within such lesser time during which such appeal may be taken;
(h) Liens securing obligations (other than obligations
representing Indebtedness for borrowed money) under operating,
reciprocal easement or similar agreements entered into in the ordinary
course of business;
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(i) statutory Liens and rights of offset arising in the
ordinary course of business of the U.S. Borrower and its Subsidiaries;
(j) Liens in connection with leases or subleases granted to
others and the interest or title of a lessor or sublessor (other than
the U.S. Borrower or any Subsidiary of the U.S. Borrower) under any
lease;
(k) Liens arising in connection with Industrial Development
Bonds or other industrial development, pollution control or other
tax-favored or government-sponsored financing transactions, provided
that such liens do not at any time encumber any property, other than
the property financed by such transaction and other property, assets or
revenues related to the property so financed on which Liens are
customarily granted in connection with such transactions (in each case,
together with improvements and attachments thereto);
(l) Liens on receivables subject to a Receivable Financing
Transaction;
(m) Liens securing Indebtedness permitted by subsection
14.2(c) and any other Indebtedness in respect of Interest Rate
Agreement Obligations or Currency Agreement Obligations entered into to
protect against fluctuations in interest rates or exchange rates and
not for speculative reasons, provided that such Liens run in favor of a
Lender hereunder or a lender under one of the Other Credit Agreements;
(n) extensions, renewals and replacements of any Lien
described in subsections 14(a) through (m) above;
(o) Liens (including, without limitation, Liens incurred in
connection with Financing Leases, operating leases and sale-leaseback
transactions) securing Indebtedness of the U.S. Borrower and its
Subsidiaries permitted by subsection 14.2 incurred to finance the
acquisition of property; provided that (i) such Liens shall be created
substantially simultaneously with the purchase of such property, (ii)
such Liens do not at any time encumber any property other than the
property financed by such Indebtedness, (iii) the amount of
Indebtedness secured thereby is not increased and (iv) the principal
amount of Indebtedness secured by any such Lien shall at no time exceed
100% of the purchase price of such property;
(p) Liens securing the Indebtedness of Foreign Subsidiaries
permitted by subsection 14.2, provided that such Liens permitted by
this paragraph do not at any time encumber any property located in the
United States;
(q) Liens securing reimbursement obligations with respect to
documentary letters of credit permitted hereunder which encumber
documents and other property relating to such letters of credit;
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(r) Liens securing Acquired Indebtedness permitted by
subsection 14.2, provided, that (i) such Liens existed at the time such
corporation became a Subsidiary or such assets were acquired and were
not created in anticipation thereof, (ii) any such Lien does not by its
terms cover any property or assets after the time such corporation
became or becomes a Subsidiary or such assets were acquired which were
not covered immediately prior thereto (and improvements and attachments
thereto) and (iii) any such Lien does not by its terms secure any
Indebtedness other than Indebtedness existing immediately prior to the
time such corporation became or becomes a Subsidiary or such assets
were acquired;
(s) except as otherwise provided for in subsections 14.3(a)
through (n), Liens securing Indebtedness of Domestic Subsidiaries
permitted under subsection 14.2;
(t) other Liens; and
(u) extensions, renewals and replacements of any Lien
described in subsections 14.3(o) through (t) above.
14.4 Limitation on Guarantee Obligations. Create, incur,
assume or suffer to exist any Guarantee Obligation except:
(a) Guarantee Obligations of the U.S. Borrower under this
Agreement and the New Revolving Credit Agreement and of the Domestic
Subsidiaries under the Subsidiary Guarantee, and any Bond Guarantee;
(b) Guarantee Obligations of any Subsidiary Guarantor in
respect of obligations of the U.S. Borrower or any other Subsidiary
Guarantor;
(c) Guarantee Obligations of any Subsidiary that is not a
Subsidiary Guarantor in respect of obligations of any other Subsidiary
that is not a Subsidiary Guarantor;
(d) Guarantee Obligations in respect of operating leases;
(e) Guarantee Obligations of the U.S. Borrower in respect of
obligations of any Subsidiary that are permitted to be incurred under
this Agreement; and
(f) other Guarantee Obligations, subject to the provisions of
subsection 14.8.
14.5 Limitations on Fundamental Changes. Unless expressly
permitted under this Agreement, enter into any merger, consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), or convey, sell, lease, assign, transfer or
otherwise dispose of, all or substantially all of its property, business or
assets, or make any material change in its present method of conducting
business, except:
(a) any Subsidiary of the U.S. Borrower may be merged or
consolidated with or into the U.S. Borrower (provided that the U.S.
Borrower shall be the continuing or
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surviving corporation) or with or into any one or more other
Subsidiaries of the U.S. Borrower;
(b) any Subsidiary may sell, lease, transfer or otherwise
dispose of any or all of its assets (upon voluntary liquidation or
otherwise) to the U.S. Borrower or any other Subsidiary of the U.S.
Borrower;
(c) the U.S. Borrower may merge or consolidate with any
Person, provided that (A) the U.S. Borrower is the surviving
corporation of such merger or consolidation, (B) after giving effect
thereto, no Default or Event of Default is in existence and (C) if such
merger or consolidation had occurred on the first day of the period of
four full fiscal quarters most recently ended prior to the date of such
event, the U.S. Borrower would have been in compliance with subsection
14.1 during such period of four full fiscal quarters; and
(d) any Subsidiary may be merged, consolidated or amalgamated
with or into any Person, or may sell, lease, transfer or otherwise
dispose of its assets (upon voluntary liquidation, dissolution or
otherwise) to any Person or may liquidate, wind up or dissolve itself
if (A) after giving effect thereto, no Default or Event of Default is
in existence and (B) if such merger, consolidation, amalgamation, sale,
lease, transfer or other disposition had occurred on the first day of
the period of four fiscal quarters most recently ended prior to the
date of such event, the U.S. Borrower would have been in compliance
with subsection 14.1 during such period of four full fiscal quarters.
14.6 Limitation on Sale of Assets. Convey, sell, lease,
assign, transfer or otherwise dispose of, any of its property, business or
assets (including, without limitation, receivables and leasehold interests)
whether now owned or hereafter acquired, or, in the case of any Subsidiary,
issue or sell any shares of such Subsidiary's capital stock to any Person other
than the U.S. Borrower or any Wholly Owned Subsidiary (or to qualify directors
if required by applicable law or similar de minimis issuances of capital stock
to comply with Requirements of Law), except:
(a) the sale or other disposition of obsolete or worn out
property or other property not necessary for operations disposed of in
the ordinary course of business; provided that (i) the Net Proceeds of
each such transaction are applied to obtain a replacement item or items
of property within 120 days of the disposition thereof or (ii) the fair
market value of any property not replaced pursuant to clause (i) above
shall not exceed $20,000,000 in the aggregate in any one fiscal year of
the U.S. Borrower;
(b) the sale of inventory or Cash Equivalents in the ordinary
course of business;
(c) the sale of any property in connection with any sale and
leaseback transaction;
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(d) the sale by any Foreign Subsidiary of its accounts
receivable; provided that the terms of each such sale are satisfactory
in form and substance to the General Administrative Agent;
(e) the sale by any Domestic Subsidiary of its accounts
receivable; provided that the terms of each such sale are satisfactory
in form and substance to the General Administrative Agent;
(f) any sale or other disposition permitted under subsections
14.5 or 14.9;
(g) any operating lease entered into in the ordinary course of
business;
(h) any assignments or licenses of intellectual property in
the ordinary course of business;
(i) any sale, contribution or transfer to or by a Special
Purpose Subsidiary in connection with a Receivable Financing
Transaction; and
(j) any sale or other disposition of assets if (A) after
giving effect thereto and the application of the proceeds therefrom, no
Default or Event of Default is in existence and (B) if such sale or
other disposition had occurred on the first day of the period of four
full final quarters most recently ended prior to the date of such sale
or other disposition, the U.S. Borrower would have been in compliance
with subsection 14.1 during such period of four full fiscal quarters.
14.7 Limitation on Dividends. Declare or pay any dividend on,
or make any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, defeasance, retirement or other
acquisition of, any shares of any class of capital stock of the U.S. Borrower or
any warrants or options to purchase any such stock, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either directly
or indirectly, whether in cash or property or in obligations of the U.S.
Borrower or any Subsidiary, except for (a) (i) payment by the U.S. Borrower of
amounts then owing to management personnel of the U.S. Borrower pursuant to the
terms of their respective employment contracts or under any employee benefit
plan, (ii) mandatory purchases by the U.S. Borrower of its common stock from
management personnel pursuant to the terms of their respective employment
agreements or any employee benefit plan, (iii) additional repurchases by the
U.S. Borrower of its common stock from management personnel, and other officers
or employees of the U.S. Borrower or any Subsidiary in an amount not to exceed
$35,000,000 in the aggregate and (iv) the purchase, redemption or retirement of
any shares of any capital stock of the U.S. Borrower or options to purchase
capital stock of the U.S. Borrower in connection with the exercise of
outstanding stock options, (b) if no Default or Event of Default has occurred
and is continuing (or would occur and be continuing after giving effect thereto)
when any such dividend is declared by the Board of Directors of the U.S.
Borrower or such payment is made on the account of the purchase of capital stock
of the U.S. Borrower, cash dividends on the U.S. Borrower's capital stock or
such payments made on the account of the purchase of capital stock of the U.S.
Borrower not to
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exceed, in the aggregate, in any fiscal quarter (the "Payment Quarter") an
amount equal to the greater of (i) $25,000,000 and (ii) (A) 50% (100% if the
U.S. Borrower shall have attained Investment Grade Status) of Consolidated Net
Income of the U.S. Borrower and its consolidated Subsidiaries for the period of
four consecutive fiscal quarters ended immediately prior to the Payment Quarter
(such period of four quarters being the "Calculation Period" in respect of such
Payment Quarter), less (B) the cash amount of all (I) dividends paid and
redemptions made by the U.S. Borrower during such Calculation Period in respect
of capital stock and (II) payments made on the account of the purchase of
capital stock of the U.S. Borrower during such Calculation Period, but only to
the extent permitted by the terms of the outstanding Subordinated Debt, and (c)
dividends or distributions in the form of additional shares of such capital
stock or in options, warrants or other rights to purchase capital stock.
14.8 Limitation on Subsidiary and Secured Indebtedness.
Create, incur, assume or suffer to exist Subsidiary and Secured Indebtedness in
an aggregate principal amount at any time outstanding exceeding 10% of
Consolidated Assets at such time; or create, incur, assume or suffer to exist
any Indebtedness that constitutes Subsidiary and Secured Indebtedness and that
is secured by any Lien on any property, assets or receivables of the U.S.
Borrower or any of its Subsidiaries (other than Liens permitted by paragraphs
(a) through (n) of subsection 14.3) in an aggregate principal amount at any time
exceeding 5% of Consolidated Assets at such time.
14.9 Limitation on Investments, Loans and Advances. Make or
suffer to exist any advance, loan, extension of credit or capital contribution
to, or purchase any stock, bonds, notes, debentures or other securities of or
any assets constituting a business unit of, or make any other investment in, any
Person, or acquire or invest in any interest in any Person, except:
(a) extensions of trade credit in the ordinary course of
business;
(b) investments in Cash Equivalents;
(c) investments by Foreign Subsidiaries in high quality
investments of a type similar to Cash Equivalents made outside of the
United States of America;
(d) capital contributions and equity investments made prior to
the date hereof in any Subsidiary or Special Entity and any
recapitalization thereof not increasing the amounts thereof;
(e) (i) loans, advances, and extensions of credit by any
Subsidiary to the U.S. Borrower and (ii) loans, advances, extensions of
credit, capital contributions and other investments by the U.S.
Borrower or any Subsidiary to or in any Subsidiary;
(f) the purchase by the U.S. Borrower or any Subsidiary of
participating interests in loans to Foreign Subsidiaries; provided that
the amount of each such participating interest does not exceed the
amount which the U.S. Borrower or such Subsidiary would otherwise be
permitted to lend or contribute to such Foreign Subsidiaries pursuant
to this subsection 14.9;
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(g) the U.S. Borrower and its Subsidiaries may acquire or
invest in any Special Entities or the assets constituting a business
unit of any Person that would be a Special Entity, provided that the
aggregate purchase price of such acquisitions after the date hereof
does not exceed $400,000,000 (less, in the case of Special Entities
that become Subsidiaries of the U.S. Borrower, the aggregate amount of
Indebtedness of such Special Entities at the time such Special Entities
are acquired) per fiscal year; and provided, further, that up to
$100,000,000 of such permitted amount which is not expended in any
fiscal year may be carried over for such acquisitions in any subsequent
fiscal year; and provided, still further, that no more than
$150,000,000 per fiscal year of any such permitted amount may be
expended to acquire stock or other evidence of beneficial ownership of
Special Entities that do not become Subsidiaries of the U.S. Borrower;
(h) advances to employees in the ordinary course of business
for travel, relocation and related expenses;
(i) investments received in connection with the bankruptcy or
reorganization of suppliers, customers and other Persons having
obligations in favor of the U.S. Borrower or any Subsidiary in
settlement of delinquent obligations of, and other disputes with,
customers, suppliers and such other Persons arising in the ordinary
course of business;
(j) advances, loans, extensions of credit or other investments
held by a Person at the time it becomes a Subsidiary of the U.S.
Borrower in connection with an acquisition permitted hereunder;
provided, that such advances, loans, extensions of credit or other
investments have not been made in anticipation of such acquisition;
(k) other investments, advances, loans, extensions of credit
and capital contributions by the U.S. Borrower and its Subsidiaries not
exceeding $125,000,000 in the aggregate at any one time outstanding;
(l) the UT Automotive Acquisition; and
(m) investments in or acquisitions of companies or business
units, in each case, engaged primarily in the manufacturing of
automotive parts business and businesses related thereto so long as (i)
no Default or Event of Default shall have occurred and be continuing
before and after giving effect to such transaction, (ii) the U.S.
Borrower would be in pro forma compliance with subsection 14.1 after
giving effect to such transaction, (iii) after giving pro forma effect
to such transaction as if it had occurred on the first day of the
period of four consecutive fiscal quarters most recently ended prior to
the date of such transaction, the ratio of (a) Consolidated
Indebtedness on the date of, and after giving effect to, such
transaction to (b) Consolidated Operating Profit for such period of
four consecutive fiscal quarters would be less than 4.00 and (iv) such
transaction is not the result of a hostile bid made by the U.S.
Borrower or its Subsidiaries.
14.10 Limitation on Optional Payments and Modification of Debt
Instruments; Certain Derivative Transactions. (a) Prepay, purchase, redeem,
retire, defease or otherwise
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acquire, or make any payment on account of any principal of, interest on, or
premium payable in connection with the prepayment, redemption or retirement of
any outstanding Subordinated Debt, except that the U.S. Borrower may prepay,
purchase or redeem Subordinated Debt with the proceeds of the issuance of other
subordinated Indebtedness of the U.S. Borrower or capital stock of the U.S.
Borrower; provided that, in the case of the issuance of subordinated
Indebtedness, either (i) the principal terms of such other subordinated
Indebtedness are no more restrictive, taken as a whole, to the U.S. Borrower and
its Subsidiaries than the principal terms of the Subordinated Debt being repaid,
purchased or redeemed or (ii) the terms and conditions of the other subordinated
Indebtedness are reasonably satisfactory to the General Administrative Agent;
provided, further, that, notwithstanding any provision contained in this
subsection 14.10, if no Default or Event of Default has occurred and is
continuing or would occur and be continuing as a result of the following, the
Subordinated Debt may be prepaid at any time without restriction; (b) enter into
any derivative transaction or similar transaction obligating the U.S. Borrower
or any of its Subsidiaries to make any payment to any other Person as a result
of any change in value or market price of Subordinated Debt or Capital Stock of
the U.S. Borrower; or (c) without the consent of the General Administrative
Agent, amend, modify or change, or consent or agree to any amendment,
modification or change to any of the terms of any Subordinated Debt (except that
without the consent of the General Administrative Agent or any Lender, the terms
of the Subordinated Debt may be amended, modified or changed if such amendment,
modification or change would extend the maturity or reduce the amount of any
payment of principal thereof, would reduce the rate or extend the date for
payment of interest thereon, would eliminate covenants (other than covenants
with respect to subordination to Indebtedness under this Agreement and, if
applicable, the Subsidiary Guarantee) or defaults in such Subordinated Debt or
would make such covenants or defaults less restrictive or make any other change
that would not require the consent of the holders of such Subordinated Debt).
14.11 Transactions with Affiliates. Enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate unless
such transactions are otherwise permitted under this Agreement, or such
transactions are in the ordinary course of the U.S. Borrower's or such
Subsidiary's business and are upon fair and reasonable terms no less favorable
to the U.S. Borrower or such Subsidiary, as the case may be, than it would
obtain in a comparable arm's length transaction with a Person not an Affiliate;
provided, however, that the U.S. Borrower may engage, The Cypress Group, LLC or
any Affiliate of The Cypress Group, LLC as financial advisor, underwriter,
broker, dealer-manager or finder in connection with any transaction at the then
customary market rates for similar services.
14.12 Corporate Documents. Amend its Certificate of
Incorporation or By-Laws, each as in effect on the Closing Date, if such
amendment would reasonably be expected to impair the ability of the Loan Parties
to perform their respective obligations under the Loan Documents to which they
are a party.
14.13 Fiscal Year. Permit the fiscal year of the U.S.
Borrower to end on a day other than December 31.
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14.14 Limitation on Restrictions Affecting Subsidiaries. Enter
into any agreement with any Person other than the Lenders pursuant hereto which
prohibits or limits the ability of any Subsidiary to (a) pay dividends or make
other distributions or pay any Indebtedness owed to the U.S. Borrower or any
Subsidiary, (b) make loans or advances to the U.S. Borrower or any Subsidiary or
(c) transfer any of its properties or assets to the U.S. Borrower or any
Subsidiary, except (i) prohibitions or restrictions under applicable law, (ii)
agreements and instruments governing or evidencing secured Indebtedness
otherwise permitted to be incurred under this Agreement that limits the right of
the borrower to (A) dispose of the assets securing such Indebtedness or (B) in
the case of any Foreign Subsidiary, to make dividends or distributions, (iii)
prohibitions or restrictions under agreements relating to Acquired Indebtedness
and any refinancings thereof, (iv) prohibitions or restrictions with respect to
the distribution or dispositions of assets or property in joint venture and
similar agreements entered into in the ordinary course of business, (v)
customary non-assignment provisions in leases and other agreements entered into
in the ordinary course of business, (vi) customary net worth provisions
contained in leases and other agreements entered into by a Subsidiary in the
ordinary course of business, (vii) customary restrictions with respect to a
Subsidiary pursuant to an agreement that has been entered into for the sale or
disposition of the assets or stock of such Subsidiary, (viii) (x) any such
restrictions existing by reasons of Contractual Obligations listed on Schedule
VIII or (y) Contractual Obligations in effect on the Closing Date affecting
Subsidiaries acquired in the UT Automotive Acquisition, (ix) any restrictions on
a Special Purpose Subsidiary, (x) restrictions on cash or other deposits or net
worth provisions under customer and supply agreements entered into in the
ordinary course of business, and (xi) any restrictions contained in any
instrument or agreement that refinances any Indebtedness or other obligations
which contains similar restrictions.
14.15 Special Purpose Subsidiary. Permit (a) any Special Purpose
Subsidiary to engage in any business other than Receivable Financing
Transactions and activities directly related thereto or (b) at any time the U.S.
Borrower or any of its Subsidiaries (other than a Special Purpose Subsidiary) or
any of their respective assets to incur any liability, direct or indirect,
contingent or otherwise, in respect of any obligation of a Special Purpose
Subsidiary whether arising under or in connection with any Receivable Financing
Transaction or otherwise.
14.16 Interest Rate Agreements. Enter into, or become a party to,
any Interest Rate Agreement that is speculative in nature.
SECTION 15. GUARANTEE
15.1 Guarantee. (a) The U.S. Borrower hereby unconditionally and
irrevocably guarantees to the General Administrative Agent, for the ratable
benefit of the Administrative Agents and the Lenders and their respective
successors, indorsees, transferees and assigns, the prompt and complete payment
and performance by each of the other Borrowers when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations.
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(b) The U.S. Borrower further agrees to pay any and all expenses
(including, without limitation, all reasonable fees and disbursements of
counsel, provided that the U.S. Borrower shall only be required to pay the fees
and disbursements of (i) one counsel for the General Administrative Agent, (ii)
one counsel for the Canadian Administrative Agent, (iii) one counsel for the
Canadian Lenders, (iv) one counsel for the U.S. Lenders and (v) one counsel for
the General Administrative Agent and the Multicurrency Lenders in the
jurisdiction of each Foreign Subsidiary Borrower) which may be paid or incurred
by the Administrative Agents, or any Lender in enforcing, or obtaining advice of
counsel in respect of, any rights with respect to, or collecting, any or all of
the Obligations and/or enforcing any rights with respect to, or collecting
against, the U.S. Borrower under this Section. This Section shall remain in full
force and effect until the Obligations are paid in full and the Commitments are
terminated, notwithstanding that from time to time prior thereto any Borrower
may be free from any Obligations.
(c) No payment or payments made by any Borrower or any other
Person or received or collected by the Administrative Agents or any Lender from
any Borrower or any other Person by virtue of any action or proceeding or any
set-off or appropriation or application, at any time or from time to time, in
reduction of or in payment of the Obligations shall be deemed to modify, reduce,
release or otherwise affect the liability of the U.S. Borrower hereunder which
shall, notwithstanding any such payment or payments, remain liable hereunder for
the Obligations until the Obligations are paid in full and the Commitments are
terminated.
(d) The U.S. Borrower agrees that whenever, at any time, or from
time to time, it shall make any payment to any Administrative Agent or any
Lender on account of its liability hereunder, it will notify such Administrative
Agent and such Lender in writing that such payment is made under this Section
for such purpose.
15.2 No Subrogation. Notwithstanding any payment or payments made
by the U.S. Borrower hereunder, or any set-off or application of funds of the
U.S. Borrower by any Administrative Agent or any Lender, the U.S. Borrower shall
not be entitled to be subrogated to any of the rights of any Administrative
Agent or any Lender against the other Borrowers or against any collateral
security or guarantee or right of offset held by any Administrative Agent or any
Lender for the payment of the Obligations, nor shall the U.S. Borrower seek or
be entitled to seek any contribution or reimbursement from the other Borrowers
in respect of payments made by the U.S. Borrower hereunder, until all amounts
owing to the Administrative Agent and the Lenders by the other Borrowers on
account of the Obligations are paid in full and the Commitments are terminated.
If any amount shall be paid to the U.S. Borrower on account of such subrogation
rights at any time when all of the Obligations shall not have been paid in full,
such amount shall be held by the U.S. Borrower in trust for the Administrative
Agents and the Lenders, segregated from other funds of the U.S. Borrower, and
shall, forthwith upon receipt by the U.S. Borrower, be turned over to the
General Administrative Agent in the exact form received by the U.S. Borrower
(duly indorsed by the U.S. Borrower to the General Administrative Agent, if
required), to be applied against the Obligations, whether matured or unmatured,
in such order as the General Administrative Agent may determine.
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15.3 Amendments, etc. with respect to the Obligations; Waiver of
Rights. The U.S. Borrower shall remain obligated hereunder notwithstanding that,
without any reservation of rights against the U.S. Borrower, and without notice
to or further assent by the U.S. Borrower, any demand for payment of any of the
Obligations made by any Administrative Agent or any Lender may be rescinded by
such Administrative Agent or such Lender, and any of the Obligations continued,
and the Obligations, or the liability of any other party upon or for any part
thereof, or any collateral security or guarantee therefor or right of offset
with respect thereto, may, from time to time, in whole or in part, be renewed,
extended, amended, modified, accelerated, compromised, waived, surrendered or
released by any Administrative Agent or any Lender, and any Loan Documents and
any other documents executed and delivered in connection therewith may be
amended, modified, supplemented or terminated, in whole or in part, in
accordance with the provisions thereof as the General Administrative Agent or
the Lenders (or the Majority Lenders, as the case may be) may deem advisable
from time to time, and any collateral security, guarantee or right of offset at
any time held by any Administrative Agent or any Lender for the payment of the
Obligations may be sold, exchanged, waived, surrendered or released. None of any
Administrative Agent or any Lender shall have any obligation to protect, secure,
perfect or insure any Lien at any time held by it as security for the
Obligations or for this Agreement or any property subject thereto. When making
any demand hereunder against the U.S. Borrower, any Administrative Agent or any
Lender may, but shall be under no obligation to, make a similar demand on any
other Borrowers or any other guarantor, and any failure by any Administrative
Agent or any Lender to make any such demand or to collect any payments from any
such Borrower or any such other guarantor or any release of such Borrower or
such other guarantor shall not relieve the U.S. Borrower of its obligations or
liabilities hereunder, and shall not impair or affect the rights and remedies,
express or implied, or as a matter of law, of any Administrative Agent or any
Lender against the U.S. Borrower. For the purposes hereof "demand" shall include
the commencement and continuance of any legal proceedings.
15.4 Guarantee Absolute and Unconditional. The U.S. Borrower
waives any and all notice of the creation, renewal, extension or accrual of any
of the Obligations and notice of or proof of reliance by any Administrative
Agent or any Lender upon this Agreement or acceptance of this Agreement; the
Obligations, and any of them, shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived, in reliance
upon this Agreement; and all dealings between the Borrowers and the U.S.
Borrower and the other Borrowers, on the one hand, and the Administrative Agents
and the Lenders, on the other, shall likewise be conclusively presumed to have
been had or consummated in reliance upon this Agreement. The U.S. Borrower
waives diligence, presentment, protest, demand for payment and notice of default
or nonpayment to or upon the other Borrowers and the U.S. Borrower with respect
to the Obligations. This Section 15 shall be construed as a continuing, absolute
and unconditional guarantee of payment without regard to (a) the validity or
enforceability of this Agreement, any other Loan Document, any of the
Obligations or any other collateral security therefor or guarantee or right of
offset with respect thereto at any time or from time to time held by any
Administrative Agent or any Lender, (b) any defense, set-off or counterclaim
(other than a defense of payment or performance) which may at any time be
available to or be asserted by the Borrowers (other than the U.S. Borrower)
against any Administrative Agent or any Lender, or (c) any other circumstance
whatsoever (with or without notice to or knowledge of the Borrowers
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or the U.S. Borrower) which constitutes, or might be construed to constitute, an
equitable or legal discharge of the Borrowers for the Obligations, or of the
U.S. Borrower under this Section 15, in bankruptcy or in any other instance.
When pursuing its rights and remedies hereunder against the Borrower, any
Administrative Agent and any Lender may, but shall be under no obligation to,
pursue such rights and remedies as it may have against the other Borrowers or
any other Person or against any collateral security or guarantee for the
Obligations or any right of offset with respect thereto, and any failure by any
Administrative Agent or any Lender to pursue such other rights or remedies or to
collect any payments from such other Borrowers or any such other Person or to
realize upon any such collateral security or guarantee or to exercise any such
right of offset, or any release of the other Borrowers or any such other Person
or of any such collateral security, guarantee or right of offset, shall not
relieve the U.S. Borrower of any liability hereunder, and shall not impair or
affect the rights and remedies, whether express, implied or available as a
matter of law, of any Administrative Agent or any Lender against the U.S.
Borrower. This Section 15 shall remain in full force and effect and be binding
in accordance with and to the extent of its terms upon the U.S. Borrower and its
successors and assigns, and shall inure to the benefit of the Administrative
Agents and the Lenders, and their respective successors, indorsees, transferees
and assigns, until all the Obligations and the obligations of the U.S. Borrower
under this Agreement shall have been satisfied by payment in full and the
Commitments shall be terminated, notwithstanding that from time to time during
the term of this Agreement the Borrowers may be free from any Obligations.
15.5 Reinstatement. This Section 15 shall continue to be
effective, or be reinstated, as the case may be, if at any time payment, or any
part thereof, of any of the Obligations is rescinded or must otherwise be
restored or returned by any Administrative Agent or any Lender upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of any
Borrower or upon or as a result of the appointment of a receiver, intervenor or
conservator of, or trustee or similar officer for, any Borrower or any
substantial part of its property, or otherwise, all as though such payments had
not been made.
15.6 Payments. The U.S. Borrower hereby agrees that all payments
required to be made by it hereunder will be made to the General Administrative
Agent, for the benefit of the Administrative Agents and the Lenders, as the case
may be, without set-off or counterclaim in accordance with the terms of the
Obligations, including, without limitation, in the currency in which payment is
due.
SECTION 16. EVENTS OF DEFAULT
Upon the occurrence of any of the following events:
(a) Any Borrower shall fail to pay (i) any principal of any Loans
or any Acceptance Reimbursement Obligations when due (whether at the
stated maturity, by acceleration or otherwise) in accordance with the
terms thereof or hereof or (ii) any interest on any Loans, any
Reimbursement Obligations or Subsidiary Reimbursement
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Obligations, or any fee or other amount payable hereunder, within five
days after any such interest, fee or other amount becomes due in
accordance with the terms hereof; or
(b) Any representation or warranty made or deemed made by the
U.S. Borrower or any other Loan Party herein or in any other Loan
Document or which is contained in any certificate, document or
financial or other statement furnished at any time under or in
connection with this Agreement or any other Loan Document shall prove
to have been incorrect in any material respect on or as of the date
made or deemed made; or
(c) The U.S. Borrower or any other Loan Party shall default in
the observance or performance of any negative covenant contained in
Section 14; or
(d) The U.S. Borrower or any other Loan Party shall default in
the observance or performance of any other agreement contained in this
Agreement or any other Loan Document other than as provided in (a)
through (c) above, and such default shall continue unremedied for a
period of 30 days; or
(e) Any Loan Document shall cease, for any reason, to be in
full force and effect, or the U.S. Borrower or any other Loan Party
shall so assert; or any security interest created by any of the
Security Documents shall cease to be enforceable and of the same effect
and priority purported to be created thereby, except, in each case, as
provided in subsection 18.18; or
(f) The Subsidiary Guarantee shall cease, for any reason, to
be in full force and effect, or any guarantor thereunder shall so
assert, except as provided in subsection 18.18; or
(g) The subordination provisions contained in any instrument
pursuant to which the Subordinated Debt was created or in any
instrument evidencing such Subordinated Debt shall cease, for any
reason, to be in full force and effect or enforceable in accordance
with their terms; or
(h) The U.S. Borrower or any of its Subsidiaries shall (i)
default in any payment of principal of or interest on any Indebtedness
(other than Indebtedness under this Agreement), in the payment of any
Guarantee Obligation or in the payment of any Interest Rate Agreement
Obligation, in any case where the principal amount thereof then
outstanding exceeds $40,000,000 beyond the period of grace (not to
exceed 60 days), if any, provided in the instrument or agreement under
which such Indebtedness, Guarantee Obligation or Interest Rate
Agreement Obligation was created; or (ii) default in the observance or
performance of any other agreement or condition relating to any such
Indebtedness, Guarantee Obligation or Interest Rate Agreement
Obligation or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such
Indebtedness or, beneficiary or beneficiaries of such Guarantee
Obligation (or a trustee or agent on behalf of such holder
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or holders or beneficiary or beneficiaries) to cause, with the giving
of notice if required, such Indebtedness to become due prior to its
stated maturity or such Guarantee Obligation to become payable; or
(i)(i) The U.S. Borrower or any Material Subsidiary shall
commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to
have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian or other similar
official for it or for all or any substantial part of its assets, or
the U.S. Borrower or any Material Subsidiary shall make a general
assignment for the benefit of its creditors; or (ii) there shall be
commenced against the U.S. Borrower or any Material Subsidiary any
case, proceeding or other action of a nature referred to in clause (i)
above which (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be commenced
against the U.S. Borrower or any Material Subsidiary any case,
proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial
part of its assets which results in the entry of an order for any such
relief which shall not have been vacated, discharged, or stayed or
bonded pending appeal within 60 days from the entry thereof; or (iv)
the U.S. Borrower or any Material Subsidiary shall take any action in
furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or
(iii) above; or (v) the U.S. Borrower or any Material Subsidiary shall
generally not, or shall be unable to, or shall admit in writing its
inability to, pay its debts as they become due; or
(j)(i) Any Person shall engage in any non-exempt "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the
Code) involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist
with respect to any Single Employer Plan, (iii) a Reportable Event
shall occur with respect to, or proceedings shall commence to have a
trustee appointed, or a trustee shall be appointed, to administer or to
terminate, any Single Employer Plan, which Reportable Event or
commencement of proceedings or appointment of a trustee is, in the
reasonable opinion of the Majority Lenders, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any
Single Employer Plan shall terminate for purposes of Title IV of ERISA,
(v) the U.S. Borrower or any Commonly Controlled Entity shall, or in
the reasonable opinion of the Majority Lenders is likely to, incur any
liability in connection with a withdrawal from, or the Insolvency or
Reorganization of, a Multiemployer Plan or (vi) any other event or
condition shall occur or exist, with respect to a Plan; and in each
case in clauses (i) through (vi) above, such event or condition,
together with all other such events or conditions, if any, would
reasonably be expected to subject the U.S. Borrower or any of its
Subsidiaries to any tax, penalty or other liabilities in the aggregate
material in relation to the business, operations,
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property or financial or other condition of the U.S. Borrower and its
Subsidiaries taken as a whole; or
(k) One or more judgments or decrees shall be entered against
the U.S. Borrower or any of its Subsidiaries involving in the aggregate
a liability (not paid or fully covered by insurance) of $40,000,000 or
more and all such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 60 days from the
entry thereof; or
(l)(i) Any Person or "group" (within the meaning of Section
13(d) or 15(d) of the Exchange Act) (A) shall have acquired beneficial
ownership of 35% or more of any outstanding class of capital stock of
the U.S. Borrower having ordinary voting power in the election of
directors or (B) shall obtain the legal right (whether or not
exercised) to elect a majority of the U.S. Borrower's directors or (ii)
the Board of Directors of the U.S. Borrower shall not consist of a
majority of Continuing Directors;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (i) above with respect of the U.S. Borrower
or the Canadian Borrower, automatically the Commitments shall immediately
terminate and the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement (including, without limitation, all
Reimbursement Obligations, Subsidiary Reimbursement Obligations and Acceptance
Reimbursement Obligations, regardless of whether or not such Reimbursement
Obligations, Subsidiary Reimbursement Obligations and Acceptance Reimbursement
Obligations are then due and payable) shall immediately become due and payable,
and (B) if such event is any other Event of Default, any of the following
actions may be taken: (i) with the consent of the Majority Lenders, the General
Administrative Agent may, or upon the request of the Majority Lenders, the
General Administrative Agent shall, by notice to the U.S. Borrower declare the
Commitments to be terminated forthwith, whereupon the Commitments shall
immediately terminate; (ii) with the consent of the Majority Lenders, the
General Administrative Agent may, or upon the direction of the Majority Lenders,
the General Administrative Agent shall, by notice of default to the U.S.
Borrower, declare the Loans hereunder (with accrued interest thereon) and all
other amounts owing under this Agreement (including all amounts payable in
respect of Letters of Credit whether or not the beneficiaries thereof shall have
presented the drafts and other documents required thereunder) and the Notes to
be due and payable forthwith, whereupon the same shall immediately become due
and payable and (iii) the General Administrative Agent may, and upon the
direction of the Majority Lenders shall, exercise any and all remedies and other
rights provided pursuant to this Agreement and/or the other Loan Documents.
With respect to all outstanding Reimbursement Obligations and
Subsidiary Reimbursement Obligations which have not matured at the time of an
acceleration pursuant to the second preceding paragraph, the U.S. Borrower shall
at such time deposit in a cash collateral account opened by and maintained by
the General Administrative Agent an amount equal to the aggregate amount of all
such Reimbursement Obligations and Subsidiary Reimbursement Obligations. Amounts
held in such cash collateral account shall be applied by the General
Administrative Agent to the payment of Reimbursement Obligations and Subsidiary
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Reimbursement Obligations when drawings under the related Letters of Credit are
made, and any balance in such account shall be applied to repay other
obligations of the U.S. Borrower hereunder. After all Reimbursement Obligations
and Subsidiary Reimbursement Obligations shall have been satisfied and all other
obligations of the U.S. Borrower hereunder shall have been paid in full, the
balance, if any, in such cash collateral account shall be returned to the U.S.
Borrower.
With respect to all outstanding Acceptance Reimbursement
Obligations in respect of Acceptances which have not matured at the time of an
acceleration pursuant to the second preceding paragraph, the Canadian Borrower
shall at such time deposit in a cash collateral account opened by and maintained
by the Canadian Administrative Agent an amount equal to the aggregate
undiscounted face amount of all such unmatured Acceptances. Amounts held in such
cash collateral account shall be applied by the Canadian Administrative Agent to
the payment of maturing Acceptances, and any balance in such account shall be
applied to repay other obligations of the Canadian Borrower hereunder and under
any Canadian Revolving Credit Notes. After all Acceptance Reimbursement
Obligations shall have been satisfied and all other obligations of the Canadian
Borrower hereunder and under any Canadian Revolving Credit Notes shall have been
paid in full, the balance, if any, in such cash collateral account shall be
returned to the Canadian Borrower.
Except as expressly provided above in this Section,
presentment, demand, protest and all other notices of any kind are hereby
expressly waived.
SECTION 17. THE ADMINISTRATIVE AGENTS; THE DOCUMENTATION
AGENT AND CO-SYNDICATIONAGENTS
17.1 Appointment . Each Lender hereby irrevocably designates
and appoints (a) Chase as the General Administrative Agent and (b) The Bank of
Nova Scotia as the Canadian Administrative Agent of such Lender under this
Agreement and the other Loan Documents, and each Lender irrevocably authorizes
(a) Chase to act as the General Administrative Agent of such Lender, and (b) The
Bank of Nova Scotia to act as the Canadian Administrative Agent, and, in each
case, to take such action on its behalf under the provisions of this Agreement
and the other Loan Documents and to exercise such powers and perform such duties
as are expressly delegated to the General Administrative Agent and the Canadian
Administrative Agent, respectively, by the terms of this Agreement and the other
Loan Documents, together with such other powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary elsewhere in this
Agreement, the Administrative Agents shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against either
Administrative Agent.
17.2 Delegation of Duties. Each Administrative Agent may
execute any of its duties under this Agreement and the other Loan Documents by
or through agents or
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attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. Neither Administrative Agent shall be
responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with reasonable care.
17.3 Exculpatory Provisions. Neither Administrative Agent nor
any of its respective officers, directors, employees, agents, attorneys-in-fact
or affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except for its or such Person's gross negligence or willful
misconduct) or (ii) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by any Borrower or
other Person or any officer thereof contained in this Agreement or any other
Loan Document or in any certificate, report, statement or other document
referred to or provided for in, or received by such Administrative Agent under
or in connection with, this Agreement or any other Loan Document or for the
value, validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other Loan Document or for any failure of a Borrower or
any other Person to perform its obligations hereunder or thereunder. Neither
Administrative Agent shall be under any obligation to any Lender to ascertain or
to inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Agreement or any other Loan Document or to
inspect the properties, books or records of the Borrowers.
17.4 Reliance by Administrative Agent. Each Administrative
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any Note, writing, resolution, notice, consent, certificate, affidavit, letter,
telecopy, telex or teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the Borrowers or any of
them), independent accountants and other experts selected by such Administrative
Agent. Each Administrative Agent may deem and treat the payee of any Note as the
owner thereof for all purposes unless a written notice of assignment or transfer
thereof shall have been filed with such Administrative Agent. Each
Administrative Agent shall be fully justified as between itself and the Lenders
in failing or refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence of the
Majority Lenders as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action.
Each Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the other Loan Documents in
accordance with a request of the Majority Lenders, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders and all future holders of the Loans and the Acceptance Reimbursement
Obligations.
17.5 Notice of Default. Neither Administrative Agent shall be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless such Administrative Agent has received notice from a
Lender or a Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In the
event that the General Administrative Agent receives such a notice, such
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Administrative Agent shall give notice thereof to the Lenders. The General
Administrative Agent shall take such action reasonably promptly with respect to
such Default or Event of Default as shall be reasonably directed by the Majority
Lenders; provided that unless and until the General Administrative Agent shall
have received such directions, such Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interests of the Lenders.
17.6 NonReliance on Administrative Agents and Other Lender.
Each Lender expressly acknowledges that neither Administrative Agent nor any of
their respective officers, directors, employees, agents, attorneys-in-fact or
affiliates has made any representations or warranties to it and that no act by
such Administrative Agent hereinafter taken, including any review of the affairs
of any Borrower, shall be deemed to constitute any representation or warranty by
such Administrative Agent to any Lender. Each Lender represents to each
Administrative Agent that it has, independently and without reliance upon such
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrowers and made its own decision to
make its Extensions of Credit hereunder and enter into this Agreement. Each
Lender also represents that it will, independently and without reliance upon
either Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Borrowers. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by an Administrative Agent hereunder, such Administrative Agent shall
not have any duty or responsibility to provide any Lender with any credit or
other information concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of the Borrowers which
may come into the possession of such Administrative Agent or any of its
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates.
17.7 Indemnification. Each U.S. Lender (together with, in the
case of a U.S. Common Lender, its Counterpart Lender on a joint and several
basis) agrees to indemnify each Administrative Agent in its capacity as such (to
the extent not reimbursed by the Borrowers and without limiting the obligation
of the Borrowers to do so), ratably according to its U.S. Revolving Credit
Commitment Percentage in effect on the date on which indemnification is sought
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever which may at any time (including, without limitation, at any
time following the payment of the Loans and the Acceptance Reimbursement
Obligations) be imposed on, incurred by or asserted against such Administrative
Agent in any way relating to or arising out of this Agreement, any of the other
Loan Documents or any documents contemplated by or referred to herein or therein
or the transactions contemplated hereby or thereby or any action taken or
omitted by such Administrative Agent under or in connection with any of the
foregoing; provided that no Lender
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shall be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the gross negligence or willful misconduct of such
Administrative Agent. The agreements in this subsection shall survive the
payment of the Loans, the Acceptance Reimbursement Obligations and all other
amounts payable hereunder.
17.8 Administrative Agents in their Individual Capacity . Each
Administrative Agent and its respective affiliates may make loans to, accept
Drafts, accept deposits from and generally engage in any kind of business with
the Borrowers as though such Administrative Agent was not an Administrative
Agent hereunder and under the other Loan Documents. With respect to the Loans
made or renewed by such Administrative Agent, any Acceptances created by such
Administrative Agent and any Note or Acceptance Note issued to it, such
Administrative Agent shall have the same rights and powers under this Agreement
and the other Loan Documents as any Lender and may exercise the same as though
it were not an Administrative Agent, and the terms "Lender" and "Lenders" shall
include each Administrative Agent in its individual capacity.
17.9 Successor Administrative Agents. The General
Administrative Agent may resign as General Administrative Agent, and the
Canadian Administrative Agent may resign as Canadian Administrative Agent, in
each case upon 30 days' notice to the Lenders and the other Administrative
Agent. If either Administrative Agent shall resign as General Administrative
Agent or Canadian Administrative Agent, as the case may be, under this Agreement
and the other Loan Documents, then the Majority Lenders shall appoint from among
the U.S. Lenders (in the case of a resignation of the General Administrative
Agent) or the Canadian Lenders (in the case of a resignation of the Canadian
Administrative Agent) a successor administrative agent for the Lenders, which
successor administrative agent shall be approved by the U.S. Borrower (such
approval not to be unreasonably withheld), whereupon such successor
administrative agent shall succeed to the rights, powers and duties of the
resigning Administrative Agent, and the terms "General Administrative Agent" or
"Canadian Administrative Agent", as the case may be, shall mean such successor
administrative agent effective upon such appointment and approval, and the
former Administrative Agent's rights, powers and duties as either General
Administrative Agent or Canadian Administrative Agent, as the case may be, shall
be terminated, without any other or further act or deed on the part of such
former Administrative Agent or any of the parties to this Agreement or any
holders of the Loans. After any resigning Administrative Agent's resignation as
either General Administrative Agent or Canadian Administrative Agent, as the
case may be, the provisions of this subsection shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was either General
Administrative Agent or Canadian Administrative Agent, as the case may be, under
this Agreement and the other Loan Documents.
17.10 The Documentation Agent and Co-Syndication Agents. Each
Lender, the Documentation Agent and each Co-Syndication Agent acknowledge that
the Documentation Agent and Co-Syndication Agents, in such capacities, shall
have no duties or responsibilities, and shall incur no liabilities, under this
Agreement or the other Loan Documents in their respective capacities as such.
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17.11 Actions Under Security Documents . With respect to any
action under or in respect of the Security Documents that the provisions of this
Agreement permit or require the General Administrative Agent to take only with
the consent, or upon the direction, of all of the Lenders or the Majority
Lenders, as the case may be, the Lenders acknowledge that the General
Administrative Agent shall be required to take such action only if such action
is approved by, in addition to all the Lenders or the Majority Lenders, as the
case may be, such instructing group of lenders under each of the Other Credit
Agreements as the Other Credit Agreements require for such action.
17.12 Intercreditor Agreement. In the event that a Refinancing
Agreement is entered into, the General Administrative Agent is authorized and
directed to enter into an intercreditor agreement reasonably satisfactory to the
General Administrative Agent as contemplated by the definition of "Refinancing
Agreement" set forth in subsection 1.1, and to enter into such amendments, if
any, to the Subsidiary Guarantee and the Security Documents as it shall
reasonably deem required in order to give effect to such intercreditor
agreement, provided, that, in any case, the Indebtedness of the U.S. Borrower
hereunder and under the Other Credit Agreements (including any Refinancing
Agreement in respect of either of the Other Credit Agreements) shall be pari
passu and equally and ratably secured.
SECTION 18. MISCELLANEOUS
18.1 Amendments and Waivers. (a) Neither this Agreement or any
other Loan Document, nor any terms hereof or thereof may be amended,
supplemented, waived or modified except in accordance with the provisions of
this subsection 18.1. The Majority Lenders may, or, with the written consent of
the Majority Lenders, the Administrative Agents may, from time to time, (i)
enter into with the U.S. Borrower written amendments, supplements or
modifications hereto and to the other Loan Documents for the purpose of adding
any provisions to this Agreement or the other Loan Documents or changing in any
manner the rights or obligations of the Lenders or of the U.S. Borrower
hereunder or thereunder or (ii) waive at the U.S. Borrower's request, on such
terms and conditions as the Majority Lenders or the Administrative Agents, as
the case may be, may specify in such instrument, any of the requirements of this
Agreement or the other Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall:
(A) reduce the amount or extend the scheduled date of
maturity of any Loan or any Acceptance or any Acceptance Note or of any
scheduled installment thereof, or reduce the stated rate of any
interest or fee payable hereunder or extend the scheduled date of any
payment thereof or increase the amount or extend the expiration date of
any Lender's Canadian Revolving Credit Commitment, Multicurrency
Commitment or U.S. Revolving Credit Commitment, in each case without
the consent of each Lender affected thereby;
(B) amend, supplement, modify or waive any provision of
this subsection 18.1 or reduce the percentages specified in the
definition of "Majority Lenders" or consent to
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the assignment or transfer by the U.S. Borrower of any of its rights
and obligations under this Agreement and the other Loan Documents, in
each case without the consent of all the Lenders or reduce the
percentages specified in the definitions of (I) "Majority U.S. Lenders"
or "Majority Multicurrency Lenders" without the consent of all of the
U.S. Lenders or (II) "Majority Canadian Lenders" without the consent of
all of the Canadian Lenders;
(C) amend, supplement, modify or waive any provision of
Section 17 or any other provision of this Agreement governing the
respective rights or obligations of the General Administrative Agent or
the Canadian Administrative Agent without the consent of the then
Administrative Agents, respectively;
(D) amend, supplement, modify or waive any provision of
Section 3 or any other provision of this Agreement governing the rights
and obligations of the Swing Line Lender; or the definitions used
therein without the consent of the Swing Line Lender;
(E) extend the expiring date on any Letter of Credit
beyond the Revolving Credit Termination Date without the consent of
each Lender;
(F) increase the aggregate amount of the U.S. Revolving
Credit Commitments of all Lenders to an amount in excess of
$2,500,000,000 without the consent of each Lender;
(G) amend, modify or waive any provision of subsection
10.8 without the consent of each Lender; or
(H) release all or substantially all of the guarantees
contained in Section 15 and under the Subsidiary Guarantee or the
Additional Subsidiary Guarantee or all or substantially all of the
Collateral under, and as defined in, the Security Documents without the
consent of each Lender other than as permitted under subsection 18.18.
Any waiver and any amendment, supplement or modification pursuant to this
subsection 18.1 shall apply to each of the Lenders and shall be binding upon the
Borrowers, the Lenders, the General Administrative Agent, the Canadian
Administrative Agent and all future holders of the Loans and the Reimbursement
Obligations, Subsidiary Reimbursement Obligations and Acceptance Reimbursement
Obligations. In the case of any waiver, the Borrowers, the Lenders, the General
Administrative Agent and the Canadian Administrative Agent shall be restored to
their former positions and rights hereunder and under the other Loan Documents,
and any Default or Event of Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent or other Default
or Event of Default, or impair any right consequent thereon.
(b) In addition to amendments effected pursuant to the
foregoing paragraph (a), Schedules II and III may be amended as follows:
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(i) Schedule II will be amended to add Subsidiaries of
the U.S. Borrower as additional Foreign Subsidiary Borrowers upon (A)
execution and delivery by the U.S. Borrower, any such Foreign
Subsidiary Borrower and the General Administrative Agent, of a Joinder
Agreement providing for any such Subsidiary to become a Foreign
Subsidiary Borrower, and (B) delivery to the General Administrative
Agent of (I) a Foreign Subsidiary Opinion in respect of such additional
Foreign Subsidiary Borrower and (II) such other documents with respect
thereto as the General Administrative Agent shall reasonably request.
(ii) Schedule II will be amended to remove any Subsidiary
as a Foreign Subsidiary Borrower upon (A) execution and delivery by the
U.S. Borrower of a written amendment providing for such amendment and
(B) repayment in full of all outstanding Loans of such Foreign
Subsidiary Borrower.
(iii) Schedule III will be amended (A) to change
administrative information contained therein (other than any interest
rate definition, funding time, payment time or notice time contained
therein) or (B) to add Available Foreign Currencies (and related
interest rate definitions and administrative information) with the
approval of the Majority Multicurrency Lenders, in each case, upon
execution and delivery by the U.S. Borrower and the General
Administrative Agent of a written amendment providing for such
amendment.
(iv) Schedule III will be amended to conform any funding
time, payment time or notice time contained therein to then-prevailing
market practices, upon execution and delivery by the U.S. Borrower and
the General Administrative Agent of a written amendment providing for
such amendment.
(v) Schedule III will be amended to change any interest
rate definition contained therein, upon execution and delivery by the
U.S. Borrower, all the Multicurrency Lenders and the General
Administrative Agent of a written amendment providing for such
amendment.
(c) The General Administrative Agent shall give prompt notice
to each U.S. Lender of any amendment effected pursuant to subsection 18.1(b).
(d) Notwithstanding the provisions of this subsection 18.1,
any Alternate Currency Facility may be amended, supplemented or otherwise
modified in accordance with its terms so long as after giving effect thereto
either (i) such Alternate Currency Facility ceases to be an "Alternate Currency
Facility" and the U.S. Borrower so notifies the General Administrative Agent or
(ii) the Alternate Currency Facility continues to meet the requirements of an
Alternate Currency Facility set forth herein.
18.2 Notices. All notices, requests and demands to or upon
the respective parties hereto to be effective shall be in writing (including by
facsimile transmission) and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made when
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delivered by hand, or five days after being deposited in the mail, postage
prepaid, or, in the case of telecopy notice, when received, or, in the case of
delivery by a nationally recognized overnight courier, when received, addressed
as follows in the case of the U.S. Borrowers, the Canadian Borrower, the General
Administrative Agent and the Canadian Administrative Agent, and as set forth in
Schedule I in the case of the other parties hereto, or to such other address as
may be hereafter notified by the respective parties hereto and any future
holders of the Notes:
The U.S. Borrower: Lear Corporation
21557 Telegraph Road
Southfield, Michigan 48034
Attention: Raymond F. Lowry
Telecopy: (248) 447-1730
The Canadian Borrower: Lear Corporation Canada Ltd.
c/o 21557 Telegraph Road
Southfield, Michigan 48034
Attention: Raymond F. Lowry
Telecopy: (248) 447-1730
The Foreign
Subsidiary Borrowers: Lear Corporation
21557 Telegraph Road
Southfield, Michigan 48034
Attention: Raymond F. Lowry
Telecopy: (248) 447-1730
The General
Administrative Agent: The Chase Manhattan Bank
270 Park Avenue
New York, New York 10017
Attention: Richard Smith
Telecopy: (212) 270-5100
The Canadian
Administrative Agent: The Bank of Nova Scotia
44 King Street West, 14th Floor
Toronto, Ontario
M5H1H1
Attention: IBP Loan Administration and
Agency Services Manager
Telecopy: (416) 866-5991
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provided that any notice, request or demand to or upon (i) the Administrative
Agents or the Lenders pursuant to subsection 2.3, 3.2, 4.2, 5.3, 6.2, 7.3, 9.2,
10.2, 10.4 or 10.7 or (ii) the Swing Line Lender pursuant to Section 3, shall
not be effective until received.
18.3 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of any Borrower, the General
Administrative Agent, the Canadian Administrative Agent or any Lender, any
right, remedy, power or privilege hereunder or under the other Loan Documents
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
18.4 Survival of Representations and Warranties. All
representations and warranties made hereunder and in the other Loan Documents
(or in any amendment, modification or supplement hereto or thereto) and in any
certificate delivered pursuant hereto or such other Loan Documents shall survive
the execution and delivery of this Agreement and the Notes and the making of the
Loans hereunder.
18.5 Payment of Expenses and Taxes. The U.S. Borrower agrees
(a) to pay or reimburse each Administrative Agent for all its reasonable
out-of-pocket costs and reasonable expenses incurred in connection with the
development, preparation and execution of, and any amendment, supplement or
modification to, this Agreement, the Notes and the other Loan Documents (other
than documents relating to any Alternate Currency Facility) and any other
documents prepared in connection herewith or therewith, and the consummation of
the transactions contemplated hereby and thereby, including, without limitation,
the reasonable fees and disbursements of counsel to each Administrative Agent,
(b) to pay or reimburse each Lender and each Administrative Agent for all their
costs and expenses incurred in connection with the enforcement or preservation
of any rights under this Agreement, the Notes and any such other documents,
including, without limitation, fees and disbursements of counsel to each
Administrative Agent and the reasonable fees and disbursements of counsel to the
several Lenders, and (c) to pay, indemnify, and hold each Lender and each
Administrative Agent and their respective directors, officers, employees and
agents harmless from, any and all recording and filing fees and any and all
liabilities with respect to, or resulting from any delay in paying, stamp,
excise and other taxes, if any, which may be payable or determined to be payable
in connection with the execution and delivery of, or consummation of any of the
transactions contemplated by, or any amendment, supplement or modification of,
or any waiver or consent under or in respect of, this Agreement, the Notes and
any such other documents, and (d) to pay, indemnify, and hold each Lender and
each Administrative Agent harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever with respect
to the execution, delivery, enforcement, performance and administration of this
Agreement, the Notes and the other Loan Documents, the use or proposed use by
the Borrowers of the proceeds of the Loans (all the foregoing, collectively, the
"indemnified liabilities"); provided that the U.S. Borrower shall have no
obligation hereunder to (i) any Administrative Agent with respect to indemnified
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liabilities arising from the gross negligence or willful misconduct of such
Administrative Agent or (ii) any Lender with respect to indemnified liabilities
arising from gross negligence or wilful misconduct of such Lender, in each case
as finally determined by a court of competent jurisdiction; provided, however,
that nothing in this subsection shall be construed as requiring the Canadian
Borrower to so indemnify in amounts that would be in violation of, and its
obligations to so indemnify are subject to, the restrictions on financial
assistance set out in the Business Corporations Act (Ontario); and, provided,
further, that the preceding proviso shall not be construed in any way as
limiting or derogating from the obligations of the other Borrowers set out in
this subsection. The agreements in this subsection shall survive repayment of
the Loans, the Acceptance Reimbursement Obligations and all other amounts
payable hereunder.
18.6 Successors and Assigns; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of the
Borrowers, the Lenders, the Administrative Agents, all future holders of the
Loans, the Reimbursement Obligations, the Subsidiary Reimbursement Obligations
and the Acceptance Reimbursement Obligations and their respective successors and
assigns, except that no Borrower assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of each
Lender.
(b) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time sell to one
or more banks or other entities ("Participants") participating interests in any
Loan owing to such Lender, any Commitment of such Lender or any other interest
of such Lender hereunder and under the other Loan Documents; provided that, in
the case of participations granted by a Canadian Lender, such Participant must
be a resident of Canada for purposes of the Tax Act unless such participation is
granted pursuant to subsection 18.8. In the event of any such sale by a Lender
of a participating interest to a Participant, such Lender's obligations under
this Agreement to the other parties to this Agreement shall remain unchanged,
such Lender shall remain solely responsible for the performance thereof, such
Lender shall remain the holder of any such Loan for all purposes under this
Agreement and the other Loan Documents, and the Borrowers and the Administrative
Agents shall continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement and the other
Loan Documents. Any agreement pursuant to which any Lender shall sell any such
participating interest shall provide that such Lender shall retain the sole
right and responsibility to exercise such Lender's rights and enforce the
Borrowers' obligations hereunder, including the right to consent to any
amendment, supplement, modification or waiver of any provision of this Agreement
or any of the other Loan Documents, provided that such participation agreement
may provide that such Lender will not agree to any amendment, supplement,
modification or waiver described in clause (A) or (B) of the proviso to the
second sentence of subsection 18.1(a) without the consent of the Participant.
Each Borrower agrees that if amounts outstanding under this Agreement are due or
unpaid, or shall have been declared or shall have become due and payable upon
the occurrence of an Event of Default, each Participant shall be deemed to have
the right of setoff in respect of its participating interest in amounts owing
under this Agreement to the same extent as if the amount of its participating
interest were owing directly to it as a Lender under this Agreement; provided
that, in purchasing such participating interest, such Participant shall be
deemed to have agreed to share with the Lenders the proceeds thereof as provided
in subsection 18.7(a) as fully as if it were a Lender
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hereunder. Each Borrower agrees that each Participant shall be entitled to the
benefits of subsections 10.10, 10.11, 10.12 and 18.6 with respect to its
participation in the Commitments and the Loans outstanding from time to time
hereunder as if it was a Lender; provided, that no Participant shall be entitled
to receive any greater amount pursuant to such subsections than the transferor
Lender would have been entitled to receive in respect of the amount of the
participation transferred by such transferor Lender to such Participant had no
such transfer occurred.
(c) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time and from
time to time assign to any Lender or any Affiliate thereof or, with the prior
written consent of the U.S. Borrower (such consent not to be unreasonably
withheld) and the Administrative Agents (such consent not to be unreasonably
withheld), to an additional bank or financial institution (an "Assignee") all or
any part of its rights and obligations under this Agreement and the other Loan
Documents including, without limitation, its Commitments, Loans and Acceptance
Reimbursement Obligations, pursuant to an Assignment and Acceptance,
substantially in the form of Exhibit K, executed by such Assignee, such
assigning Lender (and, in the case of an Assignee that is not then a Lender or
an Affiliate thereof, by the U.S. Borrower and the Administrative Agents) and
delivered to the Administrative Agents for their acceptance and recording in the
Register; provided that (i) if any Lender assigns a part of its rights and
obligations in respect of Revolving Credit Loans and/or Revolving Credit
Commitment under this Agreement to an Assignee, such Lender and such Lender's
Counterpart Lender (if any) shall each assign proportionate interests in their
respective Revolving Credit Commitment and Revolving Credit Loans and other
related rights and obligations hereunder to such Assignee and a Counterpart
Lender for such Assignee designated by it, (ii) if any U.S. Lender assigns a
part of its rights and obligations under this Agreement in respect of its U.S.
Revolving Credit Loans and/or U.S. Revolving Credit Commitment to an Assignee,
such U.S. Lender shall assign proportionate interests in (A) its participations
in the Swing Line Loans and other rights and obligations hereunder in respect of
the Swing Line Loans to such Assignee and (B) Multicurrency Loans and
Multicurrency Commitments (provided, that with the consent of the U.S. Borrower
and the General Administrative Agent, a Lender may assign portions of its
Revolving Credit Commitment without assigning a proportionate share of its
Multicurrency Commitment if either (x) such proportionate share of such
Multicurrency Commitment shall be assumed by another Lender or (y) if the U.S.
Borrower so agrees, such proportionate share of such Multicurrency Commitment
shall be terminated), (iii) in the case of any such assignment to an additional
bank or financial institution, the aggregate amount of any U.S. Revolving Credit
Commitment (or, if the U.S. Revolving Credit Commitments have terminated or
expired, the aggregate principal amount of any U.S. Revolving Credit Loans)
being assigned, or the U.S. Dollar Equivalent of the aggregate amount of the
Canadian Revolving Credit Commitment (or, if the Canadian Revolving Credit
Commitments have terminated or expired, the aggregate amount of Canadian
Revolving Credit Loans and Acceptance Reimbursement Obligations) being assigned
shall not be less than $15,000,000 (or (i) if less, the then outstanding amount
of such Commitments, Loans and/or Acceptance Reimbursement Obligations or (ii)
such lesser amount as may be agreed by the U.S. Borrower and the Administrative
Agents), and after giving effect to such assignment such assignor Lender, if it
retains any U.S. Revolving Credit Commitment, shall retain a U.S. Revolving
Credit
<PAGE> 131
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Commitment of at least $15,000,000 and (iv) in the case of any such assignment
made by a Canadian Lender, such Assignee must be a resident of Canada for
purposes of the Tax Act unless such assignment is made pursuant to 18.8. Upon
such execution, delivery, acceptance and recording, from and after the closing
date determined pursuant to such Assignment and Acceptance, (I) the Assignee
thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender hereunder
with Commitments, rights in respect of Acceptance Reimbursement Obligations and
Loans as set forth therein, and (II) the assigning Lender thereunder shall be
released from its obligations under this Agreement to the extent that such
obligations shall have been expressly assumed by the Assignee pursuant to such
Assignment and Acceptance (and, in the case of an Assignment and Acceptance
covering all or the remaining portion of an assigning Lender's rights and
obligations under this Agreement, such assigning Lender shall cease to be a
party hereto). Notwithstanding the foregoing, no consent of the Borrower shall
be required for any assignment effected while an Event of Default under Section
16(i) is in existence.
(d) The Administrative Agents, on behalf of the Borrowers,
shall maintain at their respective addresses referred to in subsection 18.2 a
copy of each Assignment and Acceptance delivered to it and a register (the
"Register") for the recordation of (i) the names and addresses of the Lenders
and the Commitments of, and principal amounts of the Loans and Acceptances owing
to, each Lender from time to time and (ii) the other information required from
time to time pursuant to subsection 3.1 in respect of Swing Line Loans. The
entries in the Register shall constitute prima facie evidence of the information
recorded therein, and the Borrowers, the Administrative Agents and the Lenders
may (and, in the case of any Loan, Acceptance or other obligation hereunder not
evidenced by a Note, shall) treat each Person whose name is recorded in the
Register as the owner of a Loan, Acceptance or other obligation hereunder as the
owner thereof for all purposes of this Agreement and the other Loan Documents,
notwithstanding any notice to the contrary. Any assignment of any Loan,
Acceptance or other obligation hereunder not evidenced by a Note shall be
effective only upon appropriate entries with respect thereto being made in the
Register. The Register shall be available for inspection by the U.S. Borrowers
or any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an Assignee (and, in the case of an Assignee that is
not then a Lender or an Affiliate thereof, executed by the Borrowers and the
Administrative Agents), together with payment to the Administrative Agents of a
registration and processing fee of $3,500, the Administrative Agents shall (i)
promptly accept such Assignment and Acceptance and (ii) on the effective date
determined pursuant thereto record the information contained therein in the
Register and give prompt notice of such acceptance and recordation to the
Lenders and the Borrowers.
(f) Each Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee
any and all financial information in such Lender's possession concerning such
Borrower and its Affiliates which has been delivered to such Lender by or on
behalf of such Borrower pursuant to this Agreement or which has been delivered
to such Lender by or on behalf of such Borrower in connection with such Lender's
credit evaluation of such Borrower and its Affiliates prior to becoming a party
to this
<PAGE> 132
125
Agreement; provided, that any such Transferee is advised of the confidential
nature of such information, if applicable, such Lender takes reasonable steps,
in accordance with customary practices, to ensure that any such information is
not used in violation of federal or state securities laws and such Lender
otherwise complies with subsection 18.20.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection concerning assignments of
Loans and Notes relate only to absolute assignments and that such provisions do
not prohibit assignments creating security interests, including, without
limitation, any pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law.
(h) If, pursuant to this subsection, any interest in this
Agreement or any Loan is transferred from a U.S. Lender to any Transferee which
is organized under the laws of any jurisdiction other than the United States or
any state thereof, the transferor Lender shall cause such Transferee,
concurrently with the effectiveness of such transfer, to agree (for the benefit
of the transferor Lender, the General Administrative Agent and the U.S.
Borrower) to provide the transferor Lender (and, in the case of any Transferee
registered in the Register, the General Administrative Agent and the U.S.
Borrower) the tax forms and other documents required to be delivered pursuant to
subsection 10.12(b) or (c) and to comply from time to time with all applicable
U.S. laws and regulations with regard to such withholding tax exemption.
(i) If, pursuant to this subsection, any interest in this
Agreement or any Loan is transferred from a Lender (other than a U.S. Lender) to
any Transferee, the transferor Lender shall cause such Transferee, concurrently
with the effectiveness of such transfer, to agree (for the benefit of the
transferor Lender, the General Administrative Agent and the Foreign Subsidiary
Borrowers) to provide the transferor Lender, the General Administrative Agent
and the Foreign Subsidiary Borrowers the tax forms and other documents required
to be delivered pursuant to subsection 10.12(c) and (e) and to comply from time
to time with all applicable laws and regulations with regard to such withholding
tax exemption.
18.7 Adjustments; Set-Off. (a) If any Lender (a "Benefitted
Lender") shall at any time receive any payment of all or part of its Extensions
of Credit then due and owing to it from any Borrower, or interest thereon, or
receive any collateral in respect thereof (whether voluntarily or involuntarily,
by set-off, pursuant to events or proceedings of the nature referred to in
Section 16(i), or otherwise), in a greater proportion than any such payment to
or collateral received by any other Lender, if any, in respect of such other
Lender's Extensions of Credit then due and owing to it from such Borrower, or
interest thereon, such Benefitted Lender shall purchase for cash from the other
Lenders a participating interest in such portion of each such other Lender's
Extensions of Credit owing to it from such Borrower, or shall provide such other
Lenders with the benefits of any such collateral, or the proceeds thereof, as
shall be necessary to cause such Benefitted Lender to share the excess payment
or benefits of such collateral or proceeds ratably with each of the Lenders;
provided, however, that if all or any portion of such excess payment or benefits
is thereafter recovered from such Benefitted Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest.
<PAGE> 133
126
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to any
Borrower, any such notice being expressly waived by the Borrowers to the extent
permitted by applicable law, upon any amount becoming due and payable hereunder
(whether at the stated maturity thereof, by acceleration or otherwise) to
set-off and appropriate and apply against such amount any and all deposits
(general or special, time or demand, provisional or final), in any currency, and
any other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Lender or any branch, agency or Affiliate thereof to or
for the credit or the account of such Borrower. Each Lender agrees promptly to
notify the Borrowers and the Administrative Agents after any such set-off and
application made by such Lender, provided that the failure to give such notice
shall not affect the validity of such set-off and application.
18.8 Loan Conversion/Participations. (a) (i) On any
Conversion Date, to the extent not otherwise prohibited by a Requirement of Law
or otherwise, all Loans outstanding in any currency other than U.S. Dollars
("Loans to be Converted") shall be converted into U.S. Dollars (calculated on
the basis of the relevant Exchange Rates as of the Business Day immediately
preceding the Conversion Date) ("Converted Loans"), (ii) on each date on or
after the Conversion Date on which any Acceptances or Acceptance Notes shall
mature such Acceptances and Acceptance Notes ("Acceptances to be Converted")
shall be converted into Canadian Revolving Credit Loans denominated in U.S.
Dollars (calculated on the basis of the Exchange Rate as of the Business Day
immediately preceding such maturity date) ("Converted Acceptances") and (iii) on
the Conversion Date (with respect to Loans described in the foregoing clause
(i)), and on the respective maturity date (with respect to Acceptances and
Acceptance Notes described in the foregoing clause (ii)) (A) each U.S. Lender
severally, unconditionally and irrevocably agrees that it shall purchase in U.S.
Dollars a participating interest in such Converted Loans and Converted
Acceptances in an amount equal to its Conversion Sharing Percentage of (x) the
outstanding principal amount of the Converted Loans and (y) the face amount of
matured Acceptances and Acceptance Notes, as applicable, and (B) to the extent
necessary to cause the Committed Outstandings Percentage of each U.S. Lender,
after giving effect to the purchase and sale of participating interests under
the foregoing clause (iii), to equal its U.S. Revolving Credit Commitment
Percentage (calculated immediately prior to the termination or expiration of the
U.S. Revolving Credit Commitments), each U.S. Lender severally, unconditionally
and irrevocably agrees that it shall purchase or sell a participating interest
in U.S. Revolving Credit Loans then outstanding. Each U.S. Lender will
immediately transfer to the appropriate Administrative Agent, in immediately
available funds, the amounts of its participation(s), and the proceeds of such
participation(s) shall be distributed by such Administrative Agent to each
Lender from which a participating interest is being purchased in the amount(s)
provided for in the preceding sentence. All Converted Loans and Converted
Acceptances (which shall have been converted into Canadian Revolving Credit
Loans denominated in Dollars) shall bear interest at the rate which would
otherwise be applicable to ABR Loans.
(b) If, for any reason, the Loans to be Converted or
Acceptances to be Converted, as the case may be, may not be converted into U.S.
Dollars in the manner contemplated by paragraph (a) of this subsection 18.8, (i)
the General Administrative Agent shall determine the
<PAGE> 134
127
U.S. Dollar Equivalent of the Loans to be Converted or Acceptances to be
Converted, as the case may be, (calculated on the basis of the Exchange Rate as
of the Business Day immediately preceding the date on which such conversion
would otherwise occur pursuant to paragraph (a) of this subsection 18.8), (ii)
effective on such Conversion Date, each Lender severally, unconditionally and
irrevocably agrees that it shall purchase in U.S. Dollars a participating
interest in such Loans to be Converted or Acceptances to be Converted, as the
case may be, in an amount equal to its Conversion Sharing Percentage of such
Loans to be Converted or Acceptances to be Converted, as the case may be, and
(iii) each U.S. Lender shall purchase or sell participating interests as
provided in paragraph (a)(iii) of this subsection 18.8. Each U.S.
Lender will immediately transfer to the appropriate Administrative Agent, in
immediately available funds, the amount(s) of its participation(s), and the
proceeds of such participation(s) shall be distributed by such Administrative
Agent to each relevant Lender in the amount(s) provided for in the preceding
sentence.
(c) To the extent any Taxes are required to be withheld from
any amounts payable by a Lender (the "First Lender") to another Lender (the
"Other Lender") in connection with its participating interest in any Converted
Loan or Converted Acceptance, each Borrower, with respect to the relevant Loans
made to it, shall be required to pay increased amounts to the Other Lender
receiving such payments from the First Lender to the same extent they would be
required under subsection 10.12 if such Borrower were making payments with
respect to the participating interest directly to the Other Lender.
(d) To the extent not prohibited by any Requirement of Law or
otherwise, at any time after the actions contemplated by paragraphs (a) or (b)
of this subsection 18.8 have been taken, upon the notice of any U.S. Lender to
the Borrowers the following shall occur: (i) the U.S. Borrower (through the
guarantee contained in Section 15) shall automatically be deemed to have assumed
the Converted Loans and Converted Acceptances in which such U.S. Lender holds a
participation, (ii) any Acceptances and Loans outstanding in any currency other
than U.S. Dollars shall be converted into U.S. Dollars on the dates of such
assumption (calculated on the basis of the Exchange Rate on the Business Day
immediately preceding such date of assumption) and such Loans shall bear
interest at the rate which would otherwise be applicable to ABR Loans and (iii)
such Loans and obligations in respect of Acceptances shall be assigned by the
relevant Lender holding such Loans or obligations to the U.S. Lender who gave
the notice requesting such assumption by the U.S. Borrower.
18.9 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts
(including by facsimile transmission), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. A set of the
copies of this Agreement signed by all the parties shall be delivered to the
Borrowers and the Administrative Agents.
18.10 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any
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128
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
18.11 Integration. This Agreement and the other Loan
Documents represent the agreement of the Borrowers, the Administrative Agents
and the Lenders with respect to the subject matter hereof, and there are no
promises, undertakings, representations or warranties by the Borrowers, the
Administrative Agents or any Lender relative to the subject matter hereof not
expressly set forth or referred to herein or in the other Loan Documents.
18.12 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
18.13 Submission to Jurisdiction; Waivers. (a) Each Borrower
hereby irrevocably and unconditionally:
(i) submits for itself and its property in any legal
action or proceeding relating to this Agreement or any other Loan Document to
which it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the courts of the
State of New York, the courts of the United States of America for the Southern
District of New York, and appellate courts from any thereof;
(ii) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or that
such action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to such
Borrower at its address set forth in subsection 18.2 or at such other address of
which the General Administrative Agent shall have been notified pursuant
thereto; and
(iv) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall limit
the right to sue in any other jurisdiction.
(b) Each of the Canadian Borrower and each Foreign
Subsidiary Borrower hereby irrevocably appoints the U.S. Borrower as its agent
for service of process in any proceeding referred to in subsection 18.13(a) and
agrees that service of process in any such proceeding may be made by mailing or
delivering a copy thereof to it care of U.S. Borrower at its address for notice
set forth in subsection 18.2.
18.14 Acknowledgments. Each Borrower hereby acknowledges that:
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129
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(b) none of the Administrative Agents or any Lender has any
fiduciary relationship with or duty to such Borrower arising out of or
in connection with this Agreement or any of the other Loan Documents,
and the relationship between the Administrative Agents and the Lenders,
on the one hand, and the U.S. Borrower, on the other hand, in
connection herewith or therewith is solely that of debtor and creditor;
and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Lenders or among the Borrowers and the Lenders.
18.15 WAIVERS OF JURY TRIAL. EACH OF THE BORROWERS, THE
ADMINISTRATIVE AGENTS AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
18.16 Power of Attorney. Each Foreign Subsidiary Borrower
hereby grants to U.S. Borrower an irrevocable power of attorney to act as its
attorney-in-fact with regard to matters relating to this Agreement and each
other Loan Document, including, without limitation, execution and delivery of
any amendments, supplements, waivers or other modifications hereto or thereto,
receipt of any notices hereunder or thereunder and receipt of service of process
in connection herewith or therewith. Each Foreign Subsidiary Borrower hereby
explicitly acknowledges that the Administrative Agents and each Lender have
executed and delivered this Agreement and each other Loan Document to which it
is a party, and has performed its obligations under this Agreement and each
other Loan Document to which it is a party, in reliance upon the irrevocable
grant of such power of attorney pursuant to this subsection. The power of
attorney granted by each Foreign Subsidiary Borrower hereunder is coupled with
an interest.
18.17 Intercreditor Agreement. The General Administrative
Agent is hereby authorized to enter into an intercreditor agreement, in form and
substance reasonably satisfactory to it, to allow up to $75,000,000 in loans
outstanding on the Closing Date and owing to Deutsche Bank AG New York Branch
and/or Cayman Islands Branch and Toronto Dominion (Texas), Inc., or their
respective affiliates, to be equally and ratably secured by the Collateral and
to benefit from guarantees from the Subsidiary Guarantors on a basis which is
pari passu with the Subsidiary Guarantee.
