<PAGE> 1
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
Quarterly Report Under Section 13 or 15(d) of the
Securities Exchange Act of 1934
For The Quarter Ended September 30, 1998
Commission File Number 0-19544
AUTOCAM CORPORATION
A Michigan Corporation
I.R.S. Employer Identification No. 38-2790152
4070 East Paris Avenue, Kentwood, Michigan 49512
Telephone: (616) 698-0707
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months, and (2) has been subject to such filing requirements
for the past 90 days.
Yes X No
----- -----
The number of Common Shares outstanding at November 6, 1998 was 6,107,763.
1 of 16
<PAGE> 2
INDEX
<TABLE>
<CAPTION>
PART I - FINANCIAL INFORMATION PAGE NO.
<S> <C>
Item 1. Financial Statements
Consolidated Balance Sheets as of September 30 and
June 30, 1998 4
Consolidated Statements of Operations and Comprehensive
Income for the Three Months Ended September 30, 1998
and 1997 5
Consolidated Statements of Cash Flows for the Three Months
Ended September 30, 1998 and 1997 6
Notes to Consolidated Financial Statements 7 - 10
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 11 - 15
PART II - OTHER INFORMATION
Item 1. Legal Proceedings - None.
Item 2. Changes in Securities - None.
Item 3. Default Upon Senior Securities - None.
Item 4. Submission of Matters to a Vote of Security Holders - The
following matters were submitted to a vote of the Company's common
shareholders at its annual shareholders meeting on October 28,
1998:
a. The following directors of the Company were elected to serve
until the meeting of shareholders in 2001 and until their
successors are elected (amounts shown in parentheses represent
the number of votes cast for, against or withheld, and
abstentions, respectively):
(i) Warren A. Veltman (5,875,678; 0; 4,482)
(ii) Robert L. Hooker (5,875,678; 0; 4,482)
</TABLE>
2
<PAGE> 3
INDEX - CONCLUDED
Item 4. Submission of Matters to a Vote of Security Holders - Concluded
The following directors of the Company continued as directors
until the annual meeting of shareholders in the year indicated
parenthetically and until their successors are elected:
David J. Wagner (1999)
Kim Korth (1999)
John C. Kennedy (2000)
Kenneth K. Rieth (2000)
Mark J. Bissell (2000)
b. A proposal to ratify the selection of Deloitte & Touche LLP as
independent auditors for the Company for the fiscal year
ending June 30, 1999. Shareholder votes were cast as follows:
5,872,266 for; 2,405 against or withheld; and, 5,489
abstentions. Based on this tabulation of votes, the proposal
was approved.
c. A proposal to adopt the Autocam Corporation 1998 Key Employee
Stock Option Plan (the "Plan"). Shareholder votes were cast as
follows: 5,813,921 for; 40,664 against or withheld; and,
11,064 abstentions. Based on this tabulation of votes, the
proposal was approved.
Item 5. Other Information - None.
Item 6. Exhibits and Reports on Form 8-K:
Exhibit 10.1 -- Amended and Restated Revolving Credit and Term
Note Agreement, dated October 1, 1998, between Comerica Bank, as
agent, and the Registrant.
Report on Form 8-K -- The Company filed a Report on Form 8-K,
dated October 2, 1998, to report the acquisition of the rights to
all the outstanding common shares of Compagnie Financiere du Leman
SA, a French holding corporation, which owns all of the equity
interest of Frank & Pignard SA, a French corporation, required
under Item 2 of Form 8-K.
3
<PAGE> 4
AUTOCAM CORPORATION
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
SEPTEMBER 30, 1998
(UNAUDITED) JUNE 30, 1998
----------- ---------------
<S> <C> <C>
ASSETS
CURRENT ASSETS:
Cash $ 1,334,145 $ 1,643,539
Accounts receivable 12,911,443 11,679,824
Inventories 6,875,841 6,389,448
Prepaid expenses and other current assets 1,517,206 1,088,543
-------------- -------------
TOTAL CURRENT ASSETS 22,638,635 20,801,354
PROPERTY, PLANT AND EQUIPMENT, NET 66,788,944 64,421,470
RESTRICTED CASH AND EQUIVALENTS 4,240,355 5,007,524
GOODWILL AND OTHER INTANGIBLE ASSETS, NET 13,894,107 14,365,729
OTHER LONG-TERM ASSETS 9,807,186 8,853,294
-------------- -------------
TOTAL ASSETS $ 117,369,227 $ 113,449,371
============== =============
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES:
Current maturities of long-term obligations 894,349 $ 6,553,588
Accounts payable 7,402,055 7,830,564
Accrued liabilities:
Salaries and bonuses 2,436,994 1,955,741
Other 1,132,633 1,335,454
------------- -------------
TOTAL CURRENT LIABILITIES 11,866,031 17,675,347
LONG-TERM OBLIGATIONS, NET OF CURRENT MATURITIES 46,752,232 37,850,874
DEFERRED TAXES 10,798,934 10,051,018
DEFERRED CREDITS AND OTHER 506,467 561,288
MINORITY INTEREST 2,520,197 2,249,935
SHAREHOLDERS' EQUITY:
Preferred stock - 200,000 shares authorized; no shares
issued or outstanding
Common stock - 10,000,000 shares authorized;
6,106,680 and 6,102,568 shares issued and
outstanding as of September 30 and June 30, 1998,
respectively
31,874,699 31,840,086
Deferred compensation (452,083) (490,833)
Accumulated comprehensive income, including related
tax benefits (294,256) (33,896)
Retained earnings 13,797,006 13,745,552
------------- -------------
TOTAL SHAREHOLDERS' EQUITY 44,925,366 45,060,909
------------- -------------
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY $ 117,369,227 $ 113,449,371
============= =============
</TABLE>
See notes to consolidated financial statements.
4
<PAGE> 5
AUTOCAM CORPORATION
CONSOLIDATED STATEMENTS OF OPERATIONS AND
COMPREHENSIVE INCOME
(unaudited)
<TABLE>
<CAPTION>
FOR THE THREE MONTHS ENDED
SEPTEMBER 30,
-----------------------------------------------
1998 1997
---- ----
<S> <C> <C>
Sales $ 24,019,951 $ 17,429,456
Cost of sales 20,579,418 14,015,745
----------------- -----------------
Gross profit 3,440,533 3,413,711
Selling, general and administrative 1,741,857 1,000,698
Other operating expenses 51,875 51,875
----------------- -----------------
Income from operations 1,646,801 2,361,138
Interest and other expense, net 790,146 607,815
Minority interest in net income 152,691
----------------- -----------------
Income before tax provision 703,964 1,753,323
Tax provision 526,284 617,800
----------------- -----------------
NET INCOME $ 177,680 $ 1,135,523
================= =================
BASIC NET INCOME PER SHARE $ .03 $ .19
================= =================
DILUTED NET INCOME PER SHARE $ .03 $ .19
================= =================
Basic weighted average shares outstanding 6,105,224 6,007,107
Diluted weighted average shares outstanding 6,296,243 6,109,613
Dividends declared per share $ .02 $ .02
STATEMENTS OF COMPREHENSIVE INCOME:
Net income $ 177,680 $ 1,135,523
Other comprehensive income, before tax:
Foreign currency translation adjustments (260,360)
Tax benefit 91,126
----------------- -----------------
Other comprehensive income, net (169,234)
-----------------
COMPREHENSIVE INCOME $ 8,446 $ 1,135,523
================= =================
</TABLE>
See notes to consolidated financial statements.
5
<PAGE> 6
AUTOCAM CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
(unaudited)
<TABLE>
<CAPTION>
FOR THE THREE MONTHS ENDED
SEPTEMBER 30,
----------------------------------------
1998 1997
---- ----
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income $ 177,680 $ 1,135,523
Adjustments to reconcile net income to net cash provided by
operating activities:
Depreciation and amortization 2,077,820 1,752,058
Deferred taxes 747,916 300,000
Minority interest in net income and other, net 142,322
Changes in assets and liabilities that provided (used) cash:
Accounts receivable (1,252,315) 715,188
Inventories (504,672) 47,757
Prepaid expenses and other current assets (448,578) (235,553)
Other long-term assets (64,946) 141,697
Accounts payable 687,475 454,752
Accrued liabilities 300,982 111,878
Deferred credits and other 62,750 (117,510)
-------------- -----------
NET CASH PROVIDED BY OPERATING ACTIVITIES 1,926,434 4,305,790
-------------- -----------
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures and deposits on equipment (5,632,615) (3,668,825)
Proceeds from sale of equipment 15,500 45,000
Acquisition costs (344,324)
Payment of life insurance premiums and other (192,859) (147,613)
-------------- -----------
NET CASH USED IN INVESTING ACTIVITIES (6,154,298) (3,771,438)
-------------- -----------
CASH FLOWS FROM FINANCING ACTIVITIES:
Borrowings under (repayments on) lines of credit, net 4,967,576 (1,525,000)
Proceeds from issuance of long-term obligations 25,200 625,000
Principal payments of long-term obligations (1,750,657) (1,670,071)
Decrease in restricted cash and equivalents 767,169
Cash dividends paid (122,093) (114,289)
Proceeds from exercise of employee stock options 34,613 126,405
-------------- -----------
NET CASH PROVIDED BY (USED IN) FINANCING ACTIVITIES 3,921,808 (2,557,955)
-------------- -----------
EFFECT OF EXCHANGE RATE CHANGES ON CASH (3,338)
-------------- -----------
Net decrease in cash (309,394) (2,023,603)
Cash at beginning of period 1,643,539 2,510,500
-------------- -----------
Cash at end of period $ 1,334,145 $ 486,897
============== ===========
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
Cash paid during the period for:
Interest $ 883,219 $ 552,326
Income taxes 135,403 18,750
Cash received during the period for income taxes 300,000
</TABLE>
See notes to consolidated financial statements.
6
<PAGE> 7
AUTOCAM CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
SEPTEMBER 30, 1998
1. BASIS OF PRESENTATION
The accompanying unaudited interim consolidated financial statements (the
"Financial Statements") of Autocam Corporation and its subsidiaries (together,
the "Company") have been prepared pursuant to the rules and regulations of the
Securities and Exchange Commission. Accordingly, the Financial Statements do not
include all the information and footnotes normally included in the annual
consolidated financial statements prepared in accordance with generally accepted
accounting principles. All significant intercompany accounts and transactions
have been eliminated in consolidation.
In the opinion of management, the Financial Statements reflect all adjustments
(consisting only of normal recurring adjustments) necessary to present fairly
such information in accordance with generally accepted accounting principles.
These Financial Statements should be read in conjunction with the financial
statements and footnotes thereto included in the Company's Annual Report on Form
10-K for the fiscal year ended June 30, 1998.
Weighted average shares outstanding and earnings per share for the three months
ended September 30, 1997 have been restated to give effect to a 5% share
dividend declared on October 21, 1997 and paid on November 17, 1997 to
shareholders of record on November 3, 1997.
RECLASSIFICATIONS - Certain reclassifications have been made to the Balance
Sheet as of June 30, 1998 in order to conform to the September 30, 1998
presentation.
2. INVENTORIES
Inventories consist of the following:
<TABLE>
<CAPTION>
SEPTEMBER 30, 1998
(UNAUDITED) JUNE 30, 1998
----------- -------------
<S> <C> <C>
Raw materials $1,615,562 $1,510,100
Production supplies 1,328,419 1,249,170
Work in-process 2,750,530 2,501,324
Finished goods 1,181,330 1,128,854
---------- -----------
TOTAL INVENTORIES $6,875,841 $6,389,448
========== ==========
</TABLE>
7
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AUTOCAM CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
SEPTEMBER 30, 1998
3. PROPERTY, PLANT AND EQUIPMENT, NET
Property, plant and equipment consists of the following:
<TABLE>
<CAPTION>
SEPTEMBER 30, 1998
(UNAUDITED) JUNE 30, 1998
----------- --------------
<S> <C> <C>
Land and improvements $ 1,904,054 $ 1,768,504
Buildings and improvements 9,573,601 6,814,988
Leasehold improvements 472,560 417,866
Machinery and equipment 75,649,140 73,222,104
Furniture and fixtures 4,324,911 3,931,500
Construction in progress 21,329 2,451,441
-------------- ------------
TOTAL 91,945,595 88,606,403
Accumulated depreciation and amortization (25,156,651) (24,184,933)
-------------- ------------
PROPERTY, PLANT AND EQUIPMENT, NET $ 66,788,944 $ 64,421,470
============== ============
4. LONG-TERM OBLIGATIONS
Long-term obligations consist of the following (interest rates are as of
September 30, 1998):
SEPTEMBER 30, 1998
(UNAUDITED) JUNE 30, 1998
----------- --------------
Term notes with banks, 6.4% to 9.25% $ 20,490,035 $ 22,051,244
Note payable to Propart Corporation, 12% 4,173,187 4,320,187
Industrial Revenue Bonds, 4.05% 9,000,000 9,000,000
Mortgage payable to bank, 9.35% 922,329 946,697
Second mortgage payable to bank, 7% 937,837 948,035
Revolving credit note with bank, 7.75% 9,543,685 7,000,800
Equipment credit note with bank, 7.75% 2,040,000
Other 539,508 137,499
-------------- -------------
TOTAL 47,646,581 44,404,462
Current maturities (894,349) (6,553,588)
-------------- ------------
LONG-TERM $ 46,752,232 $ 37,850,874
============== ============
</TABLE>
8
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AUTOCAM CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONTINUED
SEPTEMBER 30, 1998
4. LONG-TERM OBLIGATIONS - CONCLUDED
On October 1, 1998, in connection with the acquisition of Frank & Pignard, SA
("F&P"; see Note 6), the Company entered into an Amended and Restated Revolving
Credit and Term Note Agreement (the "Agreement") with its primary lending
institution, as agent. The Agreement includes a $70 million five-year revolving
credit facility, a $50 million five-year acquisition term note and a $20 million
six-year term note (see Note 6). In connection therewith, all of the Company's
existing bank debt was refinanced using the $70 million revolving credit
facility. There are no principal obligations due under the Agreement for more
than one year. Interest is due monthly on all facilities under the Agreement at
variable interest rates.
5. INCOME TAXES
Income taxes as a percentage of income before tax provision and minority
interest were 61.4% and 35.2% for the three months ended September 30, 1998 and
1997, respectively. The effective tax rate for the quarter ended September 30,
1998 exceeded the statutory rate due primarily to the recognition of $265,000 in
Federal income tax expense caused by the dissolution of the Company's
interest-charge Domestic International Sales Corporation. The September 30, 1998
amount includes a provision for Brazilian Federal income taxes. Both amounts
include provisions for South Carolina State income and California Unitary taxes.
6. SUBSEQUENT EVENT
Effective October 1, 1998, the Company, through its wholly-owned subsidiary,
Autocam France SARL ("AF"), acquired the rights to all the outstanding common
shares of Compagnie Financiere du Leman SA ("CFL"), which owns all of the equity
interest of F&P, for 300 million French Francs ("FF"). The Company has agreed to
pay a maximum additional amount of FF60 million based upon the ability of F&P to
meet certain predetermined operating performance goals in calendar 1999. F&P is
a leading supplier of precision-machined metal components primarily to customers
located in France and engaged in the business of producing power steering,
diesel fuel injection and braking systems for the transportation industry. This
acquistion was reported on Form 8-K, dated October 2, 1998.
The acquisition will be accounted for as a purchase, and accordingly, the
purchase price will be allocated to assets acquired and liabilities assumed
based upon their relative fair market values. Cost in excess of the fair value
of the net assets acquired (goodwill), if any, has not been determined.
9
<PAGE> 10
AUTOCAM CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - CONCLUDED
SEPTEMBER 30, 1998
7. STOCK-BASED COMPENSATION
The Company has reserved 787,500 common shares for issuance to employees under
the 1991 Incentive Stock Option Plan (the "Plan"). Options are not exercisable
prior to twelve months from or ten years after the grant date. Options granted
vest at a rate of twenty percent annually over a five-year period. Had the
Company accounted for the Plan based on the fair value of awards at the grant
dates as prescribed by Statement of Financial Accounting Standard No. 123 ("SFAS
123"), "Accounting for Stock-Based Compensation," the Company's net income and
net income per share would have been decreased as indicated below.
<TABLE>
<CAPTION>
THREE MONTHS ENDED
SEPTEMBER 30,
-----------------------------------------------
1998 1997
---- ----
<S> <C> <C>
Net income:
As reported $177,680 $1,135,523
Pro forma 123,098 1,061,125
Basic net income per share:
As reported $ .03 $ .19
Pro forma .02 .18
Diluted net income per share:
As reported $ .03 $ .19
Pro forma .02 .17
</TABLE>
The effects of applying SFAS 123 on a pro forma basis may not be representative
of the effects on reported pro forma net income for future periods as the
estimated compensation costs reflect only options vesting after June 30, 1995.
Under the methodology of SFAS 123, the fair value of the Company's fixed stock
options was estimated at the date of grant using the Black-Scholes
option-pricing model. The multiple option approach was used, with the following
weighted-average assumptions: dividend yield, .62%; expected volatility, 45.08%;
risk-free interest rate, 4%; and, expected life of options, 10 years.
10
<PAGE> 11
AUTOCAM CORPORATION
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
SEPTEMBER 30, 1998
This Quarterly Report on Form 10-Q contains forward-looking statements as
defined by the Private Securities Litigation Reform Act of 1995. Forward-looking
statements should be read with the cautionary statements and important factors
included herein. Forward-looking statements include statements concerning plans,
objectives, goals, strategies, future events or performance and underlying
assumptions and other statements, which are other than statements of historical
facts. Such forward-looking statements may be identified, without limitation, by
the use of the words "anticipates," "estimates," "expects," "intends," "plans,"
"predicts," "projects," and other similar expressions. The Company's
expectations, beliefs and projections are expressed in good faith and are
believed by the Company to have a reasonable basis, including without
limitation, management's examination of historical operating trends, data
contained in the Company's records and other data available from third parties,
but there can be no assurance that management's expectations, beliefs or
projections will result or be achieved or accomplished.
RESULTS OF OPERATIONS
The following table presents, for the periods indicated, the components of the
Company's Consolidated Statements of Operations as a percentage of sales:
<TABLE>
<CAPTION>
THREE MONTHS ENDED
SEPTEMBER 30,
-----------------------------------------------
1998 1997
---- ----
<S> <C> <C>
Sales 100.0% 100.0%
Cost of sales 85.7% 80.5%
------ -----
Gross profit 14.3% 19.5%
Selling, general and administrative 7.3% 5.7%
Other operating expenses .2% .3%
------ -----
Income from operations 6.8% 13.5%
Interest and other expense, net 3.3% 3.5%
Minority interest in net income .6%
------
Income before tax provision 2.9% 10.0%
Tax provision 2.2% 3.5%
------ ------
NET INCOME .7% 6.5%
====== ======
</TABLE>
11
<PAGE> 12
AUTOCAM CORPORATION
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS - CONTINUED
SEPTEMBER 30, 1998
SALES
The following table indicates the Company's sales (in thousands) and percentage
of total sales by product application for the three-month periods ended
September 30, 1998 and 1997:
<TABLE>
<CAPTION>
FOR THE THREE MONTHS ENDED SEPTEMBER 30,
-------------------------------------------------------------------
1998 1997
---- ----
<S> <C> <C> <C> <C>
Transportation:
Fuel systems $15,817 65.8% $10,172 58.4%
Braking systems 4,037 16.8 4,043 23.2
Other 1,146 4.8 427 2.4
--------- ----- --------- -----
Total transportation 21,000 87.4 14,642 84.0
Medical devices 2,468 10.3 1,870 10.7
Computer electronics 10 670 3.9
Other 542 2.3 247 1.4
</TABLE>
Sales of components for fuel system applications were $15,817,000 for the three
months ended September 30, 1998, an increase of 55% from sales of the same
period in the prior year. The Company gained market share through the sale of
$3,090,000 of diesel fuel injection components by acquiring a controlling
interest in Qualipart Industria E Comercio, Ltda. ("Qualipart"), subsequently
renamed, Autocam do Brasil Usinagem, Ltda. ("Autocam do Brasil") in January
1998. Additionally, one of the Company's largest fuel systems customers embarked
on a new fuel injector program subsequent to the first quarter of fiscal 1998
and two others increased demand for components for their new injector programs
during the first quarter of fiscal 1999 relative to the same period in fiscal
1998. Together, these positive factors added $2,408,000 in sales, which more
than offset the negative sales impact associated with the loss of sales of
mature product caused by the July and August 1998 strikes at General Motors
Corporation.
Sales of components for other transportation applications for the three months
ended September 30, 1998 were $1,146,000, an increase of $719,000 from the first
quarter of fiscal 1998. This increase can be attributed entirely to the
acquisition of Autocam do Brasil, which supplies components to several customers
for use in electronic transmissions and motors for automobile applications.
Sales of medical device components were $2,468,000 for the three months ended
September 30, 1998, an increase of 32% as compared to the same period in the
prior year. Sales of coronary stents increased $505,000 when comparing the first
quarter of fiscal 1999 to the same period in fiscal 1998. The Company expanded
its customer base and now supplies coronary stents to three customers, one of
which is now subject to a three-year supply agreement.
12
<PAGE> 13
AUTOCAM CORPORATION
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS - CONTINUED
SEPTEMBER 30, 1998
SALES - CONCLUDED
Sales of components for computer electronic applications declined $660,000 from
the first quarter of fiscal 1998 to the first quarter of fiscal 1999. During the
three months ended September 30, 1997, the Company produced and sold key
components used in computer microprocessor subassemblies and specialty metal
fasteners used in the manufacture of suspension assemblies for rigid disk
drives. The Company had virtually no sales to this industry during the quarter
ended September 30, 1998 as short product life cycles eliminated these
components.
Effective October 1, 1998, the Company, through its wholly-owned subsidiary,
Autocam France SARL, acquired the rights to all the outstanding common shares of
Compagnie Financiere du Leman SA, which owns all of the equity interest of Frank
& Pignard SA ("F&P"). F&P is a leading supplier of precision-machined metal
components primarily to customers located in France and engaged in the business
of producing power steering, diesel fuel injection and braking systems for the
transportation industry. F&P is expected to add $60 million in sales over the
nine months ending June 30, 1999. Also, the Company expects to see continued
expansion of fuel system component sales as new injector programs move toward
full production during the next nine months, and it reports a full year of sales
from its Brazilian operations.
GROSS PROFIT
Gross profit for the three months ended September 30, 1998 and 1997 represented
14.3% and 19.5% of sales, respectively. The Company was negatively impacted by
labor work stoppages at the Company's largest fuel system customer's facilities.
Direct and indirect sales to that customer were lower than expected, and the
Company's ability to reduce costs, particularly labor, was largely dictated by
the West Michigan market for skilled machinists. With an area unemployment rate
of 2-3%, management concluded that laying off quality machinists in answer to a
short-term demand decline would adversely affect the Company's ability to attain
future growth objectives if it were unable to retain its skilled labor base.
The Company also experienced manufacturing difficulties resulting from the
transfer of production for a key customer of its Brazilian operation to one of
its U.S. facilities. The customer expedited the timetable for this transfer of
production, which caused the Company to incur significantly more start-up costs
than originally anticipated.
Management expects that gross profit, as a percentage of sales, for the
remainder of the fiscal year should rise to levels slightly below those reported
for fiscal 1998. This improvement over first quarter levels is expected to be
generated by growth in demand for new fuel systems program components thereby
allowing for improved labor and equipment utilization typically gained through
continuous improvement activities. Also, management anticipates a modest
increase in demand for coronary stents that carry gross profit margins generally
higher than those typically experienced by the sale of components to the
transportation industry.
13
<PAGE> 14
AUTOCAM CORPORATION
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS - CONTINUED
SEPTEMBER 30, 1998
SELLING, GENERAL AND ADMINISTRATIVE
Selling, general and administrative expenses, as a percentage of sales, were
7.3% and 5.7% during the three months ended September 30, 1998 and 1997,
respectively. These expenses increased monetarily and as a percentage of sales
due to the Autocam do Brasil acquisition. Such operations typically generate
selling, general and administrative expenses in the range of 11.5%. Management
expects that selling, general and administrative expenses, as a percentage of
sales, will increase from current levels over the remainder of fiscal 1999 as
F&P's historical expense levels, as a percentage of sales, of 10.5% are higher
than those experienced by the Company.
OTHER OPERATING EXPENSES
Other operating expenses represent the straight-line amortization of employment
and deferred compensation agreements between the Company and a key employee.
INTEREST AND OTHER EXPENSE, NET
Net interest and other expense for the three months ended September 30, 1998
increased $182,300 from the same period in the previous year. This increase is
due primarily to an increase in average borrowings outstanding during the
quarter ended September 30, 1998 caused by the acquisition of Autocam do Brasil.
Management anticipates that interest expense, as a percentage of sales, over the
next nine months will approximate $2.6 million each quarter. The increase in
expense can be attributed to the increase in bank borrowings as a result of the
F&P acquisition.
MINORITY INTEREST IN NET INCOME
The amount reported in this line represents the minority shareholder's interest
in the net earnings of Autocam do Brasil.
TAX PROVISION
Income taxes as a percentage of income before tax provision and minority
interest were 61.4% and 35.2% for the three months ended September 30, 1998 and
1997, respectively. The effective tax rate for the quarter ended September 30,
1998 exceeded the statutory rate due primarily to the recognition of $265,000 in
Federal income tax expense caused by the dissolution of the Company's
interest-charge Domestic International Sales Corporation to be replaced with a
Foreign Sales Corporation. The September 30, 1998 amount includes provisions for
Brazilian Federal and South Carolina State income taxes. Both amounts include
provisions for California Unitary taxes.
14
<PAGE> 15
AUTOCAM CORPORATION
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS - CONCLUDED
SEPTEMBER 30, 1998
TAX PROVISION - CONCLUDED
Management expects the Company's effective tax rate to approximate 38% for the
remainder of fiscal 1999. The increase over historical levels can be primarily
attributed to the fact that F&P's incremental income tax rate is 41%.
LIQUIDITY AND CAPITAL RESOURCES
New equipment placed into service and deposits paid on future equipment
purchases during the quarter ended September 30, 1998 totaling $5.6 million were
financed primarily through operating cash flows and borrowings under its
revolving line of credit.
In order to meet demand primarily from transportation customers, management will
purchase $22.7 million of equipment over the next nine months (on which deposits
of $3.6 million had been placed as of September 30, 1998). Management expects to
finance these purchases with cash on hand, restricted cash and equivalents,
operating cash flows, operating leases and bank borrowings under its new credit
facility. Additionally, certain of the aforementioned capital expediture
requirements will be required by the Company's Brazilian operations.
Approximately $4 million of this investment is expected to be financed through
capital contributions by Autocam do Brasil's minority shareholder.
Management believes that the Company has adequate credit facilities and cash
available to meet its working capital needs through fiscal 1999. On October 1,
1998, the Company entered into an Amended and Restated Revolving Credit and Term
Note Agreement (the "Agreement") with its primary lending institution, as agent.
The Agreement includes a $70 million five-year revolving credit facility, a $50
million five-year acquisition term note and a $20 million six-year term note. In
connection therewith, all of the Company's existing bank debt was refinanced
using the $70 million revolving credit facility. The Company has $34.6 million
in borrowing availability under the revolving credit facility as of October 2,
1998. There are no principal obligations due under the revolving credit facility
for more than one year. Principal obligations under the acquisition term note
are as follows: Year 1 - $0; Years 2 and 5 - $10 million; and, Years 3 and 4 -
$15 million. Principal obligations under the term note are as follows: Years 1
to 4 - $0; Year 5 - $5 million; and, Year 6 - $10 million. Interest is due
monthly on all facilities under the Agreement at variable interest rates.
15
<PAGE> 16
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Date: November 13, 1998
Autocam Corporation
/s/ John C. Kennedy
-------------------
John C. Kennedy
Principal Executive Officer
/s/ Warren A. Veltman
---------------------
Warren A. Veltman
Principal Financial and
Accounting Officer
16
<PAGE> 17
Index to Exhibits
<TABLE>
<CAPTION>
Exhibit No. Item
- ----------- ----
<S> <C>
10.1 Amended and Restated Revolving Credit and Term Note Agreement, dated October 1,
1998, between Comerica Bank, as agent, and the Registrant.
27 Financial Data Schedule
</TABLE>
<PAGE> 1
EXHIBIT 10.1
============
EXECUTION COPY
AUTOCAM CORPORATION
AMENDED AND RESTATED REVOLVING CREDIT
AND TERM LOAN AGREEMENT
DATED AS OF OCTOBER 1, 1998
COMERICA BANK, AS AGENT
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C> <C>
1. DEFINITIONS 1
2. REVOLVING CREDIT 27
2.1 Commitment 27
2.2 Accrual of Interest and Maturity; Evidence of Indebtedness. 28
2.3 Requests for and Refundings and Conversions of Advances. 29
2.4 Disbursement of Advances. 31
2.5 Swing Line Advances. (a) 34
2.6 Prime-based Interest Payments. 39
2.7 Eurocurrency-based Interest Payments and Quoted Rate Interest Payments. 39
2.8 Interest Payments on Conversions. 40
2.9 Interest on Default. 40
2.10 Prepayment of Revolving Credit Advances. 40
2.11 Determination, Denomination and Redenomination of Alternative Currency Advances 41
2.12 Prime-based Advance in Absence of Election or Upon Default. 42
2.13 Revolving Credit Facility Fee. 42
2.14 Currency Appreciation; Mandatory Reduction of Indebtedness. 42
2.15 Optional Reduction or Termination of Revolving Credit Aggregate Commitment 45
2.16 Extension of Revolving Credit Maturity Date. 45
2.17 Application of Advances 46
3. LETTERS OF CREDIT 46
3.1 Letters of Credit 46
3.2 Conditions to Issuance 47
3.3 Notice 49
3.4 Letter of Credit Fees 49
3.5 Other Fees 50
3.6 Drawings and Demands for Payment Under Letters of Credit 50
3.7 Obligations Irrevocable 52
3.8 Risk Under Letters of Credit 53
3.9 Indemnification 54
3.10 Right of Reimbursement 55
3.11 Existing Letter of Credit 55
4. TERM LOANS 56
4.1 Term Loans 56
4.2 Accrual of Interest and Maturity; Evidence of Indebtedness 56
4.3 Repayment of Principal 57
4.4 Term Loan Rate Requests; Refundings and Conversions of Advances of Term Loans 58
4.5 Failure to Refund or Convert 60
4.6 Prime-based Interest Payments 60
4.7 Eurocurrency-based Interest Payments 60
4.8 Interest Payments on Conversions 61
4.9 Prime-based Rate Applicability and Interest Payments on Term Loan A or Term
Loan B 61
4.10 Interest on Default 61
4.11 Unavailability of French Francs 61
4.12 Reconversion to Advance carried in French Francs on Re-availability 61
</TABLE>
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<TABLE>
<S> <C> <C>
4.13 Repayment or Reconversion 62
4.14 Optional Prepayment of Term Loans 62
4.15 Mandatory Prepayment of Term Loans 62
5. MARGIN ADJUSTMENTS 64
5.1 Margin Adjustments 64
6. CONDITIONS 64
6.1 Execution of Notes and this Agreement 64
6.2 Corporate Authority 64
6.3 Collateral Documents 65
6.4 F&P Acquisition Documents 65
6.5 Insurance 66
6.6 Compliance with Certain Documents and Agreements 66
6.7 Opinion of Counsel 66
6.8 Borrowers' Certificate 66
6.9 Payment of Fees 66
6.10 Pro Forma Balance Sheet and Projections 67
6.11 Existing Credit Facilities 67
6.12 Lessors' Acknowledgments 67
6.13 Financial Statements 67
6.14 Continuing Conditions 67
7. REPRESENTATIONS AND WARRANTIES 67
7.1 Corporate Authority 68
7.2 Due Authorization - Borrowers 68
7.3 Due Authorization - Guarantors 68
7.4 Liens 68
7.5 Taxes 68
7.6 No Defaults 69
7.7 Enforceability of Agreement and Loan Documents -- Borrowers 69
7.8 Enforceability of Loan Documents -- Guarantors 69
7.9 Compliance with Laws 69
7.10 Non-contravention -- Borrowers 70
7.11 Non-contravention -- Guarantors 70
7.12 No Litigation 70
7.13 Consents, Approvals and Filings, Etc. 70
7.14 Agreements Affecting Financial Condition 71
7.15 No Investment Company or Margin Stock 71
7.16 ERISA 71
7.17 Conditions Affecting Business or Properties 71
7.18 Environmental and Safety Matters 72
7.19 Subsidiaries 72
7.20 Accuracy of Information 72
7.21 Financial Statements - F&P. 73
7.22 Labor Relations 73
7.23 Existing Funded Debt 73
7.24 Solvency 73
7.25 Capitalization 74
7.26 Limitation on Representations 74
7.27 Year 2000 Requirement 74
</TABLE>
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<TABLE>
<S> <C> <C>
8. AFFIRMATIVE COVENANTS 75
8.1 Financial Statements 75
8.2 Certificates; Other Information 75
8.3 Payment of Obligations 76
8.4 Conduct of Business and Maintenance of Existence 76
8.5 Maintenance of Property; Insurance 76
8.6 Inspection of Property; Books and Records, Discussions 76
8.7 Notices 77
8.8 Hazardous Material Laws 78
8.9 Consolidated Fixed Charge Coverage Ratio 78
8.10 Minimum Adjusted Consolidated Tangible Net Worth 78
8.11 (a) Maintain Consolidated Leverage Ratio 79
(b) Maintain Total Debt to EBITDA Ratio 79
8.12 Maintain Total Debt to Capitalization 79
8.13 Taxes 79
8.14 Governmental and Other Approvals 80
8.15 Compliance with ERISA 80
8.16 ERISA Notices 80
8.17 Security 80
8.18 Defense of Collateral 80
8.19 Use of Proceeds 81
8.20 Future Subsidiaries; Additional Collateral. 81
8.21 Further Assurances 82
8.22 French Merger 82
8.23 Release of Seller Pledge 82
8.24 Prepayment of F&P Debt 82
9. NEGATIVE COVENANTS 82
9.1 Limitation on Funded Debt 82
9.2 Limitation on Liens 83
9.3 Limitation on Guarantee Obligations 84
9.4 Acquisitions 84
9.5 Limitation on Mergers, or Sale of Assets 84
9.6 Restricted Payments 85
9.7 Limitation on Capital Expenditures 85
9.8 Limitation on Investments, Loans and Advances 85
9.9 Transactions with Affiliates 86
9.10 Sale and Leaseback 86
9.11 Limitation on Negative Pledge Clauses 86
9.12 Prepayment of Debts 86
10. DEFAULTS 87
10.1 Events of Default 87
10.2 Exercise of Remedies 90
10.3 Rights Cumulative 90
10.4 Waiver by Borrowers of Certain Laws 90
10.5 Waiver of Defaults 91
10.6 Set Off 91
11. PAYMENTS, RECOVERIES AND COLLECTIONS 91
11.1 Payment Procedure 91
11.2 Application of Proceeds of Collateral 93
</TABLE>
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<TABLE>
<S> <C> <C>
11.3 Pro-rata Recovery 93
12. CHANGES IN LAW OR CIRCUMSTANCES; INCREASED COSTS 93
12.1 Reimbursement of Prepayment Costs 93
12.2 Eurocurrency Lending Office 94
12.3 Availability of Alternative Currency 94
12.4 Refunding Advances in Same Currency 95
12.5 Circumstances Affecting Eurocurrency-based Rate Availability 95
12.6 Laws Affecting Eurocurrency-based Advance Availability 95
12.7 Increased Cost of Eurocurrency-based Advances 96
12.8 Judgment Currency 97
12.9 Capital Adequacy and Other Increased Costs 97
12.10 Substitution of Banks 98
13. AGENT 99
13.1 Appointment of Agent 99
13.2 Deposit Account with Agent 99
13.3 Scope of Agent's Duties 99
13.4 Successor Agent 100
13.5 Agent in its Individual Capacity 100
13.6 Credit Decisions 100
13.7 Authority of Agent to Enforce Notes and This Agreement 101
13.8 Indemnification 101
13.9 Knowledge of Default 101
13.10 Agent's Authorization; Action by Banks 102
13.11 Enforcement Actions by the Agent 102
14. MISCELLANEOUS 102
14.1 Accounting Principles 102
14.2 Consent to Jurisdiction 102
14.3 Law of Michigan 103
14.4 Interest 103
14.5 Closing Costs and Other Costs; Indemnification 103
14.6 Notices 104
14.7 Further Action 105
14.8 Successors and Assigns; Participations; Assignments 105
14.9 Indulgence 108
14.10 Counterparts 108
14.11 Amendment and Waiver 108
14.12 Confidentiality 109
14.13 Withholding Taxes 110
14.14 Taxes and Fees 110
14.15 WAIVER OF JURY TRIAL 111
14.16 Complete Agreement; Conflicts 111
14.17 Severability 111
14.18 Table of Contents and Headings 111
14.19 Construction of Certain Provisions 111
14.20 Independence of Covenants 111
14.21 Reliance on and Survival of Various Provisions 112
14.22 Autocam to Act For Other Borrowers 112
14.23 Unification of Certain Currencies 112
14.24 Complete Agreement; Amendment and Restatement 112
</TABLE>
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SCHEDULES
<TABLE>
<S> <C>
Schedule 1.1 Pricing Matrix
Schedule 1.2 Percentages and Allocations
Schedule 1.3 Permitted Borrower Sublimits
Schedule 6.2 List of Jurisdictions in which Company and/or Subsidiaries do
business
Schedule 6.3 List of Jurisdictions in which to file financing statements
Schedule 6.12 Leased Property
Schedule 7.9 Compliance with Laws
Schedule 7.12 Litigation
Schedule 7.16 Employee Pension Benefit Plans
Schedule 7.18 Environmental Matters
Schedule 7.19 Subsidiaries
Schedule 7.20 Contingent Obligations
Schedule 7.23 Existing Funded Debt
Schedule 7.25 Capitalization
Schedule 9.1 Existing Funded Debt
Schedule 9.2 Permitted Liens
Schedule 9.3 Existing Guaranties
Schedule 9.8 Existing Investments
Schedule 14.6 Notices
</TABLE>
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EXHIBITS
A FORM OF REQUEST FOR REVOLVING CREDIT ADVANCE
B FORM OF REVOLVING CREDIT NOTE
C FORM OF SWING LINE NOTE
D FORM OF REQUEST FOR SWING LINE ADVANCE
E FORM OF SWING LINE BANK PARTICIPATION CERTIFICATE
F FORM OF NOTICE OF LETTERS OF CREDIT
G-1 FORM OF TERM NOTE-A
G-2 FORM OF TERM NOTE-B
H FORM OF PERMITTED BORROWER ADDENDUM
I FORM OF ASSIGNMENT AGREEMENT
J-1 FORM OF DOMESTIC GUARANTY (including Exhibit "A" - Joinder
Agreement)
J-2 FORM OF FOREIGN GUARANTY (including Exhibit "A" - Joinder
Agreement)
K FORM OF DOMESTIC SECURITY AGREEMENT
L FORM OF TERM LOAN RATE REQUEST
M FORM OF COVENANT COMPLIANCE REPORT
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AMENDED AND RESTATED REVOLVING CREDIT
AND TERM LOAN AGREEMENT
This Amended and Restated Revolving Credit and Term Loan Agreement
("Agreement") is made as of the 1st day of October, 1998, by and among the
financial institutions from time to time signatory hereto (individually a
"Bank," and any and all such financial institutions collectively the "Banks"),
Comerica Bank, as agent for the Banks (in such capacity, "Agent"), Autocam
Corporation, a Michigan corporation ("Autocam") and the Permitted Borrowers (as
defined below) from time to time signatory hereto.