18.18 Release of Collateral and Guarantees. (a) The Lenders
hereby agree with the U.S. Borrower, and hereby instruct the General
Administrative Agent, that if (i) the U.S. Borrower attains Release Status, (ii)
the General Administrative Agent has no actual knowledge of the existence of a
Default, (iii) the U.S. Borrower shall have delivered a certificate of a
Responsible Officer stating that such Responsible Officer has obtained no
knowledge of any
<PAGE> 137
130
Default or Event of Default, and (iv) all Bond Guarantees shall have been
released or shall be released concurrently with the requested release of the
Subsidiary Guarantee, the General Administrative Agent shall, at the request and
expense of the U.S. Borrower, take such actions as shall be reasonably requested
by the U.S. Borrower to release its security interest in all collateral held by
it pursuant to the Security Documents and to release all Subsidiary Guarantors
from their obligations under the Subsidiary Guarantee. In such event, the
provisions of subsection 13.10 shall be deemed terminated and of no further
force or effect.
(b) The Lenders hereby agree with the U.S. Borrower, and
hereby instruct the General Administrative Agent, that if (i) on any date the
ratio of Consolidated Indebtedness on such date to Consolidated Operating Profit
for the four consecutive fiscal quarters most recently ended, is less than 2.50
to 1.00, (ii) the General Administrative Agent has no actual knowledge of the
existence of a Default, (iii) the U.S. Borrower shall have delivered a
certificate of a Responsible Officer stating that such Responsible Officer has
obtained no knowledge of any Default or Event of Default, and (iv) all Bond
Guarantees shall have been released or shall be released simultaneously with the
requested release of the Subsidiary Guarantee, the General Administrative Agent
shall, at the request and expense of the U.S. Borrower, take such actions as
shall be reasonably requested by the U.S. Borrower to release its security
interest in all collateral held by it pursuant to the Security Documents and to
release all Subsidiary Guarantors from their obligations under the Security
Guarantee. In such event, the provisions of subsection 13.10 shall be deemed
terminated and of no further force or effect.
(c) The Lenders hereby agree with the U.S. Borrower, and
hereby instruct the General Administrative Agent, that if the U.S. Borrower
shall have delivered to the General Administrative Agent written notice that it
proposes to sell or otherwise dispose of any Subsidiary whose stock is pledged
pursuant to a Pledge Agreement or which is a Subsidiary Guarantor, and such
disposition is permitted by this Agreement, the General Administrative Agent
shall, at the request and expense of the U.S. Borrower, take such actions as
shall be reasonably requested by the U.S. Borrower to release its security
interest in the stock of such Subsidiary and to release such Subsidiary
Guarantor from its obligations under the Subsidiary Guarantee; provided, that
such Subsidiary shall have been, or shall simultaneously be, released from all
Bond Guarantees.
18.19 Judgment. (a) If for the purpose of obtaining judgment
in any court it is necessary to convert a sum due hereunder in one currency into
another currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the General Administrative Agent could
purchase the first currency with such other currency in the city in which it
normally conducts its foreign exchange operation for the first currency on the
Business Day preceding the day on which final judgment is given.
(b) The obligation of each Borrower in respect of any sum due
from it to any Lender hereunder shall, notwithstanding any judgment in a
currency (the "Judgment Currency") other than that in which such sum is
denominated in accordance with the applicable provisions of
<PAGE> 138
131
this Agreement (the "Agreement Currency"), be discharged only to the extent that
on the Business Day following receipt by such Lender of any sum adjudged to be
so due in the Judgment Currency such Lender may in accordance with normal
banking procedures purchase the Agreement Currency with the Judgment Currency;
if the amount of Agreement Currency so purchased is less than the sum originally
due to such Lender in the Agreement Currency, such Borrower agrees
notwithstanding any such judgment to indemnify such Lender against such loss,
and if the amount of the Agreement Currency so purchased exceeds the sum
originally due to any Lender, such Lender agrees to remit to such Borrower such
excess.
18.20 Confidentiality. Each Lender agrees to take normal and
reasonable precautions to maintain the confidentiality of information designated
in writing as confidential and provided to it by the U.S. Borrower or any
Subsidiary in connection with this Agreement; provided, however, that any Lender
may disclose such information (a) at the request of any bank regulatory
authority or in connection with an examination of such Lender by any such
authority, (b) pursuant to subpoena or other court process, (c) when required to
do so in accordance with the provisions of any applicable law, (d) at the
discretion of any other Governmental Authority, (e) to such Lender's Affiliates,
independent auditors and other professional advisors or (f) to any Transferee or
potential Transferee; provided that such Transferee agrees to comply with the
provisions of this subsection 18.20.
18.21 Effect of Amendment and Restatement of the Existing
Credit Agreement. On the Closing Date, the Existing Credit Agreement shall be
amended, restated and superseded in its entirety. The parties hereto acknowledge
and agree that (a) this Agreement and the other Loan Documents, whether executed
and delivered in connection herewith or otherwise, do not constitute a novation,
payment and reborrowing, or termination of the "Obligations" (as defined in the
Existing Credit Agreement) under the Existing Credit Agreement as in effect
prior to the Closing Date; (b) such "Obligations" are in all respects continuing
(as amended and restated hereby) with only the terms thereof being modified as
provided in this Agreement; and (c) upon the effectiveness of this Agreement all
Extensions of Credit of Lenders outstanding under the Existing Credit Agreement
immediately before the effectiveness of this Agreement will be converted into
Extensions of Credit of such Lenders hereunder on the terms and conditions set
forth in this Agreement.
18.22 Conflicts. In the event that there exists a conflict
between provisions in this Agreement and provisions in any other Loan Document,
the provisions of this Agreement shall control.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
LEAR CORPORATION
By: /s/
---------------------------------
Title:
<PAGE> 140
LEAR CORPORATION CANADA LTD.
By: /s/
---------------------------------
Title:
<PAGE> 141
LEAR CORPORATION SWEDEN AB
By: /s/
---------------------------------
Title:
<PAGE> 142
LEAR CORPORATION FRANCE SARL
By: /s/
---------------------------------
Title:
<PAGE> 143
LEAR CORPORATION ITALIA S.P.A.
By: /s/
---------------------------------
Title:
<PAGE> 144
LEAR CORPORATION GMBH & CO. KG
By: /s/
---------------------------------
Title:
<PAGE> 145
LEAR CORPORATION BETEILIGUNGS GMBH
By: /s/
---------------------------------
Title:
<PAGE> 146
THE CHASE MANHATTAN BANK, as
Administrative Agent and as a Lender
By: /s/
---------------------------------
Title:
<PAGE> 147
THE BANK OF NOVA SCOTIA, as Documentation
Agent and Canadian Administrative Agent
and as a Lender
By: /s/
--------------------------------------
Title:
<PAGE> 148
BANCA COMMERCIALE ITALIANA
By:
-------------------------------------
Title:
<PAGE> 149
BANK HAPOALIM, B.M.
By:
-------------------------------------
Title:
<PAGE> 150
CHASE MANHATTAN BANK DELAWARE,
as an Issuing Lender
By:
--------------------------------------
Title:
<PAGE> 151
ABN AMRO BANK N.V. CHICAGO BRANCH
By:
-------------------------------------
Title:
By:
-------------------------------------
Title:
<PAGE> 152
BANCA NAZIONALE DEL LAVORO S.P.A.
NEW YORK BRANCH
By: /s/
-------------------------------------
Title:
By:
-------------------------------------
Title:
<PAGE> 153
BANK AUSTRIA AKTIENGESELLSCHAFT
By:
-------------------------------------
Title:
By:
-------------------------------------
Title:
<PAGE> 154
BANK OF AMERICA NT & SA, as Co-Syndication
Agent and as a Lender
By: /s/
---------------------------------------
Title:
<PAGE> 155
THE BANK OF NEW YORK
By: /s/
-------------------------------------
Title:
<PAGE> 156
THE BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By: /s/
------------------------------------
Title:
<PAGE> 157
BANKERS TRUST COMPANY, as Co-Syndication
Agent and as a Lender
By: /s/
-------------------------------------
Title
<PAGE> 158
BANQUE NATIONALE DE PARIS
By: /s/
------------------------------------
Title:
<PAGE> 159
CARIPLO CASSA DI RISPARMIO DELLE
PROVINCIE LOMBARDE SPA
By: /s/
------------------------------------
Title:
<PAGE> 160
CREDIT AGRICOLE INDOSUEZ
By: /s/
------------------------------------
Title:
By:
------------------------------------
Title:
<PAGE> 161
CIBC INC.
By: /s/
------------------------------------
Title:
<PAGE> 162
CITICORP USA, INC.
By: /s/
------------------------------------
Title:
<PAGE> 163
COMERICA BANK
By: /s/
------------------------------------
Title:
<PAGE> 164
UNICREDITO ITALIANO S.P.A.
By: /s/
------------------------------------
Title:
By:
------------------------------------
Title:
<PAGE> 165
CREDIT LYONNAIS CHICAGO BRANCH
By:
------------------------------------
Title:
<PAGE> 166
CREDIT SUISSE FIRST BOSTON
By: /s/
------------------------------------
Title:
By:
-------------------------------------
Title:
<PAGE> 167
DAI-ICHI KANGYO BANK, LTD.,
CHICAGO BRANCH
By:
------------------------------------
Title:
<PAGE> 168
DEN DANSKE BANK
By:
------------------------------------
Title:
<PAGE> 169
DEUTSCHE BANK AG NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
By: /s/
------------------------------------
Title:
By:
------------------------------------
Title:
<PAGE> 170
DG BANK
By: /s/
------------------------------------
Title:
<PAGE> 171
DRESDNER BANK AG NEW YORK AND GRAND
CAYMAN BRANCHES
By:
------------------------------------
Title:
By:
------------------------------------
Title:
<PAGE> 172
FIFTH THIRD BANK, NORTHWESTERN OHIO,
N.A.
By: /s/
------------------------------------
Title:
<PAGE> 173
FIRST AMERICAN NATIONAL BANK
By:
------------------------------------
Title:
<PAGE> 174
BANKBOSTON N.A.
By: /s/
------------------------------------
Title:
<PAGE> 175
NBD BANK
By: /s/
------------------------------------
Title:
<PAGE> 176
FIRST UNION NATIONAL BANK
By:
------------------------------------
Title:
<PAGE> 177
FLEET NATIONAL BANK
By: /s/
------------------------------------
Title:
<PAGE> 178
GULF INTERNATIONAL BANK B.S.C.
By: /s/
------------------------------------
Title:
By:
------------------------------------
Title:
<PAGE> 179
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By: /s/
------------------------------------
Title:
<PAGE> 180
ISTITUTO BANCARIO SAN PAOLO DI TORINO
ISTITUTO MOBILIARE ITALIANO S.P.A.
By: /s/
------------------------------------
Title:
By:
------------------------------------
Title:
<PAGE> 181
KEYBANK NATIONAL ASSOCIATION
By: /s/
------------------------------------
Title:
<PAGE> 182
KREDIETBANK N.V.
By:
------------------------------------
Title:
By:
------------------------------------
Title:
<PAGE> 183
LEHMAN COMMERCIAL PAPER INC.
By: /s/
------------------------------------
Title:
<PAGE> 184
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD.
By:
------------------------------------
Title:
<PAGE> 185
MERCANTILE BANK NATIONAL ASSOCIATION
By: /s/
------------------------------------
Title:
<PAGE> 186
MERITA BANK PLC, NEW YORK BRANCH
By: /s/
------------------------------------
Title:
By:
------------------------------------
Title:
<PAGE> 187
MICHIGAN NATIONAL BANK
By: /s/
------------------------------------
Title:
<PAGE> 188
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK
By: /s/
------------------------------------
Title:
<PAGE> 189
NATIONAL CITY BANK
By:
------------------------------------
Title:
<PAGE> 190
NATIONSBANK N.A.
By: /s/
------------------------------------
Title:
<PAGE> 191
THE NORTHERN TRUST COMPANY
By:
------------------------------------
Title:
<PAGE> 192
PARIBAS
By: /s/
------------------------------------
Title:
By:
------------------------------------
Title:
<PAGE> 193
ROYAL BANK OF CANADA
By: /s/
------------------------------------
Title:
<PAGE> 194
THE SAKURA BANK, LTD.
By:
------------------------------------
Title:
<PAGE> 195
THE SANWA BANK, LIMITED,
CHICAGO BRANCH
By:
------------------------------------
Title:
<PAGE> 196
SOCIETE GENERALE
By: /s/
------------------------------------
Title:
<PAGE> 197
THE SUMITOMO BANK, CHICAGO BRANCH
By:
------------------------------------
Title:
<PAGE> 198
SUNTRUST BANK, ATLANTA
By:
------------------------------------
Title:
<PAGE> 199
SVENSKA HANDELSBANKEN
By:
------------------------------------
Title:
<PAGE> 200
TORONTO DOMINION (TEXAS), INC.
By: /s/
------------------------------------
Title:
<PAGE> 201
U.S. BANK NATIONAL ASSOCIATION
By:
------------------------------------
Title:
<PAGE> 202
WACHOVIA BANK
By: /s/
------------------------------------
Title:
<PAGE> 203
SCHEDULE I
COMMITMENTS; ADDRESSES
A. U.S. Revolving Credit Commitment and Multicurrency Commitment Amounts (U.S.
Dollars)
<TABLE>
<CAPTION>
==============================================================================================================================
U.S. Revolving Credit Multicurrency
U.S. Lender Commitment Counterpart Lender Commitment
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
ABN AMRO Bank N.V., Chicago
Branch $50,000,000 $35,000,000
- ------------------------------------------------------------------------------------------------------------------------------
Banca Commerciale Italiana $15,000,000
- ------------------------------------------------------------------------------------------------------------------------------
Banca Nazionale del Lavoro
S.p.A., New York Branch $15,000,000
- ------------------------------------------------------------------------------------------------------------------------------
Bank Austria Aktiengesellschaft $20,000,000
- ------------------------------------------------------------------------------------------------------------------------------
Bank Hapoalim, B.M. $15,000,000
- ------------------------------------------------------------------------------------------------------------------------------
Bank of America NT & SA $75,000,000 $35,000,000
- ------------------------------------------------------------------------------------------------------------------------------
BankBoston N.A. $35,000,000 $30,000,000
- ------------------------------------------------------------------------------------------------------------------------------
Bankers Trust Company $87,500,000
- ------------------------------------------------------------------------------------------------------------------------------
Banque Nationale de Paris $50,000,000 $30,000,000
- ------------------------------------------------------------------------------------------------------------------------------
CARIPLO Cassa di Risparmio delle
Provincie Lombarde SPA $15,000,000
- ------------------------------------------------------------------------------------------------------------------------------
Canadian Imperial
Bank of
CIBC, Inc. $50,000,000 Commerce
- ------------------------------------------------------------------------------------------------------------------------------
Citicorp USA, Inc. $87,500,000 $40,000,000
- ------------------------------------------------------------------------------------------------------------------------------
Comerica Bank $60,000,000 $10,000,000
- ------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 204
<TABLE>
<CAPTION>
==============================================================================================================================
U.S. Revolving Credit Multicurrency
U.S. Lender Commitment Counterpart Lender Commitment
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Credit Agricole Indosuez $35,000,000 $10,000,000
- ------------------------------------------------------------------------------------------------------------------------------
Credit Lyonnais Chicago Branch $45,000,000 $10,000,000
- ------------------------------------------------------------------------------------------------------------------------------
Credito Italiano S.p.A. $15,000,000
- ------------------------------------------------------------------------------------------------------------------------------
Credit Suisse First Boston $25,000,000
- ------------------------------------------------------------------------------------------------------------------------------
Den Danske Bank $25,000,000
- ------------------------------------------------------------------------------------------------------------------------------
Deutsche Bank AG New York Branch and/or
Cayman Islands Branch $50,000,000
- ------------------------------------------------------------------------------------------------------------------------------
DG Bank $25,000,000
- ------------------------------------------------------------------------------------------------------------------------------
Dresdner Bank AG New York and Grand
Cayman Branches $35,000,000 $35,000,000
- ------------------------------------------------------------------------------------------------------------------------------
Fifth Third Bank $20,000,000
- ------------------------------------------------------------------------------------------------------------------------------
First American National Bank $15,000,000
- ------------------------------------------------------------------------------------------------------------------------------
First Union National Bank of
North Carolina $50,000,000 $20,000,000
- ------------------------------------------------------------------------------------------------------------------------------
Fleet National Bank $45,000,000
- ------------------------------------------------------------------------------------------------------------------------------
Gulf International Bank B.S.C. $15,000,000
- ------------------------------------------------------------------------------------------------------------------------------
Istituto Bancario Sao Paolo Di
Torino SpA $20,000,000
- ------------------------------------------------------------------------------------------------------------------------------
KeyBank National Association $50,000,000
- ------------------------------------------------------------------------------------------------------------------------------
Kredietbank N.V. $40,000,000 $15,000,000
- ------------------------------------------------------------------------------------------------------------------------------
Lehman Commercial Paper Inc. $25,000,000
- ------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 205
<TABLE>
<CAPTION>
==============================================================================================================================
U.S. Revolving Credit Multicurrency
U.S. Lender Commitment Counterpart Lender Commitment
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Mercantile Bank, N.A. $20,000,000
- ------------------------------------------------------------------------------------------------------------------------------
Merita Bank PLC $20,000,000
- ------------------------------------------------------------------------------------------------------------------------------
Michigan National Bank of Detroit $20,000,000
- ------------------------------------------------------------------------------------------------------------------------------
Morgan Guaranty Trust Company of New
York $25,000,000
- ------------------------------------------------------------------------------------------------------------------------------
National City Bank $25,000,000
- ------------------------------------------------------------------------------------------------------------------------------
NationsBank, N.A. $75,000,000 $35,000,000
- ------------------------------------------------------------------------------------------------------------------------------
NBD Bank $50,000,000 $35,000,000
- ------------------------------------------------------------------------------------------------------------------------------
Paribas $35,000,000 $15,000,000
- ------------------------------------------------------------------------------------------------------------------------------
Royal Bank of
Royal Bank of Canada $35,000,000 Canada
- ------------------------------------------------------------------------------------------------------------------------------
Societe Generale $30,000,000 $10,000,000
- ------------------------------------------------------------------------------------------------------------------------------
Suntrust Bank, Atlanta $30,000,000
- ------------------------------------------------------------------------------------------------------------------------------
Svenska Handelsbanken $20,000,000
- ------------------------------------------------------------------------------------------------------------------------------
The Bank of Nova
The Bank of Nova Scotia $75,000,000 Scotia
- ------------------------------------------------------------------------------------------------------------------------------
The Bank of New York $50,000,000 $35,000,000
- ------------------------------------------------------------------------------------------------------------------------------
The Bank of Tokyo-Mitsubushi
Ltd., New York Branch $50,000,000
- ------------------------------------------------------------------------------------------------------------------------------
The Chase Manhattan Bank $95,000,000 $85,000,000
- ------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 206
<TABLE>
<CAPTION>
==============================================================================================================================
U.S. Revolving Credit Multicurrency
U.S. Lender Commitment Counterpart Lender Commitment
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
The Dai-Ichi Kangyo Bank, Ltd.,
Chicago Branch $30,000,000
- ------------------------------------------------------------------------------------------------------------------------------
The Industrial Bank of Japan,
Limited $50,000,000
- ------------------------------------------------------------------------------------------------------------------------------
The Long-Term Credit Bank of Japan,
Ltd. $35,000,000
- ------------------------------------------------------------------------------------------------------------------------------
The Northern Trust Company $25,000,000
- ------------------------------------------------------------------------------------------------------------------------------
The Sakura Bank, Ltd. $10,000,000
- ------------------------------------------------------------------------------------------------------------------------------
The Sanwa Bank, Limited,
Chicago Branch $50,000,000
- ------------------------------------------------------------------------------------------------------------------------------
The Sumitomo Bank, Chicago Branch $35,000,000
- ------------------------------------------------------------------------------------------------------------------------------
Toronto Dominion (Texas), Inc. $50,000,000
- ------------------------------------------------------------------------------------------------------------------------------
U.S. Bank National Association $25,000,000 $15,000,000
- ------------------------------------------------------------------------------------------------------------------------------
Wachovia Bank $25,000,000
- ------------------------------------------------------------------------------------------------------------------------------
TOTAL $2,100,000,000 $500,000,000
==============================================================================================================================
</TABLE>
<PAGE> 207
5
B. Canadian Commitment Amounts (U.S. Dollars)
<TABLE>
<CAPTION>
=============================================================================================================
Canadian Lender Canadian Revolving Credit Counterpart Lender
Commitment
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C>
The Bank of Nova Scotia $20,000,000 The Bank of Nova Scotia
- -------------------------------------------------------------------------------------------------------------
Canadian Imperial Bank of $20,000,000 CIBC, Inc.
Commerce
- -------------------------------------------------------------------------------------------------------------
Royal Bank of Canada $10,000,000 Royal Bank of Canada
- -------------------------------------------------------------------------------------------------------------
TOTAL $50,000,000
=============================================================================================================
</TABLE>
<PAGE> 208
6
C. ADDRESSES FOR NOTICES
ABN AMRO BANK N.V., CHICAGO BRANCH
135 South LaSalle Street, Suite 625
Chicago, IL 60674
Attn: David Sagers
Tel: (312) 904-2854
Fax: (312) 606-8425
BANCA COMMERCIALE ITALIANA (CHICAGO)
150 North Michigan Avenue, Suite 1500
Chicago, IL 60601
Attn: Mark Mooney
Tel: (312) 346-1112
Fax: (312) 346-5769
BANCA NAZIONALE DEL LAVORO S.P.A., NEW YORK BRANCH
25 West 51st Street
New York, NY 10019
Attn: Giulio Giovine
Tel: (212) 581-0710
Fax: (212) 765-2978
BANK AUSTRIA AKTIENGESELLSCHAFT
565 Fifth Avenue, 26th Floor
New York, NY 10017
Attn: Jeanine B. Long
Tel: (212) 880-1075
Fax: (212) 880-1080
BANK OF AMERICA NT & SA
231 South LaSalle Street
Chicago, IL 60693
Attn: Steve Ahrenholz
Tel: (312) 828-1291
Fax: (312) 987-7384
BANK HAPOALIM, B.M.
399 Park Avenue
New York, NY 10043
Attn: Marc Bosc
Tel: (212) 782-2181
<PAGE> 209
7
THE BANK OF NEW YORK
One Wall Street, 22nd Floor
New York, NY 10286
Attn: William M. Barnum
Tel: (212) 635-1066
Fax: (212) 635-6434
BANK OF NOVA SCOTIA
181 West Madison Street, Suite 3700
Chicago, IL 60602
Attn: Brian Hewett
Tel: (312) 201-4145
Fax: (312) 201-4108
THE BANK OF TOKYO-MITSUBUSHI LTD., NEW YORK BRANCH
1251 Avenue of the Americas,
12th Floor
New York, NY 10020-1104
Attn: Friedrich N. Wilms
Tel: (212) 782-4341
Fax: (212) 782-6445
BANKERS TRUST COMPANY
233 South Wacker Drive, Suite 8400
Chicago, IL 60606
Attn: Tom Cole
Tel: (312) 993-8051
Fax: (312) 993-8162
BANQUE NATIONALE DE PARIS
209 South LaSalle Street, 5th Floor
Chicago, IL 60604
Attn: Christine L. Howatt
Tel: (312) 977-1383
Fax: (312) 977-1380
CARIPLO BANK
10 East 53 St., 36th Floor
New York, NY 10022
Attn: Anthony Giobbi
Tel: (212) 527-8737
Fax: (212) 527-8777
<PAGE> 210
8
CREDIT AGRICOLE INDOSUEZ
55 East Monroe Street, Suite 4700
Chicago, IL 60603-5702
Attn: Richard Drennan
Tel: (312) 917-7441
Fax: (312) 372-3724
CIBC INC.
200 West Madison Street, Suite 2300
Chicago, IL 60606
Attn: Ken Davis
Tel: (312) 750-8733
Fax: (312) 750-0927
CIBC INC. (U.S. BORROWINGS)
Atlanta Agency
Two Paces West
Atlanta, GA 30339
Attn: Ken Auchter
Tel: (770) 319-4814
Fax: (770) 319-4950
CANADIAN IMPERIAL BANK OF COMMERCE (CANADIAN BORROWINGS)
Commerce Court West - 50th Floor
Toronto, Ontario M5L 1A2
Attn: Rick DeGrys
Tel: (416) 214-8411
Fax: (416) 980-5855
CITICORP USA, INC.
399 Park Avenue
New York, NY 10043
Attn: Elizabeth Palermo
Tel: (212) 559-3533
Fax: (212) 826-3375
COMERICA BANK
Comerica Tower at Detroit Center
500 Woodward Avenue, MC 3265
Detroit, MI 48226
Attn: Michael Shea
Tel: (313) 222-2977
Fax: (313) 222-3776
<PAGE> 211
9
CREDITO ITALIANO S.P.A.
375 Park Avenue
New York, NY 10152
Attn: Harmon P. Butler
Tel: (212) 546-9611
Fax: (212) 546-9675
CREDIT LYONNAIS, CHICAGO BRANCH
227 West Monroe Street, Suite 3800
Chicago, IL 60606
Attn: Joce Cote
Tel: (312) 220-7303
Fax: (312) 641-0527
CREDIT SUISSE FIRST BOSTON
11 Madison Avenue
New York, New York 10010-3829
Attn: Kristin Lepri
Tel: (212) 325-9058
Fax: (212) 325-8309
THE CHASE MANHATTAN BANK (DELAWARE)
1201 Market Street
Wilmington, Delaware 19801
Attn: Micheal Handago
Tel: (302) 428-3311
Fax: (302) 428-3390
THE DAI-ICHI KANGYO BANK, LTD., CHICAGO BRANCH
10 South Wacker Drive, 26th Floor
Chicago, IL 60606
Attn: Michael D. Pleasants
Tel: (312) 715-6361
Fax: (312) 876-2011
DEUTSCHE BANK AG NEW YORK BRANCH AND/OR
CAYMAN ISLANDS BRANCH
31 West 52nd Street
New York, New York 10019
Attn: Hans-Josef Thiele
Tel: (212) 474-8649
Fax: (212) 474-8212
DEUTSCHE BANK SECURITIES INC.
<PAGE> 212
10
31 West 52nd Street, 24th Floor
New York, New York 10019
Attn: Rolf-Peter Mikolayczyk
Tel: (212) 469-8237
Fax: (212) 469-8212
DEN DANSKE BANK (NEW YORK)
280 Park Avenue
New York, New York 10017-1216
Attn: Peter Hargrave
Tel: (212) 984-8433
Fax: (212) 370-9239
DG BANK
609 Fifth Avenue
New York, New York 10017-1021
Attn: Robert Herber
Tel: (212) 745-1581
Fax: (212) 745-1556
DRESDNER BANK AG NEW YORK AND GRAND CAYMAN BRANCHES
190 South LaSalle St., Suite 2700
Chicago, IL 60603
Attn: Jeffrey Mumm
Tel: (312) 444-1336
Fax: (312) 444-1305
FIRST AMERICAN NATIONAL BANK
Fourth & Union Street., NA-0310
Nashville, TN 37238
Attn: Andrew Zimberg
Tel: (615) 748-1401
Fax: (615) 748-6072
BANKBOSTON N.A.
100 Federal Street, MS-01-09-05
Boston, MA 02110
Attn: Robert MacElhiney
Tel: (617) 434-7068
Fax: (617) 434-6685
NBD BANK
611 Woodward Avenue
Detroit, MI 48226
Attn: Thomas Lakocy
<PAGE> 213
11
Tel: (313) 225-2884
Fax: (313) 225-2290
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
One First Union Center, DC-5
Charlotte, NC 28288-0745
Attn: Glenn Edwards
Tel: (704) 383-3810
Fax: (704) 314-2802
FLEET NATIONAL BANK
One Federal Street
Boston, MA 02211
Attn: Juan Jeffries
Tel: (617) 346-4953
Fax: (617) 346-0585
GULF INTERNATIONAL BANK B.S.C.
380 Madison Avenue, 21st Floor
New York, NY 10017
Attn: Abdel-Fattah Tahoun
Tel: (212) 922-2325
Fax: (212) 922-2309
THE INDUSTRIAL BANK OF JAPAN, LIMITED
227 West Monroe Street, Suite 2600
Chicago, IL 60606
Attn: David Geddy
Tel: (312) 855-8482
Fax: (312) 855-8200
ISTITUTO BANCARIO SAO PAOLO DI TORINO SPA
245 Park Avenue
New York, NY 10167
Attn: Luca Sergio
Tel: (212) 692-3180
Fax: (212) 599-5303
JP MORGAN (NEW YORK)
50 Wall Street
New York, New York 10260
Attn: Stephen Worth
Tel: (212) 648-4114
<PAGE> 214
12
Fax: (212) 648-5043
KEYBANK NATIONAL ASSOCIATION
Large Corporate Group
127 Public Square
Cleveland, OH 44114
Attn: Thomas A. Crandell
Tel: (216) 689-3589
Fax: (216) 689-4981
KREDIETBANK N.V.
125 West 55th Street, 10th Floor
New York, NY 10019
Attn: John E. Thierfelder
Tel: (212) 541-0727
Fax: (212) 956-5580
LEHMAN BROTHERS
3 World Financial Center
New York, New York 10285
Attn: Peter Wexler
Tel: (212) 526-3055
Fax: (212) 526-3738
THE LONG TERM CREDIT BANK OF JAPAN, LTD.
190 South LaSalle Street, Suite 800
Chicago, IL 60603
Attn: Robert Orenstein
Tel: (312) 704-5478
Fax: (312) 704-8505
MERCANTILE BANK, NA
P.O. Box 524
St. Louis, MS 63166
Attn: Kirk A. Porter
Tel: (314) 418-2413
MERITA BANK PLC
437 Madison Avenue, 21st Floor
New York, NY 10022
Attn: William Keller
Tel: (212) 318-9317
<PAGE> 215
13
MICHIGAN NATIONAL BANK
27777 Inkster Road
Farmington Hills, MI 48333
Attn: Christopher Mayone
Tel: (248) 473-4357
Fax: (248) 615-5910
NATIONSBANK, N.A.
233 South Wacker Drive, Suite 2800
Chicago, IL 60606
Attn: Wallace W. Harris, Jr.
Tel: (312) 234-5626
Fax: (312) 234-5601
NATIONAL CITY BANK (CLEVELAND)
979 Westwood Drive
Birmingham, MI 48009
Attn: Mary Beth Howe
Tel: (248) 644-0502
Fax: (248) 644-0432
NORTHERN TRUST COMPANY (CHICAGO)
50 South LaSalle Street
Chicago, IL 60675
Attn: Tracy Toulouse
Tel: (312) 557-1356
Fax: (312) 630-6082
PARIBAS
227 West Monroe, Suite 3300
Chicago, IL 60606
Attn: Nicholas C. Mast
Tel: (312) 853-6038
Fax: (312) 853-6020
ROYAL BANK OF CANADA
One North Franklin Street, Suite 700
Chicago, IL 60606
Attn: Patrick K. Shields
Tel: (312) 551-1629
Fax: (312) 551-0805
<PAGE> 216
14
THE SAKURA BANK, LTD.
277 Park Avenue
New York, NY 10172
Attn: Patricia L. Walsh
Tel: (212) 756-6788
Fax: (212) 756-6781
THE SANWA BANK, LIMITED, CHICAGO BRANCH
10 South Wacker Drive, 31st Floor
Chicago, IL 60606
Attn: Richard H. Ault
Tel: (312) 368-3011
Fax: (312) 346-6677
SOCIETE GENERALE
181 West Madison Street, Suite 3400
Chicago, IL 60602
Attn: Eric Bellaiche
Tel: (312) 578-5056
Fax: (312) 578-5099
THE SUMITOMO BANK, LIMITED, CHICAGO BRANCH
233 South Wacker Drive, Suite 4800
Chicago, IL 60606-6448
Attn: James C. Beckett
Tel: (312) 876-7794
Fax: (312) 876-6436
and
277 Park Avenue
New York, NY 10172
Attn: Paul Kane
Tel: (212) 224-4152
Fax: (212) 224-4079
<PAGE> 217
15
SUNTRUST BANK, ATLANTA
25 Park Place
Mailcode 118
Atlanta, GA 30303
Attn: Shelly Browne
Tel: 404-230-5224
Fax: 404-588-8505/658-4905
SUNTRUST BANK ATLANTA
25 Park Place
Mailcode 118
Atlanta, GA 30303
Attn: Jennifer Harrelson
Tel: (404) 588-7461
Fax: (404) 588-8505/658-4905
SVENSKA HANDELSBANKEN (NEW YORK)
153 East 53rd Street, 37th Floor
New York, New York 10022
Attn: Karl Forsman
Tel: (212) 326-5144
Fax: (212) 326-5151
SVENSKA HANDELSBANKAN (NEW YORK)
153 East 53rd Street
New York, New York 10022
Attn: David Caceres
Tel: (212) 326-5171
Fax: (212) 326-5151
TD SECURITIES (USA) INC.
70 W. Madison, Suite 5430
Chicago, IL 60602
Attn: Mario da Ponte
Tel: (312) 977-2127
Fax: (312) 782-6332
U.S. BANK NATIONAL ASSOCIATION
601 Second Avenue South
Minneapolis, MN 55402-4302
Attn: Tom Cherry
Tel: (612) 973-0555
Fax: (612) 973-0825
<PAGE> 218
16
CHEMICAL SECURITIES INC.
270 Park Avenue
New York, New York 10017
Attn: Rosemary Bradley
Tel: (212) 270-7853
Fax: (212) 270-5127
LEAR CORPORATION
21557 Telegraph Road
Southfield, MI 48034
Attn: Raymond F. Lowry
Tel: (248) 447-1730
Fax: (248) 447-1593
WACHOVIA CORPORATE SERVICES, INC.
191 Peachtree Street, N.E.
Atlanta, GA 30303
Attn: Katie Trocron
Tel: (404)
Fax: (404) 332-6898
FIFTH THIRD BANK
606 Madison Avenue
Toledo, OH 43604
Attn: Chris Prisby
Tel: (419) 259-7141
Fax: (419) 259-7134
<PAGE> 219
SCHEDULE II
FOREIGN SUBSIDIARY BORROWER
Jurisdiction of
Name and Address Incorporation
- ---------------- -------------
Lear Corporation Sweden AB Sweden
c/o Lear Corporation
21557 Telegraph Road
Southfield, Michigan 48034
Attention: Raymond F. Lowry
Telecopy: (248) 447-1730
Lear France SARL France
c/o Lear Corporation
21557 Telegraph Road
Southfield, Michigan 48034
Attention: Raymond F. Lowry
Telecopy: (248) 447-1730
Lear Corporation GmbH & Co. KG Germany
c/o Lear Corporation
21557 Telegraph Road
Southfield, Michigan 48034
Attention: Raymond F. Lowry
Telecopy: (248) 447-1730
Lear Corporation Beteiligungs GmbH Germany
c/o Lear Corporation
21557 Telegraph Road
Southfield, Michigan 48034
Attention: Raymond F. Lowry
Telecopy: (248) 447-1730
Lear Corporation Italia S.p.A. Italy
c/o Lear Corporation
21557 Telegraph Road
Southfield, Michigan 48034
Attention: Raymond F. Lowry
Telecopy: (248) 447-1730
<PAGE> 220
SCHEDULE III
ADMINISTRATIVE SCHEDULE
I. MULTICURRENCY LOANS
A. Interest Rates for Each Currency
Sterling:
for any Interest Period in respect of any Tranche,
the rate per annum equal to the average (rounded
upward to the nearest 1/16th of 1%) of the rates at
which Chase is offered deposits in Sterling in the
Paris interbank market at or about 11:00 A.M., Paris
time, on the Quotation Day for such Interest Period
for delivery on the first day of such Interest Period
for the number of days comprised therein and in an
amount comparable to Chase's Multicurrency Commitment
Percentage of the applicable Multicurrency Loan.
Swedish Kroner:
for any Interest Period in respect of any Tranche,
the rate per annum equal to the average (rounded
upward to the nearest 1/16th of 1%) of the rates at
which Chase is offered deposits in Swedish Kroner in
the London interbank market at or about 11:00 A.M.,
London time, on the Quotation Day for such Interest
Period for delivery on the first day of such Interest
Period for the number of days comprised therein and
in an amount comparable to Chase's Multicurrency
Commitment Percentage of the applicable Multicurrency
Loan.
euro unit:
for any Interest Period in respect of any Tranche,
the rate per annum for deposits in euro for a period
beginning on the first day of such Interest Period
and ending on the last day of such Interest Period
which appears on Telerate Page 3750 (or, if no such
quotation appears on such Telerate Page, on the
appropriate Reuters Screen) as of 11:00 a.m., London
time, on the Quotation Day of such Interest Period.
<PAGE> 221
2
B. Funding Office, Funding Time, Payment Office, Payment Time
for Each Currency.
Sterling:
1. Funding Office:
Account of: Chase Manhattan International Limited
Account No: CHAPS 40 52 06
Chase Manhattan Bank
125 London Wall
London EC2Y 5AJ
2. Funding Time: 11:00 A.M., local time.
3. Payment Office:
Account of: Chase Manhattan International Limited
Account No: CHAPS 40 52 06
Chase Manhattan Bank
125 London Wall
London EC2Y 5AJ
4. Payment Time: 11:00 A.M., local time.
Swedish Kroner:
1. Funding Office:
Account of: Chase Manhattan International Limited
Account No: 52018519395
2. Funding Time: 11:00 A.M., local time.
3. Payment Office:
Account of: Skandinaviska Enskilda Banken, Stockholm
Account No: 52018519395
4. Payment Time: 11:00 A.M., local time.
euro unit:
1. Funding Office:
Account of: Chase Manhattan International Limited
Account No: 6001600037
The Chase Manhattan Bank AG, Frankfurt
<PAGE> 222
3
2. Funding Time: 11:00 A.M., local time.
3. Payment Office:
Account of: Chase Manhattan International Limited
Account No: 6001600037
The Chase Manhattan Bank AG, Frankfurt
4. Payment Time: 11:00 A.M., local time.
C. Notice of Multicurrency Loan Borrowing:
1. Deliver to: Chase Manhattan International Limited
Trinity Tower
9 Thomas More Street
London E1 9YT
Attention: Steve Clark
Telephone No: 44-171-777-2353
Fax No: 44-171-777-2360/2085
2. Time:
Not later than 11:00 A.M., London time, on the last
Business Day preceding the Quotation Day in respect of
such Borrowing Date.
3. Information Required:
Name of Foreign Subsidiary Borrower, amount to be
borrowed, and Interest Periods.
D. Notice of Multicurrency Loan Continuation; Notice of
Prepayment:
1. Deliver to: Chase Manhattan International Limited
Trinity Tower
9 Thomas More Street
London E1 9YT
Attention: Steve Clark
Telephone No: 44-171-777-2353
Fax No: 44-171-777-2360/2085
2. Time:
Not later than 11:00 A.M., London time, on the last
Business Day preceding the Quotation Day for the next
Interest Period.
<PAGE> 223
4
3. Information Required:
Name of Foreign Subsidiary Borrower, amount to be
continued or prepaid, as the case may be, and Interest
Periods.
II. NOTICE OF ALTERNATE CURRENCY OUTSTANDINGS
1. Deliver to: Chase Manhattan International Limited
Trinity Tower
9 Thomas More Street
London E1 9YT
Attention: Steve Clark
Telephone No: 44-171-777-2353
Fax No: 44-171-777-2360/2085
with a copy to:
The Chase Manhattan Bank
140 East 45th Street
29th Floor
New York, New York 10017
Attention: Chris Consomer
Telephone No.: 212-622-8779
Fax No.: 212-622-0122
2. Delivery time: By close of business in London on the date
of making of each Alternate Currency Loan
and having a fixed maturity of 30 or more
days and on the last Business Day of each
month on which the applicable Alternate
Currency Borrower has outstanding any
Alternate Currency Loans.
3. Information to be set forth:
Name of Foreign Subsidiary Borrower
Amount and currency of outstanding Alternate Currency
Loans of each Alternate Currency Lender
<PAGE> 224
SCHEDULE IV
SECURITY DOCUMENTS
I. Pledge Agreements
1. Company Pledge Agreement, dated as of the date hereof, made
by the U.S. Borrower, Lear Operations Corporation and Lear Corporation
Automotive Systems pledging 100% of the stock of Lear Operations Corporation and
Lear Corporation Automotive Holdings in favor of the General Administrative
Agent, substantially in the form of Exhibit Q to the Agreement.
2. Pledge Agreement to be entered into within 60 days after
the Closing Date in respect of 65% of the capital stock of Lear Germany.
<PAGE> 225
SCHEDULE V
[RESERVED]
<PAGE> 226
SCHEDULE VI
SUBSIDIARIES(1)
DOMESTIC SUBSIDIARIES:
<TABLE>
<CAPTION>
Jurisdiction of
Name of Entity Incorporation Stock Ownership Record Holder
-------------- ------------- --------------- -------------
<S> <C> <C> <C>
Amtex, Inc. Pennsylvania 50% Lear Corporation
Bryan Manufacturing Company Ohio 100% Lear Corporation Automotive Holdings
Corporate Eagle Two LLC 50% LCT, Inc.
Detroit Automotive Interiors L.L.C. Michigan 49% Lear Corporation
Essex International de Chihuahua, Inc. Delaware 100% Lear Corporation Automotive Holdings
General Seating of America, Inc. Delaware 50% Lear Corporation
Industrial Electrical Specialties, Inc. Delaware 55% Lear Corporation Automotive Holdings
IPCO Inc. Delaware 100% Lear Corporation Automotive Holdings
LCT, Inc. Michigan 100% Lear Corporation
Lear Corporation (Germany) Ltd. Delaware 100% Lear Corporation
Lear Corporation Global Development, Inc. Delaware 100% Lear Corporation
Lear Corporation Mendon Delaware 100% Lear Corporation
Lear Donnelly Overhead Systems, L.L.C. Michigan 50% Lear Corporation
Lear East L.P. Pennsylvania 100% Lear East, Inc. (99%); Lear
Corporation Global Development, Inc.
(1%)
Lear East, Inc. Delaware 100% Lear Operations Corporation
Lear Investments Company, L.L.C. Delaware 100% Lear Corporation
Lear Mexican Holding, L.L.C. Delaware 100% Lear Seating Holdings Corp. #50
Lear Midwest Automotive, Limited Partnership Delaware 100% Lear Midwest, Inc. (99.9%); Lear
Corporation Mendon (0.1%)
Lear Midwest, Inc. Kentucky 100% Lear Operations Corporation
Lear Operations Corporation Delaware 100% Lear Corporation
Lear Seating Holdings Corp. #50 Delaware 100% Lear Corporation
Lear Seating Holdings Corp. #100 Delaware 100% Lear Corporation
Lear Technologies, L.L.C. Delaware 100% Lear Corporation
Lear Trim L.L.C. Delaware 100% NAB Corporation (99.9%); Lear
Corporation (.1%)
- -------------------------------
1. After giving effect to the UT Automotive Acquisition.
</TABLE>
<PAGE> 227
2
<TABLE>
<CAPTION>
Jurisdiction of
Name of Entity Incorporation Stock Ownership Record Holder
-------------- ------------- --------------- -------------
<S> <C> <C> <C>
Masland Transportation, Inc. Delaware 100% Lear Corporation
Motors Acquisition Corporation Delaware 100% Lear Corporation
NAB Corporation Delaware 100% Lear Corporation
Precision Fabrics Group North Carolina 29% Lear Corporation
Superior Coach Corporation Ohio 100% Lear Corporation Automotive Holdings
United Technologies Automotive (Japan), Inc. Delaware 100% Lear Corporation Automotive Holdings
United Technologies Automotive (U.K.) Limited Delaware 100% Lear Corporation Automotive Holdings
United Technologies Automotive Systems, Inc. Ohio 100% Lear Corporation Automotive Holdings
United Technologies Automotive, Inc. Delaware 100% Lear Corporation Automotive Holdings
United Technologies Furukawa Corporation Delaware 51% Lear Corporation Automotive Holdings
UT Automitive Advanced Technology, Inc. Delaware 100% Lear Corporation Automotive Holdings
UT Automotive Dearborn, Inc. Delaware 100% Lear Corporation Automotive Holdings
Lear Corporation Automotive Holdings Delaware 100% Lear Operations Corporation
Wagner Industries, Inc. Indiana 100% Lear Corporation Automotive Holdings
</TABLE>
<PAGE> 228
3
FOREIGN SUBSIDIARIES:
<TABLE>
<CAPTION>
Jurisdiction of
Name of Entity Organization Stock Ownership Record Holder
-------------- ------------ --------------- -------------
<S> <C> <C> <C>
AB Extruding Sweden 100% Lear Corporation Sweden AB
AB Trelleborgsplast Sweden 100% Lear Corporation Sweden AB
All Automotive Industries Canada Inc. Canada 100% Lear Corporation
Alfombras San Luis S.A. Argentina 100% Industria Textil Dragui S.A.
Arbitrario B.V. Netherlands 100% Lear Corporation
Asia Pacific Components Co., Ltd. Thailand 98% Lear Seating (Thailand) Corp., Ltd.
Auto Interiors India Private Ltd. India 25%
Autoform Kunsrstoffeile GmbH Germany 69% Gruppo Pianfej S.r.L (44%); Pianfei
Glass SA (25%)
Autoform Kunststoffteile GmbH & Co KG Germany 70.89% Gruppo Pianfej S.r.L (45.2%); Pianfei
Glass SA (29.69%)
Autotrim, S.A. de C.V. Mexico 40% Interiores Automotrics Summa S.A. de
C.V.
AVB Anlagen und Vorrichtungsbau Germany 55% Lear Corporation Bereiligungs GmbH
Aviken Plast AB Sweden 100% Lear Corporation Gnosjoplast AB
Chongqing Lear Chang'an Automotive China 35.75% Lear Corporation China Ltd.
Interior Trim Co., Ltd.
Consorcio Industrial Mexicanos de Mexico 100% Lear Corporation 99.4%; Empresas
Autopartes S.A. de C.V. Industriales Mexicanos de Autopartes,
S.A. de C.V. .6%
Davart Group Ltd. UK 100% Lear Corporation UK Interior Systems
Limited
Donnelly Eurotrim Ltd. Ireland 50% Lear Donnelly Overhead Systems, L.L.C.
El Trim (Pty.) Ltd. Italy 51% Lear Corporation Beteiligungs GmbH
Empetek autodily s.r.o. Czech Republic 50% Lear Donnelly Overhead Systems, L.L.C.
Empresas Industriales Mexicanos de Mexico 74.98% Lear Corporation
Autopartes, S.A. de C.V.
Favesa S.r.l. de C.V. Mexico 100% Lear Holdings S.r.l. de C.V.
Gate Deutschland GmbH Germany 100% Lear Corporation Automotive Holdings
Gate France S.A. France 99.760% Lear Corporation Automotive Holdings
Gate S.p.A. Italy 100% Lear Corporation Automotive Holdings
Gate UK Limited U.K. 100% Lear Corporation Automotive Holdings
General Seating of Canada Ltd. Canada 50% Lear Corporation Canada, Ltd.
General Seating of Thailand Corp. Ltd. 50% Lear Corporation
Gruppo Pianfei S.r.L. Italy 100% Lear Corporation Italia Holding S.r.L.
</TABLE>
<PAGE> 229
4
<TABLE>
<CAPTION>
Jurisdiction of
Name of Entity Organization Stock Ownership Record Holder
-------------- ------------ --------------- -------------
<S> <C> <C> <C>
Guilford Kast Plastifol Dynamics Ltd. UK 33.3% Lear Corporation Drahtfedem GmbH
Hanil Lear Automotive Parts Private Ltd. India 50% Lear Corporation
Hubei UTA-Xianfeng Auto Electric China 100% Lear Corporation Automotive Holdings
Company, Ltd.
Industria Textil Dragui S.A. Argentina 100% Industrias Lear de Argentina, S.A.
Industrias Cousin Freres, S.L. Spain 49.99% Lear Corporation Italia S.p.A..
Industrias Lear de Argentina, S.A. Argentina 100% Lear Corporation
Industrias Lear Trim S. de R.L. de C.V. Mexico 100% Lear Holdings S.r.l. de C.V.
Inteco S.p.A. Italy 100% Strapazzini Auto S.p.A. (99%), Lear
Corporation Italia Holding S.r.L. (1%)
Interiores Automotrices Summa S.A. de Mexico 40% Lear Operations Corporation
C.V.
Interiores Para Autos, S.A. de C.V. Mexico 40% Interiores Auto Matricies Summa S.A. de
C.V.
Interni S.A. Brazil 25%
Jiangxi Jiangling Lear Interior Systems China 32% Lear Corporation China Ltd.
Co. Ltd.
John Cotton Plastics Ltd. UK 100% Lear Corporation UK Interior Systems
Limited
L.S. Servicos Ltds. Brazil 100% Lear Corporation
Lear Automotive Corporation Singapore Singapore 100% Lear Corporation
Pte. Ltd.
Lear Bahia Ltd. Brazil 100% Lear do Brazil Ltda.
Lear Belgium Newco Belgium 100% Lear Corporation
Lear Brits (SA)(Pty.) Ltd. South Africa 100% Lear Corporation
Lear Car Seating do Brasil Ltda. Brazil 100% L.S. Servicos Ltda.
Lear Corporation (Nottingham) Limited UK 100% Lear Corporation (UK) Limited)
Lear Corporation (S.A.)(Pty.) Ltd. South Africa 100%
Lear Corporation (SSD) Ltd. UK 100% Lear UK ISM Limited
Lear Corporation (SSD) NV Belgium 100% Lear Corporation
Lear Corporation (UK) Ltd. UK 100% Lear UK Acquisition Limited
Lear Corporation Asientos, S.A. Spain 100% Lear Corporation Spain S.L.
Lear Corporation Australia Pty. Ltd. Australia 100% Lear Corporation
Lear Corporation Austria GmbH Austria 100% Lear Corporation Beteiligungs GmbH
</TABLE>
<PAGE> 230
5
<TABLE>
<CAPTION>
Jurisdiction of
Name of Entity Organization Stock Ownership Record Holder
-------------- ------------ --------------- -------------
<S> <C> <C> <C>
Lear Corporation Austria GmbH & Co. KG Austria 100% Lear Corporation Beteiligungs GmbH
(99%); Lear Corporation Austria GmbH
(1%)
Lear Corporation Automotive Components South Africa 100%
(Pty.) Ltd.
Lear Corporation Beteiligungs GmbH Germany 100% Lear Corporation (Germany) Ltd.
Lear Corporation Drabtfedern GmbH Germany 100% Lear Corporation Beteiligungs GmbH
Lear Corporation Canada Ltd. Ontario 100% Lear Corporation
Lear Canada Investments Ltd. Ontario 100% Lear Corporation
Lear Corporation China Ltd. Mauritius 65%
Lear Corporation France S.A.R.L. France 100% Lear Corporation
Lear Corporation GmbH & Co. KG Germany 100% Lear Corporation Drahtfedern GmbH
Lear Corporation Holdings Spain S.L. 100% Lear Corporation
Lear Corporation Hungary KFT 100% Lear Corporation Drahtfedern GmbH
Lear Corporation Interior Compenents South Africa 100% Lear Corporation
(Pty.) Ltd.
Lear Corporation Italia Holding S.r.L. Italy 100% Lear Corporation
Lear Corporation Italia S.p.A. Italy 100% Lear Corporation Italia Holdings S.r.L.
Lear Corporation Italia Speciality Car Italy 100% Lear Corporation Italia Holding S.r.L
Group S.r.L.
Lear Corporation Italia Sud S.p.A. Italy 100% Lear Corporation Italia S.p.A.
Lear Corporation Mexico S.A. de C.V. Mexico 99.6% Lear Holdings S.r.l. de C.V.
Lear Corporation Poland Gliwice Poland 100% Lear Corporation
S.p.zo.o.
Lear Corporation Poland II S.p.zo.o. Poland 100% Lear Corporation
Lear Corporation Poland S.p.zo.o. Poland 100% Lear Corporation
Lear Corporation Portugal-Components Portugal 100% Lear Corporation
Para Automovers, Lda.
Lear Corporation Spain S.L. 100% Lear Corporation Holdings Spain S.L.
Lear Corporation Sweden AB Sweden 100% Lear Corporation
Lear Corporation Sweden Gnosjoplast AB Sweden 100% Lear Corporation Sweden AB
Lear Corporation UK Holdings Ltd. UK 100% Lear Corporation
Lear Corporation UK Interior Systems Ltd. UK 100% Lear Corporation UK Holdings Ltd.
Lear Corporation Verwaltungs GmbH Germany 100% Lear Corporation Drahtfedern GmbH
</TABLE>
<PAGE> 231
6
<TABLE>
<CAPTION>
Jurisdiction of
Name of Entity Organization Stock Ownership Record Holder
-------------- ------------ --------------- -------------
<S> <C> <C> <C>
Lear de Venezuela, C.A. Venezuela 100% Lear Corporation
Lear de Brazil ltda. Brazil 100% Lear Corporation
Lear Donnelly Mexico, S. de R.L. de C.V. (50%) Lear Donnelly Overhead Systems, L.L.C.
Lear Foreign Sales Group US Virgin Islands 100% Lear Corporation
Lear Holdings S.r.L. de C.V. (50%) Lear Mexican Holdings, L.L.C.
Lear Inespo Comercial Industrial Ltda. Brazil 50.01% Lear Corporation
Lear JIT (Pty.) Ltd. South Africa 51% Lear Corporation Drahtfedern GmbH
Lear North West (Pty.) Ltd. South Africa 100% Lear Corporation
Lear Seating (Thailand) Corp., Ltd. Thailand 98% Lear Corporation
Lear Seating Private Limited India [49%] Ramco Investments Limited
Lear Sewing (Pty) Ltd. South Africa 51% Lear Corporation Drahtfedern GmbH
Lear Teknik Oto Yan Sanayi Limited Sirket Turkey 66.67% Lear Corporation
Lear UK Acquisition Limited UK 100% Lear Corporation UK Holdings Limited
Lear UK ISM Limited UK 100% Lear Corporation (UK) Limited
Lear Vijayjyot Seating Private Limited India 50% Ramco Investments Limited
LECA S.p. zo.o Poland 100% Lear Corporation
Markol Otomotiv Yan Sanayi VE Ticaret Turkey 35% Lear Corporation
A.S.
Masland (UK) Limited UK 100% Lear Corporation
Masland Industries of Canada Limited Canada 100% Lear Corporation
Mecanismos Auxiliarios Industriales, S.A. Spain 99.9% Lear Corporation Automotive Holdings
No-Sag Drahtfedern Spitzer & Co. KG Austria 62.5% Lear Corporation Drahtfedern GmbH
OOO Lear Russia 100% Lear Corporation Global Development,
Inc.
Pianfei Engineering S.r.L. Italy 100% Gruppo Pianfei S.r.L.
Pianfei Glass SA Spain 35% Gruppo Pianfei S.r.L.
Pianfei Ipa S.pA. Italy 100% Gruppo Pianfei S.r.L. (98%); Lear
Corporation Italia Holding S.r.L. (2%)
Pianfei Melti S.r.L. Italy 73% Lear Corporation Italia Holding S.r.L.
Pianfei Sicilia S.r.L. Italy 100% Gruppo Pianfei S.r.L.
Pianfei Sud S.r.L. Italy 100% Gruppo Pianfei S.r.L. (70%);
Pianfei Melfi S.r.L. (30%)
Polovat Auto Sp.zo.o. Poland 100% Polovar Sp.z.o.o.
</TABLE>
<PAGE> 232
7
<TABLE>
<CAPTION>
Jurisdiction of
Name of Entity Organization Stock Ownership Record Holder
-------------- ------------ --------------- -------------
<S> <C> <C> <C>
Polovat Sp.zo.o. Poland 100% Arbirario B.V.
Protos S.r.L. Italy 100% Lear Corporation Italia Holding S.r.L.
PRPI S.p.A. (in liquidation) Italy 85% Gruppo Pianfei S.r.L.(18%); Pianfei
Engineering S.r.L. (67%)
Rael Handels GmbH Austria 100% Lear Corporation Bereiligungs GmbH
Ramco Investments Limited Mauritius 100% Lear Corporation
Rolloplast Formsprutning AB Sweden 100% Lear Corporation Gnosjoplast AB
S.A.L.B.I. AB Sweden 50% Lear Corporation Sweden AB
Shanghai Lear Automobile Interior Trim China 35.75% Lear Corporation China Ltd.
Co., Ltd.
Shanghai Songjiang Lear Automotive China 35.75 Lear Corporation China Ltd.
Carpet & Accoustics Co. Ltd.
Siam UT Automotive Co., Ltd. Thailand 99.9976% Lear Corporation Automotive Holdings
Societe No Sag Francaise France 56% Lear Corporation France S.A.R.L.
Societe Offran-Villaise de Technologie, France 100% Lear Corporation France S.A.R.L.
S.A.
Sommer Masland (UK) Limited UK 50% Masland (UK) Limited
Spitzer GmbH Austria 62.5% Lear Corporation Drahtfedern GmbH
Stapur SA Argentina 5% Lear Corporation Automotive Holdings
Strapazzini Auto S.p.A. 100% Strapazini Resine S.r.L. (1%)
Strapazzini Resine S.r.L. (99%)
Strapazzini Resine S.R.L. Italy 100% Lear Corporation Italia Holding S.r.L.
SWECA Sp. z.o.o. Poland 100% Lear Corporation
United Technologies Automotive Argentina 100% Lear Corporation Automotive Holdings
(Argentina) S.A.
United Technologies Automotive (Europe) France 99.75% Lear Corporation Automotive Holdings
S.A.
United Technologies Automotive (France) France 100% Lear Corporation Automotive Holdings
S.A.R.L.
United Technologies Automotive Honduras 98% Lear Corporation Automotive Holdings
(Honduras) S.A.
United Technologies Automotive (Hungary) Hungary 100% Lear Corporation Automotive Holdings
Kft
United Technologies Automotive Philippines 99.9% Lear Corporation Automotive Holdings
(Philippines), Inc.
United Technologies Automotive (Poland) Poland 75% Lear Corporation Automotive Holdings
Sp.zo.o.
</TABLE>
<PAGE> 233
8
<TABLE>
<CAPTION>
Jurisdiction of
Name of Entity Organization Stock Ownership Record Holder
-------------- ------------ --------------- -------------
<S> <C> <C> <C>
United Technologies Automotive Mexico 99.9% Lear Corporation Automotive Holdings
Electrical Systems de Mexico, S.A. de
C.V.
United Technologies Gate Espana, S.A. Spain 99.992% Lear Corporation Automotive Holdings
UPM S.r.L. Italy 39% Gruppo Pianfei S.r.L.
UT Automotive (Netherlands) B.V. Netherlands 100% Lear Corporation Automotive Holdings
UT Automotive (Poland) Sp.zo.o. Poland 100% Lear Corporation Automotive Holdings
UT Automotive (Portugal) Components De Portugal 100% Lear Corporation Automotive Holdings
Automovies S.A.
UT Automotive Almussafes Services, S.A. Spain 99% Lear Corporation Automotive Holdings
UT Automotive Services Netherlands B.V. Netherlands 100% Lear Corporation Automotive Holdings
UT Automotive Tunisia S.A. Tunisia 99.98% Lear Corporation Automotive Holdings
UT Loewe Automotive Electronics GmbH Germany 100% Lear Corporation Automotive Holdings
UT Automotive Saerouns Service, GmbH Germany 100% Lear Corporation Automotive Holdings
Wuhan UTA-DCAC Auto Electric Company, China 75% Lear Corporation Automotive Holdings
Limited
P.T. Lear Corporation Indonesia 51% Lear Corporation
F.G. Microdesign Italy 70% Lear Corporation Automotive Holdings
</TABLE>
<PAGE> 234
SCHEDULE VII
HAZARDOUS MATERIAL
The U.S. Borrower has been identified as a potentially responsible party under
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended ("Superfund") at the Organic Chemical site in Grandville, MI,
A-1 Disposal Site in Plainwell, MI, the Thermo-Chem site in Muskegon, MI, the
Sunrise landfill in Wayland Township, MI, and the Ostego landfill in Michigan.
In addition, the U.S. Borrower has received settlement offers to resolve its
responsibility at the PCB, Inc. site in Kansas City, KS and MO ($2,500.00) and
the ABC Barrel and Drum site in Detroit, MI ($8,500.00). Although liability at
the sites has not been finalized, the Company believes that expected liability
is not material.
<PAGE> 235
SCHEDULE VIII
CONTRACTUAL OBLIGATION RESTRICTIONS
1. Indenture, dated February 1, 1994, between Lear Corporation, as Issuer
and the State Street Bank & Trust Company (as successor to the First
National Bank of Boston), as Trustee, relating to the Borrower's 8 1/4%
Subordinated Notes.
2. Indenture, dated July 1, 1996 between Lear Corporation, as Issuer, and
the Bank of New York, as Trustee, relating to the U.S. Borrower's 9
1/2% Subordinated Notes.
3. Loan Agreement between NS Beteiligungs GmbH and Industriekreditbank
AG-Deutsch Industriek.
4. Agreements and security instruments with respect to indebtedness
assumed in connection with the Acquisition and the Fiat Seat Business,
GSA, GSC, Delphi, Borealis, Masland Industries, Automotive Industries,
Keiper, Pianfei, Strapazzini, Dragui, Polovat and Ovatex acquisitions
and agreements governing indebtedness which refinance such indebtedness.
5. Loan Agreement between Lear Corporation Canada Ltd. and the Province of
Ontario, Canada relating to indebtedness of up to $2,000,000
(Canadian).
6. Loan Agreement, dated January 27, 1993, between Lear Corporation Canada
Ltd. and the Province of Ontario, Canada.
7. Industrial Facilities Agreement governing indebtedness of ASAA
Technologies, Inc. to Cumberland Plateau Planning District Commission
and Cumberland Plateau Company.
8. Mortgage loan agreements governing indebtedness and ASAA Technologies,
Inc. to Associated Lender Lakeshore N.A.
9. Agreement governing working capital Indebtedness of Lear Seating
(Indonesia) Pty Ltd. and Lear Australia Pty Ltd.
10. Term Loan Agreement between Lear Corporation and Toronto Dominion
(Texas), Inc. (as amended).
11. Term Loan Agreement between Lear Corporation and Deutsche Bank AG New
York Branch and/or Cayman Islands Branch (as amended).
<PAGE> 1
EXHIBIT 10.2
EXECUTION COPY
================================================================================
$1,400,000,000
INTERIM TERM LOAN AGREEMENT
Dated as of May 4, 1999
among
LEAR CORPORATION,
The Lenders Party Hereto,
CITICORP USA, INC.
and
CREDIT SUISSE FIRST BOSTON,
as Co-Syndication Agents,
DEUTSCHE BANK AG NEW YORK BRANCH,
as Documentation Agent,
The Other Agents Named
in Schedule IX Hereto
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
------------------------------------
CHASE SECURITIES INC.,
as Sole Book Manager and Sole Lead Arranger
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C> <C>
SECTION 1. DEFINITIONS.................................................................................1
1.1 Defined Terms.......................................................................................1
1.2 Other Definitional Provisions......................................................................19
SECTION 2. AMOUNT AND TERMS OF INTERIM TERM LOAN
COMMITMENTS.............................................................................19
2.1 Interim Term Loan Commitments......................................................................19
2.2 Repayment of Interim Term Loans; Evidence of Debt..................................................19
2.3 Procedure for Interim Term Loan Borrowing..........................................................20
SECTION 3. GENERAL PROVISIONS APPLICABLE TO INTERIM TERM LOANS..................................................21
3.1 Interest Rates and Payment Dates...................................................................21
3.2 Conversion and Continuation Options................................................................21
3.3 Minimum Amounts of Tranches........................................................................22
3.4 Optional and Mandatory Prepayments.................................................................22
3.5 Fees ...........................................................................................23
3.6 Computation of Interest............................................................................23
3.7 Inability to Determine Interest Rate...............................................................23
3.8 Pro Rata Treatment and Payments....................................................................24
3.9 Illegality.........................................................................................25
3.10 Requirements of Law...............................................................................25
3.11 Indemnity.........................................................................................27
3.12 Taxes ...........................................................................................27
3.13 Use of Proceeds...................................................................................29
SECTION 4. REPRESENTATIONS AND WARRANTIES.......................................................................29
4.1 Financial Statements...............................................................................29
4.2 No Change..........................................................................................29
4.3 Corporate Existence; Compliance with Law...........................................................29
4.4 Corporate Power; Authorization; Enforceable Obligations............................................30
4.5 No Legal Bar; Senior Debt..........................................................................30
4.6 No Material Litigation.............................................................................31
4.7 No Default.........................................................................................31
4.8 Ownership of Property; Liens.......................................................................31
4.9 Taxes ...........................................................................................31
4.10 Securities Law, etc. Compliance...................................................................32
4.11 ERISA ...........................................................................................32
4.12 Investment Company Act; Other Regulations.........................................................32
4.13 Subsidiaries, etc. ...............................................................................32
4.14 Accuracy and Completeness of Information..........................................................33
4.15 Security Documents................................................................................33
4.16 Patents, Copyrights, Permits and Trademarks.......................................................33
</TABLE>
- i -
<PAGE> 3
<TABLE>
Page
----
<S> <C> <C>
4.17 Environmental Matters.............................................................................33
4.18 Year 2000 Matters.................................................................................35
SECTION 5. CONDITIONS PRECEDENT.................................................................................35
5.1 Conditions to Closing Date.........................................................................35
5.2 Additional Conditions to Interim Term Loans........................................................37
SECTION 6. AFFIRMATIVE COVENANTS......................................................................37
6.1 Financial Statements...............................................................................37
6.2 Certificates; Other Information....................................................................38
6.3 Performance of Obligations.........................................................................39
6.4 Conduct of Business, Maintenance of Existence and Compliance with Obligations
and Laws...................................................................................39
6.5 Maintenance of Property; Insurance.................................................................39
6.6 Inspection of Property; Books and Records; Discussions.............................................39
6.7 Notices ...........................................................................................40
6.8 Maintenance of Liens of the Security Documents.....................................................41
6.9 Environmental Matters..............................................................................41
6.10 Security Documents; Guarantee Supplement..........................................................42
SECTION 7. NEGATIVE COVENANTS...................................................................................43
7.1 Financial Covenants................................................................................43
7.2 Limitation on Indebtedness.........................................................................44
7.3 Limitation on Liens................................................................................45
7.4 Limitation on Guarantee Obligations................................................................47
7.5 Limitations on Fundamental Changes.................................................................47
7.6 Limitation on Sale of Assets.......................................................................48
7.7 Limitation on Dividends............................................................................49
7.9 Limitation on Investments, Loans and Advances......................................................50
7.10 Limitation on Optional Payments and Modification of Debt Instruments; Certain
Derivative Transactions....................................................................52
7.11 Transactions with Affiliates......................................................................52
7.12 Corporate Documents...............................................................................52
7.13 Fiscal Year.......................................................................................52
7.14 Limitation on Restrictions Affecting Subsidiaries.................................................53
7.15 Special Purpose Subsidiary........................................................................53
7.16 Interest Rate Agreements..........................................................................53
SECTION 8. EVENTS OF DEFAULT....................................................................................53
SECTION 9. THE ADMINISTRATIVE AGENT; THE MANAGING
AGENTS, DOCUMENTATION AGENT AND
SYNDICATION AGENTS....................................................................56
9.1 Appointment........................................................................................56
</TABLE>
- ii -
<PAGE> 4
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
9.2 Delegation of Duties...............................................................................57
9.3 Exculpatory Provisions.............................................................................57
9.4 Reliance by Administrative Agent...................................................................57
9.5 Notice of Default..................................................................................58
9.6 Non-Reliance on Administrative Agent and Other Lender..............................................58
9.7 Indemnification....................................................................................58
9.8 Administrative Agent in its Individual Capacity....................................................59
9.9 Successor Administrative Agent.....................................................................59
9.11 Actions Under Security Documents..................................................................59
9.12 Intercreditor Agreement...........................................................................60
SECTION 10. MISCELLANEOUS.......................................................................................60
10.1 Amendments and Waivers............................................................................60
10.2 Notices...........................................................................................61
10.3 No Waiver; Cumulative Remedies....................................................................61
10.4 Survival of Representations and Warranties........................................................62
10.5 Payment of Expenses and Taxes.....................................................................62
10.6 Successors and Assigns; Participations and Assignments............................................62
10.7 Adjustments; Set-Off..............................................................................65
10.8 Intercreditor Agreement. The Administrative Agent is hereby authorized to enter into an
intercreditor agreement, in form and substance reasonably satisfactory to it, to allow up to
$75,000,000 in loans outstanding on the Closing Date and owing to Deutsche Bank AG New York
Branch and/or Cayman Islands Branch and Toronto Dominion (Texas), Inc., or their respective
affiliates, to be equally and ratably secured by the Collateral and to benefit from
guarantees from the Subsidiary Guarantors on a basis which is pari passu with the Subsidiary
Guarantee....................................................................................66
10.9 Counterparts......................................................................................66
10.10 Severability.....................................................................................66
10.11 Integration......................................................................................66
10.12 GOVERNING LAW....................................................................................66
10.13 Submission to Jurisdiction; Waivers..............................................................66
10.14 Acknowledgements.................................................................................67
10.15 WAIVERS OF JURY TRIAL............................................................................67
10.16 [Reserved].......................................................................................67
10.17 [Reserved].......................................................................................67
10.18 Release of Collateral and Guarantees.............................................................67
10.19 [Reserved].......................................................................................68
10.20 Confidentiality..................................................................................68
10.21 Conflicts........................................................................................69
</TABLE>
- iii -
<PAGE> 5
SCHEDULES:
I Commitments; Addresses
II [Reserved]
III [Reserved]
IV Security Documents
V [Reserved]
VI Subsidiaries
VII Hazardous Material
VIII Contractual Obligation Restrictions
IX Agents
EXHIBITS:
A Form of Note
B [Reserved]
C [Reserved]
D [Reserved]
E [Reserved]
F [Reserved]
G [Reserved]
H [Reserved]
I [Reserved]
J [Reserved]
K Form of Assignment and Acceptance
L Form of Opinion of Winston & Strawn
M [Reserved]
N [Reserved]
O Form of Subsidiary Guarantee
P Form of Intercreditor Agreement
Q Form of Pledge Agreement
- iv -
<PAGE> 6
INTERIM TERM LOAN AGREEMENT, dated as of May 4, 1999, among
LEAR CORPORATION, a Delaware corporation (the "Borrower"), the Managing Agents
named on Schedule IX hereof (the "Managing Agents"), the several banks and other
financial institutions from time to time parties hereto (the "Lenders"),
CITICORP USA, INC. and CREDIT SUISSE FIRST BOSTON, as co-syndication agents (the
"Co-Syndication Agents"), DEUTSCHE BANK AG NEW YORK BRANCH, as documentation
agent (the "Documentation Agent"), and THE CHASE MANHATTAN BANK, a New York
banking corporation (as hereinafter defined, the "Administrative Agent"), as
administrative agent for the Lenders hereunder.
W I T N E S S E T H :
WHEREAS, the Borrower is a party to the UT Automotive
Acquisition Agreement (as defined below) pursuant to which the Borrower (or a
Subsidiary designated by it) will consummate the UT Automotive Acquisition (as
defined below); and
WHEREAS, in order to finance a portion of the purchase price
of the UT Automotive Acquisition, the Borrower has requested the Lenders to make
available the interim term loan facility described herein, and the Lenders are
willing to make such facility available upon and subject to the terms and
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements contained herein, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following
terms shall have the following meanings:
"ABR Loans": Interim Term Loans, the rate of interest
applicable to which is based upon the Alternate Base Rate.
"Acquired Indebtedness": Indebtedness of a Person or any of
its Subsidiaries existing at the time such Person becomes a Subsidiary
of the Borrower or assumed in connection with the acquisition of assets
from such Person and not incurred by such Person in contemplation of
such Person becoming a Subsidiary of the Borrower or such acquisition,
and any refinancings thereof.
"Administrative Agent": Chase, together with its affiliates,
as arranger of the Commitments and as Administrative Agent for the
Lenders under this Agreement and the other Loan Documents, and any
successor thereto appointed pursuant to subsection 9.9.
"Affiliate": of any Person, (a) any other Person (other than a
Wholly Owned Subsidiary of such Person) which, directly or indirectly,
is in control of, is controlled by,
<PAGE> 7
2
or is under common control with, such Person or (b) any other Person
who is a director or executive officer of (i) such Person, (ii) any
Subsidiary of such Person (other than a Wholly Owned Subsidiary) or
(iii) any Person described in clause (a) above. For purposes of this
definition, a Person shall be deemed to be "controlled by" such other
Person if such other Person possesses, directly or indirectly, power
either to (A) vote 10% or more of the securities having ordinary voting
power for the election of directors of such first Person or (B) direct
or cause the direction of the management and policies of such first
Person whether by contract or otherwise.
"Agreement": this Interim Term Loan Agreement, as the same may
be amended, supplemented or otherwise modified from time to time.
"Alternate Base Rate": for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the greatest
of:
(a) the U.S. Prime Rate in effect on such day; and
(b) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1%.
If for any reason the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error) that it is
unable to ascertain the Federal Funds Effective Rate for any reason,
including the inability or failure of the Administrative Agent to
obtain sufficient quotations in accordance with the terms thereof, the
Alternate Base Rate shall be determined without regard to clause (b)
above, until the circumstances giving rise to such inability no longer
exist. Any change in the Alternate Base Rate due to a change in the
U.S. Prime Rate or the Federal Funds Effective Rate shall be effective
as of the opening of business on the effective day of such change in
the U.S. Prime Rate or the Federal Funds Effective Rate, respectively.
"Amended and Restated Credit Agreement": the Second Amended
and Restated Credit and Guarantee Agreement, dated as of May 4, 1999,
among the Borrower, certain Foreign Subsidiaries parties thereto, the
lenders parties thereto, Chase, as administrative agent, and others, as
the same may be amended, supplemented or otherwise modified from time
to time, and any Refinancing Agreement in respect thereof.
"Applicable Margin": with respect to each day, the rate per
annum based on the Ratings in effect on such day, as set forth under
the relevant column heading below:
<TABLE>
<CAPTION>
Rating Applicable Margin
------ -----------------
<S> <C>
Rating I .75%
Rating II 1.00%
</TABLE>
<PAGE> 8
3
<TABLE>
<S> <C>
Rating III 1.25%;
</TABLE>
provided, that during the period from the Closing Date until the date
on which the Borrower delivers to the Lenders its financial statements
and related compliance certificate for the fiscal quarter ending
September 30, 1999 pursuant to subsections 6.1 and 6.2, the Applicable
Margin shall be that set forth above opposite Rating III.
"Asset Sale": any sale, lease, transfer or other disposition
(or series of related sales, leases, transfers or other dispositions)
of assets which yields Net Cash Proceeds to the Borrower or any of its
Subsidiaries in excess of $100,000,000; provided, that any sale, lease,
transfer or other disposition permitted by paragraphs (a) through (i)
of subsection 7.6 shall not constitute an Asset Sale.
"Assignee": as defined in subsection 10.6(c).
"Benefitted Lender": as defined in subsection 10.7.
"Board": the Board of Governors of the Federal Reserve System
(or any successor thereto).
"Bond Guarantee": the guarantee entered into by any Subsidiary
Guarantor in respect of up to an aggregate principal amount of
$1,400,000,000 of senior unsecured debt securities to be issued by the
Borrower, all or a portion of the proceeds of which will be used to
repay in full the Interim Term Loans.
"Borrower": as defined in the preamble hereto.
"Business Day": any day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or
required by law to close.
"Capital Stock": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person
(other than a corporation) and any and all warrants, rights or options
to purchase any of the foregoing.
"Cash Equivalents": (a) securities issued or unconditionally
guaranteed or insured by the United States Government or the Canadian
Government or any agency or instrumentality thereof having maturities
of not more than twelve months from the date of acquisition, (b)
securities issued or unconditionally guaranteed or insured by any state
of the United States of America or province of Canada or any agency or
instrumentality thereof having maturities of not more than twelve
months from the date of acquisition and having one of the two highest
ratings obtainable from either S&P or Moody's, (c) time deposits,
certificates of deposit and bankers' acceptances having maturities of
not more than twelve months from the date of acquisition, in each case
with any Lender or with any commercial bank organized under the laws of
the United States of America or any state
<PAGE> 9
4
thereof or the District of Columbia, Japan, Canada or any member of the
European Economic Community or any U.S. branch of a foreign bank having
at the date of acquisition capital and surplus of not less than
$100,000,000, (d) repurchase obligations with a term of not more than
seven days for underlying securities of the types described in clauses
(a), (b) and (c) entered into with any bank meeting the qualifications
specified in clause (c) above, (e) commercial paper issued by the
parent corporation of any Lender and commercial paper rated, at the
time of acquisition, at least A-1 or the equivalent thereof by S&P or
P-1 or the equivalent thereof by Moody's and in either case maturing
within twelve months after the date of acquisition, (e) deposits
maintained with money market funds having total assets in excess of
$300,000,000, (f) demand deposit accounts maintained in the ordinary
course of business with banks or trust companies, (g) temporary
deposits, of amounts received in the ordinary course of business
pending disbursement of such amounts, in demand deposit accounts in
banks outside the United States and (h) deposits in mutual funds which
invest substantially all of their assets in preferred equities issued
by U.S. corporations rated at least AA (or the equivalent thereof) by
S&P.