RECITALS:
A. Autocam has requested that the Banks extend to it credit and
letters of credit as previously extended to it by the Banks under that certain
Revolving Credit Loan Agreement dated as of June 27, 1997, by and among
Autocam, the Banks and the Agent (as amended, the "Prior Credit Agreement") on
the terms and conditions set forth herein.
B. The Banks are prepared to extend such credit as aforesaid, but
only upon the terms and conditions set forth in this Agreement.
C. This Agreement shall constitute an amendment and restatement of
the Prior Credit Agreement as provided in Section 12.24 hereof.
NOW THEREFORE, in consideration of the covenants contained herein,
Autocam, the Permitted Borrowers, the Banks and Agent agree as follows:
1. DEFINITIONS
For the purposes of this Agreement the following terms will have the
following meanings:
"Account" shall mean any account or account receivable as defined under
the UCC and/or other applicable law, including without limitation, with respect
to any person, any right of such person to payment for goods sold or leased or
for services rendered.
"Account Party(ies)" shall mean, with respect to any Letter of Credit,
the account party or parties (which shall be Autocam or any Permitted Borrower)
as named in an application to the Agent for the issuance of such Letter of
Credit.
"Acquisition Documents" shall mean the F&P Acquisition Documents.
"Adjusted Consolidated Tangible Net Worth" shall mean as of any date,
the sum of Consolidated Tangible Net Worth plus Subordinated Debt as of such
date. "Advance(s)" shall mean, as the context may indicate, a borrowing
requested by either of Autocam or any Permitted Borrower, and made by the
applicable Banks under Section 2.1 hereof or requested by either of Autocam or
any Permitted Borrower and made by the Swing Line Bank under Section 2.5 hereof,
or requested by Autocam, F&P or Autocam France, as the case may be and made by
the applicable Banks under Section 4.1 hereof, including without limitation any
readvance, refunding or conversion of such borrowing pursuant to Section 2.3,
2.5 or 4.5 hereof, any advance in respect of a Letter of Credit under Section
3.6 hereof (including without limitation the unreimbursed amount of any draws
under any Letters of Credit), and shall include, as applicable, a
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Eurocurrency-based Advance, a Prime-based Advance, and a Quoted Rate Advance.
"Affected Bank" shall have the meaning set forth in Section 12.11.
"Affiliate" shall mean, with respect to any Person, any other Person or
group acting in concert in respect of the first Person that, directly or
indirectly, through one or more intermediaries, controls, or is controlled by,
or is under common control with such first Person. For purposes of this
definition, "control" (including, with correlative meanings, the terms
"controlled by" and "under common control with"), as used with respect to any
Person or group of Persons, shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of management and policies of such
Person, whether through the ownership of voting securities or by contract or
otherwise. Unless otherwise specified to the contrary herein, or the context
requires otherwise, Affiliate shall refer to Autocam Affiliates.
"Agent" shall mean Comerica Bank, in its capacity as agent for the
Banks hereunder, or any successor agent appointed in accordance with Section
13.4 hereof.
"Agent's Correspondent" shall mean for Advances in eurodollars, Agent's
Grand Cayman Branch (or for the account of said branch office, at Agent's main
office in Detroit, Michigan, United States); for Advances in other Alternative
Currencies, at such bank or banks as Agent may from time to time designate by
written notice to Borrowers and the Banks.
"Alternate Base Rate" shall mean, for any day, an interest rate per
annum equal to the Federal Funds Effective Rate in effect on such day, plus
one-half percent (1/2%).
"Alternative Currency" shall mean each of the following currencies, as
applicable hereunder: French Francs ("FF"), Japanese Yen, German Deutsche Marks,
British Pounds Sterling, and, subject to availability and to the terms and
conditions of this Agreement, such other freely convertible foreign currencies,
including the "Euro" (which, when referred to herein or in any of the Loan
Documents, shall be referred to using the currency codes in effect from time to
time under ISO International Standard 4217, or any such successor publication or
standard) as requested by a Borrower and acceptable to Agent and the Banks, in
their reasonable discretion.
"Applicable Fee Percentage" shall mean, as of any date of determination
thereof, the applicable percentage used to calculate certain of the fees due and
payable hereunder, determined by reference to the appropriate columns in the
Pricing Matrix attached to this Agreement as Schedule 1.1.
"Applicable Interest Rate" shall mean the Eurocurrency-based Rate, the
Prime-based Rate, or the Quoted Rate, as selected by Borrowers from time to time
subject to the terms and conditions of this Agreement.
"Applicable Margin" shall mean, as of any date of determination
thereof, the applicable interest rate margin, determined by reference to the
appropriate columns in the Pricing Matrix attached to this Agreement as Schedule
1.1.
"Asset Sale" shall mean the sale, transfer or other disposition by the
Borrowers or any Subsidiary of any asset (other than stock or other ownership
interests of any Subsidiary) to any Person, other than sales, transfers or other
dispositions of inventory in the ordinary course of business and sales of assets
that have been damaged, become obsolete or are no longer useable.
"Assignment Agreement" shall have the meaning ascribed to such term in
Section 14.8(c) hereof.
"Autocam Brazil" shall mean Autocam do Brasil Usinagem Ltda.
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"Autocam Europe" shall mean Autocam Europe B.V., a Netherlands
corporation.
"Autocam France" shall mean Autocam France, a French societe a
responsibilitee limitee.
"Banks" shall mean Comerica Bank ("Comerica") and such other financial
institutions from time to time parties hereto as lenders and shall include the
Revolving Credit Banks, the Term Loan Banks and the Swing Line Bank and any
assignee which becomes a Bank pursuant to Section 14.8 hereof.
"Bankruptcy Code" shall mean Title 11 of the United States Code and the
rules promulgated thereunder.
"Borrowers" shall mean Autocam, Autocam France and the Permitted
Borrowers and "Borrower" shall mean any or all of them.
"Business Day" shall mean any day on which commercial banks are open
for domestic and international business (including dealings in foreign exchange)
in Detroit, London and New York, and if funds are to be paid or made available
in any Alternative Currency, on such day in the place where such funds are to be
paid or made available.
"CapEx Limit" shall mean $38,000,000 for the fiscal year ending June
30, 1999 and $20,000,000 for each fiscal year thereafter.
"Capital Expenditures" shall mean, for any period, with respect to any
Person, the aggregate of all expenditures by such Person and its Subsidiaries
for the acquisition or leasing (pursuant to a Capitalized Lease) of fixed or
capital assets or additions to equipment (including replacements, capitalized
repairs and improvements during such period but excluding merchandise inventory
acquired during such period) that should be capitalized under GAAP on a
consolidated balance sheet of such Person and its Subsidiaries.
"Capitalized Lease" shall mean, as applied to any Person, any lease of
any property (whether real, personal or mixed) with respect to which the
discounted present value of the rental obligations of such Person as lessee
thereunder, in conformity with GAAP, is required to be capitalized on the
balance sheet of that Person.
"Collateral" shall mean all property or rights in which a security
interest, mortgage, lien or other encumbrance for the benefit of the Banks is or
has been granted or arises or has arisen, under or in connection with this
Agreement, the other Loan Documents, or otherwise.
"Collateral Documents" shall mean the Security Agreement, the Foreign
Security Agreements, the Pledge Agreements, and all of the other
acknowledgments, certificates, stock powers, financing statements, instruments
and other security documents executed by Borrowers or any Subsidiary in favor of
the Agent for the benefit of the Banks and delivered to the Agent, as security
for the Indebtedness, in each case as of the Effective Date or, from time to
time, subsequent thereto, in connection with such Security Agreement, this
Agreement, the other Loan Documents, in each case, as such collateral documents
may be amended or otherwise modified from time to time.
"Comerica Bank" shall mean Comerica Bank, a Michigan banking
corporation, its successors or assigns.
"Commitments" shall mean the Revolving Credit Aggregate Commitment and
the Term Loan B Aggregate Commitment.
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"Commonly Controlled Entity" shall mean an entity, whether or not
incorporated, which is under common control with the Borrowers within the
meaning of Section 4001 of ERISA or which is part of a group which includes the
Borrowers and which is treated as a single employer under Section 414 of the
Internal Revenue Code.
"Consolidated" (or "consolidated") or "Consolidating" (or
"consolidating") shall mean, when used with reference to any financial term in
this Agreement, the aggregate for two or more Persons of the amounts signified
by such term for all such Persons determined on a consolidated basis in
accordance with GAAP. Unless otherwise specified herein, references to
Consolidated financial statements or data of Autocam includes consolidation with
its Subsidiaries in accordance with GAAP; provided, however, that in calculating
the Consolidated Fixed Charge Coverage Ratio, the Total Debt to EBITDA Ratio,
and the Consolidated Leverage Ratio, F&P shall be deemed to be a Subsidiary of
Autocam during all relevant time periods prior to the Effective Date, and F&P's
financial results shall be consolidated with Autocam's financial results on a
pro forma basis, to the extent that F&P's financial results are not included in
Autocam's Consolidated financial statements.
"Consolidated Capitalization" shall mean as of any date of
determination, the sum of Consolidated Net Worth as of such date plus Total Debt
as of such date.
"Consolidated EBITDA" shall mean for any period, Consolidated Net
Income for such period plus, without duplication and to the extent reflected as
a charge or reduction in the statement of such Consolidated Net Income for such
period, the sum of (a) income tax expense, (b) Consolidated Interest Expense,
(c) depreciation and amortization expense, including, without limitation,
amortization of intangibles (including, but not limited to, goodwill) and
organization costs, and (d) any extraordinary, unusual or non-recurring non-cash
expenses or losses (including, whether or not otherwise includable as a separate
item in the statement of such Consolidated Net Income for such period, non-cash
losses on sales of assets outside of the ordinary course of business) and minus,
to the extent included in the statement of such Consolidated Net Income for such
period, the sum of (A) interest income, and (B) any extraordinary, unusual or
non-recurring income or gains (including, whether or not otherwise includable as
a separate item in the statement of such Consolidated Net Income for such
period, gains on the sales of assets outside of the ordinary course of
business).
"Consolidated Fixed Charge Coverage Ratio" shall mean for any period,
the ratio of (a) the sum of Consolidated EBITDA for such period, plus all rental
and lease expenses of Autocam and its Subsidiaries for such period, to (b)
Consolidated Fixed Charges for such period.
"Consolidated Fixed Charges"shall mean for any period Interest Expense
for such period, plus any provision for (benefit from) income or franchise taxes
included in the determination of net income for such period, plus all rental and
lease expenses of Autocam and its Subsidiaries for such period, plus scheduled
payments of principal with respect to all Consolidated Funded Debt (including
the principal portion of scheduled payments of Capitalized Lease obligations) of
Autocam and its Subsidiaries falling due in the four (4) fiscal quarters
immediately following the last day of such period; in each case determined
(without duplication) on a Consolidated basis.
"Consolidated Funded Debt" shall mean at any date, the aggregate
principal amount of all Funded Debt of the Borrowers and their respective
Subsidiaries at such date, determined on a consolidated basis in accordance with
GAAP.
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"Consolidated Interest Expense" shall mean for any period total cash
interest expense (including that attributable to Capitalized Leases), net of
cash interest income, of Autocam and its Subsidiaries (including all
commissions, discounts and other fees and charges owed with respect to letters
of credit and net costs under Interest Rate Protection Agreements in respect of
such Indebtedness to the extent such net costs are allocable to such period in
accordance with GAAP).
"Consolidated Leverage Ratio" shall mean as at the last day of any
period, the ratio of (a) Senior Debt on such day to (b) Consolidated EBITDA for
such period.
"Consolidated Net Income" shall mean for any period, the consolidated
net income (or loss) of Autocam and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP; provided that there shall be
excluded (a) the income (or deficit) of any Person accrued prior to the date it
becomes a Subsidiary of Autocam or is merged into or consolidated with Autocam
or any of its Subsidiaries, except with respect to the financial results of F&P
as described in the proviso to the definition of "Consolidated" and (b) the
undistributed earnings of any Subsidiary of Autocam 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 (other
than under any Loan Document) or Requirement of Law applicable to such
Subsidiary.
"Consolidated Net Worth" shall mean as of any date all amounts that
would be included under stockholders' equity on a Consolidated balance sheet of
Autocam and its consolidated Subsidiaries determined in accordance with GAAP.
"Consolidated Tangible Net Worth" shall mean, as of any date of
determination, the total common shareholders' equity of Autocam and its
Consolidated Subsidiaries, together with the amount, if any, of preferred stock
which is classified as part of shareholders' equity, as reflected on the most
recent regularly prepared quarterly balance sheet of Autocam and such
Subsidiaries, which balance sheet shall be prepared in accordance with GAAP,
minus the book value of all intangible assets, including without limitation,
such items as good will, trademarks, trade names, copyrights, patents, licenses
and rights in any intangible assets, and unamortized debt discount and expenses,
as of such date determined in accordance with GAAP, but excluding the effects of
the currency translation adjustment and of the pension adjustment under the
additional minimum liability section of FASB 87.
"Contingent Payment" shall mean the Contingent Payment, as defined in
the F&P Acquisition Agreement.
"Contractual Obligation" shall mean as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Covenant Compliance Report" shall mean the report to be furnished by
Borrowers to the Agent pursuant to Section 8.2(a) hereof, in the form of
attached Exhibit M and certified by a Responsible Officer, in which report
Borrowers shall set forth, among other things, detailed calculations and the
resultant ratios or financial tests with respect to the financial covenants
contained in Sections 8.9 through 8.12 of this Agreement.
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"Current Dollar Equivalent" shall mean, as of any applicable date of
determination, with respect to any Advance or Letter of Credit made, issued or
carried in an Alternative Currency, the amount of Dollars which is equivalent to
the then outstanding principal amount of such Advance or Letter of Credit at the
most favorable spot exchange rate determined by the Agent to be available to it
for the sale of Dollars for such Alternative Currency for delivery at
approximately 11:00 A.M. (Detroit time) two (2) Business Days after such date.
Alternative Currency equivalents of Advances in Dollars (to the extent used
herein) shall be determined by Agent in a manner consistent herewith.
"De Minimis Matters" shall mean environmental or other matters, the
existence of which and any liability which may result therefrom, would not,
individually or in the aggregate, reasonably be expected to have a material
adverse effect on the financial condition or businesses of Autocam and its
consolidated Subsidiaries (taken as a whole) or on the ability of Autocam and
its consolidated Subsidiaries (taken as a whole) to pay their debts, as such
debts become due.
"Default" shall mean any event which with the giving of notice or the
passage of time, or both, would constitute an Event of Default under this
Agreement.
"Defaulting Bank" is defined in Section 2.4(c).
"Dollar Amount" shall mean (i) with respect to each Advance or Letter
of Credit made, issued or carried (or to be made, issued or carried) in Dollars,
the principal amount thereof and (ii) with respect to each Advance or Letter of
Credit made, issued or carried (or to be made or carried) in an Alternative
Currency, the amount of Dollars which is equivalent to the principal amount of
such Advance or Letter of Credit at the exchange rate determined by the Agent to
be available to it for the sale of Dollars for such Alternative Currency at
approximately 11:00 A.M. (Detroit time) two (2) Business Days before such
Advance or Letter of Credit is made or issued (or to be made or issued), as such
Dollar Amount may be adjusted from time to time pursuant to Section 2.11 hereof.
When used with respect to any Alternative Currency portion of an Advance or
Letter of Credit being repaid or remaining outstanding at any time or with
respect to any other sum expressed in an Alternative Currency, "Dollar Amount"
shall mean the amount of Dollars which is equivalent to the principal amount of
such Advance or Letter of Credit, or the amount so expressed in such Alternative
Currency, at the most favorable spot exchange rate determined by the Agent to be
available to it for the sale of Dollars for such Alternative Currency at the
relevant time. Alternative Currency amounts of Advances made, carried or
expressed in Dollars (to the extent used herein) shall be determined by Agent in
a manner consistent herewith.
"Dollars" and the sign "$" shall mean lawful money of the United States
of America.
"Domestic Advance" shall mean any Advance other than a
Eurocurrency-based Advance or any other Advance denominated in an Alternative
Currency.
"Domestic Guaranty" shall mean that certain guaranty of all outstanding
Indebtedness, executed and delivered (or to be executed and delivered) by
Autocam and each of the Domestic Subsidiaries (whether by execution thereof, or
by execution of the Joinder Agreement attached as "Exhibit A" to the form of
such Guaranty), to the Agent, on behalf of the Banks, in the form annexed hereto
as Exhibit J-1, as amended from time to time.
"Domestic Permitted Borrower" shall mean any Permitted Borrower which
is not a Foreign Permitted Borrower.
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"Domestic Subsidiary" shall mean any direct or indirect Subsidiary of
Autocam incorporated under the laws of the United States of America, or any
state, territory, possession or other political subdivision thereof which is a
domestic Subsidiary for purposes of Section 956 of the Internal Revenue Code;
and "Domestic Subsidiaries" shall mean any or all of them.
"Effective Date" shall mean the date on which all the conditions
precedent set forth in Sections 6.1 through 6.13 have been satisfied.
"Equity Interests" means, with respect to any Person, any and all
shares, share capital, interests, participations, warrants, options or other
equivalents (however designated) of capital stock of a corporation and any and
all equivalent ownership interests in a Person (other than a corporation).
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended, or any successor act or code and the regulations in effect from time
to time thereunder.
"Euro" or "Euro Currency". The use of the term "Euro" in this Agreement
relates to the establishment of the "euro" as a single currency pursuant to the
Treaty Establishing the European Economic Community, as amended by the Treaty on
the European Union (the "Maastrict Treaty"), and the conversion (pursuant to the
requirements of such Treaty) of any Obligations under the Loan Documents from an
Alternative Currency of a country that is a member of the European Union into
Euro. Pursuant to Section 14.23 hereof, as of the date that any such Alternative
Currency is no longer the lawful currency of its respective country, all payment
obligations under the Loan Documents that would otherwise be in such Alternative
Currency shall thereafter be satisfied in the "Euro" Currency.
"Eurocurrency-based Advance" shall mean any Advance which bears
interest at the Eurocurrency-based Rate.
"Eurocurrency-based Rate" shall mean a per annum interest rate which is
equal to the sum of the Applicable Margin (subject, if applicable, to adjustment
under Section 5.1 hereof), plus the quotient of:
(A) the per annum interest rate at which deposits in the
relevant eurocurrency are offered to Agent's
Eurocurrency Lending Office by other prime banks in
the eurocurrency market in an amount comparable to
the relevant Eurocurrency-based Advance and for a
period equal to the relevant Eurocurrency-Interest
Period at approximately 11:00 A.M. Detroit time two
(2) Business Days prior to the first day of such
Eurocurrency-Interest Period,
divided by
(B) a percentage equal to 100% minus the maximum rate on
such date at which Agent is required to maintain
reserves on `Eurocurrency Liabilities' as defined in
and pursuant to Regulation D of the Board of
Governors of the Federal Reserve System or, if such
regulation or definition is modified, and as long as
Agent is required to maintain reserves against a
category of liabilities which includes eurocurrency
deposits or includes a category of assets which
includes eurocurrency loans, the rate at which such
reserves are required to be maintained on such
category, all as conclusively determined by the Agent
(absent manifest error), such sum to be rounded
upward, if necessary, to the nearest whole multiple
of 1/16th of 1%.
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"Eurocurrency-Interest Period" shall mean, (a) for Swing Line Advances
carried at the Eurocurrency-based Rate, an interest period of one month (or any
lesser number of days agreed to in advance by the relevant Borrower, Agent and
the Swing Line Bank) and (b) for all other Eurocurrency-based Advances, an
interest period of one, two, three or six months (or any lesser or greater
number of days agreed to in advance by the relevant Borrower, Agent and the
Banks) as selected by such Borrower, as applicable, for a Eurocurrency-based
Advance pursuant to Section 2.3, 2.5, 4.4 or 4.5 hereof, as the case may be.
"Eurocurrency Lending Office" shall mean, (a) with respect to the
Agent, Agent's office located at its Grand Caymans Branch or such other branch
of Agent, domestic or foreign, as it may hereafter designate as its Eurocurrency
Lending Office by written notice to Borrowers and the Banks and (b) as to each
of the Lenders, its office, branch or affiliate located at its address set forth
on the signature pages hereof (or identified thereon as its Eurocurrency Lending
Office), or at such other office, branch or affiliate of such Bank as it may
hereafter designate as its Eurocurrency Lending Office by written notice to
Borrowers and Agent.
"Event of Default" shall mean each of the Events of Default specified
in Section 10.1 hereof.
"Existing Letter of Credit" shall mean Letter of Credit No. 543314
dated December 23, 1997, issued for the account of Autocam by Comerica Bank in
favor of Norwest Bank Wisconsin, N.A. as beneficiary, in the original face
amount of $9,138,082.19.
"Federal Funds Effective Rate" shall mean, for any day, a fluctuating
interest rate per annum equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published for such day (or, if such day is not a
Business Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such transactions
received by Agent from three Federal funds brokers of recognized standing
selected by it, all as conclusively determined by the Agent, such sum to be
rounded upward, if necessary, to the nearest whole multiple of 1/16th of 1%.
"F&P" shall mean Frank & Pignard SA, a French Societe Anonyme.
"F&P Acquisition" shall mean the acquisition by Autocam, directly or
through its wholly owned subsidiary, of the stock of F&P pursuant to the terms
and conditions of the F&P Acquisition Agreement.
"F&P Acquisition Agreement" means the Stock Purchase Agreement dated as
of October 1, 1998 among Autocam, Autocam France, and certain shareholders of
the French Seller, as amended (subject to the terms hereof) from time to time.
"F&P Acquisition Documents" shall mean the F&P Acquisition Agreement
together with all other documents and instruments executed and delivered in
connection with the F&P Acquisition.
"Fees" shall mean the Revolving Credit Facility Fee, the Autocam France
Origination Fee, the Autocam France Termination Fee, the Letter of Credit Fees
and the other fees and charges payable by Borrowers to the Banks or Agent
hereunder.
"Financial Statements" shall mean all those balance sheets, earnings
statements, statement of cash flows, and other financial data (whether of
Autocam or its Subsidiaries) which have been furnished to the Agent or the Banks
for the purposes of, or in connection with, this Agreement and the transactions
contemplated hereby.
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"Foreign Guaranty" shall mean an unconditional guaranty of the
Indebtedness of the Foreign Borrowers hereunder, to be executed and delivered by
future Foreign Subsidiaries as described in Section 8.20 (whether by execution
thereof, or by execution of the Joinder Agreement attached as Exhibit A to the
form of such Guaranty) to the Agent, on behalf of the Banks, in the form annexed
hereto as Exhibit J-2, as amended from time to time.
"Foreign Borrower" shall mean any Borrower hereunder which is a Foreign
Subsidiary.
"Foreign Guarantor" shall mean any Foreign Subsidiary executing the
Foreign Guaranty.
"Foreign Security Agreement" shall mean such local law security
agreement as shall be advisable or necessary under applicable local law to
create and perfect liens on the assets of the applicable Significant Foreign
Subsidiary and securing the same obligations covered by the Foreign Guaranty
executed by such Significant Foreign Subsidiary.
"Foreign Subsidiary(ies)" shall mean all of Autocam's direct or
indirect Subsidiaries other than the Domestic Subsidiaries.
"French Franc Equivalent" shall mean the amount of French Francs which
could be purchased with the then outstanding principal amount of Dollars at the
most favorable spot exchange rate determined by the Agent to be available to it
for the sale of French Francs for Dollars at approximately 11:00 a.m. (Detroit
time) two (2) Business Days prior to any reconversion of the Indebtedness from
Dollars to French Francs hereunder.
"French Franc Principal Limit" shall mean with respect to (a) Term Loan
A, Two Hundred Eighty-One Million Three Hundred Seventy-Five Thousand French
Francs (FF 281,375,000) minus the sum of (i) the amount of any prepayments of
principal made on Term Loan A on or prior to the date of any determination
thereof, and (ii) the amount of any principal repayments on Term Loan A
scheduled to be paid under Section 4.3, hereof, on or prior to the date of any
determination thereof; and (b) Term Loan B, One Hundred Twelve Million French
Francs (FF 112,000,000) minus the sum of (i) the amount of any prepayments of
principal made on Term Loan B on or prior to the date of any determination
thereof, and (ii) the amount of any principal repayments on Term Loan B
scheduled to be paid under Section 4.3, hereof, on or prior to the date of any
determination thereof.
"French Merger" shall mean the merger of the French Seller with and
into F & P as the surviving entity as described in Section 8.13.
"French Seller" shall mean Compagnie Financiere du Leman, a French
Societe Anonyme.
"Funded Debt" of any Person shall mean (a) all indebtedness of such
Person for borrowed money or for the deferred purchase price of property or
services as of such date (other than trade liabilities incurred in the ordinary
course of business and payable in accordance with customary practices) or which
is evidenced by a note, bond, debenture or similar instrument, (b) the principal
component of all obligations of such person under Capitalized Leases, (c) all
obligations of such Person in respect of letters of credit, acceptances or
similar obligations issued or created for the account of such Person, (d) all
liabilities secured by any lien on any property owned by such Person even though
such Person has not assumed or otherwise become liable for the payment thereof,
and (e) all Guarantee Obligations of such Person.
"Funding Conditions" shall mean those conditions required to be
satisfied prior to or concurrently with the funding of any Future Debt, as
follows:
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(a) not less than thirty (30) Business Days prior to the date any
such indebtedness is to be incurred, Autocam provides to the
Agent and the Banks a certificate, signed by a Responsible
Officer, (i) attaching pro forma historical financial
information for Autocam and its Subsidiaries, taking into
account the amount of additional indebtedness requested by
Autocam to be incurred as Future Debt and including sufficient
detail for at least the two fiscal quarters immediately
preceding the date such indebtedness is requested to be
incurred, and (ii) calculating the financial ratios set forth
in Sections 8.9 through 8.12 hereof and specifying all
material assumptions underlying the historical information;
(b) not less than thirty (30) Business Days prior to the date any
such indebtedness is to be incurred, Autocam provides to the
Agent and the Banks a certificate, signed by a Responsible
Officer, (i) attaching pro forma projected financial
information for Autocam and its Subsidiaries, taking into
account the amount of additional indebtedness requested by
Autocam to be incurred as Future Debt and including sufficient
detail for at least the four fiscal quarters immediately
following the date such indebtedness is requested to be
incurred, and (ii) calculating the financial ratios set forth
in Sections 8.9 through 8.12 hereof and specifying in
reasonable detail all material assumptions underlying such
projections;
(c) both immediately before and immediately after such additional
Indebtedness is incurred, no Default or Event of Default
(whether or not related to such additional indebtedness, and
taking into account the incurring of such additional
indebtedness) has occurred and is continuing under this
Agreement or any of the other Loan Documents; and
(d) if such additional indebtedness shall be issued pursuant to
loan documents containing covenants which are more restrictive
than the covenants contained in this Agreement, Autocam shall,
upon the written request of the Majority Banks, enter into
amendments to this Agreement to extend the benefit of such
covenants to the Banks.
"Future Debt" shall mean any unsecured term indebtedness to be obtained
(directly or indirectly) by Autocam from a commercial bank(s), insurance
company(ies) or other financial institutions(s) provided that with respect to
indebtedness under clause (ii) hereof:
(a) such indebtedness shall have a term extending at least beyond
the later of the latest Term Loan Maturity Date and the
Revolving Credit Maturity Date then in effect, with no
amortization until the later of the latest Term Loan Maturity
Date and the Revolving Credit Maturity Date then in effect and
with no call option or other provision for mandatory early
repayment except for acceleration on default;
(b) such indebtedness shall be subordinated in right of payment
and priority to the Indebtedness, all on terms and conditions
satisfactory to the Majority Banks; and
(c) at the time any such indebtedness is incurred, the Funding
Conditions shall have been satisfied.
"Future Debt Documents" shall mean the promissory note(s),
guaranty(ies), agreement(s) or other documents, instruments and certificates
executed and delivered, subject to the terms of this Agreement, to evidence (or
otherwise relating to) Future Debt, as the same may be amended from time to time
and any and all other documents executed in exchange therefor or replacement or
renewal thereof.
"GAAP" shall mean generally accepted accounting principles in the
United States of America, as in effect on the date hereof, consistently applied.
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"Governmental Obligations" means noncallable direct general obligations
of the United States of America or obligations the payment of principal of and
interest on which is unconditionally guaranteed by the United States of America.
"Guarantee Obligation" shall mean as to any Person (the "guaranteeing
person") any obligation of the guaranteeing person in respect of any obligation
of another Person (including, without limitation, any bank under any letter of
credit), the creation of which was induced by a reimbursement agreement, counter
indemnity or similar obligation issued by the guaranteeing person, in either
case guaranteeing or in effect guaranteeing any Funded Debt, leases, dividends
or other obligations (the "primary obligations") of any other third Person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of the guaranteeing person, whether or not
contingent, (i) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (ii) to advance or supply
funds (1) for the purchase or payment of any such primary obligation or (2) to
maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor, (iii) 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 (iv) 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 of any guaranteeing person
shall be deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such Guarantee
Obligation is made and (b) the maximum amount for which such guaranteeing person
may be liable pursuant to the terms of the instrument embodying such Guarantee
Obligation, unless such primary obligation and the maximum amount for which such
guaranteeing person may be liable are not stated or determinable, in which case
the amount of such Guarantee Obligation shall be such guaranteeing person's
maximum reasonably anticipated liability in respect thereof as determined by
Borrowers in good faith.
"Guaranties" shall mean the Domestic Guaranty and the Foreign Guaranty,
and "Guaranty" shall mean any or all of them.
"Guarantor(s)" shall mean each Subsidiary which is required by the
Banks to guarantee the obligations of the Borrowers hereunder and under the
other Loan Documents.
"Hazardous Material" shall mean and include any hazardous, toxic or
dangerous waste, substance or material defined as such in (or for purposes of)
the Hazardous Material Laws.
"Hazardous Material Law(s)" shall mean all laws, codes, ordinances,
rules, regulations, orders, decrees and directives issued by any federal, state,
provincial, local, foreign or other governmental or quasi-governmental authority
or body (or any agency, instrumentality or political subdivision thereof)
pertaining to any hazardous, toxic or dangerous waste, substance or material on
or about any facilities owned, leased or operated by Autocam or any of its
Subsidiaries, or any portion thereof including, without limitation, those
relating to soil, surface, subsurface ground water conditions and the condition
of the ambient air; and any state and local laws and regulations pertaining to
any hazardous, toxic or dangerous waste, substance or material and/or asbestos;
any so-called "superfund" or "superlien" law; and any other federal, state,
provincial, foreign or local statute, law, ordinance, code, rule, regulation,
order or decree regulating, relating to, or imposing liability or standards of
conduct concerning, any hazardous, toxic or dangerous waste, substance or
material, as now or at any time hereafter in effect.
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"Hedging Transaction" means each interest rate swap transaction, basis
swap transaction, forward rate transaction, commodity swap transaction, equity
transaction, equity index transaction, foreign exchange transaction, cap
transaction, floor transaction (including any option with respect to any of
these transactions and any combination of any of the foregoing) entered into by
the Borrowers from time to time pursuant to an Interest Rate Protection
Agreement; provided that such transaction is entered into for risk management
purposes and not for speculative purposes.
"Hereof", "hereto", "hereunder" and similar terms shall refer to this
Agreement and not to any particular paragraph or provision of this Agreement.
"Indebtedness" shall mean all indebtedness and liabilities (including
without limitation interest, fees and other charges) arising under this
Agreement or any of the other Loan Documents, whether direct or indirect,
absolute or contingent, of any Borrowers or any Subsidiary to any of the Banks
or to the Agent, in any manner and at any time, whether evidenced by the Notes,
arising under any Guaranty or any of the other Loan Documents, due or hereafter
to become due, now owing or that may hereafter be incurred by Borrowers or any
Subsidiary to, any of the Banks or the Agent (and which shall be deemed to
include any liabilities of any Borrower or any Subsidiary to any Bank arising in
connection with account overdrafts), and any judgments that may hereafter be
rendered on such indebtedness or any part thereof, with interest according to
the rates and terms specified, or as provided by law, any payment obligations,
if any, under Hedging Transactions evidenced by Interest Rate Protection
Agreements, and any and all consolidations, amendments, renewals, replacements,
substitutions or extensions of any of the foregoing; provided, however that for
purposes of calculating the Indebtedness outstanding under the Notes or any of
the other Loan Documents, the direct and indirect and absolute and contingent
obligations of Borrowers and the Subsidiaries (whether direct or contingent)
shall be determined without duplication.
"Intercompany Loan" shall mean any loan (or advance in the nature of a
loan) by Autocam or any Subsidiary to any other Subsidiary or to Autocam,
provided that each such loan or advance is subordinated in right of payment and
priority to the Indebtedness on terms and conditions satisfactory to Agent and
the Majority Banks.
"Intercompany Loans, Advances or Investments" shall mean any
Intercompany Loan, and any advance or investment by Autocam or any Subsidiary
(including without limitation any guaranty of obligations or indebtedness to
third parties) to or in another Subsidiary.
"Intercompany Notes" shall mean the promissory notes issued or to be
issued by Autocam or any Subsidiary to evidence an Intercompany Loan.
"Interest Period" shall mean (a) with respect to a Eurocurrency-based
Advance, a Eurocurrency-Interest Period commencing on the day a
Eurocurrency-based Advance is made, or on the effective date of an election of
the Eurocurrency-based Rate made under Section 2.3, 4.4 or 4.5 hereof, as the
case may be, and (b) with respect to a Swing Line Advance carried at the Quoted
Rate, an interest period of one month (or any lesser number of days agreed to in
advance by a Borrower, Agent and the Swing Line Bank); provided, however that
(i) any Interest Period which would otherwise end on a day which is not a
Business Day shall end on the next succeeding Business Day, except that as to a
Eurocurrency-Interest Period, if the next succeeding Business Day falls in
another calendar month, such Eurocurrency-Interest Period shall end on the next
preceding Business Day, and (ii) when a Eurocurrency-Interest Period begins on a
day which has no numerically corresponding day in the calendar month during
which such Eurocurrency-Interest Period is to end, it shall end on the last
Business Day of such calendar month, and (iii) no Interest Period shall extend
beyond the applicable Term Loan Maturity Date or Revolving Credit Maturity Date,
as the case may be.
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"Interest Rate Protection Agreement" means any interest rate swap, cap,
floor, collar, forward rate agreement foreign currency agreement or other rate
protection transaction, or any combination of such transaction or agreements or
any option with respect to any such transactions or agreements now existing or
hereafter entered into between a Borrower and any Bank or an Affiliate of a
Bank.
"Internal Revenue Code" shall mean the Internal Revenue Code of 1986,
as amended from time to time, and the regulations promulgated thereunder.
"Inventory" shall have the meaning ascribed to such term in the Uniform
Commercial Code.
"Investment" shall mean, when used with respect to any Person, (a) any
loan, investment or advance made by such Person to any other Person (including,
without limitation, any contingent obligation) in respect of any capital stock,
Funded Debt, obligation or liability of such other Person and (b) any other
investment made by such Person (however acquired) in stock or other ownership
interests in any other Person, including, without limitation, any investment
made in exchange for the issuance of shares of stock of such Person.
"Issuing Bank" shall mean Comerica Bank in its capacity as issuer of
one or more Letters of Credit hereunder, or its successor designated by the
Borrowers and the Banks..
"Issuing Office" shall mean Issuing Bank's office located at One
Detroit Center, 500 Woodward Avenue, Detroit, Michigan 48226-3289 or such other
office as Issuing Bank shall designate as its Issuing Office.
"Joinder Agreement" shall mean a joinder agreement in the form attached
as Exhibit A to the form of the Domestic Guaranty or to the form of the Foreign
Guaranty, to be executed and delivered by any Person required to be a Guarantor
pursuant to Section 8.20 of this Agreement.
"Letter of Credit Agreement" shall mean, in respect of each Letter of
Credit, the application and related documentation satisfactory to the Issuing
Bank of an Account Party or Account Parties requesting Issuing Bank to issue
such Letter of Credit, as amended from time to time.
"Letter of Credit Documents" is defined in Section 3.7.
"Letter of Credit Fees" shall mean the fees payable to Agent for the
accounts of the Banks in connection with Letters of Credit pursuant to Section
3.4 hereof.
"Letter of Credit Maximum Amount" shall mean Twenty Five Million
Dollars ($25,000,000).
"Letter of Credit Obligations" shall mean at any date of determination,
the sum of (a) the aggregate undrawn amount of all Letters of Credit then
outstanding, (b) the aggregate face amount of all Letters of Credit requested
but not yet issued as of such date and (c) the aggregate amount of Reimbursement
Obligations which have not been reimbursed by Borrowers as of such date.
"Letter of Credit Payment" shall mean any amount paid or required to be
paid by the Issuing Bank in its capacity hereunder as issuer of a Letter of
Credit as a result of a draft or other demand for payment under any Letter of
Credit.
"Letter(s) of Credit" shall mean the Existing Letter of Credit, the
Seller Pledge Replacement L/C, and any standby letters of credit issued by
Issuing Bank at the request of or for the account of an Account Party or Account
Parties pursuant to Article 3 hereof.
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"Lien" shall mean any pledge, assignment, hypothecation, mortgage,
security interest, deposit arrangement, option, trust receipt, conditional sale
or title retaining contract, sale and leaseback transaction, financing statement
or comparable notice or other filing or recording, Capitalized Lease,
subordination of any claim or right, or any other type of lien, charge,
encumbrance, preferential or priority arrangement, whether based on common law
or statute.
"Loan Documents" shall mean, collectively, this Agreement, the Notes,
the Letter of Credit Agreements, the Letters of Credit, the Guaranty(ies), the
Collateral Documents, any Interest Rate Protection Agreement and any other
documents, certificates, instruments or agreements executed pursuant to or in
connection with any such document or this Agreement, as such documents may be
amended from time to time.
"Maastrict Treaty" is defined in the definition of "Euro".
"Majority Banks" shall mean (a) so long as the Revolving Credit
Aggregate Commitment is outstanding hereunder, at any time Banks holding not
less than 66% of the aggregate principal amount of (i) the Revolving Credit
Aggregate Commitment, plus (ii) the Indebtedness then outstanding under the Term
Loans and (b) if the Revolving Credit Aggregate Commitment has been terminated,
at any time Banks holding not less than 66% of the aggregate principal amount
of the Indebtedness then outstanding hereunder (provided that, for purposes of
determining Majority Banks hereunder, Indebtedness outstanding under the Swing
Line or under any Letter of Credit shall be allocated among the Revolving Credit
Banks based on their respective Revolving Credit Percentages).