"Chase": The Chase Manhattan Bank, a New York banking
corporation.
"Closing Date": the date on which all of the conditions
precedent set forth in subsection 5.1 shall have been satisfied or
waived and the Interim Term Loans are made.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Borrower within
the meaning of Section 4001 of ERISA or is part of a group which
includes the Borrower and which is treated as a single employer under
Section 414 of the Code.
"Consolidated Assets": at a particular date, all amounts which
would be included under total assets on a consolidated balance sheet of
the Borrower and its Subsidiaries as at such date, determined in
accordance with GAAP.
"Consolidated Indebtedness": at a particular date, all
Indebtedness of the Borrower and its Subsidiaries which would be
included under indebtedness on a consolidated balance sheet of the
Borrower and its Subsidiaries as at such date, determined in accordance
with GAAP, less any cash of the Borrower and its Subsidiaries as at
such date.
"Consolidated Interest Expense": for any fiscal period, the
amount which would, in conformity with GAAP, be set forth opposite the
caption "interest expense" (or any like caption) on a consolidated
income statement of the Borrower and its Subsidiaries for such period;
provided, that Consolidated Interest Expense for any period shall (a)
exclude (i) fees payable in respect of such period under subsection 3.5
of this Agreement and similar fees payable in respect of such period
under the Other Credit Agreements, and (ii)
<PAGE> 10
5
any amortization or write-off of deferred financing fees during such
period and (b) include any interest income during such period.
"Consolidated Net Income": for any fiscal period, the
consolidated net income (or deficit) of the Borrower and its
Subsidiaries for such period (taken as a cumulative whole), determined
in accordance with GAAP; provided that (a) any provision for
post-retirement medical benefits, to the extent such provision
calculated under FAS 106 exceeds actual cash outlays calculated on the
"pay as you go" basis, shall not to be taken into account, and (b)
there shall be excluded (i) the income (or deficit) of any Person
accrued prior to the date it becomes a Subsidiary or is merged into or
consolidated with the Borrower or any Subsidiary, (ii) the income (or
deficit) of any Person (other than a Subsidiary) in which the Borrower
or any Subsidiary has an ownership interest, except to the extent that
any such income has been actually received by the Borrower or such
Subsidiary in the form of dividends or similar distributions, (iii) the
undistributed earnings of any Subsidiary to the extent that the
declaration or payment of dividends or similar distributions by such
Subsidiary is not at the time permitted by the terms of any Contractual
Obligation or Requirement of Law (other than (a) prior to January 1,
2000, any Contractual Obligation or Requirement of Law in effect on the
Closing Date affecting Subsidiaries acquired in the UT Automotive
Acquisition, and (b) any Requirement of Law of Germany) applicable to
such Subsidiary, and (iv) in the case of a successor to the Borrower or
any Subsidiary by consolidation or merger or as a transferee of its
assets, any earnings of the successor corporation prior to such
consolidation, merger or transfer of assets; provided, further that the
exclusions in clauses (i) and (iv) of this definition shall not apply
to the mergers or consolidations of the Borrower or its Subsidiaries
with their respective Subsidiaries.
"Consolidated Operating Profit": for any fiscal period,
Consolidated Net Income for such period excluding (a) extraordinary
gains and losses arising from the sale of material assets and other
extraordinary and/or non-recurring gains and losses (including the
restructuring and related charges in the amount of $133,000,000
recorded by the Borrower in the fourth quarter of fiscal year 1998),
(b) charges, premiums and expenses associated with the discharge of
Indebtedness, (c) charges relating to FAS 106, (d) license fees (and
any write-offs thereof), (e) stock compensation expense, (f) deferred
financing fees (and any write-offs thereof), (g) write-offs of
goodwill, (h) foreign exchange gains and losses, (i) miscellaneous
income and expenses and (j) miscellaneous gains and losses arising from
the sale of assets plus, to the extent deducted in determining
Consolidated Net Income, the excess of (i) the sum of (A) Consolidated
Interest Expense, (B) any expenses for taxes, (C) depreciation and
amortization expense and (D) minority interests in income of
Subsidiaries over (ii) net equity earnings in Affiliates (excluding
Subsidiaries). For purposes of calculating the ratio set forth in
subsection 7.1(b), Consolidated Operating Profit for any fiscal period
shall in any event include the Consolidated Operating Profit for such
fiscal period of any entity acquired by the Borrower or any of its
Subsidiaries during such period; and for purposes of calculating the
ratio set forth in subsections 7.1(a) and 10.18 for the periods of four
consecutive fiscal quarters ending on or about 6/30/99, 9/30/99,
12/31/99 and 3/31/00, Consolidated
<PAGE> 11
6
Operating Profit shall include the Consolidated Operating Profit during
such periods of the entities acquired by the Borrower in the UT
Automotive Acquisition.
"Consolidated Revenues": for any fiscal period, the
consolidated revenues of the Borrower and its Subsidiaries for such
period, determined in accordance with GAAP.
"Continuing Directors": the directors of the Borrower on the
Closing Date and each other director, if such other director's
nomination for election to the Board of Directors of the Borrower is
recommended by a majority of the then Continuing Directors.
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
undertaking to which such Person is a party or by which it or any of
its property is bound.
"Co-Syndication Agents": as defined in the preamble hereto.
"CSI": Chase Securities Inc.
"Currency Agreement": any foreign exchange contract, currency
swap agreement, futures contract, option contract, synthetic cap or
other similar agreement or arrangement designed to protect the Borrower
or any Subsidiary against fluctuations in currency values.
"Currency Agreement Obligations": all obligations of the
Borrower or any Subsidiary to any financial institution under any one
or more Currency Agreements.
"Default": any of the events specified in Section 8, whether
or not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Documentation Agent": as defined in the preamble hereto.
"Dollars", "U.S. Dollars" and "$": dollars in lawful currency
of the United States of America.
"Domestic Loan Party": each Loan Party that is organized under
the laws of any jurisdiction of the United States.
"Domestic Pledge Agreements": the collective reference to all
Pledge Agreements pursuant to which the Capital Stock of any Domestic
Subsidiary is pledged.
"Domestic Subsidiary": any Subsidiary other than a Foreign
Subsidiary.
<PAGE> 12
7
"Environmental Complaint": any complaint, order, citation,
notice or other written communication from any Person with respect to
the existence or alleged existence of a violation of any Environmental
Laws or legal liability resulting from air emissions, water discharges,
noise emissions, Hazardous Material or any other environmental, health
or safety matter.
"Environmental Laws": any and all applicable Federal, foreign,
state, provincial, local or municipal laws, rules, orders, regulations,
statutes, ordinances, codes, decrees, requirements of any Governmental
Authority and any and all common law requirements, rules and bases of
liability regulating, relating to or imposing liability or standards of
conduct concerning pollution or protection of the environment or the
Release or threatened Release of Hazardous Materials, as now or
hereafter in effect.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"Eurocurrency Liabilities": at any time, the aggregate of the
rates (expressed as a decimal fraction) of any reserve requirements in
effect at such time (including, without limitation, basic,
supplemental, marginal and emergency reserves under any regulations of
the Board or other Governmental Authority having jurisdiction with
respect thereto) dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as "Eurocurrency
Liabilities" in Regulation D of the Board) maintained by a member bank
of the Federal Reserve System.
"Eurodollar Loans": Interim Term Loans, the rate of interest
applicable to which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each Interest Period
pertaining to a Eurodollar Loan, the rate per annum equal to the
average (rounded upward to the nearest 1/16th of 1%) of the respective
rates notified to the Administrative Agent by each of the U.S.
Reference Lenders as the rate at which such U.S. Reference Lender is
offered Dollar deposits at or about 10:00 a.m., New York City time, two
Business Days prior to the beginning of such Interest Period,
(a) in the interbank eurodollar market where the
eurodollar and foreign currency exchange operations in respect
of its Eurodollar Loans then are being conducted,
(b) for delivery on the first day of such Interest
Period,
(c) for the number of days contained therein, and
(d) in an amount comparable to the amount of its
Eurodollar Loan to be outstanding during such Interest Period.
<PAGE> 13
"Event of Default": any of the events specified in Section 8,
provided that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"Exchange Act": the Securities Exchange Act of 1934, as
amended.
"Federal Funds Effective Rate": for any day, the weighted
average of the rates per annum on overnight federal funds transactions
with members of the Federal Reserve System arranged by federal funds
brokers, as published on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for
the day of such transactions received by the Administrative Agent from
three federal funds brokers of recognized standing selected by it.
"Financing Lease": (a) any lease of property, real or
personal, the obligations under which are capitalized on a consolidated
balance sheet of the Borrower and its Subsidiaries and (b) any other
such lease to the extent that the then present value of the minimum
rental commitment thereunder should, in accordance with GAAP, be
capitalized on a balance sheet of the lessee.
"Foreign Subsidiaries": each of the Subsidiaries so designated
on Schedule VI and any Subsidiaries organized outside the United States
which are created or acquired after the effectiveness hereof.
"GAAP": generally accepted accounting principles in the United
States of America in effect from time to time.
"Governmental Authority": any nation or government, any state,
province or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Guarantee Obligation": as to any Person, any obligation of
such Person guaranteeing or in effect guaranteeing any Indebtedness,
leases, dividends or other obligations (the "primary obligations") of
any other Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any obligation
of such Person, whether or not contingent (a) to purchase any such
primary obligation or any property constituting direct or indirect
security therefor, (b) to advance or supply funds (i) for the purchase
or payment of any such primary obligation or (ii) to maintain working
capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of the primary obligor, (c) to
purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation or (d)
otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided, however, that the
term Guarantee Obligation shall not include endorsements of instruments
for deposit or collection in the ordinary course of business. The
amount of
<PAGE> 14
9
any Guarantee Obligation shall be deemed to be an amount equal to the
value as of any date of determination of the stated or determinable
amount of the primary obligation in respect of which such Guarantee
Obligation is made (unless such Guarantee Obligation shall be expressly
limited to a lesser amount, in which case such lesser amount shall
apply) or, if not stated or determinable, the value as of any date of
determination of the maximum reasonably anticipated liability in
respect thereof as determined by such Person in good faith.
"Guarantor Supplement": a supplement to the Subsidiary
Guarantee, substantially in the form of Annex A to the Subsidiary
Guarantee, whereby a Subsidiary of the Borrower becomes a "Guarantor"
under the Subsidiary Guarantee.
"Hazardous Materials": any solid wastes, toxic or hazardous
substances, materials or wastes, defined, listed, classified or
regulated as such in or under any Environmental Laws, including,
without limitation, asbestos, petroleum or petroleum products
(including gasoline, crude oil or any fraction thereof),
polychlorinated biphenyls, and urea- formaldehyde insulation, and any
other substance the presence of which may give rise to liability under
any Environmental Law.
"Indebtedness": of a Person, at a particular date, the sum
(without duplication) at such date of (a) indebtedness for borrowed
money or for the deferred purchase price of property or services in
respect of which such Person is liable as obligor, (b) indebtedness
secured by any Lien on any property or asset owned or held by such
Person regardless of whether the indebtedness secured thereby shall
have been assumed by or is a primary liability of such Person, (c)
obligations of such Person under Financing Leases, (d) the face amount
of all letters of credit issued for the account of such person and,
without duplication, the unreimbursed amount of all drafts drawn
thereunder and (e) obligations (in the nature of principal or interest)
of such Person in respect of acceptances or similar obligations issued
or created for the account of such Person; but excluding (i) trade and
other accounts payable in the ordinary course of business in accordance
with customary trade terms and which are not overdue for more than 120
days or, if overdue for more than 120 days, as to which a dispute
exists and adequate reserves in conformity with GAAP have been
established on the books of such Person, (ii) deferred compensation
obligations to employees and (iii) any obligations otherwise
constituting Indebtedness the payment of which such Person has provided
for pursuant to the terms of such Indebtedness or any agreement or
instrument pursuant to which such Indebtedness was incurred, by the
irrevocable deposit in trust of an amount of funds or a principal
amount of securities, which deposit is sufficient, either by itself or
taking into account the accrual of interest thereon, to pay the
principal of and interest on such obligations when due.
"Industrial Revenue Bonds": industrial revenue bonds issued
for the benefit of the Borrower or its Subsidiaries and in respect of
which the U.S. Borrower or its Subsidiaries will be the source of
repayment.
<PAGE> 15
10
"Insolvency": with respect to any Multiemployer Plan, the
condition that such
Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intercreditor Agreement": the Intercreditor Agreement,
substantially in the form of Exhibit P, to be entered into pursuant to
subsection 10.8, as amended or otherwise modified from time to time.
"Interest Payment Date": (a) as to any ABR Loan, the last day
of each March, June, September and December to occur while such Loan is
outstanding, (b) as to any Eurodollar Loan having an Interest Period of
three months or less, the last day of such Interest Period and (c) as
to any Eurodollar Loan having an Interest Period longer than three
months, (i) each day which is three months, or a whole multiple
thereof, after the first day of such Interest Period and (ii) the last
day of such Interest Period.
"Interest Period": with respect to any Eurodollar Loan:
(a) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such Eurodollar
Loan and ending one, two, three or six months thereafter, and if
deposits for such longer Interest Periods are available to all Lenders
(as determined by the Lenders), nine or twelve months thereafter, as
selected by the Borrower in its notice of borrowing or notice of
conversion, as the case may be, given with respect thereto; and
(b) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Eurodollar Loan and
ending one, two, three or six months thereafter, and if deposits for
such longer Interest Periods are available to all Lenders (as
determined by the Lenders), nine or twelve months thereafter, as
selected by the Borrower by irrevocable notice to the Administrative
Agent not less than three Business Days prior to the last day of the
then current Interest Period with respect thereto;
provided that all of the foregoing provisions relating to Interest
Periods are subject to the following:
(i) if any Interest Period would otherwise end
on a day that is not a Business Day, such Interest Period
shall be extended to the next succeeding Business Day unless
the result of such extension would be to carry such Interest
Period into another calendar month in which event such
Interest Period shall end on the immediately preceding
Business Day;
(ii) any Interest Period that would otherwise
extend beyond the Maturity Date shall end on the Maturity
Date; and
<PAGE> 16
11
(iii) any 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 at the end of such Interest Period) shall end on the
last Business Day of a calendar month.
"Interest Rate Agreement": any interest rate protection
agreement, interest rate swap or other interest rate hedge arrangement
(other than any interest rate cap or other similar agreement or
arrangement pursuant to which the Borrower has no credit exposure), to
or under which the Borrower or any of its Subsidiaries is a party or a
beneficiary.
"Interest Rate Agreement Obligations": all obligations of the
Borrower or any Subsidiary to any financial institution under any one
or more Interest Rate Agreements.
"Interim Term Loan": as defined in subsection 2.1.
"Interim Term Loan Commitment": as to any Lender at any time,
its obligation to make an Interim Term Loan to the Borrower in a
principal amount not to exceed the amount set forth opposite such
Lender's name in Schedule I.
"Investment Grade Status": shall exist at any time when the
actual or implied rating of the Borrower's senior long-term unsecured
debt is at or above BBB- from S&P and at or above Baa3 from Moody's; if
either of S&P or Moody's shall change its system of classifications
after the date of this Agreement, Investment Grade Status shall exist
at any time when the actual or implied rating of the Borrower's senior
long-term unsecured debt is at or above the new rating which most
closely corresponds to the above-specified level under the previous
rating system.
"Lear Germany": Lear Corporation Beteiligungs GmbH.
"Lenders": as defined in the preamble hereto, provided that no
Person shall become a "Lender" hereunder after the Closing Date without
compliance with subsection 10.6(c).
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), or
preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement or
any Financing Lease having substantially the same economic effect as
any of the foregoing).
"Loan Documents": the collective reference to this Agreement,
any Notes and the Security Documents.
<PAGE> 17
12
"Loan Parties": the collective reference to the Borrower, each
guarantor or grantor party to any Security Document and each issuer of
pledged stock under each Pledge Agreement.
"Majority Lenders": (a) at any time prior to the Closing Date,
Lenders holding more than 50% of the amount of the Interim Term Loan
Commitments and (b) at any time after the Closing Date, Lenders holding
more than 50% of the principal amount of the outstanding Interim Term
Loans.
"Managing Agents": as defined on Schedule IX.
"Material Subsidiary": each Loan Party and any other
Subsidiary which (a) for the most recent fiscal year of the Borrower
accounted for more than 10% of Consolidated Revenues or (b) as of the
end of such fiscal year, was the owner of more than 10% of Consolidated
Assets, all as shown on the consolidated financial statements of the
Borrower for such fiscal year.
"Maturity Date": May 3, 2000.
"Moody's": Moody's Investors Service, Inc. or any successor
thereto.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": (a) in connection with any Asset Sale or
any Recovery Event, the proceeds thereof in the form of cash and Cash
Equivalents (including any such proceeds received by way of deferred
payment of principal pursuant to a note or installment receivable or
purchase price adjustment receivable or otherwise, but only as and when
received) of such Asset Sale or Recovery Event, net of attorneys' fees,
accountants' fees, investment banking fees, amounts required to be
applied to the repayment of Indebtedness secured by a Lien permitted
hereunder on any asset which is the subject of such Asset Sale or
Recovery Event (other than any Lien pursuant to a Security Document)
and other customary fees and expenses actually incurred in connection
therewith and net of taxes paid or reasonably estimated to be payable
as a result thereof, and (b) in connection with any issuance or sale of
equity securities or debt securities or instruments or the incurrence
of loans, the cash proceeds received from such issuance or incurrence,
net of attorneys' fees, investment banking fees, accountants' fees,
underwriting discounts and commissions and other customary fees and
expenses actually incurred in connection therewith.
"Net Proceeds": shall mean the gross proceeds received by the
Borrower or any Subsidiary from a sale or other disposition of any
asset of the Borrower or such Subsidiary less (a) all reasonable fees,
commissions and other out-of-pocket expenses incurred by the Borrower
or such Subsidiary in connection therewith, (b) Federal, state, local
and foreign taxes assessed in connection therewith and (c) the
principal amount,
<PAGE> 18
13
accrued interest and any related prepayment fees of any Indebtedness
(other than the Loans) which is secured by any such asset and which is
required to be repaid in connection with the sale thereof.
"New Revolving Credit Agreement": the Revolving Credit and
Term Loan Agreement, dated as of May 4, 1999, among the Borrower,
certain of its Foreign Subsidiaries, the lenders parties thereto,
Chase, as administrative agent, and others, as the same may be amended,
supplemented or otherwise modified from time to time, and any
Refinancing Agreement in respect thereof.
"9 1/2% Subordinated Note Indenture": the Indenture dated as
of July 1, 1996, between the Borrower and The Bank of New York, as
trustee, as the same may be amended, supplemented or otherwise modified
from time to time in accordance with subsection 7.10.
"9 1/2% Subordinated Notes": the 9 1/2% Subordinated Notes of
the Borrower due 2006, issued pursuant to the 9 1/2% Subordinated Note
Indenture.
"Note": as defined in subsection 2.2.
"Obligations": collectively, the unpaid principal of and
interest on the Interim Term Loans, Interest Rate Agreement Obligations
to any Lender, Currency Agreement Obligations to any Lender and all
other obligations and liabilities of the Borrower under or in
connection with this Agreement and the other Loan Documents (including,
without limitation, interest accruing at the then applicable rate
provided in this Agreement or any other applicable Loan Document after
the maturity of the Interim Term Loans and interest accruing at the
then applicable rate provided in this Agreement or any other applicable
Loan Document after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding,
relating to the Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding), whether direct
or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in
connection with, this Agreement, the Notes, the other Loan Documents or
any other document made, delivered or given in connection therewith, in
each case whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses or otherwise
(including, without limitation, all fees and disbursements of counsel
to the Administrative Agent or to the Lenders that are required to be
paid by the Borrower pursuant to the terms of this Agreement or any
other Loan Document).
"Other Credit Agreements": the collective reference to the New
Revolving Credit Agreement and the Amended and Restated Credit
Agreement.
"Participants": as defined in subsection 10.6(b).
<PAGE> 19
14
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Person": an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which
is covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"Pledge Agreements": the collective reference to the Pledge
Agreements listed in Schedule IV and each other pledge agreement or
similar agreement that may be delivered to the Administrative Agent as
collateral security for any or all of the Obligations of the Borrower
hereunder, and the obligations of the Borrower under the Other Credit
Agreements, in each case as such Pledge Agreements or similar
agreements may be amended, supplemented or otherwise modified from time
to time.
"Pledged Stock": as defined in each of the Pledge Agreements.
"Property": each parcel of real property owned or operated by
the Borrower and its Subsidiaries.
"Proprietary Rights": as defined in subsection 4.16.
"Rating": the respective actual or implied rating of each of
the Rating Agencies applicable to the long-term senior unsecured debt
of the Borrower, as announced by the Rating Agencies from time to time.
"Rating Agencies": collectively, S&P and Moody's.
"Rating Category": each of Rating I, Rating II and Rating III.
"Rating I, Rating II and Rating III": the respective Ratings
set forth below:
<TABLE>
<CAPTION>
Rating
Category S&P Moody's
-------- --- -------
<S> <C> <C> <C>
Rating I greater than or greater than or
equal to BBB equal to Baa2
Rating II BBB- Baa3
Rating III lower than or equal lower than or equal
</TABLE>
<PAGE> 20
15
<TABLE>
<S> <C> <C>
to BB+ to Ba1
</TABLE>
; provided, that (i) if on any day the Ratings of the Rating Agencies
do not fall in the same Rating Category, the Rating Category of the
higher of such Ratings shall be
applicable for such day, (ii) if on any day the Rating of only one of
the Rating Agencies is available, then the Rating Category of such
Rating shall be applicable for such day and (iii) if on any day a
Rating is available from neither of the Rating Agencies, then Rating
III shall be applicable for such day. Any change in the applicable
Rating Category resulting from a change in the Rating of a Rating
Agency shall become effective on the date such change is publicly
announced by such Rating Agency. If at any time either of the Rating
Agencies shall change its system of classifications, the Ratings set
forth for each Rating Category shall be adjusted to correspond to the
new system of classifications.
"Receivable Financing Transaction": any transaction or series
of transactions involving a sale for cash of accounts receivable,
without recourse based upon the collectibility of the receivables sold,
by the Borrower or any of its Subsidiaries to a Special Purpose
Subsidiary and a subsequent sale or pledge of such accounts receivable
(or an interest therein) by such Special Purpose Subsidiary, in each
case without any guarantee by the Borrower or any of its Subsidiaries
(other than the Special Purpose Subsidiary).
"Recovery Event": the receipt by the Borrower or any of its
Subsidiaries of any insurance or any condemnation proceeds (i) by
reason of any theft, physical destruction or damage with respect to any
properties or assets of the Borrower or any of its Subsidiaries or (ii)
by reason of any condemnation, taking or similar event with respect to
any properties or assets of the Borrower or any of its Subsidiaries, in
each case which yields Net Cash Proceeds to the Borrower or any of its
Subsidiaries in excess of $100,000,000.
"Refinancing Agreement": with respect to the Amended and
Restated Credit Agreement or the New Revolving Credit Agreement, as the
case may be, a successor agreement satisfying the following criteria:
(a) such successor agreement refinances in whole, and replaces the
commitments under, the Amended and Restated Credit Agreement or the New
Revolving Credit Agreement, as the case may be, (b) either (i) the
covenants, representations and warranties and events of default set
forth in such successor agreement shall be equivalent to the
corresponding provisions set forth in the Amended and Restated Credit
Agreement or the New Revolving Credit Agreement, as the case may be or
(ii) to the extent such provisions are more restrictive on the Borrower
and its Subsidiaries than the provisions of this Agreement, the
Borrower shall, contemporaneously with entering into such Refinancing
Agreement, enter into with the Administrative Agent an amendment to
this Agreement reasonably satisfactory to the Administrative Agent
pursuant to which such more restrictive provisions shall be
incorporated herein (the Lenders hereby authorizing the Administrative
Agent to enter into such amendment), (c) such successor agreement shall
not be guaranteed by any Person other than the Subsidiary Guarantors
pursuant to the Subsidiary Guarantee and, if
<PAGE> 21
16
applicable, the Borrower and shall not be secured except pursuant to
the Security Documents and (d) the lenders under such successor
agreement (or an agent for such lenders) shall have entered into an
intercreditor agreement with the Administrative Agent, in form and
substance reasonably satisfactory to the Administrative Agent, which
shall, in any event, contain customary indemnities, liability
limitations, exculpation provisions and other customary protective
provisions in favor of the Administrative Agent, in its capacity as
Agent under (and as defined in) the Subsidiary Guarantee and the
Security Documents, substantially equivalent to those set forth in the
corresponding provisions of the Amended and Restated Credit Agreement
or the New Revolving Credit Agreement, as the case may be.
"Register": as defined in subsection 10.6(d).
"Release" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, escaping, leaking, dumping, disposing,
spreading, depositing or dispersing of any Hazardous Materials in, unto
or onto the environment.
"Release Status": shall exist at any time when the actual or
implied rating of the . Borrower's senior long-term unsecured debt is
at or above BBB- from S&P or at or above Baa3 from Moody's; if either
of S&P or Moody's shall change its system of classifications after the
date of this Agreement, Release Status shall exist at any time when the
actual or implied rating of the Borrower's senior long-term unsecured
debt is at or above the new rating which most closely corresponds to
the above-specified level under the previous rating system.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the thirty day
notice period is waived under any of subsections .13, .14, .16, .18,
.19 or .20 of PBGC Reg. ss. 4043 or any successor regulation thereto.
"Requirement of Law": as to (a) any Person, the certificate of
incorporation and by-laws or the partnership or limited partnership
agreement or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject, and (b) any
property, any law, treaty, rule, regulation, requirement, judgment,
decree or determination of any Governmental Authority applicable to or
binding upon such property or to which such property is subject,
including, without limitation, any Environmental Laws.
<PAGE> 22
17
"Responsible Officer": with respect to any Loan Party, the
chief executive officer, the president, the chief financial officer,
any vice president, the treasurer or the assistant treasurer of such
Loan Party.
"Securities Act": the Securities Act of 1933, as amended.
"Securities Offering": the sale of Capital Stock or debt
securities of the Borrower pursuant to a public offering, Rule 144A or
a private placement, in either case that results in Net Cash Proceeds
to the Borrower of at least $100,000,000.
"Security Documents": the collective reference to the Pledge
Agreements, the Subsidiary Guarantee and each other guarantee, security
document or similar agreement that may be delivered to the
Administrative Agent as collateral security for any or all of the
Obligations, in each case as amended, supplemented or otherwise
modified from time to time, including, without limitation, to give
effect to any Refinancing Agreement permitted hereunder.
"Single Employer Plan": any Plan which is covered by Title IV
of ERISA, but which is not a Multiemployer Plan.
"S&P": Standard & Poor's Ratings Group or any successor
thereto.
"Special Affiliate": any Affiliate of the Borrower (a) as to
which the Borrower holds, directly or indirectly, (i) power to vote 20%
or more of the securities having ordinary voting power for the election
of directors of such Affiliate or (ii) a 20% ownership interest in such
Affiliate and (b) which is engaged in business of the same or related
general type as now being conducted by the Borrower and its
Subsidiaries.
"Special Entity": any Person which is engaged in business of
the same or related general type as now being conducted by the Borrower
and its Subsidiaries.
"Special Purpose Subsidiary": any Wholly Owned Subsidiary of
the Borrower created by the Borrower for the sole purpose of
facilitating a Receivable Financing Transaction.
"Subordinated Debt": any obligations (for principal, interest
or otherwise) evidenced by or arising under or in respect of the
Subordinated Notes and the 9 1/2% Subordinated Notes.
"Subordinated Debt Indentures": the collective reference to
the Subordinated Note Indenture and the 9 1/2% Subordinated Note
Indenture.
"Subordinated Note Indenture": the Indenture, dated as of
February 1, 1994, between the Borrower and State Street Bank and Trust
Company (as successor to The
<PAGE> 23
18
First National Bank of Boston), as trustee, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with
subsection 7.10.
"Subordinated Notes": the 8 1/4% Subordinated Notes of the
Borrower due 2002, issued pursuant to the Subordinated Note Indenture.
"Subsidiary": as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests
having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the
time owned, or the management of which is otherwise controlled,
directly or indirectly, through one or more intermediaries, or both, by
such Person (exclusive of any Affiliate in which such Person has a
minority ownership interest). Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement
shall refer to a Subsidiary or Subsidiaries of the Borrower.
"Subsidiary and Secured Indebtedness": the collective
reference (without duplication) to (a) any Indebtedness of any
Subsidiary, other than Indebtedness permitted by paragraphs (a) through
(e) of subsection 7.2, (b) any Guarantee Obligation of any Subsidiary,
other than Guarantee Obligations permitted by paragraph (a) through (e)
of subsection 7.4, (c) any Indebtedness or Guarantee Obligation of any
Person that is secured by any Lien on any property, assets or revenues
of the Borrower or any of its Subsidiaries, other than Liens permitted
by paragraphs (a) through (n) of subsection 7.3. For purposes of clause
(b) of the preceding sentence, the amount of any Guarantee Obligation
shall be determined as set forth in the definition of "Guarantee
Obligation" in this subsection 1.1; and for purposes of clause (c) of
the preceding sentence, the amount of any Indebtedness or Guarantee
Obligation that is secured by a Lien on any property, assets or
revenues of the Borrower or any of its Subsidiaries shall equal the
lesser of (x) the amount of any such Indebtedness or Guarantee
Obligation and (y) the fair market value as of the date of
determination of the property, assets or revenues subject to such Lien.
At any time of determination, the amount of Subsidiary and Secured
Indebtedness outstanding shall be determined without duplication of any
other Subsidiary and Secured Indebtedness then outstanding.
"Subsidiary Guarantee": the Subsidiary Guarantee, dated as of
the date hereof, made by certain Subsidiaries of the Borrower in favor
of the Administrative Agent, substantially in the form of Exhibit O, as
the same may be amended, supplemented or otherwise modified from time
to time.
"Subsidiary Guarantor": each Subsidiary that is a guarantor
party to the Subsidiary Guarantee, so long as the Subsidiary Guarantee
remains in effect.
"Taxes": as defined in subsection 3.12(a).
<PAGE> 24
19
"Tranche": the collective reference to Eurodollar Loans, the
then current Interest Periods with respect to all of which begin on the
same date and end on the same later date (whether or not such
Eurodollar Loans shall originally have been made on the same day).
"Transferee": as defined in subsection 10.6(f).
"Type": as to any Interim Term Loan, its nature as an ABR Loan
or a Eurodollar Loan.
"U.S. Prime Rate": the rate of interest per annum publicly
announced from time to time by the Administrative Agent as its prime
rate in effect at its principal office in New York City. The U.S. Prime
Rate is not intended to be the lowest rate of interest charged by the
Administrative Agent in connection with extensions of credit to
borrowers.
"U.S. Reference Lenders": Chase and The Bank of Nova Scotia.
"UT Automotive Acquisition": the acquisition by the Borrower
(or a Subsidiary as its designee) of the capital stock of Lear
Corporation Automotive Holdings, a Delaware corporation formerly known
as UT Automotive, Inc., and certain related entities, pursuant to the
UT Automotive Acquisition Agreement.
"UT Automotive Acquisition Agreement": the Stock Purchase
Agreement, dated as of March 16, 1999, between Nevada Bond Investment
Corp. II, a Nevada corporation, as Seller, and the Borrower (or a
Subsidiary as its designee), as Buyer, as amended, supplemented or
otherwise modified, and certain related agreements.
"Wholly Owned Subsidiary": as to any Person, a corporation,
partnership or other entity of which (a) 100% of the common capital
stock or other ownership interests of such corporation, partnership or
other entity or (b) more than 95% of the common capital stock or other
ownership interests of such corporation, partnership or other entity
where the portion of the common capital stock or other ownership
interests not held by such Person is held by other Persons to satisfy
applicable legal requirements, is owned, directly or indirectly, by
such Person; provided, however, that so long as the Borrower owns,
directly or indirectly, more than 95% of the capital stock of Lear
Italia, Lear Italia shall be deemed a Wholly Owned Subsidiary of the
Borrower.
1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in the Notes, the other Loan Documents or any certificate or
other document made or delivered pursuant hereto.
(b) As used herein and in the Notes and any other Loan
Document, and any certificate or other document made or delivered pursuant
hereto or thereto, accounting terms relating to the Borrower and its
Subsidiaries not defined in subsection 1.1 and accounting terms
<PAGE> 25
20
partly defined in subsection 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF INTERIM TERM LOAN
COMMITMENTS
2.1 Interim Term Loan Commitments. (a) Subject to the terms
and conditions hereof, each Lender severally agrees to make a term loan (each,
an "Interim Term Loan") in U.S. Dollars to the Borrower on the Closing Date in a
principal amount not exceeding the Interim Term Loan Commitment of such Lender.
(b) The Interim Term Loans may from time to time be (i)
Eurodollar Loans, (ii) ABR Loans or (iii) a combination thereof, as determined
by the Borrower and notified to the Administrative Agent in accordance with
subsections 2.3 and 3.2.
2.2 Repayment of Interim Term Loans; Evidence of Debt. (a) The
Borrower hereby unconditionally promises to pay to the Administrative Agent for
the account of each Lender the then unpaid principal amount of the Interim Term
Loan of such Lender on the Maturity Date and on such other date(s) and in such
other amounts as may be required from time to time pursuant to this Agreement.
The Borrower hereby further agrees to pay interest on the unpaid principal
amount of the Interim Term Loans from time to time outstanding until payment
thereof in full at the rates per annum, and on the dates, set forth in
subsection 3.1.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the Borrower to such
Lender resulting from the Interim Term Loan of such Lender from time to time,
including the amounts of principal and interest payable thereon and paid to such
Lender from time to time under this Agreement.
(c) The Administrative Agent shall maintain the Register
pursuant to subsection 10.6(d), and a subaccount therein for each Lender, in
which shall be recorded (i) the date and amount of the Interim Term Loan of each
Lender made hereunder, the Type thereof and each Interest Period applicable
thereto, (ii) the date of each continuation thereof pursuant to subsection 3.2,
(iii) the date of each conversion of all or a portion thereof to another Type
pursuant to subsection 3.2, (iv) the date and amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder in respect of the Interim Term Loans and (v) both the date and
amount of any sum received by the Administrative Agent
<PAGE> 26
21
hereunder from the Borrower in respect of the Interim Term Loans and each
Lender's share thereof.
(d) The entries made in the Register and the accounts of each
Lender maintained pursuant to subsection 2.2(b) shall, to the extent permitted
by applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligations of the Borrower to repay (with applicable interest) the Interim Term
Loan made to the Borrower by such Lender in accordance with the terms of this
Agreement.
(e) The Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the Borrower will execute and deliver to
such Lender a promissory note of the Borrower evidencing the Interim Term Loan
of such Lender, substantially in the form of Exhibit A with appropriate
insertions as to date and principal amount (each, a "Note"); provided, that the
delivery of such Notes shall not be a condition precedent to the Closing Date.
2.3 Procedure for Interim Term Loan Borrowing. The Borrower
may borrow the Interim Term Loans on the Closing Date, provided that the
Borrower shall give the Administrative Agent irrevocable notice (which notice
must be received by the Administrative Agent prior to 12:00 Noon, New York City
time, at least (a) three Business Days prior to the Closing Date, if all or any
part of the Interim Term Loans are to be initially Eurodollar Loans, or (b) on
the Closing Date, otherwise), specifying in each case (i) the amount to be
borrowed, (ii) the anticipated Closing Date, (iii) whether the borrowing is to
be of Eurodollar Loans, ABR Loans or a combination thereof and (iv) if the
borrowing is to be entirely or partly of Eurodollar Loans, the amount of such
Eurodollar Loans and the length of the initial Interest Period therefor. Upon
receipt of any such notice from the Borrower, the Administrative Agent shall
promptly notify each Lender thereof. Not later than 1:30 p.m., New York City
time, on the Closing Date each Lender shall make an amount equal to the
principal amount of the Interim Term Loan to be made by it available to the
Administrative Agent at its office specified in subsection 10.2 in U.S. Dollars
and in immediately available funds. The Administrative Agent shall on such date
credit the account of the Borrower on the books of such office with the
aggregate of the amounts made available to the Administrative Agent by the
Lenders and in like funds as received by the Administrative Agent.
SECTION 3. GENERAL PROVISIONS APPLICABLE TO INTERIM TERM
LOANS
3.1 Interest Rates and Payment Dates. (a) Each Eurodollar Loan
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such
Interest Period plus the Applicable Margin in effect for such day.
<PAGE> 27
22
(b) Each ABR Loan shall bear interest for each day on which it
is outstanding at a rate per annum equal to the Alternate Base Rate for such
day.
(c) If all or a portion of (i) the principal amount of any
Interim Term Loan, (ii) any interest payable thereon or (iii) any fee or other
amount payable hereunder shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear interest
at a rate per annum equal to the rate that would otherwise be applicable thereto
pursuant to the foregoing provisions of this subsection plus 2%.
(d) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to paragraph (c) of this
subsection shall be payable from time to time on demand.
3.2 Conversion and Continuation Options. (a) The Borrower may
elect from time to time to convert outstanding Eurodollar Loans (in whole or in
part) to ABR Loans by giving the Administrative Agent at least one Business
Day's prior irrevocable notice of such election, provided that any such
conversion of Eurodollar Loans may only be made on the last day of an Interest
Period with respect thereto unless the Borrower shall agree to pay the costs
associated therewith as set forth in subsection 3.11(d). The Borrower may elect
from time to time to convert outstanding ABR Loans (in whole or in part) to
Eurodollar Loans by giving the Administrative Agent at least three Business
Days' prior irrevocable notice of such election. Any such notice of conversion
to Eurodollar Loans shall specify the length of the initial Interest Period or
Interest Periods therefor. Upon receipt of any such notice the Administrative
Agent shall promptly notify each Lender thereof. All or any part of outstanding
Eurodollar Loans and ABR Loans may be converted as provided herein, provided
that (i) no ABR Loan may be converted into a Eurodollar Loan when any Default or
Event of Default has occurred and is continuing and the Administrative Agent or
the Majority Lenders have determined that such conversion is not appropriate,
(ii) any such conversion may only be made if, after giving effect thereto,
subsection 3.3 shall not have been violated and (iii) no ABR Loan may be
converted into a Eurodollar Loan after the date that is one month prior to the
Maturity Date.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving notice to the Administrative Agent of the length of the next
Interest Period to be applicable to such Eurodollar Loans determined in
accordance with the applicable provisions of the term "Interest Period" set
forth in subsection 1.1, provided that no Eurodollar Loan may be continued as
such (i) when any Default or Event of Default has occurred and is continuing and
the Administrative Agent or the Majority Lenders have determined that such
continuation is not appropriate, (ii) if, after giving effect thereto,
subsection 3.3 would be contravened or (iii) after the date that is one month
prior to the Maturity Date, and provided, further, that if the Borrower shall
fail to give such notice or if such continuation is not permitted pursuant to
the preceding proviso such Eurodollar Loans shall be automatically converted to
ABR Loans on the last day of such then expiring Interest Period.
3.3 Minimum Amounts of Tranches. All borrowings, conversions
and continuations of Interim Term Loans hereunder
<PAGE> 28
23
shall be in such amounts and be made pursuant to such elections so that, after
giving effect thereto, (i) the aggregate principal amount of the Eurodollar
Loans comprising each Tranche shall be equal to $10,000,000 or a whole multiple
of $1,000,000 in excess thereof and (ii) there shall not be more than 10
Tranches at any one time outstanding.
3.4 Optional and Mandatory Prepayments. (a) The Borrower may
at any time and from time to time prepay Interim Term Loans, in whole or in
part, without premium or penalty upon at least three Business Days' irrevocable
notice to the Administrative Agent (in the case of Eurodollar Loans) and at
least one Business Day's irrevocable notice to the Administrative Agent (in the
case of ABR Loans) specifying the date and amount of prepayment and whether the
prepayment of Interim Term Loans is of Eurodollar Loans, ABR Loans or a
combination thereof, and, if a combination thereof, the amount allocable to
each. Upon the receipt of any such notice, the Administrative Agent shall
promptly notify each Lender thereof. If any such notice is given, the amount
specified in such notice shall be due and payable on the date specified therein.
Partial prepayments of the Interim Term Loans shall be in an aggregate principal
amount of $10,000,000 or a whole multiple of $1,000,000 in excess thereof (or in
such lower amount as may be then outstanding).
(b) On or before the third Business Day after receipt thereof
by the Borrower or any of its Subsidiaries, the Borrower shall prepay the
Interim Term Loans by an amount equal to 100% of the Net Cash Proceeds of any
Securities Offering.
(c) If the Borrower or any of its Subsidiaries receives Net
Cash Proceeds attributable to any Asset Sale or Recovery Event then on or before
the third Business Day following the receipt of such Net Cash Proceeds the
Interim Term Loans shall be prepaid by an amount equal to the amount of such Net
Cash Proceeds.
(d) Each prepayment of Interim Term Loans pursuant to this
subsection 3.4 shall be accompanied by accrued and unpaid interest on the amount
prepaid to the date of prepayment and any amounts payable under subsection 3.11
in connection with such prepayment.
3.5 Fees. (a) The Borrower shall pay (without duplication of
any other fee payable under this subsection 3.5) to Chase and CSI, for their
respective accounts, all fees separately agreed to by the Borrower and Chase or
CSI, as the case may be.
(b) The Borrower shall (without duplication of any other fee
payable under this subsection 3.5) pay to the Administrative Agent all fees
separately agreed to by the Borrower and the Administrative Agent.
3.6 Computation of Interest. (a) Interest based on the
Eurodollar Rate, or on the Alternate Base Rate when it is based on the Federal
Funds Effective Rate, shall be calculated on the basis of a 360-day year for the
actual days elapsed; and otherwise interest shall be calculated on the basis of
a 365- (or 366-, as the case may be) day year for the actual days elapsed. The
Administrative Agent shall as soon as practicable notify the Borrower and the
Lenders of each determination of a Eurodollar Rate. Any change in the interest
rate on the Interim Term Loans
<PAGE> 29
24
resulting from a change in the Alternate Base Rate shall become effective as of
the opening of business on the day on which such change becomes effective. The
Administrative Agent shall as soon as practicable notify the Borrower and the
Lenders of the effective date and the amount of each such change in the
Alternate Base Rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrower and the Lenders in the absence of
manifest error. The Administrative Agent shall, at the request of the Borrower,
deliver to the Borrower a statement showing in reasonable detail the
calculations used by the Administrative Agent in determining any interest rate
pursuant to subsection 3.1(a).
(c) If any U.S. Reference Lender shall for any reason no
longer have any Interim Term Loans, such U.S. Reference Lender shall thereupon
cease to be a U.S. Reference Lender, and if, as a result, there shall only be
one U.S. Reference Lender remaining, the Administrative Agent, with the consent
of the Borrower (after consultation with Lenders) shall, by notice to the
Borrower and the Lenders, designate another Lender as a U.S. Reference Lender so
that there shall at all times be at least two U.S. Reference Lenders.
(d) Each U.S. Reference Lender shall use its best efforts to
furnish quotations of rates to the Administrative Agent as contemplated hereby.
If any of the U.S. Reference Lenders shall be unable or shall otherwise fail to
supply such rates to the Administrative Agent upon its request, the rate of
interest shall, subject to the provisions of subsection 3.7, be determined on
the basis of the quotations of the remaining U.S. Reference Lenders or U.S.
Reference Lender, as applicable.
3.7 Inability to Determine Interest Rate. If prior to the
first day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that,
by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for
such Interest Period, or
(b) the Administrative Agent has received notice from the
Majority Lenders that the Eurodollar Rate determined or to be
determined for such Interest Period will not adequately and fairly
reflect the cost to such Lenders of making or maintaining their
Eurodollar Loans during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the Lenders as soon as practicable thereafter. Until such time as
the Eurodollar Rate can be determined by the Administrative Agent in the manner
specified in the definitions of such terms in subsection 1.1, no further
Eurodollar Loans shall be continued as such at the end of the then current
Interest Periods or (other than any Eurodollar Loans previously requested and
with respect to which the Eurodollar Rate was determined) shall be made, nor
shall the Borrower have the right to convert ABR Loans into Eurodollar Loans.
<PAGE> 30
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3.8 Pro Rata Treatment and Payments. (a) (i) The borrowing of
Interim Term Loans by the Borrower from the Lenders hereunder shall be made pro
rata according to the respective Interim Term Loan Commitments of the Lenders.
Each payment by the Borrower on account of principal of or interest on the
Interim Term Loans shall be allocated by the Administrative Agent pro rata
according to the respective outstanding principal amounts thereof. All payments
(including prepayments) to be made by the Borrower hereunder, whether on account
of principal, interest, fees or otherwise, shall be made without set-off or
counterclaim and shall be made prior to 12:00 Noon, New York City time, on the
due date thereof to the Administrative Agent, for the account of the Lenders, at
the Administrative Agent's office specified in subsection 10.2, in Dollars and
in immediately available funds. The Administrative Agent shall distribute such
payments to the Lenders entitled to receive the same promptly upon receipt in
like funds as received.
(ii) If any payment hereunder (other than payments on the
Eurodollar Loans) becomes due and payable on a day other than a Business Day,
the maturity of such payment shall be extended to the next succeeding Business
Day, and, with respect to payments of principal, interest thereon shall be
payable at the then applicable rate during such extension. If any payment on a
Eurodollar Loan becomes due and payable on a day other than a Business Day, the
maturity of such payment shall be extended to the next succeeding Business Day
(and, with respect to payments of principal, interest thereon shall be payable
at the then applicable rate during such extension) unless the result of such
extension would be to extend such payment into another calendar month, in which
event such payment shall be made on the immediately preceding Business Day.
(b) Unless the Administrative Agent shall have been notified
in writing by any Lender prior to the Closing Date that such Lender will not
make the amount that would constitute its Interim Term Loan available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is not made available to the Administrative
Agent by the required time on the Closing Date, such Lender shall pay to the
Administrative Agent, on demand, such amount with interest thereon at a rate per
annum equal to the daily average Federal Funds Effective Rate for the period
until such Lender makes such amount immediately available to the Administrative
Agent. A certificate of the Administrative Agent submitted to any Lender with
respect to any amounts owing under this subsection shall be conclusive in the
absence of manifest error. If the amount of such Lender's Interim Term Loan is
not made available to the Administrative Agent by such Lender within three
Business Days of the Closing Date, the Borrower shall repay such Lender's
Interim Term Loan (together with interest thereon from the date such amount was
made available to the Borrower at the rate per annum applicable to ABR Loans
hereunder) to the Administrative Agent not later than three Business Days after
receipt of written notice from the Administrative Agent specifying such Lender's
share of such borrowing that was not made available to the Administrative Agent.
Nothing contained in this subsection 3.8(b) shall prejudice any claims otherwise
available to the Borrower against any Lender as a result of such Lender's
failure to make its share of any borrowing available to the Administrative Agent
for the account of the Borrower.
<PAGE> 31
26
3.9 Illegality. Notwithstanding any other provision herein, if
the adoption of or any change in any Requirement of Law or in the interpretation
or application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Loans as contemplated by this Agreement, (a) the commitment of such
Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as such and
convert ABR Loans to Eurodollar Loans shall forthwith be cancelled until such
time as it shall no longer be unlawful for such Lender to make or maintain the
affected Loans and (b) such Lender's Loans then outstanding as Eurodollar Loans,
if any, shall be converted automatically to ABR Loans on the respective last
days of the then current Interest Periods with respect to such Eurodollar Loans
or within such earlier period as may be required by law. If any such conversion
of a Eurodollar Loan occurs on a day which is not the last day of the then
current Interest Period with respect thereto, the Borrower shall pay to such
Lender such amounts, if any, as may be required pursuant to subsection 3.11.
3.10 Requirements of Law. (a) In the event that any
Requirement of Law (or any change therein or in the interpretation or
application thereof) or compliance by any Lender with any request or directive
(whether or not having the force of law) from any central bank or other
Governmental Authority:
(i) does or shall subject any Lender to any tax of any
kind whatsoever with respect to this Agreement, such Lender's Note or
Interim Term Loan, or change the basis of taxation of payments to such
Lender of principal, fees, interest or any other amount payable
hereunder (except for taxes covered by subsection 3.12 and changes in
the rate of tax on the overall net income of such Lender);
(ii) does or shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement
against assets held by, or deposits or other liabilities in or for the
account of, advances or loans by, or other credit extended by, or any
other acquisition of funds by, any office of such Lender which are not
otherwise included in the determination of the Eurodollar Rate,
including, without limitation, the imposition of any reserves with
respect to Eurocurrency Liabilities under Regulation D of the Board; or
(iii) does or shall impose on such Lender any other
condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by any amount which such Lender deems to be material, of making, renewing or
maintaining advances or extensions of credit or to reduce any amount receivable
hereunder, in each case in respect of its Interim Term Loan, then, in any such
case, the Borrower shall promptly pay such Lender, upon receipt of its demand
setting forth in reasonable detail, any additional amounts necessary to
compensate such Lender for such additional cost or reduced amount receivable,
such additional amounts together with interest on each such amount from the date
two Business Days after the date demanded until payment in full thereof at the
Alternate Base Rate. A certificate as to any additional amounts payable pursuant
to the foregoing sentence submitted by such Lender, through the Administrative
Agent, to the Borrower shall be conclusive in the absence of manifest error.
This covenant shall survive the termination of this Agreement and payment of all
amounts outstanding hereunder.
<PAGE> 32
27
(b) In the event that any Lender shall have determined that
the adoption of any law, rule, regulation or guideline regarding capital
adequacy (or any change therein or in the interpretation or application thereof)
or compliance by any Lender or any corporation controlling such Lender with any
request or directive regarding capital adequacy (whether or not having the force
of law) from any central bank or Governmental Authority, including, without
limitation, the issuance of any final rule, regulation or guideline, does or
shall have the effect of reducing the rate of return on such Lender's or such
corporation's capital as a consequence of its obligations hereunder to a level
below that which such Lender or such corporation would have achieved but for
such adoption, change or compliance (taking into consideration such Lender's or
such corporation's policies with respect to capital adequacy) by an amount
deemed by such Lender to be material, then from time to time, after submission
by such Lender to the Borrower (with a copy to the Administrative Agent) of a
written request therefor, the Borrower shall promptly pay to such Lender such
additional amount or amounts as will compensate such Lender for such reduction.
(c) If the obligation of any Lender to make Eurodollar Loans
has been suspended pursuant to subsection 3.7 or 3.9 for more than three
consecutive months or any Lender has demanded compensation under subsection
3.10(a) or 3.10(b), the Borrower shall have the right to substitute a financial
institution or financial institutions (which may be one or more of the Lenders)
reasonably satisfactory to the Administrative Agent by causing such financial
institution or financial institutions to purchase the rights (by paying to such
Lender the principal amount of its outstanding Interim Term Loan together with
accrued interest thereon and all other amounts accrued for its account or owed
to it hereunder and executing an Assignment and Acceptance) and to assume the
obligations of such Lender under the Loan Documents. Upon such purchase and
assumption by such substituted financial institution or financial institutions,
the obligations of such Lender hereunder shall be discharged; provided such
Lender shall retain its rights hereunder with respect to periods prior to such
substitution including, without limitation, its rights to compensation under
this subsection 3.10.
3.11 Indemnity. Each Borrower agrees to indemnify each Lender
and to hold each Lender harmless from any loss or expense which such Lender may
sustain or incur as a consequence of (a) default by such Borrower in payment
when due of the principal amount of or interest on any Interim Term Loan of such
Lender, (b) default by such Borrower in making a borrowing or conversion after
the Borrower has given a notice of borrowing or a notice of conversion in
accordance with this Agreement, (c) default by such Borrower in making any
prepayment after such Borrower has given a notice in accordance with this
Agreement, or (d) the making of a prepayment of a Eurodollar Loan on a day which
is not the last day of an Interest Period with respect thereto, including,
without limitation, in each case, any such loss or expense arising from the
reemployment of funds obtained by it or from fees payable to terminate the
deposits from which such funds were obtained, including, without limitation, in
each case, any such loss or expense arising from the reemployment of funds
obtained by it to maintain its Eurodollar Loans hereunder or from fees payable
to terminate the deposits from which such funds were obtained. A certificate as
to any such loss or expense submitted by such Lender shall be conclusive, absent
manifest error. This covenant shall survive termination of this Agreement and
payment of all amounts outstanding hereunder.
<PAGE> 33
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3.12 Taxes. (a) All payments made by the Borrower under this
Agreement shall be made free and clear of, and without reduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority excluding, in the case of the Administrative Agent and each Lender,
income or franchise taxes imposed on the Administrative Agent or such Lender by
the jurisdiction under the laws of which the Administrative Agent or such Lender
is organized or any political subdivision or taxing authority thereof or therein
or by any jurisdiction in which such Lender's lending office is located or any
political subdivision or taxing authority thereof or therein or as a result of a
connection between such Lender and any jurisdiction other than a connection
resulting solely from entering into this Agreement (all such non-excluded taxes,
levies, imposts, deductions, charges or withholdings being thereinafter called
"Taxes"). Subject to the provisions of subsection 3.12(c), if any Taxes are
required to be withheld from any amounts payable by the Borrower to the
Administrative Agent or any Lender hereunder or under the Notes, the amounts so
payable to the Administrative Agent or such Lender shall be increased to the
extent necessary to yield to the Administrative Agent or such Lender (after
payment of all Taxes) interest or any such other amounts payable hereunder at
the rates or in the amounts specified in this Agreement and the Notes. Whenever
any Taxes are paid by the Borrower with respect to payments made in connection
with this Agreement, as promptly as possible thereafter, the Borrower shall send
to the Administrative Agent for its own account or for the account of such
Lender, as the case may be, a certified copy of an original official receipt
received by the Borrower showing payment thereof. Subject to the provisions of
subsection 3.12(c), if the Borrower fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent the
required receipts or other required documentary evidence, the Borrower shall
indemnify the Administrative Agent and the Lenders for any incremental taxes,
interest or penalties that may become payable by the Administrative Agent or any
Lenders as a result of any such failure.
(b) Each Lender that is not incorporated or organized under
the laws of the United States of America or a state thereof agrees that, prior
to the first date any payment is due to be made to it hereunder or under any
Note, it will deliver to the Borrower and the Administrative Agent (i) two
valid, duly completed copies of United States Internal Revenue Service Form 1001
or 4224 or successor applicable form, as the case may be, certifying in each
case that such Lender is entitled to receive payments by the Borrower under this
Agreement and the Notes payable to it, without deduction or withholding of any
United States federal income taxes, and (ii) a valid, duly completed Internal
Revenue Service Form W-8 or W-9 or successor applicable form, as the case may
be, to establish an exemption from United States backup withholding tax. Each
Lender which delivers to the Borrower and the Administrative Agent a Form 1001
or 4224 and Form W-8 or W-9 pursuant to the next preceding sentence further
undertakes to deliver to the Borrower and the Administrative Agent two further
copies of the said Form 1001 or 4224 and Form W-8 or W-9, or successor
applicable forms, or other manner or certification, as the case may be, on or
before the date that any such form expires or becomes obsolete or otherwise is
required to be resubmitted as a condition to obtaining an exemption from
withholding tax, or after the occurrence of any event requiring a change in the
most recent form previously delivered by it to the Borrower, and such extensions
or renewals thereof as may
<PAGE> 34
29
reasonably be requested by the Borrower, certifying in the case of a Form 1001
or 4224 or successor applicable form that such Lender is entitled to receive
payments by the Borrower under this Agreement without deduction or withholding
of any United States federal income taxes, unless any change in treaty, law or
regulation or official interpretation thereof has occurred prior to the date on
which any such delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Lender from duly completing and
delivering any such letter or form with respect to it and such Lender advises
the Borrower that it is not capable of receiving payments without any deduction
or withholding of United States federal income tax, and in the case of a Form
W-8 or W-9 or successor applicable form, establishing an exemption from United
States backup withholding tax (it being agreed that final and temporary Treasury
Regulations promulgated in T.O. 8734 shall not constitute a change in law,
regardless of their effective date).
(c) The Borrower shall not be required to pay any additional
amounts to the Administrative Agent or any Lender (or Transferee except to the
extent such Transferee's transferor was entitled, at the time of transfer, to
receive additional amounts from the Borrower) in respect of Taxes pursuant to
subsection 3.12(a) if the obligation to pay such additional amounts would not
have arisen but for a failure by the Administrative Agent or such Lender (or
Transferee) to comply with the requirements of subsection 3.12(b) or (c) (or in
the case of a Transferee, the requirements of subsection 10.6(h)).
(d) Each Lender agrees to use reasonable efforts (including
reasonable efforts to change its lending office) to avoid or to minimize any
amounts which might otherwise be payable pursuant to this subsection 3.12;
provided, however, that such efforts shall not impose on such Lender any
additional costs or legal or regulatory burdens deemed by such Lender in its
reasonable judgment to be material.
(e) The agreements in subsection 3.12(a) shall survive the
termination of this Agreement and the payment of the Notes and all other amounts
payable hereunder until the expiration of the applicable statute of limitations
for such taxes.
3.13 Use of Proceeds. The proceeds of the Interim Term Loans
shall be used to pay a portion of the consideration for the UT Automotive
Acquisition.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Agreement and to make
the Interim Term Loans, the Borrower hereby represents and warrants to the
Administrative Agent and to each Lender that:
4.1 Financial Statements. The audited consolidated balance
sheets of the Borrower as of December 31, 1998 and the related statements of
income and cash flow for the fiscal year ending on such date, heretofore
furnished to the Administrative Agent and the Lenders and certified by a
Responsible Officer of the Borrower are complete and correct in all material
<PAGE> 35
30
respects and fairly present the financial condition of the Borrower on such date
in conformity with GAAP applied on a consistent basis (subject to normal
year-end adjustments). All liabilities, direct and contingent, of the Borrower
on such date required to be disclosed pursuant to GAAP are disclosed in such
financial statements.
4.2 No Change. There has been no material adverse change in
the business, operations, assets or financial or other condition of the Borrower
and its Subsidiaries taken as a whole from that reflected on the financial
statements dated December 31, 1998 referred to in subsection 4.1.
4.3 Corporate Existence; Compliance with Law. The Borrower and
each of its Material Subsidiaries (a) is duly organized, validly existing and in
good standing (or the functional equivalent thereof in the case of Foreign
Subsidiaries) under the laws of the jurisdiction of its organization, (b) has
the corporate power and authority, and the legal right, to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation and in good standing (or the functional equivalent thereof in the
case of Foreign Subsidiaries) under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification except where the failure to be so qualified and in
good standing would not, individually or in the aggregate, have a material
adverse effect on the business, operations, property or financial or other
condition of the Borrower and its Subsidiaries taken as a whole and would not
adversely affect the ability of any Loan Party to perform its respective
obligations under the Loan Documents to which it is a party and (d) is in
compliance with all Requirements of Law, except to the extent that the failure
to comply therewith would not reasonably be expected to have, individually or in
the aggregate, a material adverse effect on the business, operations, assets or
financial or other condition of the Borrower and its Subsidiaries taken as a
whole and would not reasonably be expected to adversely affect the ability of
any Loan Party to perform its obligations under the Loan Documents to which it
is a party.
4.4 Corporate Power; Authorization; Enforceable Obligations.
(a) Each Loan Party has the corporate power and authority, and the legal right,
to execute, deliver and perform each of the Loan Documents to which it is a
party or to which this Agreement requires it to become a party. The Borrower has
the corporate power and authority to borrow hereunder and has taken all
necessary corporate action to authorize the borrowings on the terms and
conditions of this Agreement and the Notes. Each Loan Party has taken all
necessary corporate action to authorize the execution, delivery and performance
of each of the Loan Documents to which it is a party or to which this Agreement
requires it to become a party.
(b) No consent or authorization of, filing with or other act
by or in respect of any Person (including, without limitation, any Governmental
Authority) is required in connection with the borrowings hereunder or with the
execution, delivery, performance, validity or enforceability of the Loan
Documents or the consummation of any of the transactions contemplated hereby or
thereby, except for consents, authorizations, or filings which have been
obtained and are in full force and effect.
<PAGE> 36
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(c) This Agreement and each other Loan Document to which any
Loan Party is a party has been, and each other Loan Document to be executed by a
Loan Party hereunder will be, duly executed and delivered on behalf of such Loan
Party. This Agreement and each other Loan Document to which any Loan Party is a
party constitutes, and each other Loan Document to be executed by a Loan Party
hereunder will constitute, a legal, valid and binding obligation of such Loan
Party enforceable against such Loan Party in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
4.5 No Legal Bar; Senior Debt. The execution, delivery and
performance by each Loan Party of the Loan Documents to which it is a party, the
borrowings hereunder and the use of the proceeds thereof, (a) will not violate
any Requirement of Law or any Contractual Obligation of the Borrower or any
other Loan Party (including, without limitation, the 9 1/2% Subordinated Note
Indenture and the Subordinated Note Indenture) except for violations of
Requirements of Law and Contractual Obligations (other than such Indentures)
which, individually or in the aggregate will not have a material adverse effect
on the business, operations, property or financial or other condition of the
Borrower and its Subsidiaries taken as a whole and will not adversely affect the
ability of any Loan Party to perform its obligations under any of the Loan
Documents to which it is a party and (b) will not result in, or require, the
creation or imposition of any Lien (other than the Liens created by the Security
Documents) on any of its or their respective properties or revenues pursuant to
any Requirement of Law or Contractual Obligation. The Obligations of the
Borrower constitute "Senior Indebtedness" benefitting from the subordination
provisions contained in the Subordinated Debt, except to the extent that such
Obligations are owed to an Affiliate of the Borrower.
4.6 No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Borrower, overtly threatened by or against the Borrower
or any of its Subsidiaries or against any of its or their respective properties
or revenues (a) with respect to any Loan Document or any of the transactions
contemplated hereby or thereby, (b) which would reasonably be expected to have a
material adverse effect on the business, operations, property or financial or
other condition of the Borrower and its Subsidiaries taken as a whole or (c)
which would be reasonably expected to adversely affect the ability of any Loan
Party to perform its obligations under any of the Loan Documents to which it is
a party.
4.7 No Default. Neither the Borrower nor any of its
Subsidiaries is in default under or with respect to any Contractual Obligation
or any order, award or decree of any Governmental Authority or arbitrator
binding upon it or any of its properties in any respect which would have a
material adverse effect on the business, operations, property or financial or
other condition of the Borrower and its Subsidiaries taken as a whole or which
would adversely affect the ability of any Loan Party to perform its obligations
under any of the Loan Documents to which it is a party. No Default or Event of
Default has occurred and is continuing.
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4.8 Ownership of Property; Liens. The Borrower and each of
its Material Subsidiaries has good record and marketable title in fee simple to,
or a valid and subsisting leasehold interest in, all its material real property,
and good title to all its other property, and none of such property is subject
to any Lien, except as permitted in subsection 7.3 and except, in each case,
where any failure to have good title or a valid and subsisting leasehold
interest or the existence of any Lien would not reasonably be expected to have a
material adverse effect on the business, operations, property or financial or
other condition of the Borrower and its Subsidiaries taken as a whole.
4.9 Taxes. (a) The Borrower and each of its Material
Subsidiaries has filed or caused to be filed all tax returns which to the
knowledge of the Borrower are required to be filed and has paid all taxes shown
to be due and payable on said returns or on any assessments made against it or
any of its property and all other taxes, fees or other charges imposed on it or
any of its property by any Governmental Authority (other than those which, in
the aggregate, are not substantial in amount or those the amount or validity of
which are currently being contested in good faith by appropriate proceedings and
with respect to which reserves in conformity with GAAP have been provided on the
books of the Borrower or its Subsidiaries, as the case may be and except insofar
as the failure to make such filings or payments would not reasonably be expected
to have a material adverse effect on the business, operations, property or
financial condition of the Borrower and its Subsidiaries taken as a whole); and
(b) no tax lien (other than a Lien permitted in subsection 7.3) has been filed
and, to the knowledge of the Borrower, no claim is being asserted with respect
to any such tax, fee or other charge.
4.10 Securities Law, etc. Compliance. All transactions
contemplated by this Agreement and the other Loan Documents comply in all
material respects with all applicable laws and any rules and regulations
thereunder, including takeover, disclosure and other federal, state and foreign
securities law and Regulations T, U and X of the Federal Reserve Board.
4.11 ERISA. As to each Plan other than a Multiemployer Plan,
neither a Reportable Event nor an "accumulated funding deficiency" (within the
meaning of Section 412 of the Code or Section 302 of ERISA) has occurred during
the five-year period prior to the date on which this representation is made or
deemed made with respect to any Plan, and each Plan has complied in all material
respects with the applicable provisions of ERISA and the Code. No termination of
a Single Employer Plan has occurred and no Lien under the Code or ERISA in favor
of PBGC or a Single Employer Plan has arisen during the five-year period prior
to the date as of which this representation is deemed made. The present value of
all accrued benefits under each Single Employer Plan maintained by the Borrower
or any Commonly Controlled Entity (based on those assumptions used to fund the
Plans) did not, as of the last annual valuation date prior to the date on which
this representation is made or deemed made, exceed the value of the assets of
such Plan allocable to such accrued benefits, either individually or in the
aggregate with all other Single Employer Plans under which such accrued benefits
exceed such assets, by more than $125,000,000. Neither the Borrower nor any
Commonly Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan during the five year period prior to the date as of which
this representation is made or deemed made, and neither the Borrower nor any
Commonly Controlled Entity would become subject to liability under ERISA in the
<PAGE> 38
33
aggregate which exceeds $145,000,000 if the Borrower or any such Commonly
Controlled Entity were to withdraw completely from all Multiemployer Plans as of
the valuation date most closely preceding the date hereof, and no such
withdrawal is likely to occur. No such Multiemployer Plan is in Reorganization
or Insolvent. The present value (determined using actuarial and other
assumptions which are reasonable in respect of the benefits provided and the
employees participating) of the liability of the Borrower and each Commonly
Controlled Entity for post retirement benefits to be provided to their current
and former employees under Plans which are welfare benefit plans (as defined in
Section 3(1) of ERISA) does not, in the aggregate, exceed the assets under all
such Plans allocable to such benefits by an amount in excess of $145,000,000.
4.12 Investment Company Act; Other Regulations. The Borrower
is not an "investment company" within the meaning of the Investment Company Act
of 1940, as amended. The Borrower is not subject to regulation under any federal
or state statute or regulation which limits its ability to incur Indebtedness.
4.13 Subsidiaries, etc. The Subsidiaries of the Borrower as of
the Closing Date are those listed on Schedule VI. The Borrower owns, as of the
Closing Date, the percentage of the issued and outstanding capital stock or
other evidences of the ownership of each Subsidiary, listed on Schedule VI as
set forth on such Schedule. Except as disclosed on Schedule VI, no such
Subsidiary has issued any securities convertible into shares of its capital
stock (or other evidence of ownership) or any options, warrants or other rights,
to acquire such shares or securities convertible into such shares (or other
evidence of ownership), and the outstanding stock and securities (or other
evidence of ownership) of such Subsidiaries are owned by the Borrower and its
Subsidiaries free and clear of all Liens, warrants, options or rights of others
of any kind whatsoever except for Liens permitted by subsection 7.3.
4.14 Accuracy and Completeness of Information. All
information, reports and other papers and data with respect to the Borrower or
this Agreement or any transaction contemplated hereby furnished to the Lenders
by the Borrower or on behalf of the Borrower, were, at the time the same were so
furnished, complete and correct in all material respects, or have been
subsequently supplemented by other information, reports or other papers or data,
to the extent necessary to give the Lenders a true and accurate knowledge of the
subject matter in all material respects. All projections with respect to the
Borrower and its Subsidiaries, so furnished by the Borrower, as supplemented,
were prepared and presented in good faith by the Borrower, it being recognized
by the Lenders that such projections as to future events are not to be viewed as
facts and that actual results during the period or periods covered by any such
projections may differ materially from the projected results. No document
furnished or statement made in writing to the Lenders by the Borrower in
connection with the negotiation, preparation or execution of this Agreement
contains any untrue statement of a material fact, or, to the knowledge of the
Borrower after due inquiry, omits to state any such material fact necessary in
order to make the statements contained therein not misleading, in either case
which has not been corrected, supplemented or remedied by subsequent documents
furnished or statements made in writing to the Lenders.
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34
4.15 Security Documents. Each Pledge Agreement is effective
to create in favor of the Administrative Agent, for the ratable benefit of the
Lenders, a legal, valid and enforceable security interest in the pledged assets
described therein. Each Pledge Agreement constitutes a fully perfected first
Lien on, and security interest in, all right, title and interest of the Loan
Party thereto in the pledged assets described therein.
4.16 Patents, Copyrights, Permits and Trademarks. Each of the
Borrower and its Subsidiaries owns, or has a valid license or sub-license in,
all domestic and foreign letters patent, patents, patent applications, patent
and know-how licenses, inventions, technology, permits, trademark registrations
and applications, trademarks, trade names, trade secrets, service marks,
copyrights, product designs, applications, formulae, processes and the
industrial property rights ("Proprietary Rights") used in the operation of its
businesses in the manner in which they are currently being conducted and which
are material to the business, operations, assets or financial or other condition
of the Borrower and its Subsidiaries taken as a whole. Neither the Borrower nor
any of its Subsidiaries is aware of any existing or threatened infringement or
misappropriation of any Proprietary Rights of others by the Borrower or any of
its Subsidiaries or of any Proprietary Rights of the Borrower or any of its
Subsidiaries by others which is material to the business operations, assets or
financial or other condition of the Borrower and its Subsidiaries taken as a
whole.
4.17 Environmental Matters. Except as disclosed in Schedule
VII, and other than such exceptions to any of the following that would not
reasonably be expected to give rise to a material adverse effect on the
business, operations, property or financial condition of the Borrower and its
Subsidiaries taken as a whole:
(a) To the best knowledge of the Borrower and its
Subsidiaries, after reasonable investigation, the Properties do not
contain, and have not previously contained, any Hazardous Materials in
amounts or concentrations or under such conditions which (A) constitute
a violation of, or (B) could reasonably give rise to any liability
under any applicable Environmental Laws.
(b) To the best knowledge of the Borrower and its
Subsidiaries, after reasonable investigation, the Properties and all
operations at the Properties are in compliance, and have been in
compliance for the time period that each of the Properties has been
owned by the Borrower or its Subsidiaries, with all Environmental Laws,
and there is no contamination at, on or under the Properties, or
violation of any Environmental Laws with respect to the Properties
which could interfere with the continued operation of the Properties or
impair the fair saleable value thereof. Neither the Borrower nor any
Subsidiary has knowingly assumed any liability, by contract or
otherwise, of any person under any Environmental Laws.
(c) Neither the Borrower nor any of its Subsidiaries has
received any Environmental Complaint with regard to any of the
Properties or the operations of the Borrower or any of its
Subsidiaries, nor does the Borrower or any of its Subsidiaries have
<PAGE> 40
35
knowledge or reason to believe that any such notice will be received or
is being threatened.
(d) To the best knowledge of the Borrower and its
Subsidiaries, based on the Borrower's and the Subsidiaries' customary
practice of contracting only with licensed haulers for removal of
Hazardous Materials from the Properties only to facilities authorized
to receive such Hazardous Materials, Hazardous Materials have not been
transported or disposed of from the Properties in violation of, or in a
manner or to a location which could reasonably give rise to liability
under, Environmental Laws, nor have any Hazardous Materials been
generated, treated, stored or disposed of at, on or under any of the
Properties in violation of, or in a manner that could reasonably give
rise to liability under any Environmental Laws.
(e) No judicial proceedings or governmental or
administrative action is pending, or, to the knowledge of the Borrower
and its Subsidiaries, threatened, under any Environmental Law to which
the Borrower and its Subsidiaries are or will be named as a party with
respect to the Properties, nor are there any consent decrees or other
decrees, consent orders, administrative orders or other orders, or
other administrative or judicial requirements outstanding under any
Environmental Law with respect to the Properties.
(f) To the best knowledge of the Borrower and its
Subsidiaries after reasonable investigation, there has been no release
or threat of release of Hazardous Materials at or from the Properties,
or arising from or related to the operations of the Borrower or its
Subsidiaries in connection with the Properties in violation of or in
amounts or in a manner that could reasonably give rise to liability
under any Environmental Laws.
4.18 Year 2000 Matters. Any reprogramming required to permit
the proper functioning, in and following the year 2000, of (i) the Borrower's
computer systems and (ii) equipment containing embedded microchips (including
systems and equipment supplied by others or with which the Borrower's systems
interface) and the testing of all such systems and equipment, as so
reprogrammed, are expected to be completed within such period of time as is
required to avoid a material adverse effect on the business, operations,
property or financial condition of the Borrower and its Subsidiaries taken as a
whole as a result of the failure to complete such reprogramming. The cost to the
Borrower of such reprogramming and testing and of the reasonably foreseeable
consequences of year 2000 to the Borrower (including, without limitation,
reprogramming errors and the failure of others' systems or equipment) would not
reasonably be expected to have a material adverse effect on the business,
operations, property or financial condition of the Borrower and its Subsidiaries
taken as a whole.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Closing Date. The Closing Date shall occur
on the date of satisfaction of the following conditions precedent:
<PAGE> 41
36
(a) Agreement. The Administrative Agent shall have received
counterparts of this Agreement, duly executed by a Responsible Officer
of the Borrower and by each Lender.
(b) Subsidiary Guarantee. The Administrative Agent shall have
received the Subsidiary Guarantee duly executed by each guarantor party
thereto.
(c) Domestic Pledge Agreement. The Administrative Agent shall
have received the Domestic Pledge Agreement listed on Schedule IV, duly
executed by each pledgor party thereto.
(d) Pledged Stock; Stock Powers. The Administrative Agent
shall have received the certificates representing the shares pledged
pursuant to the Domestic Pledge Agreement listed on Schedule IV,
together with an undated stock power for each such certificate executed
in blank by a duly authorized officer of the pledgor thereof.
(e) Perfection Actions. The Administrative Agent shall have
received evidence in form and substance satisfactory to it that all
filings, recordings, registrations and other actions necessary or, in
the opinion of the Administrative Agent, desirable to perfect the Liens
created by the Domestic Pledge Agreements shall have been completed.
(f) UT Automotive Acquisition. The UT Automotive Acquisition
shall have been consummated in accordance with the UT Automotive
Acquisition Agreement concurrently with the transactions contemplated
by this Agreement, and the Administrative Agent shall have received a
certificate of a Responsible Officer to such effect.
(g) UT Automotive Financial Statements. The Lenders shall have
received the audited financial statements of Lear Corporation
Automotive Holdings (formerly known as UT Automotive, Inc.) for the
fiscal year ended December 31, 1998.
(h) Consents. The Administrative Agent shall have received,
and made available to each Lender, true and correct copies (in each
case certified as to authenticity on such date by a duly authorized
officer of the Borrower) of all documents and instruments, including
all consents, authorizations and filings, required under any
Requirement of Law or by Contractual Obligation of the Borrower or any
of its Subsidiaries, in connection with the execution, delivery,
performance, validity and enforceability of this Agreement and the
other Loan Documents, and such consents, authorizations and filings
shall be satisfactory in form and substance to the Lenders and be in
full force and effect.
(i) Incumbency Certificates. The Administrative Agent shall
have received, with a copy for each Lender, a certificate of the
Secretary or Assistant Secretary of each Domestic Loan Party, dated the
Closing Date, as to the incumbency and signature of their respective
officers executing each Loan Document to be entered into on the Closing
Date
<PAGE> 42
37
to which it is a party, together with satisfactory evidence of the
incumbency of such Secretary or Assistant Secretary.
(j) Corporate Proceedings. The Administrative Agent shall have
received, with a copy for each Lender, a copy of the resolutions in
form and substance satisfactory to the Administrative Agent, of the
Board of Directors (or the executive committee thereof) of each
Domestic Loan Party authorizing (i) the execution, delivery and
performance of each Loan Document to be entered into on the Closing
Date to which it is a party, and (ii) the granting by it of the pledge
and security interests, if any, granted by it pursuant to such Loan
Document, certified by their respective Secretary or an Assistant
Secretary as of the Closing Date, which certificate shall state that
the resolutions thereby certified have not been amended, modified,
revoked or rescinded as of the date of such certificate.
(k) Fees. The Administrative Agent shall have received all
fees required to be paid to the Administrative Agent and/or the Lenders
pursuant to subsection 3.5 and/or any other written agreement on or
prior to the Closing Date.
(l) Legal Opinion of Counsel to Borrower. The Administrative
Agent shall have received, with a copy for each Lender, an opinion,
dated the Closing Date, of Winston & Strawn, special counsel to the
Borrower and its Subsidiaries, in substantially the form of Exhibit L
and covering such other matters incident to the transactions
contemplated hereby as the Lenders may reasonably require.
(m) Subordinated Debt Indentures. The Administrative Agent
shall have received, with a copy for each Lender, a certified true copy
of the outstanding Subordinated Debt Indentures.
(n) Closing Date under Other Credit Agreements. The Closing
Date under (and as defined in) the Other Credit Agreements shall have
occurred or shall occur simultaneously with the Closing Date hereunder.
5.2 Additional Conditions to Interim Term Loans. The agreement
of each Lender to make the Interim Term Loan to be made by it on the Closing
Date is subject to the satisfaction of the following conditions precedent as of
the Closing Date:
(a) Representations and Warranties. The representations and
warranties made by each of the Loan Parties in or pursuant to the Loan
Documents shall be true and correct in all material respects on and as
of the Closing Date as if made on and as of the Closing Date (except
that any representation or warranty which by its terms is made as of a
specified date shall be true and correct in all material respects as of
such specified date).
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on the Closing Date after giving effect to
the making of the Interim Term Loans.
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38
The borrowing by the Borrower of the Interim Term Loans shall constitute a
representation and warranty by the Borrower as of the Closing Date that the
conditions contained in this subsection 5.2 have been satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Interim Term
Loan Commitments remain in effect, any Interim Term Loan remains outstanding and
unpaid or any other amount is owing to any Lender or the Administrative Agent
hereunder or under any other Loan Document, the Borrower shall and shall cause
each of its Subsidiaries to:
6.1 Financial Statements. Furnish to each Lender (or to the
Administrative Agent on behalf of each Lender):
(a) as soon as available, but in any event within 95 days
after the end of each fiscal year of the Borrower, a copy of the
audited consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such year and the related consolidated
statements of income and cash flows for such year, setting forth in
each case in comparative form the figures for the previous year,
reported on without a "going concern" or like qualification or
exception, or qualification arising out of the scope of the audit, by
independent certified public accountants of nationally recognized
standing;
(b) as soon as available, but in any event not later than 50
days after the end of each of the first three quarterly periods of each
fiscal year of the Borrower, the unaudited consolidated balance sheet
of the Borrower and its consolidated Subsidiaries as at the end of each
such quarter and the related unaudited consolidated statements of
income and cash flows of the Borrower and its consolidated Subsidiaries
for such quarter and the portion of the fiscal year through such date,
setting forth in each case in comparative form the figures for the
corresponding quarterly period of the previous year, certified by a
Responsible Officer (subject to normal year-end audit adjustments).
The Borrower covenants and agrees that all such financial statements shall be
complete and correct in all material respects and shall be prepared in
reasonable detail and in accordance with GAAP (subject, in the case of interim
statements, to normal year-end adjustments and to the fact that such financial
statements may be abbreviated and may omit footnotes or contain incomplete
footnotes) applied consistently throughout the periods reflected therein (except
as approved by such accountants or officer, as the case may be, and disclosed
therein).
6.2 Certificates; Other Information. Furnish to each Lender
(or to the Administrative Agent on behalf of each Lender):
(a) concurrently with the delivery of the financial statements
referred to in subsection 6.1(a), a certificate of the independent
certified public accountants reporting on such financial statements
stating that in making the examination necessary therefor no
<PAGE> 44
39
knowledge was obtained of any Default or Event of Default, except as
specified in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsection 6.1(a) and (b), a certificate of a
Responsible Officer of the Borrower (i) stating that such Responsible
Officer has obtained no knowledge of any Default or Event of Default
except as specified in such certificate, (ii) stating, to the best of
such Responsible Officer's knowledge, that all such financial
statements are complete and correct in all material respects (subject,
in the case of interim statements, to normal year-end audit
adjustments) and have been prepared in reasonable detail and in
accordance with GAAP applied consistently throughout the periods
reflected therein (except as disclosed therein) and (iii) showing in
detail the calculations supporting such statements in respect of
subsection 7.1;
(c) promptly upon receipt thereof, copies of all final reports
submitted to the Borrower by independent certified public accountants
in connection with each annual, interim or special audit of the books
of the Borrower made by such accountants, including, without
limitation, any management letter commenting on the Borrower's internal
controls submitted by such accountants to management in connection with
their annual audit;
(d) promptly after the same are sent, copies of all financial
statements and reports which the Borrower sends to its public equity
holders, and within five days after the same are filed, copies of all
financial statements and reports which the Borrower may make to, or
file with, the Securities and Exchange Commission or any successor or
analogous Governmental Authority; and
(e) promptly, subject to reasonable confidentiality
requirements and confidentiality agreements to which the Borrower or
any of its Subsidiaries is a party, such additional financial and other
information as any Lender may from time to time reasonably request.
6.3 Performance of Obligations. Perform in all material
respects all of its obligations under the terms of each material mortgage,
indenture, security agreement and other debt instrument by which it is bound or
to which it is a party and pay, discharge or otherwise satisfy at or before
maturity or before they become delinquent, as the case may be, all its material
obligations of whatever nature, except when the amount or validity thereof is
currently being contested in good faith by appropriate proceedings and reserves
in conformity with GAAP with respect thereto have been provided for on the books
of the Borrower or its Subsidiaries, as the case may be.
6.4 Conduct of Business, Maintenance of Existence and
Compliance with Obligations and Laws. Continue to engage in business of the same
general type as now conducted by it and preserve, renew and keep in full force
and effect its corporate existence and take all reasonable action to maintain
all rights, privileges and franchises necessary or desirable
<PAGE> 45
40
in the normal conduct of its business except as otherwise permitted pursuant to
subsection 7.5 and except, with respect to the corporate existence of
Subsidiaries that are not Loan Parties and any rights, privileges and
franchises, to the extent that the Board of Directors of the Borrower shall
determine in good faith that the preservation or maintenance thereof is no
longer desirable in the conduct of the business of the Borrower and its
Subsidiaries; comply with all Contractual Obligations and Requirements of Law
except to the extent that failure to comply therewith would not reasonably be
expected to have, individually or in the aggregate, a material adverse effect on
the business, operations, property or financial or other condition of the
Borrower and its Subsidiaries taken as a whole and would not reasonably be
expected to adversely affect the ability of the Borrower or any of its
Subsidiaries to perform their respective obligations under any of the Loan
Documents to which they are a party.
6.5 Maintenance of Property; Insurance. Keep all property
useful and necessary in its business in good working order and condition where
the failure to maintain such property in good working order and condition would
reasonably be expected to have a material adverse effect on the business,
operations, property or financial condition of the Borrower and its Subsidiaries
taken as a whole; maintain with financially sound and reputable insurance
companies such insurance coverage as is reasonable for the business activities
of the Borrower and its Subsidiaries; and furnish to the Administrative Agent,
upon written request, full information as to the insurance carried.
6.6 Inspection of Property; Books and Records; Discussions.
Keep proper books of records and account in which full, true and correct entries
in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities; and permit
representatives of any Lender (subject to reasonable confidentiality
requirements) to visit and inspect any of its properties and examine and make
abstracts from any of its books and records upon reasonable notice and at any
reasonable time and as often as may reasonably be desired, and to discuss the
business, operations, properties and financial and other condition of the
Borrower and its Subsidiaries with officers and employees of the Borrower and
its Subsidiaries and, provided the Borrower is given an opportunity to
participate, with its independent certified public accountants.
6.7 Notices. Promptly give notice to the Administrative Agent
and each Lender:
(a) of the occurrence of any Default or Event of Default;
(b) of any (i) default or event of default under any
Contractual Obligation of the Borrower or any of its Subsidiaries or
(ii) litigation, investigation or proceeding which may exist at any
time between the Borrower or any of its Subsidiaries and any
Governmental Authority, which in the case of either clause (i) or (ii)
above, would reasonably be expected to have a material adverse effect
on the business, operations, property or financial condition of the
Borrower and its Subsidiaries taken as a whole or would reasonably be
expected to adversely affect the ability of the Borrower or any of its
Subsidiaries to perform their respective obligations under any of the
Loan Documents to which they are a party;
<PAGE> 46
41
(c) of any litigation or proceeding affecting the Borrower or
any of its Subsidiaries in which the then reasonably anticipated
exposure of the Borrower and its Subsidiaries is $20,000,000 or more
and not covered by insurance, or in which injunctive or similar relief
is sought which is then reasonably anticipated to have an adverse
economic effect on the Borrower and its Subsidiaries of $20,000,000 or
more;
(d) of the following events, as soon as possible and in any
event within 30 days after the Borrower knows or has reason to know
thereof: (i) the occurrence or expected occurrence of any Reportable
Event with respect to any Single Employer Plan, a failure to make any
required contribution to any Single Employer Plan, unless such failure
is cured within such 30 days, any Lien under the Code or ERISA in favor
of the PBGC or a Single Employer Plan, or any withdrawal from, or the
termination, Reorganization or Insolvency of any Multiemployer Plan or
(ii) the institution of proceedings or the taking of any other action
by the PBGC or the Borrower or any Commonly Controlled Entity or any
Multiemployer Plan with respect to the withdrawal from, or the
termination, Reorganization or Insolvency of, any Single Employer or
Multiemployer Plan, where, in connection with any of the events
described in clauses (i) or (ii), the resulting liability would
reasonably be expected to cause a material adverse change in the
business, assets, operations or financial condition of the Borrower and
its Subsidiaries taken as a whole;
(e) of any Environmental Complaint which would reasonably be
expected to have a material adverse effect on the business, operations,
property or financial condition of the Borrower and its Subsidiaries,
taken as a whole, and any notice from any Person of (i) the occurrence
of any release, spill or discharge of any Hazardous Material that is
reportable under any Environmental Law, (ii) the commencement of any
clean up pursuant to or in accordance with any Environmental Law of any
Hazardous Material at, on, under or within the Property or any part
thereof or (iii) any other condition, circumstance, occurrence or
event, any of which would reasonably be expected to have a material
adverse effect on the business, operations, property or financial
condition of the Borrower and its Subsidiaries, taken as a whole, under
any Environmental Law;
(f) of (i) the incurrence of any Lien (other than Liens
permitted pursuant to subsection 7.3) on, or claim asserted against any
of the collateral security in the Security Documents or (ii) the
occurrence of any other event which could reasonably be expected to
have a material adverse effect on the aggregate value of the collateral
under any Security Document; and
(g) of a material adverse change in the business, operations,
property or financial condition of the Borrower and its Subsidiaries
taken as a whole.
Each notice pursuant to this subsection 6.7 shall be accompanied by a statement
of a Responsible Officer of the Borrower setting forth details of the occurrence
referred to therein and stating what action the Borrower proposes to take with
respect thereto.
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6.8 Maintenance of Liens of the Security Documents.
Promptly, upon the reasonable request of any Lender, at the Borrower's expense,
execute,acknowledge and deliver, or cause the execution, acknowledgement and
delivery of, and thereafter register, file or record, or cause to be registered,
filed or recorded, in an appropriate governmental office, any document or
instrument supplemental to or confirmatory of the Security Documents or
otherwise deemed by the Administrative Agent necessary or desirable for the
continued validity,perfection and priority of the Liens on the collateral
covered thereby.
6.9 Environmental Matters. (a) Comply in all material respects
with, and use all reasonable efforts to ensure compliance in all material
respects by all tenants and subtenants, if any, with, all Environmental Laws and
all requirements existing thereunder and obtain and comply in all material
respects with and maintain, and use all reasonable efforts to ensure that all
tenants and subtenants obtain, comply in all material respects with and
maintain, any and all licenses, approvals, notifications, registrations or
permits required by Environmental Laws.
(b) Promptly comply in all material respects with all lawful
orders and directives of all Governmental Authorities regarding Environmental
Laws, other than such orders and directives as to which an appeal has been taken
in good faith and the pendency of any and all such appeals does not materially
and adversely affect the Borrower or any Subsidiary or the operations of the
Borrower or any Subsidiary.
(c) Defend, indemnify and hold harmless the Administrative
Agent and the Lenders and their Affiliates, and their respective employees,
agents, officers and directors, from and against any claims, demands, penalties,
fines, liabilities, settlements, damages, costs and expenses of whatever kind or
nature known or unknown, contingent or otherwise, arising out of, or in any way
relating to the violation of, noncompliance with or liability under any
Environmental Laws applicable to the Borrower or its Subsidiaries or the
Properties, or any orders, requirements or demands of Governmental Authorities
related thereto, including, without limitation, attorney's and consultant's
fees, investigation and laboratory fees, response costs, court costs and
litigation expenses, except to the extent that any of the foregoing arise solely
out of the gross negligence or willful misconduct of the party seeking
indemnification therefor. This indemnity shall continue in full force and effect
regardless of the termination of this Agreement.
6.10 Security Documents; Guarantee Supplement. Subject to
subsection 10.18, (a) within 60 days after the Closing Date, at its own expense,
(i)cause 65% of the capital stock of Lear Germany to be pledged to the
Administrative Agent, in its capacity as Agent pursuant to the Intercreditor
Agreement, pursuant to a pledge agreement in form and substance satisfactory to
the Administrative Agent, and (ii)cause the Administrative Agent, in its
capacity as Agent pursuant to the Intercreditor Agreement, to receive, with a
counterpart for each Lender, a legal opinion of German counsel acceptable to the
Administrative Agent covering such matters in respect of such pledge agreement
as the Administrative Agent shall reasonably request.
(b) As soon as possible and in no event later than 45 days
after the delivery of any financial statements under subsection 13.1(a) or (b),
for any fiscal period ending on or after December 31, 1999, cause (i) all of the
capital stock owned directly or indirectly by the Borrower
<PAGE> 48
43
of each of the Borrower's direct or indirect Domestic Subsidiaries which on the
date of such financial statements constituted at least 10% of Consolidated
Assets or for the twelve month period ended on the date of such financial
statements represented at least 10% of Consolidated Revenues to be pledged to
the Administrative Agent, in its capacity as Agent pursuant to the Intercreditor
Agreement, pursuant to a pledge agreement in form and substance satisfactory to
the Administrative Agent, (ii) 65% of the capital stock (or such lesser amount
as may be owned by the Borrower) of each of the Borrower's direct Foreign
Subsidiaries which on the date of such financial statements constituted at least
10% of Consolidated Assets or for the twelve month period ended on the date of
such financial statements represented at least 10% of Consolidated Revenues to
be pledged to the Administrative Agent, in its capacity as Agent pursuant to the
Intercreditor Agreement, pursuant to a pledge agreement in form and substance
satisfactory to the Administrative Agent, and (iii) the Administrative Agent in
its capacity as Agent pursuant to the Intercreditor Agreement, to receive, with
a counterpart for each Lender, legal opinions of counsel to the Borrower
acceptable to the Administrative Agent covering such matters in respect of such
pledges as the Administrative Agent shall reasonably request.
(c) As soon as possible and in no event later than 45 days
after the delivery of any financial statements under subsection 13.1(a) or (b)
for any fiscal period ending on or after December 31, 1999, cause (i) each of
the Borrower's direct and indirect Domestic Subsidiaries which on the date of
such financial statements constituted 10% of Consolidated Assets or for the
twelve month period ended on the date of such financial statements represented
at least 10% of Consolidated Revenues to execute and deliver a Guarantee
Supplement to the Administrative Agent in its capacity as Agent pursuant to the
Intercreditor Agreement, and (ii) the Administrative Agent in its capacity as
Agent pursuant to the Intercreditor Agreement, to receive, with a counterpart
for each Lender, opinions of counsel to the Borrower, in form and substance
satisfactory to the Administrative Agent, covering such matters in respect of
the Subsidiary Guarantee as the Administrative Agent shall reasonably request;
provided, that, notwithstanding the foregoing, a Domestic Subsidiary shall not
be required to execute and deliver a Guarantee Supplement or otherwise become a
party to the Subsidiary Guarantee if (x) it is a holding company whose only
material asset consists of capital stock of one or more Foreign Subsidiaries and
(y) the capital stock of such Domestic Subsidiary is pledged to the
Administrative Agent in its capacity as Agent pursuant to the Intercreditor
Agreement.
(d) (i) Cause to be pledged to the Administrative Agent in its
capacity as Agent pursuant to the Intercreditor Agreement, on the Closing Date
100% of the Capital Stock of each Domestic Subsidiary which would have
constituted more than 10% of Consolidated Assets on December 31, 1998 or
represented at least 10% of Consolidated Revenues for the twelve-month period
ended on December 31, 1998, and (ii) cause each Domestic Subsidiary described in
the foregoing clause (i) to be Subsidiary Guarantors on the Closing Date;
provided, that (A) Lear Corporation (Germany) Ltd. shall not be required to be a
Subsidiary Guarantor and the Borrower shall not be required to pledge its
Capital Stock and (B) Lear Corporation EEDS and Interiors shall not be required
to be a Subsidiary Guarantor and the Borrower shall not be required to cause its
Capital Stock to be pledged unless Lear Corporation EEDS and Interiors meets the
tests
<PAGE> 49
44
set forth in paragraph (c) above in respect of any fiscal period ending on
or after December 31, 1999.
(e) For purposes of calculating Consolidated Assets and
Consolidated Revenues pursuant to the foregoing paragraphs (), (c) and (d) for
any date on or prior to March 31, 2000, or for twelve-month periods ended on or
prior to March 31, 2000, the assets and revenues of Lear Corporation Automotive
Holdings shall be included on a pro forma basis as if the UT Automotive
Acquisition had occurred on the first day of the relevant period.
SECTION 7. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Interim Term
Loan Commitments remain in effect, any Interim Term Loan remains outstanding and
unpaid or any other amount is owing to any Lender or the Administrative Agent
hereunder or under any other Loan Document, the Borrower shall not, and shall
not permit any of its Subsidiaries to, directly or indirectly:
7.1 Financial Covenants.
(a) Interest Coverage. Permit the ratio of (i) Consolidated
Operating Profit for any four consecutive fiscal quarters ending during any
period set forth below to (ii) Consolidated Interest Expense for such four
consecutive fiscal quarters, to be less than the ratio set forth opposite such
period below:
Period Ratio
------ -----
Closing - December 31, 1999 2.75x
January 1, 2000 - December 31, 2000 3.00x
January 1, 2001 - December 31, 2001 3.25x
Thereafter 3.50x
; provided, that in calculating the foregoing ratio for the periods of four
consecutive fiscal quarters ending on or about 6/30/99, 9/30/99, 12/31/99 and
3/31/00, Consolidated Interest Expense shall be determined giving pro forma
effect to the aggregate principal amount of Indebtedness incurred in connection
with the UT Automotive Acquisition (less the aggregate net cash proceeds
received by the Borrower in respect of the sale of any part of the business
acquired in connection with the UT Automotive Acquisition) as if such
Indebtedness had been incurred on the first day of the relevant period, and in
making such calculation, the interest rate assumed to be applicable to such
Indebtedness shall be (i) with respect to $1,400,000,000 of such Indebtedness,
the weighted average interest rate applicable during the last fiscal quarter in
such period to loans outstanding under the Interim Term Loan Agreement and/or
the debt securities that refinance the loans under the Interim Term Loan
Agreement and (ii) with respect to the remainder of such Indebtedness, the
weighted average interest rate applicable during the last fiscal quarter in such
period to loans in Dollars under the New Revolving Credit Agreement.
(b) Leverage Ratio. Permit the ratio of (i) Consolidated
Indebtedness at the end of any fiscal quarter ending during any period set forth
below to (ii) Consolidated Operating
<PAGE> 50
45
Profit for the four consecutive fiscal quarters then ended to be greater than
the ratio set forth opposite such period below:
Period Ratio
------ -----
Closing - June 30, 2000 4.50x
July 1, 2000 through December 31, 2001 4.00x
Thereafter 3.75x
7.2 Limitation on Indebtedness. Permit any Subsidiary to
create, incur, assume or suffer to exist any Indebtedness, except:
(a) (i) Indebtedness in respect of the Interim Term Loans and
(ii) Indebtedness in respect of extensions of credit under the Other
Credit Agreements and, without duplication, Indebtedness of any
Subsidiary backed by letters of credit issued under either of the Other
Credit Agreements;
(b) Indebtedness under the Subsidiary Guarantee and any Bond
Guarantee;
(c) Indebtedness in respect of Interest Rate Agreement
Obligations and Currency Agreement Obligations entered into to protect
against fluctuations in interest rates or exchange rates and not for
speculative reasons;
(d) Indebtedness incurred by a Special Purpose Subsidiary in
connection with a Receivable Financing Transaction;
(e) intercompany Indebtedness permitted by subsection 7.9; and
(f) other Indebtedness, subject to the provisions of
subsection 7.8.
7.3 Limitation on Liens. Create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired, except (subject, in the case of Liens described in
paragraphs (o) through (t) below, to the provisions of subsection 7.8):
(a) Liens for taxes not yet due or which are being contested
in good faith by appropriate proceedings; provided that adequate
reserves with respect thereto are maintained on the books of the
Borrower or its Subsidiaries, as the case may be, in conformity with
GAAP (or, in the case of Foreign Subsidiaries, generally accepted
accounting principles in effect from time to time in their respective
jurisdictions of organization);
<PAGE> 51
46
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's, suppliers or other like Liens arising in the ordinary
course of business relating to obligations not overdue for a period of
more than 60 days or which are bonded or being contested in good faith
by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation, including any Lien securing letters of credit issued in
the ordinary course of business in connection therewith and deposits
securing liabilities to insurance carriers under insurance and
self-insurance programs;
(d) Liens (other than any Lien imposed by ERISA) incurred on
deposits to secure the performance of bids, trade contracts (other than
for borrowed money), leases, statutory obligations, surety and appeal
bonds, performance bonds, utility payments and other obligations of a
like nature incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred which, in the aggregate, do not materially
interfere with the ordinary conduct of the business of the Borrower and
its Subsidiaries taken as a whole;
(f) Liens created pursuant to the Security Documents;
(g) attachment, judgment or other similar Liens arising in
connection with court or arbitration proceedings fully covered by
insurance or involving individually or in the aggregate, no more than
$40,000,000 at any one time, provided that the same are discharged, or
that execution or enforcement thereof is stayed pending appeal, within
60 days or, in the case of any stay of execution or enforcement pending
appeal, within such lesser time during which such appeal may be taken;
(h) Liens securing obligations (other than obligations
representing Indebtedness for borrowed money) under operating,
reciprocal easement or similar agreements entered into in the ordinary
course of business;
(i) statutory Liens and rights of offset arising in the
ordinary course of business of the Borrower and its Subsidiaries;
(j) Liens in connection with leases or subleases granted to
others and the interest or title of a lessor or sublessor (other than
the Borrower or any Subsidiary of the Borrower) under any lease;
(k) Liens arising in connection with Industrial Development
Bonds or other industrial development, pollution control or other
tax-favored or government-sponsored financing transactions, provided
that such liens do not at any time encumber any property, other than
the property financed by such transaction and other property, assets or
revenues related to the property so financed on which Liens are
customarily granted in connection
<PAGE> 52
47
with such transactions (in each case, together with improvements and
attachments thereto);
(l) Liens on receivables subject to a Receivable Financing
Transaction;
(m) Liens securing Indebtedness permitted by subsection 7.2(c)
and any other Indebtedness in respect of Interest Rate Agreement
Obligations or Currency Agreement Obligations of the Borrower entered
into to protect against fluctuations in interest rates or exchange
rates and not for speculative reasons, provided that such Liens run in
favor of a Lender hereunder or a lender under one of the Other Credit
Agreements;
(n) Extensions, renewals and replacements of any Lien
described in subsections 7.3(a) through (m) above;
(o) Liens (including, without limitation, Liens incurred in
connection with Financing Leases, operating leases and sale-leaseback
transactions) securing Indebtedness of the Borrower and its
Subsidiaries permitted by subsection 7.2 incurred to finance the
acquisition of property; provided that (i) such Liens shall be created
substantially simultaneously with the purchase of such property, (ii)
such Liens do not at any time encumber any property other than the
property financed by such Indebtedness, (iii) the amount of
Indebtedness secured thereby is not increased and (iv) the principal
amount of Indebtedness secured by any such Lien shall at no time exceed
100% of the purchase price of such property;
(p) Liens securing the Indebtedness of Foreign Subsidiaries
permitted by subsection 7.2, provided that such Liens permitted by this
paragraph do not at any time encumber any property located in the
United States;
(q) Liens securing reimbursement obligations with respect to
documentary letters of credit permitted hereunder which encumber
documents and other property relating to such letters of credit;
(r) Liens securing Acquired Indebtedness permitted by
subsection 7.2, provided, that (i) such Liens existed at the time such
corporation became a Subsidiary or such assets were acquired and were
not created in anticipation thereof, (ii) any such Lien does not by its
terms cover any property or assets after the time such corporation
became or becomes a Subsidiary or such assets were acquired which were
not covered immediately prior thereto (and improvements and attachments
thereto) and (iii) any such Lien does not by its terms secure any
Indebtedness other than Indebtedness existing immediately prior to the
time such corporation became or becomes a Subsidiary or such assets
were acquired;
(s) except as otherwise provided for in subsections 7.3(a)
through (n), Liens securing Indebtedness of Domestic Subsidiaries
permitted under subsection 7.2;
(t) other Liens; and
<PAGE> 53
48
(u) extensions, renewals and replacements of any Lien
described in subsections 7.3(o) through (t) above.
7.4 Limitation on Guarantee Obligations. Create, incur, assume
or suffer to exist any Guarantee Obligation except:
(a) Guarantee Obligations of the Borrower under the Other
Credit Agreements and of the Domestic Subsidiaries under the Subsidiary
Guarantee and any Bond Guarantee;
(b) Guarantee Obligations of any Subsidiary Guarantor in
respect of obligations of the U.S. Borrower or any other Subsidiary
Guarantor;
(c) Guarantee Obligations of any Subsidiary that is not a
Subsidiary Guarantor in respect of obligations of any other Subsidiary
that is not a Subsidiary Guarantor;
(d) Guarantee Obligations in respect of operating leases;
(e) Guarantee Obligations of the U.S. Borrower in respect of
obligations of any Subsidiary that are permitted to be incurred under
this Agreement; and
(f) other Guarantee Obligations, subject to the provisions of
subsection 7.8.
7.5 Limitations on Fundamental Changes. Unless expressly
permitted under this Agreement, enter into any merger, consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), or convey, sell, lease, assign, transfer or
otherwise dispose of, all or substantially all of its property, business or
assets, or make any material change in its present method of conducting
business, except:
(a) any Subsidiary of the Borrower may be merged or
consolidated with or into the Borrower (provided that the Borrower
shall be the continuing or surviving corporation) or with or into any
one or more other Subsidiaries of the Borrower;
(b) any Subsidiary may sell, lease, transfer or otherwise
dispose of any or all of its assets (upon voluntary liquidation or
otherwise) to the Borrower or any other Subsidiary of the Borrower;
(c) the Borrower may merge or consolidate with any Person,
provided that (A) the Borrower is the surviving corporation of such
merger or consolidation, (B) after giving effect thereto, no Default or
Event of Default is in existence and (C) if such merger or
consolidation had occurred on the first day of the period of four full
fiscal quarters most recently ended prior to the date of such event,
the Borrower would have been in compliance with subsection 7.1 during
such period of four full fiscal quarters; and
<PAGE> 54
49
(d) any Subsidiary may be merged, consolidated or amalgamated
with or into any Person, or may sell, lease, transfer or otherwise
dispose of its assets (upon voluntary liquidation, dissolution or
otherwise) to any Person or may liquidate, wind up or dissolve itself
if (A) after giving effect thereto, no Default or Event of Default is
in existence and(B) if such merger, consolidation, amalgamation, sale,
lease, transfer or other disposition had occurred on the first day of
the period of four fiscal quarters most recently ended prior to the
date of such event, the Borrower would have been in compliance with
subsection 7.1 during such period of four full fiscal quarters.
7.6 Limitation on Sale of Assets. Convey, sell, lease, assign,
transfer or otherwise dispose of, any of its property, business or assets
(including, without limitation, receivables and leasehold interests) whether now
owned or hereafter acquired, or, in the case of any Subsidiary, issue or sell
any shares of such Subsidiary's capital stock to any Person other than the
Borrower or any Wholly Owned Subsidiary (or to qualify directors if required by
applicable law or similar de minimis issuances of capital stock to comply with
Requirements of Law), except:
(a) the sale or other disposition of obsolete or worn out
property or other property not necessary for operations disposed of in
the ordinary course of business; provided that (i) the Net Proceeds of
each such transaction are applied to obtain a replacement item or items
of property within 120 days of the disposition thereof or (ii) the fair
market value of any property not replaced pursuant to clause (i) above
shall not exceed $20,000,000 in the aggregate in any one fiscal year of
the Borrower;
(b) the sale of inventory or Cash Equivalents in the ordinary
course of business;
(c) the sale of any property in connection with any sale and
leaseback transaction;
(d) the sale by any Foreign Subsidiary of its accounts
receivable; provided that the terms of each such sale are satisfactory
in form and substance to the Administrative Agent;
(e) the sale by any Domestic Subsidiary of its accounts
receivable; provided that the terms of each such sale are satisfactory
in form and substance to the Administrative Agent;
(f) any sale or other disposition permitted under subsections
7.5 or 7.9;
(g) any operating lease entered into in the ordinary course of
business;
(h) any assignments or licenses of intellectual property in
the ordinary course of business;
(i) any sale, contribution or transfer to or by a Special
Purpose Subsidiary in connection with a Receivable Financing
Transaction; and
<PAGE> 55
50
(j) any sale or other disposition of assets if (A) after
giving effect thereto and the application of the proceeds therefrom, no
Default or Event of Default is in existence and (B) if such sale or
other disposition had occurred on the first day of the period of four
full final quarters most recently ended prior to the date of such sale
or other disposition, the Borrower would have been in compliance with
subsection 7.1 during such period of four full fiscal quarters.
7.7 Limitation on Dividends. Declare or pay any dividend on,
or make any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, defeasance, retirement or other
acquisition of, any shares of any class of capital stock of the Borrower or any
warrants or options to purchase any such stock, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either directly
or indirectly, whether in cash or property or in obligations of the Borrower or
any Subsidiary, except for (a)(i) payment by the Borrower of amounts then owing
to management personnel of the Borrower pursuant to the terms of their
respective employment contracts or under any employee benefit plan,
(ii)mandatory purchases by the Borrower of its common stock from management
personnel pursuant to the terms of their respective employment agreements or any
employee benefit plan, (iii)additional repurchases by the Borrower of its
common stock from management personnel, and other officers or employees of the
Borrower or any Subsidiary in an amount not to exceed $35,000,000 in the
aggregate and (iv) the purchase, redemption or retirement of any shares of any
capital stock of the Borrower or options to purchase capital stock of the
Borrower in connection with the exercise of outstanding stock options, (b) if no
Default or Event of Default has occurred and is continuing (or would occur and
be continuing after giving effect thereto) when any such dividend is declared by
the Board of Directors of the Borrower or such payment is made on the account of
the purchase of capital stock of the Borrower, cash dividends on the Borrower's
capital stock or such payments made on the account of the purchase of capital
stock of the Borrower not to exceed, in the aggregate, in any fiscal quarter
(the "Payment Quarter") an amount equal to the greater of (i) $25,000,000 and
(ii) (A) 50% (100% if the Borrower shall have attained Investment Grade Status)
of Consolidated Net Income of the Borrower and its consolidated Subsidiaries for
the period of four consecutive fiscal quarters ended immediately prior to the
Payment Quarter (such period of four quarters being the "Calculation Period" in
respect of such Payment Quarter), less (B) the cash amount of all (I) dividends
paid and redemptions made by the Borrower during such Calculation Period in
respect of capital stock and (II) payments made on the account of the purchase
of capital stock of the Borrower during such Calculation Period, but only to the
extent permitted by the terms of the outstanding Subordinated Debt, and (c)
dividends or distributions in the form of additional shares of such capital
stock or in options, warrants or other rights to purchase capital stock.
7.8 Limitation on Subsidiary and Secured Indebtedness. Create,
incur, assume or suffer to exist Subsidiary and Secured Indebtedness in an
aggregate principal amount at any time outstanding exceeding 10% of Consolidated
Assets at such time; or create, incur, assume or suffer to exist any
Indebtedness that constitutes Subsidiary and Secured Indebtedness and that is
secured by any Lien on any property, assets or receivables of the Borrower or
any of its Subsidiaries (other than Liens permitted by paragraphs (a) through
(n) of subsection 7.3) in an aggregate principal amount at any time exceeding 5%
of Consolidated Assets at such time.
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51
7.9 Limitation on Investments, Loans and Advances. Make or suffer
to exist any advance, loan, extension of credit or capital contribution to,
or purchase any stock, bonds, notes,debentures or other securities of or any
assets constituting a business unit of, or make any other investment in, any
Person, or acquire or invest in any interest in any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) investments in Cash Equivalents;
(c) investments by Foreign Subsidiaries in high quality
investments of a type similar to Cash Equivalents made outside of the
United States of America;
(d) capital contributions and equity investments made prior to
the date hereof in any Subsidiary or Special Entity and any
recapitalization thereof not increasing the amounts thereof;
(e) (i) loans, advances, and extensions of credit by any
Subsidiary to the Borrower and (ii) loans, advances, extensions of
credit, capital contributions and other investments by the Borrower or
any Subsidiary to or in any Subsidiary;
(f) the purchase by the Borrower or any Subsidiary of
participating interests in loans to Foreign Subsidiaries; provided that
the amount of each such participating interest does not exceed the
amount which the Borrower or such Subsidiary would otherwise be
permitted to lend or contribute to such Foreign Subsidiaries pursuant
to this subsection 7.9;
(g) the Borrower and its Subsidiaries may acquire or invest in
any Special Entities or the assets constituting a business unit of any
Person that would be a Special Entity, provided that the aggregate
purchase price of such acquisitions after the date hereof does not
exceed $400,000,000 (less, in the case of Special Entities that become
Subsidiaries of the Borrower, the aggregate amount of Indebtedness of
such Special Entities at the time such Special Entities are acquired)
per fiscal year; and provided, further, that up to $100,000,000 of such
permitted amount which is not expended in any fiscal year may be
carried over for such acquisitions in any subsequent fiscal year; and
provided, still further, that no more than $150,000,000 per fiscal year
of any such permitted amount may be expended to acquire stock or other
evidence of beneficial ownership of Special Entities that do not become
Subsidiaries of the Borrower;
(h) advances to employees in the ordinary course of business
for travel, relocation and related expenses;
(i) investments received in connection with the bankruptcy or
reorganization of suppliers, customers and other Persons having
obligations in favor of the Borrower or any Subsidiary in settlement of
delinquent obligations of, and other disputes with, customers,
suppliers and such other Persons arising in the ordinary course of
business;
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52
(j) advances, loans, extensions of credit or other investments
held by a Person at the time it becomes a Subsidiary of the Borrower in
connection with an acquisition permitted hereunder; provided, that such
advances, loans, extensions of credit or other investments have not
been made in anticipation of such acquisition;
(k) other investments, advances, loans, extensions of credit
and capital contributions by the Borrower and its Subsidiaries not
exceeding $125,000,000 in the aggregate at any one time outstanding;
(l) the UT Automotive Acquisition; and
(m) investments in or acquisitions of companies or business
units, in each case, engaged primarily in the manufacturing of
automotive parts business and businesses related thereto so long as (i)
no Default or Event of Default shall have occurred and be continuing
before and after giving effect to such transaction, (ii) the Borrower
would be in pro forma compliance with subsection 7.1 after giving
effect to such transaction, (iii) after giving pro forma effect to such
transaction as if it had occurred on the first day of the period of
four consecutive fiscal quarters most recently ended prior to the date
of such transaction, the ratio of (a) Consolidated Indebtedness on the
date of, and after giving effect to, such transaction to (b)
Consolidated Operating Profit for such period of four consecutive
fiscal quarters would be less than 4.00 and (iv) such transaction is
not the result of a hostile bid made by the Borrower or its
Subsidiaries.
7.10 Limitation on Optional Payments and Modification of Debt
Instruments; Certain Derivative Transactions. (a) Prepay, purchase, redeem,
retire, defease or otherwise acquire, or make any payment on account of any
principal of, interest on, or premium payable in connection with the prepayment,
redemption or retirement of any outstanding Subordinated Debt, except that the
Borrower may prepay, purchase or redeem Subordinated Debt with the proceeds of
the issuance of other subordinated Indebtedness of the Borrower or capital stock
of the Borrower; provided that, in the case of the issuance of subordinated
Indebtedness, either (i) the principal terms of such other subordinated
Indebtedness are no more restrictive, taken as a whole, to the Borrower and its
Subsidiaries than the principal terms of the Subordinated Debt being repaid,
purchased or redeemed or (ii) the terms and conditions of the other subordinated
Indebtedness are reasonably satisfactory to the Administrative Agent; provided,
further, that, notwithstanding any provision contained in this subsection 7.10,
if no Default or Event of Default has occurred and is continuing or would occur
and be continuing as a result of the following, the Subordinated Debt may be
prepaid at any time without restriction; (b) enter into any derivative
transaction or similar transaction obligating the Borrower or any of its
Subsidiaries to make any payment to any other Person as a result of any change
in value or market price of Subordinated Debt or Capital Stock of the Borrower;
or (c) without the consent of the Administrative Agent, amend, modify or change,
or consent or agree to any amendment, modification or change to any of the terms
of any Subordinated Debt (except that without the consent of the Administrative
Agent or any Lender, the terms of the Subordinated Debt may be amended, modified
or changed if such amendment, modification or change would extend the maturity
or reduce the amount of any payment of principal thereof, would reduce the rate
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53
extend the date for payment of interest thereon, would eliminate covenants
(other than covenants with respect to subordination to Indebtedness under this
Agreement and, if applicable, the Subsidiary Guarantee) or defaults in such
Subordinated Debt or would make such covenants or defaults less restrictive or
make any other change that would not require the consent of the holders of such
Subordinated Debt).
7.11 Transactions with Affiliates. Enter into any transaction,
including, without limitation, any purchase, sale, lease or exchange of property
or the rendering of any service, with any Affiliate unless such transactions are
otherwise permitted under this Agreement, or such transactions are in the
ordinary course of the Borrower's or such Subsidiary's business and are upon
fair and reasonable terms no less favorable to the Borrower or such Subsidiary,
as the case may be, than it would obtain in a comparable arm's length
transaction with a Person not an Affiliate; provided, however, that the Borrower
may engage The Cypress Group, LLC or any Affiliate of The Cypress Group, LLC as
financial advisor, underwriter, broker, dealer-manager or finder in connection
with any transaction at the then customary market rates for similar services.
7.12 Corporate Documents. Amend its Certificate of
Incorporation or By-Laws, each as in effect on the Closing Date, if such
amendment would reasonably be expected to impair the ability of the Loan Parties
to perform their respective obligations under the Loan Documents to which they
are a par
7.13 Fiscal Year. Permit the fiscal year of the Borrower to end on a day other
than December 31.
7.14 Limitation on Restrictions Affecting Subsidiaries. Enter
into any agreement with any Person other than the Lenders pursuant hereto which
prohibits or limits the ability of any Subsidiary to (a) pay dividends or make
other distributions or pay any Indebtedness owed to the Borrower or any
Subsidiary, (b) make loans or advances to the Borrower or any Subsidiary or (c)
transfer any of its properties or assets to the Borrower or any Subsidiary,
except (i) prohibitions or restrictions under applicable law, (ii) agreements
and instruments governing or evidencing secured Indebtedness otherwise permitted
to be incurred under this Agreement that limits the right of the borrower to (A)
dispose of the assets securing such Indebtedness or (B) in the case of any
Foreign Subsidiary, to make dividends or distributions, (iii) prohibitions or
restrictions under agreements relating to Acquired Indebtedness and any
refinancings thereof, (iv) prohibitions or restrictions with respect to the
distribution or dispositions of assets or property in joint venture and similar
agreements entered into in the ordinary course of business, (v) customary
non-assignment provisions in leases and other agreements entered into in the
ordinary course of business, (vi) customary net worth provisions contained in
leases and other agreements entered into by a Subsidiary in the ordinary course
of business, (vii) customary restrictions with respect to a Subsidiary pursuant
to an agreement that has been entered into for the sale or disposition of the
assets or stock of such Subsidiary, (viii) (x) any such restrictions existing by
reasons of Contractual Obligations listed on Schedule VIII or (y) Contractual
Obligations in effect on the Closing Date affecting Subsidiaries acquired in the
UT Automotive Acquisition, (ix) any restrictions on a Special Purpose
Subsidiary, (x) restrictions on cash or other deposits or net worth provisions
under customer and supply agreements entered into in the ordinary course
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of business, and (xi) any restrictions contained in any instrument or agreement
that refinances any Indebtedness or other obligations which contains similar
restrictions.
7.15 Special Purpose Subsidiary. Permit (a) any Special
Purpose Subsidiary to engage in any business other than Receivable Financing
Transactions and activities directly related thereto or (b) at any time the
Borrower or any of its Subsidiaries (other than a Special Purpose Subsidiary) or
any of their respective assets to incur any liability, direct or indirect,
contingent or otherwise, in respect of any obligation of a Special Purpose
Subsidiary whether arising under or in connection with any Receivable Financing
Transaction or otherwise.
7.16 Interest Rate Agreements. Enter into, or become a party
to, any Interest Rate Agreement that is speculative in nature.
SECTION 8. EVENTS OF DEFAULT
Upon the occurrence of any of the following events:
(a) Any Borrower shall fail to pay (i) any principal of the
Interim Term Loans when due (whether at the stated maturity, by
acceleration or otherwise) in accordance with the terms thereof or
hereof or (ii) any interest on the Interim Term Loans, or any fee or
other amount payable hereunder, within five days after any such
interest, fee or other amount becomes due in accordance with the terms
hereof; or
(b) Any representation or warranty made or deemed made by the
Borrower or any other Loan Party herein or in any other Loan Document
or which is contained in any certificate, document or financial or
other statement furnished at any time under or in connection with this
Agreement or any other Loan Document shall prove to have been incorrect
in any material respect on or as of the date made or deemed made; or
(c) The Borrower or any other Loan Party shall default in the
observance or performance of any negative covenant contained in Section
7; or
(d) The Borrower or any other Loan Party shall default in the
observance or performance of any other agreement contained in this
Agreement or any other Loan Document other than as provided in (a)
through (c) above, and such default shall continue unremedied for a
period of 30 days; or
(e) Any Loan Document shall cease, for any reason, to be in
full force and effect, or the Borrower or any other Loan Party shall so
assert; or any security interest created by any of the Security
Documents shall cease to be enforceable and of the same effect and
priority purported to be created thereby, except, in each case, as
provided in subsection 10.18; or
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(f) The Subsidiary Guarantee shall cease, for any reason, to
be in full force and effect, or any guarantor thereunder shall so
assert, except as provided in subsection 10.18; or
(g) The subordination provisions contained in any instrument
pursuant to which the Subordinated Debt was created or in any
instrument evidencing such Subordinated Debt shall cease, for any
reason, to be in full force and effect or enforceable in accordance
with their terms; or
(h) The Borrower or any of its Subsidiaries shall (i) default
in any payment of principal of or interest on any Indebtedness (other
than Indebtedness under this Agreement), in the payment of any
Guarantee Obligation or in the payment of any Interest Rate Agreement
Obligation, in any case where the principal amount thereof then
outstanding exceeds $40,000,000 beyond the period of grace (not to
exceed 60 days), if any, provided in the instrument or agreement under
which such Indebtedness, Guarantee Obligation or Interest Rate
Agreement Obligation was created; or (ii) default in the observance or
performance of any other agreement or condition relating to any such
Indebtedness, Guarantee Obligation or Interest Rate Agreement
Obligation or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such
Indebtedness or, beneficiary or beneficiaries of such Guarantee
Obligation (or a trustee or agent on behalf of such holder or holders
or beneficiary or beneficiaries) to cause, with the giving of notice if
required, such Indebtedness to become due prior to its stated maturity
or such Guarantee Obligation to become payable; or
(i) (i) The Borrower or any Material Subsidiary shall commence
any case, proceeding or other action (A) under any existing or future
law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to adjudicate
it a bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other
relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian or other similar official for it or for
all or any substantial part of its assets, or the Borrower or any
Material Subsidiary shall make a general assignment for the benefit of
its creditors; or (ii) there shall be commenced against the Borrower or
any Material Subsidiary any case, proceeding or other action of a
nature referred to in clause (i) above which (A) results in the entry
of an order for relief or any such adjudication or appointment or (B)
remains undismissed, undischarged or unbonded for a period of 60 days;
or (iii) there shall be commenced against the Borrower or any Material
Subsidiary any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against
all or any substantial part of its assets which results in the entry of
an order for any such relief which shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from the
entry thereof; or (iv) the Borrower or any Material Subsidiary shall
take any action in furtherance of, or indicating its consent to,
<PAGE> 61
56
approval of, or acquiescence in, any of the acts set forth in clause
(i), (ii), or (iii) above; or (v) the Borrower or any Material
Subsidiary shall generally not, or shall be unable to, or shall admit
in writing its inability to, pay its debts as they become due; or
(j) (i) Any Person shall engage in any non-exempt "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the
Code) involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist
with respect to any Single Employer Plan, (iii) a Reportable Event
shall occur with respect to, or proceedings shall commence to have a
trustee appointed, or a trustee shall be appointed, to administer or to
terminate, any Single Employer Plan, which Reportable Event or
commencement of proceedings or appointment of a trustee is, in the
reasonable opinion of the Majority Lenders, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any
Single Employer Plan shall terminate for purposes of Title IV of ERISA,
(v) the Borrower or any Commonly Controlled Entity shall, or in the
reasonable opinion of the Majority Lenders is likely to, incur any
liability in connection with a withdrawal from, or the Insolvency or
Reorganization of, a Multiemployer Plan or (vi) any other event or
condition shall occur or exist, with respect to a Plan; and in each
case in clauses (i) through (vi) above, such event or condition,
together with all other such events or conditions, if any, would
reasonably be expected to subject the Borrower or any of its
Subsidiaries to any tax, penalty or other liabilities in the aggregate
material in relation to the business, operations, property or financial
or other condition of the Borrower and its Subsidiaries taken as a
whole; or
(k) One or more judgments or decrees shall be entered against
the Borrower or any of its Subsidiaries involving in the aggregate a
liability (not paid or fully covered by insurance) of $40,000,000 or
more and all such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 60 days from the
entry thereof; or
(l) (i) Any Person or "group" (within the meaning of Section
13(d) or 15(d) of the Exchange Act) (A) shall have acquired beneficial
ownership of 35% or more of any outstanding class of capital stock of
the Borrower having ordinary voting power in the election of directors
or (B) shall obtain the legal right (whether or not exercised) to elect
a majority of the Borrower's directors or (ii) the Board of Directors
of the Borrower shall not consist of a majority of Continuing
Directors;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (i) above with respect of the Borrower,
automatically the Interim Term Loan Commitments shall immediately terminate and
the Interim Term Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement shall immediately become due and payable, and
(B) if such event is any other Event of Default, any of the following actions
may be taken: (i) with the consent of the Majority Lenders, the Administrative
Agent may, or upon the request of the Majority Lenders, the Administrative Agent
shall, by notice to the Borrower declare the Interim Term Loan Commitments to be
terminated forthwith, whereupon
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57
the Interim Term Commitments shall immediately terminate; (ii) with the consent
of the Majority Lenders, the Administrative Agent may, or upon the direction of
the Majority Lenders, the Administrative Agent shall, by notice of default to
the Borrower, declare the Interim Term Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement and the Notes to be
due and payable forthwith, whereupon the same shall immediately become due and
payable and (iii) the Administrative Agent may, and upon the direction of the
Majority Lenders shall, exercise any and all remedies and other rights provided
pursuant to this Agreement and/or the other Loan Documents.
Except as expressly provided above in this Section,
presentment, demand, protest and all other notices of any kind are hereby
expressly waived.
SECTION 9. THE ADMINISTRATIVE AGENT; THE MANAGING
AGENTS, DOCUMENTATION AGENT AND
SYNDICATION AGENTS
9.1 Appointment. Each Lender hereby irrevocably designates and
appoints Chase as the Administrative Agent of such Lender under this Agreement
and the other Loan Documents, and each Lender irrevocably authorizes Chase to
act as the Administrative Agent of such Lender and to take such action on its
behalf under the provisions of this Agreement and the other Loan Documents and
to exercise such powers and perform such duties as are expressly delegated to
the Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent.
9.2 Delegation of Duties. The Administrative Agent may execute
any of its duties under this Agreement and the other Loan Documents by or
through agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
9.3 Exculpatory Provisions. Neither the Administrative Agent
nor any of its respective officers, directors, employees, agents,
attorneys-in-fact or affiliates shall be (i) liable for any action lawfully
taken or omitted to be taken by it or such Person under or in connection with
this Agreement or any other Loan Document (except for its or such Person's gross
negligence or willful misconduct) or (ii) responsible in any manner to any of
the Lenders for any recitals, statements, representations or warranties made by
the Borrower or other Person or any officer thereof contained in this Agreement
or any other Loan Document or in any certificate, report, statement or other
document referred to or provided for in, or received by the Administrative Agent
under or in connection with, this Agreement or any other Loan Document
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58
or for the value, validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document or for any failure of
the Borrower or any other Person to perform its obligations hereunder or
thereunder. The Administrative Agent shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other Loan
Document or to inspect the properties, books or records of the Borrower.
9.4 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
Note, writing, resolution, notice, consent, certificate, affidavit, letter,
telecopy, telex or teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the Borrower),
independent accountants and other experts selected by the Administrative Agent.
The Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment or transfer
thereof shall have been filed with the Administrative Agent. The Administrative
Agent shall be fully justified as between itself and the Lenders in failing or
refusing to take any action under this Agreement or any other Loan Document
unless it shall first receive such advice or concurrence of the Majority Lenders
as it deems appropriate or it shall first be indemnified to its satisfaction by
the Lenders against any and all liability and expense which may be incurred by
it by reason of taking or continuing to take any such action. The Administrative
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement and the other Loan Documents in accordance with a
request of the Majority Lenders, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Interim Term Loans.
9.5 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent has received notice from a
Lender or the Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In the
event that the Administrative Agent receives such a notice, the Administrative
Agent shall give notice thereof to the Lenders. The Administrative Agent shall
take such action reasonably promptly with respect to such Default or Event of
Default as shall be reasonably directed by the Majority Lenders; provided that
unless and until the Administrative Agent shall have received such directions,
the Administrative Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the Lenders.
9.6 Non-Reliance on Administrative Agent and Other Lender.
Each Lender expressly acknowledges that neither the Administrative Agent nor any
of its officers, directors, employees, agents, attorneys-in-fact or affiliates
has made any representations or warranties to it and that no act by the
Administrative Agent hereafter taken, including any review of the affairs of the
Borrower, shall be deemed to constitute any representation or warranty by the
Administrative Agent to any Lender. Each Lender represents to the Administrative
Agent that it has, independently and without reliance upon the Administrative
Agent or any other Lender, and
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59
based on such documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Borrower and made its
own decision to make its Interim Term Loan hereunder and enter into this
Agreement. Each Lender also represents that it will, independently and without
reliance upon the Administrative Agent or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and decisions in taking or not taking
action under this Agreement and the other Loan Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Borrower. Except for notices, reports and other documents expressly required to
be furnished to the Lenders by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, operations,
property, condition (financial or otherwise), prospects or creditworthiness of
the Borrower which may come into the possession of the Administrative Agent or
any of its respective officers, directors, employees, agents, attorneys-in-fact
or affiliates.
9.7 Indemnification. Each Lender agrees to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to the outstanding principal amount of its Interim Term Loan
on the date on which indemnification is sought, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the Interim
Term Loans) be imposed on, incurred by or asserted against the Administrative
Agent in any way relating to or arising out of this Agreement, any of the other
Loan Documents or any documents contemplated by or referred to herein or therein
or the transactions contemplated hereby or thereby or any action taken or
omitted by the Administrative Agent under or in connection with any of the
foregoing; provided that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the gross
negligence or willful misconduct of the Administrative Agent. The agreements in
this subsection shall survive the payment of the Interim Term Loans and all
other amounts payable hereunder.
9.8 Administrative Agent in its Individual Capacity. The
Administrative Agent and its affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower as though the
Administrative Agent were not the Administrative Agent hereunder and under the
other Loan Documents. With respect to the Interim Term Loan made by the
Administrative Agent and any Note issued to it, the Administrative Agent shall
have the same rights and powers under this Agreement and the other Loan
Documents as any Lender and may exercise the same as though it were not the
Administrative Agent, and the terms "Lender" and "Lenders" shall include the
Administrative Agent in its individual capacity.
9.9 Successor Administrative Agent. The Administrative Agent
may resign as Administrative Agent upon 30 days' notice to the Lenders. If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Majority Lenders shall appoint from among
the Lenders a successor administrative agent for the
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Lenders, which successor administrative agent shall be approved by the Borrower
(such approval not to be unreasonably withheld), whereupon such successor
administrative agent shall succeed to the rights, powers and duties of the
resigning Administrative Agent, and the term "Administrative Agent" shall mean
such successor administrative agent effective upon such appointment and
approval, and the former Administrative Agent's rights, powers and duties as
Administrative Agent shall be terminated, without any other or further act or
deed on the part of such former Administrative Agent or any of the parties to
this Agreement or any holders of the Interim Term Loans. After any resigning
Administrative Agent's resignation as either Administrative Agent, the
provisions of this subsection shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Administrative Agent under this
Agreement and the other Loan Documents.
9.10 The Documentation Agent, Managing Agents and
Co-Syndication Agents. Each Lender, the Documentation Agent and each
Co-Syndication Agent and Managing Agent acknowledge that the Documentation
Agent, Co-Syndication Agents and Managing Agents, in such capacities, shall have
no duties or responsibilities, and shall incur no liabilities, under this
Agreement or the other Loan Documents in their respective capacities as such.
9.11 Actions Under Security Documents . With respect to any
action under or in respect of the Security Documents that the provisions of this
Agreement permit or require the Administrative Agent to take only with the
consent, or upon the direction, of all of the Lenders or the Majority Lenders,
as the case may be, the Lenders acknowledge that the Administrative Agent shall
be required to take such action only if such action is approved by, in addition
to all the Lenders or the Majority Lenders, as the case may be, such instructing
group of lenders under each of the Other Credit Agreements as the Other Credit
Agreements require for such action.
9.12 Intercreditor Agreement . In the event that a Refinancing
Agreement is entered into, the Administrative Agent is authorized and directed
to enter into an intercreditor agreement reasonably satisfactory to the
Administrative Agent as contemplated by the definition of Refinancing
Agreement set forth in subsection 1.1, and to enter into such amendments, if
any, to the Subsidiary Guarantee and the Security Documents as it shall
reasonably deem required in order to give effect to such intercreditor
agreement, provided, that, in any case, the Indebtedness of the Borrower
hereunder and under the Other Credit Agreements (including any Refinancing
Agreement in respect of either of the Other Credit Agreements) shall be pari
passu and equally and ratably secured.
SECTION 10. MISCELLANEOUS
10.1 Amendments and Waivers. (a) Neither this Agreement or any
other Loan Document, nor any terms hereof or thereof may be amended,
supplemented, waived or modified except in accordance with the provisions of
this subsection 10.1. The Majority Lenders may, or, with the written consent of
the Majority Lenders, the Administrative Agent may, from time to time, (i) enter
into with the Borrower written amendments, supplements or modifications hereto
and to the other Loan Documents for the purpose of adding any provisions to this
Agreement or the other Loan Documents or changing in any manner the rights or
obligations of the Lenders or
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of the Borrower hereunder or thereunder or (ii) waive at the Borrower's request,
on such terms and conditions as the Majority Lenders or the Administrative
Agent, as the case may be, may specify in such instrument, any of the
requirements of this Agreement or the other Loan Documents or any Default or
Event of Default and its consequences; provided, however, that no such waiver
and no such amendment, supplement or modification shall:
(A) reduce the amount or extend the scheduled date of
maturity of any Interim Term Loan or of any scheduled installment
thereof, or reduce the stated rate of any interest or fee payable
hereunder or extend the scheduled date of any payment thereof or
increase the amount or extend the expiration date of any Lender's
Interim Term Loan Commitment, in each case without the consent of each
Lender affected thereby;
(B) amend, supplement, modify or waive any provision of
this subsection 10.1 or reduce the percentages specified in the
definition of "Majority Lenders" or consent to the assignment or
transfer by the Borrower of any of its rights and obligations under
this Agreement and the other Loan Documents, in each case without the
consent of all the Lenders or reduce the percentages specified in the
definitions of "Majority Lenders" without the consent of all of the
Lenders;
(C) amend, supplement, modify or waive any provision of
Section 9 or any other provision of this Agreement governing the
respective rights or obligations of the Administrative Agent without
the consent of the then Administrative Agent;
(G) amend, modify or waive any provision of subsection 3.8
without the consent of each Lender affected thereby; or
(H) release all or substantially all of the guarantees
contained in the Subsidiary Guarantee or all or substantially all of
the Collateral under, and as defined in, the Security Documents without
the consent of each Lender other than as permitted under subsection
10.18.
Any waiver and any amendment, supplement or modification pursuant to this
subsection 10.1 shall apply to each of the Lenders and shall be binding upon the
Borrower, the Lenders, the Administrative Agent and all future holders of the
Interim Term Loans. In the case of any waiver, the Borrower, the Lenders and the
Administrative Agent shall be restored to their former positions and rights
hereunder and under the other Loan Documents, and any Default or Event of
Default waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon.
10.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile transmission) and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made when delivered by hand, or five days
after being deposited in the mail, postage prepaid, or, in the case of telecopy
notice, when received, or, in the case of delivery by a nationally recognized
overnight courier, when received, addressed as follows in the case of the
Borrower and the Administrative
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Agent, and as set forth in Schedule I in the case of the other parties hereto,
or to such other address as may be hereafter notified by the respective parties
hereto and any future holders of the Notes:
The Borrower: Lear Corporation
21557 Telegraph Road
Southfield, Michigan 48034
Attention: Raymond F. Lowry
Telecopy: (248) 746-1730
The
Administrative Agent: The Chase Manhattan Bank
270 Park Avenue
New York, New York 10017
Attention: Richard Smith
Telecopy: (212) 270-5100
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to subsection 2.3, 3.2, 3.4 or 3.7.
10.3 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Borrower, the Administrative
Agent or any Lender, any right, remedy, power or privilege hereunder or under
the other Loan Documents shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, remedy, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and privileges herein
provided are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.
10.4 Survival of Representations and Warranties. All
representations and warranties made hereunder and in the other Loan Documents
(or in any amendment, modification or supplement hereto or thereto) and in any
certificate delivered pursuant hereto or such other Loan Documents shall survive
the execution and delivery of this Agreement and the Notes and the making of the
Interim Term Loans hereunder.
10.5 Payment of Expenses and Taxes. The Borrower agrees (a) to
pay or reimburse the Administrative Agent for all its reasonable out-of-pocket
costs and reasonable expenses incurred in connection with the development,
preparation and execution of, and any amendment, supplement or modification to,
this Agreement, the Notes and the other Loan Documents and any other documents
prepared in connection herewith or therewith, and the consummation of the
transactions contemplated hereby and thereby, including, without limitation, the
reasonable fees and disbursements of counsel to the Administrative Agent, (b) to
pay or reimburse each Lender and the Administrative Agent for all their costs
and expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, the Notes and any such other documents, including,
without limitation, fees and disbursements of counsel to the Administrative
Agent and the reasonable fees and disbursements of counsel to the
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several Lenders, and (c) to pay, indemnify, and hold each Lender and the
Administrative Agent and their respective directors, officers, employees and
agents harmless from, any and all recording and filing fees and any and all
liabilities with respect to, or resulting from any delay in paying, stamp,
excise and other taxes, if any, which may be payable or determined to be payable
in connection with the execution and delivery of, or consummation of any of the
transactions contemplated by, or any amendment, supplement or modification of,
or any waiver or consent under or in respect of, this Agreement, the Notes and
any such other documents, and (d) to pay, indemnify, and hold each Lender and
the Administrative Agent harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever with respect
to the execution, delivery, enforcement, performance and administration of this
Agreement, the Notes and the other Loan Documents, the use or proposed use by
the Borrower of the proceeds of the Loans (all the foregoing, collectively, the
"indemnified liabilities"); provided that the Borrower shall have no obligation
hereunder to (i) the Administrative Agent with respect to indemnified
liabilities arising from the gross negligence or willful misconduct of the
Administrative Agent or (ii) any Lender with respect to indemnified liabilities
arising from the gross negligence or willful misconduct of such Lender, in each
case as finally determined by a court of competent jurisdiction. The agreements
in this subsection shall survive repayment of the Interim Term Loans and all
other amounts payable hereunder.
10.6 Successors and Assigns; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of the
Borrower, the Lenders, the Administrative Agent, all future holders of the
Interim Term Loans and their respective successors and assigns, except that the
Borrower may not assign or transfer any of its rights or obligations under this
Agreement without the prior written consent of each Lender.
(b) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time sell to one
or more banks or other entities ("Participants") participating interests in the
Interim Term Loan owing to such Lender, the Interim Term Commitment of such
Lender or any other interest of such Lender hereunder and under the other Loan
Documents. In the event of any such sale by a Lender of a participating interest
to a Participant, such Lender's obligations under this Agreement to the other
parties to this Agreement shall remain unchanged, such Lender shall remain
solely responsible for the performance thereof, such Lender shall remain the
holder of any such Interim Term Loan for all purposes under this Agreement and
the other Loan Documents, and the Borrower and the Administrative Agent shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement and the other Loan
Documents. Any agreement pursuant to which any Lender shall sell any such
participating interest shall provide that such Lender shall retain the sole
right and responsibility to exercise such Lender's rights and enforce the
Borrower's obligations hereunder, including the right to consent to any
amendment, supplement, modification or waiver of any provision of this Agreement
or any of the other Loan Documents, provided that such participation agreement
may provide that such Lender will not agree to any amendment, supplement,
modification or waiver described in clause (A) or (B) of the proviso to the
second sentence of subsection 10.1(a) without the consent of the Participant.
The Borrower agrees that if amounts outstanding under this Agreement are due or
<PAGE> 69
64
unpaid, or shall have been declared or shall have become due and payable upon
the occurrence of an Event of Default, each Participant shall be deemed to have
the right of setoff in respect of its participating interest in amounts owing
under this Agreement to the same extent as if the amount of its participating
interest were owing directly to it as a Lender under this Agreement; provided
that, in purchasing such participating interest, such Participant shall be
deemed to have agreed to share with the Lenders the proceeds thereof as provided
in subsection 10.7(a) as fully as if it were a Lender hereunder. The Borrower
agrees that each Participant shall be entitled to the benefits of subsections
3.10, 3.11, 3.12 and 10.6 with respect to its participation in the Commitments
and the Loans outstanding from time to time hereunder as if it was a Lender;
provided, that no Participant shall be entitled to receive any greater amount
pursuant to such subsections than the transferor Lender would have been entitled
to receive in respect of the amount of the participation transferred by such
transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time and from
time to time assign to any Lender or any Affiliate thereof or, with the prior
written consent of the Borrower (such consent not to be unreasonably withheld)
and the Administrative Agent (such consent not to be unreasonably withheld), to
an additional bank or financial institution (an "Assignee") all or any part of
its rights and obligations under this Agreement and the other Loan Documents
including, without limitation, its Interim Term Loan Commitment and its Interim
Term Loan, pursuant to an Assignment and Acceptance, substantially in the form
of Exhibit K, executed by such Assignee, such assigning Lender (and, in the case
of an Assignee that is not then a Lender or an Affiliate thereof, by the
Borrower and the Administrative Agent) and delivered to the Administrative Agent
for its acceptance and recording in the Register; provided that in the case of
any such assignment to an additional bank or financial institution, the
aggregate amount of the Interim Term Loan Commitment or Interim Term Loan being
assigned shall not be less than $10,000,000 (or such lesser amount as may be
agreed by the Borrower and the Administrative Agent), and after giving effect to
such assignment such assignor Lender, if it retains any Interim Term Loan
Commitment or Interim Term Loans, shall retain an Interim Term Loan Commitment
or Interim Term Loan of at least $10,000,000. Upon such execution, delivery,
acceptance and recording, from and after the closing date determined pursuant to
such Assignment and Acceptance, (I) the Assignee thereunder shall be a party
hereto and, to the extent provided in such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder with an Interim Term Loan
Commitment as set forth therein, and (II) the assigning Lender thereunder shall
be released from its obligations under this Agreement to the extent that such
obligations shall have been expressly assumed by the Assignee pursuant to such
Assignment and Acceptance (and, in the case of an Assignment and Acceptance
covering all or the remaining portion of an assigning Lender's rights and
obligations under this Agreement, such assigning Lender shall cease to be a
party hereto). Notwithstanding the foregoing, no consent of the Borrower shall
be required for any assignment effected while an Event of Default under Section
8(i) is in existence.
(d) The Administrative Agent, on behalf of the Borrower, shall
maintain at its address referred to in subsection 10.2 a copy of each Assignment
and Acceptance delivered to it and a register (the "Register") for the
recordation of the names and addresses of the Lenders and
<PAGE> 70
65
the Interim Term Loan Commitment of, and principal amounts of the Interim Term
Loan owing to, each Lender from time to time. The entries in the Register shall
constitute prima facie evidence of the information recorded therein, and the
Borrower, the Administrative Agent and the Lenders may (and, in the case of any
Interim Term Loan or other obligation hereunder not evidenced by a Note, shall)
treat each Person whose name is recorded in the Register as the owner of an
Interim Term Loan or other obligation hereunder as the owner thereof for all
purposes of this Agreement and the other Loan Documents, notwithstanding any
notice to the contrary. Any assignment of an Interim Term Loan or other
obligation hereunder not evidenced by a Note shall be effective only upon
appropriate entries with respect thereto being made in the Register. The
Register shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an Assignee (and, in the case of an Assignee that is
not then a Lender or an Affiliate thereof, executed by the Borrower and the
Administrative Agent), together with payment to the Administrative Agent of a
registration and processing fee of $3,500, the Administrative Agent shall (i)
promptly accept such Assignment and Acceptance and (ii) on the effective date
determined pursuant thereto record the information contained therein in the
Register and give prompt notice of such acceptance and recordation to the
Lenders and the Borrower.
(f) The Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee
any and all financial information in such Lender's possession concerning the
Borrower and its Affiliates which has been delivered to such Lender by or on
behalf of the Borrower pursuant to this Agreement or which has been delivered to
such Lender by or on behalf of the Borrower in connection with such Lender's
credit evaluation of the Borrower and its Affiliates prior to becoming a party
to this Agreement; provided, that any such Transferee is advised of the
confidential nature of such information, if applicable, such Lender takes
reasonable steps, in accordance with customary practices, to ensure that any
such information is not used in violation of federal or state securities laws
and such Lender otherwise complies with subsection 10.20.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection concerning assignments of
Interim Term Loans and Notes relate only to absolute assignments and that such
provisions do not prohibit assignments creating security interests, including,
without limitation, any pledge or assignment by a Lender of any Interim Term
Loan or Note to any Federal Reserve Bank in accordance with applicable law.
(h) If, pursuant to this subsection, any interest in this
Agreement or any Interim Term Loan is transferred from a Lender to any
Transferee which is organized under the laws of any jurisdiction other than the
United States or any state thereof, the transferor Lender shall cause such
Transferee, concurrently with the effectiveness of such transfer, to agree (for
the benefit of the transferor Lender, the Administrative Agent and the Borrower)
to provide the transferor Lender (and, in the case of any Transferee registered
in the Register, the Administrative Agent and the Borrower) the tax forms and
other documents required to be delivered pursuant to
<PAGE> 71
66
subsection 3.12(b) or (c) and to comply from time to time with all applicable
U.S. laws and regulations with regard to such withholding tax exemption.
10.7 Adjustments; Set-Off. (a) If any Lender (a "Benefitted
Lender") shall at any time receive any payment of all or part of its Interim
Term Loan then due and owing to it, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in Section 8(i), or
otherwise), in a greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of such other Lender's Interim
Term Loan then due and owing to it, or interest thereon, such Benefitted Lender
shall purchase for cash from the other Lenders a participating interest in such
portion of each such other Lender's Interim Term Loan owing to it, or shall
provide such other Lenders with the benefits of any such collateral, or the
proceeds thereof, as shall be necessary to cause such Benefitted Lender to share
the excess payment or benefits of such collateral or proceeds ratably with each
of the Lenders; provided, however, that if all or any portion of such excess
payment or benefits is thereafter recovered from such Benefitted Lender, such
purchase shall be rescinded, and the purchase price and benefits returned, to
the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by the Borrower to the extent
permitted by applicable law, upon any amount becoming due and payable hereunder
(whether at the stated maturity thereof, by acceleration or otherwise) to
set-off and appropriate and apply against such amount any and all deposits
(general or special, time or demand, provisional or final), in any currency, and
any other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Lender or any branch, agency or Affiliate thereof to or
for the credit or the account of the Borrower. Each Lender agrees promptly to
notify the Borrower and the Administrative Agent after any such set-off and
application made by such Lender, provided that the failure to give such notice
shall not affect the validity of such set-off and application.
10.8 Intercreditor Agreement. The Administrative Agent is
hereby authorized to enter into an intercreditor agreement, in form and
substance reasonably satisfactory to it, to allow up to $75,000,000 in loans
outstanding on the Closing Date and owing to Deutsche Bank AG New York Branch
and/or Cayman Islands Branch and Toronto Dominion (Texas), Inc., or their
respective affiliates, to be equally and ratably secured by the Collateral and
to benefit from guarantees from the Subsidiary Guarantors on a basis which is
pari passu with the Subsidiary Guarantee.
10.9 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts
(including by facsimile transmission), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. A set of the
copies of this Agreement signed by all the parties shall be delivered to the
Borrower and the Administrative Agent.
<PAGE> 72
67
10.10 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.11 Integration. This Agreement and the other Loan Documents
represent the agreement of the Borrower, the Administrative Agent and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Borrower, the Administrative
Agent or any Lender relative to the subject matter hereof not expressly set
forth or referred to herein or in the other Loan Documents.
10.12 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK.
10.13 Submission to Jurisdiction; Waivers. (a) The Borrower
hereby irrevocably and unconditionally:
(i) submits for itself and its property in any legal
action or proceeding relating to this Agreement or any other Loan
Document to which it is a party, or for recognition and enforcement of
any judgment in respect thereof, to the non-exclusive general
jurisdiction of the courts of the State of New York, the courts of the
United States of America for the Southern District of New York, and
appellate courts from any thereof;
(ii) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(iii) agrees that service of process in any such action
or proceeding may be effected by mailing a copy thereof by registered
or certified mail (or any substantially similar form of mail), postage
prepaid, to the Borrower at its address set forth in subsection 10.2 or
at such other address of which the Administrative Agent shall have been
notified pursuant thereto; and
(iv) agrees that nothing herein shall affect the right
to effect service of process in any other manner permitted by law or
shall limit the right to sue in any other jurisdiction.
10.14 Acknowledgements. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
<PAGE> 73
68
(b) none of the Administrative Agent or any Lender has any
fiduciary relationship with or duty to such Borrower arising out of or
in connection with this Agreement or any of the other Loan Documents,
and the relationship between the Administrative Agent and the Lenders,
on the one hand, and the Borrower, on the other hand, in connection
herewith or therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Borrower and the
Lenders.
10.15 WAIVERS OF JURY TRIAL. EACH OF THE BORROWER, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
10.16 [Reserved]
10.17 [Reserved].
10.18 Release of Collateral and Guarantees. (a) The Lenders
hereby agree with the Borrower, and hereby instruct the Administrative Agent,
that if (i) the Borrower attains Release Status, (ii) the Administrative Agent
has no actual knowledge of the existence of a Default, (iii) the Borrower shall
have delivered a certificate of a Responsible Officer stating that such
Responsible Officer has obtained no knowledge of any Default or Event of
Default, and (iv) all Bond Guarantees shall have been released or shall be
released concurrently with the requested release of the Subsidiary Guarantee,
the Administrative Agent shall, at the request and expense of the Borrower, take
such actions as shall be reasonably requested by the Borrower to release its
security interest in all collateral held by it pursuant to the Security
Documents and to release all Subsidiary Guarantors from their obligations under
the Subsidiary Guarantee. In such event, the provisions of subsection 6.10 shall
be deemed terminated and of no further force or effect.
(b) The Lenders hereby agree with the Borrower, and hereby
instruct the Administrative Agent, that if (i) on any date the ratio of
Consolidated Indebtedness on such date to Consolidated Operating Profit for the
four consecutive fiscal quarters most recently ended, is less than 2.50 to 1.00,
(ii) the Administrative Agent has no actual knowledge of the existence of a
Default, (iii) the Borrower shall have delivered a certificate of a Responsible
Officer stating that such Responsible Officer has obtained no knowledge of any
Default or Event of Default, and (iv) all Bond Guarantees shall have been
released or shall be released simultaneously with the requested release of the
Subsidiary Guarantee, the Administrative Agent shall, at the request and expense
of the Borrower, take such actions as shall be reasonably requested by the
Borrower to release its security interest in all collateral held by it pursuant
to the Security Documents and to release all Subsidiary Guarantors from their
obligations under the Security Guarantee. In such event, the provisions of
subsection 6.10 shall be deemed terminated and of no further force or effect.
<PAGE> 74
69
(c) The Lenders hereby agree with the Borrower, and hereby
instruct the Administrative Agent, that if the Borrower shall have delivered to
the Administrative Agent written that it proposes to sell or otherwise dispose
of any Subsidiary whose stock is pledged pursuant to a Pledge Agreement or which
is a Subsidiary Guarantor, and such disposition is permitted by this Agreement,
the Administrative Agent shall, at the request and expense of the Borrower, take
such actions as shall be reasonably requested by the Borrower to release its
security interest in the stock of such Subsidiary to release such Subsidiary
Guarantor from its obligations under the Subsidiary Guarantee; provided, that
such Subsidiary shall have been, or shall simultaneously be, released from all
Bond Guarantees.
10.19 [Reserved]
10.20 Confidentiality. Each Lender agrees to take normal and
reasonable precautions to maintain the confidentiality of information designated
in writing as confidential and provided to it by the Borrower or any Subsidiary
in connection with this Agreement; provided, however, that any Lender may
disclose such information (a) at the request of any bank regulatory authority or
in connection with an examination of such Lender by any such authority, (b)
pursuant to subpoena or other court process, (c) when required to do so in
accordance with the provisions of any applicable law, (d) at the discretion of
any other Governmental Authority, (e) to such Lender's Affiliates, independent
auditors and other professional advisors or (f) to any Transferee or potential
Transferee; provided that such Transferee agrees to comply with the provisions
of this subsection 10.20.
10.21 Conflicts. In the event that there exists a conflict
between provisions in this Agreement and provisions in any other Loan Document,
the provisions of this Agreement shall control.
<PAGE> 75
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
LEAR CORPORATION
By: /s/
--------------------------------
Title:
<PAGE> 76
THE CHASE MANHATTAN BANK, as
Administrative Agent and as a Lender
By: /s/
--------------------------------
Title:
<PAGE> 77
CITICORP USA, INC., as Co-
Syndication Agent and as a Lender
By: /s/
--------------------------------
Title:
<PAGE> 78
DEUTSCHE BANK AG NEW YORK BRANCH, as
Documentation Agent
By: /s/
--------------------------------
Title:
By: /s/
--------------------------------
Title:
<PAGE> 79
DEUTSCHE BANK AG NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH, as a
Lender
By: /s/
--------------------------------
Title:
By: /s/
--------------------------------
Title:
<PAGE> 80
MORGAN STANLEY SENIOR FUNDING, INC.