"Majority Revolving Credit Banks" shall mean (a) so long as the
Revolving Credit Aggregate Commitment is outstanding hereunder, at any time
Revolving Credit Banks holding not less than 66% of the aggregate principal
amount of the Revolving Credit Aggregate Commitment and (b) if the Revolving
Credit Aggregate Commitment has been terminated, at any time Revolving Credit
Banks holding not less than 66% of the aggregate principal amount of the
Indebtedness then outstanding under the Revolving Credit (provided that, for
purposes of determining Majority Revolving Credit Banks hereunder, Indebtedness
outstanding under the Swing Line or under any Letter of Credit shall be
allocated among the Revolving Credit Banks based on their respective Revolving
Credit Percentages).
"Majority Term Loan Banks" shall mean at any time Term Loan Banks
holding not less than 66% of the aggregate principal amount of the Indebtedness
then outstanding under the Term Notes.
"Material Adverse Effect" shall mean a material adverse effect on (a)
the business or financial condition of the Autocam and its Subsidiaries taken as
a whole, (b) the ability of the Borrowers to perform their respective
obligations under this Agreement, the Notes (if issued) or any other Loan
Document to which either of them is a party, or (c) the validity or
enforceability of this Agreement, any of the Notes (if issued) or any of the
other Loan Documents or the rights or remedies of the Agent or the Banks
hereunder or thereunder.
"Maximum Availability" shall mean as to any Revolving Borrower as of
any date of determination, the then applicable Revolving Credit Aggregate
Commitment minus the sum of (i) the principal amount of all Advances of the
Revolving Credit and of the Swing Line then outstanding hereunder (using the
Current Dollar Equivalent of any such Advances outstanding in any Alternative
Currency) plus (ii) the aggregate amount of Letter of Credit Obligations
outstanding as of the date of the requested Advance (using the Current Dollar
Equivalent of the undrawn portion of any Letters of Credit denominated in any
Alternative Currency), in each case determined pursuant to the terms hereof as
of the date of the requested Advance or the issuance of the requested Letter of
Credit, as the case may be.
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"Maximum Multicurrency Availability" shall mean as to any Revolving
Borrower as of any date of determination the Multicurrency Sublimit minus the
sum of (i) the principal amount of all Advances of the Revolving Credit in any
Alternative Currency then outstanding hereunder to any Borrower (using the
Current Dollar Equivalent thereof) plus (ii) the aggregate amount of Letter of
Credit Obligations denominated in any Alternative Currency outstanding to the
account of any Borrower or Account Party (using the Current Dollar Equivalent
thereof), in each case determined pursuant to the terms hereof as of the date of
the requested Advance or the issuance of the requested Letter of Credit.
"Multiemployer Plan" shall mean a Pension Plan which is a multiemployer
plan as defined in Section 4001(a)(3) of ERISA.
"Multicurrency Sublimit" shall mean Fifty Million Dollars
($50,000,000).
"Net Cash Proceeds" shall mean, with respect to any Asset Sale, the
aggregate cash payments received by any Borrower and/or any Subsidiary, as the
case may be, from such Asset Sale, net of the reasonable direct expenses of sale
such as commissions and pro rated property taxes and net of any taxes actually
payable by the Borrowers in respect of such sales, taking into account
Borrowers' losses, if any, which are available under applicable law to reduce
such gains.
"Non-Defaulting Bank" is defined in Section 2.4(c).
"Notes" shall mean the Revolving Credit Notes, the Swing Line Notes and
the Term Notes.
"Pension Plan" shall mean any plan established and maintained by a
Borrower which is qualified under Section 401(a) of the Internal Revenue Code
and subject to the minimum funding standards of Section 412 of the Internal
Revenue Code.
"Percentage" shall mean, as applicable, the Revolving Credit
Percentage, the Term Loan A Percentage, the Term Loan B Percentage, or the
Weighted Percentage.
"Permitted Acquisition" shall mean any acquisition by Autocam or any
Subsidiary of all or substantially all of the assets of another Person, or of a
division or line of business of another Person, or shares of stock or other
ownership interests of another Person, which is conducted in accordance with the
following requirements:
(a) Such acquisition is of a business or Person engaged in a line
of business which is compatible with, or complementary to, the
business of Autocam, or is engaged in a business using systems
or techniques not unlike those of Autocam or any Subsidiary;
(b) Autocam shall have delivered to the Agent and the Banks not
less than fifteen (15) nor more than ninety (90) days prior to
the date of such acquisition, notice of such acquisition
together with Pro Forma Projected Financial Information;
(c) Both immediately before and after such acquisition no Default
or Event of Default shall have occurred and be continuing;
(d) The board of directors (or other Person(s) exercising similar
functions) of the seller of the assets or issuer of the shares
of stock or other ownership interests being acquired shall not
have disapproved such transaction or recommended that such
transaction be disapproved; and
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(e) If the sum of (i) the purchase price of such proposed new
acquisition, computed on the basis of total acquisition
consideration paid or incurred, or to be paid or incurred, by
Autocam or its Subsidiaries with respect thereto, including
the amount of Funded Debt assumed or to which such assets,
businesses or business or ownership interests or shares, or
any Person so acquired, is subject, but excluding the value of
any common shares transferred as a part of such acquisition,
plus (ii) the amount of payments to be made under non-compete
agreements entered into in connection with such acquisition,
is greater than Ten Million Dollars ($10,000,000), the
acquisition shall have been approved in writing by the
Majority Banks prior to its consummation (which approval shall
be given or denied within fifteen days of receipt by the Agent
and the Banks of the information referred to in clause (b)
above).
"Permitted Borrower Addendum" shall mean an addendum substantially in
the form attached hereto as Exhibit H, to be executed and delivered by each
Permitted Borrower which becomes a party to this Agreement after the date
hereof, as such Exhibit may be amended from time to time.
"Permitted Borrower Sublimit" shall mean the maximum aggregate amount
of Advances and Letters of Credit (including Letter of Credit Obligations)
available at any time to each of the Permitted Borrowers hereunder, as set forth
on Schedule 1.3 hereof.
"Permitted Borrower(s)" shall mean F& P and any Significant Subsidiary
which, after the Effective Date and with the prior written approval of the
Revolving Credit Banks, becomes a party hereto pursuant to Section 2.1(a)
hereof.
"Permitted Currencies" shall mean Dollars or any Alternative Currency.
"Permitted Distributions" shall mean dividends declared and paid by
Autocam in respect of its common stock while no Default or Event of Default has
occurred and is then continuing, either before or after taking the payment of
such dividends into account.
"Permitted Investments" shall mean with respect to any Person:
(a) Governmental Obligations;
(b) Obligations of a state of the United States, the
District of Columbia or any possession of the United States, or any
political subdivision thereof, which are described in Section 103(a)
of the Internal Revenue Code and are graded in any of the highest
three (3) major grades as determined by at least one Rating Agency; or
secured, as to payments of principal and interest, by a letter of
credit provided by a financial institution or insurance provided by a
bond insurance company which in each case is itself or its debt is
rated in one of the highest three (3) major grades as determined by at
least one Rating Agency;
(c) Banker's acceptances, commercial accounts, demand
deposit accounts, certificates of deposit, or depository receipts
issued by or maintained with any Bank or a bank, trust company,
savings and loan association, savings bank or other financial
institution whose deposits are insured by the Federal Deposit
Insurance Corporation and whose reported capital and surplus equal at
least $250,000,000, provided that such minimum capital and surplus
requirement shall not apply to demand deposit accounts maintained by
Autocam or any of its Subsidiaries in the ordinary course of business;
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<PAGE> 24
(d) Commercial paper rated at the time of purchase within
the two highest classifications established by not less than two Rating
Agencies, and which matures within 270 days after the date of issue;
(e) Secured repurchase agreements against obligations
itemized in paragraph (a) above, and executed by a bank or trust
company or by members of the association of primary dealers or other
recognized dealers in United States government securities, the market
value of which must be maintained at levels at least equal to the
amounts advanced; and
(f) Any fund or other pooling arrangement which
exclusively purchases and holds the investments itemized in (a) through
(e) above.
"Permitted Liens" shall mean with respect to any Person:
(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
such Person in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's, landlord's liens or other like Liens arising in the
ordinary course of business which are not overdue for a period of more
than 60 days or which are being contested in good faith by appropriate
proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation and deposits securing liability to insurance carriers under
insurance or self-insurance arrangements;
(d) deposits to secure (i) the performance of bids, trade
contracts (other than for borrowed money), statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a
like nature or (ii) the performance of leases permitted hereunder, in
each case given or incurred on terms, in amounts and otherwise in the
ordinary course of business; and
(e) easements, rights-of-way, restrictions and other
similar encumbrances or Liens incurred in the ordinary course of
business which, in the aggregate, are not substantial in amount and
which do not in any case materially detract from the value of the
property subject thereto or materially interfere with the ordinary
conduct of the business of such Person.
"Person" shall mean a natural person, corporation, limited liability
company, partnership, limited liability partnership, trust, incorporated or
unincorporated organization, joint venture, joint stock company, or a government
or any agency or political subdivision thereof or other entity of any kind.
"Pledge Agreement(s)" shall mean each stock pledge agreement, including
any nantissements, executed and delivered by Autocam and any Subsidiary in form
satisfactory of the Agent, in each case as amended or otherwise modified from
time to time.
"Potential Financial Institution" is defined in Section 2.4(e).
"Prime-based Advance" shall mean an Advance which bears interest at the
Prime-based Rate.
"Prime-based Rate" shall mean, for any day, that rate of interest which
is equal to the sum of the Applicable Margin plus the greater of (i) the Prime
Rate, and (ii) the Alternate Base Rate.
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<PAGE> 25
"Prime Rate" shall mean the per annum rate of interest announced by the
Agent, at its main office from time to time as its "prime rate" (it being
acknowledged that such announced rate may not necessarily be the lowest rate
charged by the Agent to any of its customers), which Prime Rate shall change
simultaneously with any change in such announced rate.
"Prior Credit Agreement" is defined in the Recitals.
"Pro Forma Balance Sheet" is defined in Section 6.10.
"Pro Forma Projected Financial Information" shall mean, as to any
proposed acquisition, a statement executed by a Responsible Officer (supported
by reasonable detail) setting forth the total consideration to be paid or
incurred in connection with the proposed acquisition, and pro forma combined
projected financial information for Autocam and its consolidated Subsidiaries
and the acquisition target (if applicable), consisting of projected balance
sheets as of the proposed effective date of the acquisition or the closing date
and as of the end of at least the next succeeding three (3) fiscal years of
Autocam following the acquisition and projected statements of income and cash
flows for each of those years, including sufficient detail to permit calculation
of the amounts and the ratios described in Sections 8.9 through 8.12 hereof, as
projected as of the effective date of the acquisition and for those fiscal years
and accompanied by (i) a statement setting forth a calculation of the ratios and
amounts so described, (ii) a statement in reasonable detail specifying all
material assumptions underlying the projections and (iii) such other information
as any Bank shall reasonably request.
"Purchasing Bank" shall have the meaning set forth in Section 12.10.
"Quoted Rate" shall mean the rate of interest per annum offered by the
Swing Line Bank in its sole discretion with respect to a Swing Line Advance.
"Quoted Rate Advance" means any Swing Line Advance which bears interest
at the Quoted Rate.
"Rating Agency" shall mean Moody's Investor Services, Standard and
Poor's Ratings Group or any other nationally recognized statistical rating
organization which is acceptable to the Agent.
"Register" is defined in Section 14.8(f) hereof.
"Reimbursement Obligation(s)" shall mean the obligation of an Account
Party or Account Parties under each Letter of Credit Agreement and this
Agreement to reimburse the Issuing Bank for each payment made by the Issuing
Bank under the Letter of Credit issued pursuant to such Letter of Credit
Agreement, together with all other sums, fees, charges and amounts which may be
owing to the Issuing Bank under such Letter of Credit Agreement or this
Agreement relating to Letters of Credit.
"Request for Advance" shall mean a Request for Revolving Credit
Advance, a Request for Swing Line Advance or a Term Loan Rate Request, as the
context may indicate.
"Request for Revolving Credit Advance" shall mean a Request for
Revolving Credit Advance issued by any of the Revolving Borrowers under Section
2.3 of this Agreement in the form annexed hereto as Exhibit A, as amended or
otherwise modified.
"Request for Swing Line Advance" shall mean a Request for Swing Line
Advance issued by Revolving Borrowers under Section 2.5(c) of this Agreement in
the form attached hereto as Exhibit D, as amended or otherwise modified.
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<PAGE> 26
"Requirement of Law" shall mean as to any Person, the certificate of
incorporation and bylaws, the partnership agreement or other organizational or
governing documents of such Person and any law, treaty, rule or regulation or
determination of an arbitration 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.
"Responsible Officer" shall mean the chief executive officer, chief
financial officer, treasurer or the president of Autocam, or with respect to
compliance with financial covenants, the chief financial officer or the
treasurer of Autocam or any other officer having substantially the same
authority and responsibility. For purposes of all documents and certificates
executed and delivered in connection with the closing of this Agreement, Mark R.
Scott shall be a Responsible Officer.
"Revolving Borrower(s)" shall mean Autocam and/or any or all Permitted
Borrowers.
"Revolving Credit" shall mean the revolving credit loan to be advanced
to a Revolving Borrower by the applicable Banks pursuant to Article 2 hereof, in
an aggregate amount (subject to the terms hereof), not to exceed, at any one
time outstanding, the Revolving Credit Aggregate Commitment.
"Revolving Credit Advance" shall mean a borrowing requested by a
Revolving Borrower and made by the Banks under Section 2.1 of this Agreement,
including without limitation any readvance, refunding or conversion of such
borrowing pursuant to Section 2.3 hereof and any advance in respect of a Letter
of Credit under Section 3.6 hereof, and shall include, as applicable, a
Eurocurrency-based Advance and/or a Prime-based Advance.
"Revolving Credit Aggregate Commitment" shall mean Seventy Million
Dollars ($70,000,000), subject to reduction or termination under Section 2.15 or
10.2 hereof.
"Revolving Credit Banks" shall mean the financial institutions from
time to time parties hereto as lenders of the Revolving Credit.
"Revolving Credit Facility Fee" shall mean the fees payable to Agent
for distribution to the Banks pursuant to Section 2.13 hereof.
"Revolving Credit Maturity Date" shall mean the earlier to occur of (i)
October 1, 2003, as such date may be extended from time to time pursuant to
Section 2.16 hereof, and (ii) the date on which the Revolving Credit Aggregate
Commitment shall be terminated pursuant to Section 2.15 or Section 10.2 hereof.
"Revolving Credit Notes" shall mean the revolving credit notes
described in Section 2.1 hereof, made by each of the Revolving Borrowers to each
of the Banks in the form annexed to this agreement as Exhibit B, as such notes
may be amended or supplemented from time to time, and any other notes issued in
substitution, replacement or renewal thereof from time to time.
"Revolving Credit Percentage" shall mean with respect to each Revolving
Credit Bank, its percentage share, as set forth on Schedule 1.2 under column 1,
of the Revolving Credit and its risk participation in Letters of Credit and in
any outstanding Swing Line Advances, as such Schedule may be revised from time
to time by Agent in accordance with Section 14.8.
"Security Agreement" shall mean the Security Agreement executed and
delivered by Autocam and each Domestic Subsidiary in favor of the Agent
substantially in the form of Exhibit K, as amended or otherwise modified from
time to time.
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<PAGE> 27
"Seller Pledge" shall mean the pledge by Autocam France to certain
shareholders of the French Seller of not more than 33 1/3% of the outstanding
capital stock of the French Seller as security for the Contingent Payment.
"Seller Pledge Replacement L/C" shall mean a Letter of Credit in a face
amount not to exceed the Contingent Payment, which shall replace the Seller
Pledge as security for the Contingent Payment.
"Senior Debt" shall mean the sum of Total Debt minus Subordinated Debt.
"Significant Domestic Subsidiaries" shall mean those Domestic
Subsidiaries identified as such on Schedule 7.19 hereto, and any Domestic
Subsidiaries which become Significant Subsidiaries subsequent to the Effective
Date.
"Significant Foreign Subsidiaries" shall mean those Foreign
Subsidiaries identified as such on Schedule 7.19 hereto, and any Foreign
Subsidiaries which become Significant Subsidiaries subsequent to the Effective
Date.
"Significant Subsidiary(ies)" shall mean, on the Effective Date, those
Subsidiaries identified as "Significant Subsidiaries" on Schedule 7.19 hereto,
as thereafter the Significant Subsidiaries on the Effective Date and thereafter,
all other Subsidiaries whether existing on the Effective Date or created or
acquired (directly or indirectly) by Autocam thereafter, except any Subsidiary:
(a) the total assets of which, on an individual basis, on
any date of determination, are less than $5,000,000; and
(b) which has, as of the most recent fiscal quarter than
ending, for the four preceding fiscal quarters, an EBITDA of less than
$2,000,000.
"Subordinated Debt" shall mean (a) any Future Debt and (b) and any
other Funded Debt of a Borrower which has been subordinated in right of payment
and priority to the Indebtedness, all on terms and conditions satisfactory to
the Agent and the Majority Banks.
"Subordinated Debt Documents" shall mean and include Future Debt
Documents; any other documents evidencing Subordinated Debt, in each case, as
the same may be amended, modified or supplemented from time to time in
compliance with the terms of this Agreement.
"Subsidiary(ies)" shall mean any other corporation, association, joint
stock company, business trust, limited liability company or any other business
entity of which more than fifty percent (50%) of the outstanding voting stock,
share capital, membership or other interests, as the case may be, is owned
either directly or indirectly by any Person or one or more of its Subsidiaries,
or the management of which is otherwise controlled, directly, or indirectly
through one or more intermediaries, or both, by any Person and/or its
Subsidiaries. Unless otherwise specified to the contrary herein or the context
otherwise requires, Subsidiary(ies) shall refer to the Subsidiary(ies) of
Autocam. "100% Subsidiary(ies)" shall mean any of the Subsidiaries of Autocam
whose stock (other than directors' or qualifying shares to the extent required
under applicable law) or other ownership interests is owned 100% by any other
100% Subsidiary and/or Autocam. After the closing of the F&P Acquisition, at any
time during which Autocam France owns more than 95% of the outstanding capital
stock of the French Seller or F&P, F&P and the French Seller shall be deemed to
be 100% Subsidiaries.
"Swing Line" shall mean the revolving credit loan to be advanced to
Revolving Borrowers by the Swing Line Bank pursuant to Section 2.5 hereof, in an
aggregate amount (subject to the terms hereof), not to exceed, at any one time
outstanding, the Swing Line Maximum Amount.
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<PAGE> 28
"Swing Line Advance" shall mean a borrowing made by Swing Line Bank to
Revolving Borrowers pursuant to Section 2.5 hereof.
"Swing Line Bank" shall mean Comerica Bank in its capacity as lender
under Section 2.5 of this Agreement or its successor as lender of the Swing
Line.
"Swing Line Maximum Amount" shall mean Five Million Dollars
($5,000,000).
"Swing Line Notes" shall mean the swing line notes which may be issued
by each Revolving Borrower at the request of Swing Line Bank pursuant to Section
2.5(a) hereof in the form annexed hereto as Exhibit C, as the case may be, as
such Notes may be amended or supplemented from time to time, and any notes
issued in substitution, replacement or renewal thereof from time to time.
"Term Credit" shall mean the credit facilities evidenced by the Term
Loans.
"Term Loan" shall mean Term Loan A and Term Loan B, as the context
shall require, and "Term Loans" shall mean any or all of Term Loan A and Term
Loan B.
"Term Loan A" shall mean the term loan to be made in French Francs to
Autocam France by the Term Loan A Banks pursuant to Section 4.1 hereof, in the
aggregate amount of Two Hundred Eighty-One Million Three Hundred Seventy-Five
Thousand French Francs (FF 281,375,000).
"Term Loan A Banks" shall mean the financial institutions from time to
time parties hereto as lenders of Term Loan A.
"Term Loan A Maturity Date" shall mean July 1, 2003.
"Term Loan A Percentage" shall mean with respect to each Term Loan A
Bank, its percentage share, as set forth on Schedule 1.2 hereto under column 3,
of Term Loan A, as such Schedule may be revised from time to time by Agent in
accordance with Section 14.8 hereof.
"Term Loan Banks" shall mean collectively the Term Loan A Banks and the
Term Loan B Banks.
"Term Loan Borrowers" shall mean Autocam France and F&P, and Term Loan
Borrower shall mean any one of them, as the context may indicate.
"Term Loan B" shall mean the term loan to be made in French Francs to
F&P by the Term Loan B Banks pursuant to Section 4.1 hereof, in the aggregate
amount not to exceed the Term Loan B Aggregate Commitment.
"Term Loan B Aggregate Commitment" shall mean One Hundred Twelve
Million French Francs (FF 112,000,000), subject to termination under Section
10.2 hereof.
"Term Loan B Banks" shall mean the financial institutions from time to
time parties hereto as lenders of Term Loan B.
"Term Loan B Funding Period" shall mean the period commencing on the
Effective Date and ending on the earlier of (i) January 31, 1999 and (ii) the
date on which the Term Loan B Aggregate Commitment shall be terminated pursuant
to Section 10.2 hereof.
"Term Loan B Maturity Date" shall mean October 1, 2004.
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"Term Loan B Percentage" shall mean with respect to each Term Loan B
Bank, its percentage share, as set forth on Schedule 1.2 hereto under column 3,
of Term Loan B, as such Schedule may be revised from time to time by Agent in
accordance with Section 14.8 hereof.
"Term Loan Maturity Dates" shall mean collectively, the Term Loan A
Maturity Date and the Term Loan B Maturity Date.
"Term Loan Rate Request" shall mean a Term Loan Rate Request issued by
the applicable Borrower, under this Agreement in the form attached to this
Agreement as Exhibit L.
"Term Notes" shall mean the term notes described in Section 4.2(e) made
by the applicable Borrower(s) to each of the applicable Banks in the form
attached as Exhibits G-1 and G-2 to this Agreement to evidence Term Loan A and
Term Loan B respectively, as such notes may be amended or supplemented from time
to time, and any notes issued in substitution, renewal or replacement thereof
from time to time.
"Total Debt" shall mean, with respect to Autocam and its Consolidated
Subsidiaries, as of any date of determination, the sum without duplication, of
(a) the aggregate outstanding principal amount of (i) all Advances of the
Revolving Credit and of the Swing Line and (ii) any Letter of Credit Obligations
outstanding on such date and (iii) the aggregate outstanding principal amount of
all Term Loans (using, in each case the Current Dollar Equivalent of any
Advances outstanding in any Alternative Currency and/or any Letters of Credit
issued in any Alternative Currency), (b) the aggregate outstanding principal
amount of any other revolving credit or other short term indebtedness of Autocam
and its Subsidiaries as of such date and (c) all other interest-bearing
indebtedness of Autocam and its Subsidiaries, whether short-term or long-term,
as of such date.
"Total Debt to Capitalization Ratio" shall mean as of the last day of
any period, the ratio of (a) Total Debt on such day to (b) Consolidated
Capitalization on such day.
"Total Debt to EBITDA Ratio" shall mean as of the last day of any
period, the ratio of (a) Total Debt on such day to (b) Consolidated EBITDA for
such period.
"Uniform Commercial Code" or "UCC" shall mean the Uniform Commercial
Code of any applicable state, and, unless specified otherwise the Uniform
Commercial Code as in effect in the State of Michigan.
"Weighted Percentage" shall mean with respect to any Bank, its
Percentage share as set forth in Schedule 1.1 under column 4, as such Schedule
may be revised by the Agent from time to time, which Percentage shall be
calculated as follows:
(a) as to such Bank, so long as the Commitments are outstanding
hereunder, a percentage calculated by taking as the numerator the sum of its
Revolving Credit Percentage of the Revolving Credit Aggregate Commitment plus
its Term Loan B Percentage of the Term Loan B Aggregate Commitment plus its Term
Loan A Percentage of the Indebtedness outstanding under Term Loan A and taking
as the denominator the sum of the Revolving Credit Aggregate Commitment and the
Term Loan B Aggregate Commitment plus the aggregate principal amount of
Indebtedness outstanding under the Term Loans; and
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<PAGE> 30
(b) as to such Bank, if the Commitments have been terminated, its
weighted percentage calculated by taking as the numerator the sum of its
Revolving Credit Percentage of the aggregate principal amount outstanding under
the Revolving Credit (including such Bank's Revolving Credit Percentage of
outstanding Letter of Credit Obligations and outstanding Swing Line Advances)
plus its Term Loan A Percentage of the Indebtedness outstanding under Term Loan
A plus its Term Loan B Percentage of the Indebtedness outstanding under Term
Loan B and taking as the denominator the sum of the aggregate principal amount
outstanding under the Revolving Credit, the Swing Line, the Term Loans and any
outstanding Letter of Credit Obligations.
2. REVOLVING CREDIT
2.1 Commitment. Subject to the terms and conditions of this
Agreement (including without limitation Section 2.3 hereof), each Revolving
Credit Bank severally and for itself alone agrees to make Advances of the
Revolving Credit in any one or more of the Permitted Currencies to any of the
Revolving Borrowers from time to time on any Business Day during the period from
the Effective Date hereof until (but excluding) the Revolving Credit Maturity
Date in an aggregate amount, based on the Dollar Amount of any Advances
outstanding in Dollars and the Current Dollar Equivalent of any Advances
outstanding in Alternative Currencies, not to exceed at any one time outstanding
such Bank's Revolving Credit Percentage of the Revolving Credit Aggregate
Commitment. Except as provided in Section 2.12 hereof, for purposes of this
Agreement, Advances in Alternative Currencies shall be determined, denominated
and redenominated as set forth in Section 2.11 hereof. Subject to the terms and
conditions set forth herein, advances, repayments and readvances may be made
under the Revolving Credit. Advances of the Revolving Credit shall be subject to
the following additional conditions and limitations:
(a) A Permitted Borrower shall not be entitled to request
an Advance of the Revolving Credit or the Swing Line or the issuance of a Letter
of Credit hereunder (x) until (i) with the approval of all Revolving Credit
Banks, it has become a party to this Agreement either by execution and delivery
of this Agreement, or by execution and delivery of a Permitted Borrower Addendum
to this Agreement, (ii) unless waived in writing by the Revolving Credit Banks,
it has become a party to the applicable Guaranty either by execution and
delivery of such Guaranty or by execution and delivery of a Joinder Agreement to
such Guaranty, (iii) if required by the Revolving Credit Banks, it has become a
party to a Foreign Security Agreement, and (iv) unless waived in writing by the
Revolving Credit Banks, Autocam has encumbered and/or delivered (or caused to be
encumbered and/or delivered), as the case may be, pursuant to a Pledge Agreement
those shares of stock issued by such Permitted Borrower and owned (directly or
indirectly by Autocam) which are required to be encumbered and/or delivered
under Section 8.20 hereof, as applicable, and accompanied in each case by
authority documents, legal opinions and other supporting documents as required
by Agent and the Majority Banks hereunder; and (y) if it ceases to be, directly
or indirectly, a 100% Subsidiary of Autocam.
2.2 Accrual of Interest and Maturity; Evidence of Indebtedness (a)
Subject to Section 14.22 hereof, each Revolving Borrower hereby unconditionally
promises to pay to the Agent for the account of each Revolving Credit Bank the
then unpaid principal amount of each Revolving Credit Advance (plus all accrued
and unpaid interest) of such Bank to such Borrower on the Revolving Credit
Maturity Date and on such other dates and in such other amounts as may be
required from time to time pursuant to this Agreement.
(b) Each Revolving Credit Bank shall maintain in
accordance with its usual practice an account or accounts evidencing
indebtedness of each Revolving Borrower to the appropriate lending
office of such Bank resulting from each Revolving Credit Advance made
by such lending office of such Bank from time to time, including the
amounts of principal and interest payable thereon and paid to such Bank
from time to time under this Agreement.
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<PAGE> 31
(c) The Agent shall maintain the Register pursuant to
Section 14.8(f), and a subaccount therein for each Revolving Credit
Bank, in which Register and subaccounts (taken together) shall be
recorded (i) the amount and applicable Permitted Currency of each
Revolving Credit Advance made hereunder, the type thereof and each
Interest Period applicable to any Eurocurrency-based Advance, (ii) the
amount of any principal or interest due and payable or to become due
and payable from the applicable Borrower, as the case may be, to each
Bank hereunder in respect of the Revolving Credit Advances and (iii)
both the amount of any sum received by the Agent hereunder from the
applicable Borrower in respect of the Revolving Credit Advances and
each Bank's share thereof.
(d) The entries made in the Register and the accounts of
each Revolving Credit Bank maintained pursuant to paragraphs (b) and
(c) of this Section 2.1 shall absent manifest error, to the extent
permitted by applicable law, be conclusive evidence of the existence
and amounts of the obligations of the Borrowers therein recorded;
provided, however, that the failure of any Bank or the Agent to
maintain the Register or any such account, as applicable, or any error
therein, shall not in any manner affect the obligation of each
Revolving Borrower to repay the Revolving Credit Advances (and all
other amounts owing with respect thereto) made to such Borrower by such
Bank in accordance with the terms of this Agreement.
(e) The Revolving Borrowers agree that, upon written
request to the Agent (with a copy to Autocam) by any Revolving Credit
Bank, each of the Revolving Borrowers will execute and deliver, to such
Bank, at such Borrower's own expense, a Revolving Credit Note
evidencing the outstanding Revolving Credit Advances owing to such
Bank; provided, that the delivery of such Revolving Credit Notes shall
not be a condition precedent to the Effective Date.
2.3 Requests for and Refundings and Conversions of Advances
Autocam or a Permitted Borrower may request an Advance of the Revolving Credit,
refund any such Advance in the same type of Advance or convert any such Advance
to any other type of Advance of the Revolving Credit only after delivery to
Agent of a Request for Revolving Credit Advance executed by a person previously
authorized (in a writing delivered to the Agent by Autocam) or such Permitted
Borrower to execute such Request, subject to the following and to the remaining
provisions hereof:
(a) each such Request for Revolving Credit Advance shall
set forth the information required on the Request for Revolving Credit
Advance form annexed hereto as Exhibit A, including without limitation:
(i) the proposed date of such Advance, which
must be a Business Day;
(ii) whether such Advance is a refunding or
conversion of an outstanding Advance;
(iii) whether such Advance is to be a Prime-based
Advance or a Eurocurrency-based Advance,
and, except in the case of a Prime-based
Advance, the first Interest Period
applicable thereto; and
(iv) in the case of a Eurocurrency-based Advance,
the Permitted Currency in which such Advance
is to be made.
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(b) each such Request for Revolving Credit Advance shall
be delivered to Agent by noon (Detroit time) three (3) Business Days
prior to the proposed date of Advance, except in the case of a
Prime-based Advance, for which the Request for Advance must be
delivered by 11:00 a.m. (Detroit time) on such proposed date for
Advances to a Domestic Permitted Borrower and by 2:00 p.m. (Detroit
time) one (1) Business Day prior to such proposed date for Advances to
a Foreign Permitted Borrower;
(c) on the proposed date of such Advance,
(i) in the case of any Revolving Borrower, the
Dollar amount of the principal amount of such requested Advance
plus the Dollar Amount of the principal amount of any other
Advances of the Revolving Credit and of the Swing Line being
requested by any Revolving Borrower on such date plus the
Dollar Amount of the face amount of any Letters of Credit
requested by any Revolving Borrower on such date shall not
exceed the Maximum Availability;
(ii) in the case of any Revolving Borrower
requesting an Advance in any Alternative Currency, the Dollar
amount of the principal amount of such requested Advance plus
the Dollar Amount of the principal amount of any other Advances
of the Revolving Credit being requested by any Revolving
Borrower in any Alternative Currency on such date plus the
Dollar Amount of the face amount of any Letters of Credit to be
denominated in any Alternative Currency requested by any
Borrower on such date shall not exceed the Maximum
Multicurrency Availability; and
(iii) in the case of any Permitted Borrower, the
Dollar amount of the principal amount of such requested
Advance plus the Dollar Amount of the principal amount of any
other Advances of the Revolving Credit and of the Swing Line
being requested by such Permitted Borrower on such date plus
the Dollar Amount of the face amount of any Letters of Credit
requested by such Permitted Borrower on such date shall not
exceed the Permitted Borrower Sublimit applicable to such
Permitted Borrower;
provided however, that, in the case of any Advance of the
Revolving Credit being applied to refund an outstanding Swing
Line Advance, the aggregate principal amount of Swing Line
Advances to be refunded shall not be included for purposes of
calculating the limitation under this Section 2.3(c);
(d) in the case of a Prime-based Advance, the principal
amount of the initial funding of such Advance, as opposed to any
refunding or conversion thereof, shall be at least $1,500,000;
(e) in the case of a Eurocurrency-based Advance, the
principal amount of such Advance, plus the amount of any other
outstanding Advance of the Revolving Credit to be then combined
therewith having the same Applicable Interest Rate and Interest Period,
if any, shall be at least Two Million Five Hundred Thousand Dollars
($2,500,000) or the equivalent thereof in an Alternative Currency (or a
larger integral multiple of Fifty Thousand Dollars ($50,000), or the
equivalent thereof in the applicable Alternative Currency) and at any
one time there shall not be in effect more than (x) for Advances to
Autocam four (4) Applicable Interest Rates and Interest Periods, and
(y) for Advances to each Permitted Borrower four (4) Applicable
Interest Rates and Interest Periods for each such currency;
(f) a Request for Revolving Credit Advance, once
delivered to Agent, shall not be revocable by the Revolving Borrowers;
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(g) each Request for Revolving Credit Advance shall
constitute a certification by Autocam and the applicable Permitted
Borrower, if any, as of the date thereof that:
(i) both before and after such Advance, the
obligations of the Borrowers and the
Guarantors set forth in this Agreement and
the other Loan Documents to which such
Persons are parties are valid, binding and
enforceable obligations of the applicable
Borrowers and Guarantors;
(ii) all conditions to Advances of the Revolving
Credit have been satisfied, and shall remain
satisfied to the date of such Advance (both
before and after giving effect to such
Advance);
(iii) there is no Default or Event of Default in
existence, and none will exist upon the
making of such Advance (both before and
after giving effect to such Advance);
(iv) subject to the provisions of Section
6.14(b), the representations and warranties
contained in this Agreement and the other
Loan Documents are true and correct in all
material respects and shall be true and
correct in all material respects as of the
making of such Advance (both before and
after giving effect to such Advance); and
(v) the execution of such Request for Advance
will not violate the material terms and
conditions of any material contract,
agreement or other borrowing of the
Borrowers.
Agent, acting on behalf of the Banks, may, at its option, lend under
this Section 2 upon the telephone request of a person previously
authorized (in a writing delivered to the Agent) by the applicable
Revolving Borrower to make such requests and, in the event Agent,
acting on behalf of the Banks, makes any such Advance upon a telephone
request, the requesting officer shall fax to Agent, on the same day as
such telephone request, a Request for Advance. Revolving Borrowers
hereby authorize Agent to disburse Advances under this Section 2.3
pursuant to the telephone instructions of any person purporting to be a
person identified by name on a written list of persons authorized by
Autocam and delivered to Agent prior to the date of such request to
make Requests for Advance on behalf of the Revolving Borrowers.
Notwithstanding the foregoing, each Revolving Borrower acknowledges
that each Borrower shall bear all risk of loss resulting from
disbursements made upon any telephone request. Each telephone request
for an Advance shall constitute a certification of the matters set
forth in the Request for Revolving Credit Advance form as of the date
of such requested Advance.
2.4 Disbursement of Advances
(a) Upon receiving any Request for Revolving Credit
Advance from a Revolving Borrower under Section 2.3 hereof, Agent shall
promptly notify each Revolving Credit Bank by wire, telex or telephone
(confirmed by wire, telecopy or telex) of the amount and currency of
such Advance to be made and the date such Advance is to be made by said
Bank pursuant to its Percentage of such Advance. Unless such Bank's
commitment to make Advances of the Revolving Credit hereunder shall
have been suspended or terminated in accordance with this Agreement,
each such Bank shall make available the amount of its Percentage of
each Advance in immediately available funds in the currency of such
Advance to Agent, as follows:
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(i) for Domestic Advances, at the office of
Agent located at One Detroit Center,
Detroit, Michigan 48226, not later than 3:00
p.m. (Detroit time) on the date of such
Advance; and
(ii) for Eurocurrency-based Advances, at the
Agent's Correspondent for the account of the
Eurocurrency Lending Office of the Agent,
not later than 12 noon (the time of the
Agent's Correspondent) on the date of such
Advance.
(b) Subject to submission of an executed Request for
Revolving Credit Advance by the applicable Revolving Borrower without
exceptions noted in the compliance certification therein, Agent shall
make available to the applicable Borrower, the aggregate of the amounts
so received by it from the Revolving Credit Banks in like funds and
currencies:
(i) for Domestic Advances, not later than 4:00
p.m. (Detroit time) on the date of such
Advance by credit to an account of such
Borrower maintained with Agent or to such
other account or third party as such
Borrower may reasonably direct; and
(ii) for Eurocurrency-based Advances, not later
than 4:00 p.m. (the time of the Agent's
Correspondent) on the date of such Advance,
by credit to an account of such Borrower
maintained with Agent's Correspondent or to
such other account or third party as such
Borrower may reasonably direct.
(c) Agent shall deliver the documents and papers
received by it for the account of each Bank to such
Bank or upon its order. Unless Agent shall have been
notified by any Revolving Credit Bank prior to the
date of any proposed Revolving Credit Advance that
such Bank does not intend to make available to Agent
such Bank's Percentage of such Advance, Agent may
assume that such Bank has made such amount available
to Agent on such date and in such currency, as
aforesaid and may, in reliance upon such assumption,
make available to the applicable Borrower a
corresponding amount. If such amount is not in fact
made available to Agent by such Bank, as aforesaid,
Agent shall be entitled to recover such amount on
demand from such Bank. If such Bank does not pay
such amount forthwith upon Agent's demand therefor,
the Agent shall promptly notify Autocam, and the
applicable Borrower shall pay such amount to Agent.
Agent shall also be entitled to recover from such
Bank or the applicable Borrower, as the case may be,
but without duplication, interest on such amount in
respect of each day from the date such amount was
made available by Agent to such Borrower, to the
date such amount is recovered by Agent, at a rate
per annum equal to:
(i) in the case of such Bank, for the first two
(2) Business Days such amount remains
unpaid, with respect to Domestic Advances,
the Federal Funds Effective Rate, and with
respect to Eurocurrency-based Advances,
Agent's aggregate marginal cost (including
the cost of maintaining any required
reserves or deposit insurance and of any
fees, penalties, overdraft charges or other
costs or expenses incurred by Agent as a
result of such failure to deliver funds
hereunder) of carrying such amount and
thereafter, at the rate of interest then
applicable to such Revolving Credit
Advances; and
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<PAGE> 35
(ii) in the case of such Borrower, the rate of
interest then applicable to such Advance of
the Revolving Credit.