By: /s/
--------------------------------
Title:
<PAGE> 81
CREDIT SUISSE FIRST BOSTON, as Co-
Syndication Agent and as a Lender
By: /s/
--------------------------------
Title:
By: /s/
--------------------------------
Title:
<PAGE> 82
TORONTO DOMINION (TEXAS), INC.
By: /s/
--------------------------------
Title:
<PAGE> 83
THE BANK OF NOVA SCOTIA
By: /s/
--------------------------------
Title:
<PAGE> 84
BANK OF AMERICA NT & SA
By: /s/
--------------------------------
Title:
<PAGE> 85
SCHEDULE I
COMMITMENTS; ADDRESSES
A. Commitment Amounts
===================================================================
LENDER COMMITMENT
-------------------------------------------------------------------
Citicorp USA, Inc. 210,000,000
-------------------------------------------------------------------
Deutsche Bank AG New York Branch and/or
Cayman Islands Branch 105,000,000
-------------------------------------------------------------------
The Chase Manhattan Bank 105,000,000
-------------------------------------------------------------------
Morgan Stanley Senior Funding, Inc. 700,000,000
-------------------------------------------------------------------
Credit Suisse First Boston 105,000,000
-------------------------------------------------------------------
Toronto Dominion (Texas), Inc. 35,000,000
-------------------------------------------------------------------
The Bank of Nova Scotia 35,000,000
-------------------------------------------------------------------
Bank of America NT & SA 105,000,000
-------------------------------------------------------------------
Total 1,400,000,000
===================================================================
<PAGE> 86
B. ADDRESSES FOR NOTICES
---------------------
BANKERS TRUST COMPANY (CHICAGO)
233 South Wacker Drive, 84th Floor
Chicago, IL 60606
Attn: Thomas Cole
Tel: (312) 993-8051
Fax: (312) 993-8218
MORGAN STANLEY DEAN WITTER ADVISORS INC.
Two World Trade Center
New York, NY 10048
Attn: Bram Smith
Tel: (212) 761-2660
Fax: (212) 761-3932
BANK OF NOVA SCOTIA (CHICAGO)
181 West Madison Street, Suite 3700
Chicago, IL 60602
Attn: David Brooks
Tel: (312) 201-4182
Fax: (312) 201-4108
CREDIT SUISSE FIRST BOSTON
11 Madison Avenue
New York, NY 10010-3829
Attn: Kristin Lepri
Tel: (212) 325-9058
Fax: (212) 325-8309
DEUTSCHE BANK SECURITIES INC.
31 West 52nd Street, 24th Floor
New York, NY 10019
Attn: Rolf-Peter Mikolayczyk
Tel: (212) 469-8237
Fax: (212) 469-8212
TORONTO DOMINION (TEXAS), INC.
909 Fannin Street, 17th Floor
Houston, TX 77010
Attn: Mario Da Ponte
Tel: (312) 977-2127
Fax: (713) 951-9921
<PAGE> 87
TORONTO DOMINION BANK (NEW YORK)
31 West 52nd Street
New York, NY 10019-6101
Attn: Clark Terriff
Tel: (212) 468-0569
Fax: (212) 262-1926
CHASE MANHATTAN CORPORATION (HEADQUARTERS)
270 Park Avenue
New York, NY 10017
Attn: David Fox
Tel: (212) 270-4345
Fax: (212) 270-1047
BANK OF NOVA SCOTIA (CHICAGO)
181 West Madison Street, Suite 3700
Chicago, IL 60602-4514
Attn: James Coleman
Tel: (312) 201-4140
Fax: (312) 201-4108
BANKAMERICA (CHICAGO)
231 LaSalle Street
Chicago, IL 60697
Attn: Lewis Fisher
Tel: (312) 828-3137
Fax: (312) 987-7384
DEUTSCHE BANK AG NEW YORK BRANCH AND/OR
CAYMAN ISLAND BRANCH
31 West 52nd Street 24th Floor
New York, New York 10019
Attn: Hans-Josef Thiele
Tel: (212) 469-8649
Fax: (212) 469-8212
CITICORP SECURITIES INC.
399 Park Avenue, Zone 12, 8th Floor
New York, NY 10043
Attn: Elizabeth Palermo
Tel: (212) 559-3533
Fax: (212) 826-2375
<PAGE> 88
SCHEDULE II
[Reserved]
<PAGE> 89
SCHEDULE III
[Reserved]
<PAGE> 90
SCHEDULE IV
SECURITY DOCUMENTS
I. Pledge Agreements
1. Company Pledge Agreement, dated as of the date hereof, made
by the U.S. Borrower, Lear Operations Corporation and Lear Corporation
Automotive Systems, pledging 100% of the stock of Lear Operations Corporation
and Lear Corporation Automotive Holdings in favor of the General Administrative
Agent, substantially in the form of Exhibit Q to the Agreement.
2. Pledge Agreement to be entered into within 60 days after the
Closing Date in respect of 65% of the capital stock of Lear Germany.
<PAGE> 91
SCHEDULE V
[RESERVED]
<PAGE> 92
SCHEDULE VI
SUBSIDIARIES1
DOMESTIC SUBSIDIARIES:
<TABLE>
<CAPTION>
Jurisdiction of
Name of Entity Incorporation Stock Ownership Record Holder
-------------- ------------- --------------- -------------
<S> <C> <C> <C>
Amtex, Inc. Pennsylvania 50% Lear Corporation
Bryan Manufacturing Company Ohio 100% Lear Corporation Automotive Holdings
Corporate Eagle Two LLC 50% LCT, Inc.
Detroit Automotive Interiors L.L.C. Michigan 49% Lear Corporation
Essex International de Chihuahua, Inc. Delaware 100% Lear Corporation Automotive Holdings
General Seating of America, Inc. Delaware 50% Lear Corporation
Industrial Electrical Specialties, Inc. Delaware 55% Lear Corporation Automotive Holdings
IPCO Inc. Delaware 100% Lear Corporation Automotive Holdings
LCT, Inc. Michigan 100% Lear Corporation
Lear Corporation (Germany) Ltd. Delaware 100% Lear Corporation
Lear Corporation Global Development, Inc. Delaware 100% Lear Corporation
Lear Corporation Mendon Delaware 100% Lear Corporation
Lear Donnelly Overhead Systems, L.L.C. Michigan 50% Lear Corporation
Lear East L.P. Pennsylvania 100% Lear East, Inc. (99%); Lear
Corporation Global Development, Inc.
(1%)
Lear East, Inc. Delaware 100% Lear Operations Corporation
Lear Investments Company, L.L.C. Delaware 100% Lear Corporation
Lear Mexican Holding, L.L.C. Delaware 100% Lear Seating Holdings Corp. #50
Lear Midwest Automotive, Limited Delaware 100% Lear Midwest, Inc. (99.9%); Lear
Partnership Corporation Mendon (0.1%)
Lear Midwest, Inc. Kentucky 100% Lear Operations Corporation
Lear Operations Corporation Delaware 100% Lear Corporation
Lear Seating Holdings Corp. #50 Delaware 100% Lear Corporation
Lear Seating Holdings Corp. #100 Delaware 100% Lear Corporation
Lear Technologies, L.L.C. Delaware 100% Lear Corporation
Lear Trim L.L.C. Delaware 100% NAB Corporation (99.9%); Lear
Corporation (.1%)
</TABLE>
- -------------------------------------------
1. After giving effect to the UT Automotive Acquisition.
<PAGE> 93
2
<TABLE>
<CAPTION>
Jurisdiction of
Name of Entity Incorporation Stock Ownership Record Holder
-------------- ------------- --------------- -------------
<S> <C> <C> <C>
Masland Transportation, Inc. Delaware 100% Lear Corporation
Motors Acquisition Corporation Delaware 100% Lear Corporation
NAB Corporation Delaware 100% Lear Corporation
Precision Fabrics Group North Carolina 29% Lear Corporation
Superior Coach Corporation Ohio 100% Lear Corporation Automotive Holdings
United Technologies Automotive (Japan), Inc. Delaware 100% Lear Corporation Automotive Holdings
United Technologies Automotive (U.K.) Delaware 100% Lear Corporation Automotive Holdings
Limited
United Technologies Automotive Systems, Inc. Ohio 100% Lear Corporation Automotive Holdings
United Technologies Automotive, Inc. Delaware 100% Lear Corporation Automotive Holdings
United Technologies Furukawa Corporation Delaware 51% Lear Corporation Automotive Holdings
UT Automitive Advanced Technology, Inc. Delaware 100% Lear Corporation Automotive Holdings
UT Automotive Dearborn, Inc. Delaware 100% Lear Corporation Automotive Holdings
Lear Corporation Automotive Holdings Delaware 100% Lear Operations Corporation
Wagner Industries, Inc. Indiana 100% Lear Corporation Automotive Holdings
</TABLE>
<PAGE> 94
3
FOREIGN SUBSIDIARIES:
<TABLE>
<CAPTION>
Jurisdiction of
Name of Entity Organization Stock Ownership Record Holder
-------------- ------------ --------------- -------------
<S> <C> <C> <C>
AB Extruding Sweden 100% Lear Corporation Sweden AB
AB Trelleborgsplast Sweden 100% Lear Corporation Sweden AB
All Automotive Industries Canada Inc. Canada 100% Lear Corporation
Alfombras San Luis S.A. Argentina 100% Industria Textil Dragui S.A.
Arbitrario B.V. Netherlands 100% Lear Corporation
Asia Pacific Components Co., Ltd. Thailand 98% Lear Seating (Thailand) Corp., Ltd.
Auto Interiors India Private Ltd. India 25%
Autoform Kunsrstoffeile GmbH Germany 69% Gruppo Pianfej S.r.L (44%); Pianfei Glass
SA (25%)
Autoform Kunststoffteile GmbH & Co Germany 70.89% Gruppo Pianfej S.r.L (45.2%); Pianfei
KG Glass SA (29.69%)
Autotrim, S.A. de C.V. Mexico 40% Interiores Automotrics Summa S.A. de
C.V.
AVB Anlagen und Vorrichtungsbau Germany 55% Lear Corporation Bereiligungs GmbH
Aviken Plast AB Sweden 100% Lear Corporation Gnosjoplast AB
Chongqing Lear Chang'an Automotive China 35.75% Lear Corporation China Ltd.
Interior Trim Co., Ltd.
Consorcio Industrial Mexicanos de Mexico 100% Lear Corporation 99.4%; Empresas
Autopartes S.A. de C.V. Industriales Mexicanos de Autopartes,
S.A. de C.V. .6%
Davart Group Ltd. UK 100% Lear Corporation UK Interior Systems
Limited
Donnelly Eurotrim Ltd. Ireland 50% Lear Donnelly Overhead Systems, L.L.C.
El Trim (Pty.) Ltd. Italy 51% Lear Corporation Beteiligungs GmbH
Empetek autodily s.r.o. Czech Republic 50% Lear Donnelly Overhead Systems, L.L.C.
Empresas Industriales Mexicanos de Mexico 74.98% Lear Corporation
Autopartes, S.A. de C.V.
Favesa S.r.l. de C.V. Mexico 100% Lear Holdings S.r.l. de C.V.
Gate Deutschland GmbH Germany 100% Lear Corporation Automotive Holdings
Gate France S.A. France 99.760% Lear Corporation Automotive Holdings
Gate S.p.A. Italy 100% Lear Corporation Automotive Holdings
Gate UK Limited U.K. 100% Lear Corporation Automotive Holdings
General Seating of Canada Ltd. Canada 50% Lear Corporation Canada, Ltd.
General Seating of Thailand Corp. Ltd. 50% Lear Corporation
</TABLE>
<PAGE> 95
4
<TABLE>
<CAPTION>
Jurisdiction of
Name of Entity Organization Stock Ownership Record Holder
-------------- ------------ --------------- -------------
<S> <C> <C> <C>
Gruppo Pianfei S.r.L. Italy 100% Lear Corporation Italia Holding S.r.L.
Guilford Kast Plastifol Dynamics Ltd. UK 33.3% Lear Corporation Drahtfedem GmbH
Hanil Lear Automotive Parts Private India 50% Lear Corporation
Ltd.
Hubei UTA-Xianfeng Auto Electric China 100% Lear Corporation Automotive Holdings
Company, Ltd.
Industria Textil Dragui S.A. Argentina 100% Industrias Lear de Argentina, S.A.
Industrias Cousin Freres, S.L. Spain 49.99% Lear Corporation Italia S.p.A..
Industrias Lear de Argentina, S.A. Argentina 100% Lear Corporation
Industrias Lear Trim S. de R.L. de C.V. Mexico 100% Lear Holdings S.r.l. de C.V.
Inteco S.p.A. Italy 100% Strapazzini Auto S.p.A. (99%), Lear
Corporation Italia Holding S.r.L. (1%)
Interiores Automotrices Summa S.A. de Mexico 40% Lear Operations Corporation
C.V.
Interiores Para Autos, S.A. de C.V. Mexico 40% Interiores Auto Matricies Summa S.A. de
C.V.
Interni S.A. Brazil 25%
Jiangxi Jiangling Lear Interior Systems China 32% Lear Corporation China Ltd.
Co. Ltd.
John Cotton Plastics Ltd. UK 100% Lear Corporation UK Interior Systems
Limited
L.S. Servicos Ltds. Brazil 100% Lear Corporation
Lear Automotive Corporation Singapore Singapore 100% Lear Corporation
Pte. Ltd.
Lear Bahia Ltd. Brazil 100% Lear do Brazil Ltda.
Lear Belgium Newco Belgium 100% Lear Corporation
Lear Brits (SA)(Pty.) Ltd. South Africa 100% Lear Corporation
Lear Car Seating do Brasil Ltda. Brazil 100% L.S. Servicos Ltda.
Lear Corporation (Nottingham) Limited UK 100% Lear Corporation (UK) Limited)
Lear Corporation (S.A.)(Pty.) Ltd. South Africa 100%
Lear Corporation (SSD) Ltd. UK 100% Lear UK ISM Limited
Lear Corporation (SSD) NV Belgium 100% Lear Corporation
Lear Corporation (UK) Ltd. UK 100% Lear UK Acquisition Limited
Lear Corporation Asientos, S.A. Spain 100% Lear Corporation Spain S.L.
Lear Corporation Australia Pty. Ltd. Australia 100% Lear Corporation
</TABLE>
<PAGE> 96
5
<TABLE>
<CAPTION>
Jurisdiction of
Name of Entity Organization Stock Ownership Record Holder
-------------- ------------ --------------- -------------
<S> <C> <C> <C>
Lear Corporation Austria GmbH Austria 100% Lear Corporation Beteiligungs GmbH
Lear Corporation Austria GmbH & Co. Austria 100% Lear Corporation Beteiligungs GmbH
KG (99%); Lear Corporation Austria GmbH
(1%)
Lear Corporation Automotive South Africa 100%
Components (Pty.) Ltd.
Lear Corporation Beteiligungs GmbH Germany 100% Lear Corporation (Germany) Ltd.
Lear Corporation Drabtfedern GmbH Germany 100% Lear Corporation Beteiligungs GmbH
Lear Corporation Canada Ltd. Ontario 100% Lear Corporation
Lear Canada Investments Ltd. Ontario 100% Lear Corporation
Lear Corporation China Ltd. Mauritius 65%
Lear Corporation France S.A.R.L. France 100% Lear Corporation
Lear Corporation GmbH & Co. KG Germany 100% Lear Corporation Drahtfedern GmbH
Lear Corporation Holdings Spain S.L. 100% Lear Corporation
Lear Corporation Hungary KFT 100% Lear Corporation Drahtfedern GmbH
Lear Corporation Interior Compenents South Africa 100% Lear Corporation
(Pty.) Ltd.
Lear Corporation Italia Holding S.r.L. Italy 100% Lear Corporation
Lear Corporation Italia S.p.A. Italy 100% Lear Corporation Italia Holdings S.r.L.
Lear Corporation Italia Speciality Car Italy 100% Lear Corporation Italia Holding S.r.L
Group S.r.L.
Lear Corporation Italia Sud S.p.A. Italy 100% Lear Corporation Italia S.p.A.
Lear Corporation Mexico S.A. de C.V. Mexico 99.6% Lear Holdings S.r.l. de C.V.
Lear Corporation Poland Gliwice Poland 100% Lear Corporation
S.p.zo.o.
Lear Corporation Poland II S.p.zo.o. Poland 100% Lear Corporation
Lear Corporation Poland S.p.zo.o. Poland 100% Lear Corporation
Lear Corporation Portugal-Components Portugal 100% Lear Corporation
Para Automovers, Lda.
Lear Corporation Spain S.L. 100% Lear Corporation Holdings Spain S.L.
Lear Corporation Sweden AB Sweden 100% Lear Corporation
Lear Corporation Sweden Gnosjoplast Sweden 100% Lear Corporation Sweden AB
AB
Lear Corporation UK Holdings Ltd. UK 100% Lear Corporation
</TABLE>
<PAGE> 97
6
<TABLE>
<CAPTION>
Jurisdiction of
Name of Entity Organization Stock Ownership Record Holder
-------------- ------------ --------------- -------------
<S> <C> <C> <C>
Lear Corporation UK Interior Systems UK 100% Lear Corporation UK Holdings Ltd.
Ltd.
Lear Corporation Verwaltungs GmbH Germany 100% Lear Corporation Drahtfedern GmbH
Lear de Venezuela, C.A. Venezuela 100% Lear Corporation
Lear de Brazil ltda. Brazil 100% Lear Corporation
Lear Donnelly Mexico, S. de R.L. de (50%) Lear Donnelly Overhead Systems, L.L.C.
C.V.
Lear Foreign Sales Group US Virgin 100% Lear Corporation
Islands
Lear Holdings S.r.L. de C.V. (50%) Lear Mexican Holdings, L.L.C.
Lear Inespo Comercial Industrial Ltda. Brazil 50.01% Lear Corporation
Lear JIT (Pty.) Ltd. South Africa 51% Lear Corporation Drahtfedern GmbH
Lear North West (Pty.) Ltd. South Africa 100% Lear Corporation
Lear Seating (Thailand) Corp., Ltd. Thailand 98% Lear Corporation
Lear Seating Private Limited India [49%] Ramco Investments Limited
Lear Sewing (Pty) Ltd. South Africa 51% Lear Corporation Drahtfedern GmbH
Lear Teknik Oto Yan Sanayi Limited Turkey 66.67% Lear Corporation
Sirket
Lear UK Acquisition Limited UK 100% Lear Corporation UK Holdings Limited
Lear UK ISM Limited UK 100% Lear Corporation (UK) Limited
Lear Vijayjyot Seating Private Limited India 50% Ramco Investments Limited
LECA S.p. zo.o Poland 100% Lear Corporation
Markol Otomotiv Yan Sanayi VE Turkey 35% Lear Corporation
Ticaret A.S.
Masland (UK) Limited UK 100% Lear Corporation
Masland Industries of Canada Limited Canada 100% Lear Corporation
Mecanismos Auxiliarios Industriales, Spain 99.9% Lear Corporation Automotive Holdings
S.A.
No-Sag Drahtfedern Spitzer & Co. KG Austria 62.5% Lear Corporation Drahtfedern GmbH
OOO Lear Russia 100% Lear Corporation Global Development,
Inc.
Pianfei Engineering S.r.L. Italy 100% Gruppo Pianfei S.r.L.
Pianfei Glass SA Spain 35% Gruppo Pianfei S.r.L.
Pianfei Ipa S.pA. Italy 100% Gruppo Pianfei S.r.L. (98%); Lear
Corporation Italia Holding S.r.L. (2%)
Pianfei Melti S.r.L. Italy 73% Lear Corporation Italia Holding S.r.L.
</TABLE>
<PAGE> 98
7
<TABLE>
<CAPTION>
Jurisdiction of
Name of Entity Organization Stock Ownership Record Holder
-------------- ------------ --------------- -------------
<S> <C> <C> <C>
Pianfei Sicilia S.r.L. Italy 100% Gruppo Pianfei S.r.L.
Pianfei Sud S.r.L. Italy 100% Gruppo Pianfei S.r.L. (70%);
Pianfei Melfi S.r.L. (30%)
Polovat Auto Sp.zo.o. Poland 100% Polovar Sp.z.o.o.
Polovat Sp.zo.o. Poland 100% Arbirario B.V.
Protos S.r.L. Italy 100% Lear Corporation Italia Holding S.r.L.
PRPI S.p.A. (in liquidation) Italy 85% Gruppo Pianfei S.r.L.(18%); Pianfei
Engineering S.r.L. (67%)
Rael Handels GmbH Austria 100% Lear Corporation Bereiligungs GmbH
Ramco Investments Limited Mauritius 100% Lear Corporation
Rolloplast Formsprutning AB Sweden 100% Lear Corporation Gnosjoplast AB
S.A.L.B.I. AB Sweden 50% Lear Corporation Sweden AB
Shanghai Lear Automobile Interior China 35.75% Lear Corporation China Ltd.
Trim Co., Ltd.
Shanghai Songjiang Lear Automotive China 35.75 Lear Corporation China Ltd.
Carpet & Accoustics Co. Ltd.
Siam UT Automotive Co., Ltd. Thailand 99.9976% Lear Corporation Automotive Holdings
Societe No Sag Francaise France 56% Lear Corporation France S.A.R.L.
Societe Offran-Villaise de Technologie, France 100% Lear Corporation France S.A.R.L.
S.A.
Sommer Masland (UK) Limited UK 50% Masland (UK) Limited
Spitzer GmbH Austria 62.5% Lear Corporation Drahtfedern GmbH
Stapur SA Argentina 5% Lear Corporation Automotive Holdings
Strapazzini Auto S.p.A. 100% Strapazini Resine S.r.L. (1%)
Strapazzini Resine S.r.L. (99%)
Strapazzini Resine S.R.L. Italy 100% Lear Corporation Italia Holding S.r.L.
SWECA Sp.z.o.o. Poland 100% Lear Corporation
United Technologies Automotive Argentina 100% Lear Corporation Automotive Holdings
(Argentina) S.A.
United Technologies Automotive France 99.75% Lear Corporation Automotive Holdings
(Europe) S.A.
United Technologies Automotive France 100% Lear Corporation Automotive Holdings
(France) S.A.R.L.
United Technologies Automotive Honduras 98% Lear Corporation Automotive Holdings
(Honduras) S.A.
</TABLE>
<PAGE> 99
8
<TABLE>
<CAPTION>
Jurisdiction of
Name of Entity Organization Stock Ownership Record Holder
-------------- ------------ --------------- -------------
<S> <C> <C> <C>
United Technologies Automotive Hungary 100% Lear Corporation Automotive Holdings
(Hungary) Kft
United Technologies Automotive Philippines 99.9% Lear Corporation Automotive Holdings
(Philippines), Inc.
United Technologies Automotive Poland 75% Lear Corporation Automotive Holdings
(Poland) Sp.zo.o.
United Technologies Automotive Mexico 99.9% Lear Corporation Automotive Holdings
Electrical Systems de Mexico, S.A. de
C.V.
United Technologies Gate Espana, S.A. Spain 99.992% Lear Corporation Automotive Holdings
UPM S.r.L. Italy 39% Gruppo Pianfei S.r.L.
UT Automotive (Netherlands) B.V. Netherlands 100% Lear Corporation Automotive Holdings
UT Automotive (Poland) Sp.zo.o. Poland 100% Lear Corporation Automotive Holdings
UT Automotive (Portugal) Components Portugal 100% Lear Corporation Automotive Holdings
De Automovies S.A.
UT Automotive Almussafes Services, Spain 99% Lear Corporation Automotive Holdings
S.A.
UT Automotive Services Netherlands Netherlands 100% Lear Corporation Automotive Holdings
B.V.
UT Automotive Tunisia S.A. Tunisia 99.98% Lear Corporation Automotive Holdings
UT Loewe Automotive Electronics Germany 100% Lear Corporation Automotive Holdings
GmbH
UT Automotive Saerouns Service, Germany 100% Lear Corporation Automotive Holdings
GmbH
Wuhan UTA-DCAC Auto Electric China 75% Lear Corporation Automotive Holdings
Company, Limited
P.T. Lear Corporation Indonesia 51% Lear Corporation
F.G. Microdesign Italy 70% Lear Corporation Automotive Holdings
</TABLE>
<PAGE> 100
SCHEDULE VII
HAZARDOUS MATERIAL
The Borrower has been identified as a potentially responsible
party under the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended ("Superfund") at the Organic Chemical site in
Grandville, MI, A-1 Disposal Site in Plainwell, MI, the Thermo-Chem site in
Muskegon, MI, the Sunrise landfill in Wayland Township, MI, and the Ostego
landfill in Michigan. In addition, the Borrower has received settlement offers
to resolve its responsibility at the PCB, Inc. site in Kansas City, KS and MO
($2500.00) and the ABC Barrel and Drum site in Detroit, MI ($8500.00). Although
liability at the sites has not been finalized, the Borrower believes that
expected liability is not material.
<PAGE> 101
SCHEDULE VIII
CONTRACTUAL OBLIGATION RESTRICTIONS
1. Indenture, dated February 1, 1994, between Lear Corporation, as Issuer
and the State Street Bank & Trust Company (as successor to the First
National Bank of Boston), as Trustee, relating to the Borrower's 81/4%
Subordinated Notes.
2. Indenture, dated July 1, 1996 between Lear Corporation, as Issuer, and
the Bank of New York, as Trustee, relating to the U.S. Borrower's 9
1/2% Subordinated Notes.
3. Loan Agreement between NS Beteiligungs GmbH and Industriekreditbank
AG-Deutsch Industriek.
4. Agreements and security instruments with respect to indebtedness
assumed in connection with the Acquisition and the Fiat Seat Business,
GSA, GSC, Delphi, Borealis, Masland Industries, Automotive Industries,
Keiper, Pianfei, Strapazzini, Dragui, Polovat and Ovatex acquisitions
and agreements governing indebtedness which refinance such
indebtedness.
5. Loan Agreement between Lear Corporation Canada Ltd. and the Province of
Ontario, Canada relating to indebtedness of up to $2,000,000
(Canadian).
6. Loan Agreement, dated January 27, 1993, between Lear Corporation Canada
Ltd. and the Province of Ontario, Canada.
7. Industrial Facilities Agreement governing indebtedness of ASAA
Technologies, Inc. to Cumberland Plateau Planning District Commission
and Cumberland Plateau Company.
8. Mortgage loan agreements governing indebtedness and ASAA Technologies,
Inc. to Associated Lender Lakeshore N.A.
9. Agreement governing working capital Indebtedness of Lear Seating
(Indonesia) Pty Ltd. and Lear Australia Pty Ltd.
10. Term Loan Agreement between Lear Corporation and Toronto Dominion
(Texas), Inc. (as amended).
11. Term Loan Agreement between Lear Corporation and Deutsche Bank AG New
York Branch and/or Cayman Islands Branch (as amended).
<PAGE> 102
SCHEDULE IX
AGENTS
===========================================================================
INSTITUTION AGENCY
- ---------------------------------------------------------------------------
The Chase Manhattan Bank Administrative Agent
- ---------------------------------------------------------------------------
Sole Book Manager and
Chase Securities Inc. Sole Lead Arranger
- ---------------------------------------------------------------------------
Citicorp USA, Inc. Co-Syndication Agent
- ---------------------------------------------------------------------------
Deutsche Bank AG New York Branch and/or
Cayman Islands Branch Documentation Agent
- ---------------------------------------------------------------------------
Morgan Stanley Senior Funding, Inc. Managing Agent
- ---------------------------------------------------------------------------
Credit Suisse First Boston Co-Syndication Agent
- ---------------------------------------------------------------------------
Toronto Dominion (Texas), Inc. Managing Agent
- ---------------------------------------------------------------------------
The Bank of Nova Scotia Managing Agent
- ---------------------------------------------------------------------------
Bank of America NT &SA Managing Agent
===========================================================================
<PAGE> 1
EXHIBIT 10.3
EXECUTION COPY
================================================================================
$1,000,000,000
REVOLVING CREDIT AND
TERM LOAN AGREEMENT
Dated as of May 4, 1999
among
LEAR CORPORATION,
THE FOREIGN SUBSIDIARY BORROWERS,
The Lenders Party Hereto,
CITICORP USA, INC.
and
MORGAN STANLEY SENIOR FUNDING, INC.,
as Co-Syndication Agents,
TORONTO DOMINION (TEXAS), INC.,
as Documentation Agent,
The Other Agents Named in
Schedule IX Hereto
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
------------------------------------
CHASE SECURITIES INC.,
as Sole Book Manager and Sole Lead Arranger
================================================================================
<PAGE> 2
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<S> <C>
SECTION 1. DEFINITIONS.....................................................................................1
1.1 Defined Terms.......................................................................................1
1.2 Other Definitional Provisions......................................................................27
SECTION 2. AMOUNT AND TERMS OF REVOLVING CREDIT
COMMITMENTS................................................................................28
2.1 Revolving Credit Commitments.......................................................................28
2.2 Repayment of Revolving Credit Loans; Evidence of Debt..............................................28
2.3 Procedure for Revolving Credit Borrowing...........................................................29
2.4 Termination or Reduction of Revolving Credit Commitments...........................................29
2.5 Borrowings of Revolving Credit Loans and Refunding of Loans........................................30
SECTION 3. AMOUNT AND TERMS OF TERM LOAN
COMMITMENTS.....................................................................................31
3.1 Term Loan Commitments..............................................................................31
3.2 Repayment of Term Loans; Evidence of Debt..........................................................31
3.3 Procedure for Term Loan Borrowing..................................................................32
SECTION 4. AMOUNT AND TERMS OF MULTICURRENCY
COMMITMENT..................................................................................33
4.1 Multicurrency Commitments..........................................................................33
4.2 Repayment of Multicurrency Loans; Evidence of Debt.................................................33
4.3 Procedure for Multicurrency Borrowing..............................................................34
4.4 Termination or Reduction of Multicurrency Commitments..............................................34
4.5 Redenomination and Alternative Currencies..........................................................34
SECTION 5. GENERAL PROVISIONS APPLICABLE TO LOANS ..............................................................35
5.1 Interest Rates and Payment Dates...................................................................35
5.2 Conversion and Continuation Options................................................................35
5.3 Minimum Amounts of Tranches........................................................................36
5.4 Optional and Mandatory Prepayments.................................................................36
5.5 Commitment Fees; Other Fees........................................................................37
5.6 Computation of Interest and Fees...................................................................38
5.7 Inability to Determine Interest Rate...............................................................39
5.8 Pro Rata Treatment and Payments....................................................................39
5.9 Illegality.........................................................................................42
5.10 Requirements of Law...............................................................................42
5.11 Indemnity.........................................................................................44
5.12 Taxes ...........................................................................................44
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5.13 Assignment of Commitments Under Certain Circumstances.............................................46
5.14 Use of Proceeds...................................................................................47
SECTION 6. REPRESENTATIONS AND WARRANTIES.......................................................................47
6.1 Financial Statements...............................................................................47
6.2 No Change..........................................................................................47
6.3 Corporate Existence; Compliance with Law...........................................................48
6.4 Corporate Power; Authorization; Enforceable Obligations............................................48
6.5 No Legal Bar; Senior Debt..........................................................................49
6.6 No Material Litigation.............................................................................49
6.7 No Default.........................................................................................49
6.8 Ownership of Property; Liens.......................................................................49
6.9 Taxes ...........................................................................................50
6.10 Securities Law, etc. Compliance...................................................................50
6.11 ERISA ...........................................................................................50
6.12 Investment Company Act; Other Regulations.........................................................51
6.13 Subsidiaries, etc. ...............................................................................51
6.14 Accuracy and Completeness of Information..........................................................51
6.15 Security Documents................................................................................52
6.16 Patents, Copyrights, Permits and Trademarks.......................................................52
6.17 Environmental Matters.............................................................................52
6.18 Year 2000 Matters.................................................................................53
SECTION 7. CONDITIONS PRECEDENT.................................................................................54
7.1 Conditions to Closing Date.........................................................................54
7.2 Conditions to Each Loan............................................................................55
SECTION 8. AFFIRMATIVE COVENANTS......................................................................56
8.1 Financial Statements...............................................................................56
8.2 Certificates; Other Information....................................................................57
8.3 Performance of Obligations.........................................................................58
8.4 Conduct of Business, Maintenance of Existence and Compliance with Obligations
and Laws.....................................................................................58
8.5 Maintenance of Property; Insurance.................................................................58
8.6 Inspection of Property; Books and Records; Discussions.............................................58
8.7 Notices ...........................................................................................59
8.8 Maintenance of Liens of the Security Documents.....................................................60
8.9 Environmental Matters..............................................................................60
8.10 Security Documents; Guarantee Supplement..........................................................61
SECTION 9. NEGATIVE COVENANTS...................................................................................62
9.1 Financial Covenants................................................................................63
9.2 Limitation on Indebtedness.........................................................................63
</TABLE>
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9.3 Limitation on Liens................................................................................64
9.4 Limitation on Guarantee Obligations................................................................66
9.5 Limitations on Fundamental Changes.................................................................67
9.6 Limitation on Sale of Assets.......................................................................68
9.7 Limitation on Dividends............................................................................69
9.8 Limitation on Subsidiary and Secured Indebtedness..........................................69
9.9 Limitation on Investments, Loans and Advances......................................................70
9.10 Limitation on Optional Payments and Modification of Debt Instruments; Certain
Derivative Transactions....................................................................71
9.11 Transactions with Affiliates......................................................................72
9.12 Corporate Documents...............................................................................72
9.13 Fiscal Year.......................................................................................72
9.14 Limitation on Restrictions Affecting Subsidiaries.................................................72
9.15 Special Purpose Subsidiary........................................................................73
9.16 Interest Rate Agreements..........................................................................73
SECTION 10. GUARANTEE...........................................................................................73
10.1 Guarantee.........................................................................................73
10.2 No Subrogation....................................................................................74
10.3 Amendments, etc. with respect to the Obligations; Waiver of Rights................................74
10.4 Guarantee Absolute and Unconditional..............................................................75
10.5 Reinstatement.....................................................................................76
10.6 Payments..........................................................................................76
SECTION 11. EVENTS OF DEFAULT...................................................................................76
SECTION 12. THE ADMINISTRATIVE AGENT; DOCUMENTATION
AGENT; CO-SYNDICATION AGENTS; THE MANAGING
AGENTS; THE LEAD MANAGERS AND THE CO-AGENTS............................................79
12.1 Appointment.......................................................................................79
12.2 Delegation of Duties..............................................................................80
12.3 Exculpatory Provisions............................................................................80
12.4 Reliance by Administrative Agent..................................................................80
12.5 Notice of Default.................................................................................81
12.6 Non-Reliance on Administrative Agent and Other Lender.............................................81
12.7 Indemnification...................................................................................81
12.8 Administrative Agent in its Individual Capacity...................................................82
12.9 Successor Administrative Agent....................................................................82
12.11 Actions Under Security Documents.................................................................82
12.12 Intercreditor Agreement..........................................................................83
SECTION 13. MISCELLANEOUS.......................................................................................83
13.1 Amendments and Waivers............................................................................83
</TABLE>
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13.2 Notices...........................................................................................86
13.3 No Waiver; Cumulative Remedies....................................................................86
13.4 Survival of Representations and Warranties........................................................87
13.5 Payment of Expenses and Taxes.....................................................................87
13.6 Successors and Assigns; Participations and Assignments............................................87
13.7 Adjustments; Set-Off..............................................................................90
13.8 Loan Conversion/Participations....................................................................91
13.10 Counterparts.....................................................................................93
13.11 Severability.....................................................................................93
13.12 Integration......................................................................................93
13.13 GOVERNING LAW....................................................................................93
13.14 Submission to Jurisdiction; Waivers..............................................................93
13.15 Acknowledgement..................................................................................94
13.16 WAIVERS OF JURY TRIAL............................................................................94
13.17 Power of Attorney................................................................................94
13.18 [Reserved].......................................................................................94
13.19 Release of Collateral and Guarantees.............................................................95
13.20 Judgment.........................................................................................95
13.21 Confidentiality..................................................................................96
13.22 Conflicts........................................................................................96
</TABLE>
- iv -
<PAGE> 6
v
SCHEDULES:
I Commitments; Addresses
II Foreign Subsidiary Borrowers
III Administrative Schedule
IV Security Documents
V [Reserved]
VI Subsidiaries
VII Hazardous Material
VIII Contractual Obligation Restrictions
IX Agents
EXHIBITS:
A Form of Revolving Credit Note
B Form of Term Note
C [Reserved]
D [Reserved]
E [Reserved]
F [Reserved]
G [Reserved]
H [Reserved]
I Form of Joinder Agreement
J [Reserved]
K Form of Assignment and Acceptance
L Form of Opinion of Winston & Strawn
M [Reserved]
N Matters to be Covered by Foreign Subsidiary Opinion
O Form of Subsidiary Guarantee
P Form of Intercreditor Agreement
Q Form of Pledge Agreement
- v -
<PAGE> 7
REVOLVING CREDIT AND TERM LOAN AGREEMENT, dated as of May 4,
1999 among LEAR CORPORATION, a Delaware corporation (the "U.S. Borrower"), each
FOREIGN SUBSIDIARY BORROWER (as hereinafter defined) (together with the U.S.
Borrower, the "Borrowers"), the Managing Agents named on Schedule IX hereto (the
"Managing Agents"), the Co-Agents named on Schedule IX hereto (the "Co-Agents"),
the Lead Managers named on Schedule IX hereto (the "Lead Managers"), the several
banks and other financial institutions from time to time parties hereto (the
"Lenders"), CITICORP USA, INC. and MORGAN STANLEY SENIOR FUNDING, INC., as
co-syndication agents (the "Co- Syndication Agents"), TORONTO DOMINION (TEXAS),
INC., as documentation agent (the "Documentation Agent"), and THE CHASE
MANHATTAN BANK, a New York banking corporation (as hereinafter defined, the
"Administrative Agent"), as administrative agent for the Lenders hereunder.
W I T N E S S E T H :
WHEREAS, the U.S. Borrower is a party to the UT Automotive
Acquisition Agreement (as defined below) pursuant to which the U.S. Borrower (or
a Subsidiary designated by it) will consummate the UT Automotive Acquisition (as
defined below); and
WHEREAS, in order to finance a portion of the purchase price
of the UT Automotive Acquisition, and to finance general corporate purposes of
the U.S. Borrower and its Subsidiaries, the U.S. Borrower has requested the
Lenders to make available the credit facilities described herein, and the
Lenders are willing to make such credit facilities available upon and subject to
the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements contained herein, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following
terms shall have the following meanings:
"ABR Loans": Revolving Credit Loans or Term Loans, as the case
may be, the rate of interest applicable to which is based upon the
Alternate Base Rate.
"Acquired Indebtedness": Indebtedness of a Person or any of
its Subsidiaries existing at the time such Person becomes a Subsidiary
of the U.S. Borrower or assumed in connection with the acquisition of
assets from such Person and not incurred by such
<PAGE> 8
2
Person in contemplation of such Person becoming a Subsidiary
of the U.S. Borrower or such acquisition, and any refinancings
thereof.
"Adjusted Aggregate Revolving Outstandings": with respect to
each Lender, the Aggregate Revolving Outstandings of such Lender, plus
the amount of any participating interests purchased by such Lender
pursuant to subsection 13.8, minus the amount of any participating
interests sold by such Lender pursuant to subsection 13.8.
"Administrative Agent": Chase, together with its affiliates,
as arranger of the Commitments and as Administrative Agent for the
Lenders under this Agreement and the other Loan Documents, and any
successor thereto appointed pursuant to subsection 12.9.
"Administrative Schedule": Schedule III, which contains
interest rate definitions and administrative information in respect of
each Available Foreign Currency.
"Affiliate": of any Person, (a) any other Person (other than a
Wholly Owned Subsidiary of such Person) which, directly or indirectly,
is in control of, is controlled by, or is under common control with,
such Person or (b) any other Person who is a director or executive
officer of (i) such Person, (ii) any Subsidiary of such Person (other
than a Wholly Owned Subsidiary) or (iii) any Person described in
clause (a) above. For purposes of this definition, a Person shall be
deemed to be "controlled by" such other Person if such other Person
possesses, directly or indirectly, power either to (A) vote 10% or
more of the securities having ordinary voting power for the election
of directors of such first Person or (B) direct or cause the direction
of the management and policies of such first Person whether by
contract or otherwise.
"Aggregate Available Multicurrency Commitments": as at any
date of determination with respect to all Multicurrency Lenders, an
amount in U.S. Dollars equal to the Available Multicurrency
Commitments of all Multicurrency Lenders on such date.
"Aggregate Available Revolving Credit Commitments": as at any
date of determination with respect to all Lenders, an amount in U.S.
Dollars equal to the Available Revolving Credit Commitments of all
Lenders on such date.
"Aggregate Revolving Credit Commitments": the aggregate amount
of the Revolving Credit Commitments of all the Lenders.
"Aggregate Revolving Outstandings": as at any date of
determination with respect to any Lender, an amount in U.S. Dollars
equal to the sum of (a) the aggregate outstanding principal amount of
Revolving Credit Loans of such Lender and (b) the U.S. Dollar
Equivalent of the Aggregate Multicurrency Outstandings of such Lender.
<PAGE> 9
3
"Aggregate Multicurrency Outstandings": as at any date of
determination with respect to any Lender, an amount in the applicable
Available Foreign Currencies equal to the aggregate unpaid principal
amount of such Lender's Multicurrency Loans.
"Aggregate Total Outstandings": as at any date of
determination with respect to any Lender, an amount in U.S. Dollars
equal to the sum of (a) the Aggregate Revolving Outstandings of such
Lender and (b) the aggregate outstanding principal amount of Term
Loans of such Lender.
"Agreement": this Revolving Credit and Term Loan Agreement, as
the same may be amended, supplemented or otherwise modified from time
to time.
"Agreement Currency": as defined in subsection 13.20(b).
"Alternate Base Rate": for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the greatest
of:
(a) the U.S. Prime Rate in effect on such day; and
(b) the Federal Funds Effective Rate in effect on
such day plus 1/2 of 1%.
If for any reason the Administrative Agent shall have
determined (which determination shall be conclusive absent manifest
error) that it is unable to ascertain the Federal Funds Effective Rate
for any reason, including the inability or failure of the
Administrative Agent to obtain sufficient quotations in accordance
with the terms thereof, the Alternate Base Rate shall be determined
without regard to clause (b) above, until the circumstances giving
rise to such inability no longer exist. Any change in the Alternate
Base Rate due to a change in the U.S. Prime Rate or the Federal Funds
Effective Rate shall be effective as of the opening of business on the
effective day of such change in the U.S. Prime Rate or the Federal
Funds Effective Rate, respectively.
"Amended and Restated Credit Agreement": the Second Amended
and Restated Credit and Guarantee Agreement, dated as of May 4, 1999,
among the U.S. Borrower, certain of its Foreign Subsidiaries, the
lenders parties thereto, Chase, as general administrative agent, and
others, as the same may be amended, supplemented or otherwise modified
from time to time, and any Refinancing Agreement in respect thereof.
"Applicable Margin": with respect to each day, the rate per
annum based on the Ratings in effect on such day, as set forth under
the relevant column heading below:
<PAGE> 10
4
<TABLE>
<CAPTION>
Applicable Margin
- Revolving Credit
Loans and
Applicable Margin Multicurrency
Rating - Term Loans Loans
------ ----------------- ------------------
<S> <C> <C>
Rating I .75% .75%
Rating II 1.00% 1.00%
Rating III 1.25% 1.25%
</TABLE>
;provided, that during the period from the Closing Date until the date
on which the Borrower delivers to the Lenders its financial statements
for the fiscal quarter ending September 30, 1999 pursuant to
subsection 8.1, the Applicable Margins shall be those set forth above
opposite Rating III.
"Assignee": as defined in subsection 13.6(c).
"Available Foreign Currencies": Pounds Sterling, euro, Swedish
Kroner, and any other available and freely-convertible non-U.S. Dollar
currency selected by the U.S. Borrower and approved by the
Administrative Agent and the Majority Multicurrency Lenders in the
manner described in subsection 13.1(b).
"Available Multicurrency Commitment": as at any date of
determination with respect to any Multicurrency Lender (after giving
effect to the making and payment of any Revolving Credit Loans
required to be made on such date pursuant to subsection 2.5), an
amount in U.S. Dollars equal to the lesser of (a) the excess, if any,
of (i) the amount of such Multicurrency Lender's Multicurrency
Commitment in effect on such date over (ii) the U.S. Dollar Equivalent
of the Aggregate Multicurrency Outstandings of such Multicurrency
Lender on such date and (b) the excess, if any, of (i) the amount of
such Multicurrency Lender's Revolving Credit Commitment in effect on
such date over (ii) the Aggregate Revolving Outstandings of such
Multicurrency Lender on such date.
"Available Revolving Credit Commitment": as at any date of
determination with respect to any Lender (after giving effect to the
making and payment of any Revolving Credit Loans required to be made
on such date pursuant to subsection 2.5), an amount equal to the
excess, if any, of (a) the amount of such Lender's Revolving Credit
Commitment in effect on such date over (b) the Aggregate Revolving
Outstandings of such Lender on such date.
<PAGE> 11
5
"Benefitted Lender": as defined in subsection 13.7.
"Board": the Board of Governors of the Federal Reserve System
(or any successor thereto).
"Bond Guarantee": the guarantee entered into by any Subsidiary
Guarantor in respect of up to an aggregate principal amount of
$1,400,000,000 of senior unsecured debt securities to be issued by the
U.S. Borrower, all or a portion of the proceeds of which will be used
to repay in full the Interim Term Loans outstanding under (and as
defined in) the Interim Term Loan Agreement.
"Borrowers": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified in a notice
pursuant to subsection 2.3, 3.2 or 4.2 as a date on which a Borrower
requests the Lenders to make Loans hereunder.
"Business Day": (a) when such term is used in respect of a day
on which a Loan in an Available Foreign Currency is to be made, a
payment is to be made in respect of such Loan, an Exchange Rate is to
be set in respect of such Available Foreign Currency or any other
dealing in such Available Foreign Currency is to be carried out
pursuant to this Agreement, such term shall mean a London Banking Day
which is also a day on which banks are open for general banking
business in (x) the city which is the principal financial center of
the country of issuance of such Available Foreign Currency (or, in the
case of Multicurrency Loans in Pounds Sterling, Paris) and (y) in the
case of euro only, Frankfurt am Main, Germany (or such other principal
financial center as the Administrative Agent may from time to time
designate for this purpose), and (b) when such term is used in any
context in this Agreement (including as described in the foregoing
clause (a)), such term shall mean a day which, in addition to
complying with any applicable requirements set forth in the foregoing
clause (a) is a day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by
law to close; provided, that when such term is used for the purpose of
determining the date on which the Eurocurrency Rate is determined
under this Agreement for any Multicurrency Loan denominated in euro
for any Interest Period therefor and for purposes of determining the
first and last day of any such Interest Period, references in this
Agreement to Business Days shall be deemed to be references to Target
Operating Days.
"Capital Stock": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person
(other than a corporation) and any and all warrants, rights or options
to purchase any of the foregoing.
"Cash Equivalents": (a) securities issued or unconditionally
guaranteed or insured by the United States Government or the Canadian
Government or any agency or
<PAGE> 12
6
instrumentality thereof having maturities of not more than twelve
months from the date of acquisition, (b) securities issued or
unconditionally guaranteed or insured by any state of the United
States of America or province of Canada or any agency or
instrumentality thereof having maturities of not more than twelve
months from the date of acquisition and having one of the two highest
ratings obtainable from either S&P or Moody's, (c) time deposits,
certificates of deposit and bankers' acceptances having maturities of
not more than twelve months from the date of acquisition, in each case
with any Lender or with any commercial bank organized under the laws
of the United States of America or any state thereof or the District
of Columbia, Japan, Canada or any member of the European Economic
Community or any U.S. branch of a foreign bank having at the date of
acquisition capital and surplus of not less than $100,000,000, (d)
repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clauses (a), (b) and
(c) entered into with any bank meeting the qualifications specified in
clause (c) above, (e) commercial paper issued by the parent
corporation of any Lender and commercial paper rated, at the time of
acquisition, at least A-1 or the equivalent thereof by S&P or P-1 or
the equivalent thereof by Moody's and in either case maturing within
twelve months after the date of acquisition, (e) deposits maintained
with money market funds having total assets in excess of $300,000,000,
(f) demand deposit accounts maintained in the ordinary course of
business with banks or trust companies, (g) temporary deposits, of
amounts received in the ordinary course of business pending
disbursement of such amounts, in demand deposit accounts in banks
outside the United States and (h) deposits in mutual funds which
invest substantially all of their assets in preferred equities issued
by U.S. corporations rated at least AA (or the equivalent thereof) by
S&P.
"Chase": The Chase Manhattan Bank, a New York banking
corporation.
"Closing Date": the date on which all of the conditions
precedent set forth in subsection 7.1 shall have been met or waived.
"Co-Agents": as defined on Schedule IX hereto.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral": any collateral in which a security interest is
created pursuant to any Security Document.
"Commitment Fee Rate": with respect to each day, the rate per
annum based on the Ratings in effect on such day, as set forth under
the relevant column heading below:
<TABLE>
<CAPTION>
Rating Commitment Fee Rate
------ -------------------
<S> <C>
Rating I .175%
Rating II .20%
</TABLE>
<PAGE> 13
7
<TABLE>
<S> <C>
Rating III .25%;
</TABLE>
provided, that during the period from the Closing Date until the date
on which the Borrower delivers to the Lenders its financial statements
for the fiscal quarter ending September 30, 1999 pursuant to
subsection 8.1, the Commitment Fee Rate shall be that set forth above
opposite Rating III.
"Commitments": the collective reference to the Revolving
Credit Commitments, the Multicurrency Commitments and the Term Loan
Commitments.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the U.S. Borrower
within the meaning of Section 4001 of ERISA or is part of a group
which includes the U.S. Borrower and which is treated as a single
employer under Section 414 of the Code.
"Consolidated Assets": at a particular date, all amounts which
would be included under total assets on a consolidated balance sheet
of the U.S. Borrower and its Subsidiaries as at such date, determined
in accordance with GAAP.
"Consolidated Indebtedness": at a particular date, all
Indebtedness of the U.S. Borrower and its Subsidiaries which would be
included under indebtedness on a consolidated balance sheet of the
U.S. Borrower and its Subsidiaries as at such date, determined in
accordance with GAAP, less any cash of the U.S. Borrower and its
Subsidiaries as at such date.
"Consolidated Interest Expense": for any fiscal period, the
amount which would, in conformity with GAAP, be set forth opposite the
caption "interest expense" (or any like caption) on a consolidated
income statement of the U.S. Borrower and its Subsidiaries for such
period; provided, that Consolidated Interest Expense for any period
shall (a) exclude (i) fees payable in respect of such period under
subsection 5.5 of this Agreement and similar fees payable in respect
of such period under the Other Credit Agreements, and (ii) any
amortization or write-off of deferred financing fees during such
period and (b) include any interest income during such period.
"Consolidated Net Income": for any fiscal period, the
consolidated net income (or deficit) of the U.S. Borrower and its
Subsidiaries for such period (taken as a cumulative whole), determined
in accordance with GAAP; provided that (a) any provision for
post-retirement medical benefits, to the extent such provision
calculated under FAS 106 exceeds actual cash outlays calculated on the
"pay as you go" basis, shall not to be taken into account, and (b)
there shall be excluded (i) the income (or deficit) of any Person
accrued prior to the date it becomes a Subsidiary or is merged into or
consolidated with the U.S. Borrower or any Subsidiary, (ii) the income
(or deficit) of any Person (other than a Subsidiary) in which the U.S.
Borrower or any Subsidiary has an ownership interest, except to the
extent that any such income has been actually received by the U.S.
Borrower or such Subsidiary in the form of dividends or similar
distributions, (iii) the
<PAGE> 14
8
undistributed earnings of any Subsidiary to the extent that the
declaration or payment of dividends or similar distributions by such
Subsidiary is not at the time permitted by the terms of any
Contractual Obligation or Requirement of Law (other than (a) prior to
January 1, 2000, any Contractual Obligation or Requirement of Law in
effect on the Closing Date affecting Subsidiaries acquired in the UT
Automotive Acquisition, and (b) any Requirement of Law of Germany)
applicable to such Subsidiary, and (iv) in the case of a successor to
the U.S. Borrower or any Subsidiary by consolidation or merger or as a
transferee of its assets, any earnings of the successor corporation
prior to such consolidation, merger or transfer of assets; provided,
further that the exclusions in clauses (i) and (iv) of this definition
shall not apply to the mergers or consolidations of the U.S. Borrower
or its Subsidiaries with their respective Subsidiaries.
"Consolidated Operating Profit": for any fiscal period,
Consolidated Net Income for such period excluding (a) extraordinary
gains and losses arising from the sale of material assets and other
extraordinary and/or non-recurring gains and losses, (including the
restructuring and related charges in the amount of $133,000,000
recorded by the U.S. Borrower in the fourth quarter of fiscal year
1998), (b) charges, premiums and expenses associated with the
discharge of Indebtedness, (c) charges relating to FAS 106, (d)
license fees (and any write-offs thereof), (e) stock compensation
expense, (f) deferred financing fees (and any write-offs thereof), (g)
write-offs of goodwill, (h) foreign exchange gains and losses, (i)
miscellaneous income and expenses and (j) miscellaneous gains and
losses arising from the sale of assets plus, to the extent deducted in
determining Consolidated Net Income, the excess of (i) the sum of (A)
Consolidated Interest Expense, (B) any expenses for taxes, (C)
depreciation and amortization expense and (D) minority interests in
income of Subsidiaries over (ii) net equity earnings in Affiliates
(excluding Subsidiaries). For purposes of calculating the ratio set
forth in subsection 9.1(b), Consolidated Operating Profit for any
fiscal period shall in any event include the Consolidated Operating
Profit for such fiscal period of any entity acquired by the U.S.
Borrower or any of its Subsidiaries during such period; and for
purposes of calculating the ratio set forth in subsections 9.1(a) and
13.19 for the periods of four consecutive fiscal quarters ending on or
about 6/30/99, 9/30/99, 12/31/99 and 3/31/00, Consolidated Operating
Profit shall include the Consolidated Operating Profit during such
periods of the entities acquired by the U.S. Borrower in the UT
Automotive Acquisition.
"Consolidated Revenues": for any fiscal period, the
consolidated revenues of the U.S. Borrower and its Subsidiaries for
such period, determined in accordance with GAAP.
"Continuing Directors": the directors of the U.S. Borrower on
the Closing Date and each other director, if such other director's
nomination for election to the Board of Directors of the U.S. Borrower
is recommended by a majority of the then Continuing Directors.
<PAGE> 15
9
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
undertaking to which such Person is a party or by which it or any of
its property is bound.
"Conversion Date": any date on which either (a) an Event of
Default under Section 11(i) has occurred or (b) the Commitments shall
have been terminated prior to the Revolving Credit Termination Date
and/or the Loans shall have been declared immediately due and payable,
in either case pursuant to Section 11.
"Conversion Sharing Percentage": on any date with respect to
any Lender and any Multicurrency Loans of such Lender outstanding in
any currency other than U.S. Dollars, the percentage of such
Multicurrency Loans such that, after giving effect to the conversion
of such Multicurrency Loans to U.S. Dollars and the purchase and sale
by such Lender of participating interests as contemplated by
subsection 13.8, the Revolving Outstandings Percentage of such Lender
will equal such Lender's Revolving Credit Commitment Percentage on
such date (calculated immediately prior to giving effect to any
termination or expiration of the Revolving Credit Commitments on the
Conversion Date).
"Converted Loans": as defined in subsection 13.8(a).
"Co-Syndication Agents": as defined in the preamble hereto.
"CSI": Chase Securities Inc.
"Currency Agreement": any foreign exchange contract, currency
swap agreement, futures contract, option contract, synthetic cap or
other similar agreement or arrangement designed to protect the U.S.
Borrower or any Subsidiary against fluctuations in currency values.
"Currency Agreement Obligations": all obligations of the U.S.
Borrower or any Subsidiary to any financial institution under any one
or more Currency Agreements.
"Default": any of the events specified in Section 11, whether
or not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Documentation Agent": as defined in the preamble hereto.
"Dollars", "U.S. Dollars" and "$": dollars in lawful currency
of the United States of America.
"Domestic Loan Party": each Loan Party that is organized under
the laws of any jurisdiction of the United States.
<PAGE> 16
10
"Domestic Pledge Agreements": the collective reference to all
Pledge Agreements pursuant to which the Capital Stock of any Domestic
Subsidiary is pledged.
"Domestic Subsidiary": any Subsidiary other than a Foreign
Subsidiary.
"EMU": Economic and Monetary Union as contemplated in the
Treaty on European Union.
"EMU Legislation": legislative measures of the European Union
for the introduction of, changeover to or operation of the euro in one
or more member states.
"Environmental Complaint": any complaint, order, citation,
notice or other written communication from any Person with respect to
the existence or alleged existence of a violation of any Environmental
Laws or legal liability resulting from air emissions, water
discharges, noise emissions, Hazardous Material or any other
environmental, health or safety matter.
"Environmental Laws": any and all applicable Federal, foreign,
state, provincial, local or municipal laws, rules, orders,
regulations, statutes, ordinances, codes, decrees, requirements of any
Governmental Authority and any and all common law requirements, rules
and bases of liability regulating, relating to or imposing liability
or standards of conduct concerning pollution or protection of the
environment or the Release or threatened Release of Hazardous
Materials, as now or hereafter in effect.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"euro": the single currency of the European Union as
constituted by the Treaty on European Union and as referred to in EMU
Legislation.
"Eurocurrency Liabilities": at any time, the aggregate of the
rates (expressed as a decimal fraction) of any reserve requirements in
effect at such time (including, without limitation, basic,
supplemental, marginal and emergency reserves under any regulations of
the Board or other Governmental Authority having jurisdiction with
respect thereto) dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as "Eurocurrency
Liabilities" in Regulation D of the Board) maintained by a member bank
of the Federal Reserve System.
"Eurocurrency Rate": with respect to each Interest Period
pertaining to a Multicurrency Loan, the Eurocurrency Rate determined
for such Interest Period and the Available Foreign Currency in which
such Multicurrency Loan is denominated in the manner set forth in the
Administrative Schedule.
"Eurodollar Loans": Revolving Credit Loans or Term Loans, as
the case may be, the rate of interest applicable to which is based
upon the Eurodollar Rate.
<PAGE> 17
11
"Eurodollar Rate": with respect to each Interest Period
pertaining to a Eurodollar Loan, the rate per annum equal to the
average (rounded upward to the nearest 1/16th of 1%) of the respective
rates notified to the Administrative Agent by each of the U.S.
Reference Lenders as the rate at which such U.S. Reference Lender is
offered Dollar deposits at or about 10:00 a.m., New York City time,
two Business Days prior to the beginning of such Interest Period,
(a) in the interbank eurodollar market where the
eurodollar and foreign currency exchange operations in respect
of its Eurodollar Loans then are being conducted,
(b) for delivery on the first day of such Interest
Period,
(c) for the number of days contained therein, and
(d) in an amount comparable to the amount of its
Eurodollar Loan to be outstanding during such Interest Period.
"euro unit": the currency unit of the euro as defined in the
EMU Legislation.
"Event of Default": any of the events specified in Section 11,
provided that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"Exchange Act": the Securities Exchange Act of 1934, as
amended.
"Exchange Rate": with respect to any non-U.S. Dollar currency
on any date, the rate at which such currency may be exchanged into
U.S. Dollars, as set forth on such date on the relevant Reuters
currency page at or about 11:00 A.M., London time, on such date. In
the event that such rate does not appear on any Reuters currency page,
the "Exchange Rate" with respect to such non-U.S. Dollar currency
shall be determined by reference to such other publicly available
service for displaying exchange rates as may be agreed upon by the
Administrative Agent and the U.S. Borrower or, in the absence of such
agreement, such "Exchange Rate" shall instead be the Administrative
Agent's spot rate of exchange in the interbank market where its
foreign currency exchange operations in respect of such non-U.S.
Dollar currency are then being conducted, at or about 10:00 A.M.,
local time, on such date for the purchase of U.S. Dollars with such
non-U.S. Dollar currency, for delivery two Business Days later;
provided, that if at the time of any such determination, no such spot
rate can reasonably be quoted, the Administrative Agent may use any
reasonable method as it deems applicable to determine such rate, and
such determination shall be conclusive absent manifest error.
"Federal Funds Effective Rate": for any day, the weighted
average of the rates per annum on overnight federal funds transactions
with members of the Federal Reserve System arranged by federal funds
brokers, as published on the next succeeding Business
<PAGE> 18
12
Day by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day which is a Business Day, the average of the
quotations for the day of such transactions received by the
Administrative Agent from three federal funds brokers of recognized
standing selected by it.
"Financing Lease": (a) any lease of property, real or
personal, the obligations under which are capitalized on a
consolidated balance sheet of the U.S. Borrower and its Subsidiaries
and (b) any other such lease to the extent that the then present value
of the minimum rental commitment thereunder should, in accordance with
GAAP, be capitalized on a balance sheet of the lessee.
"First Lender": as defined in subsection 13.8(c).
"Foreign Subsidiaries": each of the Subsidiaries so designated
on Schedule VI and any Subsidiaries organized outside the United
States which are created after the effectiveness hereof.
"Foreign Subsidiary Borrower": each Foreign Subsidiary listed
as a Foreign Subsidiary Borrower in Schedule II as amended from time
to time in accordance with subsection 13.1(b)(i).
"Foreign Subsidiary Opinion": with respect to any Foreign
Subsidiary Borrower, a legal opinion of counsel to such Foreign
Subsidiary Borrower addressed to the Administrative Agent and the
Lenders covering the matters set forth on Exhibit N, with such
assumptions, qualifications and deviations therefrom as the
Administrative Agent shall approve (such approval not to be
unreasonably withheld).
"Funding Commitment Percentage": as at any date of
determination (after giving effect to the making and payment of any
Loans made on such date pursuant to subsection 2.5), with respect to
any Lender, that percentage which the Available Revolving Credit
Commitment of such Lender then constitutes of the Aggregate Available
Revolving Credit Commitments.
"GAAP": generally accepted accounting principles in the United
States of America in effect from time to time.
"Governmental Authority": any nation or government, any state,
province or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Guarantee Obligation": as to any Person, any obligation of
such Person guaranteeing or in effect guaranteeing any Indebtedness,
leases, dividends or other obligations (the "primary obligations") of
any other Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any obligation
of such Person, whether or not contingent (a) to purchase any such
primary obligation or
<PAGE> 19
13
any property constituting direct or indirect security therefor, (b) to
advance or supply funds (i) for the purchase or payment of any such
primary obligation or (ii) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth
or solvency of the primary obligor, (c) to purchase property,
securities or services primarily for the purpose of assuring the owner
of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation or (d) otherwise to assure
or hold harmless the owner of any such primary obligation against loss
in respect thereof; provided, however, that the term Guarantee
Obligation shall not include endorsements of instruments for deposit
or collection in the ordinary course of business. The amount of any
Guarantee Obligation shall be deemed to be an amount equal to the
value as of any date of determination of the stated or determinable
amount of the primary obligation in respect of which such Guarantee
Obligation is made (unless such Guarantee Obligation shall be
expressly limited to a lesser amount, in which case such lesser amount
shall apply) or, if not stated or determinable, the value as of any
date of determination of the maximum reasonably anticipated liability
in respect thereof as determined by such Person in good faith.
"Guarantor Supplement": a supplement to the Subsidiary
Guarantee, substantially in the form of Annex A to the Subsidiary
Guarantee, whereby a Subsidiary of the U.S. Borrower becomes a
"Guarantor" under the Subsidiary Guarantee.
"Hazardous Materials": any solid wastes, toxic or hazardous
substances, materials or wastes, defined, listed, classified or
regulated as such in or under any Environmental Laws, including,
without limitation, asbestos, petroleum or petroleum products
(including gasoline, crude oil or any fraction thereof),
polychlorinated biphenyls, and urea-formaldehyde insulation, and any
other substance the presence of which may give rise to liability under
any Environmental Law.
"Indebtedness": of a Person, at a particular date, the sum
(without duplication) at such date of (a) indebtedness for borrowed
money or for the deferred purchase price of property or services in
respect of which such Person is liable as obligor, (b) indebtedness
secured by any Lien on any property or asset owned or held by such
Person regardless of whether the indebtedness secured thereby shall
have been assumed by or is a primary liability of such Person, (c)
obligations of such Person under Financing Leases, (d) the face amount
of all letters of credit issued for the account of such person and,
without duplication, the unreimbursed amount of all drafts drawn
thereunder and (e) obligations (in the nature of principal or
interest) of such Person in respect of acceptances or similar
obligations issued or created for the account of such Person; but
excluding (i) trade and other accounts payable in the ordinary course
of business in accordance with customary trade terms and which are not
overdue for more than 120 days or, if overdue for more than 120 days,
as to which a dispute exists and adequate reserves in conformity with
GAAP have been established on the books of such Person, (ii) deferred
compensation obligations to employees and (iii) any obligations
otherwise constituting Indebtedness the payment of which such Person
has provided for pursuant to the terms of such Indebtedness or any
agreement or instrument pursuant to which such Indebtedness was
<PAGE> 20
14
incurred, by the irrevocable deposit in trust of an amount of funds or
a principal amount of securities, which deposit is sufficient, either
by itself or taking into account the accrual of interest thereon, to
pay the principal of and interest on such obligations when due.
"Industrial Revenue Bonds": industrial revenue bonds issued
for the benefit of the U.S. Borrower or its Subsidiaries and in
respect of which the U.S. Borrower or its Subsidiaries will be the
source of repayment.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section
4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intercreditor Agreement": the Intercreditor Agreement,
substantially in the form of Exhibit P, to be entered into pursuant to
subsection 13.9, as amended or otherwise modified from time to time.
"Interest Payment Date": (a) as to any ABR Loan, the last day
of each March, June, September and December to occur while such Loan
is outstanding, (b) as to any Eurodollar Loan or Multicurrency Loan
having an Interest Period of three months or less, the last day of
such Interest Period and (c) as to any Eurodollar Loan or
Multicurrency Loan having an Interest Period longer than three months,
(i) each day which is three months, or a whole multiple thereof, after
the first day of such Interest Period and (ii) the last day of such
Interest Period.
"Interest Period": with respect to any Eurodollar Loan or
Multicurrency Loan:
(a) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such Eurodollar
Loan or Multicurrency Loan and ending one, two, three or six months
thereafter, and if deposits in the relevant currency for such longer
Interest Periods are available to all relevant Lenders (as determined
by such Lenders), nine or twelve months thereafter, as selected by the
relevant Borrower in its notice of borrowing or notice of conversion,
as the case may be, given with respect thereto; and
(b) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Eurodollar Loan or
Multicurrency Loan and ending one, two, three or six months
thereafter, and if deposits in the relevant currency for such longer
Interest Periods are available to all relevant Lenders (as determined
by such Lenders), nine or twelve months thereafter, as selected by the
relevant Borrower by irrevocable notice to the Administrative Agent
not less than three Business Days prior to the last day of the then
current Interest Period with respect thereto;
<PAGE> 21
15
provided that all of the foregoing provisions relating to Interest
Periods are subject to the following:
(i) if any Interest Period pertaining to a Eurodollar
Loan or Multicurrency Loan would otherwise end on a day that
is not a Business Day, such Interest Period shall be extended
to the next succeeding Business Day unless the result of such
extension would be to carry such Interest Period into another
calendar month in which event such Interest Period shall end
on the immediately preceding Business Day;
(ii) any Interest Period applicable to a Eurodollar
Loan or Multicurrency Loan that would otherwise extend beyond
the Revolving Credit Termination Date or Term Loan Maturity
Date, as the case may be, shall end on the Revolving Credit
Termination Date or Term Loan Maturity Date, as the case may
be; and
(iii) any Interest Period pertaining to a Eurodollar
Loan or Multicurrency Loan that begins on the last Business
Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Business Day of
a calendar month.
"Interest Rate Agreement": any interest rate protection
agreement, interest rate swap or other interest rate hedge arrangement
(other than any interest rate cap or other similar agreement or
arrangement pursuant to which the U.S. Borrower has no credit
exposure), to or under which the U.S. Borrower or any of its
Subsidiaries is a party or a beneficiary.
"Interest Rate Agreement Obligations": all obligations of the
U.S. Borrower or any Subsidiary to any financial institution under any
one or more Interest Rate Agreements.
"Interim Term Loan Agreement": the Interim Term Loan
Agreement, dated as of May 4, 1999, among the U.S. Borrower, the
lenders parties thereto, Chase, as administrative agent, and others,
as the same may be amended, supplemented or otherwise modified from
time to time, and any Refinancing Agreement in respect thereof.
"Investment Grade Status": shall exist at any time when the
actual or implied rating of the U.S. Borrower's senior long-term
unsecured debt is at or above BBB- from S&P and at or above Baa3 from
Moody's; if either of S&P or Moody's shall change its system of
classifications after the date of this Agreement, Investment Grade
Status shall exist at any time when the actual or implied rating of
the U.S. Borrower's senior long-term unsecured debt is at or above the
new rating which most closely corresponds to the above-specified level
under the previous rating system.
<PAGE> 22
16
"Judgment Currency": as defined in subsection 13.19(b).
"Lead Managers": as defined on Schedule IX hereto.
"Lear Germany": Lear Corporation Beteiligungs GmbH.
"Lenders": as defined in the preamble hereto, provided that no
Person shall become a "Lender" hereunder after the Closing Date
without compliance with subsection 13.6(c).
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), or
preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement or
any Financing Lease having substantially the same economic effect as
any of the foregoing).
"Loan Documents": the collective reference to this Agreement,
any Notes and the Security Documents.
"Loan Parties": the collective reference to the Borrowers,
each guarantor or grantor party to any Security Document and each
issuer of pledged stock under each Pledge Agreement.
"Loans": the collective reference to the Revolving Credit
Loans, the Term Loans and the Multicurrency Loans.
"Loans to be Converted": as defined in subsection 13.8(a).
"London Banking Day": any day on which banks in London are
open for general banking business, including dealings in foreign
currency and exchange.
"Majority Lenders": (a) at any time prior to the termination
of the Revolving Credit Commitments, Lenders holding in the aggregate
more than 50% of the aggregate amount of the Revolving Credit
Commitments and the aggregate outstanding principal amount of Term
Loans; and (b) at any time after the termination of the Revolving
Credit Commitments, Lenders whose Aggregate Total Outstandings
aggregate more than 50% of the Aggregate Total Outstandings of all
Lenders; provided that for purposes of this definition the Aggregate
Total Outstandings of each Lender shall be adjusted up or down so as
to give effect to any participations purchased or sold pursuant to
subsection 13.8.
"Majority Multicurrency Lenders": at any time, Multicurrency
Lenders whose Multicurrency Commitment Percentages aggregate more than
50%.
"Majority Revolving Credit Lenders": at any time, Lenders
whose Revolving Credit Commitment Percentages aggregate more than 50%.
<PAGE> 23
17
"Majority Term Loan Lenders " : at any time, Lenders holding
more than 50% of the aggregate outstanding principal amount of Term
Loans.
"Managing Agents": as defined on Schedule IX hereto.
"Material Subsidiary": each Loan Party and any other
Subsidiary which (a) for the most recent fiscal year of the U.S.
Borrower accounted for more than 10% of Consolidated Revenues or (b)
as of the end of such fiscal year, was the owner of more than 10% of
Consolidated Assets, all as shown on the consolidated financial
statements of the U.S. Borrower for such fiscal year.
"Moody's": Moody's Investors Service, Inc. or any successor
thereto.
"Multicurrency Commitment": as to any Multicurrency Lender at
any time, its obligation to make Multicurrency Loans to the U.S.
Borrower or Foreign Subsidiary Borrowers in an aggregate amount in
Available Foreign Currencies of which the U.S. Dollar Equivalent does
not exceed at any time outstanding the lesser of (a) the amount set
forth opposite such Multicurrency Lender's name in Schedule I under
the heading "Multicurrency Commitment", and (b) the Revolving Credit
Commitment of such Multicurrency Lender, in each case as such amount
may be reduced from time to time as provided in subsection 4.4 and the
other applicable provisions hereof.
"Multicurrency Commitment Percentage": as to any Multicurrency
Lender at any time, the percentage which such Multicurrency Lender's
Multicurrency Commitment then constitutes of the aggregate
Multicurrency Commitments (or, if the Multicurrency Commitments have
terminated or expired, the percentage which (a) the U.S. Dollar
Equivalent of the Aggregate Multicurrency Outstandings of such
Multicurrency Lender at such time constitutes of (b) the U.S. Dollar
Equivalent of the Aggregate Multicurrency Outstandings of all
Multicurrency Lenders at such time).
"Multicurrency Lender": each Lender having a Multicurrency
Commitment or holding Multicurrency Loans.
"Multicurrency Loans": as defined in subsection 4.1.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA .
"National Currency Unit": the unit of currency (other than a
euro unit) of a Participating Member State.
"Net Proceeds ": shall mean the gross proceeds received by the
U.S. Borrower or any Subsidiary from a sale or other disposition of
any asset of the U.S. Borrower or such Subsidiary less (a) all
reasonable fees, commissions and other out-of-pocket expenses incurred
by the U.S. Borrower or such Subsidiary in connection therewith, (b)
Federal,
<PAGE> 24
18
state, local and foreign taxes assessed in connection therewith and
(c) the principal amount, accrued interest and any related prepayment
fees of any Indebtedness (other than the Loans) which is secured by
any such asset and which is required to be repaid in connection with
the sale thereof.
"9 1/2% Subordinated Note Indenture": the Indenture dated as
of July 1, 1996, between the U.S. Borrower and The Bank of New York,
as trustee, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with subsection 14.10.
"9 1/2% Subordinated Notes": the 9 1/2% Subordinated Notes of
the U.S. Borrower due 2006, issued pursuant to the 9 1/2% Subordinated
Note Indenture.
"Non-Multicurrency Lender": each Lender which is not a
Multicurrency Lender.
"Notes": the collective reference to the Revolving Credit
Notes and the Term Notes.
"Notice of Multicurrency Loan Borrowing": with respect to a
Multicurrency Loan, a notice from the Borrower (or the U.S. Borrower
on its behalf) in respect of such Loan, containing the information in
respect of such Loan and delivered to the Person, in the manner and by
the time, specified for a Notice of Multicurrency Loan Borrowing in
respect of the currency of such Loan in the Administrative Schedule.
"Notice of Multicurrency Loan Continuation": with respect to a
Multicurrency Loan, a notice from the Borrower (or the U.S. Borrower
on its behalf) in respect of such Loan, containing the information in
respect of such Loan and delivered to the Person, in the manner and by
the time, specified for a Notice of Multicurrency Loan Continuation in
respect of the currency of such Loan in the Administrative Schedule.
"Obligations": collectively, the unpaid principal of and
interest on the Loans, Interest Rate Agreement Obligations to any
Lender, Currency Agreement Obligations to any Lender and all other
obligations and liabilities of (a) the U.S. Borrower under or in
connection with this Agreement (including, without limitation, the
obligations under Section 10 hereof) and the other Loan Documents and
(b) each Foreign Subsidiary Borrower under this Agreement and the
other Loan Documents (including, without limitation, interest accruing
at the then applicable rate provided in this Agreement or any other
applicable Loan Document after the maturity of the Loans and interest
accruing at the then applicable rate provided in this Agreement or any
other applicable Loan Document after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or
like proceeding, relating to the U.S. Borrower, whether or not a claim
for post-filing or post-petition interest is allowed in such
proceeding), whether direct or indirect, absolute or contingent, due
or to become due, or now existing or hereafter incurred, which may
arise under, out of, or in connection with, this Agreement, the Notes,
the other Loan Documents or any other document made,
<PAGE> 25
19
delivered or given in connection therewith, in each case whether on
account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise (including, without
limitation, all fees and disbursements of counsel to the
Administrative Agent or to the Lenders that are required to be paid by
any Borrower pursuant to the terms of this Agreement or any other Loan
Document).
"Other Credit Agreements": the collective reference to the
Amended and Restated Credit Agreement and the Interim Term Loan
Agreement.
"Other Lender": as defined in subsection 13.8(c).
"Participants": as defined in subsection 13.6(b).
"Participating Member State": any member state of the EMU
which has the euro as its lawful currency.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Person": an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which
is covered by ERISA and in respect of which the U.S. Borrower or a
Commonly Controlled Entity is (or, if such plan were terminated at
such time, would under Section 4069 of ERISA be deemed to be) an
"employer" as defined in Section 3(5) of ERISA.