The obligation of any Bank to make any Advance of the Revolving Credit
hereunder shall not be affected by the failure of any other Bank to
make any Advance hereunder, and no Bank shall have any liability to
Autocam or any of its Subsidiaries, the Agent, any other Bank, or any
other party for another Bank's failure to make any loan or Advance
hereunder. In the event any Revolving Credit Bank shall fail to advance
any amounts required to be advanced in accordance with the terms of
this Article 2 (a "Defaulting Bank"), the Agent shall promptly provide
written notice thereof to the Borrowers and to each other Revolving
Credit Bank (each such other Revolving Credit Bank being referred to in
this Section as a "Non-Defaulting Bank"). Each Non-Defaulting Bank
shall have ten (10) Business Days from receipt of said notice to
exercise its option to agree to enter into an agreement pursuant to
which the Non-Defaulting Bank shall assume the Defaulting Bank's rights
and obligations under this Agreement, its Notes and the other Loan
Documents. The Non-Defaulting Bank shall exercise such option by
providing written notice of same to the Defaulting Bank (and if there
is more than one Non-Defaulting Bank, the assignment agreement shall be
entered into with the Non-Defaulting Bank who first notifies the
Defaulting Bank of its decision to exercise said option) and to
Borrowers. If no Non-Defaulting Bank shall exercise the above-described
option within the said ten (10) Business Day period and if Borrowers
shall, within thirty (30) days of delivering the notice described
above, advise such Defaulting Bank of another bank or financial
institution willing to assume such Defaulting Bank's rights and
obligations under this Agreement, its Notes and the other Loan
Documents (each such bank or financial institution being hereinafter
referred to as a "Potential Financial Institution"), such Defaulting
Bank shall assign its said rights and obligations to the Potential
Financial Institution.
2.5 Swing Line Advances. (a) The Swing Line Bank shall, on the
terms and subject to the conditions hereinafter set forth (including without
limitation Section 2.5(c) hereof), make one or more advances in Dollars or in
any Alternative Currency (each such advance being a "Swing Line Advance") to any
of the Revolving Borrowers (provided that any Permitted Borrower requesting
Swing Line Advances hereunder has become a party to this Agreement, either by
execution and delivery of this Agreement, or by complying with the terms and
conditions set forth in Section 2.1(a) hereof), from time to time on any
Business Day during the period from the date hereof to (but excluding) the
Revolving Credit Maturity Date in an aggregate amount, based on the Dollar
Amount of any such Advances outstanding in Dollars and the Current Dollar
Equivalent of any such Advances outstanding in Alternative Currencies, not to
exceed at any time outstanding the Swing Line Maximum Amount. Swing Line Bank
shall maintain in accordance with its usual practice an account or accounts
evidencing indebtedness of each of the Revolving Borrowers to Swing Line Bank
resulting from each Swing Line Advance of such Bank from time to time, including
the amounts of principal and interest payable thereon and paid to such Bank from
time to time. The entries made in such account or accounts of Swing Line Bank
shall, to the extent permitted by applicable law, be conclusive evidence, absent
manifest error, of the existence and amounts of the obligations of the Revolving
Borrower therein recorded; provided, however, that the failure of Swing Line
Bank to maintain such account, as applicable, or any error therein, shall not in
any manner affect the obligation of each of each Revolving Borrower to repay the
Swing Line Advances (and all other amounts owing with respect thereto) made to
such Revolving Borrower by Swing Line Bank in accordance with the terms of this
Agreement. Advances, repayments and readvances under the Swing Line may be made,
subject to the terms and conditions of this Agreement. Each Swing Line Advance
shall mature and the principal amount thereof shall be due and payable by the
applicable Revolving Borrower on the last day of the Interest Period applicable
thereto (if any).
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<PAGE> 36
The Revolving Borrowers agree that, upon the written request of Swing
Line Bank (with a copy to Autocam), each of the Revolving Borrowers will execute
and deliver to Swing Line Bank Swing Line Notes; provided, that the delivery of
such Swing Line Notes shall not be a condition precedent to the Effective Date.
(b) Each Swing Line Advance shall, from time to time
after the date of such Advance, bear interest at its Applicable Interest Rate.
The amount and date of each Swing Line Advance, its Applicable Interest Rate,
its Interest Period, if any, and the amount and date of any repayment shall be
noted on Swing Line Bank's account maintained pursuant to Section 2.5(a), which
records will be conclusive evidence thereof, absent manifest error; provided,
however, that any failure by the Swing Line Bank to record any such information
shall not relieve the applicable Revolving Borrower of its obligation to repay
the outstanding principal amount of such Advance, all interest accrued thereon
and any amount payable with respect thereto in accordance with the terms of this
Agreement and the other Loan Documents.
(c) Autocam or a Permitted Borrower may request a Swing
Line Advance only after delivery to Swing Line Bank of a Request for Swing Line
Advance executed by a person previously authorized in a writing delivered to the
Agent by the applicable Revolving Borrower in writing to make such requests,
subject to the following and to the remaining provisions hereof:
(i) each such Request for Swing Line Advance shall set
forth the information required on the Request for Advance form annexed hereto as
Exhibit D, including without limitation:
(A) the proposed date of such Swing Line Advance,
which must be a Business Day;
(B) whether such Swing Line Advance is to be a
Prime-based Advance, a Eurocurrency-based Advance or a
Quoted Rate Advance;
(C) the duration of the Interest Period
applicable thereto; and
(D) in the case of a Eurocurrency-based Advance,
the Alternative Currency, if any in which such Advance is to
be made.
(ii) the Dollar Amount of the principal amount of such
requested Swing Line Advance, plus the aggregate principal amount of all other
Swing Line Advances then outstanding hereunder (including any other Swing Line
Advances requested to be made on such date) to any of the Revolving Borrowers
(using the Current Dollar Equivalent of any such Advances outstanding in any
Alternative Currency, determined pursuant to the terms hereof as of the date of
such requested Advance) shall not exceed the Swing Line Maximum Amount;
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<PAGE> 37
(iii) as of the proposed date of such Swing Line Advance,
the Dollar Amount of the principal amount of such requested Swing Line Advance,
plus the aggregate principal amount of all other Swing Line Advances and all
Advances of the Revolving Credit then outstanding hereunder (including any
Revolving Credit Advances or other Swing Line Advances requested to be made on
such date) to any of the Revolving Borrowers (using the Current Dollar
Equivalent of any such Advances outstanding in any Alternative Currency,
determined pursuant to the terms hereof as of the date of such requested
Advance), and the aggregate undrawn portion of any Letters of Credit which shall
be outstanding as of the date of the requested Swing Line Advance (based on the
Dollar Amount of the undrawn portion of any Letters of Credit denominated in
Dollars and the Current Dollar Equivalent of the undrawn portion of any Letters
of Credit denominated in any Alternative Currency), plus the aggregate face
amount of Letters of Credit requested but not yet issued (determined as
aforesaid), plus the unreimbursed amount of any draws under Letters of Credit
(using the Current Dollar Equivalent thereof for any Letters of Credit
denominated in any Alternative Currency) shall not exceed the then applicable
Revolving Credit Aggregate Commitment;
(iv) in the case of any Permitted Borrower, as of the
proposed date of such Swing Line Advance, the principal amount of the requested
Swing Line Advance to such Permitted Borrower (determined as aforesaid), plus
the aggregate principal amount of any other Swing Line Advances and all other
Advances then outstanding to such Permitted Borrower hereunder (including,
without duplication, Revolving Credit Advances or Swing Line Advances requested
to be made on such date) determined as aforesaid, plus the aggregate undrawn
portion of any Letters of Credit which shall be outstanding as of the date of
the requested Swing Line Advance for the account of such Permitted Borrower,
plus the aggregate face amount of any Letters of Credit requested but not yet
issued for the account of such Permitted Borrower hereunder (in each case
determined as aforesaid), plus the unreimbursed amount of any drawings under any
Letters of Credit (using the Current Dollar Equivalent thereof for any Letters
of Credit denominated in any Alternative Currency) issued for the account of
such Permitted Borrower, shall not exceed the applicable Permitted Borrower
Sublimit;
(v) in the case of a Prime-based Advance, the principal
amount of the initial funding of such Advance, as opposed to any refunding or
conversion thereof, shall be at least Two Hundred Fifty Thousand Dollars
($250,000);
(vi) in the case of a Eurocurrency-based Advance or a
Quoted Rate Advance, the principal amount of such Advance, the principal amount
of such Swing Line Advance plus the amount of any other outstanding Advance of
the Swing Line to be then combined therewith having the same Applicable Interest
Rate and Interest Period, if any, shall be, at least Two Hundred Fifty Thousand
Dollars ($250,000), and at any one time there shall not be in effect more than
(x) for Advances in Dollars, two (2) Applicable Interest Rates and Interest
Periods, and (y) for Advances in any Alternative Currency (other than
eurodollars), two (2) Applicable Interest Rates and Interest Periods for each
such currency;
(vii) each such Request for Swing Line Advance shall be
delivered to the Swing Line Bank (x) for each Advance in Dollars, by 2:00 p.m.
(Detroit time) on the proposed date of the Advance and (y) for each Advance in
any Alternative Currency, by 12:00 noon (Detroit time) two (2) Business Days
prior to the proposed date of Advance;
(viii) each Request for Swing Line Advance, once delivered
to Swing Line Bank, shall be irrevocable by the Revolving Borrowers, and shall
constitute and include a certification by the applicable Revolving Borrower as
of the date thereof that:
(A) both before and after such Swing Line Advance, the
obligations of the Borrowers and Guarantors set forth in this Agreement
and the other Loan Documents, are valid, binding and enforceable
obligations of the Borrowers and Guarantors;
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<PAGE> 38
(B) all conditions to the making of Swing Line Advances
have been satisfied (both before and after giving effect to such
Advance);
(C) both before and after the making of such Swing Line
Advance, there is no Default or Event of Default in existence; and
(D) Subject to the provisions of Section 6.14(b) both
before and after such Swing Line Advance, the representations and
warranties contained in this Agreement and the other Loan Documents are
true and correct in all material respects.
Swing Line Bank shall promptly deliver to Agent by telecopy a copy of any
Request for Advance received hereunder.
(d) Subject to submission of an executed Request for
Swing Line Advance by a Revolving Borrower without exceptions noted in
the compliance certification therein and to the other terms and
conditions hereof, Swing Line Bank shall make available to the
applicable Revolving Borrower the amount so requested, in like funds
and currencies, not later than:
(i) for Prime-based Advances or Quoted Rate
Advances, not later than 4:00 p.m. (Detroit time) on the date of such Advance by
credit to an account of the applicable Revolving Borrower maintained with Agent
or to such other account or third party as the Revolving Borrower may reasonably
direct in writing; and
(ii) for Eurocurrency-based Advances, not later than
4:00 p.m. (the time of the Agent's Correspondent) on the date of such Advance,
by credit to an account of the Revolving Borrower maintained with Agent's
Correspondent or to such other account or third party as the applicable
Revolving Borrower may reasonably direct.
Swing Line Bank shall promptly notify Agent of any Swing Line Advance by
telephone, telex or telecopier.
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<PAGE> 39
(e) (i) The Agent, at any time in its sole and
absolute discretion, may on behalf of the applicable Revolving Borrower (each of
which hereby irrevocably directs the Agent to act on its behalf) request each of
the Revolving Credit Banks (including the Swing Line Bank in its capacity as a
Bank) to make an Advance of the Revolving Credit to each of the Revolving
Borrowers, for each Permitted Currency in which Swing Line Advances are
outstanding to such party, in an amount (in the applicable Permitted Currency,
determined in accordance with Section 2.11(b) hereof) equal to such Revolving
Credit Bank's Percentage of the principal amount of the aggregate Swing Line
Advances outstanding in each Permitted Currency to each such party on the date
such notice is given (the "Refunded Swing Line Advances"); provided however that
Swing Line Advances which are carried at the Quoted Rate or the
Eurocurrency-based Rate which are converted to Revolving Credit Advances at the
request of the Agent at a time when no Default or Event of Default has occurred
and is continuing, shall not be subject to Section 12.1 and no losses, costs or
expenses may be assessed by the Swing Line Bank against any Revolving Borrower
or the Revolving Credit Banks as a consequence of such conversion. In the case
of each Refunded Swing Line Advance outstanding in Dollars, the applicable
Advance of the Revolving Credit used to refund such Swing Line Advance shall be
a Prime-based Advance. In the case of each Refunded Swing Line Advance
outstanding in any Alternative Currency, the applicable Advance of the Revolving
Credit used to refund such Swing Line Advance shall be an Advance in the
applicable Alternative Currency, with an Interest Period of one month (or any
lesser number of days selected by Agent in consultation with the Revolving
Credit Banks). In connection with the making of any such Refunded Swing Line
Advances or the purchase of a participation interest in Swing Line Advances
under Section 2.5(e)(ii) hereof, the Swing Line Bank shall retain its claim
against the applicable Revolving Borrower for any unpaid interest or fees in
respect thereof. Unless any of the events described in Section 10.1(k) hereof
shall have occurred (in which event the procedures of subparagraph (ii) of this
Section 2.5(e) shall apply) and regardless of whether the conditions precedent
set forth in this Agreement to the making of an Advance of the Revolving Credit
are then satisfied but subject to Section 2.5(e)(iii), each Revolving Credit
Bank shall make the proceeds of its Advance of the Revolving Credit available to
the Agent for the benefit of the Swing Line Bank at the office of the Agent
specified in Section 2.4(a) hereof prior to 11:00 a.m. Detroit time (for
Domestic Advances) on the Business Day next succeeding the date such notice is
given, and, in the case of any Eurocurrency-based Advance, prior to 2:00 p.m.
Detroit time on the third Business Day following the date such notice is given,
in each case in immediately available funds in the applicable Permitted
Currency. The proceeds of such Advances of the Revolving Credit shall be
immediately applied to repay the Refunded Swing Line Advances in accordance with
the provisions of Section 11.1 hereof.
(ii) If, prior to the making of an Advance of the
Revolving Credit pursuant to subparagraph (i) of this Section 2.5(e), one of the
events described in Section 10.1(k) hereof shall have occurred, each Revolving
Credit Bank will, on the date such Advance of the Revolving Credit was to have
been made, purchase from the Swing Line Bank an undivided participating interest
in each Refunded Swing Line Advance in an amount equal to its Percentage of such
Refunded Swing Line Advance. Each Revolving Credit Bank within the time periods
specified in Section 2.5(e)(i) hereof, as applicable, shall immediately transfer
to the Agent, in immediately available funds in the applicable Permitted
Currency of such Swing Line Advance, the amount of its participation and upon
receipt thereof the Agent will deliver to such Bank a Swing Line Participation
Certificate in the form of Exhibit E evidencing such participation.
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<PAGE> 40
(iii) Each Revolving Credit Bank's obligation to make
Advances of the Revolving Credit and to purchase participation interests in
accordance with clauses (i) and (ii) of this Section 2.5(e) shall be absolute
and unconditional and shall not be affected by any circumstance, including,
without limitation, (i) any set-off, counterclaim, recoupment, defense or other
right which such Bank may have against Swing Line Bank, the Revolving Borrowers
or any other Person for any reason whatsoever; (ii) the occurrence or
continuance of any Default or Event of Default; (iii) any adverse change in the
condition (financial or otherwise) of any Borrower or any other Person; (iv) any
breach of this Agreement by any Borrower or any other Person; (v) any inability
of the Borrowers to satisfy the conditions precedent to borrowing set forth in
this Agreement on the date upon which such participating interest is to be
purchased; (vi) the termination of the Revolving Credit Aggregate Commitment
hereunder; or (vii) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing. If any Revolving Credit Bank
does not make available to the Agent the amount required pursuant to clause (i)
or (ii) above, as the case may be, the Agent shall be entitled to recover such
amount on demand from such Bank, together with interest thereon for each day
from the date of non-payment until such amount is paid in full (x) for the first
two (2) Business Days such amount remains unpaid, at the Federal Funds Effective
Rate for Advances in Dollars (other than eurodollars) and for Eurocurrency-based
Advances, the Agent's marginal cost (including the cost of maintaining any
required reserves or deposit insurance and of any fees, penalties, overdraft
charges or other costs or expenses incurred by Agent as a result of such failure
to deliver funds hereunder) of carrying such amount and (y) thereafter, at the
rate of interest then applicable to such Swing Line Advances.
Notwithstanding the foregoing however no Revolving Credit Bank shall be
required to make any Revolving Credit Advance to refund a Swing Line Advance or
to purchase a participation in a Swing Line Advance if prior to the making of
the Swing Line Advance by the Swing Line Bank, the Agent had obtained actual
knowledge that an Event of Default had occurred and was continuing; provided,
however that the obligation of the Banks to make such Revolving Credit Advances
shall be reinstated upon the date of which such Event of Default has been waived
by the requisite Banks, as applicable.
2.6 Prime-based Interest Payments Interest on the unpaid balance
of all Prime-based Advances of the Revolving Credit and all Swing Line Advances
carried at the Prime-based Rate from time to time outstanding shall accrue from
the date of such Advance to the Revolving Credit Maturity Date (and until paid),
at a per annum interest rate equal to the Prime-based Rate, and shall be payable
in immediately available funds quarterly commencing on the first day of the
calendar quarter next succeeding the calendar quarter during which the initial
Advance of the Revolving Credit or Swing Line Advance, as the case may be, is
made and on the first day of each calendar quarter thereafter. Interest accruing
at the Prime-based Rate shall be computed on the basis of a 360 day year and
assessed for the actual number of days elapsed, and in such computation effect
shall be given to any change in the interest rate resulting from a change in the
Prime-based Rate on the date of such change in the Prime-based Rate.
2.7 Eurocurrency-based Interest Payments and Quoted Rate Interest
Payments
(a) Interest on each Eurocurrency-based Advance of the Revolving
Credit shall accrue at its Applicable Interest Rate and shall be payable in
immediately available funds on the last day of the Interest Period applicable
thereto (and, if any Interest Period shall exceed three months, then on the last
Business Day of the third month of such Interest Period, and at three month
intervals thereafter). Interest accruing at the Eurocurrency-based Rate shall be
computed on the basis of a 360 day year (except that any such Advances made in
Sterling or any other Alternative Currency with respect to which applicable law
or market custom so requires shall be calculated based on a 365 day year, or as
otherwise required under applicable law or market custom) and assessed for the
actual number of days elapsed from the first day of the Interest Period
applicable thereto to but not including the last day thereof. Interest due on a
Eurocurrency-based Advance made in an Alternative Currency shall be paid in such
Alternative Currency.
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<PAGE> 41
(b) Interest on each Quoted Rate Advance of the Swing Line shall
accrue at its Quoted Rate and shall be payable in immediately available funds on
the last day of the Interest Period applicable thereto. Interest accruing at the
Quoted Rate shall be computed on the basis of a 360 day year and assessed for
the actual number of days elapsed from the first day of the Interest Period
applicable thereto to, but not including the last day thereof. Interest due on a
Eurocurrency-based Advance made in an Alternative Currency shall be paid in such
Alternative Currency.
2.8 Interest Payments on Conversions Notwithstanding anything to
the contrary in the preceding sections, all accrued and unpaid interest on any
Advance converted pursuant to Section 2.3 hereof shall be due and payable in
full on the date such Advance is converted.
2.9 Interest on Default In the event and so long as any Event of
Default shall exist, interest shall be payable daily on all Eurocurrency-based
Advances of the Revolving Credit and Quoted Rate Advances from time to time
outstanding at a per annum rate equal to the Applicable Interest Rate plus two
percent (2%) for the remainder of the then existing Interest Period, if any, and
at all other such times, with respect to Prime-based Advances from time to time
outstanding, at a per annum rate equal to the Prime-based Rate plus two percent
(2%), and, with respect to Eurocurrency-based Advances thereof in any
Alternative Currency from time to time outstanding, (i) at a per annum rate
calculated by the Agent, whose determination shall be conclusive absent manifest
error, on a daily basis, equal to two percent (2%) above the interest rate per
annum at which one (1) day deposits (or, if such amount due remains unpaid for
more than three (3) Business Days, then for such other period of time as the
Agent may elect which shall in no event be longer than six (6) months) in the
relevant eurocurrency in the amount of such overdue payment due to the Agent are
offered by the Agent's Eurocurrency Lending Office for the applicable period
determined as provided above, or (ii) if at any such time such deposits are not
offered by Eurocurrency Lending Office, then at a rate per annum equal to two
percent (2%) above the rate determined by the Agent to be its aggregate marginal
cost (including the cost of maintaining any required reserves or deposit
insurance) of carrying the amount of such Eurocurrency-based Advance.
2.10 Prepayment of Revolving Credit Advances (a) The Revolving
Borrowers may prepay all or part of the outstanding balance of any Prime-based
Advance(s) of the Revolving Credit at any time, provided that the amount of any
partial prepayment shall be at least Five Hundred Thousand Dollars ($500,000)
and, after giving effect to any such partial prepayment, the aggregate balance
of Prime-based Advance(s) of the Revolving Credit remaining outstanding, if any,
shall be at least One Million Five Hundred Thousand Dollars ($1,500,000). The
Revolving Borrowers may prepay all or part of any Eurocurrency-based Advance
(subject to not less than two (2) Business Days' notice to Agent) provided that
the amount of any such partial prepayment shall be at least Five Hundred
Thousand Dollars ($500,000), or the Current Dollar Equivalent thereof in an
Alternative Currency, and, after giving effect to any such partial prepayment,
the unpaid portion of such Advance which is refunded or converted under Section
2.3 hereof shall be at least Two Million Five Hundred Thousand Dollars
($2,500,000) or the Current Dollar Equivalent thereof in an Alternative
Currency; provided further, however that if the prepayment of a
Eurocurrency-based Advance is made on a day other than the last Business Day of
the then current Interest Period applicable to such Eurocurrency-based Advance,
then, pursuant to Section 12.1, the applicable Borrower shall compensate the
Revolving Credit Banks for any losses.
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(b) Revolving Borrowers may prepay all or part of the
outstanding balance of any Swing Line Advance carried at the Prime-based Rate at
any time, provided that the amount of any partial prepayment shall be at least
Twenty Five Thousand Dollars ($25,000) and, after giving effect to any such
partial prepayment, the aggregate balance of such Swing Line Advances remaining
outstanding, if any, shall be at least One Hundred Thousand Dollars ($100,000).
The Revolving Borrowers may prepay all or part of any Swing Line Advances
carried at the Eurocurrency-based Rate or the Quoted Rate (subject to not less
than two (2) Business Days' notice to Swing Line Bank and Agent), provided that
the amount of any such partial payment shall be at least Twenty Five Thousand
Dollars ($25,000), after giving effect of any such partial prepayment, and the
unpaid portion of such Advance which is refunded or converted under Section
2.5(c) hereof shall be at least Two Hundred Fifty Thousand Dollars ($250,000);
provided further, however that if the prepayment of such Advance is made on a
day other than the last Business Day of the then current Interest Period
applicable to such Advance (if any), then, pursuant to Section 12.1, the
applicable Borrower shall compensate the Revolving Credit Banks for any losses.
(c) Any prepayment made in accordance with this Section
shall be subject to Section 12.1 hereof, but otherwise without premium, penalty
or prejudice to the right to readvance under the terms of this Agreement.
2.11 Determination, Denomination and Redenomination of Alternative
Currency Advances. Whenever, pursuant to any provision of this Agreement:
(a) an Advance of the Revolving Credit is initially
funded, as opposed to any refunding or conversion thereof, in an Alternative
Currency, the amount to be advanced hereunder will be the equivalent in such
Alternative Currency of the Dollar Amount of such Advance;
(b) an existing Advance of the Revolving Credit
denominated in an Alternative Currency is to be refunded, in whole or in part,
with an Advance denominated in the same Alternative Currency, the amount of the
new Advance shall be continued in the amount of the Alternative Currency so
refunded;
(c) an existing Advance of the Revolving Credit
denominated in an Alternative Currency is to be converted, in whole or in part,
to an Advance denominated in another Alternative Currency, the amount of the new
Advance shall be that amount of the Alternative Currency of the new Advance
which may be purchased, using the most favorable spot exchange rate determined
by Agent to be available to it for the sale of Dollars for such other
Alternative Currency at approximately 11:00 a.m. (Detroit time) two (2) Business
Days prior to the last day of the Eurocurrency Interest Period applicable to the
existing Advance, with the Dollar Amount of the existing Advance, or portion
thereof being converted; and
(d) an existing Advance of the Revolving Credit
denominated in an Alternative Currency is to be converted, in whole or in part,
to an Advance denominated in Dollars, the amount of the new Advance shall be the
Dollar Amount of the existing Advance, or portion thereof being converted
(determined as aforesaid).
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2.12 Prime-based Advance in Absence of Election or Upon Default If,
(a) as to any outstanding Eurocurrency-based Advance of the Revolving Credit,
Agent has not received payment of all outstanding principal and accrued interest
on the last day of the Interest Period applicable thereto, or does not receive a
timely Request for Advance meeting the requirements of Section 2.3 or 2.5(c)
hereof with respect to the refunding or conversion of such Advance, or (b) if
any Advance denominated in an Alternative Currency or any deemed Advance under
Section 3.6 hereof in respect of a Letter of Credit denominated in an
Alternative Currency cannot be refunded or made, as the case may be, in such
Alternative Currency by virtue of Section 12.3 hereof, or (c) subject to Section
2.9 hereof, if on such day a Default or an Event of Default shall have occurred
and be continuing, then the principal amount thereof which is not then prepaid
in the case of a Eurocurrency-based Advance shall, absent a contrary election of
the Majority Revolving Credit Banks, be converted automatically to a Prime-based
Advance and the Agent shall thereafter promptly notify Autocam of said action.
If a Eurocurrency-based Advance converted hereunder is payable in an Alternative
Currency, the Prime-based Advance shall be in an amount equal to the Dollar
Amount of such Eurocurrency-based Advance at such time and the Agent and the
Revolving Credit Banks shall use said Prime-based Advance to fund payment of the
Alternative Currency obligation, all subject to the provisions of Section 2.14
hereof. Revolving Borrowers shall reimburse the Agent and the Banks on demand
for any costs incurred by the Agent or any of the Banks, as applicable,
resulting from the conversion pursuant to this Section 2.12 of
Eurocurrency-based Advances payable in an Alternative Currency to Prime-based
Advances.
2.13 Revolving Credit Facility Fee From the Effective Date to the
Revolving Credit Maturity Date, the Revolving Borrowers shall pay to the Agent
for distribution to the Revolving Credit Banks pro-rata in accordance with their
respective Percentages, a Revolving Credit Facility Fee quarterly in arrears
commencing January 1, 1999 (in respect of the prior fiscal quarter or portion
thereof), and on the first day of each fiscal quarter thereafter. The Revolving
Credit Facility Fee shall be equal to the Revolving Credit Aggregate Commitment
(whether used or unused) times the Applicable Fee Percentage computed on a daily
basis. The Revolving Credit Facility Fee shall be computed on the basis of a
year of three hundred sixty (360) days and assessed for the actual number of
days elapsed. Whenever any payment of the Revolving Credit Facility Fee shall be
due on a day which is not a Business Day, the date for payment thereof shall be
extended to the next Business Day. Upon receipt of such payment, Agent shall
make prompt payment to each Revolving Credit Bank of its share of the Revolving
Credit Facility Fee based upon its respective Percentage. It is expressly
understood that the Revolving Credit Facility Fees described in this Section are
not refundable under any circumstances.
2.14 Currency Appreciation; Mandatory Reduction of Indebtedness
(a) Revolving Credit Aggregate Commitment. If at any time and for
any reason, the sum of the aggregate outstanding principal amount of all
Revolving Credit Advances and all Swing Line Advances in Dollars and the
aggregate outstanding Current Dollar Equivalent of all Revolving Credit Advances
and all Swing Line Advances in any Alternative Currency as of such time, plus
the aggregate amount of Letter of all Credit Obligations which shall be
outstanding (based on the Dollar Amount of the undrawn portion of any Letters of
Credit denominated in Dollars and the Current Dollar Equivalent of the undrawn
portion of any Letters of Credit denominated in any Alternative Currency), as of
such time exceeds the applicable Revolving Credit Aggregate Commitment (as used
in this clause (a), the "Excess"), the Revolving Borrowers shall:
(i) immediately repay that portion of such Indebtedness
then carried as a Prime-based Advance, if any, by the Dollar Amount of
such Excess, and/or reduce any pending request for an Advance in
Dollars on such day by the Dollar Amount of the Excess, to the extent
thereof; and
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(ii) on the last day of each Interest Period of any
Eurocurrency-based Advance outstanding as of such time, until the
necessary reductions of Indebtedness under this Section 2.14(a) have
been fully made, repay the Indebtedness carried in such Advances and/or
reduce any requests for refunding or conversion of such Advances
submitted (or to be submitted) by the applicable Borrower in respect of
such Advances, by the amount in Dollars or the applicable Alternative
Currency, as the case may be, of the Excess, to the extent thereof.
Compliance with this Section 2.14(a) shall be tested on a daily or other basis
satisfactory to Agent in its sole discretion; provided that, so long as no
Default or Event of Default has occurred and is continuing, at any time while
the aggregate Advances of the Revolving Credit available to be borrowed
hereunder (based on the Revolving Credit Aggregate Commitment then in effect)
equal or exceed Ten Million Dollars ($10,000,000), compliance with this Section
2.14(a) shall be tested as of the last day of each calendar quarter.
Notwithstanding the foregoing, upon the occurrence and during the continuance of
any Default or Event of Default, or if any Excess remains after recalculating
said Excess based on ninety-five percent (95%) of the Current Dollar Equivalent
of any Advances or Letters of Credit denominated in Alternative Currencies (and
one hundred percent (100%) of any Advances or Letters of Credit denominated in
Dollars), the Revolving Borrowers shall be obligated immediately to reduce the
foregoing Indebtedness hereunder by an amount sufficient to eliminate such
Excess.
(b) Multicurrency Sublimit. If at any time and for any reason, the
sum of the aggregate Current Dollar Equivalent of (i) all Revolving Credit
Advances plus all Swing Line Advances outstanding hereunder in any Alternative
Currency plus (ii) all Letter of Credit Obligations denominated in any
Alternative Currency, exceeds the Multicurrency Sublimit (as used in this clause
(b), the "Excess"), then in each case, the Revolving Borrowers shall:
(i) immediately reduce on such day any pending request
for an Advance in any Alternative Currency submitted by any Revolving
Borrower by the Dollar Amount of such Excess, to the extent thereof;
and
(ii) on the last day of each Interest Period of any
Advance outstanding in any Alternative Currency to any Revolving
Borrower as of such time, until the necessary reductions of
Indebtedness under this Section 2.14(b) have been fully made, repay
such Indebtedness carried in such Advances and/or reduce any requests
for refunding or conversion of such Advances submitted (or to be
submitted) by the Borrower in respect of such Advances, by the amount
in the applicable Alternative Currency, as the case may be, of such
Excess, to the extent thereof.
Provided that no Default or Event of Default has occurred and is continuing,
compliance with this Section 2.14(b) shall be tested as of the last day of each
calendar quarter or, upon the written request of the Revolving Borrowers from
time to time, as of the last day of each calendar month, provided the Revolving
Borrowers furnish Agent with current monthly financial statements complying with
the requirements set forth in Section 8.1(b) hereof. Upon the occurrence and
during the continuance of any Default or Event of Default, compliance with this
Section 2.14(b) shall be tested on a daily or other basis satisfactory to Agent
in its sole discretion.
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(c) Permitted Borrower Sublimit. If at any time and for any reason
with respect to any Permitted Borrower, the aggregate principal amount (tested
in the manner set forth in clause (a) above) of all Revolving Credit Advances
and all Swing Line Advances outstanding hereunder to such Permitted Borrower,
plus the aggregate undrawn portion of all Letter of Credit Obligations for the
account of such Permitted Borrower (tested in the manner set forth in clause (a)
above), which Advances and Letters of Credit are made or issued, or to be made
or issued, in Dollars and ninety percent (90%) of the aggregate Current Dollar
Equivalent of all such Advances and Letters of Credit (including unreimbursed
draws) hereunder for the account of such Permitted Borrower in any Alternative
Currency as of such time, exceeds the Permitted Borrower Sublimit applicable to
such Permitted Borrower (as used in this clause (c), the "Excess"), then in each
case, such Permitted Borrower shall:
(i) immediately repay that portion of the Indebtedness
outstanding to such Permitted Borrower then carried as a Prime-based
Advance, if any, by the Dollar Amount of such Excess, and/or reduce on
such day any pending request for an Advance in Dollars submitted by
such Permitted Borrower by the Dollar Amount of such Excess, to the
extent thereof; and
(ii) on the last day of each Interest Period of any
Eurocurrency-based Advance outstanding to such Permitted Borrower as of
such time, until the necessary reductions of Indebtedness under this
Section 2.14(c) have been fully made, repay such Indebtedness carried
in such Advances and/or reduce any requests for refunding or conversion
of such Advances submitted (or to be submitted) by such Permitted
Borrower in respect of such Advances, by the amount in Dollars or the
applicable Alternative Currency, as the case may be, of such Excess, to
the extent thereof.
Provided that no Default or Event of Default has occurred and is continuing,
each Permitted Borrower's compliance with this Section 2.14(c) shall be tested
as of the last day of each calendar quarter or, upon the written request of the
Permitted Borrowers from time to time, as of the last day of each calendar
month, provided the Revolving Borrowers furnish Agent with current monthly
financial statements complying with the requirements set forth in Section 8.1(b)
hereof. Upon the occurrence and during the continuance of any Default or Event
of Default, compliance with this Section 2.14(c) shall be tested on a daily or
other basis satisfactory to Agent in its sole discretion.
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2.15 Optional Reduction or Termination of Revolving Credit
Aggregate Commitment. Provided that no Default or Event of Default has occurred
and is continuing, Autocam may upon at least five Business Days' prior written
notice to the Agent, permanently reduce the Revolving Credit Aggregate
Commitment in whole at any time, or in part from time to time, without premium
or penalty, provided that: (i) each partial reduction of the Revolving Credit
Aggregate Commitment shall be in an aggregate amount equal to Five Million
Dollars ($5,000,000) or a larger integral multiple of One Million Dollars
($1,000,000); (ii) each reduction shall be accompanied by the payment of the
Revolving Credit Facility Fee, if any, accrued to the date of such reduction;
(iii) the applicable Borrower shall prepay in accordance with the terms hereof
the amount, if any, by which the aggregate unpaid principal amount of Advances
(using the Current Dollar Equivalent of any such Advance outstanding in any
Alternative Currency) of the Revolving Credit, plus the aggregate principal
amount of Swing Line Advances outstanding hereunder, plus the aggregate undrawn
amount of outstanding Letter of Credit Obligations (using the Current Dollar
Equivalent thereof for any Letters of Credit denominated in any Alternative
Currency), exceeds the amount of the then applicable Revolving Credit Aggregate
Commitment as so reduced, together with interest thereon to the date of
prepayment; and (iv) no reduction shall reduce the Revolving Credit Aggregate
Commitment to an amount which is less than the aggregate undrawn amount of any
Letters of Credit outstanding at such time; provided, however that if the
termination or reduction of the Revolving Credit Aggregate Commitment requires
the prepayment of a Eurocurrency-based Advance or a Quoted Rate Advance and
such termination or reduction is made on a day other than the last Business Day
of the then current Interest Period applicable to such Eurocurrency-based
Advance or such Quoted Rate Advance, then, pursuant to Section 12.1, the
applicable Borrower shall compensate the Revolving Credit Banks for any losses.
Reductions of the Revolving Credit Aggregate Commitment and any accompanying
prepayments of Advances of the Revolving Credit shall be distributed by Agent
to each Revolving Credit Bank in accordance with such Bank's Percentage
thereof, and will not be available for reinstatement by or readvance to any
Borrower, and any accompanying prepayments of Advances of the Swing Line shall
be distributed by Agent to the Swing Line Bank and will not be available for
reinstatement by or readvance to the Borrowers. Any reductions of the Revolving
Credit Aggregate Commitment hereunder shall reduce each Bank's portion thereof
proportionately (based on the applicable Percentages), and shall be permanent
and irrevocable. Any payments made pursuant to this Section shall be applied
first to outstanding Prime-based Advances under the Revolving Credit, next to
Swing Line Advances carried at the Prime-based Rate, next to Eurocurrency-based
Advances of the Revolving Credit and then to Swing Line Advances carried at the
Quoted Rate.
2.16 Extension of Revolving Credit Maturity Date (a) Provided that
no Default or Event of Default has occurred and is continuing, Revolving
Borrowers may, by written notice to Agent (with sufficient copies for each
Revolving Credit Bank) (which notice shall be irrevocable and which shall not
be deemed effective unless actually received by Agent) prior to October 31, but
not before October 1 of each year beginning in 1999, request that the Revolving
Credit Banks extend the then applicable Revolving Credit Maturity Date to a
date that is one year later than the Revolving Credit Maturity Date then in
effect (each such request, a "Request"). Each Revolving Credit Bank shall, not
later than December 1 of such year, give written notice to the Agent stating
whether such Bank is willing to extend the Revolving Credit Maturity Date as
requested. If Agent has received the aforesaid written approvals of such
Request from each of the Revolving Credit Banks, then, effective upon the date
of Agent's receipt of all such written approvals from the Banks, as aforesaid,
the Revolving Credit Maturity Date shall be so extended for such additional one
year period, the term Revolving Credit Maturity Date shall mean such extended
date and Agent shall promptly notify the Borrowers that such extension has
occurred.
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(b) If (i) any Revolving Credit Bank gives the Agent
written notice that it is unwilling to extend the Revolving Credit Maturity
Date as requested or (ii) any Revolving Credit Bank fails to provide written
approval to Agent of such a Request on or before December 15 of such year, then
(w) the Revolving Credit Banks shall be deemed to have declined to extend the
Revolving Credit Maturity Date, (x) the then-current Revolving Credit Maturity
Date shall remain in effect (with no further right on the part of Borrowers to
request extensions thereof under this Section 2.16), and (y) the commitments of
the Revolving Credit Banks to make Advances of the Revolving Credit hereunder
shall terminate on the Revolving Credit Maturity Date then in effect, and Agent
shall promptly notify Revolving Borrowers thereof.
2.17 Application of Advances. Advances of the Revolving Credit
(including Swing Line Advances) shall be available, subject to the terms hereof,
to fund working capital needs, Permitted Acquisitions or other general corporate
purposes of the Borrowers.
3. LETTERS OF CREDIT
3.1 Letters of Credit. Subject to the terms and conditions of this
Agreement, Agent shall through the Issuing Office, at any time and from time to
time from and after the date hereof until thirty (30) days prior to the
Revolving Credit Maturity Date, upon the written request of an Account
Party(ies) accompanied by a duly executed Letter of Credit Agreement and such
other documentation related to the requested Letter of Credit as the Agent may
require, issue Letters of Credit for the account of such Account Party(ies), in
an aggregate amount for all Letters of Credit issued hereunder at any one time
outstanding not to exceed the Letter of Credit Maximum Amount. Each Letter of
Credit shall be in a minimum face amount of One Hundred Thousand Dollars
($100,000) (or such lesser amount as may be agreed to by Issuing Bank) and each
Letter of Credit (including any renewal thereof) shall expire on the earlier to
occur of (x) 1 year from the date of issuance and (y) not later than ten (10)
Business Days prior to the Revolving Credit Maturity Date in effect on the date
of issuance thereof. The submission of all applications in respect of and the
issuance of each Letter of Credit hereunder shall be subject in all respects to
the Uniform Customs and Practices for Documentary Credits of the International
Chamber of Commerce, 1993 Revisions, ICC Publication No. 500. Each application
for Letter of Credit shall have noted on the first page thereof, or shall be
deemed to have noted thereon:
"Note: This application is entered into in accordance with
that certain Autocam Amended and Restated Revolving Credit and Term
Loan Agreement dated as of October 1, 1998, as amended or otherwise
modified from time to time (the "Credit Agreement") among the Banks
signatory thereto and Comerica Bank, as Agent for the Banks and Autocam
Corporation and in the event of a conflict between this application and
the Credit Agreement, the terms and conditions of the Credit Agreement
shall govern."