"Pledge Agreements": the collective reference to the Pledge
Agreements listed in Schedule IV and each other pledge agreement or
similar agreement that may be delivered to the Administrative Agent as
collateral security for any or all of the Obligations of the U.S.
Borrower hereunder, and the obligations of the U.S. Borrower under the
Other Credit Agreements, in each case as such Pledge Agreements or
similar agreements may be amended, supplemented or otherwise modified
from time to time.
"Pledged Stock": as defined in each of the Pledge Agreements.
"Property": each parcel of real property owned or operated by
the U.S. Borrower and its Subsidiaries.
"Proprietary Rights": as defined in subsection 6.16.
"Quotation Day": in respect of the determination of the
Eurocurrency Rate for any Interest Period for Multicurrency Loans in
any Available Foreign Currency, the day on which quotations would
ordinarily be given by prime banks in the London interbank
<PAGE> 26
20
market (or, if such Available Foreign Currency is Pounds Sterling, in
the Paris interbank market) for deposits in such Available Foreign
Currency for delivery on the first day of such Interest Period;
provided, that if quotations would ordinarily be given on more than
one date, the Quotation Day for such Interest Period shall be the last
of such dates. On the date hereof, the Quotation Day in respect of any
Interest Period for any Available Foreign Currency (other than the
euro) is customarily the last London Banking Day prior to the
beginning of such Interest Period which is (a) at least two London
Banking Days prior to the beginning of such Interest Period and (b) a
day on which banks are open for general banking business in the city
which is the principal financial center of the country of issue of
such Available Foreign Currency (and, in the case of Pounds Sterling,
in Paris); and the Quotation Day in respect of any Interest Period for
the euro is the day which is two Target Operating Days prior to the
first day of such Interest Period.
"Rating": the respective rating of each of the Rating Agencies
applicable to the long-term senior unsecured non-credit enhanced debt
of the Borrower, as announced by the Rating Agencies from time to
time.
"Rating Agencies": collectively, S&P and Moody's.
"Rating Category": each of Rating I, Rating II and Rating
III.
"Rating I, Rating II and Rating III": the respective Ratings
set forth below:
<TABLE>
<CAPTION>
Rating
------
Category S&P Moody's
-------- --- -------
<S> <C> <C>
Rating I greater than or greater than or
equal to BBB equal to Baa2
Rating II BBB- Baa3
Rating III lower than or equal lower than or equal
to BB+ to Ba1
</TABLE>
; provided, that (i) if on any day the Ratings of the Rating Agencies
do not fall in the same Rating Category, the Rating Category of the
higher of such Ratings shall be applicable for such day, (ii) if on
any day the Rating of only one of the Rating Agencies is available,
then the Rating Category of such Rating shall be applicable for such
day and (iii) if on any day a Rating is available from neither of the
Rating Agencies, then Rating III shall be applicable for such day. Any
change in the applicable Rating Category resulting from a change in
the Rating of a Rating Agency shall become effective on the date such
change is publicly announced by such Rating Agency.
<PAGE> 27
21
"Receivable Financing Transaction": any transaction or series
of transactions involving a sale for cash of accounts receivable,
without recourse based upon the collectibility of the receivables
sold, by the U.S. Borrower or any of its Subsidiaries to a Special
Purpose Subsidiary and a subsequent sale or pledge of such accounts
receivable (or an interest therein) by such Special Purpose
Subsidiary, in each case without any guarantee by the U.S. Borrower or
any of its Subsidiaries (other than the Special Purpose Subsidiary).
"Refinancing Agreement": with respect to the Interim Term Loan
Agreement or the Amended and Restated Credit Agreement, as the case
may be, a successor agreement satisfying the following criteria: (a)
such successor agreement refinances in whole, and replaces the
commitments under, the Interim Term Loan Agreement or the Amended and
Restated Credit Agreement, as the case may be, (b) either (i) the
covenants, representations and warranties and events of default set
forth in such successor agreement shall be equivalent to the
corresponding provisions set forth in the Interim Term Loan Agreement
or the Amended and Restated Credit Agreement, as the case may be, or
(ii) to the extent such provisions are more restrictive on the
Borrower and its Subsidiaries than the provisions of this Agreement,
the U.S. Borrower shall, contemporaneously with entering into such
Refinancing Agreement, enter into with the Administrative Agent an
amendment to this Agreement reasonably satisfactory to the
Administrative Agent pursuant to which such more restrictive
provisions shall be incorporated herein (the Lenders hereby
authorizing the Administrative Agent to enter into such amendment),
(c) such successor agreement shall not be guaranteed by any Person
other than the Subsidiary Guarantors pursuant to the Subsidiary
Guarantee and, if applicable, the Borrower and shall not be secured
except pursuant to the Security Documents and (d) the lenders under
such successor agreement (or an agent for such lenders) shall have
entered into an intercreditor agreement with the Administrative Agent,
in form and substance reasonably satisfactory to the Administrative
Agent, which shall, in any event, contain customary indemnities,
liability limitations, exculpation provisions and other customary
protective provisions in favor of the Administrative Agent, in its
capacity as Agent under (and as defined in) the Subsidiary Guarantee
and the Security Documents, substantially equivalent to those set
forth in the corresponding provisions of the Interim Term Loan
Agreement or the Amended and Restated Credit Agreement, as the case
may be.
"Register": as defined in subsection 13.6(d).
"Release" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, escaping, leaking, dumping,
disposing, spreading, depositing or dispersing of any Hazardous
Materials in, unto or onto the environment.
"Release Status": shall exist at any time when the actual or
implied rating of the U.S. Borrower's senior long-term unsecured debt
is at or above BBB- from S&P or at or above Baa3 from Moody's; if
either of S&P or Moody's shall change its system of classifications
after the date of this Agreement Release Status shall exist at any
time
<PAGE> 28
22
when the actual or implied rating of the U.S. Borrower's senior
long-term unsecured debt is at or above the new rating which most
closely corresponds to the above-specified level under the previous
rating system.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the thirty day
notice period is waived under any of subsections .13, .14, .16, .18,
.19 or .20 of PBGC Reg. ss. 4043 or any successor regulation thereto.
"Requirement of Law": as to (a) any Person, the certificate of
incorporation and by-laws or the partnership or limited partnership
agreement or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject, and (b) any
property, any law, treaty, rule, regulation, requirement, judgment,
decree or determination of any Governmental Authority applicable to or
binding upon such property or to which such property is subject,
including, without limitation, any Environmental Laws.
"Responsible Officer": with respect to any Loan Party, the
chief executive officer, the president, the chief financial officer,
any vice president, the treasurer or the assistant treasurer of such
Loan Party.
"Revolving Credit Commitment": as to any Lender at any time,
its obligation to make Revolving Credit Loans to the U.S. Borrower in
an aggregate amount not to exceed at any time outstanding the U.S.
Dollar amount set forth opposite such Lender's name in Schedule I
under the heading "Revolving Credit Commitment", as such amount may be
reduced from time to time pursuant to subsection 2.4 and the other
applicable provisions hereof.
"Revolving Credit Commitment Percentage": as to any Lender at
any time, the percentage which such Lender's Revolving Credit
Commitment then constitutes of the aggregate Revolving Credit
Commitments of all Lenders (or, if the Revolving Credit Commitments
have terminated or expired, the percentage which (a) the Aggregate
Revolving Outstandings of such Lender at such time then constitutes of
(b) the Aggregate Revolving Outstandings of all Lenders at such time).
"Revolving Credit Commitment Period": the period from and
including the Closing Date to but not including the Revolving Credit
Termination Date, or such earlier date on which the Revolving Credit
Commitments shall terminate as provided herein.
<PAGE> 29
23
"Revolving Credit Lender": each Lender having an amount
greater than zero set forth under the heading "Revolving Credit
Commitment" opposite its name on Schedule I.
"Revolving Credit Lenders": Lenders listed in Part A of
Schedule I hereto.
"Revolving Credit Loan": as defined in subsection 2.1.
"Revolving Credit Note": as defined in subsection 2.2(e).
"Revolving Credit Termination Date": May 4, 2004.
"Revolving Outstandings Percentage": on any date with respect
to any Lender, the percentage which the Adjusted Aggregate Revolving
Outstandings of such Lender constitutes of the Adjusted Aggregate
Revolving Outstandings of all Lenders.
"Securities Act": the Securities Act of 1933, as amended.
"Security Documents": the collective reference to the Pledge
Agreements, the Subsidiary Guarantee and each other guarantee,
security document or similar agreement that may be delivered to the
Administrative Agent as collateral security for any or all of the
Obligations, in each case as amended, supplemented or otherwise
modified from time to time, including, without limitation, to give
effect to any Refinancing Agreement permitted hereunder.
"Single Employer Plan": any Plan which is covered by Title IV
of ERISA, but which is not a Multiemployer Plan.
"S&P": Standard & Poor's Ratings Group or any successor
thereto.
"Special Affiliate": any Affiliate of the U.S. Borrower (a) as
to which the U.S. Borrower holds, directly or indirectly, (i) power to
vote 20% or more of the securities having ordinary voting power for
the election of directors of such Affiliate or (ii) a 20% ownership
interest in such Affiliate and (b) which is engaged in business of the
same or related general type as now being conducted by the U.S.
Borrower and its Subsidiaries.
"Special Entity": any Person which is engaged in business of
the same or related general type as now being conducted by the U.S.
Borrower and its Subsidiaries.
"Special Purpose Subsidiary": any Wholly Owned Subsidiary of
the U.S. Borrower created by the U.S. Borrower for the sole purpose of
facilitating a Receivable Financing Transaction.
<PAGE> 30
24
"Subordinated Debt": any obligations (for principal, interest
or otherwise) evidenced by or arising under or in respect of the
Subordinated Notes and the 9 1/2% Subordinated Notes.
"Subordinated Debt Indentures": the collective reference to
the Subordinated Note Indenture and the 9 1/2% Subordinated Note
Indenture.
"Subordinated Note Indenture": the Indenture, dated as of
February 1, 1994, between the U.S. Borrower and State Street Bank and
Trust Company (as successor to The First National Bank of Boston), as
trustee, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with subsection 9.10.
"Subordinated Notes": the 8 1/4% Subordinated Notes of the
U.S. Borrower due 2002, issued pursuant to the Subordinated Note
Indenture.
"Subsequent Participant": any member state of the EMU that
adopts the euro as its lawful currency after January 1, 1999.
"Subsidiary": as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests
having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the
time owned, or the management of which is otherwise controlled,
directly or indirectly, through one or more intermediaries, or both,
by such Person (exclusive of any Affiliate in which such Person has a
minority ownership interest). Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement
shall refer to a Subsidiary or Subsidiaries of the U.S. Borrower.
"Subsidiary and Secured Indebtedness ": the collective
reference (without duplication) to (a) any Indebtedness of any
Subsidiary, other than Indebtedness permitted by paragraphs (a)
through (e) of subsection 9.2, (b) any Guarantee Obligation of any
Subsidiary, other than Guarantee Obligations permitted by paragraphs
(a) through (e) of subsection 9.4, (c) any Indebtedness or Guarantee
Obligation of any Person that is secured by any Lien on any property,
assets or revenues of the U.S. Borrower or any of its Subsidiaries,
other than Liens permitted by paragraphs (a) through (n) of subsection
9.3. For purposes of clause (b) of the preceding sentence, the amount
of any Guarantee Obligation shall be determined as set forth in the
definition of "Guarantee Obligation" in this subsection 1.1; and for
purposes of clause (c) of the preceding sentence, the amount of any
Indebtedness or Guarantee Obligation that is secured by a Lien on any
property, assets or revenues of the U.S. Borrower or any of its
Subsidiaries shall equal the lesser of (x) the amount of any such
Indebtedness or Guarantee Obligation and (y) the fair market value as
of the date of determination of the property, assets or revenues
subject to such Lien. At any time of determination, the amount of
Subsidiary and Secured Indebtedness
<PAGE> 31
25
outstanding shall be determined without duplication of any other
Subsidiary and Secured Indebtedness then outstanding.
"Subsidiary Guarantee": the Subsidiary Guarantee, dated as of
the date hereof, made by certain Subsidiaries of the U.S. Borrower in
favor of the Administrative Agent, substantially in the form of
Exhibit O, as the same may be amended, supplemented or otherwise
modified from time to time.
"Subsidiary Guarantor": each Subsidiary that is a guarantor
party to the Subsidiary Guarantee, so long as the Subsidiary Guarantee
remains in effect.
"Target Operating Day": any day that is not (a) a Saturday or
Sunday, (b) Christmas Day or New Year's Day or (c) any other day on
which the Trans-European Real-time Gross Settlement Operating System
(or any successor settlement system) is not operating (as determined
by the Administrative Agent).
"Taxes": as defined in subsection 5.12(a).
"Term Loan": as defined in subsection 3.1.
"Term Loan Commitment": as to any Lender at any time, its
obligation to make a Term Loan to the U.S. Borrower in a principal
amount not to exceed the amount set forth opposite such Lender's name
in Schedule I.
"Term Loan Lender": each Lender having a Term Loan Commitment
or holding Term Loans.
"Term Loan Maturity Date": May 4, 2004.
"Term Note": as defined in subsection 3.2(e).
"Tranche": the collective reference to Revolving Credit Loans
or Term Loans, as the case may be, that are Eurodollar Loans, or
Multicurrency Loans, the then current Interest Periods with respect to
all of which begin on the same date and end on the same later date
(whether or not such Loans shall originally have been made on the same
day).
"Transferee": as defined in subsection 13.6(f).
"Treaty on European Union": the Treaty of Rome of March 25,
1957, as amended by the Single European Act 1986 and the Maastricht
Treaty (which was signed at Maastricht on February 7, 1992, and came
into force on November 1, 1993), as amended from time to time.
"Type": as to any Revolving Credit Loan or Term Loan, as the
case may be, its nature as an ABR Loan or a Eurodollar Loan.
<PAGE> 32
26
"U.S. Borrower": as defined in the preamble hereto.
"U.S. Dollar Equivalent": with respect to an amount
denominated in any currency other than U.S. Dollars, the equivalent in
U.S. Dollars of such amount determined at the Exchange Rate on the
date of determination of such equivalent. In making any determination
of the U.S. Dollar Equivalent for purposes of calculating the amount
of Loans to be borrowed from the respective Lenders on any Borrowing
Date, the Administrative Agent shall use the relevant Exchange Rate in
effect on the date on which the interest rate for such Loans is
determined pursuant to the provisions of this Agreement and the other
Loan Documents.
"U.S. Prime Rate": the rate of interest per annum publicly
announced from time to time by the Administrative Agent as its prime
rate in effect at its principal office in New York City. The U.S.
Prime Rate is not intended to be the lowest rate of interest charged
by the Administrative Agent in connection with extensions of credit to
borrowers.
"U.S. Reference Lenders": Chase and The Bank of Nova Scotia.
"UT Automotive Acquisition": the acquisition by the U.S.
Borrower (or a Subsidiary as its designee) of the capital stock of
Lear Corporation Automotive Holdings, a Delaware corporation formerly
known as UT Automotive, Inc., and certain related entities, pursuant
to the UT Automotive Acquisition Agreement.
"UT Automotive Acquisition Agreement": the Stock Purchase
Agreement, dated as of March 16, 1999, between Nevada Bond Investment
Corp. II, a Nevada corporation, as Seller, and the U.S. Borrower (or a
Subsidiary as its designee), as Buyer, as amended, supplemented or
otherwise modified, and certain related agreements.
"Wholly Owned Subsidiary": as to any Person, a corporation,
partnership or other entity of which (a) 100% of the common capital
stock or other ownership interests of such corporation, partnership or
other entity or (b) more than 95% of the common capital stock or other
ownership interests of such corporation, partnership or other entity
where the portion of the common capital stock or other ownership
interests not held by such Person is held by other Persons to satisfy
applicable legal requirements, is owned, directly or indirectly, by
such Person; provided, however, that so long as the U.S. Borrower
owns, directly or indirectly, more than 95% of the capital stock of
Lear Italia, Lear Italia shall be deemed a Wholly Owned Subsidiary of
the U.S. Borrower.
1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in the Notes, the other Loan Documents or any certificate or
other document made or delivered pursuant hereto.
(b) As used herein and in the Notes and any other Loan
Document, and any certificate or other document made or delivered pursuant
hereto or thereto, accounting terms
<PAGE> 33
27
relating to the U.S. Borrower and its Subsidiaries not defined in subsection 1.1
and accounting terms partly defined in subsection 1.1, to the extent not
defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF REVOLVING CREDIT
COMMITMENTS
2.1 Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof, each Lender severally agrees to make revolving credit loans
(each, a "Revolving Credit Loan") in U.S. Dollars to the U.S. Borrower from time
to time during the Revolving Credit Commitment Period so long as after giving
effect thereto (i) the Available Revolving Credit Commitment of each Lender is
greater than or equal to zero and (ii) the Aggregate Revolving Outstandings of
all Revolving Credit Lenders do not exceed the Aggregate Revolving Credit
Commitments. During the Revolving Credit Commitment Period the U.S. Borrower may
use the Revolving Credit Commitments by borrowing, prepaying the Revolving
Credit Loans in whole or in part, and reborrowing, all in accordance with the
terms and conditions hereof.
(b) The Revolving Credit Loans may from time to time be (i)
Eurodollar Loans, (ii) ABR Loans or (iii) a combination thereof, as determined
by the U.S. Borrower and notified to the Administrative Agent in accordance with
subsections 2.3 and 5.2, provided that no Revolving Credit Loan shall be made as
a Eurodollar Loan after the day that is one month prior to the Revolving Credit
Termination Date.
2.2 Repayment of Revolving Credit Loans; Evidence of Debt. (a)
The U.S. Borrower hereby unconditionally promises to pay to the Administrative
Agent for the account of each Lender the then unpaid principal amount of each
Revolving Credit Loan of such Lender (whether made before or after the
termination or expiration of the Revolving Credit Commitments) on the Revolving
Credit Termination Date and on such other date(s) and in such other amounts as
may be required from time to time pursuant to this Agreement. The U.S. Borrower
hereby further agrees to pay interest on the unpaid principal amount of the
Revolving Credit Loans from time to time outstanding until payment thereof in
full at the rates per annum, and on the dates, set forth in subsection 5.1.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the U.S. Borrower to
such Lender resulting from each
<PAGE> 34
28
Revolving Credit Loan of such Lender from time to time, including the amounts of
principal and interest payable thereon and paid to such Lender from time to time
under this Agreement.
(c) The Administrative Agent shall maintain the Register
pursuant to subsection 13.6(d), and a subaccount therein for each Lender, in
which shall be recorded (i) the date and amount of each Revolving Credit Loan
made hereunder, the Type thereof and each Interest Period applicable thereto,
(ii) the date of each continuation thereof pursuant to subsection 5.2, (iii) the
date of each conversion of all or a portion thereof to another Type pursuant to
subsection 5.2, (iv) the date and amount of any principal or interest due and
payable or to become due and payable from the U.S. Borrower to each Lender
hereunder in respect of the Revolving Credit Loans and (v) both the date and
amount of any sum received by the Administrative Agent hereunder from the U.S.
Borrower in respect of the Revolving Credit Loans and each Lender's share
thereof.
(d) The entries made in the Register and the accounts of each
Lender maintained pursuant to subsection 2.2(b) shall, to the extent permitted
by applicable law, be prima facie evidence of the existence and amounts of the
obligations of the U.S. Borrower therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligations of the U.S. Borrower to repay (with applicable interest) the
Revolving Credit Loans made to the U.S. Borrower by such Lender in accordance
with the terms of this Agreement.
(e) The U.S. Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the U.S. Borrower will execute and deliver
to such Lender a promissory note of the U.S. Borrower evidencing the Revolving
Credit Loans of such Lender, substantially in the form of Exhibit A with
appropriate insertions as to date and principal amount (each, a "Revolving
Credit Note"); provided, that the delivery of such Revolving Credit Notes shall
not be a condition precedent to the Closing Date.
2.3 Procedure for Revolving Credit Borrowing. The U.S.
Borrower may borrow under the Revolving Credit Commitments during the Revolving
Credit Commitment Period on any Business Day, provided that the U.S. Borrower
shall give the Administrative Agent irrevocable notice (which notice must be
received by the Administrative Agent prior to 12:00 Noon, New York City time,
(a) at least three Business Days prior to the requested Borrowing Date, if all
or any part of the requested Revolving Credit Loans are to be initially
Eurodollar Loans, (b) on the Closing Date, in the case of ABR Loans borrowed on
the Closing Date, or (c) at least one Business Day prior to the requested
Borrowing Date, otherwise), specifying in each case (i) the amount to be
borrowed, (ii) the requested Borrowing Date, (iii) whether the borrowing is to
be of Eurodollar Loans, ABR Loans or a combination thereof and (iv) if the
borrowing is to be entirely or partly of Eurodollar Loans, the amount of such
Type of Loan and the length of the initial Interest Period therefor. Each
borrowing under the Revolving Credit Commitments (other than a borrowing under
subsection 2.5) shall be in an amount equal to (A) in the case of ABR Loans,
$10,000,000 or a whole multiple of $1,000,000 in excess thereof (or, if the then
Aggregate Available Revolving Credit Commitments are less than $10,000,000, such
lesser amount) and (B) in the case of Eurodollar Loans, $10,000,000 or a whole
multiple of
<PAGE> 35
29
$1,000,000 in excess thereof. Upon receipt of any such notice from the U.S.
Borrower, the Administrative Agent shall promptly notify each Lender thereof.
Not later than 12:00 Noon, New York City time, on each requested Borrowing Date
each Lender shall make an amount equal to its Funding Commitment Percentage of
the principal amount of the Revolving Credit Loans requested to be made on such
Borrowing Date available to the Administrative Agent at its office specified in
subsection 13.2 in U.S. Dollars and in immediately available funds. Except as
otherwise provided in subsection 2.5, the Administrative Agent shall on such
date credit the account of the U.S. Borrower on the books of such office with
the aggregate of the amounts made available to the Administrative Agent by the
Lenders and in like funds as received by the Administrative Agent.
2.4 Termination or Reduction of Revolving Credit Commitments.
The U.S. Borrower shall have the right, upon not less than five Business Days'
notice to the Administrative Agent, to terminate the Revolving Credit
Commitments or, from time to time, to reduce the amount of the Revolving Credit
Commitments; provided that no such termination or reduction shall be permitted
if, after giving effect thereto and to any prepayments of the Loans made on the
effective date thereof, the Available Revolving Credit Commitment or Available
Multicurrency Commitment of any Lender would not be greater than or equal to
zero. Any such reduction shall be in an amount equal to $2,500,000 or a whole
multiple of $500,000 in excess thereof and shall reduce permanently the
Revolving Credit Commitments then in effect.
2.5 Borrowings of Revolving Credit Loans and Refunding of
Loans. (a) If on any Borrowing Date on which a Borrower has requested the
Multicurrency Lenders to make Multicurrency Loans (the "Requested Multicurrency
Loans"), (i) the principal amount of the Requested Multicurrency Loans to be
made by any Multicurrency Lender exceeds the Available Multicurrency Commitment
of such Multicurrency Lender on such Borrowing Date (before giving effect to the
making and payment of any Loans required to be made pursuant to this subsection
2.5 on such Borrowing Date) and (ii) the U.S. Dollar Equivalent of the amount of
such excess is less than or equal to the Aggregate Available Revolving Credit
Commitments of all Non-Multicurrency Lenders (before giving effect to the making
and payment of any Loans pursuant to this subsection 2.5 on such Borrowing
Date), each Non-Multicurrency Lender shall make a Revolving Credit Loan to the
U.S. Borrower on such Borrowing Date, and the proceeds of such Revolving Credit
Loans shall be simultaneously applied to repay outstanding Revolving Credit
Loans and/or Multicurrency Loans of the Multicurrency Lenders (as directed by
the U.S. Borrower) in each case in amounts such that, after giving effect to (1)
such borrowings and repayments and (2) the borrowing from the Multicurrency
Lenders of the Requested Multicurrency Loans, the Revolving Outstandings
Percentage of each Lender will equal (as nearly as possible) its Revolving
Credit Commitment Percentage. To effect such borrowings and repayments, (x) not
later than 12:00 Noon, New York City time, on such Borrowing Date, the proceeds
of such Revolving Credit Loans shall be made available by each Non-Multicurrency
Lender to the Administrative Agent at its office specified in subsection 13.2 in
U.S. Dollars and in immediately available funds and the Administrative Agent
shall apply the proceeds of such Revolving Credit Loans toward repayment of
outstanding Revolving Credit Loans and/or Multicurrency Loans of the
Multicurrency Lenders (as directed by the U.S. Borrower) and (y) concurrently
with the repayment of such Loans on such Borrowing Date, (I) the Multicurrency
<PAGE> 36
30
Lenders shall, in accordance with the applicable provisions hereof, make the
Requested Multicurrency Loans in an aggregate amount equal to the amount so
requested by such Borrower (but not in any event greater than the Aggregate
Available Multicurrency Commitments after giving effect to the making of such
repayment of any Loans on such Borrowing Date) and (II) the relevant Borrower
shall pay to the Administrative Agent for the account of the Lenders whose Loans
to such Borrower are repaid on such Borrowing Date pursuant to this subsection
2.5 all interest accrued on the amounts repaid to the date of repayment,
together with any amounts payable pursuant to subsection 5.11 in connection with
such repayment.
(b) If any borrowing of Revolving Credit Loans is required
pursuant to this subsection 2.5, the U.S. Borrower shall notify the
Administrative Agent in the manner provided for Revolving Credit Loans in
subsection 2.3, except that the minimum borrowing amounts and threshold
multiples in excess thereof applicable to ABR Loans set forth in subsection 2.3
shall not be applicable to the extent that such minimum borrowing amounts exceed
the amounts of Revolving Credit Loans required to be made pursuant to this
subsection 2.5.
SECTION 3. AMOUNT AND TERMS OF TERM LOAN
COMMITMENTS
3.1 Term Loan Commitments. (a) Subject to the terms and
conditions hereof, each Lender severally agrees to make a term loan (each, a
"Term Loan") in U.S. Dollars to the U.S. Borrower on the Closing Date in a
principal amount not exceeding the Term Loan Commitment of such Lender.
(b) The Term Loans may from time to time be (i) Eurodollar
Loans, (ii) ABR Loans or (iii) a combination thereof, as determined by the
Borrower and notified to the Administrative Agent in accordance with subsections
3.3 and 5.2.
3.2 Repayment of Term Loans; Evidence of Debt. (a) The U.S.
Borrower hereby unconditionally promises to pay to the Administrative Agent for
the account of each Lender the then unpaid principal amount of the Term Loan of
such Lender in installments payable on the dates set forth below, with each such
installment being in the aggregate principal amount for all Term Loan Lenders
set forth opposite such date below (and on such other date(s) and in such other
amounts as may be required from time to time pursuant to this Agreement).
<TABLE>
<CAPTION>
Installment Date Aggregate Principal Amount
---------------- --------------------------
<S> <C> <C>
October 31, 2000 $50,000,000
April 30, 2001 $50,000,000
October 31, 2001 $50,000,000
April 30, 2002 $50,000,000
October 31, 2002 $75,000,000
April 30, 2003 $75,000,000
October 31, 2003 $75,000,000
</TABLE>
<PAGE> 37
31
<TABLE>
<S> <C> <C>
April 30, 2004 $75,000,000
</TABLE>
The U.S. Borrower hereby further agrees to pay interest on the unpaid principal
amount of the Term Loans from time to time outstanding until payment thereof in
full at the rates per annum, and on the dates, set forth in subsection 5.1.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the U.S. Borrower to
such Lender resulting from the Term Loan of such Lender from time to time,
including the amounts of principal and interest payable thereon and paid to such
Lender from time to time under this Agreement.
(c) The Administrative Agent shall maintain the Register
pursuant to subsection 13.6(d), and a subaccount therein for each Lender, in
which shall be recorded (i) the date and amount of the Term Loan of each Lender
made hereunder, the Type thereof and each Interest Period applicable thereto,
(ii) the date of each continuation thereof pursuant to subsection 5.2, (iii) the
date of each conversion of all or a portion thereof to another Type pursuant to
subsection 5.2, (iv) the date and amount of any principal or interest due and
payable or to become due and payable from the U.S. Borrower to each Lender
hereunder in respect of the Term Loans and (v) both the date and amount of any
sum received by the Administrative Agent hereunder from the U.S. Borrower in
respect of the Term Loans and each Lender's share thereof.
(d) The entries made in the Register and the accounts of each
Lender maintained pursuant to subsection 3.2(b) shall, to the extent permitted
by applicable law, be prima facie evidence of the existence and amounts of the
obligations of the U.S. Borrower therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligations of the U.S. Borrower to repay (with applicable interest) the Term
Loan made to the U.S. Borrower by such Lender in accordance with the terms of
this Agreement.
(e) The U.S. Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the U.S. Borrower will execute and deliver
to such Lender a promissory note of the U.S. Borrower evidencing the Term Loan
of such Lender, substantially in the form of Exhibit B with appropriate
insertions as to date and principal amount (each, a "Term Note"); provided, that
the delivery of such Term Notes shall not be a condition precedent to the
Closing Date.
3.3 Procedure for Term Loan Borrowing. The U.S. Borrower may
borrow the Term Loans on the Closing Date, provided that the U.S. Borrower shall
give the Administrative Agent irrevocable notice (which notice must be received
by the Administrative Agent prior to 12:00 Noon, New York City time, (a) at
least three Business Days prior to the Closing Date, if all or any part of the
Term Loans are to be initially Eurodollar Loans, or (b) on the Closing Date,
otherwise), specifying in each case (i) the amount to be borrowed, (ii) the
anticipated Closing Date, (iii) whether the borrowing is to be of Eurodollar
Loans, ABR Loans or a combination thereof and (iv) if the borrowing is to be
entirely or partly of Eurodollar Loans, the amount of such Type of Loan and the
length of the initial Interest Period therefor. Upon receipt of any such notice
from the U.S. Borrower, the Administrative Agent shall promptly notify each
Lender
<PAGE> 38
32
thereof. Not later than 1:30 p.m., New York City time, on the Closing Date each
Lender shall make an amount equal to the principal amount of the Term Loan to be
made by it available to the Administrative Agent at its office specified in
subsection 13.2 in U.S. Dollars and in immediately available funds. The
Administrative Agent shall on such date credit the account of the U.S. Borrower
on the books of such office with the aggregate of the amounts made available to
the Administrative Agent by the Lenders and in like funds as received by the
Administrative Agent.
SECTION 4. AMOUNT AND TERMS OF MULTICURRENCY
COMMITMENT
4.1 Multicurrency Commitments. Subject to the terms and
conditions hereof, each Multicurrency Lender severally agrees to make revolving
credit loans (each, a "Multicurrency Loan") in any Available Foreign Currency to
the U.S. Borrower or any Foreign Subsidiary Borrower from time to time during
the Revolving Credit Commitment Period so long as after giving effect thereto
(a) the Available Multicurrency Commitment of such Multicurrency Lender is
greater than or equal to zero, (b) the aggregate outstanding principal amount of
Multicurrency Loans does not exceed an amount of which the U.S. Dollar
Equivalent is $165,000,000 and (c) the Aggregate Revolving Outstandings of all
Lenders do not exceed the Aggregate Revolving Credit Commitments. During the
Revolving Credit Commitment Period, the U.S. Borrower and Foreign Subsidiary
Borrowers may use the Multicurrency Commitments by borrowing, repaying the
Multicurrency Loans in whole or in part, and reborrowing, all in accordance with
the terms and conditions hereof.
4.2 Repayment of Multicurrency Loans; Evidence of Debt. (a)
Each of the U.S. Borrower and each Foreign Subsidiary Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account of
each Multicurrency Lender the then unpaid principal amount of each Multicurrency
Loan of such Multicurrency Lender to such Borrower on the Revolving Credit
Termination Date and on such other date(s) and in such other amounts as may be
required from time to time pursuant to this Agreement. Each of the U.S. Borrower
and each Foreign Subsidiary Borrower hereby further agrees to pay interest on
the unpaid principal amount of the Multicurrency Loans advanced to it and from
time to time outstanding until payment thereof in full at the rates per annum,
and on the dates, set forth in subsection 5.1.
(b) Each Multicurrency Lender shall maintain in accordance
with its usual practice an account or accounts evidencing indebtedness of each
Borrower to such Multicurrency Lender resulting from each Multicurrency Loan of
such Multicurrency Lender from time to time, including the amounts of principal
and interest payable thereon and paid to such Multicurrency Lender from time to
time under this Agreement.
(c) The Administrative Agent shall maintain the Register
pursuant to subsection 13.6(d), and a subaccount therein for each Multicurrency
Lender, in which shall be recorded (i) the date and amount of each Multicurrency
Loan made hereunder, (ii) the date and amount of any principal or interest due
and payable or to become due and payable from each Borrower to each
Multicurrency Lender hereunder in respect of the Multicurrency Loans and (iii)
both the date and
<PAGE> 39
33
amount of any sum received by the Administrative Agent hereunder from each
Borrower in respect of the Multicurrency Loans and each Multicurrency Lender's
share thereof.
(d) The entries made in the Register and the accounts of each
Multicurrency Lender maintained pursuant to subsection 4.2(b) shall, to the
extent permitted by applicable law, be prima facie evidence of the existence and
amounts of the obligations of each Borrower therein recorded; provided, however,
that the failure of any Multicurrency Lender or the Administrative Agent to
maintain the Register or any such account, or any error therein, shall not in
any manner affect the obligation of such Borrower to repay (with applicable
interest) the Multicurrency Loans made to such Borrower by such Multicurrency
Lender in accordance with the terms of this Agreement.
4.3 Procedure for Multicurrency Borrowing. The U.S. Borrower
or any Foreign Subsidiary Borrower may request the Multicurrency Lenders to make
Multicurrency Loans during the Revolving Credit Commitment Period on any
Business Day by delivering a Notice of Multicurrency Loan Borrowing. Each
borrowing under the Multicurrency Commitments shall be in an amount in an
Available Foreign Currency of which the U.S. Dollar Equivalent is equal to at
least $10,000,000 (or, if the then Aggregate Available Multicurrency Commitments
are less than $10,000,000, such lesser amount). Upon receipt of any such Notice
of Multicurrency Borrowing from any Borrower, the Administrative Agent shall
promptly notify each Multicurrency Lender thereof. Not later than the funding
time for the relevant Available Foreign Currency set forth in the Administrative
Schedule each Multicurrency Lender shall make an amount equal to its
Multicurrency Commitment Percentage of the principal amount of Multicurrency
Loans requested to be made on such Borrowing Date available to the
Administrative Agent at the funding office for the relevant Available Foreign
Currency set forth in the Administrative Schedule in the relevant Available
Foreign Currency and in immediately available funds. The amounts made available
by each Multicurrency Lender will then be made available on such Borrowing Date
to the relevant Borrower at the funding office for the relevant Available
Foreign Currency set forth in the Administrative Schedule and in like funds as
received by the Administrative Agent.
4.4 Termination or Reduction of Multicurrency Commitments. The
U.S. Borrower shall have the right, upon not less than three Business Days'
notice to the Administrative Agent, to terminate the Multicurrency Commitments
or, from time to time, to reduce the amount of the Multicurrency Commitments;
provided that no such termination or reduction shall be permitted if, after
giving effect thereto and to any prepayments of the Loans made on the effective
date thereof, the Available Multicurrency Commitment of any Multicurrency Lender
would be less than zero. Any such reduction shall be in an amount equal to
$10,000,000 or a whole multiple of $1,000,000 in excess thereof and shall reduce
permanently the Multicurrency Commitments then in effect.
4.5 Redenomination and Alternative Currencies. Each obligation
under this Agreement of a party to this Agreement which has been denominated in
the national currency unit of a Subsequent Participant state shall be
redenominated into the euro unit in accordance
<PAGE> 40
34
with EMU legislation immediately upon such Subsequent Participant becoming a
Participating Member State (but otherwise in accordance with EMU Legislation).
SECTION 5. GENERAL PROVISIONS APPLICABLE TO LOANS
5.1 Interest Rates and Payment Dates. (a) Each Eurodollar Loan
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such
Interest Period plus the Applicable Margin in effect for such day.
(b) Each ABR Loan shall bear interest for each day on which it
is outstanding at a rate per annum equal to the Alternate Base Rate for such
day.
(c) Each Multicurrency Loan shall bear interest for each day
during each Interest Period with respect thereto at a rate per annum equal to
the Eurocurrency Rate determined for such Interest Period plus the Applicable
Margin in effect for such day.
(d) If all or a portion of (i) the principal amount of any
Loan, (ii) any interest payable thereon or (iii) any fee or other amount payable
hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall bear interest at a rate
per annum equal to the rate that would otherwise be applicable thereto pursuant
to the foregoing provisions of this subsection plus 2%.
(e) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to paragraph (d) of this
subsection shall be payable from time to time on demand.
5.2 Conversion and Continuation Options. (a) The U.S. Borrower
may elect from time to time to convert outstanding Eurodollar Loans (in whole or
in part) to ABR Loans by giving the Administrative Agent at least one Business
Day's prior irrevocable notice of such election, provided that any such
conversion of Eurodollar Loans may only be made on the last day of an Interest
Period with respect thereto unless the U.S. Borrower shall agree to pay the
costs associated therewith as set forth in subsection 5.11(d). The U.S. Borrower
may elect from time to time to convert outstanding ABR Loans made to it (in
whole or in part) to Eurodollar Loans by giving the Administrative Agent at
least three Business Days' prior irrevocable notice of such election. Any such
notice of conversion to Eurodollar Loans shall specify the length of the initial
Interest Period or Interest Periods therefor. Upon receipt of any such notice
the Administrative Agent shall promptly notify each Lender thereof. All or any
part of outstanding Eurodollar Loans and ABR Loans may be converted as provided
herein, provided that (i) no ABR Loan may be converted into a Eurodollar Loan
when any Default or Event of Default has occurred and is continuing and the
Administrative Agent or the Majority Revolving Credit Lenders (in the case of
Revolving Credit Loans) or the Majority Term Loan Lenders (in the case of Term
Loans) have determined that such conversion is not appropriate, (ii) any such
conversion may only be made if, after giving effect thereto, subsection 5.3
shall not have been violated,
<PAGE> 41
35
(iii) no ABR Loan may be converted into a Eurodollar Loan after the date that is
one month prior to the Revolving Credit Termination Date (in the case of
Revolving Credit Loans) or Term Loan Maturity Date (in the case of Term Loans).
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the U.S.
Borrower giving notice to the Administrative Agent of the length of the next
Interest Period to be applicable to such Loans determined in accordance with the
applicable provisions of the term "Interest Period" set forth in subsection 1.1,
provided that no Eurodollar Loan may be continued as such (i) when any Default
or Event of Default has occurred and is continuing and the Administrative Agent
or the Majority Revolving Credit Lenders (in the case of Revolving Credit Loans)
or the Majority Term Loan Lenders (in the case of Term Loans) have determined
that such continuation is not appropriate, (ii) if, after giving effect thereto,
subsection 5.3 would be contravened or (iii) after the date that is one month
prior to the Revolving Credit Termination Date (in the case of Revolving Credit
Loans) or the Term Loan Maturity Date (in the case of Term Loans), and provided,
further, that if the U.S. Borrower shall fail to give such notice or if such
continuation is not permitted pursuant to the preceding proviso such Eurodollar
Loans shall be automatically converted to ABR Loans on the last day of such then
expiring Interest Period.
(c) Any Multicurrency Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the U.S.
Borrower or the relevant Borrower giving a Notice of Multicurrency Loan
Continuation, provided, that if the relevant Borrower shall fail to give such
Notice of Multicurrency Loan Continuation, such Multicurrency Loans shall
automatically be continued for an Interest Period of one month.
5.3 Minimum Amounts of Tranches. All borrowings, conversions
and continuations of Revolving Credit Loans and Multicurrency Loans hereunder
and all selections of Interest Periods hereunder shall be in such amounts and be
made pursuant to such elections so that, after giving effect thereto, (a) the
aggregate principal amount of the Eurodollar Loans comprising each Tranche shall
be equal to $10,000,000 or a whole multiple of $1,000,000 in excess thereof, (b)
the aggregate principal amount of the Multicurrency Loans comprising each
Tranche shall be in an amount of which the U.S. Dollar Equivalent is at least
$2,500,000 (determined at the time of borrowing or continuation) and (c) there
shall not be more than 25 Tranches at any one time outstanding.
5.4 Optional and Mandatory Prepayments. (a) The U.S. Borrower
may at any time and from time to time prepay Revolving Credit Loans and/or Term
Loans in whole or in part without premium or penalty upon at least three
Business Days' irrevocable notice to the Administrative Agent (in the case of
Eurodollar Loans) and at least one Business Day's irrevocable notice to the
Administrative Agent (in the case of ABR Loans) specifying the date and amount
of prepayment and whether the prepayment of Revolving Credit Loans or Term Loans
is of Eurodollar Loans, ABR Loans or a combination thereof, and, if a
combination thereof, the amount allocable to each. Upon the receipt of any such
notice the Administrative Agent shall promptly notify each Revolving Credit
Lender or Term Loan Lender, as the case may be, thereof. If any such notice is
given, the amount specified in such notice shall be due and
<PAGE> 42
36
payable on the date specified therein. Partial prepayments of the Revolving
Credit Loans or Term Loans, as the case may be, shall be in an aggregate
principal amount of $10,000,000 or a whole multiple of $1,000,000 in excess
thereof (or in such lower amount as may be then outstanding).
(b) The U.S. Borrower and Foreign Subsidiary Borrowers may at
any time and from time to time prepay, without premium or penalty, the
Multicurrency Loans, in whole or in part, upon at least three Business Days'
irrevocable notice to the Administrative Agent specifying the date and amount of
prepayment. Upon the receipt of any such notice, the Administrative Agent shall
promptly notify each Multicurrency Lender thereof. If any such notice is given,
the amount specified in such notice shall be due and payable on the date
specified therein. Partial prepayments of Multicurrency Loans shall be in an
aggregate principal amount of which the U.S. Dollar Equivalent is at least
$10,000,000 or a whole multiple of $1,000,000 in excess thereof.
(c) If, at any time during the Revolving Credit Commitment
Period, for any reason the Aggregate Revolving Outstandings of all Lenders
exceed the Aggregate Revolving Credit Commitments then in effect by more than
5%, or the Aggregate Revolving Outstandings of any Lender exceeds the Revolving
Credit Commitment of such Lender then in effect by more than 5%, (i) the U.S.
Borrower shall, upon learning thereof or upon the request of the Administrative
Agent, immediately prepay the Revolving Credit Loans and/or (ii) the Foreign
Subsidiary Borrowers shall, upon learning thereof or upon the request of the
Administrative Agent, immediately prepay the Multicurrency Loans in an aggregate
principal amount at least sufficient to reduce any such excess to 0%.
(d) Each prepayment of Loans pursuant to this subsection 5.4
shall be accompanied by accrued and unpaid interest on the amount prepaid to the
date of prepayment and any amounts payable under subsection 5.11 in connection
with such prepayment.
(e) Notwithstanding the foregoing, mandatory prepayments of
Revolving Credit Loans or Multicurrency Loans that would otherwise be required
pursuant to this subsection 5.4 solely as a result of fluctuations in Exchange
Rates from time to time shall only be required to be made pursuant to this
subsection 5.4 on the last Business Day of each month on the basis of the
Exchange Rate in effect on such Business Day.
5.5 Commitment Fees; Other Fees. (a) The U.S. Borrower agrees
to pay to the Administrative Agent for the account of each Lender, a commitment
fee for the period from and including the Closing Date to but excluding the
Revolving Credit Termination Date (or such earlier date on which the Revolving
Credit Commitments shall terminate as provided herein); each such commitment fee
shall be computed at the Commitment Fee Rate on the daily average amount of the
Available Revolving Credit Commitment of such Lender during the period for which
payment is made, payable quarterly in arrears on the last day of each March,
June, September and December and on the Revolving Credit Termination Date or
such earlier date on which the Revolving Credit Commitments shall terminate as
provided herein, commencing on the first such date to occur after the date
hereof.
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(b) The U.S. Borrower shall pay (without duplication of any
other fee payable under this subsection 5.5) to Chase and CSI, for their
respective accounts, all fees separately agreed to by the U.S. Borrower and
Chase or CSI, as the case may be.
(c) The U.S. Borrower shall (without duplication of any other
fee payable under this subsection 5.5) pay to the Administrative Agent all fees
separately agreed to by the U.S. Borrower and the Administrative Agent.
5.6 Computation of Interest and Fees. (a) Interest based on
the Eurodollar Rate, the Eurocurrency Rate or the Alternate Base Rate when it is
based upon the Federal Funds Effective Rate shall be calculated on the basis of
a 360-day year for the actual days elapsed; and facility fees and interest
(other than interest based upon the Eurodollar Rate, the Eurocurrency Rate or
the Alternative Base Rate when it is based upon the Federal Funds Effective
Rate) shall be calculated on the basis of a 365- (or 366-, as the case may be)
day year for the actual days elapsed. The Administrative Agent shall as soon as
practicable notify the U.S. Borrower and the Lenders of each determination of a
Eurodollar Rate or Eurocurrency Rate. Any change in the interest rate on a Loan
resulting from a change in the Alternate Base Rate or a change in the Prime Rate
shall become effective as of the opening of business on the day on which such
change becomes effective. The Administrative Agent shall as soon as practicable
notify the U.S. Borrower and the Lenders of the effective date and the amount of
each such change in the Alternate Base Rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrowers and the Lenders in the absence of
manifest error. The Administrative Agent shall, at the request of a Borrower,
deliver to such Borrower a statement showing in reasonable detail the
calculations used by such Administrative Agent in determining any interest rate
pursuant to subsection 5.1(a).
(c) If any U.S. Reference Lender shall for any reason no
longer have a Revolving Credit Commitment or any Revolving Credit Loans or Term
Loans, such U.S. Reference Lender shall thereupon cease to be a U.S. Reference
Lender, and if, as a result, there shall only be one U.S. Reference Lender
remaining, the Administrative Agent, with the consent of the U.S. Borrower
(after consultation with Lenders) shall, by notice to the U.S. Borrower and the
Revolving Credit Lenders, designate another Lender as a U.S. Reference Lender so
that there shall at all times be at least two U.S. Reference Lenders.
(d) Each U.S. Reference Lender shall use its best efforts to
furnish quotations of rates to the applicable Administrative Agent as
contemplated hereby. If any of the U.S. Reference Lenders shall be unable or
shall otherwise fail to supply such rates to the applicable Administrative Agent
upon its request, the rate of interest shall, subject to the provisions of
subsection 5.7, be determined on the basis of the quotations of the remaining
U.S. Reference Lenders or Reference Lender.
5.7 Inability to Determine Interest Rate. If prior to the
first day of any Interest Period:
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(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrowers) that,
by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate or
the Eurocurrency Rate, as the case may be, for such Interest Period, or
(b) the Administrative Agent has received notice from the
Majority Revolving Credit Lenders or Majority Term Loan Lenders, as the
case may be, that the Eurodollar Rate or Eurocurrency Rate, as the case
may be, determined or to be determined for such Interest Period will
not adequately and fairly reflect the cost to such Lenders of making or
maintaining their Eurodollar Loans or Multicurrency Loans, as the case
may be, during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
U.S. Borrower and the Lenders as soon as practicable thereafter. Until such time
as the Eurodollar Rate or the Eurocurrency Rate, as the case may be, can be
determined by the Administrative Agent in the manner specified in the
definitions of such terms in subsection 1.1, no further Eurodollar Loans or
Multicurrency Loans (with respect to the Available Currency for which the
Eurocurrency Rate cannot be determined only) shall be continued as such at the
end of the then current Interest Periods or (other than any Eurodollar Loans or
Multicurrency Loans previously requested and with respect to which the
Eurodollar Rate or Eurocurrency Rate, as the case may be, was determined) shall
be made, nor shall the U.S. Borrower have the right to convert ABR Loans into
Eurodollar Loans.
5.8 Pro Rata Treatment and Payments. (a) (i) Except as
provided in subsection 2.5, each borrowing of Revolving Credit Loans by the U.S.
Borrower from the Lenders hereunder shall be made pro rata according to the
Funding Commitment Percentages of the Lenders in effect on the date of such
borrowing. Each payment by the U.S. Borrower on account of any commitment fee
hereunder shall be allocated by the Administrative Agent among the Lenders in
accordance with the respective amounts which such Lenders are entitled to
receive pursuant to subsection 5.5(a). Any reduction of the Revolving Credit
Commitments of the Lenders shall be allocated by the Administrative Agent among
the Lenders pro rata according to the Revolving Credit Commitment Percentages of
the Lenders. Except as provided in subsection 2.5, each payment (other than any
optional prepayment) in respect of principal or interest in respect of the Loans
shall be allocated among the Revolving Credit Loans, Multicurrency Loans and
Term Loans pro rata according to the amounts of principal or interest, as the
case may be, then due and owing in respect of such Loans. Except as provided in
subsection 2.5 or subsection 5.4(c), each payment (other than any optional
prepayment) by the U.S. Borrower on account of principal of or interest on the
Revolving Credit Loans shall be allocated by the Administrative Agent pro rata
according to the respective principal amounts thereof then due and owing to each
Lender. Each optional prepayment by the U.S. Borrower on account of principal of
or interest on the Revolving Credit Loans shall be allocated by the
Administrative Agent pro rata according to the respective outstanding principal
amounts thereof.
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(ii) The borrowing of Term Loans by the U.S. Borrower from the
Term Loan Lenders hereunder shall be made pro rata according to the respective
Term Loan Commitments of the Term Loan Lenders. Each payment (other than any
optional prepayment) by the U.S. Borrower on account of principal of or interest
on the Term Loans shall be allocated by the Administrative Agent pro rata
according to the respective principal amounts of the Term Loans then due and
owing to each Lender. Each optional prepayment by the U.S. Borrower on account
of principal of or interest on the Term Loans shall be allocated by the
Administrative Agent pro rata according to the respective outstanding principal
amounts thereof.
(iii) All payments (including prepayments) to be made by the
U.S. Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without set-off or counterclaim and shall be made prior
to 12:00 Noon, New York City time, on the due date thereof to the Administrative
Agent, for the account of the U.S. Lenders, at the Administrative Agent's office
specified in subsection 13.2, in U.S. Dollars and in immediately available
funds. The Administrative Agent shall distribute such payments to the U.S.
Lenders entitled to receive the same promptly upon receipt in like funds as
received.
(iv) Each borrowing of Multicurrency Loans by the U.S.
Borrower or any Foreign Subsidiary Borrower shall be made, and any reduction of
the Multicurrency Commitments shall be allocated by the Administrative Agent,
pro rata according to the Multicurrency Commitment Percentages of the
Multicurrency Lenders. Except as provided in subsection 5.4(d), each payment
(including each prepayment) by the U.S. Borrower or a Foreign Subsidiary
Borrower on account of principal of and interest on Multicurrency Loans shall be
allocated by the Administrative Agent pro rata according to the respective
principal amounts of the Multicurrency Loans then due and owing by such Foreign
Subsidiary Borrower to each Multicurrency Lender. All payments (including
prepayments) to be made by a Borrower hereunder in respect of Multicurrency
Loans, whether on account of principal, interest, fees or otherwise, shall be
made without set-off or counterclaim and shall be made at or before the payment
time for the currency of such Multicurrency Loan set forth in the Administrative
Schedule, on the due date thereof to the Administrative Agent, for the account
of the Multicurrency Lenders, at the payment office for the currency of such
Multicurrency Loan set forth in the Administrative Schedule, in the currency of
such Multicurrency Loan and in immediately available funds. The Administrative
Agent shall distribute such payments to the Multicurrency Lenders entitled to
receive the same promptly upon receipt in like funds as received.
(v) If any payment hereunder (other than payments on the
Eurodollar Loans and the Multicurrency Loans) becomes due and payable on a day
other than a Business Day, the maturity of such payment shall be extended to the
next succeeding Business Day, and, with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during such
extension. If any payment on a Eurodollar Loan or a Multicurrency Loan becomes
due and payable on a day other than a Business Day, the maturity of such payment
shall be extended to the next succeeding Business Day (and, with respect to
payments of principal, interest thereon shall be payable at the then applicable
rate during such extension) unless the
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40
result of such extension would be to extend such payment into another calendar
month, in which event such payment shall be made on the immediately preceding
Business Day.
(b) A payment in euro shall be deemed to have been made by the
Administrative Agent on the date on which it is required to be made under this
Agreement if the Administrative Agent has, on or before that date, taken all
relevant steps to make that payment. With respect to the payment of any amount
denominated in euro, the Administrative Agent shall not be liable to any
Borrower or any of the Lenders in any way whatsoever for any delay, or the
consequences of any delay, in the crediting to any account of any amount
required by this Agreement to be paid by the Administrative Agent if the
Administrative Agent shall have taken all relevant steps to achieve, on the date
required by this Agreement, the payment of such amount in immediately available,
freely transferable, cleared funds in the euro unit to the account with the bank
in the principal financial center in the Participating Member State which the
relevant Borrower or, as the case may be, any Lender shall have specified for
such purpose. In this paragraph (b), "all relevant steps" means all such steps
as may be prescribed from time to time by the regulations or operating
procedures of such clearing or settlement system as the Administrative Agent may
from time to time determine for the purpose of clearing or settling payments of
euro.
(c) Unless the Administrative Agent shall have been notified
in writing by any Lender prior to a Borrowing Date that such Lender will not
make the amount that would constitute its share of such borrowing available to
the Administrative Agent, the Administrative Agent may assume that such Lender
is making such amount available to the Administrative Agent, and the
Administrative Agent may, in reliance upon such assumption, make available to
the applicable Borrower a corresponding amount. If such amount is not made
available to the Administrative Agent by the required time on the Borrowing Date
therefor, such Lender shall pay to the Administrative Agent, on demand, such
amount with interest thereon at a rate per annum equal to (i) the daily average
Federal Funds Effective Rate (in the case of a borrowing of Revolving Credit
Loans or Term Loans), and (ii) the Administrative Agent's reasonable estimate of
its average daily cost of funds (in the case of a borrowing of Multicurrency
Loans), in each case for the period until such Lender makes such amount
immediately available to such Administrative Agent. A certificate of such
Administrative Agent submitted to any Lender with respect to any amounts owing
under this subsection shall be conclusive in the absence of manifest error. If
such Lender's share of such borrowing is not made available to such
Administrative Agent by such Lender within three Business Days of such Borrowing
Date, the applicable Borrower shall repay such Lender's share of such borrowing
(together with interest thereon from the date such amount was made available to
such Borrower (i) at the rate per annum applicable to ABR Loans hereunder (in
the case of a borrowing of Revolving Credit Loans or Term Loans and (ii) the
Administrative Agent's reasonable estimate of its average daily cost of funds
plus the Applicable Margin applicable to Multicurrency Loans (in the case of a
borrowing of Multicurrency Loans)) to such Administrative Agent not later than
three Business Days after receipt of written notice from such Administrative
Agent specifying such Lender's share of such borrowing that was not made
available to such Administrative Agent. Nothing contained in this subsection
5.8(b) shall prejudice any claims otherwise available to any Borrower against
any Lender as a result of such Lender's failure to make its share of any
borrowing available to an Administrative Agent for the account of a Borrower.
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41
(d) Any amount payable by the Administrative Agent to the
Lenders under this Agreement in the currency of a Participating Member State
shall be paid in the euro unit.
(e) If, in relation to the currency of any Subsequent
Participant, the basis of accrual of interest or fees expressed in this
Agreement with respect to such currency shall be inconsistent with any
convention or practice in the London Interbank Market or, as the case may be,
the Paris Interbank Market for the basis of accrual of interest or fees in
respect of the euro, such convention or practice shall replace such expressed
basis effective as of and from the date on which such Subsequent Participant
becomes a Participating Member State; provided, that if any Multicurrency Loan
in the currency of such Subsequent Participant is outstanding immediately prior
to such date, such replacement shall take effect, with respect to such
Multicurrency Loan, at the end of the then current Interest Period.
(f) Without prejudice and in addition to any method of
conversion or rounding prescribed by the EMU legislation, each reference in this
Agreement to a minimum amount (or an integral multiple thereof) in a national
currency unit to be paid to or by the Administrative Agent shall be replaced by
a reference to such reasonably comparable and convenient amount (or an integral
multiple thereof) in the euro unit as the Administrative Agent may from time to
time specify.
5.9 Illegality. Notwithstanding any other provision herein, if
the adoption of or any change in any Requirement of Law or in the interpretation
or application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Loans or Multicurrency Loans as contemplated by this Agreement, (a)
the commitment of such Lender hereunder to make Eurodollar Loans or
Multicurrency Loans, continue Eurodollar Loans or Multicurrency Loans as such
and convert ABR Loans to Eurodollar Loans shall forthwith be cancelled until
such time as it shall no longer be unlawful for such Lender to make or maintain
the affected Loans, (b) such Lender's Loans then outstanding as Eurodollar
Loans, if any, shall be converted automatically to ABR Loans on the respective
last days of the then current Interest Periods with respect to such Eurodollar
Loans or within such earlier period as may be required by law and (c) such
Lender's Multicurrency Loans shall be prepaid on the last day of the then
current Interest Period with respect thereto. If any such conversion of a
Eurodollar Loan occurs on a day which is not the last day of the then current
Interest Period with respect thereto, the U.S. Borrower shall pay to such Lender
such amounts, if any, as may be required pursuant to subsection 5.11.
5.10 Requirements of Law. (a) In the event that any
Requirement of Law (or any change therein or in the interpretation or
application thereof) or compliance by any Lender with any request or directive
(whether or not having the force of law) from any central bank or other
Governmental Authority:
(i) does or shall subject any Lender to any tax of any
kind whatsoever with respect to this Agreement, any Note or any Loans
made by it, or change the basis of taxation of payments to such Lender
of principal, fees, interest or any other amount payable hereunder
(except for taxes covered by subsection 5.12 and changes in the rate of
tax on the overall net income of such Lender);
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(ii) does or shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement
against assets held by, or deposits or other liabilities in or for the
account of, advances or loans by, or other credit extended by, or any
other acquisition of funds by, any office of such Lender which are not
otherwise included in the determination of the Eurodollar Rate or
Eurocurrency Rate, including, without limitation, the imposition of any
reserves with respect to Eurocurrency Liabilities under Regulation D of
the Board; or
(iii) does or shall impose on such Lender any other
condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by any amount which such Lender deems to be material, of making, renewing or
maintaining advances or extensions of credit or to reduce any amount receivable
hereunder, in each case in respect of its Loans, then, in any such case, the
applicable Borrower shall promptly pay such Lender, upon receipt of its demand
setting forth in reasonable detail, any additional amounts necessary to
compensate such Lender for such additional cost or reduced amount receivable,
such additional amounts together with interest on each such amount from the date
two Business Days after the date demanded until payment in full thereof at the
ABR. A certificate as to any additional amounts payable pursuant to the
foregoing sentence submitted by such Lender, through the Administrative Agent,
to the applicable Borrower shall be conclusive in the absence of manifest error.
This covenant shall survive the termination of this Agreement and payment of all
amounts outstanding hereunder.
(b) In the event that any Lender shall have determined that
the adoption of any law, rule, regulation or guideline regarding capital
adequacy (or any change therein or in the interpretation or application thereof)
or compliance by any Lender or any corporation controlling such Lender with any
request or directive regarding capital adequacy (whether or not having the force
of law) from any central bank or Governmental Authority, including, without
limitation, the issuance of any final rule, regulation or guideline, does or
shall have the effect of reducing the rate of return on such Lender's or such
corporation's capital as a consequence of its obligations hereunder to a level
below that which such Lender or such corporation could have achieved but for
such adoption, change or compliance (taking into consideration such Lender's or
such corporation's policies with respect to capital adequacy) by an amount
deemed by such Lender to be material, then from time to time, after submission
by such Lender to the U.S. Borrower (with a copy to the Administrative Agent) of
a written request therefor, the U.S. Borrower shall promptly pay to such Lender
such additional amount or amounts as will compensate such Lender for such
reduction.
(c) If the obligation of any Lender to make Eurodollar Loans
or Multicurrency Loans has been suspended pursuant to subsection 5.7 or 5.9 for
more than three consecutive months or any Lender has demanded compensation under
subsection 5.10(a) or 5.10(b), the U.S. Borrower shall have the right to
substitute a financial institution or financial institutions (which may be one
or more of the Lenders) reasonably satisfactory to the Administrative Agent by
causing such financial institution or financial institutions to purchase the
rights (by paying to such Lender the principal amount of its outstanding Loans
together with accrued interest thereon and all other amounts accrued for its
account or owed to it hereunder and executing an
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43
Assignment and Acceptance) and to assume the obligations of such Lender under
the Loan Documents. Upon such purchase and assumption by such substituted
financial institution or financial institutions, the obligations of such Lender
hereunder shall be discharged; provided such Lender shall retain its rights
hereunder with respect to periods prior to such substitution including, without
limitation, its rights to compensation under this subsection 5.10.
5.11 Indemnity. Each Borrower agrees to indemnify each Lender
and to hold each Lender harmless from any loss or expense which such Lender may
sustain or incur as a consequence of (a) default by such Borrower in payment
when due of the principal amount of or interest on any Loans of such Lender, (b)
default by such Borrower in making a borrowing or conversion after the Borrower
has given a notice of borrowing or a notice of conversion in accordance with
this Agreement, (c) default by such Borrower in making any prepayment after such
Borrower has given a notice in accordance with this Agreement or (d) the making
of a prepayment of a Eurodollar Loan or Multicurrency Loan on a day which is not
the last day of an Interest Period with respect thereto, including, without
limitation, in each case, any such loss or expense arising from the reemployment
of funds obtained by it or from fees payable to terminate the deposits from
which such funds were obtained, including, without limitation, in each case, any
such loss or expense arising from the reemployment of funds obtained by it to
maintain its Eurodollar Loans or Multicurrency Loans hereunder or from fees
payable to terminate the deposits from which such funds were obtained. A
certificate as to any such loss or expense submitted by such Lender shall be
conclusive, absent manifest error. This covenant shall survive termination of
this Agreement and payment of all amounts outstanding hereunder.
5.12 Taxes. (a) All payments made by any Borrower under this
Agreement shall be made free and clear of, and without reduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority excluding, in the case of the Administrative Agent and each Lender,
income or franchise taxes imposed on the Administrative Agent or such Lender by
the jurisdiction under the laws of which the Administrative Agent or such Lender
is organized or any political subdivision or taxing authority thereof or therein
or by any jurisdiction in which such Lender's lending office is located or any
political subdivision or taxing authority thereof or therein or as a result of a
connection between such Lender and any jurisdiction other than a connection
resulting solely from entering into this Agreement (all such non-excluded taxes,
levies, imposts, deductions, charges or withholdings being thereinafter called
"Taxes"). Subject to the provisions of subsection 5.12(d), if any Taxes are
required to be withheld from any amounts payable by such Borrower to the
Administrative Agent or any Lender hereunder or under the Notes, the amounts so
payable to the Administrative Agent or such Lender shall be increased to the
extent necessary to yield to the Administrative Agent or such Lender (after
payment of all Taxes) interest or any such other amounts payable hereunder at
the rates or in the amounts specified in this Agreement and the Notes. Whenever
any Taxes are paid by any Borrower with respect to payments made in connection
with this Agreement, as promptly as possible thereafter, such Borrower shall
send to the applicable Administrative Agent for its own account or for the
account of such Lender, as the case may be, a certified copy of an original
official receipt received by such Borrower showing payment thereof. Subject to
the provisions of
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subsection 5.12(d), if any Borrower fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent the
required receipts or other required documentary evidence, such Borrower shall
indemnify the Administrative Agent and the Lenders for any incremental taxes,
interest or penalties that may become payable by the Administrative Agent or any
Lenders as a result of any such failure.
(b) Each Lender that is not incorporated or organized under
the laws of the United States of America or a state thereof agrees that, prior
to the first date any payment is due to be made to it hereunder or under any
Note, it will deliver to the U.S. Borrower and the Administrative Agent (i) two
valid, duly completed copies of United States Internal Revenue Service Form 1001
or 4224 or successor applicable form, as the case may be, certifying in each
case that such Lender is entitled to receive payments by the U.S. Borrower under
this Agreement and the Notes payable to it, without deduction or withholding of
any United States federal income taxes, and (ii) a valid, duly completed
Internal Revenue Service Form W-8 or W-9 or successor applicable form, as the
case may be, to establish an exemption from United States backup withholding
tax. Each Lender which delivers to the U.S. Borrower and the Administrative
Agent a Form 1001 or 4224 and Form W-8 or W-9 pursuant to the next preceding
sentence further undertakes to deliver to the U.S. Borrower and the
Administrative Agent two further copies of the said Form 1001 or 4224 and Form
W-8 or W-9, or successor applicable forms, or other manner or certification, as
the case may be, on or before the date that any such form expires or becomes
obsolete or otherwise is required to be resubmitted as a condition to obtaining
an exemption from withholding tax, or after the occurrence of any event
requiring a change in the most recent form previously delivered by it to the
U.S. Borrower, and such extensions or renewals thereof as may reasonably be
requested by the U.S. Borrower, certifying in the case of a Form 1001 or 4224 or
successor applicable form that such Lender is entitled to receive payments by
the U.S. Borrower under this Agreement without deduction or withholding of any
United States federal income taxes, unless any change in treaty, law or
regulation or official interpretation thereof has occurred prior to the date on
which any such delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Lender from duly completing and
delivering any such letter or form with respect to it and such Lender advises
the U.S. Borrower that it is not capable of receiving payments without any
deduction or withholding of United States federal income tax, and in the case of
a Form W-8 or W-9 or successor applicable form, establishing an exemption from
United States backup withholding tax (it being agreed that final and temporary
Treasury Regulations promulgated in T.O. 8734 shall not constitute a change in
law, regardless of their effective date).
(c) Each Multicurrency Lender shall, upon request by a Foreign
Subsidiary Borrower (or the U.S. Borrower on its behalf), within a reasonable
period of time after such request, deliver to such Foreign Subsidiary Borrower
or the applicable governmental or taxing authority, as the case may be, any form
or certificate required in order that any payment by such Foreign Subsidiary
Borrower under this Agreement or any Notes to such Lender may be made free and
clear of, and without deduction or withholding for or on account of any Taxes
(or to allow any such deduction or withholding to be at a reduced rate) imposed
on such payment under the laws of the jurisdiction under which such Foreign
Subsidiary Borrower is incorporated or organized, provided that such Lender is
legally entitled to complete, execute and deliver such
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form or certificate and in such Lender's reasonable judgment such completion,
execution or submission would not materially prejudice the legal position of
such Lender.
(d) Neither the U.S. Borrower nor any other Borrower shall be
required to pay any additional amounts to the Administrative Agent or any Lender
(or Transferee except to the extent such Transferee's transferor was entitled,
at the time of transfer, to receive additional amounts from the U.S. Borrower)
in respect of Taxes pursuant to subsection 5.12(a) if the obligation to pay such
additional amounts would not have arisen but for a failure by the Administrative
Agent or such Lender (or Transferee) to comply with the requirements of
subsection 5.12(b) or (c) (or in the case of a Transferee, the requirements of
subsection 13.6(h)).
(e) Each Lender agrees to use reasonable efforts (including
reasonable efforts to change its lending office) to avoid or to minimize any
amounts which might otherwise be payable pursuant to this subsection 5.12;
provided, however, that such efforts shall not impose on such Lender any
additional costs or legal or regulatory burdens deemed by such Lender in its
reasonable judgment to be material.
(f) The agreements in subsection 5.12(a) shall survive the
termination of this Agreement and the payment of the Notes and all other amounts
payable hereunder until the expiration of the applicable statute of limitations
for such taxes.
5.13 Assignment of Commitments Under Certain Circumstances.
(a) In the event that any Lender shall have delivered a notice or certificate
pursuant to subsection 5.10 or any Borrower has been required to pay any Taxes
in respect of any Lender pursuant to subsection 5.12, the U.S. Borrower shall
have the right, at its own expense, upon notice to such Lender and the
Administrative Agent, to require such Lender to transfer and assign without
recourse (in accordance with and subject to the restrictions contained in
subsection 13.6) all its interests, rights and obligations under this Agreement
to another bank or financial institution identified by the U.S. Borrower and
reasonably acceptable to the Administrative Agent (subject to the restrictions
contained in subsection 13.6) which shall assume such obligations; provided that
(i) no such assignment shall conflict with any law, rule or regulation or order
of any Governmental Authority and (ii) the Borrower or the assignee, as the case
may be, shall pay to the transferor Lender in immediately available funds on the
date of such assignment the principal of and interest accrued to the date of
payment on the Loans made by it hereunder and all other amounts accrued for its
account or owed to it hereunder, including, without limitation, amounts payable
pursuant to subsection 5.10 and any amounts that would be payable under
subsection 5.11 if such amount were a prepayment made in the amount and on the
date of such assignment.
(b) In the event that any Multicurrency Lender (including a
Transferee) does not, for any reason, deliver all forms and certificates
required to permit all payments by all Foreign Subsidiary Borrowers hereunder to
be made free and clear of, and without deduction or withholding for or on
account of, any Taxes, the U.S. Borrower may, so long as no Event of Default has
occurred and is continuing, require such Multicurrency Lender, upon five
Business Days' prior written notice from the U.S. Borrower, to assign the entire
then outstanding principal amount of the Multicurrency Loans owing to such
Multicurrency Lender and the entire
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Multicurrency Commitment of such Multicurrency Lender to one or more Lenders
selected by the U.S. Borrower which, after giving effect to such assignment,
will have a Revolving Credit Commitment in excess of its Multicurrency
Commitment. In the case of any such assignment to another Lender, such assignee
Lender shall assign to such assignor Multicurrency Lender a principal amount of
outstanding Revolving Credit Loans owing to such assignee Lender equal to the
lesser of (i) the U.S. Dollar Equivalent of the amount of Multicurrency Loans
assigned to such assignee Lender and (ii) the aggregate outstanding principal
amount of Revolving Credit Loans owing to such assignee Lender. Any such
assignments pursuant to the two precedent sentences shall be effected in
accordance with subsection 13.6(c) and, as a condition to such assignment,
simultaneously with such assignment, the U.S. Borrower shall pay or cause to be
paid all amounts due to the assignor Multicurrency Lender and the assignee
Lender hereunder on the effective date of such assignments.
5.14 Use of Proceeds. The proceeds of the Loans shall be used
for general corporate purposes of the U.S. Borrower and its Subsidiaries,
including the UT Automotive Acquisition and other acquisitions permitted
hereunder.
SECTION 6. REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Agreement and to make
the Loans, each Borrower hereby represents and warrants to the Administrative
Agent and to each Lender that:
6.1 Financial Statements. The audited consolidated balance
sheets of the U.S. Borrower as of December 31, 1998 and the related statements
of income and cash flow for the fiscal year ending on such date, heretofore
furnished to the Administrative Agent and the Lenders and certified by a
Responsible Officer of the U.S. Borrower are complete and correct in all
material respects and fairly present the financial condition of the U.S.
Borrower on such date in conformity with GAAP applied on a consistent basis
(subject to normal year-end adjustments). All liabilities, direct and
contingent, of the U.S. Borrower on such date required to be disclosed pursuant
to GAAP are disclosed in such financial statements.
6.2 No Change. There has been no material adverse change in
the business, operations, assets or financial or other condition of the U.S.
Borrower and its Subsidiaries taken as a whole from that reflected on the
financial statements dated December 31, 1998 referred to in subsection 6.1.
6.3 Corporate Existence; Compliance with Law. The U.S.
Borrower and each of its Material Subsidiaries (a) is duly organized, validly
existing and in good standing (or the functional equivalent thereof in the case
of Foreign Subsidiaries) under the laws of the jurisdiction of its organization,
(b) has the corporate power and authority, and the legal right, to own and
operate its property, to lease the property it operates as lessee and to conduct
the business in which it is currently engaged, (c) is duly qualified as a
foreign corporation and in good standing (or the functional equivalent thereof
in the case of Foreign Subsidiaries) under the laws of each jurisdiction where
its ownership, lease or operation of property or the conduct of its
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47
business requires such qualification except where the failure to be so qualified
and in good standing would not, individually or in the aggregate, have a
material adverse effect on the business, operations, property or financial or
other condition of the U.S. Borrower and its Subsidiaries taken as a whole and
would not adversely affect the ability of any Loan Party to perform its
respective obligations under the Loan Documents to which it is a party and (d)
is in compliance with all Requirements of Law, except to the extent that the
failure to comply therewith would not reasonably be expected to have,
individually or in the aggregate, a material adverse effect on the business,
operations, assets or financial or other condition of the U.S. Borrower and its
Subsidiaries taken as a whole and would not reasonably be expected to adversely
affect the ability of any Loan Party to perform its obligations under the Loan
Documents to which it is a party.
6.4 Corporate Power; Authorization; Enforceable Obligations.
(a) Each Loan Party has the corporate power and authority, and the legal right,
to execute, deliver and perform each of the Loan Documents to which it is a
party or to which this Agreement requires it to become a party. The U.S.
Borrower has the corporate power and authority to borrow hereunder and has taken
all necessary corporate action to authorize the borrowings on the terms and
conditions of this Agreement and the Revolving Credit Notes and the Term Notes.
Each Loan Party has taken all necessary corporate action to authorize the
execution, delivery and performance of each of the Loan Documents to which it is
a party or to which this Agreement requires it to become a party.
(b) No consent or authorization of, filing with or other act
by or in respect of any Person (including, without limitation, any Governmental
Authority) is required in connection with the borrowings hereunder or with the
execution, delivery, performance, validity or enforceability of the Loan
Documents or the consummation of any of the transactions contemplated hereby or
thereby, except for consents, authorizations, or filings which have been
obtained and are in full force and effect.
(c) This Agreement and each other Loan Document to which any
Loan Party is a party has been, and each other Loan Document to be executed by a
Loan Party hereunder will be, duly executed and delivered on behalf of such Loan
Party. This Agreement and each other Loan Document to which any Loan Party is a
party constitutes, and each other Loan Document to be executed by a Loan Party
hereunder will constitute, a legal, valid and binding obligation of such Loan
Party enforceable against such Loan Party in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
6.5 No Legal Bar; Senior Debt. The execution, delivery and
performance by each Loan Party of the Loan Documents to which it is a party, the
borrowings hereunder and the use of the proceeds thereof, (a) will not violate
any Requirement of Law or any Contractual Obligation of the U.S. Borrower or any
other Loan Party (including, without limitation, the 9 1/2% Subordinated Note
Indenture and the Subordinated Note Indenture) except for violations of
Requirements of Law and Contractual Obligations (other than such Indentures)
which,
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48
individually or in the aggregate will not have a material adverse effect on the
business, operations, property or financial or other condition of the U.S.
Borrower and its Subsidiaries taken as a whole and will not adversely affect the
ability of any Loan Party to perform its obligations under any of the Loan
Documents to which it is a party and (b) will not result in, or require, the
creation or imposition of any Lien (other than the Liens created by the Security
Documents) on any of its or their respective properties or revenues pursuant to
any Requirement of Law or Contractual Obligation. The Obligations of the U.S.
Borrower constitute "Senior Indebtedness" benefitting from the subordination
provisions contained in the Subordinated Debt, except to the extent that such
Obligations are owed to an Affiliate of the U.S. Borrower.
6.6 No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the U.S. Borrower, overtly threatened by or against the U.S.
Borrower or any of its Subsidiaries or against any of its or their respective
properties or revenues (a) with respect to any Loan Document or any of the
transactions contemplated hereby or thereby, (b) which would reasonably be
expected to have a material adverse effect on the business, operations, property
or financial or other condition of the U.S. Borrower and its Subsidiaries taken
as a whole or (c) which would be reasonably expected to adversely affect the
ability of any Loan Party to perform its obligations under any of the Loan
Documents to which it is a party.
6.7 No Default. Neither the U.S. Borrower nor any of its
Subsidiaries is in default under or with respect to any Contractual Obligation
or any order, award or decree of any Governmental Authority or arbitrator
binding upon it or any of its properties in any respect which would have a
material adverse effect on the business, operations, property or financial or
other condition of the U.S. Borrower and its Subsidiaries taken as a whole or
which would adversely affect the ability of any Loan Party to perform its
obligations under any of the Loan Documents to which it is a party. No Default
or Event of Default has occurred and is continuing.