3.2 Conditions to Issuance. No Letter of Credit shall be issued at
the request and for the account of any Account Party(ies) unless, as of the
date of issuance of such Letter of Credit:
(a) in the case of any Account Party:
(i) the face amount of the Letter of Credit
requested plus the face amount of all other Letters of Credit
of all Account Parties requested on such date (based on the
Dollar Amount of any Letter of Credit denominated in any
Alternative Currency), plus the aggregate amount of all other
Letter of Credit Obligations then outstanding (using the
Current Dollar Equivalent of the undrawn portion of any
Letter of Credit denominated in any Alternative Currency),
does not exceed the Letter of Credit Maximum Amount;
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(ii) the face amount of the Letter of Credit
requested plus the face amount of all other Letters of Credit
of any Account Party requested on such date (based on the
Dollar Amount of any Letter of Credit denominated in any
Alternative Currency) plus the Dollar Amount of the principal
amount of any Advances of the Revolving Credit and of the
Swing Line being requested by any Revolving Borrower on such
date) does not exceed the Maximum Availability;
(iii) of a Letter of Credit to be denominated in an
Alternative Currency, the Dollar Amount of the face amount of
such Letter of Credit requested plus the Dollar Amount of the
face amount of all other Letters of Credit denominated in any
Alternative Currency of any Account Party requested on such
date plus the Dollar Amount of the principal amount of any
Advances of the Revolving Credit being requested by any
Revolving Borrower in any Alternative Currency on such date
does not exceed the Maximum Multicurrency Availability;
(iv) in the case of any Permitted Borrower, the
Dollar Amount of the face amount of such Letter of Credit
requested plus the Dollar Amount of the face amount of all
other Letters of Credit to be issued for the account of such
Permitted Borrower requested on such date plus the Dollar
Amount of the principal amount of any Advances of the
Revolving Credit or of the Swing Line Credit being requested
by such Permitted Borrower on such date does not exceed the
Permitted Borrower Sublimit applicable to the Permitted
Borrower; and
(v) which is a Permitted Borrower, it has complied
in all respects with the provisions of Section 2.1(a) hereof;
(b) the obligations of the Borrowers set forth in this
Agreement and the other Loan Documents are valid, binding and enforceable
obligations of the Borrowers and the valid, binding and enforceable nature of
this Agreement and the other Loan Documents has not been disputed by the
Borrowers;
(c) the representations and warranties contained in this
Agreement and the other Loan Documents are true in all material respects as if
made on such date, except to the extent (x) a representation or warranty is made
as of a specific date or (y) Borrowers have notified Agent of occurrences or
provided information after the Effective Date to supplement such representations
or warranties which are no longer true and correct in all material respects and
such occurrences or supplemental information do not constitute a Default or
Event of Default, and both immediately before and immediately after issuance of
the Letter of Credit requested, no Default or Event of Default exists;
(d) the execution of the Letter of Credit Agreement with
respect to the Letter of Credit requested will not violate the terms and
conditions of any contract, agreement or other borrowing of the relevant Account
Party;
(e) the Account Party requesting the Letter of Credit
shall have delivered to Agent at its Issuing Office, not less than three (3)
Business Days prior to the requested date for issuance (or such shorter time as
the Agent, in its sole discretion, may permit), the Letter of Credit Agreement
related thereto, together with such other documents and materials as may be
required pursuant to the terms thereof, and the terms of the proposed Letter of
Credit shall be satisfactory to Agent;
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(f) no order, judgment or decree of any court, arbitrator
or governmental authority shall purport by its terms to enjoin or restrain Agent
from issuing the Letter of Credit requested, or any Revolving Credit Bank from
taking an assignment of its Percentage thereof pursuant to Section 3.6 hereof,
and no law, rule, regulation, request or directive (whether or not having the
force of law) shall prohibit or request that Agent refrain from issuing, or any
Revolving Credit Bank refrain from taking an assignment of its Percentage of,
the Letter of Credit requested or letters of credit generally;
(g) there shall have been no introduction of or change in
the interpretation of any law or regulation that would make it unlawful or
unduly burdensome for the Agent to issue or any Revolving Credit Bank to take an
assignment of its Percentage of the requested Letter of Credit, no suspension of
or material limitation on trading on the New York Stock Exchange or any other
national securities exchange, no declaration of a general banking moratorium by
banking authorities in the United States, Michigan or the respective
jurisdictions in which the Revolving Credit Banks, the applicable Account Party
and the beneficiary of the requested Letter of Credit are located, and no
establishment of any new restrictions on transactions involving letters of
credit or on banks materially affecting the extension of credit by banks; and
(h) Agent shall have received the issuance fees required
in connection with the issuance of such Letter of Credit pursuant to Section 3.4
hereof.
Each Letter of Credit Agreement submitted to Agent pursuant hereto shall
constitute the certification by the Borrowers and the Account Party of the
matters set forth in Section 3.2 (a) through (d) hereof. The Agent shall be
entitled to rely on such certification without any duty of inquiry.
3.3 Notice. Agent shall give notice, substantially in the form
attached as Exhibit F, to each Revolving Credit Bank of the issuance of each
Letter of Credit, not later than three (3) Business Days after issuance of each
Letter of Credit, specifying the amount thereof and the amount of such Bank's
Percentage thereof.
3.4 Letter of Credit Fees. Revolving Borrowers shall pay to the
Agent for distribution to the Revolving Credit Banks in accordance with their
Percentages, letter of credit fees as follows:
(a) A per annum letter of credit fee with respect to the
undrawn amount of each Letter of Credit issued pursuant hereto (based on the
Dollar Amount of any Letters of Credit denominated in Dollars and the Current
Dollar Equivalent of any Letters of Credit denominated in any Alternative
Currency) in the amount of the Applicable Fee Percentage (determined with
reference to Schedule 1.1 to this Agreement).
(b) A letter of credit facing fee in the amount equal to
one-eighth percentage point (0.125%) per annum on the undrawn amount of each
Letter of Credit to be retained by Agent for its own account.
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(c) If any change in any law or regulation or in the
interpretation thereof by any court or administrative or governmental authority
charged with the administration thereof shall either (i) impose, modify or cause
to be deemed applicable any reserve, special deposit, limitation or similar
requirement against letters of credit issued or participated in by, or assets
held by, or deposits in or for the account of, Agent or any Revolving Credit
Bank or (ii) impose on Agent or any Revolving Credit Bank any other condition
regarding this Agreement, the Letters of Credit or any participations in such
Letters of Credit, and the result of any event referred to in clause (i) or (ii)
above shall be to increase the cost or expense to Agent or such Bank of issuing
or maintaining or participating in any of the Letters of Credit (which increase
in cost or expense shall be determined by the Agent's or such Bank's reasonable
allocation of the aggregate of such cost increases and expenses resulting from
such events), then, upon demand by the Agent or such Bank, as the case may be,
the applicable Account Party shall, within thirty (30) days following demand for
payment, pay to Agent or such Bank, as the case may be, from time to time as
specified by the Agent or such Bank, additional amounts which shall be
sufficient to compensate the Agent or such Bank for such increased cost and
expense, together with interest on each such amount from ten days after the date
demanded until payment in full thereof at the Prime-based Rate. A certificate as
to such increased cost or expense incurred by the Agent or such Bank, as the
case may be, as a result of any event mentioned in clause (i) or (ii) above,
submitted to the applicable Account Party, shall be conclusive evidence, absent
manifest error, as to the amount thereof.
(d) All payments by the Revolving Borrowers to the Agent
or the Revolving Credit Banks under this Section 3.4 shall be made in Dollars
and in immediately available funds at the Issuing Office or such other office
of the Agent as may be designated from time to time by written notice to the
Borrowers by the Agent. The fees described in clause (a) and (b) above shall be
nonrefundable under all circumstances, shall be payable quarterly in advance
(or such lesser period, if applicable, for Letters of Credit issued with stated
expiration dates of less than three months) upon the issuance of each such
Letter of Credit, and shall be calculated on the basis of a 360 day year and
assessed for the actual number of days from the date of the issuance thereof to
the stated expiration thereof.
3.5 Other Fees. In connection with the Letters of Credit, and in
addition to the Letter of Credit Fees, the Borrowers and the applicable Account
Party(ies) shall pay, for the sole account of the Agent, standard documentation,
administration, payment and cancellation charges assessed by Agent or the
Issuing Office, at the times, in the amounts and on the terms set forth or to be
set forth from time to time in the standard fee schedule of the Issuing Office
in effect from time to time and delivered to the relevant Account Party(ies).
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3.6 Drawings and Demands for Payment Under Letters of Credit.
(a) The Revolving Borrowers and each applicable Account
Party agree to pay to the Agent, on the day on which the Agent shall honor a
draft or other demand for payment presented or made under any Letter of Credit,
an amount equal to the amount paid by the Agent in respect of such draft or
other demand under such Letter of Credit and all expenses paid or incurred by
the Agent relative thereto. Unless the Revolving Borrowers or the applicable
Account Party shall have made such payment to the Agent on such day, upon each
such payment by the Agent, the Agent shall be deemed to have disbursed to the
Borrowers or the applicable Account Party, and the Borrowers or the applicable
Account Party shall be deemed to have elected to substitute for its
reimbursement obligation, with respect to Letters of Credit denominated in
Dollars, a Prime-based Advance of the Revolving Credit and, with respect to
Letters of Credit denominated in any Alternative Currency, a Eurocurrency-based
Advance of the Revolving Credit in the applicable Alternative Currency with an
Interest Period, commencing three (3) Business Days following the date of
Agent's payment pursuant to the applicable Letter of Credit, of one month (or,
if unavailable, such other Interest Period as selected by Agent in its sole
discretion), in each case for the account of the Revolving Credit Banks in an
amount equal to the amount so paid by the Agent in respect of such draft or
other demand under such Letter of Credit. Such Prime-based Advance or
Eurocurrency-based Advance shall be deemed disbursed notwithstanding any
failure to satisfy any conditions for disbursement of any Advance set forth in
Section 2 hereof and, to the extent of the Advances so disbursed, the
reimbursement obligation of the Borrowers or the applicable Account Party under
this Section 3.6 shall be deemed satisfied, provided that, with respect to any
such Eurocurrency-based Advance deemed to have been made hereunder, the
Borrowers or the applicable Permitted Borrower shall also be obligated to pay
to the Agent, for Agent's sole account, interest on the aggregate amount paid
by the Agent under the applicable draft or other demand for payment at Agent's
aggregate marginal cost (including the cost of maintaining any required
reserves or deposit insurance and of any fees, penalties, overdraft charges or
other costs or expenses incurred by Agent as a result of such failure to
deliver funds hereunder) of carrying such amount plus the Applicable Margin
then in effect for Eurocurrency-based Advances, from the date of Agent's
payment pursuant to any Letter of Credit to the date of the commencement of the
Interest Period for the applicable Eurocurrency-based Advance deemed to have
been made, as aforesaid, such interest (the "Gap Interest") to be due and
payable on the last day of the initial Interest Period established for such
deemed Advance.
(b) If the Agent shall honor a draft or other demand for
payment presented or made under any Letter of Credit, the Agent shall provide
notice thereof to the Borrowers and the applicable Account Party on the date
such draft or demand is honored, and to each Bank on such date unless the
Borrowers or applicable Account Party shall have satisfied its reimbursement
obligation under Section 3.6(a) hereof by payment to the Agent on such date. The
Agent shall further use reasonable efforts to provide notice to the Borrowers or
applicable Account Party prior to honoring any such draft or other demand for
payment, but such notice, or the failure to provide such notice, shall not
affect the rights or obligations of the Agent with respect to any Letter of
Credit or the rights and obligations of the parties hereto, including without
limitation the obligations of the Borrowers or applicable Account Party under
Section 3.6(a) hereof.
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(c) Upon issuance by the Agent of each Letter of Credit
hereunder, each Revolving Credit Bank shall automatically acquire a pro rata
participation interest in such Letter of Credit and each related Letter of
Credit Payment based on its respective Revolving Credit Percentage. Each
Revolving Credit Bank, on the date a draft or demand under any Letter of Credit
is honored (or the next succeeding Business Day if the notice required to be
given by Agent to the Banks under Section 3.6(b) hereof is not given to the
Revolving Credit Banks prior to 2:00 p.m. (Detroit time) on such date of draft
or demand) or three (3) Business Days thereafter in respect of draws or demands
under Letters of Credit issued in any Alternative Currency, shall make its
Percentage of the amount paid by the Agent, and not reimbursed by the Borrowers
or applicable Account Party on such day, available in the applicable Permitted
Currency and in immediately available funds at the principal office of the Agent
for the account of the Agent. If and to the extent such Bank shall not have made
such pro rata portion available to the Agent, such Bank, the Borrowers and the
applicable Account Party severally agree to pay to the Agent forthwith on demand
such amount together with interest thereon, for each day from the date such
amount was paid by the Agent until such amount is so made available to the Agent
at a per annum rate equal to the interest rate applicable during such period to
the related Advance deemed to have been disbursed under Section 3.6(a) in
respect of the reimbursement obligation of the Borrowers and the applicable
Account Party, as set forth in Section 2.4(c)(i) or 2.4(c)(ii) hereof, as the
case may be. If such Bank shall pay such amount to the Agent together with such
interest, such amount so paid shall be deemed to constitute an Advance by such
Bank disbursed in respect of the reimbursement obligation of the Borrowers or
applicable Account Party under Section 3.6(a) hereof for purposes of this
Agreement, effective as of the dates applicable under said Section 3.6(a). The
failure of any Revolving Credit Bank to make its pro rata portion of any such
amount paid by the Agent available to the Agent shall not relieve any other
Revolving Credit Bank of its obligation to make available its pro rata portion
of such amount, but no Bank shall be responsible for failure of any other Bank
to make such pro rata portion available to the Agent. Furthermore, in the event
of the failure by applicable Borrowers to pay the Gap Interest required under
the proviso to Section 3.6(a) hereof, each of the Revolving Credit Banks shall
pay to Agent, within one Business Day following receipt from Agent of written
request therefor, its pro rata portion of said Gap Interest, excluding any
portion thereof attributable to the Applicable Margin.
(d) Nothing in this Agreement shall be construed to
require or authorize any Bank to issue any Letter of Credit, it being recognized
that the Agent shall be the sole issuer of Letters of Credit under this
Agreement.
3.7 Obligations Irrevocable. The obligations of the Revolving
Borrowers and any Account Party to make payments to Agent or the Revolving
Credit Banks with respect to Letter of Credit Obligations under Section 3.6
hereof, shall be unconditional and irrevocable and not subject to any
qualification or exception whatsoever, including, without limitation:
(a) Any lack of validity or enforceability of any Letter
of Credit or any documentation relating to any Letter of Credit or to any
transaction related in any way to any Letter of Credit (the "Letter of Credit
Documents");
(b) Any amendment, modification, waiver, consent, or any
substitution, exchange or release of or failure to perfect any interest in
collateral or security, with respect to or under any of the Letter of Credit
Documents;
(c) The existence of any claim, setoff, defense or other
right which the Borrowers or any Account Party may have at any time against any
beneficiary or any transferee of any Letter of Credit (or any persons or
entities for whom any such beneficiary or any such transferee may be acting),
the Agent or any Revolving Credit Bank or any other person or entity, whether in
connection with any of the Letter of Credit Documents, the transactions
contemplated herein or therein or any unrelated transactions;
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(d) Any draft or other statement or document presented
under any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or inaccurate
in any respect;
(e) Payment by the Agent to the beneficiary under any
Letter of Credit against presentation of documents which do not comply with the
terms of such Letter of Credit, including failure of any documents to bear any
reference or adequate reference to such Letter of Credit;
(f) Any failure, omission, delay or lack on the part of
the Agent or any Revolving Credit Bank or any party to any of the Letter of
Credit Documents to enforce, assert or exercise any right, power or remedy
conferred upon the Agent, any Revolving Credit Bank or any such party under
this Agreement, any of the other Loan Documents or any of the Letter of Credit
Documents, or any other acts or omissions on the part of the Agent, any
Revolving Credit Bank or any such party; or
(g) Any other event or circumstance that would, in the
absence of this Section 3.7, result in the release or discharge by operation of
law or otherwise of the Borrowers or any Account Party from the performance or
observance of any obligation, covenant or agreement contained in Section 3.6
hereof.
No setoff, counterclaim, reduction or diminution of any obligation or any
defense of any kind or nature which the Borrowers or any Account Party has or
may have against the beneficiary of any Letter of Credit shall be available
hereunder to the Borrowers or any Account Party against the Agent or any Bank.
Nothing contained in this Section 3.7 shall be deemed to prevent the Borrowers
or the Account Parties, after satisfaction in full of the absolute and
unconditional obligations of the Borrowers and the Account Parties hereunder,
from asserting in a separate action any claim, defense, set off or other right
which they (or any of them) may have against Agent or any Bank.
3.8 Risk Under Letters of Credit. (a) In the administration and
handling of Letters of Credit and any security therefor, or any documents or
instruments given in connection therewith, Agent shall have the sole right to
take or refrain from taking any and all actions under or upon the Letters of
Credit.
(b) Subject to other terms and conditions of this
Agreement, Agent shall issue the Letters of Credit and shall hold the documents
related thereto in its own name and shall make all collections thereunder and
otherwise administer the Letters of Credit in accordance with Agent's regularly
established practices and procedures and, except pursuant to Section 12.5
hereof, Agent will have no further obligation with respect thereto. In the
administration of Letters of Credit, Agent shall not be liable for any action
taken or omitted on the advice of counsel, accountants, appraisers or other
experts selected by Agent with due care and Agent may rely upon any notice,
communication, certificate or other statement from the Borrowers, any Account
Party, beneficiaries of Letters of Credit, or any other Person which Agent
believes to be authentic. Agent will, upon request, furnish the Revolving Credit
Banks with copies of Letter of Credit Documents related thereto.
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(c) In connection with the issuance and administration of
Letters of Credit and the assignments hereunder, Agent makes no representation
and shall have no responsibility with respect to (i) the obligations of the
Borrowers or any Account Party or the validity, sufficiency or enforceability of
any document or instrument given in connection therewith, or the taking of any
action with respect to same, (ii) the financial condition of, any
representations made by, or any act or omission of, the Borrowers, the
applicable Account Party or any other Person, or (iii) any failure or delay in
exercising any rights or powers possessed by Agent in its capacity as issuer of
Letters of Credit in the absence of its gross negligence or willful misconduct.
Each of the Revolving Credit Banks expressly acknowledges that it has made and
will continue to make its own evaluations of the Borrowers' and the Account
Parties' creditworthiness without reliance on any representation of Agent or
Agent's officers, agents and employees.
(d) If at any time Agent shall recover any part of any
unreimbursed amount for any draw or other demand for payment under a Letter of
Credit, or any interest thereon, Agent shall receive same for the pro rata
benefit of the Revolving Credit Banks in accordance with their respective
Percentages and shall promptly deliver to each Revolving Credit Bank its share
thereof, less such Bank's pro rata share of the costs of such recovery,
including court costs and attorney's fees. If at any time any Revolving Credit
Bank shall receive from any source whatsoever any payment on any such
unreimbursed amount or interest thereon in excess of such Bank's Percentage of
such payment, such Bank will promptly pay over such excess to Agent, for
redistribution in accordance with this Agreement.
3.9 Indemnification. The Revolving Borrowers and each Account
Party hereby indemnifies and agrees to hold harmless the Revolving Credit
Banks, the Issuing Bank and the Agent, and their respective officers,
directors, employees and agents, from and against any and all claims, damages,
losses, liabilities, costs or expenses of any kind or nature whatsoever which
the Revolving Credit Banks, the Issuing Bank or the Agent or any such Person
may incur or which may be claimed against any of them by reason of or in
connection with any Letter of Credit, and none of the Issuing Bank, any
Revolving Credit Bank or the Agent or any of their respective officers,
directors, employees or agents shall be liable or responsible for:
(a) the use which may be made of any Letter of Credit or
for any acts or omissions of any beneficiary in connection therewith;
(b) the validity, sufficiency or genuineness of documents
or of any endorsement thereon, even if such documents should in fact prove to
be in any or all respects invalid, insufficient, fraudulent or forged;
(c) payment by the Issuing Bank to the beneficiary under
any Letter of Credit against presentation of documents which do not strictly
comply with the terms of any Letter of Credit (unless such payment resulted
from the gross negligence or willful misconduct of the Issuing Bank), including
failure of any documents to bear any reference or adequate reference to such
Letter of Credit;
(d) any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit; or
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(e) any other event or circumstance whatsoever arising in
connection with any Letter of Credit; provided, however, that with respect to
subparagraphs (a)(i) through (a)(v) hereof, neither the Borrowers nor the
Account Parties shall be required to indemnify the Issuing Bank, the other
Revolving Credit Banks and the Agent and such other persons, and the Issuing
Bank shall be liable to the Borrowers and the Account Parties to the extent, but
only to the extent, of any direct, as opposed to consequential or incidental,
damages suffered by any of the Borrowers and the Account Parties which were
caused by the Issuing Bank's gross negligence, willful misconduct or wrongful
dishonor of any Letter of Credit after the presentation to it by the beneficiary
thereunder of a draft or other demand for payment and other documentation
strictly complying with the terms and conditions of such Letter of Credit.
(f) It is understood that in making any payment under a
Letter of Credit the Issuing Bank will rely on documents presented to it under
such Letter of Credit as to any and all matters set forth therein without
further investigation and regardless of any notice or information to the
contrary. It is further acknowledged and agreed that Borrowers or an Account
Party may have rights against the beneficiary or others in connection with any
Letter of Credit with respect to which the Revolving Credit Banks are alleged
to be liable and it shall be a condition of the assertion of any liability of
the Banks under this Section that the applicable Borrowers or applicable
Account Party shall contemporaneously pursue all remedies in respect of the
alleged loss against such beneficiary and any other parties obligated or liable
in connection with such Letter of Credit and any related transactions; provided
however that, to the extent that the Issuing Bank or the Banks are finally
adjudicated to have been grossly negligent or to have acted with willful
misconduct, then the Issuing Bank or the Revolving Credit Banks, as the case
may be, shall reimburse the Borrowers or such Account Party for the reasonable
costs and expenses of pursuing such remedies.
3.10 Right of Reimbursement. Each Revolving Credit Bank agrees to
reimburse the Agent on demand, pro rata in accordance with its respective
Revolving Credit Percentage, for (i) the reasonable out-of-pocket costs and
expenses of the Agent to be reimbursed by the Revolving Borrowers or any Account
Party pursuant to any Letter of Credit Agreement or any Letter of Credit, to the
extent not reimbursed by the Borrowers or any Account Party and (ii) any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, fees, reasonable out-of-pocket expenses or disbursements of any kind and
nature whatsoever which may be imposed on, incurred by or asserted against Agent
(in its capacity as issuer of any Letter of Credit) in any way relating to or
arising out of this Agreement, any Letter of Credit, any documentation or any
transaction relating thereto, or any Letter of Credit Agreement, to the extent
not reimbursed by the Borrowers or any Account Party, except to the extent that
such liabilities, losses, costs or expenses were incurred by Agent as a result
of Agent's gross negligence or willful misconduct or by the Agent's wrongful
dishonor of any Letter of Credit after the presentation to it by the beneficiary
thereunder of a draft or other demand for payment and other documentation
strictly complying with the terms and conditions of such Letter of Credit.
3.11 Existing Letter of Credit. The Existing Letter of Credit shall
be deemed for all purposes of this Agreement to be a Letter of Credit, and each
application submitted in connection with the Existing Letter of Credit shall be
deemed for all purposes of this Agreement to be a Letter of Credit Agreement. On
the Effective Date, the Agent shall be deemed automatically to have sold and
transferred, and each other Revolving Credit Bank shall be deemed automatically,
irrevocably, and unconditionally to have purchased and received from the Agent,
without recourse or warranty, an undivided interest and participation, to the
extent of such other Revolving Credit Bank's Percentage, in the Existing Letter
of Credit and the applicable Letter of Credit Obligations with respect thereto
and any security therefor or guaranty pertaining thereto.
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<PAGE> 56
4. TERM LOANS
4.1 Term Loans.
(a) Term Loan A. Subject to the terms and conditions hereof, each
Term Loan A Bank, severally and for itself alone, agrees to lend to Autocam
France, in a single disbursement of French Francs on the Effective Date, an
amount equal to such Bank's Percentage of Term Loan A.
(b) Term Loan B. Subject to the terms and conditions hereof, each
Term Loan B Bank, severally and for itself alone, agrees to make Advances of
Term Loan B to F&P from and after the Effective Date through the expiration of
the Term B Funding Period in an aggregate amount not to exceed such Bank's
Percentage of the Term Loan B Aggregate Commitment. Upon the expiration of the
Term Loan B Funding Period, the Banks' commitment to make additional Advances
of Term Loan B shall expire.
4.2 Accrual of Interest and Maturity; Evidence of Indebtedness.
(a) Subject to the terms and conditions hereof, (i) Autocam France hereby
unconditionally promises to pay to the Agent in French Francs for the account of
each Term Loan A Bank such Bank's Percentage of the then unpaid aggregate
principal amount of Term Loan A outstanding on the Term Loan A Maturity Date and
(ii) F&P hereby unconditionally promises to pay to the Agent in French Francs
for the account of each Term Loan B Bank such Bank's Percentage of the then
unpaid aggregate principal amount of Term Loan B outstanding on the Term Loan B
Maturity Date, and, in each case, on such other dates and in such other amounts
as may be required from time to time pursuant to this Agreement. Subject to
Sections 4.8 and 4.12 hereof, the unpaid principal Indebtedness from time to
time outstanding under the Term Loans shall, from the Effective Date (until
paid), bear interest at the Applicable Interest Rate.
(b) Each Term Loan Bank shall maintain in accordance with its
usual practice an account or accounts evidencing indebtedness of the applicable
Borrowers to the appropriate lending office of such Bank resulting from each
Advance of Term Loan A and Term Loan B made by such lending office of such Bank
from time to time, including the amounts of principal and interest payable
thereon and paid to such Bank from time to time under this Agreement.
(c) The Agent shall maintain the Register pursuant to Section
14.8(f), and a subaccount therein for each Bank, in which Register and
subaccounts (taken together) shall be recorded (i) the amount of each Advance
of Term Loan A and Term Loan B made hereunder, the type thereof and each
Interest Period applicable to any Eurocurrency-based Advance, (ii) the amount
of any principal or interest due and payable or to become due and payable from
the applicable Borrowers, to each Term Loan Bank hereunder in respect of the
Advances of Term Loan A and Term Loan B respectively and (iii) both the amount
of any sum received by the Agent hereunder from the applicable Borrowers in
respect of the Advances of Term Loan A and/or Term Loan B and each Bank's share
thereof.
(d) The entries made in the Register and the accounts of each Term
Loan Bank maintained pursuant to paragraphs (b) and (c) of this Section 4.2
shall absent manifest error, to the extent permitted by applicable law, be
conclusive evidence of the existence and amounts of the obligations of the
applicable Borrowers therein recorded; provided, however, that the failure of
any Term Loan Bank or the Agent to maintain the Register or any such account,
as applicable, or any error therein, shall not in any manner affect the
obligation of the applicable Borrowers to repay the Advances of each of the
Term Loans (and all other amounts owing with respect thereto) made to the
applicable Borrowers by such Bank in accordance with the terms of this
Agreement.
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<PAGE> 57
(e) The Term Loan Borrowers agree that, upon written request to
the Agent by any Term Loan Bank, the Term Loan Borrowers will execute and
deliver to such Bank, at such Borrowers' own expense, a Term Loan A Note and a
Term Loan B Note of the relevant Term Loan Borrower evidencing the outstanding
Advances under Term Loan A and Term Loan B, respectively, owing to such Bank;
provided, that the delivery of such Term Notes shall not be a condition
precedent to the Effective Date.
4.3 Repayment of Principal. The Indebtedness outstanding under
Term Loan A and under Term Loan B shall be repaid in French Francs in quarterly
principal installments in accordance with the schedules set forth below until
the Term Loan A Maturity Date and Term Loan B Maturity Date, respectively, when
all principal plus accrued interest thereon shall be due and payable. There
shall be no readvance or reborrowings of any principal reductions of any Term
Loan.
(a) Term Loan A. Autocam France shall repay Term Loan A in French
Francs in quarterly principal installments in accordance with the following
schedule until the Term Loan A Maturity Date, when all principal plus accrued
interest thereon shall be due and payable; provided, however in the event that
Term Loan A has been converted to Dollars pursuant to Section 4.11 hereof, and
the Prime-based Rate is in effect, said Indebtedness shall be paid in Dollars,
and provided further however that, during any period in which the Indebtedness
under the Term Loan A is carried in Dollars in accordance with Section 4.11
hereof, the Dollar Amount of each scheduled payment of principal and interest on
Term Loan A shall be adjusted to provide for full amortization of the
outstanding principal balance over the remaining term of such Term Loan:
<TABLE>
<CAPTION>
- ------------------------------- -----------------------------------------
Quarterly Due Date Quarterly Installment Amount
<S> <C>
January 1, 2000 FF 14,068,750
April 1, 2000 FF 14,068,750
July 1, 2000 FF 14,068,750
October 1, 2000 FF 14,068,750
January 1, 2001 FF 21,103,125
April 1, 2001 FF 21,103,125
July 1, 2001 FF 21,103,125
October 1, 2001 FF 21,103,125
January 1, 2002 FF 21,103,125
April 1, 2002 FF 21,103,125
July 1, 2002 FF 21,103,125
October 1, 2002 FF 21,103,125
January 1, 2003 FF 21,103,125
April 1, 2003 FF 21,103,125
July 1, 2003 FF 14,068,750
</TABLE>
(b) Term Loan B. F&P shall repay Term Loan B in French Francs in
quarterly principal installments in accordance with the following schedule until
the Term Loan B Maturity Date, when all principal plus accrued interest thereon
shall be due and payable; provided, however in the event that Term Loan B has
been converted to Dollars pursuant to Section 4.11 hereof, and the Prime-based
Rate is in effect, said Indebtedness shall be paid in Dollars, and provided
further however that, during any period in which the Indebtedness under the Term
Loan B is carried in Dollars in accordance with Section 4.11 hereof, the Dollar
Amount of each scheduled payment of principal and interest on Term Loan B shall
be adjusted to provide for full amortization of the outstanding principal
balance over the remaining term of such Term Loan:
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<TABLE>
<CAPTION>
Quarterly Due Date Quarterly Installment Amount
<S> <C>
July 1, 2003 FF 7,000,000
October 1, 2003 FF 21,000,000
January 1, 2004 FF 21,000,000
April 1, 2004 FF 21,000,000
July 1, 2004 FF 21,000,000
October 1, 2004 FF 21,000,000
</TABLE>
4.4 Term Loan Rate Requests; Refundings and Conversions of
Advances of Term Loans. Unless Term Loan A or Term Loan B, as the case may be,
has been converted to Dollars pursuant to Section 4.11 hereof, and the
Prime-based Rate is then in effect, Autocam France may refund any Advance of
Term Loan A and F&P may refund any Advance of Term Loan B as a
Eurocurrency-based Advance with a like or different Interest Period, only after
delivery to the Agent of a Term Loan Rate Request executed by a person
previously authorized to execute such Requests by Autocam in a writing
delivered to the Agent, and subject to the terms and conditions set forth
below.
(a) each such Term Loan Rate Request shall set forth the
information required on the Term Loan Rate Request form attached hereto as
Exhibit L with respect to such Term Loan, including without limitation:
(i) whether the Advance is a refunding or conversion of
an outstanding Advance;
(ii) in the case of a refunding or conversion of an
outstanding Advance, the proposed date of such
refunding or conversion, which must be a Business
Day; and
(iii) whether such Advance (or any portion thereof) is to
be a Prime-based Advance or a Eurocurrency-based
Advance, and, except in the case of a Prime-based
Advance, the Interest Period(s) applicable thereto;
provided, however that the parties acknowledge that
the Term Loans shall not be subject to conversion
into Dollars except as set forth in Section 4.11
hereof.
(b) each such Term Loan Rate Request shall be delivered to Agent
by noon (Detroit time) three (3) Business Days prior to the proposed date of
Advance, except in the case of a Prime-based Advance, for which the Term Loan
Rate Request must be delivered by 2:00 p.m. one (1) Business Day prior to the
proposed date of Advance;
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(c) the principal amount of such Advance of the particular Term
Loan plus the amount of any other Advance of such Term Loan to be then combined
therewith having the same Applicable Interest Rate and Interest Period, if any,
shall be (i) in the case of a Prime-based Advance at least One Million Five
Hundred Thousand Dollars ($1,500,000), or the remaining principal balance
outstanding under such Term Loan, whichever is less, and (ii) in the case of a
Eurocurrency-based Advance at least Two Million Five Hundred Thousand Dollars
($2,500,000) or (in the case of any Term Loan carried in French Francs) the
equivalent thereof in French Francs or the remaining principal balance
outstanding under such Term Loan, whichever is less, or in each case a larger
integral multiple of One Hundred Thousand Dollars ($100,000) or (in the case of
any Term Loan carried in French Francs the equivalent thereof in French Francs);
(d) no Advance shall have an Interest Period ending after the
relevant Term Loan Maturity Date, and, notwithstanding any provision hereof to
the contrary, the applicable Borrower shall select Interest Periods (or the
Prime-based Rate) for sufficient portions of the Term Loan such that the
Borrower may make its required principal payments hereunder on a timely basis
and otherwise in accordance with Section 4.5 below;
(e) upon completion of the Advance there shall be no more than
four (4) Interest Periods in effect for Advances of each Term Loan; and
(f) a Term Loan Rate Request, once delivered to Agent, shall not
be revocable by the Borrowers.
Each selection of an Interest Period under this Section 4.4, and the amount and
date of any repayment, shall be noted on Agent's records, which records will be
conclusive evidence thereof, absent manifest error.
4.5 Failure to Refund. Subject to Section 4.11 hereof, in the
event the applicable Borrower shall fail with respect to any Eurocurrency-based
Advance of any Term Loan to timely exercise its option to refund such Advance
in accordance with Section 4.4 hereof (and such Advance has not been paid in
full on the last day of the Interest Period applicable thereto according to the
terms hereof), then the principal amount of such Advance which has not been
prepaid shall be automatically refunded as a Eurocurrency-based Advance with an
Interest Period of one month, or if shorter for the period to the next
principal installment due date, or, if applicable, to the applicable Term Loan
Maturity Date, and the Agent shall thereafter promptly notify Autocam thereof.
4.6 Prime-based Interest Payments. Interest on the unpaid balance
of all Prime-based Advances of any Term Loan from time to time outstanding shall
accrue until paid at a per annum interest rate equal to the Prime-based Rate,
and shall be payable in immediately available funds quarterly commencing on the
first day of the fiscal quarter next succeeding the fiscal quarter during which
the initial Advance of such Term Loan is made and on the first day of each
fiscal quarter thereafter. Interest accruing at the Prime-based Rate shall be
computed on the basis of a 360 day year and assessed for the actual number of
days elapsed, and in such computation effect shall be given to any change in the
interest rate resulting from a change in the Prime-based Rate on the date of
such change in the Prime-based Rate.
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4.7 Eurocurrency-based Interest Payments. Interest on each
Eurocurrency-based Advance of any Term Loan having a related
Eurocurrency-Interest Period of 3 months or less shall accrue at its
Eurocurrency-based Rate and, if such Term Loan is carried in Dollars, shall be
payable in Dollars, and if such Term Loan is carried in French Francs, shall be
payable in French Francs, in each case in immediately available funds on the
last day of the Interest Period applicable thereto. Interest shall be payable in
Dollars or in French Francs, as the case may be, in immediately available funds
on each Eurocurrency-based Advance of such Term Loan outstanding from time to
time having a Eurocurrency-Interest Period of 6 months or longer, at intervals
of 3 months after the first day of the applicable Interest Period, and shall
also be payable on the last day of the Interest Period applicable thereto.
Interest accruing at the Eurocurrency-based Rate shall be computed on the basis
of a 360 day year and assessed for the actual number of days elapsed from the
first day of the Interest Period applicable thereto to, but not including, the
last day thereof.
4.8 Interest Payments on Conversions. Notwithstanding anything to
the contrary in Sections 4.6 and 4.7 all accrued and unpaid interest on any
Advance refunded or converted pursuant to Section 4.4 hereof shall be due and
payable in full on the date such Advance is refunded or converted.
4.9 Prime-based Rate Applicability and Interest Payments on Term
Loan A or Term Loan B. In the event that, pursuant to Section 4.11 hereof, or
any other applicable provision of this Agreement, the Indebtedness outstanding
under Term Loan A or Term Loan B shall be converted to an Advance of Dollars as
a Prime-based Advance, thereafter interest on the unpaid balance of
Indebtedness outstanding under Term Loan A or Term Loan B, as the case may be,
shall accrue from the date of such Advance to the applicable Term Loan Maturity
Date (or until paid, or refunded or reconverted to an Advance carried in French
Francs in accordance with Section 4.12 hereof), at a per annum interest rate
equal to the Prime-based Rate, and shall be payable in immediately available
funds quarterly commencing on the due date for the next principal installment
required to be paid on the Term Loan pursuant to Section 4.3 hereof, and on the
due date of each succeeding principal payment thereon.
4.10 Interest on Default. Notwithstanding anything to the contrary
set forth in Sections 4.6 and 4.7, in the event and so long as any Event of
Default shall exist under this Agreement, interest shall be payable on demand
on the principal amount of all Advances of the Term Loans from time to time
outstanding (and, to the extent delinquent, on all other monetary obligations
of the Term Loan Borrowers hereunder and under the other Loan Documents) at a
per annum rate equal to the Applicable Interest Rate (calculated on the basis
of the maximum Margins) in respect of each such Advance, plus, in the case of
Eurocurrency-based Advances, two percent (2%) per annum for the remainder of
the then existing Interest Period, if any, and at all other such times and for
all Prime-based Advances, at a per annum rate equal to the Prime-based Rate,
plus two percent (2%).
4.11 Unavailability of French Francs. If prior to the last day of
any Interest Period, Agent or the applicable Term Loan Banks (after consultation
with Agent) shall determine that by reason of circumstances affecting the
foreign exchange and interbank markets, generally, or for any of the reasons set
forth in Section 12 hereof, deposits of French Francs will not be available to
Agent and the applicable Term Loan Banks as of the last day of an applicable
Interest Period in the amounts necessary to carry the outstanding principal of
the Advances subject to such ending Interest Period in French Francs for any
Interest Period, Agent shall notify Autocam and the Advances shall then be
automatically converted to and carried in Dollars, in the Dollar Amount of the
Indebtedness then outstanding at the Prime-based Rate, until the first day of
the next Interest Period, if any, selected pursuant to Section 4.4 hereof.