6.8 Ownership of Property; Liens. The U.S. Borrower and each
of its Material Subsidiaries has good record and marketable title in fee simple
to, or a valid and subsisting leasehold interest in all its material real
property, and good title to all its other property, and none of such property is
subject to any Lien, except as permitted in subsection 9.3 and except, in each
case, where any failure to have good title or a valid and subsisting leasehold
interest or the existence of any Lien would not reasonably be expected to have a
material adverse effect on the business, operations, property or financial or
other condition of the U.S. Borrower and its Subsidiaries taken as a whole.
6.9 Taxes. (a) The U.S. Borrower and each of its Material
Subsidiaries has filed or caused to be filed all tax returns which to the
knowledge of the U.S. Borrower are required to be filed and has paid all taxes
shown to be due and payable on said returns or on any assessments made against
it or any of its property and all other taxes, fees or other charges imposed on
it or any of its property by any Governmental Authority (other than those which,
in the aggregate, are not substantial in amount or those the amount or validity
of which are currently being contested in good faith by appropriate proceedings
and with respect to which reserves in conformity with GAAP have been provided on
the books of the U.S. Borrower or its Subsidiaries, as the case may
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49
be and except insofar as the failure to make such filings or payments would not
reasonably be expected to have a material adverse effect on the business,
operations, property or financial condition of the U.S. Borrower and its
Subsidiaries taken as a whole); and (b) no tax lien (other than a Lien permitted
in subsection 9.3) has been filed and, to the knowledge of the U.S. Borrower, no
claim is being asserted with respect to any such tax, fee or other charge.
6.10 Securities Law, etc. Compliance. All transactions
contemplated by this Agreement and the other Loan Documents comply in all
material respects with all applicable laws and any rules and regulations
thereunder, including takeover, disclosure and other federal, state and foreign
securities law and Regulations T, U and X of the Federal Reserve Board.
6.11 ERISA. As to each Plan other than a Multiemployer Plan,
neither a Reportable Event nor an "accumulated funding deficiency" (within the
meaning of Section 412 of the Code or Section 302 of ERISA) has occurred during
the five-year period prior to the date on which this representation is made or
deemed made with respect to any Plan, and each Plan has complied in all material
respects with the applicable provisions of ERISA and the Code. No termination of
a Single Employer Plan has occurred and no Lien under the Code or ERISA in favor
of PBGC or a Single Employer Plan has arisen during the five-year period prior
to the date as of which this representation is deemed made. The present value of
all accrued benefits under each Single Employer Plan maintained by the U.S.
Borrower or any Commonly Controlled Entity (based on those assumptions used to
fund the Plans) did not, as of the last annual valuation date prior to the date
on which this representation is made or deemed made, exceed the value of the
assets of such Plan allocable to such accrued benefits, either individually or
in the aggregate with all other Single Employer Plans under which such accrued
benefits exceed such assets, by more than $125,000,000. Neither the U.S.
Borrower nor any Commonly Controlled Entity has had a complete or partial
withdrawal from any Multiemployer Plan during the five year period prior to the
date as of which this representation is made or deemed made, and neither the
U.S. Borrower nor any Commonly Controlled Entity would become subject to
liability under ERISA in the aggregate which exceeds $145,000,000 if the U.S.
Borrower or any such Commonly Controlled Entity were to withdraw completely from
all Multiemployer Plans as of the valuation date most closely preceding the date
hereof, and no such withdrawal is likely to occur. No such Multiemployer Plan is
in Reorganization or Insolvent. The present value (determined using actuarial
and other assumptions which are reasonable in respect of the benefits provided
and the employees participating) of the liability of the U.S. Borrower and each
Commonly Controlled Entity for post retirement benefits to be provided to their
current and former employees under Plans which are welfare benefit plans (as
defined in Section 3(1) of ERISA) does not, in the aggregate, exceed the assets
under all such Plans allocable to such benefits by an amount in excess of
$145,000,000.
6.12 Investment Company Act; Other Regulations. The U.S.
Borrower is not an "investment company" within the meaning of the Investment
Company Act of 1940, as amended. The U.S. Borrower is not subject to regulation
under any federal or state statute or regulation which limits its ability to
incur Indebtedness.
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50
6.13 Subsidiaries, etc. The Subsidiaries of the U.S. Borrower
as of the Closing Date are those listed on Schedule VI. The U.S. Borrower owns,
as of the Closing Date, the percentage of the issued and outstanding capital
stock or other evidences of the ownership of each Subsidiary listed on Schedule
VI as set forth on such Schedule. Except as disclosed on Schedule VI, no such
Subsidiary has issued any securities convertible into shares of its capital
stock (or other evidence of ownership) or any options, warrants or other rights,
to acquire such shares or securities convertible into such shares (or other
evidence of ownership), and the outstanding stock and securities (or other
evidence of ownership) of such Subsidiaries are owned by the U.S. Borrower and
its Subsidiaries free and clear of all Liens, warrants, options or rights of
others of any kind whatsoever except for Liens permitted by subsection 9.3.
6.14 Accuracy and Completeness of Information. All
information, reports and other papers and data with respect to the U.S. Borrower
or this Agreement or any transaction contemplated hereby furnished to the
Lenders by the U.S. Borrower or on behalf of the U.S. Borrower, were, at the
time the same were so furnished, complete and correct in all material respects,
or have been subsequently supplemented by other information, reports or other
papers or data, to the extent necessary to give the Lenders a true and accurate
knowledge of the subject matter in all material respects. All projections with
respect to the U.S. Borrower and its Subsidiaries, so furnished by the U.S.
Borrower, as supplemented, were prepared and presented in good faith by the U.S.
Borrower, it being recognized by the Lenders that such projections as to future
events are not to be viewed as facts and that actual results during the period
or periods covered by any such projections may differ materially from the
projected results. No document furnished or statement made in writing to the
Lenders by the U.S. Borrower in connection with the negotiation, preparation or
execution of this Agreement contains any untrue statement of a material fact,
or, to the knowledge of the U.S. Borrower after due inquiry, omits to state any
such material fact necessary in order to make the statements contained therein
not misleading, in either case which has not been corrected, supplemented or
remedied by subsequent documents furnished or statements made in writing to the
Lenders.
6.15 Security Documents. Each Pledge Agreement is effective to
create in favor of the Administrative Agent, for the ratable benefit of the
Lenders, a legal, valid and enforceable security interest in the pledged assets
described therein. Each Pledge Agreement constitutes a fully perfected first
Lien on, and security interest in, all right, title and interest of the Loan
Party thereto in the pledged assets described therein.
6.16 Patents, Copyrights, Permits and Trademarks. Each of the
U.S. Borrower and its Subsidiaries owns, or has a valid license or sub-license
in, all domestic and foreign letters patent, patents, patent applications,
patent and know-how licenses, inventions, technology, permits, trademark
registrations and applications, trademarks, trade names, trade secrets, service
marks, copyrights, product designs, applications, formulae, processes and the
industrial property rights ("Proprietary Rights") used in the operation of its
businesses in the manner in which they are currently being conducted and which
are material to the business, operations, assets or financial or other condition
of the U.S. Borrower and its Subsidiaries taken as a whole. Neither the U.S.
Borrower nor any of its Subsidiaries is aware of any existing or threatened
infringement or misappropriation of any Proprietary Rights of others by the U.S.
Borrower or any of its
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Subsidiaries or of any Proprietary Rights of the U.S. Borrower or any of its
Subsidiaries by others which is material to the business operations, assets or
financial or other condition of the U.S. Borrower and its Subsidiaries taken as
a whole.
6.17 Environmental Matters. Except as disclosed in Schedule
VII, and other than such exceptions to any of the following that would not
reasonably be expected to give rise to a material adverse effect on the
business, operations, property or financial condition of the U.S.
Borrower and its Subsidiaries taken as a whole:
(a) To the best knowledge of the U.S. Borrower and its
Subsidiaries, after reasonable investigation, the Properties do not
contain, and have not previously contained, any Hazardous Materials in
amounts or concentrations or under such conditions which (A) constitute
a violation of, or (B) could reasonably give rise to any liability
under any applicable Environmental Laws.
(b) To the best knowledge of the U.S. Borrower and its
Subsidiaries, after reasonable investigation, the Properties and all
operations at the Properties are in compliance, and have been in
compliance for the time period that each of the Properties has been
owned by the U.S. Borrower or its Subsidiaries, with all Environmental
Laws, and there is no contamination at, on or under the Properties, or
violation of any Environmental Laws with respect to the Properties
which could interfere with the continued operation of the Properties or
impair the fair saleable value thereof. Neither the U.S. Borrower nor
any Subsidiary has knowingly assumed any liability, by contract or
otherwise, of any person under any Environmental Laws.
(c) Neither the U.S. Borrower nor any of its
Subsidiaries has received any Environmental Complaint with regard to
any of the Properties or the operations of the U.S. Borrower or any of
its Subsidiaries, nor does the U.S. Borrower or any of its Subsidiaries
have knowledge or reason to believe that any such notice will be
received or is being threatened.
(d) To the best knowledge of the U.S. Borrower and its
Subsidiaries, based on the U.S. Borrower's and the Subsidiaries'
customary practice of contracting only with licensed haulers for
removal of Hazardous Materials from the Properties only to facilities
authorized to receive such Hazardous Materials, Hazardous Materials
have not been transported or disposed of from the Properties in
violation of, or in a manner or to a location which could reasonably
give rise to liability under, Environmental Laws, nor have any
Hazardous Materials been generated, treated, stored or disposed of at,
on or under any of the Properties in violation of, or in a manner that
could reasonably give rise to liability under any Environmental Laws.
(e) No judicial proceedings or governmental or
administrative action is pending, or, to the knowledge of the U.S.
Borrower and its Subsidiaries, threatened, under any Environmental Law
to which the U.S. Borrower and its Subsidiaries are or will be named as
a party with respect to the Properties, nor are there any consent
decrees
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or other decrees, consent orders, administrative orders or other
orders, or other administrative or judicial requirements outstanding
under any Environmental Law with respect to the Properties.
(f) To the best knowledge of the U.S. Borrower and its
Subsidiaries after reasonable investigation, there has been no release
or threat of release of Hazardous Materials at or from the Properties,
or arising from or related to the operations of the U.S. Borrower or
its Subsidiaries in connection with the Properties in violation of or
in amounts or in a manner that could reasonably give rise to liability
under any Environmental Laws.
6.18 Year 2000 Matters. Any reprogramming required to permit
the proper functioning, in and following the year 2000, of (i) the U.S.
Borrower's computer systems and (ii) equipment containing embedded microchips
(including systems and equipment supplied by others or with which the U.S.
Borrower's systems interface) and the testing of all such systems and equipment,
as so reprogrammed, are expected to be completed within such period of time as
is required to avoid a material adverse effect on the business, operations,
property or financial condition of the U.S. Borrower and its Subsidiaries taken
as a whole as a result of the failure to complete such reprogramming. The cost
to the U.S. Borrower of such reprogramming and testing and of the reasonably
foreseeable consequences of year 2000 to the U.S. Borrower (including, without
limitation, reprogramming errors and the failure of others' systems or
equipment) would not reasonably be expected to have a material adverse effect on
the business, operations, property or financial condition of the U.S. Borrower
and its Subsidiaries taken as a whole.
SECTION 7. CONDITIONS PRECEDENT
7.1 Conditions to Closing Date. The Closing Date shall occur
on the date of satisfaction of the following conditions precedent:
(a) Agreement. The Administrative Agent shall have received
counterparts of this Agreement, duly executed by a Responsible Officer
of each Borrower, the Administrative Agent and each Lender party
hereto.
(b) Subsidiary Guarantee. The Administrative Agent shall have
received the Subsidiary Guarantee duly executed by each guarantor party
thereto.
(c) Domestic Pledge Agreement. The Administrative Agent shall
have received the Domestic Pledge Agreement listed on Schedule IV, duly
executed by each pledgor party thereto.
(d) Pledged Stock; Stock Powers. The Administrative Agent
shall have received the certificates representing the shares pledged
pursuant to the Domestic Pledge
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Agreement listed on Schedule IV, together with an undated stock power
for each such certificate executed in blank by a duly authorized
officer of the pledgor thereof.
(e) Perfection Actions. The Administrative Agent shall have
received evidence in form and substance satisfactory to it that all
filings, recordings, registrations and other
actions necessary or, in the opinion of the Administrative Agent,
desirable to perfect the Liens created by the Domestic Pledge Agreement
shall have been completed.
(f) UT Automotive Acquisition. The UT Automotive Acquisition
shall have been consummated in accordance with the UT Automotive
Acquisition Agreement, and the Administrative Agent shall have received
a certificate of a Responsible Officer to such effect.
(g) UT Automotive Financial Statements. The Lenders shall have
received the audited financial statements of Lear Corporation
Automotive Holdings (formerly known as UT Automotive, Inc.) for the
fiscal year ended December 31, 1998.
(h) Consents. The Administrative Agent shall have received,
and made available to each Lender, true and correct copies (in each
case certified as to authenticity on such date by a duly authorized
officer of the U.S. Borrower) of all documents and instruments,
including all consents, authorizations and filings, required under any
Requirement of Law or by Contractual Obligation of the U.S. Borrower or
any of its Subsidiaries, in connection with the execution, delivery,
performance, validity and enforceability of this Agreement and the
other Loan Documents, and such consents, authorizations and filings
shall be satisfactory in form and substance to the Lenders and be in
full force and effect.
(i) Incumbency Certificates. The Administrative Agent shall
have received, with a copy for each Lender, a certificate of the
Secretary or Assistant Secretary of each Domestic Loan Party, dated the
Closing Date, as to the incumbency and signature of their respective
officers executing each Loan Document to be entered into on the Closing
Date to which it is a party, together with satisfactory evidence of the
incumbency of such Secretary or Assistant Secretary.
(j) Corporate Proceedings. The Administrative Agent shall have
received, with a copy for each Lender, a copy of the resolutions in
form and substance satisfactory to the Administrative Agent, of the
Board of Directors (or the executive committee thereof) of each
Domestic Loan Party authorizing (i) the execution, delivery and
performance of each Loan Document to be entered into on the Closing
Date to which it is a party, and (ii) the granting by it of the pledge
and security interests, if any, granted by it pursuant to such Loan
Document, certified by their respective Secretary or an Assistant
Secretary as of the Closing Date, which certificate shall state that
the resolutions thereby certified have not been amended, modified,
revoked or rescinded as of the date of such certificate.
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(k) Fees. The Administrative Agent shall have received all
fees required to be paid to the Administrative Agent and/or the Lenders
pursuant to Section 5.5 and/or any other written agreement on or prior
to the Closing Date.
(l) Legal Opinion of Counsel to U.S. Borrower. The
Administrative Agent shall have received, with a copy for each Lender,
an opinion, dated the Closing Date, of Winston & Strawn, special
counsel to the U.S. Borrower and its Subsidiaries and in
substantially the form of Exhibit L and covering such other matters
incident to the transactions contemplated hereby as the Lenders may
reasonably require.
(m) Subordinated Debt Indentures. The Administrative Agent
shall have received, with a copy for each Lender, a certified true copy
of the outstanding Subordinated Debt Indentures.
(n) Closing Date under Other Credit Agreements. The Closing
Date under (and as defined in) the Other Credit Agreements shall have
occurred or shall occur simultaneously with the Closing Date hereunder.
7.2 Conditions to Each Loan. The agreement of each Lender to
make any Loan requested to be made by it on any date (including, without
limitation, the Closing Date), is subject to the satisfaction of the following
conditions precedent as of the date such Loan is requested to be made:
(a) Representations and Warranties. The representations and
warranties made by each of the Loan Parties in or pursuant to the Loan
Documents shall be true and correct in all material respects on and as
of such date as if made on and as of such date (except that any
representation or warranty which by its terms is made as of a specified
date shall be true and correct in all material respects as of such
specified date).
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
Loan requested to be made on such date.
(c) Foreign Subsidiary Opinion. If such requested Loan is the
initial Multicurrency Loan to be made to any Foreign Subsidiary
Borrower, the Administrative Agent shall have received (with a copy for
each Lender) a Foreign Subsidiary Opinion in respect of such Foreign
Subsidiary Borrower.
Each Loan made to a Borrower hereunder shall constitute a representation and
warranty by such Borrower as of the date of such Loan that the conditions
contained in this subsection 7.2 have been satisfied.
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SECTION 8. AFFIRMATIVE COVENANTS
The U.S. Borrower hereby agrees that, so long as the
Commitments (or any of them) remain in effect, any Loan remains outstanding and
unpaid or any other amount is owing to any Lender or the Administrative Agent
hereunder or under any other Loan Document, the U.S. Borrower shall and shall
cause each of its Subsidiaries to:
8.1 Financial Statements. Furnish to each Lender (or to the
Administrative Agent on behalf of such Lender):
(a) as soon as available, but in any event within 95 days
after the end of each fiscal year of the U.S. Borrower, a copy of the
audited consolidated balance sheet of the U.S. Borrower and its
consolidated Subsidiaries as at the end of such year and the related
consolidated statements of income and cash flows for such year, setting
forth in each case in comparative form the figures for the previous
year, reported on without a "going concern" or like qualification or
exception, or qualification arising out of the scope of the audit, by
independent certified public accountants of nationally recognized
standing;
(b) as soon as available, but in any event not later than 50
days after the end of each of the first three quarterly periods of each
fiscal year of the U.S. Borrower, the unaudited consolidated balance
sheet of the U.S. Borrower and its consolidated Subsidiaries as at the
end of each such quarter and the related unaudited consolidated
statements of income and cash flows of the U.S. Borrower and its
consolidated Subsidiaries for such quarter and the portion of the
fiscal year through such date, setting forth in each case in
comparative form the figures for the corresponding quarterly period of
the previous year, certified by a Responsible Officer (subject to
normal year-end audit adjustments).
The U.S. Borrower covenants and agrees that all such financial statements shall
be complete and correct in all material respects and shall be prepared in
reasonable detail and in accordance with GAAP (subject, in the case of interim
statements, to normal year-end adjustments and to the fact that such financial
statements may be abbreviated and may omit footnotes or contain incomplete
footnotes) applied consistently throughout the periods reflected therein (except
as approved by such accountants or officer, as the case may be, and disclosed
therein).
8.2 Certificates; Other Information. Furnish to each Lender
(or to the Administrative Agent on behalf of such Lender):
(a) concurrently with the delivery of the financial statements
referred to in subsection 8.1(a), a certificate of the independent
certified public accountants reporting on such financial statements
stating that in making the examination necessary therefor no knowledge
was obtained of any Default or Event of Default, except as specified in
such certificate;
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(b) concurrently with the delivery of the financial statements
referred to in subsection 8.1(a) and (b), a certificate of a
Responsible Officer of the U.S. Borrower (i) stating that such
Responsible Officer has obtained no knowledge of any Default or Event
of Default except as specified in such certificate, (ii) stating, to
the best of such Responsible Officer's knowledge, that all such
financial statements are complete and correct in all material respects
(subject, in the case of interim statements, to normal year-end audit
adjustments) and have been prepared in reasonable detail and in
accordance with GAAP applied consistently throughout the periods
reflected therein (except as disclosed therein) and (iii) showing in
detail the calculations supporting such statements in respect of
subsection 9.1;
(c) promptly upon receipt thereof, copies of all final reports
submitted to the U.S. Borrower by independent certified public
accountants in connection with each annual, interim or special audit of
the books of the U.S. Borrower made by such accountants, including,
without limitation, any management letter commenting on the U.S.
Borrower's internal controls submitted by such accountants to
management in connection with their annual audit;
(d) promptly after the same are sent, copies of all financial
statements and reports which the U.S. Borrower sends to its public
equity holders, and within five days after the same are filed, copies
of all financial statements and reports which the U.S. Borrower may
make to, or file with, the Securities and Exchange Commission or any
successor or analogous Governmental Authority; and
(e) promptly, subject to reasonable confidentiality
requirements and confidentiality agreements to which the Borrower or
any of its Subsidiaries is a party, such additional financial and other
information as any Lender may from time to time reasonably request.
8.3 Performance of Obligations. Perform in all material
respects all of its obligations under the terms of each material mortgage,
indenture, security agreement and other debt instrument by which it is bound or
to which it is a party and pay, discharge or otherwise satisfy at or before
maturity or before they become delinquent, as the case may be, all its material
obligations of whatever nature, except when the amount or validity thereof is
currently being contested in good faith by appropriate proceedings and reserves
in conformity with GAAP with respect thereto have been provided for on the books
of the U.S. Borrower or its Subsidiaries, as the case may be.
8.4 Conduct of Business, Maintenance of Existence and
Compliance with Obligations and Laws. Continue to engage in business of the same
general type as now conducted by it and preserve, renew and keep in full force
and effect its corporate existence and take all reasonable action to maintain
all rights, privileges and franchises necessary or desirable in the normal
conduct of its business except as otherwise permitted pursuant to subsection 9.5
and except, with respect to the corporate existence of Subsidiaries that are not
Loan Parties and any rights, privileges and franchises, to the extent that the
Board of Directors of the U.S.
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57
Borrower shall determine in good faith that the preservation or maintenance
thereof is no longer desirable in the conduct of the business of the U.S.
Borrower and its Subsidiaries; comply with all Contractual Obligations and
Requirements of Law except to the extent that failure to comply therewith would
not reasonably be expected to have, individually or in the aggregate, a material
adverse effect on the business, operations, property or financial or other
condition of the U.S. Borrower and its Subsidiaries taken as a whole and would
not reasonably be expected to adversely affect the ability of the U.S. Borrower
or any of its Subsidiaries to perform their respective obligations under any of
the Loan Documents to which they are a party.
8.5 Maintenance of Property; Insurance. Keep all property
useful and necessary in its business in good working order and condition where
the failure to maintain such property in good working order and condition would
reasonably be expected to have a material adverse effect on the business,
operations, property or financial condition of the U.S. Borrower and its
Subsidiaries taken as a whole; maintain with financially sound and reputable
insurance companies such insurance coverage as is reasonable for the business
activities of the U.S. Borrower and its Subsidiaries; and furnish to the
Administrative Agent, upon written request, full information as to the insurance
carried.
8.6 Inspection of Property; Books and Records; Discussions.
Keep proper books of records and account in which full, true and correct entries
in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities; and permit
representatives of any Lender (subject to reasonable confidentiality
requirements) to visit and inspect any of its properties and examine and make
abstracts from any of its books and records upon reasonable notice and at any
reasonable time and as often as may reasonably be desired, and to discuss the
business, operations, properties and financial and other condition of the U.S.
Borrower and its Subsidiaries with officers and employees of the U.S. Borrower
and its Subsidiaries and, provided the U.S. Borrower is given an opportunity to
participate, with its independent certified public accountants.
8.7 Notices. Promptly give notice to the Administrative Agent
and each Lender:
(a) of the occurrence of any Default or Event of Default;
(b) of any (i) default or event of default under any
Contractual Obligation of the U.S. Borrower or any of its Subsidiaries
or (ii) litigation, investigation or proceeding which may exist at any
time between the U.S. Borrower or any of its Subsidiaries and any
Governmental Authority, which in the case of either clause (i) or (ii)
above, would reasonably be expected to have a material adverse effect
on the business, operations, property or financial condition of the
U.S. Borrower and its Subsidiaries taken as a whole or would reasonably
be expected to adversely affect the ability of the U.S. Borrower or any
of its Subsidiaries to perform their respective obligations under any
of the Loan Documents to which they are a party;
(c) of any litigation or proceeding affecting the U.S.
Borrower or any of its Subsidiaries in which the then reasonably
anticipated exposure of the U.S. Borrower and
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its Subsidiaries is $20,000,000 or more and not covered by insurance, or in
which injunctive or similar relief is sought which is then reasonably
anticipated to have an adverse economic effect on the U.S. Borrower and its
Subsidiaries of $20,000,000 or more;
(d) of the following events, as soon as possible and in any
event within 30 days after the U.S. Borrower knows or has reason to
know thereof: (i) the occurrence or expected occurrence of any
Reportable Event with respect to any Single Employer Plan, a failure to
make any required contribution to any Single Employer Plan, unless such
failure is cured within such 30 days, any Lien under the Code or ERISA
in favor of the PBGC or a Single Employer Plan, or any withdrawal from,
or the termination, Reorganization or Insolvency of any Multiemployer
Plan or (ii) the institution of proceedings or the taking of any other
action by the PBGC or the U.S. Borrower or any Commonly Controlled
Entity or any Multiemployer Plan with respect to the withdrawal from,
or the termination, Reorganization or Insolvency of, any Single
Employer or Multiemployer Plan, where, in connection with any of the
events described in clauses (i) or (ii), the resulting liability would
reasonably be expected to cause a material adverse change in the
business, assets, operations or financial condition of the U.S.
Borrower and its Subsidiaries taken as a whole;
(e) of any Environmental Complaint which would reasonably be
expected to have a material adverse effect on the business, operations,
property or financial condition of the U.S. Borrower and its
Subsidiaries, taken as a whole, and any notice from any Person of (i)
the occurrence of any release, spill or discharge of any Hazardous
Material that is reportable under any Environmental Law, (ii) the
commencement of any clean up pursuant to or in accordance with any
Environmental Law of any Hazardous Material at, on, under or within the
Property or any part thereof or (iii) any other condition,
circumstance, occurrence or event, any of which would reasonably be
expected to have a material adverse effect on the business, operations,
property or financial condition of the U.S. Borrower and its
Subsidiaries, taken as a whole, under any Environmental Law;
(f) of (i) the incurrence of any Lien (other than Liens
permitted pursuant to subsection 9.3) on, or claim asserted against any
of the collateral security in the Security Documents or (ii) the
occurrence of any other event which could reasonably be expected to
have a material adverse effect on the aggregate value of the collateral
under any Security Document; and
(g) of a material adverse change in the business, operations,
property or financial condition of the U.S. Borrower and its
Subsidiaries taken as a whole.
Each notice pursuant to this subsection 8.7 shall be accompanied by a statement
of a Responsible Officer of the U.S. Borrower setting forth details of the
occurrence referred to therein and stating what action the U.S. Borrower
proposes to take with respect thereto.
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8.8 Maintenance of Liens of the Security Documents. Promptly,
upon the reasonable request of any Lender, at the U.S. Borrower's expense,
execute, acknowledge and deliver, or cause the execution, acknowledgment and
delivery of, and thereafter register, file or record, or cause to be registered,
filed or recorded, in an appropriate governmental office, any document or
instrument supplemental to or confirmatory of the Security Documents or
otherwise deemed by the Administrative Agent necessary or desirable for the
continued validity, perfection and priority of the Liens on the collateral
covered thereby.
8.9 Environmental Matters. (a) Comply in all material respects
with, and use all reasonable efforts to ensure compliance in all material
respects by all tenants and subtenants, if any, with, all Environmental Laws and
all requirements existing thereunder and obtain and comply in all material
respects with and maintain, and use all reasonable efforts to ensure that all
tenants and subtenants obtain, comply in all material respects with and
maintain, any and all licenses, approvals, notifications, registrations or
permits required by Environmental Laws.
(b) Promptly comply in all material respects with all lawful
orders and directives of all Governmental Authorities regarding Environmental
Laws, other than such orders and directives as to which an appeal has been taken
in good faith and the pendency of any and all such appeals does not materially
and adversely affect the U.S. Borrower or any Subsidiary or the operations of
the U.S. Borrower or any Subsidiary.
(c) Defend, indemnify and hold harmless the Administrative
Agent and the Lenders and their Affiliates, and their respective employees,
agents, officers and directors, from and against any claims, demands, penalties,
fines, liabilities, settlements, damages, costs and expenses of whatever kind or
nature known or unknown, contingent or otherwise, arising out of, or in any way
relating to the violation of, noncompliance with or liability under any
Environmental Laws applicable to the U.S. Borrower or its Subsidiaries or the
Properties, or any orders, requirements or demands of Governmental Authorities
related thereto, including, without limitation, attorney's and consultant's
fees, investigation and laboratory fees, response costs, court costs and
litigation expenses, except to the extent that any of the foregoing arise solely
out of the gross negligence or willful misconduct of the party seeking
indemnification therefor. This indemnity shall continue in full force and effect
regardless of the termination of this Agreement.
8.10 Security Documents; Guarantee Supplement. Subject to
subsection 13.19, (a) within 60 days after the Closing Date, at its own expense,
(i) cause 65% of the capital stock of Lear Germany to be pledged to the
Administrative Agent, in its capacity as Agent pursuant to the Intercreditor
Agreement, pursuant to a pledge agreement in form and substance satisfactory to
the Administrative Agent, and (ii) cause the Administrative Agent, in its
capacity as Agent pursuant to the Intercreditor Agreement, to receive, with a
counterpart for each Lender, a legal opinion of German counsel acceptable to the
Administrative Agent covering such matters in respect of such pledge agreement
as the Administrative Agent shall reasonably request.
(b) As soon as possible and in no event later than 45 days
after the delivery of any financial statements under subsection 8.1(a) or (b),
for any fiscal period ending on or after December 31, 1999, cause (i) all of the
capital stock owned directly or indirectly by the U.S.
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Borrower of each of the U.S. Borrower's direct or indirect Domestic Subsidiaries
which on the date of such financial statements constituted at least 10% of
Consolidated Assets or for the twelve month period ended on the date of such
financial statements represented at least 10% of Consolidated Revenues to be
pledged to the Administrative Agent, in its capacity as Agent pursuant to the
Intercreditor Agreement, pursuant to a pledge agreement in form and substance
satisfactory to the Administrative Agent, (ii) 65% of the capital stock (or such
lesser amount as may be owned by the U.S. Borrower) of each of the U.S.
Borrower's direct Foreign Subsidiaries which on the date of such financial
statements constituted at least 10% of Consolidated Assets or for the twelve
month period ended on the date of such financial statements represented at least
10% of Consolidated Revenues to be pledged to the Administrative Agent, in its
capacity as Agent pursuant to the Intercreditor Agreement, pursuant to a pledge
agreement in form and substance satisfactory to the Administrative Agent, and
(iii) the Administrative Agent, in its capacity as Agent pursuant to the
Intercreditor Agreement, to receive, with a counterpart for each Lender, legal
opinions of counsel to the U.S. Borrower acceptable to the Administrative Agent
covering such matters in respect of such pledges as the Administrative Agent
shall reasonably request.
(c) As soon as possible and in no event later than 45 days
after the delivery of any financial statements under subsection 8.1(a) or (b)
for any fiscal period ending on or after December 31, 1999, cause (i) each of
the U.S. Borrower's direct and indirect Domestic Subsidiaries which on the date
of such financial statements constituted 10% of Consolidated Assets or for the
twelve month period ended on the date of such financial statements represented
at least 10% of Consolidated Revenues to execute and deliver a Guarantee
Supplement to the Administrative Agent, in its capacity as Agent pursuant to the
Intercreditor Agreement, and (ii) the Administrative Agent, in its capacity as
Agent pursuant to the Intercreditor Agreement, to receive, with a counterpart
for each Lender, opinions of counsel to the U.S. Borrower, in form and substance
satisfactory to the Administrative Agent, covering such matters in respect of
the Subsidiary Guarantee as the Administrative Agent shall reasonably request;
provided, that, notwithstanding the foregoing, a Domestic Subsidiary shall not
be required to execute and deliver a Guarantee Supplement or otherwise become a
party to the Subsidiary Guarantee if (x) it is a holding company whose only
material asset consists of capital stock of one or more Foreign Subsidiaries and
(y) the capital stock of such Domestic Subsidiary is pledged to the
Administrative Agent, in its capacity as Agent pursuant to the Intercreditor
Agreement.
(d) (i) Cause to be pledged to the Administrative Agent, in
its capacity as Agent pursuant to the Intercreditor Agreement, on the Closing
Date 100% of the Capital Stock of each Domestic Subsidiary which would have
constituted more than 10% of Consolidated Assets on December 31, 1998 or
represented at least 10% of Consolidated Revenues for the twelve-month period
ended on December 31, 1998, and (ii) cause each Domestic Subsidiary described in
the foregoing clause (i) to be Subsidiary Guarantors on the Closing Date;
provided, that (A) Lear Corporation (Germany) Ltd. shall not be required to be a
Subsidiary Guarantor and the U.S. Borrower shall not be required to pledge its
Capital Stock and (B) Lear Corporation EEDS and Interiors shall not be required
to be a Subsidiary Guarantor and the U.S. Borrower shall not be required to
cause its Capital Stock to be pledged unless Lear Corporation EEDS and Interiors
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meets the tests set forth in paragraph (c) above in respect of any fiscal period
ending on or after December 31, 1999.
(e) For purposes of calculating Consolidated Assets and
Consolidated Revenues pursuant to the foregoing paragraphs (b), (c) and (d) for
any date on or prior to March 31, 2000, or for twelve-month periods ended on or
prior to March 31, 2000, the assets and revenues of Lear Corporation Automotive
Holdings shall be included on a pro forma basis as if the UT Automotive
Acquisition had occurred on the first day of the relevant period.
SECTION 9. NEGATIVE COVENANTS
The U.S. Borrower hereby agrees that, so long as the
Commitments (or any of them) remain in effect, any Loan remains outstanding and
unpaid or any other amount is owing to any Lender or either Administrative Agent
hereunder or under any other Loan Document, the U.S. Borrower shall not, and
shall not permit any of its Subsidiaries to, directly or indirectly:
9.1 Financial Covenants.
(a) Interest Coverage. Permit the ratio of (i) Consolidated
Operating Profit for any four consecutive fiscal quarters ending during any
period set forth below to (ii) Consolidated Interest Expense for such four
consecutive fiscal quarters, to be less than the ratio set forth opposite such
period below:
Period Ratio
------ -----
Closing - December 31, 1999 2.75x
January 1, 2000 - December 31, 2000 3.00x
January 1, 2001 - December 31, 2001 3.25x
Thereafter 3.50x
;provided, that in calculating the foregoing ratio for the periods of four
consecutive fiscal quarters ending on or about 6/30/99, 9/30/99, 12/31/99 and
3/31/00, Consolidated Interest Expense shall be determined giving pro forma
effect to the aggregate principal amount of Indebtedness incurred in connection
with the UT Automotive Acquisition (less the aggregate net cash proceeds
received by the U.S. Borrower in respect of the sale of any part of the business
acquired in connection with the UT Automotive Acquisition) as if such
Indebtedness had been incurred on the first day of the relevant period, and in
making such calculation, the interest rate assumed to be applicable to such
Indebtedness shall be (i) with respect to $1,400,000,000 of such Indebtedness,
the weighted average interest rate applicable during the last fiscal quarter in
such period to loans outstanding under the Term Loan Agreement and/or the debt
securities that refinance the loans under the Term Loan Agreement and (ii) with
respect to the remainder of such Indebtedness, the weighted average interest
rate applicable during the last fiscal quarter in such period to Loans in
Dollars under this Agreement.
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(b) Leverage Ratio. Permit the ratio of (i) Consolidated
Indebtedness at the end of any fiscal quarter ending during any period set forth
below to (ii) Consolidated Operating Profit for the four consecutive fiscal
quarters then ended to be greater than the ratio set forth opposite such period
below:
Period Ratio
------ -----
Closing - June 30, 2000 4.50x
July 1, 2000 through December 31, 2001 4.00x
Thereafter 3.75x
9.2 Limitation on Indebtedness. Permit any Subsidiary to
create, incur, assume or suffer to exist any Indebtedness, except:
(a) (i) Indebtedness in respect of the Loans and other
obligations arising under this Agreement and (ii) Indebtedness under
the Other Credit Agreements and, without duplication, Indebtedness of
any Subsidiary backed by letters of credit issued under either of the
Other Credit Agreements;
(b) Indebtedness under the Subsidiary Guarantee and any Bond
Guarantee;
(c) Indebtedness in respect of Interest Rate Agreement
Obligations and Currency Agreement Obligations entered into to protect
against fluctuations in interest rates or exchange rates and not for
speculative reasons;
(d) Indebtedness incurred by a Special Purpose Subsidiary in
connection with a Receivable Financing Transaction;
(e) intercompany Indebtedness permitted by subsection 9.9; and
(f) other Indebtedness, subject to the provisions of
subsection 9.8.
9.3 Limitation on Liens. Create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired, except (subject, in the case of Liens described in
paragraphs (o) through (t) below, to the provisions of subsection 9.8):
(a) Liens for taxes not yet due or which are being contested
in good faith by appropriate proceedings; provided that adequate
reserves with respect thereto are maintained on the books of the U.S.
Borrower or its Subsidiaries, as the case may be, in conformity with
GAAP (or, in the case of Foreign Subsidiaries, generally accepted
accounting principles in effect from time to time in their respective
jurisdictions of organization);
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(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's, suppliers or other like Liens arising in the ordinary
course of business relating to obligations not overdue for a period of
more than 60 days or which are bonded or being contested in good faith
by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation, including any Lien securing letters of credit issued in
the ordinary course of business in connection therewith and deposits
securing liabilities to insurance carriers under insurance and
self-insurance programs;
(d) Liens (other than any Lien imposed by ERISA) incurred on
deposits to secure the performance of bids, trade contracts (other than
for borrowed money), leases, statutory obligations, surety and appeal
bonds, performance bonds, utility payments and other obligations of a
like nature incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred which, in the aggregate, do not materially
interfere with the ordinary conduct of the business of the U.S.
Borrower and its Subsidiaries taken as a whole;
(f) Liens created pursuant to the Security Documents;
(g) attachment, judgment or other similar Liens arising in
connection with court or arbitration proceedings fully covered by
insurance or involving individually or in the aggregate, no more than
$40,000,000 at any one time, provided that the same are discharged, or
that execution or enforcement thereof is stayed pending appeal, within
60 days or, in the case of any stay of execution or enforcement pending
appeal, within such lesser time during which such appeal may be taken;
(h) Liens securing obligations (other than obligations
representing Indebtedness for borrowed money) under operating,
reciprocal easement or similar agreements entered into in the ordinary
course of business;
(i) statutory Liens and rights of offset arising in the
ordinary course of business of the U.S. Borrower and its Subsidiaries;
(j) Liens in connection with leases or subleases granted to
others and the interest or title of a lessor or sublessor (other than
the U.S. Borrower or any Subsidiary of the U.S. Borrower) under any
lease;
(k) Liens arising in connection with Industrial Development
Bonds or other industrial development, pollution control or other
tax-favored or government-sponsored financing transactions, provided
that such liens do not at any time encumber any property, other than
the property financed by such transaction and other property, assets or
revenues related to the property so financed on which Liens are
customarily granted in
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connection with such transactions (in each case, together with
improvements and attachments thereto);
(l) Liens on receivables subject to a Receivable Financing
Transaction;
(m) Liens securing Indebtedness permitted by subsection 9.2(c)
and any other Indebtedness in respect of Interest Rate Agreement
Obligations or Currency Agreement Obligations entered into to protect
against fluctuations in interest rates or exchange rates and not for
speculative reasons, provided that such Liens run in favor of a Lender
hereunder or a lender under one of the Other Credit Agreements;
(n) Extensions, renewals and replacements of any Lien
described in subsections 9.3(a) through (m) above;
(o) Liens (including, without limitation, Liens incurred in
connection with Financing Leases, operating leases and sale-leaseback
transactions) securing Indebtedness of the U.S. Borrower and its
Subsidiaries permitted by subsection 9.2 incurred to finance the
acquisition of property; provided that (i) such Liens shall be created
substantially simultaneously with the purchase of such property, (ii)
such Liens do not at any time encumber any property other than the
property financed by such Indebtedness, (iii) the amount of
Indebtedness secured thereby is not increased and (iv) the principal
amount of Indebtedness secured by any such Lien shall at no time exceed
100% of the purchase price of such property;
(p) Liens securing the Indebtedness of Foreign Subsidiaries
permitted by subsection 9.2, provided that such Liens permitted by this
paragraph do not at any time encumber any property located in the
United States;
(q) Liens securing reimbursement obligations with respect to
documentary letters of credit permitted hereunder which encumber
documents and other property relating to such letters of credit;
(r) Liens securing Acquired Indebtedness permitted by
subsection 9.2, provided, that (i) such Liens existed at the time such
corporation became a Subsidiary or such assets were acquired and were
not created in anticipation thereof, (ii) any such Lien does not by its
terms cover any property or assets after the time such corporation
became or becomes a Subsidiary or such assets were acquired which were
not covered immediately prior thereto (and improvements and attachments
thereto) and (iii) any such Lien does not by its terms secure any
Indebtedness other than Indebtedness existing immediately prior to the
time such corporation became or becomes a Subsidiary or such assets
were acquired;
(s) except as otherwise expressly provided for in subsections
9.3(a) through (n), Liens securing Indebtedness of Domestic
Subsidiaries permitted under subsection 9.2;
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(t) other Liens; and
(u) extensions, renewals and replacements of any Lien
described in subsections 9.3(o) through (t) above.
9.4 Limitation on Guarantee Obligations. Create, incur, assume
or suffer to exist any Guarantee Obligation except:
(a) Guarantee Obligations of the U.S. Borrower under this
Agreement and the Amended and Restated Credit Agreement and of the
Domestic Subsidiaries under the Subsidiary Guarantee, and any Bond
Guarantee;
(b) Guarantee Obligations of any Subsidiary Guarantor in
respect of obligations of the Borrower or any other Subsidiary
Guarantor;
(c) Guarantee Obligations of any Subsidiary that is not a
Subsidiary Guarantor in respect of obligations of any other Subsidiary
that is not a Subsidiary Guarantor;
(d) Guarantee Obligations in respect of operating leases;
(e) Guarantee Obligations of the U.S. Borrower in respect of
obligations of any Subsidiary that are permitted to be incurred under
this Agreement; and
(f) other Guarantee Obligations, subject to the provisions of
subsection 9.8;
9.5 Limitations on Fundamental Changes. Unless expressly
permitted under this Agreement, enter into any merger, consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), or convey, sell, lease, assign, transfer or
otherwise dispose of, all or substantially all of its property, business or
assets, or make any material change in its present method of conducting
business, except:
(a) any Subsidiary of the U.S. Borrower may be merged or
consolidated with or into the U.S. Borrower (provided that the U.S.
Borrower shall be the continuing or surviving corporation) or with or
into any one or more other Subsidiaries of the U.S.
Borrower;
(b) any Subsidiary may sell, lease, transfer or otherwise
dispose of any or all of its assets (upon voluntary liquidation or
otherwise) to the U.S. Borrower or any other Subsidiary of the U.S.
Borrower;
(c) the U.S. Borrower may merge or consolidate with any
Person, provided that (A) the U.S. Borrower is the surviving
corporation of such merger or consolidation, (B) after giving effect
thereto, no Default or Event of Default is in existence and (C) if such
merger or consolidation had occurred on the first day of the period of
four full fiscal quarters most recently ended prior to the date of such
event, the U.S. Borrower would
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have been in compliance with subsection 9.1 during such period of four
full fiscal quarters; and
(d) any Subsidiary may be merged, consolidated or amalgamated
with or into any Person, or may sell, lease, transfer or otherwise
dispose of its assets (upon voluntary liquidation, dissolution or
otherwise) to any Person or may liquidate, wind up or dissolve itself
if (A) after giving effect thereto, no Default or Event of Default is
in existence and (B) if such merger, consolidation, amalgamation, sale,
lease, transfer or other disposition had occurred on the first day of
the period of four fiscal quarters most recently ended prior to the
date of such event, the U.S. Borrower would have been in compliance
with subsection 9.1 during such period of four full fiscal quarters.
9.6 Limitation on Sale of Assets. Convey, sell, lease, assign,
transfer or otherwise dispose of, any of its property, business or assets
(including, without limitation, receivables and leasehold interests) whether now
owned or hereafter acquired, or, in the case of any Subsidiary, issue or sell
any shares of such Subsidiary's capital stock to any Person other than the U.S.
Borrower or any Wholly Owned Subsidiary (or to qualify directors if required by
applicable law or similar de minimis issuances of capital stock to comply with
Requirements of Law), except:
(a) the sale or other disposition of obsolete or worn out
property or other property not necessary for operations disposed of in
the ordinary course of business; provided that (i) the Net Proceeds of
each such transaction are applied to obtain a replacement item or items
of property within 120 days of the disposition thereof or (ii) the fair
market value of any property not replaced pursuant to clause (i) above
shall not exceed $20,000,000 in the aggregate in any one fiscal year of
the U.S. Borrower;
(b) the sale of inventory or Cash Equivalents in the ordinary
course of business;
(c) the sale of any property in connection with any sale and
leaseback transaction;
(d) the sale by any Foreign Subsidiary of its accounts
receivable; provided that the terms of each such sale are satisfactory
in form and substance to the Administrative Agent;
(e) the sale by any Domestic Subsidiary of its accounts
receivable; provided that the terms of each such sale are satisfactory
in form and substance to the Administrative Agent;
(f) any sale or other disposition permitted under subsections
9.5 or 9.9;
(g) any operating lease entered into in the ordinary course of
business;
(h) any assignments or licenses of intellectual property in
the ordinary course of business;
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(i) any sale, contribution or transfer to or by a Special
Purpose Subsidiary in connection with a Receivable Financing
Transaction; and
(j) any sale or other disposition of assets if (A) after
giving effect thereto and the application of the proceeds therefrom, no
Default or Event of Default is in existence and (B) if such sale or
other disposition had occurred on the first day of the period of four
full final quarters most recently ended prior to the date of such sale
or other disposition, the U.S. Borrower would have been in compliance
with subsection 9.1 during such period of four full fiscal quarters.
9.7 Limitation on Dividends. Declare or pay any dividend on,
or make any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, defeasance, retirement or other
acquisition of, any shares of any class of capital stock of the U.S. Borrower or
any warrants or options to purchase any such stock, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either directly
or indirectly, whether in cash or property or in obligations of the U.S.
Borrower or any Subsidiary, except for (a) (i) payment by the U.S. Borrower of
amounts then owing to management personnel of the U.S. Borrower pursuant to the
terms of their respective employment contracts or under any employee benefit
plan, (ii) mandatory purchases by the U.S. Borrower of its common stock from
management personnel pursuant to the terms of their respective employment
agreements or any employee benefit plan, (iii) additional repurchases by the
U.S. Borrower of its common stock from management personnel, and other officers
or employees of the U.S. Borrower or any Subsidiary in an amount not to exceed
$35,000,000 in the aggregate and (iv) the purchase, redemption or retirement of
any shares of any capital stock of the U.S. Borrower or options to purchase
capital stock of the U.S. Borrower in connection with the exercise of
outstanding stock options, (b) if no Default or Event of Default has occurred
and is continuing (or would occur and be continuing after giving effect thereto)
when any such dividend is declared by the Board of Directors of the U.S.
Borrower or such payment is made on the account of the purchase of capital stock
of the U.S. Borrower, cash dividends on the U.S. Borrower's capital stock or
such payments made on the account of the purchase of capital stock of the U.S.
Borrower not to exceed, in the aggregate, in any fiscal quarter (the "Payment
Quarter") an amount equal to the greater of (i) $25,000,000 and (ii) (A) 50%
(100% if the U.S. Borrower shall have attained Investment Grade Status) of
Consolidated Net Income of the U.S. Borrower and its consolidated Subsidiaries
for the period of four consecutive fiscal quarters ended immediately prior to
the Payment Quarter (such period of four quarters being the "Calculation Period"
in respect of such Payment Quarter), less (B) the cash amount of all (I)
dividends paid and redemptions made by the U.S. Borrower during such Calculation
Period in respect of capital stock and (II) payments made on the account of the
purchase of capital stock of the U.S. Borrower during such Calculation Period,
but only to the extent permitted by the terms of the outstanding Subordinated
Debt, and (c) dividends or distributions in the form of additional shares of
such capital stock or in options, warrants or other rights to purchase capital
stock.
9.8 Limitation on Subsidiary and Secured Indebtedness. Create,
incur, assume or suffer to exist Subsidiary and Secured Indebtedness in an
aggregate principal amount at any time outstanding exceeding 10% of Consolidated
Assets at such time; or create, incur, assume or
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suffer to exist any Indebtedness that constitutes Subsidiary and Secured
Indebtedness and that is secured by any Lien on any property, assets or
receivables of the U.S. Borrower or any of its Subsidiaries (other than Liens
permitted by paragraphs (a) through (n) of subsection 9.3) in an aggregate
principal amount at any time exceeding 5% of Consolidated Assets at such time.
9.9 Limitation on Investments, Loans and Advances. Make or
suffer to exist any advance, loan, extension of credit or capital contribution
to, or purchase any stock, bonds, notes, debentures or other securities of or
any assets constituting a business unit of, or make any other investment in, any
Person, or acquire or invest in any interest in any Person, except:
(a) extensions of trade credit in the ordinary course of
business;
(b) investments in Cash Equivalents;
(c) investments by Foreign Subsidiaries in high quality
investments of a type similar to Cash Equivalents made outside of the
United States of America;
(d) capital contributions and equity investments made prior to
the date hereof in any Subsidiary or Special Entity and any
recapitalization thereof not increasing the amounts thereof;
(e) (i) loans, advances, and extensions of credit by any
Subsidiary to the U.S. Borrower and (ii) loans, advances, extensions of
credit, capital contributions and other investments by the U.S.
Borrower or any Subsidiary to or in any Subsidiary;
(f) the purchase by the U.S. Borrower or any Subsidiary of
participating interests in loans to Foreign Subsidiaries; provided that
the amount of each such participating interest does not exceed the
amount which the U.S. Borrower or such Subsidiary would otherwise be
permitted to lend or contribute to such Foreign Subsidiaries pursuant
to this subsection 9.9;
(g) the U.S. Borrower and its Subsidiaries may acquire or
invest in any Special Entities or the assets constituting a business
unit of any Person that would be a Special Entity, provided that the
aggregate purchase price of such acquisitions after the date hereof
does not exceed $400,000,000 (less, in the case of Special Entities
that become Subsidiaries of the U.S. Borrower, the aggregate amount of
Indebtedness of such Special Entities at the time such Special Entities
are acquired) per fiscal year; and provided, further, that up to
$100,000,000 of such permitted amount which is not expended in any
fiscal year may be carried over for such acquisitions in any subsequent
fiscal year; and provided, still further, that no more than
$150,000,000 per fiscal year of any such permitted amount may be
expended to acquire stock or other evidence of beneficial ownership of
Special Entities that do not become Subsidiaries of the U.S. Borrower;
(h) advances to employees in the ordinary course of business
for travel, relocation and related expenses;
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(i) investments received in connection with the bankruptcy or
reorganization of suppliers, customers and other Persons having
obligations in favor of the U.S. Borrower or any Subsidiary in
settlement of delinquent obligations of, and other disputes with,
customers, suppliers and such other Persons arising in the ordinary
course of business;
(j) advances, loans, extensions of credit or other investments
held by a Person at the time it becomes a Subsidiary of the U.S.
Borrower in connection with an acquisition permitted hereunder;
provided, that such advances, loans, extensions of credit or other
investments have not been made in anticipation of such acquisition;
(k) other investments, advances, loans, extensions of credit
and capital contributions by the U.S. Borrower and its Subsidiaries not
exceeding $125,000,000 in the aggregate at any one time outstanding;
(l) the UT Automotive Acquisition; and
(m) investments in or acquisitions of companies or business
units, in each case, engaged primarily in the manufacturing of
automotive parts business and businesses related thereto so long as (i)
no Default or Event of Default shall have occurred and be continuing
before and after giving effect to such transaction, (ii) the U.S.
Borrower would be in pro forma compliance with subsection 9.1 after
giving effect to such transaction, (iii) after giving pro forma effect
to such transaction as if it had occurred on the first day of the
period of four consecutive fiscal quarters most recently ended prior to
the date of such transaction, the ratio of (a) Consolidated
Indebtedness on the date of, and after giving effect to, such
transaction to (b) Consolidated Operating Profit for such period of
four consecutive fiscal quarters would be less than 4.00 and (iv) such
transaction is not the result of a hostile bid made by the U.S.
Borrower or its Subsidiaries.
9.10 Limitation on Optional Payments and Modification of Debt
Instruments; Certain Derivative Transactions. (a) Prepay, purchase, redeem,
retire, defease or otherwise acquire, or make any payment on account of any
principal of, interest on, or premium payable in connection with the prepayment,
redemption or retirement of any outstanding Subordinated Debt, except that the
U.S. Borrower may prepay, purchase or redeem Subordinated Debt with the proceeds
of the issuance of other subordinated Indebtedness of the U.S. Borrower or
capital stock of the U.S. Borrower; provided that, in the case of the issuance
of subordinated Indebtedness, either (i) the principal terms of such other
subordinated Indebtedness are no more restrictive, taken as a whole, to the U.S.
Borrower and its Subsidiaries than the principal terms of the Subordinated Debt
being repaid, purchased or redeemed or (ii) the terms and conditions of the
other subordinated Indebtedness are reasonably satisfactory to the
Administrative Agent; provided, further, that, notwithstanding any provision
contained in this subsection 14.10, if no Default or Event of Default has
occurred and is continuing or would occur and be continuing as a result of the
following, the Subordinated Debt may be prepaid at any time without restriction;
(b) enter into any derivative transaction or similar transaction obligating the
U.S. Borrower or any of its Subsidiaries to make any payment to any other Person
as a result of any change in value or
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market price of Subordinated Debt or Capital Stock of the U.S. Borrower; or (c)
without the consent of the Administrative Agent, amend, modify or change, or
consent or agree to any amendment, modification or change to any of the terms of
any Subordinated Debt (except that without the consent of the Administrative
Agent or any Lender, the terms of the Subordinated Debt may be amended, modified
or changed if such amendment, modification or change would extend the maturity
or reduce the amount of any payment of principal thereof, would reduce the rate
or extend the date for payment of interest thereon, would eliminate covenants
(other than covenants with respect to subordination to Indebtedness under this
Agreement and, if applicable, the Subsidiary Guarantee) or defaults in such
Subordinated Debt or would make such covenants or defaults less restrictive or
make any other change that would not require the consent of the holders of such
Subordinated Debt).
9.11 Transactions with Affiliates. Enter into any transaction,
including, without limitation, any purchase, sale, lease or exchange of property
or the rendering of any service, with any Affiliate unless such transactions are
otherwise permitted under this Agreement, or such transactions are in the
ordinary course of the U.S. Borrower's or such Subsidiary's business and are
upon fair and reasonable terms no less favorable to the U.S. Borrower or such
Subsidiary, as the case may be, than it would obtain in a comparable arm's
length transaction with a Person not an Affiliate; provided, however, that the
U.S. Borrower may engage, The Cypress Group, LLC or any Affiliate of The Cypress
Group, LLC as financial advisor, underwriter, broker, dealer-manager or finder
in connection with any transaction at the then customary market rates for
similar services.
9.12 Corporate Documents. Amend its Certificate of
Incorporation or By-Laws, each as in effect on the Closing Date, if such
amendment would reasonably be expected to impair the ability of the Loan Parties
to perform their respective obligations under the Loan Documents to which they
are a party.
9.13 Fiscal Year. Permit the fiscal year of the U.S. Borrower
to end on a day other than December 31.
9.14 Limitation on Restrictions Affecting Subsidiaries. Enter
into any agreement with any Person other than the Lenders pursuant hereto which
prohibits or limits the ability of any Subsidiary to (a) pay dividends or make
other distributions or pay any Indebtedness owed to the U.S. Borrower or any
Subsidiary, (b) make loans or advances to the U.S. Borrower or any Subsidiary or
(c) transfer any of its properties or assets to the U.S. Borrower or any
Subsidiary, except (i) prohibitions or restrictions under applicable law, (ii)
agreements and instruments governing or evidencing secured Indebtedness
otherwise permitted to be incurred under this Agreement that limits the right of
the borrower to (A) dispose of the assets securing such Indebtedness or (B) in
the case of any Foreign Subsidiary, to make dividends or distributions, (iii)
prohibitions or restrictions under agreements relating to Acquired Indebtedness
and any refinancings thereof, (iv) prohibitions or restrictions with respect to
the distribution or dispositions of assets or property in joint venture and
similar agreements entered into in the ordinary course of business, (v)
customary non-assignment provisions in leases and other agreements entered into
in the ordinary course of business, (vi) customary net worth provisions
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contained in leases and other agreements entered into by a Subsidiary in the
ordinary course of business, (vii) customary restrictions with respect to a
Subsidiary pursuant to an agreement that has been entered into for the sale or
disposition of the assets or stock of such Subsidiary, (viii)(x) any such
restrictions existing by reasons of Contractual Obligations listed on Schedule
VIII or (y) Contractual Obligations in effect on the Closing Date affecting
Subsidiaries acquired in the UT Automotive Acquisition, (ix) any restrictions on
a Special Purpose Subsidiary, (x) restrictions on cash or other deposits or net
worth provisions under customer and supply agreements entered into in the
ordinary course of business, and (xi) any restrictions contained in any
instrument or agreement that refinances any Indebtedness or other obligations
which contains similar restrictions.
9.15 Special Purpose Subsidiary. Permit (a) any Special
Purpose Subsidiary to engage in any business other than Receivable Financing
Transactions and activities directly related thereto or (b) at any time the U.S.
Borrower or any of its Subsidiaries (other than a Special Purpose Subsidiary) or
any of their respective assets to incur any liability, direct or indirect,
contingent or otherwise, in respect of any obligation of a Special Purpose
Subsidiary whether arising under or in connection with any Receivable Financing
Transaction or otherwise.
9.16 Interest Rate Agreements. Enter into, or become a party
to, any Interest Rate Agreement that is speculative in nature.
SECTION 10. GUARANTEE
10.1 Guarantee. (a) The U.S. Borrower hereby unconditionally
and irrevocably guarantees to the Administrative Agent, for the ratable benefit
of the Administrative Agent and the Lenders and their respective successors,
indorsees, transferees and assigns, the prompt and complete payment and
performance by each of the other Borrowers when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations.
(b) The U.S. Borrower further agrees to pay any and all
expenses (including, without limitation, all reasonable fees and disbursements
of counsel, provided that the U.S. Borrower shall only be required to pay the
fees and disbursements of (i) one counsel for the Administrative Agent, (ii) one
counsel for the Lenders and (iii) one counsel for the Administrative Agent and
the Multicurrency Lenders in the jurisdiction of each Foreign Subsidiary
Borrower) which may be paid or incurred by the Administrative Agent, or any
Lender in enforcing, or obtaining advice of counsel in respect of, any rights
with respect to, or collecting, any or all of the Obligations and/or enforcing
any rights with respect to, or collecting against, the U.S. Borrower under this
Section. This Section shall remain in full force and effect until the
Obligations are paid in full and the Commitments are terminated, notwithstanding
that from time to time prior thereto any Borrower may be free from any
Obligations.
(c) No payment or payments made by any Borrower or any other
Person or received or collected by the Administrative Agent or any Lender from
any Borrower or any other Person by virtue of any action or proceeding or any
set-off or appropriation or application, at any time or from time to time, in
reduction of or in payment of the Obligations shall be deemed to
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modify, reduce, release or otherwise affect the liability of the U.S. Borrower
hereunder which shall, notwithstanding any such payment or payments, remain
liable hereunder for the Obligations until the Obligations are paid in full and
the Commitments are terminated.
(d) The U.S. Borrower agrees that whenever, at any time, or
from time to time, it shall make any payment to the Administrative Agent or any
Lender on account of its liability hereunder, it will notify the Administrative
Agent and such Lender in writing that such payment is made under this Section
for such purpose.
10.2 No Subrogation. Notwithstanding any payment or payments
made by the U.S. Borrower hereunder, or any set-off or application of funds of
the U.S. Borrower by the Administrative Agent or any Lender, the U.S. Borrower
shall not be entitled to be subrogated to any of the rights of the
Administrative Agent or any Lender against the other Borrowers or against any
collateral security or guarantee or right of offset held by the Administrative
Agent or any Lender for the payment of the Obligations, nor shall the U.S.
Borrower seek or be entitled to seek any contribution or reimbursement from the
other Borrowers in respect of payments made by the U.S. Borrower hereunder,
until all amounts owing to the Administrative Agent and the Lenders by the other
Borrowers on account of the Obligations are paid in full and the Commitments are
terminated. If any amount shall be paid to the U.S. Borrower on account of such
subrogation rights at any time when all of the Obligations shall not have been
paid in full, such amount shall be held by the U.S. Borrower in trust for the
Administrative Agent and the Lenders, segregated from other funds of the U.S.
Borrower, and shall, forthwith upon receipt by the U.S. Borrower, be turned over
to the Administrative Agent in the exact form received by the U.S. Borrower
(duly indorsed by the U.S. Borrower to the Administrative Agent, if required),
to be applied against the Obligations, whether matured or unmatured, in such
order as the Administrative Agent may determine.
10.3 Amendments, etc. with respect to the Obligations; Waiver
of Rights. The U.S. Borrower shall remain obligated hereunder notwithstanding
that, without any reservation of rights against the U.S. Borrower, and without
notice to or further assent by the U.S. Borrower, any demand for payment of any
of the Obligations made by the Administrative Agent or any Lender may be
rescinded by such Administrative Agent or such Lender, and any of the
Obligations continued, and the Obligations, or the liability of any other party
upon or for any part thereof, or any collateral security or guarantee therefor
or right of offset with respect thereto, may, from time to time, in whole or in
part, be renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Administrative Agent or any Lender, and any Loan
Documents and any other documents executed and delivered in connection therewith
may be amended, modified, supplemented or terminated, in whole or in part, in
accordance with the provisions thereof as the Administrative Agent or the
Lenders (or the Majority Lenders, as the case may be) may deem advisable from
time to time, and any collateral security, guarantee or right of offset at any
time held by the Administrative Agent or any Lender for the payment of the
Obligations may be sold, exchanged, waived, surrendered or released. None of the
Administrative Agent or any Lender shall have any obligation to protect, secure,
perfect or insure any Lien at any time held by it as security for the
Obligations or for this Agreement or any property subject thereto. When making
any demand hereunder against the
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U.S. Borrower, the Administrative Agent or any Lender may, but shall be under no
obligation to, make a similar demand on any other Borrowers or any other
guarantor, and any failure by the Administrative Agent or any Lender to make any
such demand or to collect any payments from any such Borrower or any such other
guarantor or any release of such Borrower or such other guarantor shall not
relieve the U.S. Borrower of its obligations or liabilities hereunder, and shall
not impair or affect the rights and remedies, express or implied, or as a matter
of law, of the Administrative Agent or any Lender against the U.S. Borrower. For
the purposes hereof "demand" shall include the commencement and continuance of
any legal proceedings.
10.4 Guarantee Absolute and Unconditional. The U.S. Borrower
waives any and all notice of the creation, renewal, extension or accrual of any
of the Obligations and notice of or proof of reliance by the Administrative
Agent or any Lender upon this Agreement or acceptance of this Agreement; the
Obligations, and any of them, shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived, in reliance
upon this Agreement; and all dealings between the Borrowers and the U.S.
Borrower and the other Borrowers, on the one hand, and the Administrative Agent
and the Lenders, on the other, shall likewise be conclusively presumed to have
been had or consummated in reliance upon this Agreement. The U.S. Borrower
waives diligence, presentment, protest, demand for payment and notice of default
or nonpayment to or upon the other Borrowers and the U.S. Borrower with respect
to the Obligations. This Section 10 shall be construed as a continuing, absolute
and unconditional guarantee of payment without regard to (a) the validity or
enforceability of this Agreement, any other Loan Document, any of the
Obligations or any other collateral security therefor or guarantee or right of
offset with respect thereto at any time or from time to time held by the
Administrative Agent or any Lender, (b) any defense, set-off or counterclaim
(other than a defense of payment or performance) which may at any time be
available to or be asserted by the Borrowers (other than the U.S. Borrower)
against the Administrative Agent or any Lender, or (c) any other circumstance
whatsoever (with or without notice to or knowledge of the Borrowers or the U.S.
Borrower) which constitutes, or might be construed to constitute, an equitable
or legal discharge of the Borrowers for the Obligations, or of the U.S. Borrower
under this Section 10, in bankruptcy or in any other instance. When pursuing its
rights and remedies hereunder against the Borrower, the Administrative Agent and
any Lender may, but shall be under no obligation to, pursue such rights and
remedies as it may have against the other Borrowers or any other Person or
against any collateral security or guarantee for the Obligations or any right of
offset with respect thereto, and any failure by the Administrative Agent or any
Lender to pursue such other rights or remedies or to collect any payments from
such other Borrowers or any such other Person or to realize upon any such
collateral security or guarantee or to exercise any such right of offset, or any
release of the other Borrowers or any such other Person or of any such
collateral security, guarantee or right of offset, shall not relieve the U.S.
Borrower of any liability hereunder, and shall not impair or affect the rights
and remedies, whether express, implied or available as a matter of law, of the
Administrative Agent or any Lender against the U.S. Borrower. This Section 10
shall remain in full force and effect and be binding in accordance with and to
the extent of its terms upon the U.S. Borrower and its successors and assigns,
and shall inure to the benefit of the Administrative Agent and the Lenders, and
their respective successors, indorsees, transferees and assigns, until all the
Obligations and the obligations of the U.S. Borrower under this Agreement shall
have been satisfied by payment in full and the
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Commitments shall be terminated, notwithstanding that from time to time during
the term of this Agreement the Borrowers may be free from any Obligations.
10.5 Reinstatement. This Section 10 shall continue to be
effective, or be reinstated, as the case may be, if at any time payment, or any
part thereof, of any of the Obligations is rescinded or must otherwise be
restored or returned by the Administrative Agent or any Lender upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of any
Borrower or upon or as a result of the appointment of a receiver, intervenor or
conservator of, or trustee or similar officer for, any Borrower or any
substantial part of its property, or otherwise, all as though such payments had
not been made.
10.6 Payments. The U.S. Borrower hereby agrees that all
payments required to be made by it hereunder will be made to the Administrative
Agent, for the benefit of the Administrative Agent and the Lenders, as the case
may be, without set-off or counterclaim in accordance with the terms of the
Obligations, including, without limitation, in the currency in which payment is
due.
SECTION 11. EVENTS OF DEFAULT
Upon the occurrence of any of the following events:
(a) Any Borrower shall fail to pay (i) any principal of any
Loans when due (whether at the stated maturity, by acceleration or
otherwise) in accordance with the terms thereof or hereof or (ii) any
interest on any Loans, or any fee or other amount payable hereunder,
within five days after any such interest, fee or other amount becomes
due in accordance with the terms hereof; or
(b) Any representation or warranty made or deemed made by the
U.S. Borrower or any other Loan Party herein or in any other Loan
Document or which is contained in any certificate, document or
financial or other statement furnished at any time under or in
connection with this Agreement or any other Loan Document shall prove
to have been incorrect in any material respect on or as of the date
made or deemed made; or
(c) The U.S. Borrower or any other Loan Party shall default in
the observance or performance of any negative covenant contained in
Section 9; or
(d) The U.S. Borrower or any other Loan Party shall default in
the observance or performance of any other agreement contained in this
Agreement or any other Loan Document other than as provided in (a)
through (c) above, and such default shall continue unremedied for a
period of 30 days; or
(e) Any Loan Document shall cease, for any reason, to be in
full force and effect, or the U.S. Borrower or any other Loan Party
shall so assert; or any security interest created by any of the
Security Documents shall cease to be enforceable and of the same
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effect and priority purported to be created thereby, except,
in each case, as provided in subsection 13.19; or
(f) The Subsidiary Guarantee shall cease, for any reason, to
be in full force and effect, or any guarantor thereunder shall so
assert, except as provided in subsection 13.19; or
(g) The subordination provisions contained in any instrument
pursuant to which the Subordinated Debt was created or in any
instrument evidencing such Subordinated Debt shall cease, for any
reason, to be in full force and effect or enforceable in accordance
with their terms; or
(h) The U.S. Borrower or any of its Subsidiaries shall (i)
default in any payment of principal of or interest on any Indebtedness
(other than Indebtedness under this Agreement), in the payment of any
Guarantee Obligation or in the payment of any Interest Rate Agreement
Obligation, in any case where the principal amount thereof then
outstanding exceeds $40,000,000 beyond the period of grace (not to
exceed 60 days), if any, provided in the instrument or agreement under
which such Indebtedness, Guarantee Obligation or Interest Rate
Agreement Obligation was created; or (ii) default in the observance or
performance of any other agreement or condition relating to any such
Indebtedness, Guarantee Obligation or Interest Rate Agreement
Obligation or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such
Indebtedness or, beneficiary or beneficiaries of such Guarantee
Obligation (or a trustee or agent on behalf of such holder or holders
or beneficiary or beneficiaries) to cause, with the giving of notice if
required, such Indebtedness to become due prior to its stated maturity
or such Guarantee Obligation to become payable; or
(i) (i) The U.S. Borrower or any Material Subsidiary shall
commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to
have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian or other similar
official for it or for all or any substantial part of its assets, or
the U.S. Borrower or any Material Subsidiary shall make a general
assignment for the benefit of its creditors; or (ii) there shall be
commenced against the U.S. Borrower or any Material Subsidiary any
case, proceeding or other action of a nature referred to in clause (i)
above which (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be commenced
against the U.S. Borrower or any Material Subsidiary any case,
proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial
part of its
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assets which results in the entry of an order for any such relief which
shall not have been vacated,discharged, or stayed or bonded pending
appeal within 60 days from the entry thereof; or (iv) the U.S. Borrower
or any Material Subsidiary shall take any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of the
acts set forth in clause (i), (ii), or (iii) above; or (v) the U.S.
Borrower or any Material Subsidiary shall generally not, or shall be
unable to, or shall admit in writing its inability to, pay its debts as
they become due; or
(j) (i) Any Person shall engage in any non-exempt "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the
Code) involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist
with respect to any Single Employer Plan, (iii) a Reportable Event
shall occur with respect to, or proceedings shall commence to have a
trustee appointed, or a trustee shall be appointed, to administer or to
terminate, any Single Employer Plan, which Reportable Event or
commencement of proceedings or appointment of a trustee is, in the
reasonable opinion of the Majority Lenders, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any
Single Employer Plan shall terminate for purposes of Title IV of ERISA,
(v) the U.S. Borrower or any Commonly Controlled Entity shall, or in
the reasonable opinion of the Majority Lenders is likely to, incur any
liability in connection with a withdrawal from, or the Insolvency or
Reorganization of, a Multiemployer Plan or (vi) any other event or
condition shall occur or exist, with respect to a Plan; and in each
case in clauses (i) through (vi) above, such event or condition,
together with all other such events or conditions, if any, would
reasonably be expected to subject the U.S. Borrower or any of its
Subsidiaries to any tax, penalty or other liabilities in the aggregate
material in relation to the business, operations, property or financial
or other condition of the U.S. Borrower and its Subsidiaries taken as a
whole; or
(k) One or more judgments or decrees shall be entered against
the U.S. Borrower or any of its Subsidiaries involving in the aggregate
a liability (not paid or fully covered by insurance) of $40,000,000 or
more and all such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 60 days from the
entry thereof; or
(l) (i) Any Person or "group" (within the meaning of Section
13(d) or 15(d) of the Exchange Act) (A) shall have acquired beneficial
ownership of 35% or more of any outstanding class of capital stock of
the U.S. Borrower having ordinary voting power in the election of
directors or (B) shall obtain the legal right (whether or not
exercised) to elect a majority of the U.S. Borrower's directors or (ii)
the Board of Directors of the U.S. Borrower shall not consist of a
majority of Continuing Directors;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (i) above with respect to the U.S. Borrower,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement shall immediately become due and payable, and (B) if such
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event is any other Event of Default, any of the following actions may be taken:
(i) with the consent of the Majority Lenders, the Administrative Agent may, or
upon therequest of the Majority Lenders, the Administrative Agent shall,
by notice to the U.S. Borrower declare the Commitments to be terminated
forthwith, whereupon the Commitments shall immediately terminate; (ii) with the
consent of the Majority Lenders, the Administrative Agent may, or upon the
direction of the Majority Lenders, the Administrative Agent shall, by notice of
default to the U.S. Borrower, declare the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement and the Notes to be
due and payable forthwith, whereupon the same shall immediately become due and
payable and (iii)the Administrative Agent may, and upon the direction of the
Majority Lenders shall, exercise any and all remedies and other rights provided
pursuant to this Agreement and/or the other Loan Documents.
Except as expressly provided above in this Section,
presentment, demand, protest and all other notices of any kind are hereby
expressly waived.
SECTION 12. THE ADMINISTRATIVE AGENT; DOCUMENTATION
AGENT; CO-SYNDICATION AGENTS; MANAGING
AGENTS; LEAD MANAGERS AND CO-AGENTS
12.1 Appointment. Each Lender hereby irrevocably designates
and appoints Chase as the Administrative Agent of such Lender under this
Agreement and the other Loan Documents, and each Lender irrevocably authorizes
Chase to act as the Administrative Agent of such Lender, and to take such action
on its behalf under the provisions of this Agreement and the other Loan
Documents and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent, by the terms of this Agreement and the
other Loan Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.
12.2 Delegation of Duties. The Administrative Agent may
execute any of its duties under this Agreement and the other Loan Documents by
or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
12.3 Exculpatory Provisions. Neither the Administrative Agent
nor any of its respective officers, directors, employees, agents,
attorneys-in-fact or affiliates shall be (i) liable for any action lawfully
taken or omitted to be taken by it or such Person under or in connection with
this Agreement or any other Loan Document (except for its or such Person's gross
negligence or willful misconduct) or (ii) responsible in any manner to any of
the Lenders for any recitals, statements, representations or warranties made by
any Borrower or other Person or any
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78
officer thereof contained in this Agreement or any other Loan Document or in
any certificate,report, statement or other document referred to or provided for
in, or received by such Administrative Agent under or in connection with, this
Agreement or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or for any failure of a Borrower or any other Person to perform its
obligations hereunder or thereunder. The Administrative Agent shall not be
under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document or to inspect the properties,
books or records of the Borrowers.
12.4 Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any Note, writing, resolution, notice, consent, certificate, affidavit, letter,
telecopy, telex or teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the Borrowers or any of
them), independent accountants and other experts selected by the Administrative
Agent. The Administrative Agent may deem and treat the payee of any Note as the
owner thereof for all purposes unless a written notice of assignment or transfer
thereof shall have been filed with the Administrative Agent. The Administrative
Agent shall be fully justified as between itself and the Lenders in failing or
refusing to take any action under this Agreement or any other Loan Document
unless it shall first receive such advice or concurrence of the Majority Lenders
as it deems appropriate or it shall first be indemnified to its satisfaction by
the Lenders against any and all liability and expense which may be incurred by
it by reason of taking or continuing to take any such action. The Administrative
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement and the other Loan Documents in accordance with a
request of the Majority Lenders, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Loans.
12.5 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent has received notice from a
Lender or a Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In the
event that the Administrative Agent receives such a notice, the Administrative
Agent shall give notice thereof to the Lenders. The Administrative Agent shall
take such action reasonably promptly with respect to such Default or Event of
Default as shall be reasonably directed by the Majority Lenders; provided that
unless and until the Administrative Agent shall have received such directions,
the Administrative Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the Lenders.
12.6 Non-Reliance on Administrative Agent and Other Lender.
Each Lender expressly acknowledges that neither the Administrative Agent nor any
of its officers, directors, employees, agents, attorneys-in-fact or affiliates
has made any representations or warranties to it and that no act by the
Administrative Agent hereinafter taken, including any review of the affairs
<PAGE> 85
79
of any Borrower, shall be deemed to constitute any representation or warranty
by the Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrowers and made its own decision to
make its Extensions of Credit hereunder and enter into this Agreement. Each
Lender also represents that it will, independently and without reliance upon
the Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Borrowers. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by the Administrative Agent hereunder, the Administrative Agent shall
not have any duty or responsibility to provide any Lender with any credit or
other information concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of the Borrowers which
may come into the possession of the Administrative Agent or any of its
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates.
12.7 Indemnification. Each Lender agrees to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrowers and without limiting the obligation of the Borrowers to do so),
ratably according to its Aggregate Total Outstandings on the date on which
indemnification is sought from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time (including, without
limitation, at any time following the payment of the Loans) be imposed on,
incurred by or asserted against the Administrative Agent in any way relating to
or arising out of this Agreement, any of the other Loan Documents or any
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the
Administrative Agent under or in connection with any of the foregoing; provided
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the gross negligence or willful
misconduct of the Administrative Agent. The agreements in this subsection shall
survive the payment of the Loans and all other amounts payable hereunder.
12.8 Administrative Agent in its Individual Capacity. The
Administrative Agent and its affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrowers as though the
Administrative Agent were not the Administrative Agent hereunder and under the
other Loan Documents. With respect to the Loans made or renewed by the
Administrative Agent, and any Note issued to it, the Administrative Agent shall
have the same rights and powers under this Agreement and the other Loan
Documents as any Lender and may exercise the same as though it were not the
Administrative Agent, and the terms "Lender" and "Lenders" shall include the
Administrative Agent in its individual capacity.