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4.12 Reconversion to Advance carried in French Francs on
Re-availability. In the event that, after a conversion of Indebtedness to
Dollars pursuant to Section 4.11 hereof, Agent determines that Deposits of
French Francs are again available to Agent and/or the applicable Term Loan Banks
in the amounts necessary to carry the principal Indebtedness under Term Loan A
or Term Loan B, as the case may be, in French Francs for any Interest Period,
Agent shall notify Autocam of the Interest Period(s) for which such deposits in
French Francs are available and Autocam shall immediately select the next
Interest Period from among such available Interest Periods, in accordance with
Section 4.4 hereof.
4.13 Repayment or Reconversion. In the event that the currency in
which the Indebtedness is being carried is required to be changed from Dollars
to French Francs under Section 4.13, as aforesaid, and if the French Franc
Equivalent of the principal amount of the Indebtedness under the applicable Term
Loan outstanding upon such reconversion shall exceed the applicable French Franc
Principal Limit, then concurrently with such reconversion, Autocam France or
F&P, as the case may be, shall pay to Agent in immediately available funds, for
the ratable benefit of the applicable Term Loan Banks, an amount in French
Francs sufficient to reduce the then outstanding principal amount of the
applicable Term Loan to an amount not greater than the applicable French Franc
Principal Limit for such Term Loan.
4.14 Optional Prepayment of Term Loans.
(a) Subject to this Section 4.14, at their option and upon one (1)
Business Day's notice to the Agent by wire, telecopy, telex or by telephone
(confirmed by wire, telecopy or telex), the applicable Borrowers may prepay any
portion of a Term Loan bearing interest at the Prime-based Rate or the
Eurocurrency-based Rate, in whole at any time or in part from time to time, with
accrued interest on the principal being prepaid to the date of such prepayment.
Any prepayment of a portion of a Term Loan as to which the Applicable Interest
Rate is the Prime-based Rate shall be without premium or penalty. Any other
prepayment shall be subject to the provisions of Section 12.1.
(b) Each partial prepayment of a Term Loan shall be applied to the
next principal installment that is due and the balance to the principal payments
of such Term Loan due thereunder in the inverse order of their maturities as
follows: first to that portion of such Term Loan outstanding as a Prime-based
Advance, second to that portion of such Term Loan outstanding as
Eurocurrency-based Advances which have Interest Periods ending on the date of
payment, and last to any remaining Advances of such Term Loan being carried at
the Eurocurrency-based Rate. All prepayments of the Term Loans shall be made to
the Agent for distribution ratably to the applicable Banks in accordance with
their respective Percentages.
4.15 Mandatory Prepayment of Term Loans.
(a) Immediately upon receipt by a Borrower or any Subsidiary of
any Net Cash Proceeds from any Asset Sale, the Term Loan Borrowers shall prepay
the Term Loans by an amount equal to (i) in the case of Net Cash Proceeds from
the sale of assets pursuant to Section 9.5(f) hereof, one hundred percent (100%)
of such Net Cash Proceeds (other than the sale of any asset or assets, in a
single transaction or series of transactions, with a value less than $500,000
until the Term Loans have been paid in full); provided, however, that (x) in the
case of Asset Sales permitted under Section 9.5(f), such Borrower may use all or
any portion of the Net Cash Proceeds of such Asset Sale to purchase replacement
assets used or to be used by such Borrower or such Subsidiary, as the case may
be, in the business as permitted under Section 8.4(a) so long as (i) no Default
or Event of Default has occurred and is continuing, (ii) each such purchase is
made within 180 days following the date of such Asset Sale and (iii) such
Borrower delivers to the Agent, concurrently with or prior to the date of such
Asset Sale, a certificate of an authorized officer of such Borrower stating that
such Net Cash Proceeds will be so used and (y) except to the extent used to
purchase replacement assets in compliance with clause (x) of this proviso, in
each case, such Borrower shall comply with the mandatory prepayments provisions
of this Section 4.15(a).
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(b) immediately upon receipt by a Borrower or any Subsidiary of
the cash proceeds of the issuance of any Equity Interests of a Borrower or such
Subsidiary or of any Subordinated Debt issued on or after the Effective Date,
the Term Loan Borrowers shall prepay the applicable Term Loans by an amount
equal to one hundred percent (100%) of such cash proceeds (net of reasonable and
customary costs and expenses of issuance);
(c) Mandatory prepayments under this Section 4.15 shall be in
addition to any scheduled installments or optional prepayments made prior
thereto and shall be subject to Section 12.1. If any Net Cash Proceeds subject
to Section 4.15(a) or other proceeds subject to Section 4.15(b) are received by
any Borrower or Subsidiary other than a Term Loan Borrower, mandatory
prepayments under this Section 4.15 shall be applied to Term Loan A. If any
such proceeds are received by a Term Loan Borrower, all such proceeds shall be
applied to the Term Loan made to such Term Loan Borrower. Each mandatory
prepayment of the Term Loans shall be applied to the next principal installment
that is due and the balance to the principal payments of such Term Loan due
thereunder in the inverse order of their maturities as follows: first to that
portion of such Term Loan outstanding as a Prime-based Advance, second to that
portion of such Term Loan outstanding as Eurocurrency-based Advances which have
Interest Periods ending on the date of payment, and last to any remaining
Advances of such Term Loan being carried at the Eurocurrency-based Rate. All
prepayments of the Term Loans hereunder shall be made to the Agent for
distribution ratably to the applicable Banks.
(d) To the extent that, on the date any mandatory prepayment of
the Term Loans under this Section 4.15 is due, the Indebtedness under the Term
Loans or any other Indebtedness to be prepaid is being carried, in whole or in
part, at the Eurocurrency-based Rate and no Default or Event of Default has
occurred and is continuing, the Borrowers may deposit the amount of such
mandatory prepayment in a cash collateral account to be held by the Agent, for
and on behalf of the Banks (which shall be an interest-bearing account), on
such terms and conditions as are reasonably acceptable to Agent and the
Majority Term Loan Banks. Subject to the terms and conditions of said cash
collateral account, sums on deposit in said cash collateral account shall be
applied (until exhausted) to reduce the principal balance of the applicable
Term Loan on the last day of each Interest Period attributable to the
Eurocurrency-based Advances of such Term Loan.
5. MARGIN ADJUSTMENTS
5.1 Margin Adjustments. Adjustments to the Applicable Margins and
the Applicable Fee Percentages, based on Schedule 1.1 shall be implemented on a
quarterly basis as follows:
(a) Such adjustments shall be given prospective effect
only, effective as to all Advances outstanding hereunder and the
Applicable Fee Percentage, upon the date of delivery of the financial
statements under Sections 8.1(a) and 8.1(b) and the Covenant
Compliance Certificate under Section 8.2(a) hereunder, in each case
establishing applicability of the appropriate adjustment, in each case
with no retroactivity or claw-back. In the event Autocam fails timely
to deliver the financial statements required under Section 8.1(a) or
8.1(b) or the Covenant Compliance Certificate under Section 8.2(a),
then from the date delivery of such financial statements and
certificate was required until such financial statements and
certificate are delivered, the margins and fee percentages shall be at
the highest level on the Pricing Matrix attached to this Agreement as
Schedule 1.1.
(b) From the Effective Date until the required date of
delivery under Section 8.1(b) of Autocam's financial statements for the
fiscal quarter ending December 31, 1998, the margins and fee
percentages shall be those set forth under the Level III column of the
Pricing Matrix attached to this Agreement as Schedule 1.1.
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6. CONDITIONS
The obligations of the Banks to make Advances or loans pursuant to this
Agreement and the obligation of the Issuing Bank to issue Letters of Credit are
subject to the following conditions:
6.1 Execution of Notes and this Agreement. Borrowers shall have
executed and delivered to Agent for the account of each Bank requesting Notes,
the Revolving Credit Notes, the Swing Line Notes, the Term Notes, this Agreement
and the other Loan Documents to which they are a party (including all schedules,
exhibits, certificates, opinions, financial statements and other documents to be
delivered pursuant hereto), and such Notes, and this Agreement and the other
Loan Documents shall be in full force and effect.
6.2 Corporate Authority. Agent shall have received, with a
counterpart thereof for each Bank:
(a) For each Borrower, a certificate of its Secretary or
Assistant Secretary as to:
(i) resolutions of the board of directors of such
Borrower evidencing approval of the transactions contemplated
by this Agreement and the Notes and authorizing the execution
and delivery thereof and the borrowing of Advances and the
requesting of Letters of Credit hereunder,
(ii) the incumbency and signature of the officers
of such Borrower executing any Loan Document,
(iii) a certificate of good standing or continued
existence (or the equivalent thereof) from the State of
Michigan, and from every state or other jurisdiction listed on
Schedule 6.2 hereof if issued by such jurisdiction, subject to
the limitations (as to qualification and authorization to do
business) contained in Section 7.1, and
(iv) copies of such Borrower's articles of
incorporation and bylaws or other constitutional documents, as
in effect on the Effective Date;
6.3 Collateral Documents. (a) As security for all Indebtedness
(but subject to allocation of the Indebtedness and security and related
limitations on debt and collateral as provided in the Collateral Documents) of
Borrowers to the Banks hereunder the Agent shall have received:
(i) the Pledge Agreement (pertaining to the
shares of Autocam Europe), executed
and delivered by Autocam to Agent;
(ii) the Pledge Agreement (pertaining to the
shares of Autocam France), executed and
delivered by Autocam Europe to Agent;
(iii) the Pledge Agreement (pertaining to the
shares of the French Seller), executed and
delivered by Autocam France;
(iv) the Security Agreement, executed and
delivered by each of the Borrowers (other
than Foreign Borrowers) and each of the
Domestic Subsidiaries;
(v) Foreign Security Agreement executed by F&P;
and
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(vi) the Domestic Guaranty.
(b) Any documents (including, without limitation,
financing statements, amendments to financing statements and
assignments of financing statements, and stock powers) required to be
filed in connection with the Security Agreements or the Pledge
Agreements to create, in favor of the Agent (for and on behalf of the
Banks), a perfected security interest in the Collateral thereunder
shall have been delivered to the Agent in a proper form for filing in
each office in each jurisdiction listed in Schedule 6.3, or other
office, as the case may be.
6.4 F&P Acquisition Documents.
(i) The Agent shall have received executed copies of the
F&P Acquisition Documents, certified by a Responsible Officer
of the Borrowers. The F&P Acquisition Documents shall be in
form and substance reasonably satisfactory to the Agent and
each of the F&P Acquisition Documents shall have been duly
authorized, executed and delivered by each of the parties
thereto and shall be in full force and effect. No term or
provision of the F&P Acquisition Documents shall have been
modified, and no condition to consummation of the F&P
Acquisition shall have been waived, in either case in a
manner materially detrimental to the Borrowers, by any of the
parties thereto. The Borrowers shall have in all material
respects done and performed such acts and observed such
covenants which each is required to do or perform under the
F&P Acquisition Documents and in order to consummate the F&P
Acquisition on or prior to the Effective Date.
(ii) The Borrowers shall have provided evidence
satisfactory to the Agent that the F&P Acquisition has been
consummated in accordance with the terms of the F&P
Acquisition Documents.
6.5 Insurance. The Agent shall have received evidence satisfactory
to it that the Borrowers have obtained the insurance policies required by
Section 8.5 hereof and that such insurance policies are in full force and
effect.
6.6 Compliance with Certain Documents and Agreements. The
Borrowers (and any of their respective Subsidiaries or Affiliates) shall have
each performed and complied in all material respects with all agreements and
conditions contained in this Agreement, other Loan Documents, or any agreement
or other document executed thereunder and required to be performed or complied
with by each of them (as of the applicable date) and none of such parties shall
be in material default in the performance or compliance with any of the terms or
provisions hereof or thereof.
6.7 Opinion of Counsel. Borrowers shall furnish Agent prior to the
initial Advance under this Agreement, and with signed copies for each Bank,
opinions of counsel to the Borrowers, dated the date hereof, and covering such
matters as reasonably required by and otherwise reasonably satisfactory in form
and substance to the Agent and each of the Banks.
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6.8 Borrowers' Certificate. The Agent shall have received, with a
signed counterpart for each Bank, a certificate of a Responsible Officer of
Autocam dated the date of the making of Advances hereunder, stating that to the
best of his or her knowledge after due inquiry, (a) the representations and
warranties made by Borrowers or any other party to any of the Loan Documents
(excluding the Agent and Banks) in this Agreement or any of the other Loan
Documents, shall have been true and correct in all material respects when made
and shall be true and correct in all material respects on and as of the
Effective Date; and (b) no Default or Event of Default shall have occurred and
be continuing, and there shall have been no material adverse change in the
financial condition, properties, business, results or operations of F&P from
January 30, 1998 to the date of the making of the first borrowing hereunder.
6.9 Payment of Fees. Borrowers shall have paid to the Agent all
fees, costs and expenses required to be paid to Agent upon execution of this
Agreement under the terms of this Agreement and under the terms of the
commitment letter dated September 11, 1998 from Comerica Bank to Autocam.
6.10 Pro Forma Balance Sheet and Projections. Autocam shall have
delivered to the Agent a pro forma consolidated balance sheet of Autocam and its
Subsidiaries (the "Pro Forma Balance Sheet") certified by the chief financial
officer of Autocam that it fairly presents the pro forma adjustments reflecting
the consummation of the transactions contemplated in this Agreement, including
all material fees and expenses in connection therewith, subject to normal year
end adjustments.
6.11 Existing Credit Facilities. All existing Funded Debt including
Debt outstanding under the Prior Agreement, other than Funded Debt expressly
permitted hereunder, together with all interest, all prepayment premiums and
other amounts due and payable with respect thereto, shall have been paid in full
and the related commitments terminated and all Liens securing payment of any
such Funded Debt have been released and the Agent shall have received all
Uniform Commercial Code Form UCC-3 termination statements or other instruments
as may be suitable or appropriate in connection therewith.
6.12 Lessors' Acknowledgments. Agent shall have received lessors'
acknowledgments, in form and substance acceptable to the Agent and the Banks, in
connection with the leased property described in Schedule 6.12.
6.13 Financial Statements. Autocam shall have delivered to the
Agent and each Bank (i) audited financial statements of Autocam for the fiscal
year ending on June 30, 1998 as described in Section 8.1(a) and (ii) similar
financial statements of F&P for the period ending June 30, 1998, prepared and
presented in accordance with GAAP.
6.14 Continuing Conditions. The obligations of the Banks to make
Advances (including the initial Advance) under this Agreement and the obligation
of the Issuing Bank to issue any Letters of Credit shall be subject to the
continuing conditions that:
(a) No Default or Event of Default shall exist as of the date of
the Advance or the request for the Letter of Credit; and
(b) Each of the representations and warranties contained in this
Agreement and in each of the other Loan Documents shall be true and correct in
all material respects as of the date of the Advance or Letter of Credit, except
to the extent (x) a representation or warranty is made as of a specific date or
(y) Borrowers have notified Agent of occurrences or provided information after
the Effective Date to supplement such representations or warranties which are no
longer true and correct in all material respects and such occurrences or
supplemental information do not constitute a Default or Event of Default.
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7. REPRESENTATIONS AND WARRANTIES
Subject to the provisions of Section 7.26, each of the Borrowers
represents and warrants and such representations and warranties shall survive
until the later of the latest Term Loan Maturity Date and the Revolving Credit
Maturity Date and thereafter until the expiration of all Letters of Credit and
the final payment in full of the Indebtedness and the performance by Borrowers
of all other obligations under this Agreement:
7.1 Corporate Authority. Each Borrower is a corporation duly
organized and existing in good standing under the laws of the state or
jurisdiction of its incorporation, each other Subsidiary is a corporation or
other business entity duly organized and existing in good standing under the
laws of the jurisdiction of its incorporation; and each Borrower and each
Subsidiary is duly qualified and authorized to do business as a foreign
corporation in each jurisdiction where the character of its assets or the
nature of its activities makes such qualification necessary and where failure
to be so qualified would have a Material Adverse Effect.
7.2 Due Authorization - Borrowers. Execution, delivery and
performance of this Agreement, the other Loan Documents and any other documents
and instruments required under or in connection with this Agreement or the
other Loan Documents (or to be so executed and delivered), and the issuance of
the Notes by Borrowers (if requested) are within each Borrower's corporate
powers, have been duly authorized, are not in contravention of law or the terms
of such Borrower's organizational documents and, except as have been previously
obtained or as referred to in Section 7.13, below, do not require the consent
or approval, material to the transactions contemplated by this Agreement and
the other Loan Documents, of any governmental body, agency or authority.
7.3 Due Authorization - Guarantors. Execution, delivery and
performance of the Guaranty, the Security Agreement, and all other documents
and instruments required of Guarantors under or in connection with this
Agreement and the other Loan Documents (or to be so executed and delivered),
and to which each Guarantor is a party, are within the corporate powers or
limited liability company of each such Guarantor, have been duly authorized,
are not in contravention of law or the terms of such Guarantor's organizational
documents, and, except as have been previously obtained (or as referred to in
Section 7.13 below), do not require the consent or approval, material to the
transactions contemplated by this Agreement and the other Loan Documents, of
any governmental body, agency or authority not previously obtained.
7.4 Liens. There are no security interests in, liens, mortgages,
or other encumbrances on and no financing statements on file with respect to
any of the property owned, pledged, mortgaged or otherwise encumbered (or to be
encumbered) by Borrowers, any of the Guarantors or any of the other
Subsidiaries except for Liens permitted pursuant to Section 9.2.
7.5 Taxes. Each of the Borrowers, each of the Guarantors, and
each of the other Subsidiaries has filed on or before their respective due
dates or within the applicable grace periods, all federal, state and foreign
tax returns which are required to be filed or has obtained extensions for
filing such tax returns and is not delinquent in filing such returns in
accordance with such extensions and has paid all taxes which have become due
pursuant to those returns or pursuant to any assessments received by any such
party, as the case may be, to the extent such taxes have become due, except to
the extent such tax payments are being actively contested in good faith by
appropriate proceedings and with respect to which adequate provision has been
made on the books of such Borrower, such Guarantor or such other Subsidiary as
may be required by GAAP, and except for the filing of tax returns and the
payment of taxes relating to periods ending on or prior to the Effective Date
for which Autocam is indemnified against any loss, cost or expense pursuant to
the terms of the Acquisition Documents.
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7.6 No Defaults. There exists no material default under the
provisions of any instrument evidencing any indebtedness for borrowed money of
any Borrower, any Guarantor or any other Subsidiary which is permitted
hereunder or of any agreement relating thereto.
7.7 Enforceability of Agreement and Loan Documents -- Borrowers.
This Agreement, each of the other Loan Documents to which Borrowers are a
party, and all other certificates, agreements and documents executed and
delivered by Borrowers under or in connection herewith or therewith have each
been duly executed and delivered by their respective duly authorized officers
and constitute the valid and binding obligations of Borrowers, enforceable in
accordance with their respective terms, except as enforcement thereof may be
limited by applicable bankruptcy, reorganization, insolvency, fraudulent
conveyance, moratorium or similar laws affecting the enforcement of creditor's
rights, generally and by general principles of equity (regardless of whether
enforcement is considered in a proceeding in law or equity).
7.8 Enforceability of Loan Documents -- Guarantors. The Loan
Documents to which each of the Guarantors is a party, and all certificates,
documents and agreements executed in connection therewith by the Guarantors
have each been duly executed and delivered by the duly authorized officers or
members or managers, as the case may be, of the Guarantors and constitute the
valid and binding obligations of such Guarantors, enforceable in accordance
with their respective terms, except as enforcement thereof may be limited by
applicable bankruptcy, reorganization, insolvency, fraudulent conveyance,
moratorium or similar laws affecting the enforcement of creditor's rights,
generally and by general principles of equity (regardless of whether
enforcement is considered in a proceeding in law or equity).
7.9 Compliance with Laws. Except as disclosed on Schedule 7.9,
each of the Borrowers, each of the Guarantors and each of the other
Subsidiaries has complied with all applicable federal, state and local laws,
ordinances, codes, rules, regulations and guidelines (including consent decrees
and administrative orders) except to the extent that failure to comply
therewith would not have a Material Adverse Effect; except for such matters as
are not likely to have a Material Adverse Effect, and except as set forth in
Schedule 7.9 hereof, and without limiting the generality of Section 7.12, there
is no pending or, to the knowledge of Borrowers threatened, litigation, action,
proceeding or controversy affecting any Borrower, any of the Guarantors or any
of the other Subsidiaries, and no pending or, to the knowledge of Borrowers
threatened complaint, notice or inquiry to either Borrower, any of the
Guarantors or any of the other Subsidiaries, regarding potential liability of
either Borrower, any of the Guarantors or any of the Subsidiaries.
7.10 Non-contravention -- Borrowers. The execution, delivery and
performance of this Agreement and the other Loan Documents and any other
documents and instruments required under or in connection with this Agreement by
each of the Borrowers are not in contravention of the terms of any indenture,
agreement or undertaking to which any such Borrower or any of its Subsidiaries
is a party or by which its or their properties are bound or affected where such
violation would reasonably be expected to have a Material Adverse Effect.
7.11 Non-contravention -- Guarantors. The execution, delivery and
performance of those Loan Documents signed by the Guarantors, and any other
documents and instruments required under or in connection with this Agreement or
any other Loan Document by the Guarantors are not in contravention of the terms
of any indenture, agreement or undertaking to which any Guarantor or Company is
a party or by which it or its properties are bound or affected where such
violation would reasonably be expected to have a Material Adverse Effect.
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7.12 No Litigation. Except for De Minimis Matters or as set forth
on Schedule 7.12 hereof, there is no suit, action, proceeding, including,
without limitation, any bankruptcy proceeding, or governmental investigation
pending against or to the knowledge of the Borrowers, threatened against any
Borrower, any Guarantor or any other Subsidiary (other than any suit, action or
proceeding in which such Borrower, such Guarantor or such Subsidiary is the
plaintiff and in which no counterclaim or cross-claim against such Borrower,
such Guarantor or such Subsidiary has been filed), nor has any Borrower, any
Guarantor or any Subsidiary or, to the knowledge of the Borrowers any of its or
their officers, members, managers, or directors, as the case may be, been
subject to any suit, action, proceeding or governmental investigation as a
result of which any such officer, member, manager or director is or may be
entitled to indemnification by any Borrower or a Guarantor or any other
Subsidiary, as applicable, which suits, actions, proceedings or governmental
investigations are reasonably likely to be resolved adversely to such Borrower,
such Guarantor or such Subsidiary, and if so resolved are reasonably likely to
have a Material Adverse Effect. Except as set forth on Schedule 7.12, there is
not outstanding against any Borrower, any Guarantor or any Subsidiary any
judgment, decree, injunction, rule, or order of any court, government,
department, commission, agency, instrumentality or arbitrator nor is any
Borrower, any Guarantor or any other Subsidiary in violation of any applicable
law, regulation, ordinance, order, injunction, decree or requirement of any
governmental body or court where such matters would reasonably be expected to
have a Material Adverse Effect.
7.13 Consents, Approvals and Filings, Etc. Except as have been
previously obtained, no authorization, consent, approval, license, qualification
or formal exemption from, nor any filing, declaration or registration with, any
court, governmental agency or regulatory authority or any securities exchange or
any other person or party (whether or not governmental) is required in
connection with the execution, delivery and performance: (i) by any of the
Borrowers of this Agreement, any of the other Loan Documents to which they are a
party, or any other documents or instruments to be executed and or delivered by
Borrowers in connection therewith or herewith; (ii) by any Guarantor, of any of
the other Loan Documents to which such Guarantor is a party, or (iii) by
Borrowers or any of the Guarantors, of the liens, pledges, mortgages, security
interests or other encumbrances granted, conveyed or otherwise established (or
to be granted, conveyed or otherwise established) by or under this Agreement or
the other Loan Documents, except for such filings to be made concurrently
herewith as are required by the Collateral Documents to perfect liens in favor
of the Agent. All such authorizations, consents, approvals, licenses,
qualifications, exemptions, filings, declarations and registrations which have
previously been obtained or made, as the case may be, are in full force and
effect and are not the subject of any attack, or to the knowledge of Borrowers
threatened attack (in any material respect) by appeal or direct proceeding or
otherwise.
7.14 Agreements Affecting Financial Condition. None of the
Borrowers, nor any Guarantor nor any other Subsidiary is party to any agreement
or instrument or subject to any charter or other corporate restriction which
has a Material Adverse Effect.
7.15 No Investment Company or Margin Stock. None of the Borrowers,
nor any Guarantor nor any other Subsidiary is an "investment company" within
the meaning of the Investment Company Act of 1940, as amended. None of the
Borrowers, nor any Guarantor nor any Subsidiary is engaged principally, or as
one of its important activities, directly or indirectly, in the business of
extending credit for the purpose of purchasing or carrying margin stock. None
of the proceeds of any of the Advances will be used by any Borrower nor any
other Subsidiary to purchase or carry margin stock or will be made available by
any Borrower or any of its Subsidiaries in any manner to any other Person to
enable or assist such Person in purchasing or carrying margin stock. Terms for
which meanings are provided in Regulation U of the Board of Governors of the
Federal Reserve System or any regulations substituted therefor, as from time to
time in effect, are used in this paragraph with such meanings.
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7.16 ERISA. None of the Borrowers, nor any Guarantor nor any other
Subsidiary maintains or contributes to any Pension Plan subject to Title IV of
ERISA, except as set forth on Schedule 7.16 hereto; and there is no accumulated
funding deficiency within the meaning of ERISA, or any existing liability with
respect to any of the Pension Plans owed to the Pension Benefit Guaranty
Corporation or any successor thereto, and no "reportable event" or "prohibited
transaction", as defined in ERISA, has occurred with respect to any Pension
Plan, and all such Pension Plans are in material compliance with the
requirements of the Internal Revenue Code and ERISA.
7.17 Conditions Affecting Business or Properties. Neither the
respective businesses nor the properties of any Borrower, nor any Guarantor nor
any other Subsidiary is affected by any fire, explosion, accident, strike,
lockout or other dispute, drought, storm, hail, earthquake, embargo, Act of God
or other casualty (not covered by insurance) which is reasonably likely to have
a Material Adverse Effect, or if such event or condition were to continue for
more than ten (10) additional days would reasonably be expected to have a
Material Adverse Effect.
7.18 Environmental and Safety Matters. Except as set forth in
Schedules 7.18 and 7.12 and except for such matters as are not likely to have a
Material Adverse Effect:
(a) all facilities and property owned or leased by the
Borrowers or any of their respective Subsidiaries, are owned or leased
by the Borrowers and such Subsidiaries are in material compliance with
all Hazardous Material Laws;
(b) to the best knowledge of the Borrowers, there have
been no past, and there are no pending or threatened
(i) claims, complaints, notices or requests
for information received by any Borrower or any of its
Subsidiaries with respect to any alleged violation of any
Hazardous Material Law, or
(ii) complaints, notices or inquiries to any
Borrower or any of its Subsidiaries regarding potential
liability under any Hazardous Material Law; and
(c) to the knowledge of the Borrowers, no conditions
exist at, on or under any property now or previously owned or leased
by the Borrowers or any of their respective Subsidiaries which, with
the passage of time, or the giving of notice or both, would give rise
to liability under any Hazardous Material Law.
7.19 Subsidiaries. As of the Effective Date, and except as
disclosed on Schedule 7.19 hereto, Autocam has no Subsidiaries.
7.20 Accuracy of Information. (a) Each of Autocam's financial
statements, and F&P's financial statements previously furnished to Agent and the
Banks prior to the date of this Agreement, to the knowledge of Autocam in the
case of F&P financial statements, fairly presents in all material respects
(subject to year-end adjustments in the case of interim statements) the
financial condition of Autocam and F&P and the results of their operations for
the periods covered thereby, and (in the case of Autocam's financial statements)
has been prepared in accordance with GAAP. The projections and pro forma
financial information contained in the materials referenced in this clause (a)
are based upon good faith estimates and assumptions believed by management of
Autocam to be reasonable at the time made, it being recognized by the Banks that
such financial information as it relates to future events is not to be viewed as
fact and that actual results during the period or periods covered by such
financial information may differ from the projected results set forth therein.
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(b) Since June 30, 1998 through the Effective Date, there
has been no material adverse change in the financial condition of Autocam and
its Subsidiaries taken as a whole or F&P; to the best knowledge of Autocam,
neither Autocam nor any of its Subsidiaries nor F&P has any contingent
obligations (including any liability for taxes) not disclosed by or reserved
against in the June 30, 1998 balance sheets, as applicable, except as set forth
on Schedule 7.20 hereof, and at the present time there are no unrealized or
anticipated losses from any present commitment of Borrowers or any of their
Subsidiaries which contingent obligations and losses in the aggregate are
likely to have a Material Adverse Effect.
7.21 Financial Statements - F&P. The Borrowers have heretofore
delivered to the Banks the Financial Statements (as defined in the F&P
Acquisition Agreement). To the knowledge of the Borrowers, the Financial
Statements were prepared in accordance with GAAP (as modified by the agreed upon
principles referred to in the F&P Acquisition Agreement) consistently applied
and fairly present in all material respects the financial position and results
of operations of F&P for the periods covered thereby.
7.22 Labor Relations. None of the Borrowers nor any Subsidiary is
engaged in any unfair labor practice that could reasonably be expected to have a
Material Adverse Effect. There is (i) no unfair labor practice complaint pending
against the Borrowers or any Subsidiary or to the knowledge of Borrowers,
threatened against any of them, before the National Labor Relations Board, and
no grievance or arbitration proceeding arising out of or under any collective
bargaining agreement is so pending against either of them or, to the knowledge
of Borrowers, threatened against either of them, (ii) no strike, labor dispute,
slowdown or stoppage pending against the Borrowers or any Subsidiary or to the
knowledge of Borrowers, threatened against either of them and (iii) no union
representation question existing with respect to the employees of the Borrowers
or any Subsidiary, in each case or in the aggregate which could reasonably be
expected to have a Material Adverse Effect.
7.23 Existing Funded Debt. Schedule 7.23 hereto sets forth a true
and complete list of all Funded Debt for borrowed money (other than
Indebtedness) of Autocam and its Subsidiaries as of the date hereof that is in
excess of $100,000 for any one issue and is to remain outstanding after giving
effect to this transaction, in each case showing the aggregate principal amount
thereof and the name of the respective borrower (or issuer) and any other
entity which directly or indirectly guaranteed such debt.
7.24 Solvency. After giving effect to the consummation of the
transactions contemplated by this Agreement, each Borrower and its Subsidiaries
will each be solvent, able to pay its indebtedness as it matures and will have
capital sufficient to carry on its business and all business in which it is
about to engage. This Agreement is being executed and delivered by the Borrowers
to Agent and the Banks in good faith and in exchange for fair, equivalent
consideration. None of the Borrowers nor any Subsidiary is insolvent, nor will
any Borrower or any Subsidiary be rendered insolvent by its execution and
delivery to Agent and the Banks of this Agreement or by the consummation of the
transactions contemplated by this Agreement, and the capital and monies
remaining in the Borrowers and their Subsidiaries are not now and will not
become so unreasonably small as to preclude the Borrowers or their Subsidiaries
from carrying on their businesses. None of the Borrowers nor any Subsidiary
intends to nor does management of Borrowers or any Subsidiary believe it will
incur debts beyond its ability to pay as they mature. None of the Borrowers nor
any Subsidiary contemplates filing a petition in bankruptcy or for an
arrangement or reorganization under the Bankruptcy Code or any similar law of
any jurisdiction now or hereafter in effect relating to any Borrower or any
Subsidiary, nor does either Borrower or any Subsidiary have any knowledge of any
threatened bankruptcy or insolvency proceedings against Borrowers or any
Subsidiary.
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7.25 Capitalization. The authorized capital stock of each Borrower
and each Subsidiary is as set forth in Schedule 7.25. All issued and outstanding
shares of capital stock of Borrowers are duly authorized and validly issued,
fully paid, nonassessable, free and clear of all Liens and such shares were
issued in compliance with all applicable state and federal laws concerning the
issuance of securities. The capital stock of each of the Borrowers and each
Subsidiary is owned by the stockholders and in the amounts set forth on Schedule
7.25. No shares of the capital stock of any Borrower or any Subsidiary, other
than those described above, are issued and outstanding. Except as disclosed on
Schedule 7.25, there are no preemptive or other outstanding rights, options,
warrants, conversion rights or similar agreements or understandings for the
purchase or acquisition from a Borrower or any Subsidiary, of any shares of
capital stock or other securities of a Borrower or any Subsidiary.
7.26 Limitation on Representations. The representations and
warranties in this Section 7, to the extent they relate to a period ending on
or prior to the Effective Date, are limited by and subject to the fact that
Borrowers are basing the representations and warranties that relate to F&P,
prior to the Effective Date solely on the representations and warranties made
in the F&P Acquisition Documents. No Event of Default shall exist as a result
of such representations or warranties being untrue as they relate to a period
ending on or prior to the Effective Date unless Borrowers have actual knowledge
that those representations and warranties made in the applicable Acquisition
Documents which relate to the representations and warranties in this Section 7
are untrue in any material respect.
7.27 Year 2000 Requirement. Each of the Borrowers has reviewed the
areas in their business and operations which could be adversely affected by, and
have developed or are developing a program to address on a timely basis the risk
that computer applications used by the Borrowers may be unable to recognize and
perform properly date-sensitive functions involving certain dates prior to and
any date after December 31, 1999. Any reprogramming required to permit the
proper functioning, in and following the year 2000, of (i) any such Borrower's
computer systems and (ii) equipment containing embedded microchips (including
systems and equipment supplied by others or with which such Borrower's systems
interface) and the testing of all such systems and equipment, as so
reprogrammed, will be substantially completed by July 31, 1999. The cost to the
Borrowers of such reprogramming and testing and of the reasonably foreseeable
consequences of year 2000 to the Borrowers (including, without limitation,
reprogramming errors and the failure of others' systems or equipment) will not
result in a Default or a Material Adverse Effect. Except for such of the
reprogramming referred to in the preceding sentence as may be necessary, the
computer and management information systems of the Borrowers are and, with
ordinary course upgrading and maintenance, will continue for the term of this
Agreement to be, sufficient to permit the Borrowers to conduct their business
without Material Adverse Effect.
8. AFFIRMATIVE COVENANTS
Each Borrower covenants and agrees that it will, and, as applicable, it
will cause each of its Subsidiaries, until the later of the latest of the Term
Loan Maturity Date and the Revolving Credit Maturity Date and thereafter until
expiration of all Letters of Credit and final payment in full of the
Indebtedness and the performance by the Borrowers of all other obligations under
this Agreement and the other Loan Documents, unless the Majority Banks shall
otherwise consent in writing, to:
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8.1 Financial Statements. Furnish to the Agent with sufficient
copies for each Bank:
(a) as soon as available, but in any event within one
hundred five (105) days after the end of each fiscal year of Autocam a
copy of the audited Consolidated and unaudited Consolidating financial
statements of Autocam as at the end of such year and the related
audited statements of income, accumulated earnings, and cash flows for
such year, setting forth in each case in comparative form the figures
for the previous year, certified as being fairly stated in all
material respects by one of nationally recognized certified public
accounting firms reasonably satisfactory to the Agent and the Banks;
and
(b) as soon as available, but in any event not later than
sixty (60) days after the end of each fiscal quarter, the unaudited
Consolidated and Consolidating financial statements of Autocam as at
the end of such fiscal quarter and the related unaudited statements of
income, accumulated earnings and cash flows of Autocam for the portion
of the fiscal year through the end of such fiscal quarter, setting
forth in each case in comparative form the figures for the previous
year, and certified by a Responsible Officer as being fairly stated in
all material respects; and
all such financial statements to be complete and correct in all material
respects and to be prepared in reasonable detail and in accordance with GAAP
throughout the periods reflected therein and with prior periods (except as
approved by such officer and disclosed therein), provided however that the
financial statements delivered pursuant to clause (b) hereof will not be
required to include footnotes and will be subject to year-end adjustments.
8.2 Certificates; Other Information. Furnish to the Agent with
sufficient copies for each Bank:
(a) Within sixty (60) days after and as the end of each
fiscal quarter, a Covenant Compliance Certificate substantially in form
attached hereto as Exhibit M;
(b) Together with the financial statements delivered
pursuant to Section 8.1(a), annual projections for the Borrowers in
form reasonably acceptable to the Agent and the Banks;
(c) On or before October 31, 1998, Consolidated quarterly
projections through the fiscal year ending June 30, 2000 in form
acceptable to Agent; and
(d) Promptly and in form to be reasonably satisfactory to
Majority Banks, such additional financial and/or other information, or
other reports as any Bank may from time to time reasonably request.
8.3 Payment of Obligations. Pay, discharge or otherwise satisfy
at or before maturity or before they become delinquent, as the case may be, all
of its material obligations of whatever nature, except where 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 on the books of the Borrowers.
8.4 Conduct of Business and Maintenance of Existence.
(a) Continue to engage solely in the business as now
conducted by Autocam and businesses related thereto and preserve,
renew and keep in full force and effect its existence, except as
otherwise permitted pursuant to Section 9.5;
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(b) 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 Section 9.5;
and
(c) comply with all Contractual Obligations and
Requirements of Law, except to the extent that failure to comply
therewith could not, in the aggregate, reasonably be expected to have
a Material Adverse Effect.
8.5 Maintenance of Property; Insurance. Keep all property useful
and necessary in its business in working order and maintain insurance coverage
on its physical assets and against other business risks in such amounts and of
such types as are customarily carried by companies similar in size and nature
(including without limitation casualty and public liability and property damage
insurance), and in the event of acquisition of additional property, real or
personal, or of incurrence of additional risks of any nature, increase such
insurance coverage in such manner and to such extent as prudent business
judgment and present practice or any applicable Requirements of Law would
dictate; and in the case of all policies covering any Collateral, all such
insurance policies shall provide that the loss payable thereunder shall be
payable to Borrowers, and to the Agent for the benefit of the Banks (Agent as
mortgagee, or, in the case of personal property interests, lender loss payee)
as their respective interests may appear, all said policies, copies thereof or
certificates evidencing the same, including all endorsements thereto, to be
deposited with Agent.
8.6 Inspection of Property; Books and Records, Discussions.
Permit Agent and each Bank, through their authorized attorneys,
accountants and representatives (a) to examine each Borrower's and each
Subsidiary's books, accounts, records, ledgers and assets and properties of
every kind and description wherever located at all reasonable times during
normal business hours, upon oral or written request of Agent or such Bank; (b)
at any time and from time to time, at the request of the Majority Banks, to
conduct full or partial collateral audits of each Borrower and its Subsidiaries
to be completed by an appraiser as may be selected by Agent and the Majority
Banks, with all reasonable costs and expenses of such audits to be reimbursed by
Borrowers; and (c) permit Agent and each Bank or their authorized
representatives, at reasonable times and intervals, to visit all of their
respective offices, discuss their respective financial matters with their
respective officers and independent certified public accountants, and, by this
provision, Borrowers authorize such accountants to discuss the finances and
affairs of Borrowers and their Subsidiaries (provided that Borrowers are given
an opportunity to participate in such discussions) and examine any of its or
their books and other corporate records. Notwithstanding the foregoing, all
information furnished to the Agent or the Banks hereunder shall be subject to
the undertaking of the Banks set forth in Section 14.12 hereof.
8.7 Notices. Promptly give notice to the Agent of:
(a) the occurrence of any Default or Event of Default of
which any Borrower or any Subsidiary has knowledge;
(b) any (i) default or event of default under any
Contractual Obligation of a Borrower or any Subsidiary or (ii)
litigation, investigation or proceeding which may exist at any time
between a Borrower or any Subsidiary and any Governmental Authority,
which in either case, if not cured or if it is reasonably likely to be
adversely determined, as the case may be, would have a Material
Adverse Effect;
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(c) the following events, as soon as possible and in any
event within 30 days after the Borrowers know thereof and to the
extent the same would have a Material Adverse Effect: (i) the
occurrence of any "reportable event" as defined in ERISA with respect
to any Pension 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
Pension Benefit Guaranty Corporation or Borrowers or any Commonly
Controlled Entity or any Multiemployer Plan with respect to the
withdrawal from or the terminating, reorganization or insolvency of
any Pension Plan;
(d) any event which is reasonably likely to have a
Material Adverse Effect;
(e) promptly after becoming aware of the taking by the
Internal Revenue Service or any foreign taxing jurisdiction of a
written tax position which could reasonably be expected to have a
Material Adverse Effect upon the Borrowers (or any such tax position
taken by the Borrowers) setting forth the details of such position and
the financial impact thereof; and
(f) not less than 10 days prior to the proposed
effective date thereof, copies of any proposed material amendments,
restatements or other modification to the F&P Acquisition Documents or
the Subordinated Debt Documents.
Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Borrowers propose to take with respect thereto.
8.8 Hazardous Material Laws.
(a) Use and operate all of its facilities and properties
in material compliance with all material Hazardous Material Laws, keep
all necessary permits, approvals, certificates, licenses and other
authorizations relating to environmental matters in effect and remain
in material compliance therewith, and handle all Hazardous Materials
in material compliance with all applicable Hazardous Material Laws;
(b) Promptly notify Agent and provide copies upon receipt
of all written claims, complaints, notices or inquiries received by any
Borrower or any of its Subsidiaries of a material nature relating to
its facilities and properties or compliance with Hazardous Material
Laws, and shall promptly cure and have dismissed with prejudice to the
reasonable satisfaction of the Majority Banks any actions and
proceedings relating to compliance with Hazardous Material Laws to
which any Borrower or any of Subsidiaries is named as a party and which
could reasonably be likely to have a Material Adverse Effect; and
(c) Provide such information and certifications which any
Bank may reasonably request from time to time to evidence compliance
with this Section 8.8.
8.9 Consolidated Fixed Charge Coverage Ratio. Maintain as of the
end of each fiscal quarter, for the four quarters then ended, a Consolidated
Fixed Charge Coverage Ratio of not less than the following during the periods
set forth below:
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<TABLE>
<CAPTION>
------------------------------------------------ -------------------------
Period Ratio
------------------------------------------------ -------------------------
<S> <C>
Effective Date - 03/30/99 1.4 to 1
------------------------------------------------ -------------------------
03/31/99 - 03/30/00 1.35 to 1
------------------------------------------------ -------------------------
03/31/00 - 06/29/01 1.25 to 1
------------------------------------------------ -------------------------
06/30/01 - 06/29/02 1.35 to 1
------------------------------------------------ -------------------------
06/30/02 and thereafter 1.4 to 1
------------------------------------------------ -------------------------
</TABLE>
8.10 Minimum Adjusted Consolidated Tangible Net. Maintain, as of
the end of each fiscal quarter, a minimum Adjusted Consolidated Tangible Net
Worth of not less than the sum of the greater of (a) 80% of Consolidated
Tangible Net Worth on the Effective Date (based on the Pro Forma Balance Sheet)
and (b) $18,000,000 plus (i) 50% of Consolidated Net Income (not reduced by
losses) for the period (taken as one accounting period) beginning on the
Effective Date and ending on the date of determination plus (ii) 100 % of the
proceeds of any Equity Interests issued after the Effective Date (net of
reasonable and customary costs and expenses of issuance).
8.11 (a) Maintain Consolidated Leverage. Maintain as of the
end of each fiscal quarter, for the four fiscal quarters then ended, a
Consolidated Leverage Ratio of not more than the following amounts during the
periods specified below:
<TABLE>
<CAPTION>
- --------------------------------------------------------- -------------------
Period Ratio
- --------------------------------------------------------- -------------------
<S> <C>
Effective Date -06/29/99 4.5 to 1
- --------------------------------------------------------- -------------------
06/30/99 - 06/29/00 3.75 to 1
- --------------------------------------------------------- -------------------
06/30/00 - 06/29/01 3.5 to 1
- --------------------------------------------------------- -------------------
06/30/01 - 06/29/02 3.25 to 1
- --------------------------------------------------------- -------------------
06/30/02 and thereafter 3 to 1
- --------------------------------------------------------- -------------------
</TABLE>
(b) Maintain Total Debt to EBITDA Ratio. Maintain as of
the end of each fiscal quarter, for the four fiscal quarters then ended, a Total
Debt to EBITDA Ratio of not more than 4.5 to 1.
8.12 Maintain Total Debt to Capitalization Ratio. Maintain as of
the end of each fiscal quarter, a Total Debt to Capitalization Ratio of not more
than the following amounts during the periods specified below:
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<TABLE>
<CAPTION>
-------------------------------------------------------- ----------------
Period Ratio
-------------------------------------------------------- ----------------
<S> <C>
Effective Date - 06/29/99 .76 to 1
-------------------------------------------------------- ----------------
06/30/99 - 06/29/00 .725 to 1
-------------------------------------------------------- ----------------
06/30/00 - 06/29/01 .69 to 1
-------------------------------------------------------- ----------------
06/30/01 - 06/29/02 .64 to 1
-------------------------------------------------------- ----------------
06/30/02 - 06/29/03 .60 to 1
-------------------------------------------------------- ----------------
06/30/03 and thereafter .55 to 1
-------------------------------------------------------- ----------------
</TABLE>
8.13 Taxes. Pay and discharge all taxes and other governmental
charges, and all material contractual obligations calling for the payment of
money, before the same shall become overdue, unless and to the extent only that
such payment is being contested in good faith by appropriate proceedings and is
reserved for, as required by GAAP on its balance sheet, or where the failure to
pay any such matter could not have a Material Adverse Effect.
8.14 Governmental and Other Approvals. Apply for, obtain and/or
maintain in effect, as applicable, all authorizations, consents, approvals,
licenses, qualifications, exemptions, filings, declarations and registrations
(whether with any court, governmental agency, regulatory authority, securities
exchange or otherwise) which are necessary in connection with the execution,
delivery and performance: (i) by Borrowers, of this Agreement, the other Loan
Documents, or any other documents or instruments to be executed and/or delivered
by Borrowers in connection therewith or herewith; and (ii) by each of the
Subsidiaries, of the Loan Documents to which it is a party.
8.15 Compliance with ERISA. Comply in all material respects with
all requirements imposed by ERISA as presently in effect or hereafter
promulgated or the Internal Revenue Code, including, but not limited to, the
minimum funding requirements of any Pension Plan, except where the failure to
comply could not have a Material Adverse Effect.
8.16 ERISA Notices. Promptly notify Agent upon the occurrence of
any of the following events:
(a) the termination of any Pension Plan subject to
Subtitle C of Title IV of ERISA;
(b) the appointment of a trustee by a United States
District Court to administer any Pension Plan subject to Title IV of
ERISA;
(c) the commencement by the Pension Benefit Guaranty
Corporation, or any successor thereto, of any proceeding to terminate
any Pension Plan subject to Title IV of ERISA;
(d) the failure of a Borrower or any Subsidiary to make
any payment in respect of any Pension Plan required under Section 412
of the Internal Revenue Code;
(e) the withdrawal of a Borrower or any Subsidiary from
any Multiemployer Plan; or
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(f) the occurrence of a "reportable event" which is
required to be reported by a Borrower under Section 4043 of ERISA or a
"prohibited transaction" as defined in Section 406 of ERISA or Section
4975 of the Internal Revenue Code which in either case is likely to
have a Material Adverse Effect.
8.17 Security. Take such actions as the Agent or the Majority Banks
may from time to time reasonably request to establish and maintain first
perfected security interests in and Liens on all of its Collateral, subject
only to Permitted Liens and other liens permitted under Section 9.2 hereof.
8.18 Defense of Collateral. Defend the Collateral from any Liens
other than Liens permitted by Section 9.2.
8.19 Use of Proceeds. Use all Advances of (i) the Revolving Credit
for working capital financing, general corporate purposes, including
refinancing of existing debt, to finance Permitted Acquisitions and for Capital
Expenditures, (ii) Term Loan B to refinance existing debt of F&P, and (iii)
Term Loan A to finance the F&P Acquisition. Borrowers shall not use any portion
of the proceeds of any such advances for the purpose of purchasing or carrying
any "margin stock" (as defined in Regulation G of the Board of Governors of the
Federal Reserve System) in any manner which violates the provisions of
Regulation G, T, U or X of said Board of Governors or for any other purpose in
violation of (x) any applicable statute or regulation or (y) the terms and
conditions of this Agreement.
8.20 Future Subsidiaries; Additional Collateral.
(a) With respect to each Person which becomes a Significant
Subsidiary of any Borrower subsequent to the Effective Date, within thirty days
of the date such Person is created, acquired or otherwise becomes a Subsidiary
(whichever first occurs), cause such new Subsidiary to execute and deliver to
the Agent (i) in the case of each Significant Domestic Subsidiary, (x) a
Joinder Agreement whereby such Domestic Subsidiary becomes obligated as a
Guarantor under the Domestic Guaranty and (y) the Security Agreement and (ii)
in the case of each Foreign Subsidiary other than Autocam Brazil, (x) a Joinder
Agreement whereby such Significant Foreign Subsidiary becomes obligated as a
Guarantor under the Foreign Guaranty and (y) if required by the Majority
Revolving Credit Banks, a Foreign Security Agreement;
(b) With respect to the share capital (or other ownership
interests) of each Person, which becomes a Significant Foreign Subsidiary
subsequent to the Effective Date, within sixty days of the date such Person is
created, acquired or becomes a Subsidiary (whichever first occurs), the
Borrowers shall execute, or cause to be executed, and deliver to the Agent a
Pledge Agreement encumbering, with a first priority Lien, 65% of the share
capital of each such Foreign Subsidiary to secure the Indebtedness of the
Borrowers and the Indebtedness (as such term is defined therein) and 100% of
the share capital of each such Foreign Subsidiary to secure the Indebtedness of
the Foreign Permitted Borrowers hereunder; and
(c) With respect to the share capital (or other ownership
interests) of each Person, which becomes a Domestic Significant Subsidiary
subsequent to the Effective Date, within thirty days of the date such Person is
created, acquired or becomes a Significant Subsidiary (whichever first occurs),
Autocam shall execute, or cause to be executed, and deliver to the Agent a
stock pledge encumbering hereof, 100% of the share capital of each such
Significant Domestic Subsidiary to secure the Indebtedness of the Borrowers; in
each case in form satisfactory to the Agent and the Majority Banks, in their
reasonable discretion, together with such supporting documentation, including
without limitation corporate authority items, certificates and opinions of
counsel, as reasonably required by the Agent and the Majority Banks and the
Borrower shall take, or cause to be taken, such steps as are necessary or
advisable under applicable law to perfect the liens granted under clauses (a)
and (b) hereof.
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8.21 Further Assurances. Execute and deliver or cause to be
executed and delivered to Agent within a reasonable time following Agent's
request, and at the Borrowers' expense, such other documents or instruments as
Agent may reasonably require to effectuate more fully the purposes of this
Agreement or the other Loan Documents.
8.22 French Merger. Cause the French Seller to be merged with and
into F & P as the surviving entity pursuant to French law no later than
December 31, 1998.
8.23 Release of Seller Pledge. Upon and within thirty (30) days of
the direction by the Agent, cause the Seller Pledge to be released through the
issuance of the Seller Pledge Replacement L/C. Autocam will promptly thereafter
cause the released shares to be pledged to the Agent for the benefit of the
Banks pursuant to the Pledge Agreements if such shares are not then subject to
the Pledge Agreements. Each Revolving Borrower irrevocably appoints the Agent or
any employee of the Agent (which appointment is coupled with an interest) as its
true and lawful attorney (with full power of substitution) in the name, place
and stead of, and at the expense of, such Revolving Borrower, to execute and
deliver on behalf of such Revolving Borrower, any and all Letter of Credit
Agreements with respect to the Seller Pledge Replacement L/C.
8.24 Prepayment of F&P Debt. Prepay all secured Funded Debt of F&P
on or before January 31, 1999.
9. NEGATIVE COVENANTS.
Borrowers covenant and agree that, until the later of the last Term
Loan Maturity Date and the Revolving Credit Maturity Date and thereafter until
expiration of all Letters of Credit and final payment in full of the
Indebtedness and the performance by Borrowers and the Subsidiaries of all other
obligations under this Agreement and the other Loan Documents, without the prior
written consent of the Majority Banks they will not, and will not permit any of
their respective Subsidiaries, to:
9.1 Limitation on Funded Debt. Create, incur, assume or suffer to
exist any Funded Debt, except:
(a) Indebtedness in respect of the Notes (if issued), the
Letters of Credit and other obligations of the Borrowers or any
Subsidiary under this Agreement and the other Loan Documents to which
they are a party;
(b) any Funded Debt set forth in Schedule 9.1(b) attached
hereto and any renewals or refinancing of such Funded Debt in amounts
not exceeding the scheduled amounts (less any required amortization
according to the terms thereof), on substantially the same terms and
otherwise in compliance with this Agreement;
(c) Funded Debt of the Borrowers or a Subsidiary other
than pursuant to this Agreement and other than Funded Debt set forth in
Schedule 9.1(c) attached hereto incurred to finance the acquisition of
fixed or capital assets (whether pursuant to a loan or a Capitalized
Lease) in an aggregate amount not exceeding $2,500,000 at any time
outstanding, and any renewals or refinancing of such Funded Debt in
amounts not exceeding the scheduled amounts (less any required
amortization according to the terms thereof), on substantially the same
terms and otherwise in compliance with this Agreement;
(d) Subordinated Debt;
(e) Indebtedness under any Interest Rate Protection
Agreements;
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(f) Intercompany Loans, but only to the extent permitted
under the other applicable terms and limitations of this Agreement,
including but not limited to Section 9.8 hereof;
(g) Funded Debt assumed pursuant to a Permitted
Acquisition, provided that such Funded Debt was not entered into,
extended or renewed in contemplation of such acquisition (including
Funded Debt secured by Liens permitted by Section 9.2(c)), provided
that the aggregate amount of all such Funded Debt shall not exceed
$2,500,000;
(h) unsecured overdraft line of credit or similar credit
arrangement maintained by any Significant Foreign Subsidiary in the
ordinary course of business in the country of its formation and which
is not subject to any guaranty or other support, in an amount not to
exceed $2,500,000;
(i) additional unsecured Funded Debt not exceeding
$2,500,000 in aggregate principal amount at any one time outstanding.
9.2 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 for:
(a) Permitted Liens;
(b) Liens securing Funded Debt permitted by Section
9.1(c) incurred to finance the acquisition of fixed or capital assets,
provided that (i) such Liens shall be created substantially
simultaneously with the acquisition of such fixed or capital assets,
(ii) such Liens do not at any time encumber any property other than the
property financed by such Funded Debt, (iii) the amount of Funded Debt
secured thereby is not increased and (iv) the principal amount of
Funded Debt secured by any such Lien shall at no time exceed 100% of
the original purchase price of such property;
(c) any Lien securing indebtedness assumed pursuant to a
Permitted Acquisition, provided that such Lien is limited to the
property so acquired, and was not entered into, extended or renewed in
contemplation of such acquisition;
(d) Liens in favor of Agent, as security for the
Indebtedness; and
(e) attachments, judgements and other similar Liens
(other than any judgment that is described in clause (i) of Section
10.1 and constitutes an Event of Default thereunder), arising in
connection with court proceedings, provided that the execution or
other enforcement of such Liens is effectively stayed and claims
secured thereby are being actively contested in good faith and by
appropriate proceedings; and
(f) other Liens, existing on the Effective Date, set
forth on Schedule 9.2.
9.3 Limitation on Guarantee Obligations. Create, incur, assume or
suffer to exist any Guarantee Obligation except the Guaranties, any guaranties
described on Schedule 9.3, and guaranties of indebtedness permitted under
Section 9.1(d) and (e).
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9.4 Acquisitions. Other than Permitted Acquisitions, purchase or
otherwise acquire or become obligated for the purchase of all or substantially
all or any material portion of the assets or business interests of any Person,
firm or corporation, or any shares of stock (or other ownership interests) of
any corporation, trusteeship or association, or any business or going concern,
or in any other manner effectuate or attempt to effectuate an expansion of
present business by acquisition.
9.5 Limitation on Mergers, or Sale of Assets. Enter into any
merger or consolidation or 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, except:
(a) inventory leased or sold in the ordinary course of
business;
(b) obsolete or worn out property, property no longer
useful in the conduct of a Borrower's or any Subsidiary's business or
property from closed offices;
(c) mergers in which a Borrower or a Subsidiary is the
surviving corporation and which otherwise meet the definition of
"Permitted Acquisition";
(d) mergers or consolidations of any Subsidiary with or
into Autocam (so long as Autocam shall be the continuing or surviving
corporation); mergers or consolidations of any Domestic Subsidiary
with or into any other Domestic Guarantor (so long as such Domestic
Subsidiary shall be the continuing or surviving corporation); and the
French Merger;
(e) sales or transfers (other than sales or transfers of
stock or other ownership interests) between any Domestic Borrower or
any Domestic Guarantor and any other Domestic Guarantor; and
(f) subject to the mandatory prepayment provisions of
Section 4.15 hereof, Asset Sales in which the sales price is at least
the fair market value of the assets sold and the aggregate amount of
such Asset Sales is less than $1,500,000 in any fiscal year, and other
Asset Sales approved by the Majority Banks.
9.6 Restricted Payments. Declare or make, or permit any
Subsidiary to, declare or make any distributions, dividend, payment or other
distribution of assets, properties, cash, rights, obligations or securities
(collectively, "Distributions") on account of any membership interests or any
shares of any class of its capital stock, as applicable, or purchase, redeem or
otherwise acquire for value any membership interests or any shares of its
capital stock, as applicable, or any warrants, rights or options to acquire
such shares or membership interests, now or hereafter outstanding; except that
Autocam's Subsidiaries may make Distributions to Autocam and Autocam may make
Permitted Distributions.
9.7 Limitation on Capital Expenditures. Make or commit to make
(by way of the acquisition of securities of a Person or otherwise) any
expenditure in respect of the purchase or other acquisition of fixed or capital
assets (excluding any such asset acquired in connection with normal replacement
and maintenance programs properly charged to current operations) except for:
(a) Permitted Acquisitions permitted by Section 9.4, to
the extent assets are acquired which constitute Capital Expenditures;
and
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(b) Capital Expenditures not exceeding, in the aggregate
for the Borrowers during any fiscal year, an amount equal to the CapEx
Limit, determined on a non-cumulative basis in accordance with GAAP;
except that the unused amount of the CapEx Limit in any fiscal year may
be carried over and used in the next succeeding fiscal year, provided
that there shall be no carry over of such unused amount in any
subsequent year and provided further that for purposes of calculating
the amount which may be carried over, all Capital Expenditures for a
fiscal year shall be first applied to the CapEx Limit for such year.
9.8 Limitation on Investments, Loans and Advances. Make 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,
except:
(a) Permitted Investments;
(b) Investments existing on the Effective Date and listed
on Schedule 9.8 hereof;
(c) extensions of trade credit in the ordinary course of
business;
(d) loans and advances to officers and employees of a
Borrower or any Subsidiary in the ordinary course of business in an
aggregate amount, not to exceed $1,500,000 at any one time outstanding;
(e) Intercompany Loans, Advances or Investments made on
or after the Effective Date to Autocam, or by Autocam or any Domestic
Subsidiary to Autocam or any Domestic Guarantor (provided that any
Intercompany Loan hereunder shall be evidenced by and funded under an
Intercompany Note encumbered pursuant to a Pledge Agreement), provided
that at the time any such loan, advance or investment is made (before
and after giving effect thereto) no Default or Event of Default has
occurred and is continuing;
(f) Intercompany Loans, Advances or Investments made on
or after the Effective Date by Autocam to any Permitted Borrower or to
any Foreign Guarantor (provided that any Intercompany Loan hereunder
shall be evidenced by and funded under an Intercompany Note encumbered
pursuant to a Pledge Agreement), in an aggregate amount not to exceed
the greater of (i) $5,000,000 and (ii) 10% of Consolidated Tangible Net
Worth, provided that at the time any such loan, advance or investment
is made (before and after giving effect thereto) no Default or Event of
Default has occurred and is continuing; and
(g) Permitted Acquisitions permitted pursuant to Section
9.4.
In valuing any Investments for the purpose of applying the limitations set forth
in this Section 9.8 (except as otherwise expressly provided herein), such
Investment shall be taken at the original cost thereof, without allowance for
any subsequent write-offs or appreciation or depreciation, but less any amount
repaid or recovered on account of capital or principal.
9.9 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 of a Borrower or any
Subsidiary unless such transaction is otherwise permitted under this Agreement
or is in the ordinary course of a Borrower's or such Subsidiary's business and
is upon fair and reasonable terms no less favorable to the applicable Borrower
or such Subsidiary than it would obtain in a comparable arms length transaction
with a Person not a Subsidiary.
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9.10 Sale and Leaseback. Enter into any arrangement with any Person
providing for the leasing by a Borrower or any Subsidiary of real or personal
property which has been or is to be sold or transferred by a Borrower or such
Subsidiary to such Person or to any other Person to whom funds have been or are
to be advanced by such Person on the security of such property or rental
obligations of a Borrower or such Subsidiary, as the case may be.
9.11 Limitation on Negative Pledge Clauses. Enter into any
agreement, document or instrument which would restrict or prevent Borrowers and
their Subsidiaries from granting Agent on behalf of Banks liens upon, security
interests in and pledges of their respective assets which are senior in
priority to all other Liens, except for Permitted Liens and any other
agreements, documents or instruments pursuant to which Liens not prohibited by
the terms of this Agreement are created, entered into, or allowed to exist.
9.12 Prepayment of Debts. Prepay, purchase, redeem or defease any
Funded Debt for money borrowed (including without limitation any Subordinated
Debt) or any capital leases and excluding, subject to the terms hereof, the
Indebtedness, any paydowns from time to time of permitted overdraft lines of
credit and similar lines of credit, regularly scheduled payments of principal
and interest, subject to the blockage provisions contained in the Subordinated
Debt Documents, and prepayments of indebtedness secured by Liens described on
Schedule 9.2 made while no Default or Event of Default has occurred or would
occur after giving effect to any such prepayment.
9.13 Amendment of Subordinated Debt Documents. Amend, modify or
otherwise alter (or suffer to be amended, modified or altered) any of the
material terms and conditions of those documents or instruments evidencing or
otherwise related to any Funded Debt set forth on Schedule 9.1, any Subordinated
Debt, or waive (or permit to be waived) any provision thereof in any material
respect, without the prior written approval of Agent and the Majority Banks; for
purposes of those documents or instruments evidencing or otherwise related to
such Funded Debt, any increase in the original interest rate or principal
amount, any shortening of the original amortization, any change in financial
covenants, any change in any default, remedial or other repayment terms and any
change in or waiver of conditions contained therein which are required under or
necessary for compliance with this Agreement or the other Loan Documents shall
(without reducing the scope of this Section 9.13) be deemed to be material.
9.14 Modification of Certain Agreements. Make, permit or consent to
any amendment or other modification to the constitutional documents of
Borrowers or, the Guarantors or, the F&P Acquisition Documents, except to the
extent that any such amendment (i) does not violate the terms and conditions of
this Agreement or any of the other Loan Documents, (ii) does not materially
adversely affect the interest of the Banks as creditor under this Agreement,
the other Loan Documents or any other document or instrument in any respect and
(iii) could not reasonably be expected to have a Material Adverse Effect.
10. DEFAULTS
10.1 Events of Default. The occurrence of any of the following
events shall constitute an Event of Default hereunder:
(a) non-payment when due of (i) the principal or interest
under any of the Notes issued hereunder in accordance with the terms
thereof, (ii) any Reimbursement Obligation, or (iii) any Fees, and in
the case interest payments and Fees, continuance thereof for three (3)
Business Days;
(b) non-payment of any money by Borrowers under this
Agreement or by Borrowers or any Subsidiary under any of the other
Loan Documents to which it is a party, other than as set forth in
subsection (a), above within five Business Days after notice from
Agent that the same is due and payable;
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(c) default in the observance or performance of any of
the conditions, covenants or agreements of Borrowers set forth in
Sections 8.4(a), 8.5, 8.6, 8.7(a), 8.9 through 8.12, 8.19, or 9 (in
its entirety);
(d) default in the observance or performance of any of
the conditions, covenants or agreements of the Borrowers set forth in
Section 8.1, 8.2, 8.7(b), 8.7(c), 8.7(d), 8.7(e), 8.7(f), or 8.20 and
continuance thereof for fifteen (15) days;
(e) default in the observance or performance of any of
the other conditions, covenants or agreements set forth in this
Agreement by Borrowers and continuance thereof for a period of thirty
(30) consecutive days after written notice from Agent;
(f) any representation or warranty made by Borrowers or
any Subsidiary herein or in any instrument submitted pursuant hereto
or by any other party to the Loan Documents proves untrue or
misleading in any material adverse respect when made;
(g) default in the observance or performance of or
failure to comply with any of the conditions, covenants or agreements
of Borrowers or any Subsidiary set forth in any of the other Loan
Documents, and the continuance thereof beyond any period of grace or
cure specified in any such document or, in the case of the Collateral
Documents, continuance thereof for a period of fifteen (15) days after
written notice from Agent;
(h) default (i) in the payment of any indebtedness for
borrowed money (other than Indebtedness hereunder) of any Borrower or
any Subsidiary in excess of Five Million Dollars ($5,000,000) (or the
equivalent thereof in an Alternative Currency) individually or in the
aggregate when due (whether by acceleration or otherwise) and
continuance thereof beyond any applicable period of cure or (ii)
failure to comply with the terms of any other obligation of any
Borrower or any Subsidiary with respect to any indebtedness for
borrowed money (other than Indebtedness hereunder) in excess of Five
Million Dollars ($5,000,000) (or the equivalent thereof in an
Alternative Currency) individually or in the aggregate, which continues
beyond any applicable period of cure and which would permit the holder
or holders thereto to accelerate such other indebtedness for borrowed
money;
(i) the rendering of any judgment(s) for the payment of
money in excess of the sum of Five Hundred Thousand Dollars ($500,000)
(or the equivalent thereof in an Alternative Currency) individually or
in the aggregate against any Borrower or any Subsidiary, and such
judgments shall remain unpaid, unvacated, unbonded or unstayed by
appeal or otherwise for a period of thirty (30) consecutive days,
except as covered by adequate insurance with a reputable carrier and
an action is pending in which an active defense is being made with
respect thereto;
(j) the occurrence of a "reportable event", as defined in
ERISA, which is determined to constitute grounds for termination by the
Pension Benefit Guaranty Corporation of any Pension Plan subject to
Title IV of ERISA maintained or contributed to by or on behalf of a
Borrower or any of its Subsidiaries for the benefit of any of its
employees or for the appointment by the appropriate United States
District Court of a trustee to administer such Pension Plan and such
reportable event is not corrected and such determination is not revoked
within sixty (60) days after notice thereof has been given to the plan
administrator of such Pension Plan (without limiting any of Agent's or
any Bank's other rights or remedies hereunder), or the institution of
proceedings by the Pension Benefit Guaranty Corporation to terminate
any such Pension Plan or to appoint a trustee by the appropriate United
States District Court to administer any such Pension Plan, which in
either case could reasonably be expected to have a Material Adverse
Effect;
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(k) any Borrower shall be dissolved or liquidated (or any
judgment, order or decree therefor shall be entered) or; if a
creditors' committee shall have been appointed for the business of any
Borrower or any Subsidiary; or if any Borrower or any Subsidiary shall
have made a general assignment for the benefit of creditors or shall
have been adjudicated bankrupt and if not an adjudication based on a
filing by Borrowers it shall not have been dismissed within sixty (60)
days, or shall have filed a voluntary petition in bankruptcy or for
reorganization or to effect a plan or arrangement with creditors or
shall fail to pay its debts generally as such debts become due in the
ordinary course of business (except as contested in good faith and for
which adequate reserves are made in such party's financial statements);
or shall file an answer to a creditor's petition or other petition
filed against it, admitting the material allegations thereof for an
adjudication in bankruptcy or for reorganization; or shall have applied
for or permitted the appointment of a receiver or trustee or custodian
for any of its property or assets; or such receiver, trustee or
custodian shall have been appointed for any of its property or assets
(otherwise than upon application or consent of a Borrower or any of its
Subsidiaries) and shall not have been removed within sixty (60) days;
or if an order shall be entered approving any petition for
reorganization of a Borrower or any Subsidiary and shall not have been
reversed or dismissed within sixty (60) days; or a Borrower or any
Subsidiary shall take any action (corporate or other) authorizing or in
furtherance any of the actions described above in this subsection;
(l)(i) any Person or "group" (within the meaning of Section
13(d) or 14(d) of the Securities Exchange Act of 1934, as amended) (A)
shall have acquired beneficial ownership of 25% or more of the capital
stock having ordinary voting power in the election of directors of
Autocam or (B) shall obtain the power (whether or not exercised) to
elect a majority of Autocam's directors or (ii) the Board of Directors
of Autocam shall not consist of a majority of Continuing Directors;
"Continuing Directors" shall mean the directors of Autocam on the
Effective Date and each other director, if such other director's
nomination for election to the Board of Directors of Autocam is
recommended by a majority of the then Continuing Directors;
(m) default in the observance or performance of or any
failure to comply with any of the conditions, covenants or agreements
of any Subordinated Debt Holder under the terms of any Subordination
Agreement and continuance thereof for a period of fifteen (15) days
after written notice from Agent to the applicable Subordinated Debt
Holder and Borrowers; or
(n) any material provision of any Collateral Document
shall at any time for any reason cease to be valid, binding and
enforceable against any Borrower or any Subsidiary, as applicable, or
the validity, binding effect or enforceability thereof shall be
contested by any Borrower or any Subsidiary shall deny that it has any
or further liability or obligation under any Collateral Document, or
any such Loan Document shall be terminated, invalidated, revoked or
set aside or in any way cease to give or provide to the Banks and the
Agent the benefits purported to be created thereby.
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10.2 Exercise of Remedies. If an Event of Default has occurred and
is continuing hereunder: (a) the Agent may, and shall, upon being directed to
do so by the Majority Banks, declare the Commitments terminated; (b) the Agent
may, and shall, upon being directed to do so by the Majority Banks, declare the
entire unpaid principal Indebtedness, including the Notes, immediately due and
payable, without presentment, notice or demand, all of which are hereby
expressly waived by Borrowers; (c) upon the occurrence of any Event of Default
specified in subsection 10.1(k), above, and notwithstanding the lack of any
declaration by Agent under preceding clause (b), the entire unpaid principal
Indebtedness, including the Notes, shall become automatically and immediately
due and payable, and the Commitments shall be automatically and immediately
terminated; (d) the Agent shall, upon being directed to do so by the Majority
Banks, demand immediate delivery of cash collateral, and Borrowers and each
Account Party agrees to deliver such cash collateral upon demand, in an amount
equal to the maximum amount that may be available to be drawn at any time prior
to the stated expiry of all outstanding Letters of Credit, and (e) the Agent
may, and shall, if directed to do so by the Majority Banks or the Banks, as
applicable (subject to the terms hereof), exercise any remedy permitted by this
Agreement, the other Loan Documents or law; provided, however, that Agent shall
not be entitled to foreclose its security interest in the, or otherwise cause a
sale of the, stock pledged under the Pledge Agreement or exercise any voting
rights with respect to such stock until more than ninety (90) days have elapsed
since the acceleration or maturity of the Indebtedness.
10.3 Rights Cumulative. No delay or failure of Agent and/or Banks
in exercising any right, power or privilege hereunder shall affect such right,
power or privilege, nor shall any single or partial exercise thereof preclude
any further exercise thereof, or the exercise of any other power, right or
privilege. The rights of Agent and Banks under this Agreement are cumulative and
not exclusive of any right or remedies which Banks would otherwise have.
10.4 Waiver by Borrowers of Certain Laws. To the extent permitted
by applicable law, each Borrower hereby agrees to waive, and does hereby
absolutely and irrevocably waive and relinquish the benefit and advantage of
any valuation, stay, appraisement, extension or redemption laws now existing or
which may hereafter exist, which, but for this provision, might be applicable
to any sale made under the judgment, order or decree of any court, on any claim
for interest on the Notes, or any security interest or mortgage contemplated by
or granted under or in connection with this Agreement. These waivers have been
voluntarily given, with full knowledge of the consequences thereof.
10.5 Waiver of Defaults. No Event of Default shall be waived by the
Banks except in a writing signed by an officer of the Agent in accordance with
Section 14.11 hereof. No single or partial exercise of any right, power or
privilege hereunder, nor any delay in the exercise thereof, shall preclude other
or further exercise of their rights by Agent or the Banks. No waiver of any
Event of Default shall extend to any other or further Event of Default. No
forbearance on the part of the Agent or the Banks in enforcing any of their
rights shall constitute a waiver of any of their rights. Borrowers expressly
agree that this Section may not be waived or modified by the Banks or Agent by
course of performance, estoppel or otherwise.
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10.6 Set Off.
Upon the occurrence and during the continuance of any Event of Default,
each Bank may at any time and from time to time, without notice to the Borrowers
but subject to the provisions of Section 11.3 hereof, (any requirement for such
notice being expressly waived by the Borrowers) set off and apply against any
and all of the obligations of the Borrowers now or hereafter existing under this
Agreement, whether owing to such Bank or any other Bank or the Agent, any and
all deposits (general or special, time or demand, provisional or final) at any
time held and other indebtedness at any time owing by such Bank to or for the
credit or the account of either Borrower and any property of either Borrower
from time to time in possession of such Bank, irrespective of whether or not
such deposits held or indebtedness owing by such Bank may be contingent and
unmatured and regardless of whether any Collateral then held by Agent or any
Bank is adequate to cover the Indebtedness. Promptly following any such setoff,
such Bank shall give written notice to Agent and to Borrowers of the occurrence
thereof. The Borrowers hereby grant to the Banks and the Agent a lien on and
security interest in all such deposits, indebtedness and property as collateral
security for the payment and performance of all of the obligations of the
Borrowers under this Agreement. The rights of each Bank under this Section 10.6
are in addition to the other rights and remedies (including, without limitation,
other rights of setoff) which such Bank may have.
11. PAYMENTS, RECOVERIES AND COLLECTIONS
11.1 Payment Procedure.
(a) All payments by the Borrowers in respect of principal
of, or interest on, any Advance in Dollars or in respect of any Letter
of Credit Obligations or Fees which are payable in Dollars shall be
made without setoff or counterclaim on the date specified for payment
under this Agreement not later than 11:00 a.m. (Detroit time) in
Dollars in immediately available funds to Agent, for the ratable
account of the Banks, at Agent's office located at One Detroit Center,
Detroit, Michigan 48226-3289. Payments made by the Borrowers in respect
of principal of, or interest on, any Advance in any Alternative
Currency or in respect of any Letter of Credit Obligations or Fees
which are payable in any Alternative Currency shall be made in such
Alternative Currency in immediately available funds for the account of
Agent's Eurocurrency Lending Office, at the Agent's Correspondent, for
the ratable account of the Banks, not later than 11:00 a.m. (the local
time of Agent's Correspondent). Upon receipt of each such payment, the
Agent shall make prompt payment to each Bank, or, in respect of
Eurocurrency-based Advances, such Bank's Eurocurrency Lending Office,
in like funds and currencies, of all amounts received by it for the
account of such Bank.
(b) Unless the Agent shall have been notified by
Borrowers prior to the date on which any payment to be made by
Borrowers is due that Borrowers do not intend to remit such payment,
the Agent may, in its sole discretion and without obligation to do so,
assume that the Borrowers have remitted such payment when so due and
the Agent may, in reliance upon such assumption, make available to each
Bank on such payment date an amount equal to such Bank's share of such
assumed payment. If Borrowers have not in fact remitted such payment to
the Agent each Bank shall forthwith on demand repay to the Agent the
amount of such assumed payment made available or transferred to such
Bank, together with the interest thereon, in respect of each day from
and including the date such amount was made available by the Agent to
such Bank to the date such amount is repaid to the Agent at a rate per
annum equal to (i) for Prime-based Advances, the Federal Funds
Effective Rate (daily average), as the same may vary from time to time,
and (ii) with respect to Eurocurrency-based Advances, Agent's aggregate
marginal cost (including the cost of maintaining any required reserves
or deposit insurance and of any fees, penalties, overdraft charges or
other costs or expenses incurred by Agent) of carrying such amount.
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(c) Subject to the definition of Interest Period,
whenever any payment to be made hereunder shall otherwise be due on a
day which is not a Business Day, such payment shall be made on the
next succeeding Business Day and such extension of time shall be
included in computing interest, if any, in connection with such
payment.
(d) All payments to be made by Borrowers under this
Agreement or any of the Notes (including without limitation payments
under the Swing Line) shall be made without set-off or counterclaim,
as aforesaid, and, subject to compliance by the Banks with Section
14.13, without deduction for or on account of any present or future
withholding or other taxes of any nature imposed by any governmental
authority or of any political subdivision thereof or any federation or
organization of which such governmental authority may at the time of
payment be a member, unless Borrowers are compelled by law to make
payment subject to such tax. In such event, Borrowers shall:
(i) pay to the Agent for Agent's own account
and/or, as the case may be, for the account
of the Banks (and, in the case of Advances
of the Swing Line, pay to the Swing Line
Bank which funded such Advances) such
additional amounts as may be necessary to
ensure that the Agent and/or such Bank or
Banks receive a net amount equal to the full
amount which would have been receivable had
payment not been made subject to such tax;
and
(ii) remit such tax to the relevant taxing
authorities according to applicable law, and
send to the Agent or the applicable Bank
(including the Swing Line Bank) or Banks, as
the case may be, such certificates or
certified copy receipts as the Agent or such
Bank or Banks shall reasonably require as
proof of the payment by the Borrowers, of
any such taxes payable by the Borrowers.
As used herein, the terms "tax", "taxes" and "taxation" include all taxes,
levies, imposts, duties, charges, fees, deductions and withholdings and any
restrictions or conditions resulting in a charge together with interest (and any
taxes payable upon the amounts paid or payable pursuant to this Section 11.1)
thereon and fines and penalties with respect thereto which may be imposed by
reason of any violation or default with respect to the law regarding such tax,
assessed as a result of or in connection with the transactions in any
Alternative Currency hereunder, or the payment and/or receipt of funds in any
Alternative Currency hereunder, or the payment or delivery of funds into or out
of any jurisdiction other than the United States (whether assessed against any
of the Borrower, Agent or any of the Banks). Borrowers shall be reimbursed by
the applicable Bank for any payment made by Borrowers under this Section 11.1 if
the applicable Bank is not in compliance with its obligations under Section
14.13.