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80
12.9 Successor Administrative Agent. The Administrative Agent
may resign as Administrative Agent upon 30 days' notice to the Lenders. If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Majority Lenders shall appoint from
among the Lenders a successor administrative agent for the Lenders, which
successor administrative agent shall be approved by the U.S. Borrower (such
approval not to be unreasonably withheld), whereupon such successor
administrative agent shall succeed to the rights, powers and duties of the
resigning Administrative Agent, and the term "Administrative Agent" shall mean
such successor administrative agent effective upon such appointment and
approval, and the former Administrative Agent's rights, powers and duties as
Administrative Agent shall be terminated, without any other or further act or
deed on the part of such former Administrative Agent or any of the parties to
this Agreement or any holders of the Loans. After any resigning Administrative
Agent's resignation as Administrative Agent, the provisions of this subsection
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent under this Agreement and the other Loan
Documents.
12.10 The Managing Agents, Co-Agents and Lead Managers,
Documentation Agent and Co-Syndication Agents. Each Lender, the Documentation
Agent and each Managing Agent, Co-Agent, Lead Manager and Co-Syndication Agent
acknowledge that the Documentation Agent and each Managing Agent, Co-Agent, Lead
Manager and Co-Syndication Agent, in such capacity, shall have no duties or
responsibilities, and shall incur no liabilities, under this Agreement or the
other Loan Documents in its respective capacity as such.
12.11 Actions Under Security Documents. With respect to any
action under or in respect of the Security Documents that the provisions of this
Agreement permit or require the Administrative Agent to take only with the
consent, or upon the direction, of all of the Lenders or the Majority Lenders,
as the case may be, the Lenders acknowledge that the Administrative Agent shall
be required to take such action only if such action is approved by, in addition
to all the Lenders or the Majority Lenders, as the case may be, such instructing
group of lenders under each of the Other Credit Agreements as the Other Credit
Agreements require for such action.
12.12 Intercreditor Agreement. In the event that a Refinancing
Agreement is entered into, the Administrative Agent is authorized and directed
to enter into an intercreditor agreement reasonably satisfactory to the
Administrative Agent as contemplated by the definition of Refinancing
Agreement set forth in subsection 1.1, and to enter into such amendments, if
any, to the Subsidiary Guarantee and the Security Documents as it shall
reasonably deem required in order to give effect to such intercreditor
agreement, provided, that, in any case, the Indebtedness of the U.S. Borrower
hereunder and under the Other Credit Agreements (including any Refinancing
Agreement in respect of either of the Other Credit Agreements) shall be pari
passu and equally and ratably secured.
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SECTION 13. MISCELLANEOUS
13.1 Amendments and Waivers. (a) Neither this Agreement or any
other Loan Document, nor any terms hereof or thereof may be amended,
supplemented, waived or modified except in accordance with the provisions of
this subsection 13.1. The Majority Lenders may, or,with the written consent of
the Majority Lenders, the Administrative Agent may, from time to time, (i) enter
into with the U.S. Borrower written amendments, supplements or modifications
hereto and to the other Loan Documents for the purpose of adding any provisions
to this Agreement or the other Loan Documents or changing in any manner the
rights or obligations of the Lenders or of the U.S. Borrower hereunder or
thereunder or (ii) waive at the U.S. Borrower's request, on such terms and
conditions as the Majority Lenders or the Administrative Agent, as the case may
be, may specify in such instrument, any of the requirements of this Agreement or
the other Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall:
(A) reduce the amount or extend the scheduled date of
maturity of any Loan or of any scheduled installment thereof, or reduce
the stated rate of any interest or fee payable hereunder or extend the
scheduled date of any payment thereof or increase the amount or extend
the expiration date of any Lender's Multicurrency Commitment or
Revolving Credit Commitment, in each case without the consent of each
Lender affected thereby;
(B) amend, supplement, modify or waive any provision of
this subsection 13.1 or reduce the percentages specified in the
definition of "Majority Lenders" or consent to the assignment or
transfer by the U.S. Borrower of any of its rights and obligations
under this Agreement and the other Loan Documents, in each case without
the consent of all the Lenders or reduce the percentages specified in
the definitions of "Majority Revolving Credit Lenders, Majority Term
Loan Lenders or Majority Multicurrency Lenders without the consent
of all of the Revolving Credit Lenders, Term Loan Lenders or
Multicurrency Lenders, as the case may be;
(C) amend, supplement, modify or waive any provision of
Section 2 or any other provision of this Agreement governing the rights
or obligations of the Administrative Agent without the consent of the
then Administrative Agent;
(D) amend, modify or waive any provision of subsection 5.8
without the consent of each Lender affected thereby; or
(E) release all or substantially all of the guarantees
contained in Section 10 and under the Subsidiary Guarantee or all or
substantially all of the Collateral under, and as defined in, the
Security Documents without the consent of each Lender other than as
permitted under subsection 13.18.
Any waiver and any amendment, supplement or modification pursuant to this
subsection 13.1 shall apply to each of the Lenders and shall be binding upon the
Borrowers, the Lenders, the
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Administrative Agent, and all future holders of the Loans. In the case of any
waiver, the Borrowers, the Lenders, the Administrative Agent shall be restored
to their former positions and rights hereunder and under the other Loan
Documents, and any Default or Event of Default waived shall be deemed to be
cured and not continuing; but no such waiver shall extend to any subsequent or
other Default or Event of Default, or impair any right consequent thereon.
(b) In addition to amendments effected pursuant to the
foregoing paragraph (a), Schedules II and III may be amended as follows:
(i) Schedule II will be amended to add Subsidiaries of
the U.S. Borrower as additional Foreign Subsidiary Borrowers upon (A)
execution and delivery by the U.S. Borrower, any such Foreign
Subsidiary Borrower and the Administrative Agent, of a Joinder
Agreement providing for any such Subsidiary to become a Foreign
Subsidiary Borrower, and (B) delivery to the Administrative Agent of
(I) a Foreign Subsidiary Opinion in respect of such additional Foreign
Subsidiary Borrower and (II) such other documents with respect thereto
as the Administrative Agent shall reasonably request.
(ii) Schedule II will be amended to remove any
Subsidiary as a Foreign Subsidiary Borrower upon (A) execution and
delivery by the U.S. Borrower of a written amendment providing for such
amendment and (B) repayment in full of all outstanding Loans of such
Foreign Subsidiary Borrower.
(iii) Schedule III will be amended (A) to change
administrative information contained therein (other than any interest
rate definition, funding time, payment time or notice time contained
therein) or (B) to add Available Foreign Currencies (and related
interest rate definitions and administrative information) with the
approval of the Majority Multicurrency Lenders, in each case, upon
execution and delivery by the U.S. Borrower and the Administrative
Agent of a written amendment providing for such amendment.
(iv) Schedule III will be amended to conform any funding
time, payment time or notice time contained therein to then-prevailing
market practices, upon execution and delivery by the U.S. Borrower and
the Administrative Agent of a written amendment providing for such
amendment.
(v) Schedule III will be amended to change any interest
rate definition contained therein, upon execution and delivery by the
U.S. Borrower, all the Multicurrency Lenders and the Administrative
Agent of a written amendment providing for such amendment.
(c) In addition to the amendments effected pursuant to the
foregoing paragraphs (a) and (b), this Agreement may be amended, or amended and
restated, contemporaneously with the occurrence of the Revolving Credit
Termination Date under (and as defined in) the Amended and Restated Credit
Agreement, at the request of the U.S. Borrower and with the consent of the
Administrative Agent but without the consent of any Lender or other party
hereto, solely to
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provide for the inclusion in this Agreement of provisions permitting the
Revolving Credit Commitments to be used for the issuance of letters of credit
and the making of swing line loans and money market swing line loans. The
provisions included in this Agreement pursuant to any such amendment or
amendment and restatement shall in each case be substantially equivalent to the
provisions in the Amended and Restated Credit Agreement relating to Letters of
Credit, Swing Line Loans and Money Market Rate Swing Line Loans (as such terms
are defined in the Amended and Restated Credit Agreement) mutatis mutandis.
Without limiting the foregoing, under this Agreement (i) the letter of credit
fee shall be equal to the Applicable Margin with respect to Revolving Credit
Loans which are Eurodollar Loans (less the fronting fee payable to the issuing
lender at the rate of 0.125% per annum), (ii) the swing line loans (other than
money market rate swing line loans) shall bear interest at the Alternate Base
Rate, and money market rate swing line loans shall bear interest at the money
market rate determined in accordance with the procedures equivalent to those
set forth in the Amended and Restated Credit Agreement with respect to Money
Market Rate Swing Line Loans, (iii) the maximum aggregate face amount of
letters of credit at any time outstanding shall not exceed $250,000,000, (iv)
the amount of the swing line commitment shall not exceed $150,000,000, (v)
Letters of Credit outstanding under the Amended and Restated Credit Agreement
on the date on which the amendment described in this paragraph becomes
effective shall become letters of credit under this Agreement and (vi) no
letters of credit outstanding under this Agreement shall have an expiry date
later than the Revolving Credit Termination Date. The Issuing Lender and Swing
Line Lender under the Amended and Restated Credit Agreement shall be the
issuing lender and swing line lender under this Agreement, and the Revolving
Credit Lenders shall acquire participating interests in, and shall receive fees
with respect to, letters of credit and swing line loans under this Agreement
under provisions substantially equivalent to the applicable provisions set
forth in the Amended and Restated Credit Agreement.
(d) The Administrative Agent shall give prompt notice to each
Lender of any amendment effected pursuant to subsection 13.1(b) or (c).
13.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile transmission) and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made when delivered by hand, or five days
after being deposited in the mail, postage prepaid, or, in the case of telecopy
notice, when received, or, in the case of delivery by a nationally recognized
overnight courier, when received, addressed as follows in the case of the
Borrowers and the Administrative Agent, and as set forth in Schedule I in the
case of the other parties hereto, or to such other address as may be hereafter
notified by the respective parties hereto and any future holders of the Notes:
The U.S. Borrower: Lear Corporation
21557 Telegraph Road
Southfield, Michigan 48034
Attention: Raymond F. Lowry
Telecopy: (248) 447-1730
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The Foreign
Subsidiary Borrowers: Lear Corporation
21557 Telegraph Road
Southfield, Michigan 48034
Attention: Raymond F. Lowry
Telecopy: (248) 447-1730
The Administrative Agent: The Chase Manhattan Bank
270 Park Avenue
New York, New York 10017
Attention: Richard Smith
Telecopy: (212) 270-5100
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to subsection 2.3, 3.3, 4.3, 5.2, 5.4 or 5.7 shall not
be effective until received.
13.3 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of any Borrower, the Administrative
Agent, or any Lender, any right, remedy, power or privilege hereunder or under
the other Loan Documents shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, remedy, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and privileges herein
provided are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.
13.4 Survival of Representations and Warranties. All
representations and warranties made hereunder and in the other Loan Documents
(or in any amendment, modification or supplement hereto or thereto) and in any
certificate delivered pursuant hereto or such other Loan Documents shall survive
the execution and delivery of this Agreement and the Notes and the making of the
Loans hereunder.
13.5 Payment of Expenses and Taxes. The U.S. Borrower agrees
(a) to pay or reimburse the Administrative Agent for all its reasonable
out-of-pocket costs and reasonable expenses incurred in connection with the
development, preparation and execution of, and any amendment, supplement or
modification to, this Agreement, the Notes and the other Loan Documents and any
other documents prepared in connection herewith or therewith, and the
consummation of the transactions contemplated hereby and thereby, including,
without limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent, (b) to pay or reimburse each Lender and the Administrative
Agent for all its costs and expenses incurred in connection with the enforcement
or preservation of any rights under this Agreement, the Notes and any such other
documents, including, without limitation, fees and disbursements of counsel to
the Administrative Agent and the reasonable fees and disbursements of counsel to
the several Lenders, and (c) to pay, indemnify, and hold each Lender and the
Administrative Agent and their respective directors, officers, employees and
agents harmless from, any and all recording and filing fees and any and all
liabilities with respect to, or resulting from any delay in paying, stamp,
excise and other taxes, if any, which may be payable or determined to be payable
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in connection with the execution and delivery of, or consummation of any of the
transactions contemplated by, or any amendment, supplement or modification of,
or any waiver or consent under or in respect of, this Agreement, the Notes and
any such other documents, and (d) to pay, indemnify, and hold each Lender and
the Administrative Agent harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever with
respect to the execution, delivery, enforcement, performance and administration
of this Agreement, the Notes and the other Loan Documents, the use or proposed
use by the Borrowers of the proceeds of the Loans (all the foregoing,
collectively, the "indemnified liabilities"); provided that the U.S. Borrower
shall have no obligation hereunder to (i) the Administrative Agent with respect
to indemnified liabilities arising from the gross negligence or willful
misconduct of the Administrative Agent or (ii) any Lender with respect to
indemnified liabilities arising from the gross negligence or willful misconduct
of such Lender, in each case as finally determined by a court of competent
jurisdiction. The agreements in this subsection shall survive repayment of the
Loans and all other amounts payable hereunder.
13.6 Successors and Assigns; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of the
Borrowers, the Lenders, the Administrative Agent, all future holders of the
Loans and their respective successors and assigns, except that no Borrower may
assign or transfer any of its rights or obligations under this Agreement without
the prior written consent of each Lender.
(b) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time sell to one
or more banks or other entities ("Participants") participating interests in any
Loan owing to such Lender, any Commitment of such Lender or any other interest
of such Lender hereunder and under the other Loan Documents. In the event of any
such sale by a Lender of a participating interest to a Participant, such
Lender's obligations under this Agreement to the other parties to this Agreement
shall remain unchanged, such Lender shall remain solely responsible for the
performance thereof, such Lender shall remain the holder of any such Loan for
all purposes under this Agreement and the other Loan Documents, and the
Borrowers and the Administrative Agent shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Loan Documents. Any agreement
pursuant to which any Lender shall sell any such participating interest shall
provide that such Lender shall retain the sole right and responsibility to
exercise such Lender's rights and enforce the Borrowers' obligations hereunder,
including the right to consent to any amendment, supplement, modification or
waiver of any provision of this Agreement or any of the other Loan Documents,
provided that such participation agreement may provide that such Lender will not
agree to any amendment, supplement, modification or waiver described in clause
(A) or (B) of the proviso to the second sentence of subsection 13.1(a) without
the consent of the Participant. Each Borrower agrees that if amounts outstanding
under this Agreement are due or unpaid, or shall have been declared or shall
have become due and payable upon the occurrence of an Event of Default, each
Participant shall be deemed to have the right of setoff in respect of its
participating interest in amounts owing under this Agreement to the same extent
as if the amount of its participating interest were owing directly to it as a
Lender under this Agreement; provided that, in purchasing such
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participating interest, such Participant shall be deemed to have agreed to
share with the Lenders the proceeds thereof as provided in subsection 13.7(a)
as fully as if it were a Lender hereunder. Each Borrower agrees that each
Participant shall be entitled to the benefits of subsections 5.10, 5.11, 5.12
and 13.6 with respect to its participation in the Commitments and the Loans
outstanding from time to time hereunder as if it was a Lender; provided, that
no Participant shall be entitled to receive any greater amount pursuant to such
subsections than the transferor Lender would have been entitled to receive in
respect of the amount of the participation transferred by such transfer or
Lender to such Participant had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time and from
time to time assign to any Lender or any Affiliate thereof or, with the prior
written consent of the U.S. Borrower (such consent not to be unreasonably
withheld) and the Administrative Agent (such consent not to be unreasonably
withheld), to an additional bank or financial institution (an "Assignee") all or
any part of its rights and obligations under this Agreement and the other Loan
Documents including, without limitation, its Commitments and Loans, pursuant to
an Assignment and Acceptance, substantially in the form of Exhibit K, executed
by such Assignee, such assigning Lender (and, in the case of an Assignee that is
not then a Lender or an Affiliate thereof, by the U.S. Borrower and the
Administrative Agent) and delivered to the Administrative Agent for their
acceptance and recording in the Register; provided that (i) if any Lender
assigns a part of its rights and obligations under this Agreement in respect of
its Revolving Credit Loans and/or Revolving Credit Commitment to an Assignee,
such Lender shall assign proportionate interests in Multicurrency Loans and
Multicurrency Commitments (provided, that, with the consent of the U.S. Borrower
and the Administrative Agent, a Lender may assign portions of its Revolving
Credit Commitment without assigning a proportionate share of its Multicurrency
Commitment if either (A) such proportionate share of such Multicurrency
Commitment shall be assumed by another Lender or (B) if the U.S. Borrower so
agrees, such proportionate share of such Multicurrency Commitment shall be
terminated), (ii) in the case of any such assignment to an additional bank or
financial institution, the aggregate amount of any Revolving Credit Commitment
(or, if the Revolving Credit Commitments have terminated or expired, the
aggregate principal amount of any Revolving Credit Loans) and Term Loans being
assigned shall not be less than $10,000,000 (or (i) if less, the then
outstanding amount of such Lender's Revolving Credit Commitment and Term Loans
or (ii) such lesser amount as may be agreed by the U.S. Borrower and the
Administrative Agent), and after giving effect to such assignment such assignor
Lender, if it retains any Revolving Credit Commitment or Term Loans, shall
retain a Revolving Credit Commitment and Term Loans aggregating at least
$10,000,000. Upon such execution, delivery, acceptance and recording, from and
after the closing date determined pursuant to such Assignment and Acceptance,
(I) the Assignee thereunder shall be a party hereto and, to the extent provided
in such Assignment and Acceptance, have the rights and obligations of a Lender
hereunder with Commitments, rights in respect of Loans as set forth therein, and
(II) the assigning Lender thereunder shall be released from its obligations
under this Agreement to the extent that such obligations shall have been
expressly assumed by the Assignee pursuant to such Assignment and Acceptance
(and, in the case of an Assignment and Acceptance covering all or the remaining
portion of an assigning Lender's rights and obligations under this Agreement,
such assigning Lender shall cease to be a party hereto). Notwithstanding the
foregoing, no
<PAGE> 93
87
consent of the Borrower shall be required for any assignment
effected while an Event of Default under Section 11(i) is in existence.
(d) The Administrative Agent, on behalf of the Borrowers,
shall maintain at their respective addresses referred to in subsection 13.2 a
copy of each Assignment and Acceptance delivered to it and a register (the
"Register") for the recordation of the names and addresses of the Lenders and
the Commitments of, and principal amounts of the Loans and Acceptances owing to,
each Lender from time to time. The entries in the Register shall constitute
prima facie evidence of the information recorded therein, and the Borrowers, the
Administrative Agent and the Lenders may (and, in the case of any Loan or other
obligation hereunder not evidenced by a Note, shall) treat each Person whose
name is recorded in the Register as the owner of a Loan or other obligation
hereunder as the owner thereof for all purposes of this Agreement and the other
Loan Documents, notwithstanding any notice to the contrary. Any assignment of
any Loan or other obligation hereunder not evidenced by a Note shall be
effective only upon appropriate entries with respect thereto being made in the
Register. The Register shall be available for inspection by the U.S. Borrowers
or any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an Assignee (and, in the case of an Assignee that is
not then a Lender or an Affiliate thereof, executed by the Borrowers and the
Administrative Agent), together with payment to the Administrative Agent of a
registration and processing fee of $3,500, the Administrative Agent shall (i)
promptly accept such Assignment and Acceptance and (ii) on the effective date
determined pursuant thereto record the information contained therein in the
Register and give prompt notice of such acceptance and recordation to the
Lenders and the Borrowers.
(f) Each Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee
any and all financial information in such Lender's possession concerning such
Borrower and its Affiliates which has been delivered to such Lender by or on
behalf of such Borrower pursuant to this Agreement or which has been delivered
to such Lender by or on behalf of such Borrower in connection with such Lender's
credit evaluation of such Borrower and its Affiliates prior to becoming a party
to this Agreement; provided, that any such Transferee is advised of the
confidential nature of such information, if applicable, such Lender takes
reasonable steps, in accordance with customary practices, to ensure that any
such information is not used in violation of federal or state securities laws
and such Lender otherwise complies with subsection 13.21.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection concerning assignments of
Loans and Notes relate only to absolute assignments and that such provisions do
not prohibit assignments creating security interests, including, without
limitation, any pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law.
(h) If, pursuant to this subsection, any interest in this
Agreement or any Loan is transferred from a Lender to any Transferee which is
organized under the laws of any jurisdiction
<PAGE> 94
88
other than the United States or any state thereof, the transferor Lender shall
cause such Transferee, concurrently with the effectiveness of such transfer, to
agree (for the benefit of the transferor Lender, the Administrative Agent and
the U.S. Borrower) to provide the transferor Lender (and, in the case of any
Transferee registered in the Register, the Administrative Agent and the U.S.
Borrower) the tax forms and other documents required to be delivered pursuant
to subsection 5.12(b) or (c) and to comply from time to time with all
applicable U.S. laws and regulations with regard to such withholding tax
exemption.
(i) If, pursuant to this subsection, any interest in this
Agreement or any Loan is transferred from a Lender (other than a Lender) to any
Transferee, the transferor Lender shall cause such Transferee, concurrently with
the effectiveness of such transfer, to agree (for the benefit of the transferor
Lender, the Administrative Agent and the Foreign Subsidiary Borrowers) to
provide the transferor Lender, the Administrative Agent and the Foreign
Subsidiary Borrowers the tax forms and other documents required to be delivered
pursuant to subsection 5.12(c) and (e) and to comply from time to time with all
applicable laws and regulations with regard to such withholding tax exemption.
13.7 Adjustments; Set-Off. (a) If any Lender (a "Benefitted
Lender") shall at any time receive any payment of all or part of its Loans then
due and owing to it from any Borrower, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in Section 11(i), or
otherwise), in a greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of such other Lender's Loans
then due and owing to it from such Borrower, or interest thereon, such
Benefitted Lender shall purchase for cash from the other Lenders a participating
interest in such portion of each such other Lender's Loans owing to it from such
Borrower, or shall provide such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
Benefitted Lender to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Lenders; provided, however, that if all or any
portion of such excess payment or benefits is thereafter recovered from such
Benefitted Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to any
Borrower, any such notice being expressly waived by the Borrowers to the extent
permitted by applicable law, upon any amount becoming due and payable hereunder
(whether at the stated maturity thereof, by acceleration or otherwise) to
set-off and appropriate and apply against such amount any and all deposits
(general or special, time or demand, provisional or final), in any currency, and
any other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Lender or any branch, agency or Affiliate thereof to or
for the credit or the account of such Borrower. Each Lender agrees promptly to
notify the Borrowers and the Administrative Agent after any such set-off and
application made by such Lender, provided that the failure to give such notice
shall not affect the validity of such set-off and application.
<PAGE> 95
89
13.8 Loan Conversion/Participations. (a) (i) On any Conversion
Date, to the extent not otherwise prohibited by a Requirement of Law or
otherwise, all Loans outstanding in any currency other than U.S. Dollars
("Loans to be Converted") shall be converted into U.S. Dollars (calculated on
the basis of the relevant Exchange Rates as of the Business Day immediately
preceding the Conversion Date) ("Converted Loans"), and (ii) on the Conversion
Date (with respect to Loans described in the foregoing clause (i)) (A) each
Lender severally, unconditionally and irrevocably agrees that it shall purchase
in U.S. Dollars a participating interest in such Converted Loans in an amount
equal to its Conversion Sharing Percentage of the outstanding principal amount
of the Converted Loans, and (B) to the extent necessary to cause the Revolving
Outstandings Percentage of each Lender, after giving effect to the purchase and
sale of participating interests under the foregoing clause (ii), to equal its
Revolving Credit Commitment Percentage (calculated immediately prior to the
termination or expiration of the Revolving Credit Commitments), each Lender
severally, unconditionally and irrevocably agrees that it shall purchase or
sell a participating interest in Revolving Credit Loans then outstanding. Each
Lender will immediately transfer to the Administrative Agent, in immediately
available funds, the amounts of its participation(s), and the proceeds of such
participation(s) shall be distributed by the Administrative Agent to each
Lender from which a participating interest is being purchased in the amount(s)
provided for in the preceding sentence. All Converted Loans shall bear interest
at the rate which would otherwise be applicable to ABR Loans.
(b) If, for any reason, the Loans to be Converted may not be
converted into U.S. Dollars in the manner contemplated by paragraph (a) of this
subsection 13.8, (i) the Administrative Agent shall determine the U.S. Dollar
Equivalent of the Loans to be Converted (calculated on the basis of the Exchange
Rate as of the Business Day immediately preceding the date on which such
conversion would otherwise occur pursuant to paragraph (a) of this subsection
13.8), (ii) effective on such Conversion Date, each Lender severally,
unconditionally and irrevocably agrees that it shall purchase in U.S. Dollars a
participating interest in such Loans to be Converted in an amount equal to its
Conversion Sharing Percentage of such Loans to be Converted and (iii) each
Lender shall purchase or sell participating interests as provided in paragraph
(a)(ii) of this subsection 13.8. Each Lender will immediately transfer to the
Administrative Agent, in immediately available funds, the amount(s) of its
participation(s), and the proceeds of such participation(s) shall be distributed
by the Administrative Agent to each relevant Lender in the amount(s) provided
for in the preceding sentence.
(c) To the extent any Taxes are required to be withheld from
any amounts payable by a Lender (the "First Lender") to another Lender (the
"Other Lender") in connection with its participating interest in any Converted
Loan, each Borrower, with respect to the relevant Loans made to it, shall be
required to pay increased amounts to the Other Lender receiving such payments
from the First Lender to the same extent they would be required under subsection
5.12 if such Borrower were making payments with respect to the participating
interest directly to the Other Lender.
(d) To the extent not prohibited by any Requirement of Law or
otherwise, at any time after the actions contemplated by paragraphs (a) or (b)
of this subsection 13.8 have been taken, upon the notice of any Lender to the
Borrowers the following shall occur: (i) the U.S.
<PAGE> 96
90
Borrower (through the guarantee contained in Section 10) shall automatically be
deemed to have assumed the Converted Loans in which such Lender holds a
participation, (ii) any Loans outstanding in any currency other than U.S.
Dollars shall be converted into U.S. Dollars on the dates of such assumption
(calculated on the basis of the Exchange Rate on the Business Day immediately
preceding such date of assumption) and such Loans shall bear interest at the
rate which would otherwise be applicable to ABR Loans and (iii) such Loans
shall be assigned by the relevant Lender holding such Loans or obligations to
the Lender who gave the notice requesting such assumption by the U.S. Borrower.
13.9 Intercreditor Agreement. The Administrative Agent is
hereby authorized to enter into an intercreditor agreement, in form and
substance reasonably satisfactory to it, to allow up to $75,000,000 in loans
outstanding on the Closing Date and owing to Deutsche Bank AG New York Branch
and/or Cayman Islands Branch and Toronto Dominion (Texas), Inc., or their
respective affiliates, to be equally and ratably secured by the Collateral and
to benefit from guarantees from the Subsidiary Guarantors on a basis which is
pari passu with the Subsidiary Guarantee.
13.10 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts
(including by facsimile transmission), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. A set of the
copies of this Agreement signed by all the parties shall be delivered to the
Borrowers and the Administrative Agent.
13.11 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
13.12 Integration. This Agreement and the other Loan Documents
represent the agreement of the Borrowers, the Administrative Agent and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Borrowers, the Administrative
Agent or any Lender relative to the subject matter hereof not expressly set
forth or referred to herein or in the other Loan Documents.
13.13 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK.
13.14 Submission to Jurisdiction; Waivers. (a)
Each Borrower hereby irrevocably and unconditionally:
(i)submits for itself and its property in any legal
action or proceeding relating to this Agreement or any other Loan
Document to which it is a party, or for recognition
<PAGE> 97
91
and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the courts of the State of New
York, the courts of the United States of America for the Southern
District of New York, and appellate courts from any thereof;
(ii) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(iii)agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to such Borrower at its address set forth in subsection 13.2
or at such other address of which the Administrative Agent shall have
been notified pursuant thereto; and
(iv)agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to sue in any other jurisdiction.
(b) Each Foreign Subsidiary Borrower hereby irrevocably
appoints the U.S. Borrower as its agent for service of process in any proceeding
referred to in subsection 13.13(a) and agrees that service of process in any
such proceeding may be made by mailing or delivering a copy thereof to it care
of U.S. Borrower at its address for notice set forth in subsection 13.2.
13.15 Acknowledgement. Each Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(b) none of the Administrative Agent or any Lender has any
fiduciary relationship with or duty to such Borrower arising out of or
in connection with this Agreement or any of the other Loan Documents,
and the relationship between the Administrative Agent and the Lenders,
on the one hand, and the U.S. Borrower, on the other hand, in
connection herewith or therewith is solely that of debtor and creditor;
and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Borrowers and the
Lenders.
13.16 WAIVERS OF JURY TRIAL. EACH OF THE BORROWERS, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
<PAGE> 98
92
13.17 Power of Attorney. Each Foreign Subsidiary Borrower
hereby grants to U.S. Borrower an irrevocable power of attorney to act as its
attorney-in-fact with regard to matters relating to this Agreement and each
other Loan Document, including, without limitation, execution and delivery of
any amendments, supplements, waivers or other modifications hereto or thereto,
receipt of any notices hereunder or thereunder and receipt of service of
process in connection herewith or therewith. Each Foreign Subsidiary Borrower
hereby explicitly acknowledges that the Administrative Agent and each Lender
have executed and delivered this Agreement and each other Loan Document to
which it is a party, and has performed its obligations under this Agreement and
each other Loan Document to which it is a party, in reliance upon the
irrevocable grant of such power of attorney pursuant to this subsection. The
power of attorney granted by each Foreign Subsidiary Borrower hereunder is
coupled with an interest.
13.18 [Reserved].
13.19 Release of Collateral and Guarantees. (a) The Lenders
hereby agree with the U.S. Borrower, and hereby instruct the Administrative
Agent, that if (i) the U.S. Borrower attains Release Status, (ii) the
Administrative Agent has no actual knowledge of the existence of a Default,
(iii) the U.S. Borrower shall have delivered a certificate of a Responsible
Officer stating that such Responsible Officer has obtained no knowledge of any
Default or Event of Default, and (iv) all Bond Guarantees shall have been
released or shall be released concurrently with the requested release of the
Subsidiary Guarantee, the Administrative Agent shall, at the request and expense
of the U.S. Borrower, take such actions as shall be reasonably requested by the
U.S. Borrower to release its security interest in all collateral held by it
pursuant to the Security Documents and to release all Subsidiary Guarantors from
their obligations under the Subsidiary Guarantee. In such event, the provisions
of subsection 8.10 shall be deemed terminated and of no further force or effect.
(b) The Lenders hereby agree with the U.S. Borrower, and
hereby instruct the Administrative Agent, that if (i) on any date the ratio of
Consolidated Indebtedness on such date to Consolidated Operating Profit for the
four consecutive fiscal quarters most recently ended, is less than 2.50 to 1.00,
(ii) the Administrative Agent has no actual knowledge of the existence of a
Default, (iii) the U.S. Borrower shall have delivered a certificate of a
Responsible Officer stating that such Responsible Officer has obtained no
knowledge of any Default or Event of Default, and (iv) all Bond Guarantees shall
have been released or shall be released simultaneously with the requested
release of the Subsidiary Guarantee, the Administrative Agent shall, at the
request and expense of the U.S. Borrower, take such actions as shall be
reasonably requested by the U.S. Borrower to release its security interest in
all collateral held by it pursuant to the Security Documents and to release all
Subsidiary Guarantors from their obligations under the Security Guarantee. In
such event, the provisions of subsection 8.10 shall be deemed terminated and of
no further force or effect.
(c) The Lenders hereby agree with the U.S. Borrower, and
hereby instruct the Administrative Agent, that if the U.S. Borrower shall have
delivered to the Administrative Agent written notice that it proposes to sell or
otherwise dispose of any Subsidiary whose stock is
<PAGE> 99
93
pledged pursuant to a Pledge Agreement or which is a Subsidiary Guarantor, and
such disposition is permitted by this Agreement, the Administrative Agent
shall, at the request and expense of the U.S. Borrower, take such actions as
shall be reasonably requested by the U.S. Borrower to release its security
interest in the stock of such Subsidiary and to release such Subsidiary
Guarantor from its obligations under the Subsidiary Guarantee; provided, that
such Subsidiary shall have been, or shall simultaneously be, released from all
Bond Guarantees.
13.20 Judgment.(a) If for the purpose of obtaining
judgment in any court it is necessary to convert a sum due hereunder in one
currency into another currency, the parties hereto agree, to the fullest extent
that they may effectively do so, that the rate of exchange used shall be that
at which in accordance with normal banking procedures the Administrative Agent
could purchase the first currency with such other currency in the city in which
it normally conducts its foreign exchange operation for the first currency on
the Business Day preceding the day on which final judgment is given.
(b) The obligation of each Borrower in respect of any sum due
from it to any Lender hereunder shall, notwithstanding any judgment in a
currency (the "Judgment Currency") other than that in which such sum is
denominated in accordance with the applicable provisions of this Agreement (the
"Agreement Currency"), be discharged only to the extent that on the Business Day
following receipt by such Lender of any sum adjudged to be so due in the
Judgment Currency such Lender may in accordance with normal banking procedures
purchase the Agreement Currency with the Judgment Currency; if the amount of
Agreement Currency so purchased is less than the sum originally due to such
Lender in the Agreement Currency, such Borrower agrees notwithstanding any such
judgment to indemnify such Lender against such loss, and if the amount of the
Agreement Currency so purchased exceeds the sum originally due to any Lender,
such Lender agrees to remit to such Borrower such excess.
13.21 Confidentiality. Each Lender agrees to take normal and
reasonable precautions to maintain the confidentiality of information designated
in writing as confidential and provided to it by the U.S. Borrower or any
Subsidiary in connection with this Agreement; provided, however, that any Lender
may disclose such information (a) at the request of any bank regulatory
authority or in connection with an examination of such Lender by any such
authority, (b) pursuant to subpoena or other court process, (c) when required to
do so in accordance with the provisions of any applicable law, (d) at the
discretion of any other Governmental Authority, (e) to such Lender's Affiliates,
independent auditors and other professional advisors or (f) to any Transferee or
potential Transferee; provided that such Transferee agrees to comply with the
provisions of this subsection 13.21.
13.22 Conflicts. In the event that there exists a conflict
between provisions in this Agreement and provisions in any other Loan Document,
the provisions of this Agreement shall control.
<PAGE> 100
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
LEAR CORPORATION
By: /s/
----------------
Title:
<PAGE> 101
LEAR CORPORATION SWEDEN AB
By: /s/
---------------------------
Title:
<PAGE> 102
LEAR CORPORATION FRANCE SARL
By: /s/
--------------------------
Title:
<PAGE> 103
LEAR CORPORATION ITALIA S.P.A.
By: /s/
-----------------------------
Title:
<PAGE> 104
BANCA DI ROMA - CHICAGO BRANCH
By:/s/
-------------------------------
Title:
<PAGE> 105
LEAR CORPORATION BETEILIGUNGS GMBH
By:/s/
---------------------------------
Title:
<PAGE> 106
THE CHASE MANHATTAN BANK, as
Administrative Agent and as a Lender
By:/s/
---------------------------
Title:
<PAGE> 107
BANCA DI ROMA - CHICAGO BRANCH
By:/s/
-----------------------
Title:
<PAGE> 108
THE BANK OF NOVA SCOTIA
By:/s/
----------------------------------
Title:
<PAGE> 109
BANCA NAZIONALE DEL LAVORO S.P.A. NEW
YORK BRANCH
By:/s/
--------------------------------
Title:
By:/s/
--------------------------------
Title:
<PAGE> 110
BANCO ESPIRITO SANTO E COMERCIAL DE
LISBOA, NASSAU BRANCH
By: /s/
---------------------------
Title:
By: /s/
---------------------------
Title:
<PAGE> 111
NBD BANK
By: /s/
-------------------------------------
Title:
<PAGE> 112
BANK OF AMERICA NT & SA
By: /s/
------------------------------------
Title:
<PAGE> 113
THE BANK OF NEW YORK
By: /s/
------------------------------------
Title:
<PAGE> 114
THE BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By: /s/
------------------------------------
Title:
<PAGE> 115
BANKERS TRUST COMPANY
By: /s/
------------------------------------
Title:
<PAGE> 116
BANQUE NATIONALE DE PARIS
By: /s/
------------------------------------
Title:
<PAGE> 117
CHANG HWA COMMERCIAL BANK, LTD., NEW
YORK BRANCH
By: /s/
------------------------------------
Title:
<PAGE> 118
CITICORP USA, INC., as Co-Syndication
Agent and as a Lender
By: /s/
------------------------------------
Title:
<PAGE> 119
COMERICA BANK
By: /s/
------------------------------------
Title:
<PAGE> 120
CREDIT AGRICOLE INDOSUEZ
By: /s/
------------------------------------
Title:
By: /s/
------------------------------------
Title:
<PAGE> 121
CREDIT SUISSE FIRST BOSTON
By: /s/
------------------------------------
Title:
By: /s/
------------------------------------
Title:
<PAGE> 122
ERSTE BANK DER OESTERREICHISCHEN
SPARKASSEN
By: /s/
------------------------------------
Title:
<PAGE> 123
FLEET NATIONAL BANK
By: /s/
------------------------------------
Title:
<PAGE> 124
THE FUJI BANK, LIMITED
By: /s/
------------------------------------
Title:
<PAGE> 125
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By: /s/
------------------------------------
Title:
<PAGE> 126
MERITA BANK PLC, NEW YORK BRANCH
By: /s/
------------------------------------
Title:
By: /s/
------------------------------------
Title:
<PAGE> 127
MICHIGAN NATIONAL BANK
By: /s/
------------------------------------
Title:
<PAGE> 128
MORGAN STANLEY SENIOR FUNDING, INC., as
Co-Syndication Agent and as a Lender
By: /s/
------------------------------------
Title:
<PAGE> 129
PARIBAS
By: /s/
------------------------------------
Title:
<PAGE> 130
ROYAL BANK OF CANADA
By: /s/
------------------------------------
Title:
<PAGE> 131
THE ROYAL BANK OF SCOTLAND plc
By: /s/
------------------------------------
Title:
<PAGE> 132
SKANDINAVISKA ENSKILDA BANKEN
By: /s/
------------------------------------
Title:
<PAGE> 133
SOCIETE GENERALE
By: /s/
------------------------------------
Title:
<PAGE> 134
SUNTRUST BANK, ATLANTA
By: /s/
------------------------------------
Title:
<PAGE> 135
TORONTO DOMINION (TEXAS), INC., as
Documentation Agent and as a Lender
By: /s/
------------------------------------
Title:
TORONTO-DOMINION BANK EUROPE LTD., as a
Multicurrency Lender
By: /s/
------------------------------------
Title:
<PAGE> 136
WACHOVIA BANK
By: /s/
------------------------------------
Title:
<PAGE> 137
SCHEDULE I
COMMITMENTS; ADDRESSES
A. Revolving Credit Commitment, Multicurrency Commitments (U.S. Dollars)
and Term Loan Commitments
<TABLE>
<CAPTION>
Revolving Credit Multicurrency Term Loan
Lender Commitment Commitment Commitment
------ ---------- ---------- ----------
<S> <C> <C> <C>
The Chase Manhattan Bank 23,500,000 23,500,000 23,500,000
Banca Di Roma - Chicago Branch 7,500,000 7,500,000
The Bank of Nova Scotia 23,500,000 10,000,000 23,500,000
Banca Nazionale Del Lavoro S.P.A. New
York Branch 12,500,000 12,500,000
Banco Espirito Santo E Comercial De Liboa,
Nassau Branch 5,000,000 5,000,000
NBD Bank 23,500,000 15,000,000 23,500,000
Bank of America NT & SA 23,500,000 19,000,000 23,500,000
The Bank of New York 20,000,000 20,000,000
The Bank of Tokyo-Mitsubishi Trust
Company 23,500,000 23,500,000
Bankers Trust Company 23,500,000 10,000,000 23,500,000
Banque Nationale De Paris 15,000,000 15,000,000
Chang Hwa Commerical Bank, LTD., New
York Branch 7,500,000 7,500,000
Citicorp USA, Inc. 23,500,000 15,000,000 23,500,000
</TABLE>
<PAGE> 138
2
<TABLE>
<CAPTION>
Revolving Credit Multicurrency Term Loan
Lender Commitment Commitment Commitment
------ ---------- ---------- ----------
<S> <C> <C> <C>
Comerica Bank 20,000,000 20,000,000
Credit Agricole Indosuez 7,500,000 7,500,000 7,500,000
Credit Suisse First Boston 23,500,000 23,500,000
Erste Bank Der Oesterreichischen
Sparkassen 7,500,000 7,500,000
Fleet National Bank 12,500,000 12,500,000
The Fuji Bank, Limited 20,000,000 20,000,000
The Industrial Bank of Japan, Limited 20,000,000 20,000,000
Merita Bank plc, New York Branch 7,500,000 7,500,000
Michigan National Bank 7,500,000 3,500,000 7,500,000
Morgan Stanley Senior Funding, Inc. 23,500,000 23,500,000
Paribas 7,500,000 5,000,000 7,500,000
Royal Bank of Canada 12,500,000 12,500,000
The Royal Bank of Scotland plc 20,000,000 16,500,000 20,000,000
Skandinaviska Enskilda Banken 12,500,000 12,500,000
Societe Generale 15,000,000 5,000,000 15,000,000
Suntrust Bank, Atlanta 15,000,000 10,000,000 15,000,000
Toronto Dominion (Texas), Inc. 23,500,000 15,000,000 23,500,000
Wachovia Bank 12,500,000 10,000,000 12,500,000
TOTAL 500,000,000 165,000,000 500,000,000
</TABLE>
<PAGE> 139
B. [RESERVED]
C. Addresses for Notices
BANCA DI ROMA - CHICAGO BRANCH
225 West Washington, Suite 1200
Chicago, IL 60606
Attn: Jim Semonchik
Tel: (312) 704-2629
Fax: (312) 726-3058
BANK OF NOVA SCOTIA
181 West Madison Street, Suite 3700
Chicago, IL 60602
Attn: Brian Hewett
Tel: (312) 201-4145
Fax: (312) 201-4108
BANCA NAZIONALE DEL LAVORO S.P.A., NEW YORK BRANCH
25 West 51st Street
New York, NY 10019
Attn: Giulio Giovine
Tel: (212) 581-0710
Fax: (212) 765-2978
[BANCO ESPIRITO SANTO E COMERCIAL DE LISBOA, NASSAU BRANCH]
NBD BANK
611 Woodward Avenue
Detroit, MI 48226
Attn: Thomas Lakocy
Tel: (313) 225-2884
Fax: (313) 225-2290
BANK OF AMERICA NT & SA
231 South LaSalle Street
Chicago, IL 60693
Attn: Steve Ahrenholz
Tel: (312) 828-1291
Fax: (312) 987-7384
<PAGE> 140
THE BANK OF NEW YORK
One Wall Street, 22nd Floor
New York, NY 10286
Attn: William M. Barnum
Tel: (212) 635-1066
Fax: (212) 635-6434
THE BANK OF TOKYO-MITSUBUSHI LTD., NEW YORK BRANCH
1251 Avenue of the Americas, 12th Floor
New York, NY 10020-1104
Attn: Friedrich N. Wilms
Tel: (212) 782-4341
Fax: (212) 782-6445
BANKERS TRUST COMPANY
233 South Wacker Drive, Suite 8400
Chicago, IL 60606
Attn: Tom Cole
Tel: (312) 993-8051
Fax: (312) 993-8162
BANQUE NATIONALE DE PARIS
209 South LaSalle Street, 5th Floor
Chicago, IL 60604
Attn: Christine L. Howatt
Tel: (312) 977-1383
Fax: (312) 977-1380
[CHANG HWA COMMERCIAL BANK, LTD., NEW YORK BRANCH]
CITICORP USA, INC.
399 Park Avenue
New York, NY 10043
Attn: Elizabeth Palermo
Tel: (212) 559-3533
Fax: (212) 826-3375
COMERICA BANK
Comerica Tower at Detroit Center
500 Woodward Avenue, MC 3265
Detroit, MI 48226
Attn: Michael Shea
Tel: (313) 222-2977
Fax: (313) 222-3776
<PAGE> 141
CREDIT AGRICOLE INDOSUEZ
55 East Monroe Street, Suite 4700
Chicago, IL 60603-5702
Attn: Richard Drennan
Tel: (312) 917-7441
Fax: (312) 372-3724
CREDIT SUISSE FIRST BOSTON
11 Madison Avenue
New York, New York 10010-3829
Attn: Kristin Lepri
Tel: (212) 325-9058
Fax: (212) 325-8309
[ERSTE BANK DER OESTERREICHISCHEN SPARKASSEN]
FLEET NATIONAL BANK
One Federal Street
Boston, MA 02211
Attn: Juan Jeffries
Tel: (617) 346-4953
Fax: (617) 346-0585
[THE FUJI BANK, LIMITED]
THE INDUSTRIAL BANK OF JAPAN, LIMITED
227 West Monroe Street, Suite 2600
Chicago, IL 60606
Attn: David Geddy
Tel: (312) 855-8482
Fax: (312) 855-8200
MERITA BANK PLC, NEW YORK BRANCH
437 Madison Avenue, 21st Floor
New York, NY 10022
Attn: William Keller
Tel: (212) 318-9317
MICHIGAN NATIONAL BANK
27777 Inkster Road
Farmington Hills, MI 48333
Attn: Christopher Mayone
Tel: (248) 473-4357
Fax: (248) 615-5910
<PAGE> 142
[MORGAN STANLEY SENIOR FUNDING, INC.]
PARIBAS
227 West Monroe, Suite 3300
Chicago, IL 60606
Attn: Nicholas C. Mast
Tel: (312) 853-6038
Fax: (312) 853-6020
ROYAL BANK OF CANADA
One North Franklin Street, Suite 700
Chicago, IL 60606
Attn: Patrick K. Shields
Tel: (312) 551-1629
Fax: (312) 551-0805
[THE ROYAL BANK OF SCOTLAND PLC]
[SKANDINAVISKA ENSKILDA BANKEN]
Magnus Lejdftrom
Tel: (212) 907-4801
SOCIETE GENERALE
181 West Madison Street, Suite 3400
Chicago, IL 60602
Attn: Eric Bellaiche
Tel: (312) 578-5056
Fax: (312) 578-5099
SUNTRUST BANK, ATLANTA
25 Park Place
Mailcode 118
Atlanta, GA 30303
Attn: Shelly Browne
Tel: 404-230-5224
Fax: 404-588-8505/658-4905
SUNTRUST BANK ATLANTA
25 Park Place
Mailcode 118
Atlanta, GA 30303
Attn: Jennifer Harrelson
Tel: (404) 588-7461
Fax: (404) 588-8505/658-4905
<PAGE> 143
TD SECURITIES (USA) INC.
70 W. Madison, Suite 5430
Chicago, IL 60602
Attn: Mario da Ponte
Tel: (312) 977-2127
Fax: (312) 782-6332
WACHOVIA CORPORATE SERVICES, INC.
191 Peachtree Street, N.E.
Atlanta, GA 30303
Attn: Katie Trocron
Tel: (404)
Fax: (404) 332-6898
<PAGE> 144
SCHEDULE II
FOREIGN SUBSIDIARY BORROWER
Jurisdiction of
Name and Address Incorporation
- ---------------- -------------
Lear Corporation Sweden AB Sweden
c/o Lear Corporation
21557 Telegraph Road
Southfield, Michigan 48034
Attention: Raymond F. Lowry
Telecopy: (248) 447-1730
Lear France SARL France
c/o Lear Corporation
21557 Telegraph Road
Southfield, Michigan 48034
Attention: Raymond F. Lowry
Telecopy: (248) 447-1730
Lear Corporation GmbH & Co. KG Germany
c/o Lear Corporation
21557 Telegraph Road
Southfield, Michigan 48034
Attention: Raymond F. Lowry
Telecopy: (248) 447-1730
Lear Corporation Beteiligungs GmbH Germany
c/o Lear Corporation
21557 Telegraph Road
Southfield, Michigan 48034
Attention: Raymond F. Lowry
Telecopy: (248) 447-1730
Lear Corporation Italia S.p.A. Italy
c/o Lear Corporation
21557 Telegraph Road
Southfield, Michigan 48034
Attention: Raymond F. Lowry
Telecopy: (248) 447-1730
<PAGE> 145
1
SCHEDULE III
ADMINISTRATIVE SCHEDULE
I. MULTICURRENCY LOANS
A. Interest Rates for Each Currency
Sterling:
for any Interest Period in respect of any Tranche,
the rate per annum equal to the average (rounded
upward to the nearest 1/16th of 1%) of the rates at
which Chase is offered deposits in Sterling in the
Paris interbank market at or about 11:00 A.M., Paris
time, on the Quotation Day for such Interest Period
for delivery on the first day of such Interest Period
for the number of days comprised therein and in an
amount comparable to Chase's Multicurrency Commitment
Percentage of the applicable Multicurrency Loan.
Swedish Kroner:
for any Interest Period in respect of any Tranche,
the rate per annum equal to the average (rounded
upward to the nearest 1/16th of 1%) of the rates at
which Chase is offered deposits in Swedish Kroner in
the London interbank market at or about 11:00 A.M.,
London time, on the Quotation Day for such Interest
Period for delivery on the first day of such Interest
Period for the number of days comprised therein and
in an amount comparable to Chase's Multicurrency
Commitment Percentage of the applicable Multicurrency
Loan.
euro unit:
for any Interest Period in respect of any Tranche,
the rate per annum for deposits in euro for a period
beginning on the first day of such Interest Period
and ending on the last day of such Interest Period
which appears on Telerate Page 3750 (or, if no such
quotation appears on such Telerate Page, on the
appropriate Reuters Screen) as of 11:00 a.m., London
time, on the Quotation Day of such Interest Period.
B. Funding Office, Funding Time, Payment Office, Payment Time for
Each Currency.
<PAGE> 146
2
Sterling:
1. Funding Office:
Account of: Chase Manhattan International Limited
Account No: CHAPS 40 52 06
Chase Manhattan Bank
125 London Wall
London EC2Y 5AJ
2. Funding Time: 11:00 A.M., local time.
3. Payment Office:
Account of: Chase Manhattan International Limited
Account No: CHAPS 40 52 06
Chase Manhattan Bank
125 London Wall
London EC2Y 5AJ
4. Payment Time: 11:00 A.M., local time.
Swedish Kroner:
1. Funding Office:
Account of: Chase Manhattan International Limited
Account No: 52018519395
2. Funding Time: 11:00 A.M., local time.
3. Payment Office:
Account of: Skandinaviska Enskilda Banken, Stockholm
Account No: 52018519395
4. Payment Time: 11:00 A.M., local time.
euro unit:
1. Funding Office:
Account of: Chase Manhattan International Limited
Account No: 6001600037
The Chase Manhattan Bank AG, Frankfurt
2. Funding Time: 11:00 A.M., local time.
<PAGE> 147
3
3. Payment Office:
Account of: Chase Manhattan International Limited
Account No: 6001600037
The Chase Manhattan Bank AG, Frankfurt
4. Payment Time: 11:00 A.M., local time.
C. Notice of Multicurrency Loan Borrowing:
1. Deliver to: Chase Manhattan International Limited
Trinity Tower
9 Thomas More Street
London E1 9YT
Attention: Steve Clark
Telephone No: 44-171-777-2353
Fax No: 44-171-777-2360/2085
2. Time:
Not later than 11:00 A.M., London time, on the last
Business Day preceding the Quotation Day in respect of
such Borrowing Date.
3. Information Required:
Name of Foreign Subsidiary Borrower, amount to be
borrowed, and Interest Periods.
D. Notice of Multicurrency Loan Continuation; Notice of
Prepayment:
1. Deliver to: Chase Manhattan International Limited
Trinity Tower
9 Thomas More Street
London E1 9YT
Attention: Steve Clark
Telephone No: 44-171-777-2353
Fax No: 44-171-777-2360/2085
2. Time:
Not later than 11:00 A.M., London time, on the last
Business Day preceding the Quotation Day for the next
Interest Period.
3. Information Required:
Name of Foreign Subsidiary Borrower, amount to be
continued or prepaid, as the case may be, and Interest
Periods.
<PAGE> 148
1
SCHEDULE IV
SECURITY DOCUMENTS
I. Pledge Agreements
1. Pledge Agreement, dated as of the date hereof, made by the
U.S. Borrower and Lear Operations Corporation pledging 100% of the stock of Lear
Operations Corporation and Lear Corporation Automotive Holdings in favor of the
General Administrative Agent, substantially in the form of Exhibit Q to the
Agreement.
2. Pledge Agreement to be entered into within 60 days after
the Closing Date in respect of 65% of the capital stock of Lear Germany.
<PAGE> 149
1
SCHEDULE V
[RESERVED]
<PAGE> 150
2
SCHEDULE VI
<TABLE>
<CAPTION>
SUBSIDIARIES(1)
DOMESTIC SUBSIDIARIES:
Jurisdiction of
Name of Entity Incorporation Stock Ownership Record Holder
-------------- ------------- --------------- -------------
<S> <C> <C> <C>
Amtex, Inc. Pennsylvania 50% Lear Corporation
Bryan Manufacturing Company Ohio 100% Lear Corporation Automotive Holdings
Corporate Eagle Two LLC 50% LCT, Inc.
Detroit Automotive Interiors L.L.C. Michigan 49% Lear Corporation
Essex International de Chihuahua, Inc. Delaware 100% Lear Corporation Automotive Holdings
General Seating of America, Inc. Delaware 50% Lear Corporation
Industrial Electrical Specialties, Inc. Delaware 55% Lear Corporation Automotive Holdings
IPCO Inc. Delaware 100% Lear Corporation Automotive Holdings
LCT, Inc. Michigan 100% Lear Corporation
Lear Corporation (Germany) Ltd. Delaware 100% Lear Corporation
Lear Corporation Global Development, Inc. Delaware 100% Lear Corporation
Lear Corporation Mendon Delaware 100% Lear Corporation
Lear Donnelly Overhead Systems, L.L.C. Michigan 50% Lear Corporation
Lear East L.P. Pennsylvania 100% Lear East, Inc. (99%); Lear
Corporation Global Development, Inc.
(1%)
Lear East, Inc. Delaware 100% Lear Operations Corporation
Lear Investments Company, L.L.C. Delaware 100% Lear Corporation
Lear Mexican Holding, L.L.C. Delaware 100% Lear Seating Holdings Corp. #50
Lear Midwest Automotive, Limited Partnership Delaware 100% Lear Midwest, Inc. (99.9%); Lear
Corporation Mendon (0.1%)
Lear Midwest, Inc. Kentucky 100% Lear Operations Corporation
Lear Operations Corporation Delaware 100% Lear Corporation
Lear Seating Holdings Corp. #50 Delaware 100% Lear Corporation
Lear Seating Holdings Corp. #100 Delaware 100% Lear Corporation
Lear Technologies, L.L.C. Delaware 100% Lear Corporation
</TABLE>
- -----------------------------
1. After giving effect to the UT Atomotive acquisition.
<PAGE> 151
3
<TABLE>
<CAPTION>
Jurisdiction of
Name of Entity Incorporation Stock Ownership Record Holder
-------------- ------------- --------------- -------------
<S> <C> <C> <C>
Lear Trim L.L.C. Delaware 100% NAB Corporation (99.9%); Lear
Corporation (.1%)
Masland Transportation, Inc. Delaware 100% Lear Corporation
Motors Acquisition Corporation Delaware 100% Lear Corporation
NAB Corporation Delaware 100% Lear Corporation
Precision Fabrics Group North Carolina 29% Lear Corporation
Superior Coach Corporation Ohio 100% Lear Corporation Automotive Holdings
United Technologies Automotive (Japan), Inc. Delaware 100% Lear Corporation Automotive Holdings
United Technologies Automotive (U.K.) Limited Delaware 100% Lear Corporation Automotive Holdings
United Technologies Automotive Systems, Inc. Ohio 100% Lear Corporation Automotive Holdings
United Technologies Automotive, Inc. Delaware 100% Lear Corporation Automotive Holdings
United Technologies Furukawa Corporation Delaware 51% Lear Corporation Automotive Holdings
UT Automitive Advanced Technology, Inc. Delaware 100% Lear Corporation Automotive Holdings
UT Automotive Dearborn, Inc. Delaware 100% Lear Corporation Automotive Holdings
Lear Corporation Automotive Holdings Delaware 100% Lear Operations Corporation
Wagner Industries, Inc. Indiana 100% Lear Corporation Automotive Holdings
</TABLE>
<PAGE> 152
4
FOREIGN SUBSIDIARIES:
<TABLE>
<CAPTION>
Jurisdiction of
Name of Entity Organization Stock Ownership Record Holder
-------------- ------------ --------------- -------------
<S> <C> <C> <C>
AB Extruding Sweden 100% Lear Corporation Sweden AB
AB Trelleborgsplast Sweden 100% Lear Corporation Sweden AB
All Automotive Industries Canada Inc. Canada 100% Lear Corporation
Alfombras San Luis S.A. Argentina 100% Industria Textil Dragui S.A.
Arbitrario B.V. Netherlands 100% Lear Corporation
Asia Pacific Components Co., Ltd. Thailand 98% Lear Seating (Thailand) Corp., Ltd.
Auto Interiors India Private Ltd. India 25%
Autoform Kunsrstoffeile GmbH Germany 69% Gruppo Pianfej S.r.L (44%); Pianfei
Glass SA (25%)
Autoform Kunststoffteile GmbH & Co KG Germany 70.89% Gruppo Pianfej S.r.L (45.2%); Pianfei
KG Glass SA (29.69%)
Autotrim, S.A. de C.V. Mexico 40% Interiores Automotrics Summa S.A. de
C.V.
AVB Anlagen und Vorrichtungsbau Germany 55% Lear Corporation Bereiligungs GmbH
Aviken Plast AB Sweden 100% Lear Corporation Gnosjoplast AB
Chongqing Lear Chang'an Automotive China 35.75% Lear Corporation China Ltd.
Interior Trim Co., Ltd.
Consorcio Industrial Mexicanos de Mexico 100% Lear Corporation 99.4%; Empresas
Autopartes S.A. de C.V. Industriales Mexicanos de Autopartes,
S.A. de C.V. .6%
Davart Group Ltd. UK 100% Lear Corporation UK Interior Systems
Limited
Donnelly Eurotrim Ltd. Ireland 50% Lear Donnelly Overhead Systems, L.L.C.
El Trim (Pty.) Ltd. Italy 51% Lear Corporation Beteiligungs GmbH
Empetek autodily s.r.o. Czech Republic 50% Lear Donnelly Overhead Systems, L.L.C.
Empresas Industriales Mexicanos de Mexico 74.98% Lear Corporation
Autopartes, S.A. de C.V.
Favesa S.r.l. de C.V. Mexico 100% Lear Holdings S.r.l. de C.V.
Gate Deutschland GmbH Germany 100% Lear Corporation Automotive Holdings
Gate France S.A. France 99.760% Lear Corporation Automotive Holdings
Gate S.p.A. Italy 100% Lear Corporation Automotive Holdings
Gate UK Limited U.K. 100% Lear Corporation Automotive Holdings
General Seating of Canada Ltd. Canada 50% Lear Corporation Canada, Ltd.
General Seating of Thailand Corp. Ltd. 50% Lear Corporation
</TABLE>
<PAGE> 153
5
<TABLE>
<CAPTION>
Jurisdiction of
Name of Entity Incorporation Stock Ownership Record Holder
-------------- ------------- --------------- -------------
<S> <C> <C> <C>
Gruppo Pianfei S.r.L. Italy 100% Lear Corporation Italia Holding S.r.L.
Guilford Kast Plastifol Dynamics Ltd. UK 33.3% Lear Corporation Drahtfedem GmbH
Hanil Lear Automotive Parts Private Ltd. India 50% Lear Corporation
Hubei UTA-Xianfeng Auto Electric China 100% Lear Corporation Automotive Holdings
Company, Ltd.
Industria Textil Dragui S.A. Argentina 100% Industrias Lear de Argentina, S.A.
Industrias Cousin Freres, S.L. Spain 49.99% Lear Corporation Italia S.p.A..
Industrias Lear de Argentina, S.A. Argentina 100% Lear Corporation
Industrias Lear Trim S. de R.L. de C.V. Mexico 100% Lear Holdings S.r.l. de C.V.
Inteco S.p.A. Italy 100% Strapazzini Auto S.p.A. (99%), Lear
Corporation Italia Holding S.r.L. (1%)
Interiores Automotrices Summa S.A. de Mexico 40% Lear Operations Corporation
C.V.
Interiores Para Autos, S.A. de C.V. Mexico 40% Interiores Auto Matricies Summa S.A. de
C.V.
Interni S.A. Brazil 25%
Jiangxi Jiangling Lear Interior Systems China 32% Lear Corporation China Ltd.
Co. Ltd.
John Cotton Plastics Ltd. UK 100% Lear Corporation UK Interior Systems
Limited
L.S. Servicos Ltds. Brazil 100% Lear Corporation
Lear Automotive Corporation Singapore Singapore 100% Lear Corporation
Pte. Ltd.
Lear Bahia Ltd. Brazil 100% Lear do Brazil Ltda.
Lear Belgium Newco Belgium 100% Lear Corporation
Lear Brits (SA)(Pty.) Ltd. South Africa 100% Lear Corporation
Lear Car Seating do Brasil Ltda. Brazil 100% L.S. Servicos Ltda.
Lear Corporation (Nottingham) Limited UK 100% Lear Corporation (UK) Limited)
Lear Corporation (S.A.)(Pty.) Ltd. South Africa 100%
Lear Corporation (SSD) Ltd. UK 100% Lear UK ISM Limited
Lear Corporation (SSD) NV Belgium 100% Lear Corporation
Lear Corporation (UK) Ltd. UK 100% Lear UK Acquisition Limited
Lear Corporation Asientos, S.A. Spain 100% Lear Corporation Spain S.L.
Lear Corporation Australia Pty. Ltd. Australia 100% Lear Corporation
Lear Corporation Austria GmbH Austria 100% Lear Corporation Beteiligungs GmbH
</TABLE>
<PAGE> 154
6
<TABLE>
<CAPTION>
Jurisdiction of
Name of Entity Incorporation Stock Ownership Record Holder
-------------- ------------- --------------- -------------
<S> <C> <C> <C>
Lear Corporation Austria GmbH & Co. KG Austria 100% Lear Corporation Beteiligungs GmbH
(99%); Lear Corporation Austria GmbH
(1%)
Lear Corporation Automotive Components South Africa 100%
(Pty.) Ltd.
Lear Corporation Beteiligungs GmbH Germany 100% Lear Corporation (Germany) Ltd.
Lear Corporation Drabtfedern GmbH Germany 100% Lear Corporation Beteiligungs GmbH
Lear Corporation Canada Ltd. Ontario 100% Lear Corporation
Lear Canada Investments Ltd. Ontario 100% Lear Corporation
Lear Corporation China Ltd. Mauritius 65%
Lear Corporation France S.A.R.L. France 100% Lear Corporation
Lear Corporation GmbH & Co. KG Germany 100% Lear Corporation Drahtfedern GmbH
Lear Corporation Holdings Spain S.L. 100% Lear Corporation
Lear Corporation Hungary KFT 100% Lear Corporation Drahtfedern GmbH
Lear Corporation Interior Compenents South Africa 100% Lear Corporation
(Pty.) Ltd.
Lear Corporation Italia Holding S.r.L. Italy 100% Lear Corporation
Lear Corporation Italia S.p.A. Italy 100% Lear Corporation Italia Holdings S.r.L.
Lear Corporation Italia Speciality Car Italy 100% Lear Corporation Italia Holding S.r.L
Group S.r.L.
Lear Corporation Italia Sud S.p.A. Italy 100% Lear Corporation Italia S.p.A.
Lear Corporation Mexico S.A. de C.V. Mexico 99.6% Lear Holdings S.r.l. de C.V.
Lear Corporation Poland Gliwice Poland 100% Lear Corporation
S.p.zo.o.
Lear Corporation Poland II S.p.zo.o. Poland 100% Lear Corporation
Lear Corporation Poland S.p.zo.o. Poland 100% Lear Corporation
Lear Corporation Portugal-Components Portugal 100% Lear Corporation
Para Automovers, Lda.
Lear Corporation Spain S.L. 100% Lear Corporation Holdings Spain S.L.
Lear Corporation Sweden AB Sweden 100% Lear Corporation
Lear Corporation Sweden Gnosjoplast AB Sweden 100% Lear Corporation Sweden AB
Lear Corporation UK Holdings Ltd. UK 100% Lear Corporation
Lear Corporation UK Interior Systems Ltd. UK 100% Lear Corporation UK Holdings Ltd.
Lear Corporation Verwaltungs GmbH Germany 100% Lear Corporation Drahtfedern GmbH
</TABLE>
<PAGE> 155
7
<TABLE>
<CAPTION>
Jurisdiction of
Name of Entity Incorporation Stock Ownership Record Holder
-------------- ------------- --------------- -------------
<S> <C> <C> <C>
Lear de Venezuela, C.A. Venezuela 100% Lear Corporation
Lear de Brazil ltda. Brazil 100% Lear Corporation
Lear Donnelly Mexico, S. de R.L. de C.V. (50%) Lear Donnelly Overhead Systems, L.L.C.
Lear Foreign Sales Group US Virgin Islands 100% Lear Corporation
Lear Holdings S.r.L. de C.V. (50%) Lear Mexican Holdings, L.L.C.
Lear Inespo Comercial Industrial Ltda. Brazil 50.01% Lear Corporation
Lear JIT (Pty.) Ltd. South Africa 51% Lear Corporation Drahtfedern GmbH
Lear North West (Pty.) Ltd. South Africa 100% Lear Corporation
Lear Seating (Thailand) Corp., Ltd. Thailand 98% Lear Corporation
Lear Seating Private Limited India [49%] Ramco Investments Limited
Lear Sewing (Pty) Ltd. South Africa 51% Lear Corporation Drahtfedern GmbH
Lear Teknik Oto Yan Sanayi Limited Sirket Turkey 66.67% Lear Corporation
Lear UK Acquisition Limited UK 100% Lear Corporation UK Holdings Limited
Lear UK ISM Limited UK 100% Lear Corporation (UK) Limited
Lear Vijayjyot Seating Private Limited India 50% Ramco Investments Limited
LECA S.p. zo.o Poland 100% Lear Corporation
Markol Otomotiv Yan Sanayi VE Ticaret Turkey 35% Lear Corporation
A.S.
Masland (UK) Limited UK 100% Lear Corporation
Masland Industries of Canada Limited Canada 100% Lear Corporation
Mecanismos Auxiliarios Industriales, S.A. Spain 99.9% Lear Corporation Automotive Holdings
No-Sag Drahtfedern Spitzer & Co. KG Austria 62.5% Lear Corporation Drahtfedern GmbH
OOO Lear Russia 100% Lear Corporation Global Development,
Inc.
Pianfei Engineering S.r.L. Italy 100% Gruppo Pianfei S.r.L.
Pianfei Glass SA Spain 35% Gruppo Pianfei S.r.L.
Pianfei Ipa S.pA. Italy 100% Gruppo Pianfei S.r.L. (98%); Lear
Corporation Italia Holding S.r.L. (2%)
Pianfei Melti S.r.L. Italy 73% Lear Corporation Italia Holding S.r.L.
Pianfei Sicilia S.r.L. Italy 100% Gruppo Pianfei S.r.L.
Pianfei Sud S.r.L. Italy 100% Gruppo Pianfei S.r.L. (70%);
Pianfei Melfi S.r.L. (30%)
</TABLE>
<PAGE> 156
8
<TABLE>
<CAPTION>
Jurisdiction of
Name of Entity Incorporation Stock Ownership Record Holder
-------------- ------------- --------------- -------------
<S> <C> <C> <C>
Polovat Auto Sp.zo.o. Poland 100% Polovar Sp.z.o.o.
Polovat Sp.zo.o. Poland 100% Arbirario B.V.
Protos S.r.L. Italy 100% Lear Corporation Italia Holding S.r.L.
PRPI S.p.A. (in liquidation) Italy 85% Gruppo Pianfei S.r.L.(18%); Pianfei
Engineering S.r.L. (67%)
Rael Handels GmbH Austria 100% Lear Corporation Bereiligungs GmbH
Ramco Investments Limited Mauritius 100% Lear Corporation
Rolloplast Formsprutning AB Sweden 100% Lear Corporation Gnosjoplast AB
S.A.L.B.I. AB Sweden 50% Lear Corporation Sweden AB
Shanghai Lear Automobile Interior Trim China 35.75% Lear Corporation China Ltd.
Co., Ltd.
Shanghai Songjiang Lear Automotive China 35.75 Lear Corporation China Ltd.
Carpet & Accoustics Co. Ltd.
Siam UT Automotive Co., Ltd. Thailand 99.9976% Lear Corporation Automotive Holdings
Societe No Sag Francaise France 56% Lear Corporation France S.A.R.L.
Societe Offran-Villaise de Technologie, France 100% Lear Corporation France S.A.R.L.
S.A.
Sommer Masland (UK) Limited UK 50% Masland (UK) Limited
Spitzer GmbH Austria 62.5% Lear Corporation Drahtfedern GmbH
Stapur SA Argentina 5% Lear Corporation Automotive Holdings
Strapazzini Auto S.p.A. 100% Strapazini Resine S.r.L. (1%)
Strapazzini Resine S.r.L. (99%)
Strapazzini Resine S.R.L. Italy 100% Lear Corporation Italia Holding S.r.L.
SWECA Sp. z.o.o. Poland 100% Lear Corporation
United Technologies Automotive Argentina 100% Lear Corporation Automotive Holdings
(Argentina) S.A.
United Technologies Automotive (Europe) France 99.75% Lear Corporation Automotive Holdings
S.A.
United Technologies Automotive (France) France 100% Lear Corporation Automotive Holdings
S.A.R.L.
United Technologies Automotive Honduras 98% Lear Corporation Automotive Holdings
(Honduras) S.A.
United Technologies Automotive (Hungary) Hungary 100% Lear Corporation Automotive Holdings
Kft
United Technologies Automotive Philippines 99.9% Lear Corporation Automotive Holdings
(Philippines), Inc.
</TABLE>
<PAGE> 157
9
<TABLE>
<CAPTION>
Jurisdiction of
Name of Entity Incorporation Stock Ownership Record Holder
-------------- ------------- --------------- -------------
<S> <C> <C> <C>
United Technologies Automotive (Poland) Poland 75% Lear Corporation Automotive Holdings
Sp.zo.o.
United Technologies Automotive Mexico 99.9% Lear Corporation Automotive Holdings
Electrical Systems de Mexico, S.A. de
C.V.
United Technologies Gate Espana, S.A. Spain 99.992% Lear Corporation Automotive Holdings
UPM S.r.L. Italy 39% Gruppo Pianfei S.r.L.
UT Automotive (Netherlands) B.V. Netherlands 100% Lear Corporation Automotive Holdings
UT Automotive (Poland) Sp.zo.o. Poland 100% Lear Corporation Automotive Holdings
UT Automotive (Portugal) Components De Portugal 100% Lear Corporation Automotive Holdings
Automovies S.A.
UT Automotive Almussafes Services, S.A. Spain 99% Lear Corporation Automotive Holdings
UT Automotive Services Netherlands B.V. Netherlands 100% Lear Corporation Automotive Holdings
UT Automotive Tunisia S.A. Tunisia 99.98% Lear Corporation Automotive Holdings
UT Loewe Automotive Electronics GmbH Germany 100% Lear Corporation Automotive Holdings
UT Automotive Saerouns Service, GmbH Germany 100% Lear Corporation Automotive Holdings
Wuhan UTA-DCAC Auto Electric Company, China 75% Lear Corporation Automotive Holdings
Limited
P.T. Lear Corporation Indonesia 51% Lear Corporation
F.G. Microdesign Italy 70% Lear Corporation Automotive Holdings
</TABLE>
<PAGE> 158
1
SCHEDULE VII
HAZARDOUS MATERIAL
The Borrower has been identified as a potentially responsible
party under the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended ("Superfund") at the Organic Chemical site in
Grandville, MI, A-1 Disposal Site in Plainwell, MI, the Thermo-Chem site in
Muskegon, MI, the Sunrise landfill in Wayland Township, MI, and the Ostego
landfill in Michigan. In addition, the Borrower has received settlement offers
to resolve its responsibility at the PCB, Inc. site in Kansas City, KS and MO
($2500.00) and the ABC Barrel and Drum site in Detroit, MI ($8500.00). Although
liability at the sites has not been finalized, the Borrower believes that
expected liability is not material.
<PAGE> 159
1
SCHEDULE VIII
CONTRACTUAL OBLIGATION RESTRICTIONS
1. Indenture, dated February 1, 1994, between Lear Corporation, as Issuer
and the State Street Bank & Trust Company (as successor to the First
National Bank of Boston), as Trustee, relating to the Borrower's 8 1/4%
Subordinated Notes.
2. Indenture, dated July 1, 1996 between Lear Corporation, as Issuer, and
the Bank of New York, as Trustee, relating to the U.S. Borrower's
9 1/2% Subordinated Notes.
3. Loan Agreement between NS Beteiligungs GmbH and Industriekreditbank
AG-Deutsch Industriek.
4. Agreements and security instruments with respect to indebtedness
assumed in connection with the Acquisition and the Fiat Seat Business,
GSA, GSC, Delphi, Borealis, Masland Industries, Automotive Industries,
Keiper, Pianfei, Strapazzini, Dragui, Polovat and Ovatex acquisitions
and agreements governing indebtedness which refinance such
indebtedness.
5. Loan Agreement between Lear Corporation Canada Ltd. and the Province of
Ontario, Canada relating to indebtedness of up to $2,000,000
(Canadian).
6. Loan Agreement, dated January 27, 1993, between Lear Corporation Canada
Ltd. and the Province of Ontario, Canada.
7. Industrial Facilities Agreement governing indebtedness of ASAA
Technologies, Inc. to Cumberland Plateau Planning District Commission
and Cumberland Plateau Company.
8. Mortgage loan agreements governing indebtedness and ASAA Technologies,
Inc. to Associated Lender Lakeshore N.A.
9. Agreement governing working capital Indebtedness of Lear Seating
(Indonesia) Pty Ltd. and Lear Australia Pty Ltd.
10. Term Loan Agreement between Lear Corporation and Toronto Dominion
(Texas), Inc. (as amended).
11. Term Loan Agreement between Lear Corporation and Deutsche Bank AG New
York Branch and/or Cayman Islands Branch (as amended).
<PAGE> 160
1
<TABLE>
<CAPTION>
AGENTS
Invitation Agency
---------- ------
<S> <C>
The Chase Manhattan Bank Administrative Agent
Sole Book Manager and Sole Lead
Chase Securities Inc. Arranger
The Bank of Nova Scotia Managing Agent
NBD Bank Managing Agent
Bank of America NT & SA Managing Agent
The Bank of New York Co-Agent
The Bank of Tokyo-Mitsubishi Trust Company Managing Agent
Bankers Trust Company Managing Agent
Banque Nationale De Paris Lead Manager
Citicorp USA, Inc. Co-Syndication Agent
Comerica Bank Co-Agent
Credit Suisse First Boston Managing Agent
The Fuji Bank, Limited Co-Agent
The Industrial Bank of Japan, Limited Co-Agent
Morgan Stanley Senior Funding, Inc. Co-Syndication Agent
The Royal Bank of Scotland plc Co-Agent
</TABLE>
<PAGE> 161
<TABLE>
<CAPTION>
Invitation Agency
---------- ------
<S> <C>
Societe Generale Lead Manager
Suntrust Bank, Atlanta Lead Manager
Toronto Dominion (Texas), Inc. Documentation Agent
</TABLE>
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statements on Form S-3 (No. 333-43085 and 33-16341) and in the Registration
Statements on Form S-8 (No. 333-62647, 333-59467, 333-28419, 333-16413,
333-16415, 333-03383, 33-61739, 33-06209, 33-57237 and 33-55783) of Lear
Corporation of our report dated March 31, 1999 relating to the combined
financial statements of UT Automotive, Inc., which appears in the Current Report
on Form 8-K of Lear Corporation dated May 4, 1999.
PricewaterhouseCoopers LLP
Bloomfield Hills, Michigan
May 3, 1999