11.2 Application of Proceeds of Collateral. Notwithstanding
anything to the contrary in this Agreement, after an Event of Default, the
proceeds of any Collateral, together with any offsets, voluntary payments by
Borrowers or any Subsidiary of the Borrowers or others and any other sums
received or collected in respect of the Indebtedness, shall be applied, first,
to the Advances of the Revolving Credit and the Term Loans and any
Reimbursement Obligations on a pro rata basis (or in such order and manner as
determined by the Majority Banks; subject, however, to the applicable
Percentages of the loans held by each of the Banks), next, to any other
Indebtedness on a pro rata basis, and then, if there is any excess, to
Borrowers and the Subsidiaries, as the case may be. The application of such
proceeds and other sums to the Advances of the Revolving Credit and Term Loans
and the Reimbursement Obligations shall be based on each Bank's Percentage of
the aggregate of the loans.
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11.3 Pro-rata Recovery. If any Bank shall obtain any payment or
other recovery (whether voluntary, involuntary, by application of offset or
otherwise) on account of principal of, or interest on, any of the Indebtedness
in excess of its pro rata share of payments then or thereafter obtained by all
Banks upon principal of and interest on all Indebtedness, such Bank shall
purchase from the other Banks such participations in the Revolving Credit, the
Term Loans and/or Reimbursement Obligation held by them as shall be necessary
to cause such purchasing Bank to share the excess payment or other recovery
ratably in accordance with the Weighted Percentage with each of them; provided,
however, that if all or any portion of the excess payment or other recovery is
thereafter recovered from such purchasing holder, the purchase shall be
rescinded and the purchase price restored to the extent of such recovery, but
without interest.
12. CHANGES IN LAW OR CIRCUMSTANCES; INCREASED COSTS
12.1 Reimbursement of Prepayment Costs. If any Borrower makes any
payment of principal with respect to any Eurocurrency-based Advance or Quoted
Rate Advance on any day other than the last day of the Interest Period
applicable thereto (whether voluntarily, by acceleration, or otherwise), or if
any Borrower converts or refunds (or attempts to convert or refund) any such
Advance on any day other than the last day of the Interest Period applicable
thereto; or if any Borrower fails to borrow, refund or convert into any
Eurocurrency-based Advance or Quoted Rate Advance after notice has been given by
such Borrower to Agent in accordance with the terms hereof requesting such
Advance, or if any Borrower fails to make any payment of principal or interest
in respect of a Eurocurrency-based Advance or Quoted Rate Advance when due, the
applicable Borrower shall reimburse Agent for itself and/or on behalf of any
Bank, as the case may be, on demand for any resulting loss, cost or expense
incurred (excluding the loss of any Applicable Margin) by Agent and Banks, as
the case may be as a result thereof, including, without limitation, any such
loss, cost or expense incurred in obtaining, liquidating, employing or
redeploying deposits from third parties, whether or not Agent and Banks, as the
case may be, shall have funded or committed to fund such Advance. Such amount
payable by such Borrower to Agent for itself and/or on behalf of any Bank, as
the case may be, may include, without limitation, an amount equal to the excess,
if any, of (a) the amount of interest which would have accrued on the amount so
prepaid, or not so borrowed, refunded or converted, for the period from the date
of such prepayment or of such failure to borrow, refund or convert, through the
last day of the relevant Interest Period, at the applicable rate of interest for
said Advance(s) provided under this Agreement, over (b) the amount of interest
(as reasonably determined by Agent and Banks, as the case may be) which would
have accrued to Agent and Banks, as the case may be, on such amount by placing
such amount on deposit for a comparable period with leading banks in the
interbank eurocurrency market. Calculation of any amounts payable to any Bank
under this paragraph shall be made as though such Bank shall have actually
funded or committed to fund the relevant Advance through the purchase of an
underlying deposit in an amount equal to the amount of such Advance and having a
maturity comparable to the relevant Interest Period; provided, however, that any
Bank may fund any Eurocurrency-based Advance or Quoted Rate Advance, as the case
may be, in any manner it deems fit and the foregoing assumptions shall be
utilized only for the purpose of the calculation of amounts payable under this
paragraph. Upon the written request of Borrowers, Agent and Banks shall deliver
to Borrowers a certificate setting forth the basis for determining such losses,
costs and expenses, which certificate shall be conclusively presumed correct,
absent manifest error.
12.2 Eurocurrency Lending Office. For any Advance to which the
Eurocurrency-based Rate is applicable, if Agent or a Bank, as applicable, shall
designate a Eurocurrency Lending Office which maintains books separate from
those of the rest of Agent or such Bank, Agent or such Bank, as the case may be,
shall have the option of maintaining and carrying the relevant Advance on the
books of such Eurocurrency Lending Office.
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12.3 Availability of Alternative Currency. The Agent and the Banks
shall not be required to make any Advance in an Alternative Currency if, at any
time prior to making such Advance, the Agent or the Majority Banks (after
consultation with Agent) shall determine, in its or their sole discretion, that
(i) deposits in the applicable Alternative Currency in the amounts and
maturities required to fund such Advance will not be available to the Agent and
the Banks; (ii) a fundamental change has occurred in the foreign exchange or
interbank markets with respect to the applicable Alternative Currency
(including, without limitation, changes in national or international financial,
political or economic conditions or currency exchange rates or exchange
controls); or (iii) it has become otherwise materially impractical for the Agent
or the Banks, as applicable, to make such Advance in the applicable Alternative
Currency. The Agent or the applicable Bank, as the case may be, shall promptly
notify the Borrowers and the Banks of any such determination.
12.4 Refunding Advances in Same Currency. If pursuant to any
provisions of this Agreement, any of the Borrowers repays one or more Advances
and on the same day borrows an amount in the same currency, the Agent (or the
Swing Line Bank, in the case of a Swing Line Advance) shall apply the proceeds
of such new borrowing to repay the principal of the Advance or Advances being
repaid and only an amount equal to the difference (if any) between the amount
being borrowed and the amount being repaid shall be remitted by the Agent to
such Borrower, or by such Borrower to the Agent, as the case may be.
12.5 Circumstances Affecting Eurocurrency-based Rate Availability.
If with respect to any Interest Period, Agent or the Majority Banks (after
consultation with Agent) shall determine that, by reason of circumstances
affecting the foreign exchange and interbank markets generally, deposits in
eurodollars or in any applicable Alternative Currency, as the case may be, in
the applicable amounts are not being offered to the Agent or such Banks for such
Interest Period, then Agent shall forthwith give notice thereof to the
Borrowers. Thereafter, until Agent notifies the Borrowers that such
circumstances no longer exist, (i) the obligation of Banks to make
Eurocurrency-based Advances (other than in any applicable Alternative Currency
with respect to which deposits are available, as required hereunder), and the
right of the Borrowers to convert an Advance to or refund an Advance as a
Eurocurrency-based Advance, as the case may be (other than in any applicable
Alternative Currency with respect to which deposits are available, as required
hereunder), shall be suspended, and (ii) the Borrowers shall repay in full (or
cause to be repaid in full) the then outstanding principal amount of each such
Eurocurrency-based Advance covered hereby in the applicable Permitted Currency,
together with accrued interest thereon, any amounts payable under Sections 12.1
hereof, and all other amounts payable hereunder on the last day of the then
current Interest Period applicable to such Advance. Upon the date for repayment
as aforesaid and unless Autocam notifies Agent to the contrary within two (2)
Business Days after receiving a notice from Agent pursuant to this Section, such
outstanding principal amount shall be converted to a Prime-based Advance as of
the last day of such Interest Period.
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12.6 Laws Affecting Eurocurrency-based Advance Availability. If,
after the date of this Agreement, the introduction of, or any change in, any
applicable law, rule or regulation or in the interpretation or administration
thereof by any governmental authority charged with the interpretation or
administration thereof, or compliance by any of the Banks (or any of their
respective Eurocurrency Lending Offices) with any request or directive (whether
or not having the force of law) of any such authority, shall make it unlawful or
impossible for any of the Banks (or any of their respective Eurocurrency Lending
Offices) to honor its obligations hereunder to make or maintain any Advance with
interest at the Eurocurrency-based Rate, or in an Alternative Currency, such
Bank shall forthwith give notice thereof to Autocam and to Agent. Thereafter,
(a) the obligations of Banks to make Eurocurrency-based Advances or Advances in
any such Alternative Currency and the right of any Borrower to convert an
Advance into or refund an Advance as a Eurocurrency-based Advance or as an
Advance in any such Alternative Currency shall be suspended and thereafter the
Borrowers may select as Applicable Interest Rates or as Alternative Currencies
only those which remain available and which are permitted to be selected
hereunder, and (b) if any of the Banks may not lawfully continue to maintain an
Advance to the end of the then current Interest Period applicable thereto as a
Eurocurrency-based Advance or in such Alternative Currency, the applicable
Advance shall immediately be converted to a Prime-based Advance (in the Dollar
Amount thereof) and the Prime-based Rate shall be applicable thereto for the
remainder of such Interest Period. For purposes of this Section, a change in
law, rule, regulation, interpretation or administration shall include, without
limitation, any change made or which becomes effective on the basis of a law,
rule, regulation, interpretation or administration presently in force, the
effective date of which change is delayed by the terms of such law, rule,
regulation, interpretation or administration.
12.7 Increased Cost of Eurocurrency-based Advances. If the adoption
after the date of this Agreement of, or any change after the date of this
Agreement in, any applicable law, rule or regulation of or in the interpretation
or administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by Agent or any of the Banks (or any of their respective Eurocurrency
Lending Offices) with any request or directive (whether or not having the force
of law) made by any such authority, central bank or comparable agency after the
date hereof:
(a) shall subject any of the Banks (or any of their
respective Eurocurrency Lending Offices) to any tax, duty or other
charge with respect to any Advance or shall change the basis of
taxation of payments to any of the Banks (or any of their respective
Eurocurrency Lending Offices) of the principal of or interest on any
Advance or any other amounts due under this Agreement in respect
thereof (except for changes in the rate of tax on the overall net
income of any of the Banks or any of their respective Eurocurrency
Lending Offices imposed by the jurisdiction in which such Bank's
principal executive office or Eurocurrency Lending Office is located);
or
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(b) shall impose, modify or deem applicable any reserve
(including, without limitation, any imposed by the Board of Governors
of the Federal Reserve System), special deposit or similar requirement
against assets of, deposits with or for the account of, or credit
extended by, any of the Banks (or any of their respective Eurocurrency
Lending Offices) or shall impose on any of the Banks (or any of their
respective Eurocurrency Lending Offices) or the foreign exchange and
interbank markets any other condition affecting any Advance; and the
result of any of the foregoing is to increase the costs to any of the
Banks of maintaining any part of the Indebtedness hereunder as a
Eurocurrency-based Advance or as an Advance in any Alternative Currency
or to reduce the amount of any sum received or receivable by any of the
Banks under this Agreement in respect of a Eurocurrency-based Advance
or any Advance in an Alternative Currency, whether with respect to
Advances to any of the Borrowers, then such Bank shall promptly notify
Agent, and Agent (or such Bank, as aforesaid) shall promptly notify the
Borrowers of such fact and demand compensation therefor and, within
fifteen (15) days after such notice, the applicable Borrower agrees to
pay to such Bank such additional amount or amounts as will compensate
such Bank or Banks for such increased cost or reduction. Agent will
promptly notify the Borrowers of any event of which it has knowledge
which will entitle Banks to compensation pursuant to this Section, or
which will cause the Borrowers to incur additional liability under
Section 12.1 hereof, provided that Agent shall incur no liability
whatsoever to the Banks, the Borrowers in the event it fails to do so.
A certificate of Agent (or such Bank, if applicable) setting forth the
basis for determining such additional amount or amounts necessary to
compensate such Bank or Banks shall be conclusively presumed to be
correct save for manifest error. For purposes of this Section, a change
in law, rule, regulation, interpretation, administration, request or
directive shall include, without limitation, any change made or which
becomes effective on the basis of a law, rule, regulation,
interpretation, administration, request or directive presently in
force, the effective date of which change is delayed by the terms of
such law, rule, regulation, interpretation, administration, request or
directive.
12.8 Judgment Currency. The obligation of the Borrowers to make
payments of the principal of and interest on the outstanding Advances and any
other amounts payable hereunder in the currency specified for such payment
herein shall not be discharged or satisfied by any tender, or any recovery
pursuant to any judgment, which is expressed in or converted into any other
currency, except to the extent that such tender or recovery shall result in the
actual receipt by each of the Banks of the full amount of the particular
Permitted Currency expressed to be payable herein. The Agent (or the Swing Line
Bank, as applicable) shall, using all amounts obtained or received from the
Borrowers pursuant to any such tender or recovery in payment of principal of and
interest on the outstanding Advances, promptly purchase the applicable Permitted
Currency at the most favorable spot exchange rate determined by the Agent to be
available to it. The obligation of the Borrowers to make payments in the
applicable Permitted Currency shall be enforceable as an alternative or
additional cause of action solely for the purpose of recovering in the
applicable Permitted Currency the amount, if any, by which such actual receipt
shall fall short of the full amount of the Permitted Currency expressed to be
payable herein.
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12.9 Capital Adequacy and Other Increased Costs. In the event that
after the Effective Date the adoption of or any change in any applicable law,
treaty, rule or regulation (whether domestic or foreign) now or hereafter in
effect and whether or not presently applicable to any Bank or Agent, or any
interpretation or administration thereof by any governmental authority charged
with the interpretation or administration thereof, or compliance by any Bank or
Agent with any guideline, request or directive of any such authority (whether or
not having the force of law), including any risk based capital guidelines,
affects or would affect the amount of capital required or expected to be
maintained by such Bank or Agent (or any corporation controlling such Bank or
Agent) and such Bank or Agent, as the case may be, determines that the amount of
such capital is increased by or based upon the existence of such Bank's or
Agent's obligations or Advances hereunder and such increase has the effect of
reducing the rate of return on such Bank's or Agent's (or such controlling
corporation's) capital as a consequence of such obligations or Advances
hereunder to a level below that which such Bank or Agent (or such controlling
corporation) could have achieved but for such circumstances (taking into
consideration its policies with respect to capital adequacy) by an amount deemed
by such Bank or Agent to be material (collectively, "Increased Costs"), then
Agent or such Bank shall notify the Borrowers, and thereafter the applicable
Borrower shall pay to such Bank or Agent, as the case may be, from time to time,
upon request by such Bank or Agent, additional amounts sufficient to compensate
such Bank or Agent (or such controlling corporation) for any increase in the
amount of capital and reduced rate of return which such Bank or Agent reasonably
determines to be allocable to the existence of such Bank's or Agent's
obligations or Advances hereunder; notwithstanding the forgoing, however, the
Borrowers shall not be required to pay any increased costs under Sections 12.5,
12.7 or 3.4(c) for any period ending prior to the date that is 90 days prior to
the making of a Bank's initial request for such additional amounts unless the
applicable change in law or other event resulting in such increased costs is
effective retroactively to a date more than 90 days prior to the date of such
request, in which case a Bank's request for such additional amounts relating to
the period more than 90 days prior to the making of the request must be given
not more than 90 days after such Bank becomes aware of the applicable change in
law or other event resulting in such increased costs. A statement as to the
amount of such compensation, prepared in good faith and in reasonable detail by
such Bank or Agent, as the case may be, shall be submitted by such Bank or by
Agent to the Borrowers, reasonably promptly after becoming aware of any event
described in this Section 12.9 and shall be conclusive, absent manifest error in
computation.
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12.10 Substitution of Banks. If (a) the obligation of any Bank to
make Eurocurrency-based Advances has been suspended pursuant to Section 12.5 or
12.6 or (b) any Bank has demanded compensation under Section 3.4(c), 12.1 or
12.7, or (c) any Revolving Credit Bank does not consent to the extension of the
Revolving Credit Maturity Date as provided in Section 2.16(b)(i) or (ii) (in
each case, an "Affected Bank"), then the Borrowers shall have the right
(subject to Section 14.8 hereof), with the assistance of the Agent, to seek a
substitute Bank or Banks (which may be one or more of the Banks (the
"Purchasing Bank" or "Purchasing Banks") to purchase the Advances of the
Revolving Credit and/or the applicable Term Loan, as the case may be and assume
the commitments (including without limitation its participations in Swing Line
Advances and Letters of Credit) under this Agreement of such Affected Bank. The
Affected Bank shall be obligated to sell its Advances of the Revolving Credit
and/or the applicable Term Loan, as the case may be, and assign its commitments
to such Purchasing Bank or Purchasing Banks within fifteen days after receiving
notice from Borrowers requiring it to do so, at an aggregate price equal to the
outstanding principal amount thereof, plus unpaid interest accrued thereon up
to but excluding the date of the sale. In connection with any such sale, and as
a condition thereof, Borrowers shall pay to the Affected Bank all fees accrued
for its account hereunder to but excluding the date of such sale, plus, if
demanded by the Affected Bank within ten Business Days after such sale, (i) the
amount of any compensation which would be due to the Affected Bank under
Section 12.1 if the applicable Borrower has prepaid the outstanding
Eurocurrency-based Advances of the Affected Bank on the date of such sale and
(ii) any additional compensation accrued for its account under Sections 3.4(c),
12.7 and 12.9 to but excluding said date. Upon such sale, the Purchasing Bank
or Purchasing Banks shall assume the Affected Bank's commitment, and the
Affected Bank shall be released from its obligations hereunder to a
corresponding extent. If any Purchasing Bank is not already one of the Banks,
the Affected Bank, as assignor, such Purchasing Bank, as assignee, Autocam and
the Agent, shall enter into an Assignment Agreement pursuant to Section 14.8
hereof, whereupon such Purchasing Bank shall be a Bank party to this Agreement,
shall be deemed to be an assignee hereunder and shall have all the rights and
obligations of a Bank with a Revolving Credit Percentage equal to its ratable
share of the then applicable Revolving Credit Aggregate Commitment and the
applicable Percentages of the Term Loans of the Affected Bank. In connection
with any assignment pursuant to this Section 12.10, the Borrowers or the
Purchasing Bank shall pay to the Agent the administrative fee for processing
such assignment referred to in Section 14.8.
13. AGENT
13.1 Appointment of Agent. Each Bank and the holder of each Note
irrevocably appoints and authorizes the Agent to act on behalf of such Bank or
holder under this Agreement and the other Loan Documents and to exercise such
powers hereunder and thereunder as are specifically delegated to Agent by the
terms hereof and thereof, together with such powers as may be reasonably
incidental thereto, including without limitation the power to execute or
authorize the execution of financing or similar statements or notices, and other
documents. In performing its functions and duties under this Agreement, the
Agent shall act solely as agent of the Banks and does not assume and shall not
be deemed to have assumed any obligation towards or relationship of agency or
trust with or for Borrowers. Each Bank agrees (which agreement shall survive any
termination of this Agreement) to reimburse Agent for all reasonable
out-of-pocket expenses (including house and outside attorneys' fees and
disbursements) incurred by Agent hereunder or in connection herewith or with an
Event of Default or in enforcing the obligations of Borrowers under this
Agreement or the other Loan Documents or any other instrument executed pursuant
hereto, and for which Agent is not reimbursed by Borrowers, pro rata according
to such Bank's Weighted Percentage, but excluding any such expense resulting
from Agent's gross negligence or wilful misconduct. Agent shall not be required
to take any action under the Loan Documents, or to prosecute or defend any suit
in respect of the Loan Documents, unless indemnified to its satisfaction by the
Banks against loss, costs, liability and expense (excluding liability resulting
from its gross negligence or wilful misconduct). If any indemnity furnished to
Agent shall become impaired, it may call for additional indemnity and cease to
do the acts indemnified against until such additional indemnity is given.
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13.2 Deposit Account with Agent. Borrowers hereby authorize Agent,
in Agent's sole discretion, upon notice to Borrower to charge its general
deposit account(s), if any, maintained with Agent for the amount of any
principal, interest, or other amounts or costs due under this Agreement when
the same become due and payable under the terms of this Agreement or the Notes.
13.3 Scope of Agent's Duties. The Agent shall have no duties or
responsibilities except those expressly set forth herein, and shall not, by
reason of this Agreement or otherwise, have a fiduciary relationship with any
Bank (and no implied covenants or other obligations shall be read into this
Agreement against the Agent). None of Agent, its Affiliates nor any of their
respective directors, officers, employees or agents shall be liable to any Bank
for any action taken or omitted to be taken by it or them under this Agreement
or any document executed pursuant hereto, or in connection herewith or therewith
with the consent or at the request of the Majority Banks (or all of the Banks
for those acts requiring consent of all of the Banks) (except for its or their
own wilful misconduct or gross negligence), nor be responsible for or have any
duties to ascertain, inquire into or verify (a) any recitals or warranties made
by the Borrowers, or any Subsidiary or Affiliate of the Borrowers, or any
officer thereof contained herein or therein, (b) the effectiveness,
enforceability, validity or due execution of this Agreement or any document
executed pursuant hereto or any security thereunder, (c) the performance by
Borrowers of their respective obligations hereunder or thereunder, or (d) the
satisfaction of any condition hereunder or thereunder, including without
limitation the making of any Advance or the issuance of any Letter of Credit.
Agent and its Affiliates shall be entitled to rely upon any certificate, notice,
document or other communication (including any cable, telegraph, telex,
facsimile transmission or oral communication) believed by it to be genuine and
correct and to have been sent or given by or on behalf of a proper person. Agent
may treat the payee of any Note as the holder thereof. Agent may employ agents
and may consult with legal counsel (who may be counsel for a Borrower),
independent public accountants and other experts selected by it and shall not be
liable to the Banks (except as to money or property received by them or their
authorized agents), for the negligence or misconduct of any such agent selected
by it with reasonable care or for any action taken or omitted to be taken by it
in good faith in accordance with the advice of such counsel, accountants or
experts.
13.4 Successor Agent. Agent may resign as such at any time upon at
least 30 days prior notice to Borrowers and all Banks. If Agent at any time
shall resign or if the office of Agent shall become vacant for any other reason,
Majority Banks shall, by written instrument, appoint successor agent(s)
satisfactory to such Majority Banks, and, so long as no Default or Event of
Default has occurred and is continuing, to Borrowers. Such successor agent shall
thereupon become the Agent hereunder, as applicable, and shall be entitled to
receive from the prior Agent such documents of transfer and assignment as such
successor Agent may reasonably request. Any such successor Agent shall be a
commercial bank organized under the laws of the United States or any state
thereof and shall have a combined capital and surplus of at least $500,000,000.
If a successor is not so appointed or does not accept such appointment before
the resigning Agent's resignation becomes effective, the resigning Agent may
appoint a temporary successor to act until such appointment by the Majority
Banks is made and accepted or if no such temporary successor is appointed as
provided above by the resigning Agent, the Majority Banks shall thereafter
perform all of the duties of the resigning Agent hereunder until such
appointment by the Majority Banks is made and accepted. Such successor Agent
shall succeed to all of the rights and obligations of the resigning Agent as if
originally named. The resigning Agent shall duly assign, transfer and deliver to
such successor Agent all moneys at the time held by the resigning Agent
hereunder after deducting therefrom its expenses for which it is entitled to be
reimbursed. Upon such succession of any such successor Agent, the resigning
agent shall be discharged from its duties and obligations hereunder, except for
its gross negligence or wilful misconduct arising prior to its resignation
hereunder, and the provisions of this Article 13 shall continue in effect for
the benefit of the resigning Agent in respect of any actions taken or omitted to
be taken by it while it was acting as Agent.
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13.5 Agent in its Individual Capacity. Comerica Bank, its
Affiliates and their respective successors and assigns, shall have the same
rights and powers hereunder as any other Bank and may exercise or refrain from
exercising the same as though Comerica Bank were not the Agent. Comerica Bank
and its Affiliates may (without having to account therefor to any Bank) accept
deposits from, lend money to, and generally engage in any kind of banking,
trust, financial advisory or other business with Borrowers (or their
Subsidiaries) as if Comerica Bank were not acting as Agent hereunder, and may
accept fees and other consideration therefor without having to account for the
same to the Banks.
13.6 Credit Decisions. Each Bank acknowledges that it has,
independently of Agent and each other Bank and based on the financial statements
of Borrowers and such other documents, information and investigations as it has
deemed appropriate, made its own credit decision to extend credit hereunder from
time to time. Each Bank also acknowledges that it will, independently of Agent
and each other Bank and based on such other documents, information and
investigations as it shall deem appropriate at any time, continue to make its
own credit decisions as to exercising or not exercising from time to time any
rights and privileges available to it under this Agreement or any document
executed pursuant hereto.
13.7 Authority of Agent to Enforce Notes and This Agreement. Each
Bank, subject to the terms and conditions of this Agreement, authorizes the
Agent with full power and authority as attorney-in-fact to institute and
maintain actions, suits or proceedings for the collection and enforcement of
the Notes and to file such proofs of debt or other documents as may be
necessary to have the claims of the Banks allowed in any proceeding relative to
Borrowers, or any of its Subsidiaries, or their respective creditors or
affecting their respective properties, and to take such other actions which
Agent considers to be necessary or desirable for the protection, collection and
enforcement of the Notes, this Agreement or the other Loan Documents.
13.8 Indemnification. The Banks agree to indemnify the Agent and
its Affiliates (to the extent not reimbursed by Borrowers, but without limiting
any obligation of Borrowers to make such reimbursement), ratably according to
their respective Weighted Percentages, from and against any and all claims,
damages, losses, liabilities, costs or expenses of any kind or nature
whatsoever (including, without limitation, fees and disbursements of counsel)
which may be imposed on, incurred by, or asserted against the Agent and its
Affiliates in any way relating to or arising out of this Agreement, any of the
other Loan Documents or the transactions contemplated hereby or any action
taken or omitted by the Agent and its Affiliates under this Agreement or any of
the Loan Documents; provided, however, that no Bank shall be liable for any
portion of such claims, damages, losses, liabilities, costs or expenses
resulting from the Agent's or its Affiliates's gross negligence or willful
misconduct. Without limitation of the foregoing, each Bank agrees to reimburse
the Agent and its Affiliates promptly upon demand for its ratable share of any
out-of-pocket expenses (including, without limitation, fees and expenses of
counsel) incurred by the Agent and its Affiliates in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement
or any of the other Loan Documents, to the extent that the Agent and its
Affiliates is not reimbursed for such expenses by Borrowers, but without
limiting the obligation of Borrowers to make such reimbursement. Each Bank
agrees to reimburse the Agent and its Affiliates promptly upon demand for its
ratable share of any amounts owing to the Agent and its Affiliates by the Banks
pursuant to this Section, provided that, if the Agent or its Affiliates is
subsequently reimbursed by the Borrowers for such amounts, it shall refund to
the Banks on a pro rata basis the amount of any excess reimbursement. If the
indemnity furnished to the Agent and its Affiliates under this Section shall,
in the judgment of the Agent, be insufficient or become impaired, the Agent may
call for additional indemnity from the Banks and cease, or not commence, to
take any action until such additional indemnity is furnished.
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13.9 Knowledge of Default. It is expressly understood and agreed
that the Agent shall be entitled to assume that no Event of Default has
occurred and is continuing, unless the officers of the Agent immediately
responsible for matters concerning this Agreement shall have been notified in a
writing specifying such Event of Default and stating that such notice is a
"notice of default" by a Bank or by Borrowers. Upon receiving such a notice,
the Agent shall promptly notify each Bank of such Event of Default and provide
each Bank with a copy of such notice and, shall endeavor to provide such notice
to the Banks within three (3) Business Days (but without any liability
whatsoever in the event of its failure to do so). Agent shall also furnish the
Banks, promptly upon receipt, with copies of all other notices or other
information required to be provided by Borrowers hereunder.
13.10 Agent's Authorization; Action by Banks. Except as otherwise
expressly provided herein, whenever the Agent is authorized and empowered
hereunder on behalf of the Banks to give any approval or consent, or to make any
request, or to take any other action on behalf of the Banks (including without
limitation the exercise of any right or remedy hereunder or under the other Loan
Documents), the Agent shall be required to give such approval or consent, or to
make such request or to take such other action only when so requested in writing
by the Majority Banks or the Banks, as applicable hereunder. Action that may be
taken by Majority Banks or all of the Banks, as the case may be (as provided for
hereunder) may be taken (i) pursuant to a vote at a meeting (which may be held
by telephone conference call) as to which all of the Banks have been given
reasonable advance notice, or (ii) pursuant to the written consent of the
requisite Percentages of the Banks as required hereunder, provided that all of
the Banks are given reasonable advance notice of the requests for such consent.
13.11 Enforcement Actions by the Agent. Except as otherwise
expressly provided under this Agreement or in any of the other Loan Documents
and subject to the terms hereof, Agent will take such action, assert such
rights and pursue such remedies under this Agreement and the other Loan
Documents as the Majority Banks or all of the Banks, as the case may be (as
provided for hereunder), shall direct; provided, however, that the Agent shall
not be required to act or omit to act if, in the judgment of the Agent, such
action or omission may expose the Agent to personal liability or is contrary to
this Agreement, any of the Loan Documents or applicable law. Except as
expressly provided above or elsewhere in this Agreement or the other Loan
Documents, no Bank (other than the Agent, acting in its capacity as agent)
shall be entitled to take any enforcement action of any kind under any of the
Loan Documents.
14. MISCELLANEOUS
14.1 Accounting Principles. Where the character or amount of any
asset or liability or item of income or expense is required to be determined or
any consolidation or other accounting computation is required to be made for
the purposes of this Agreement, it shall be done, unless otherwise specified
herein, in accordance with GAAP. Furthermore, all financial statements required
to be delivered hereunder, subject to year-end audit adjustments thereto and
the omission of footnote disclosure in the case of unaudited statements, shall
be prepared in accordance with GAAP.
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14.2 Consent to Jurisdiction. Borrowers, Agent and Banks hereby
irrevocably submit to the non-exclusive jurisdiction of any United States
Federal Court or Michigan state court sitting in Detroit, Michigan in any action
or proceeding arising out of or relating to this Agreement or any of the Loan
Documents and Borrowers, Agent and Banks hereby irrevocably agree that all
claims in respect of such action or proceeding may be heard and determined in
any such United States Federal Court or Michigan state court. Borrowers
irrevocably consent to the service of any and all process in any such action or
proceeding brought in any court in or of the State of Michigan by the delivery
of copies of such process to Borrowers at their respective addresses specified
on the signature page hereto or by certified mail directed to such address or
such other address as may be designated by Borrowers in a notice to the other
parties that complies as to delivery with the terms of Section 14.6. Nothing in
this Section shall affect the right of the Banks and the Agent to serve process
in any other manner permitted by law or limit the right of the Banks or the
Agent (or any of them) to bring any such action or proceeding against Borrowers
or any Subsidiary or any of its or their property in the courts with subject
matter jurisdiction of any other jurisdiction. Borrowers hereby irrevocably
waive any objection to the laying of venue of any such suit or proceeding in the
above described courts.
14.3 Law of Michigan. This Agreement and the Notes have been
delivered at Detroit, Michigan, and shall be governed by and construed and
enforced in accordance with the laws of the State of Michigan (without regard
to its conflict of laws provisions). Whenever possible each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this Agreement.
14.4 Interest. In the event the obligation of Borrowers to pay
interest on the principal balance of the Notes is or becomes in excess of the
maximum interest rate which Borrowers are permitted by law to contract or agree
to pay, giving due consideration to the execution date of this Agreement, then,
in that event, the rate of interest applicable with respect to such Bank's
Percentage shall be deemed to be immediately reduced to such maximum rate and
all previous payments in excess of the maximum rate shall be deemed to have
been payments in reduction of principal and not of interest.
14.5 Closing Costs and Other Costs; Indemnification. (a) Borrowers
agree to pay, or reimburse the Agent for payment of, within five Business Days
of demand therefor (except for closing costs which shall be payable on the
Effective Date) (i) all reasonable closing costs and expenses, including, by
way of description and not limitation, house and outside attorney fees (without
duplication of fees and expenses for the same services) and advances, appraisal
and accounting fees, and lien search fees incurred by Agent in connection with
the commitment, consummation and closing of the loans contemplated hereby or in
connection with the administration of this Agreement or any amendment,
refinancing or restructuring of the credit arrangements provided under this
Agreement, (ii) all stamp and other taxes and fees payable or determined to be
payable in connection with the execution, delivery, filing, recording or
amendment of this Agreement and the Loan Documents and the consummation of the
transactions contemplated hereby, and any and all liabilities with respect to
or resulting from any delay in paying or omitting to pay such taxes or fees,
and (iii) all reasonable costs and expenses of the Agent or any of the Banks
(including reasonable fees and expenses of outside counsel (but without
duplication of fees and expenses for the same services) in connection with any
action or proceeding relating to a court order, injunction or other process or
decree restraining or seeking to restrain the Agent or any of the Banks from
paying any amount under, or otherwise relating in any way to, any Letter of
Credit and any and all costs and expenses which any of them may incur relative
to any payment under any Letter of Credit. At Agent's option, all of said
amounts required to be paid by Borrowers, if not paid when due, may be charged
by Agent as a Prime-based Advance against the Indebtedness.
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(b) Borrowers agree to indemnify and save Agent and each of the
Banks harmless from all loss, cost, damage, liability or expenses, including
reasonable house and outside attorneys' fees and disbursements (but without
duplication of fees and expenses for the same services), incurred by Agent and
the Banks by reason of an Event of Default, or enforcing the obligations of
Borrowers or any Subsidiary under this Agreement or any of the other Loan
Documents or in the prosecution or defense of any action or proceeding
concerning any matter growing out of or connected with this Agreement or any of
the Loan Documents, excluding, however, any loss, cost, damage, liability or
expenses arising solely as a result of the gross negligence or willful
misconduct of the party seeking to be indemnified under this Section 14.5(b).
(c) Borrowers agree to defend, indemnify and hold harmless Agent
and each of the Banks, and their respective employees, agents, officers and
directors from and against any and all claims, demands, penalties, fines,
liabilities, settlements, damages, costs or expenses of whatever kind or nature
arising out of or related to (i) the presence, disposal, release or threatened
release of any Hazardous Materials on, from or affecting any premises owned or
occupied by Borrowers or any of their respective Subsidiaries, (ii) any personal
injury (including wrongful death) or property damage (real or personal) arising
out of or related to such Hazardous Materials, (iii) any lawsuit or other
proceeding brought or threatened, settlement reached or governmental order or
decree relating to such Hazardous Materials, (iv) the cost of removal of all
Hazardous Materials from all or any portion of any premises owned by Borrowers
or their respective Subsidiaries, (v) the taking of necessary precautions to
protect against the release of Hazardous Materials on or affecting any premises
owned by Borrowers or any of their respective Subsidiaries, (vi) complying with
all Hazardous Material Laws and/or (vii) any violation of Hazardous Material
Laws, including without limitation, reasonable attorneys and consultants fees,
investigation and laboratory fees, environmental studies required by Agent or
any Bank in connection with the violation of Hazardous Material Laws (whether
before or after the occurrence of any Default or Event of Default hereunder),
court costs and litigation expenses, excluding however, those arising as a
result of its or their gross negligence or willful misconduct. The obligations
of Borrowers under this Section 14.5(c) shall be in addition to any and all
other obligations and liabilities the Borrowers may have to Agent or any of the
Banks at common law or pursuant to any other agreement.
14.6 Notices. Except as expressly provided otherwise in this
Agreement, all notices and other communications provided to any party hereto
under this Agreement or any other Loan Document shall be in writing and shall
be given by personal delivery, by mail, by reputable overnight courier, by
telex or by facsimile and addressed or delivered to it at its address set forth
on Schedule 14.6 or at such other address as may be designated by such party in
a notice to the other parties that complies as to delivery with the terms of
this Section 14.6. Any notice, if personally delivered or if mailed and
properly addressed with postage prepaid and sent by registered or certified
mail, shall be deemed given when received or when delivery is refused; any
notice, if given to a reputable overnight courier and properly addressed, shall
be deemed given 2 Business Days after the date on which it was sent, unless it
is actually received sooner by the named addressee; and any notice, if
transmitted by telex or facsimile, shall be deemed given when received (answer
back confirmed in the case of telexes and receipt confirmed in the case of
telecopies). Agent may, but, except as specifically provided herein, shall not
be required to, take any action on the basis of any notice given to it by
telephone, but the giver of any such notice shall promptly confirm such notice
in writing or by telex or facsimile, and such notice will not be deemed to have
been received until such confirmation is deemed received in accordance with the
provisions of this Section set forth above. If such telephonic notice conflicts
with any such confirmation, the terms of such telephonic notice shall control.
14.7 Further Action. Borrowers, from time to time, upon written
request of Agent will make, execute, acknowledge and deliver or cause to be
made, executed, acknowledged and delivered, all such further and additional
instruments, and take all such further action as may reasonably be required to
carry out the intent and purpose of this Agreement or the Loan Documents, and
to provide for Advances under and payment of the Notes, according to the intent
and purpose herein and therein expressed.
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14.8 Successors and Assigns; Participations; Assignments.
(a) This Agreement shall be binding upon and shall inure to the
benefit of Borrowers and the Banks and their respective successors and assigns.
(b) The foregoing shall not authorize any assignment by Borrowers,
of their rights or duties hereunder, and, except as otherwise provided herein,
no such assignment shall be made (or effective) without the prior written
approval of the Banks.
(c) The Borrowers and Agent acknowledge that each of the Banks
may at any time and from time to time, subject to the terms and conditions
hereof, assign or grant participations in such Bank's rights and obligations
hereunder (on a pro rata or a non-rata basis) and under the other Loan
Documents to any commercial bank, savings and loan association, insurance
company, pension fund, mutual fund, loan or debt fund, commercial finance
company or other similar financial institution, the identity of which
institution is approved by Borrowers and Agent, such approval not to be
unreasonably withheld or delayed; provided, however, that (i) the approval of
Borrowers shall not be required upon the occurrence and during the continuance
of an Event of Default, (ii) the approval of Borrowers and Agent shall not be
required for any such sale, transfer, assignment or participation to the
Affiliate of an assigning Bank, any other Bank or any Federal Reserve Bank and
(iii) no assignment shall be made or participation granted to an entity which
is a competitor of Borrowers and their Subsidiaries without the consent of the
Borrowers, which consent may be withheld in the sole discretion of Borrowers.
The Borrowers authorize each Bank to disclose to any prospective assignee or
participant, once approved by Borrowers and Agent, any and all financial
information in such Bank's possession concerning the Borrowers which has been
delivered to such Bank pursuant to this Agreement; provided that each such
prospective participant shall execute a confidentiality agreement consistent
with the terms of Section 14.12 hereof.
(d) Each assignment by a Bank of all or any portion of its rights
and obligations hereunder and under the other Loan Documents, which assignments
shall be on a pro rata or (but only with the consent of the Agent) a non
pro-rata basis, shall be made pursuant to an Assignment Agreement substantially
(as determined by Agent) in the form attached hereto as Exhibit I (with
appropriate insertions acceptable to Agent) (provided however that such Bank
need not deliver an Assignment Agreement in connection with assignments to such
Bank's Affiliates or to a Federal Reserve Bank) and shall be subject to the
terms and conditions hereof, and to the following restrictions:
(i) each assignment shall be in a minimum amount of the
lesser of (x) Ten Million Dollars ($10,000,000) or
such lesser amount as the and (y) the entire
remaining amount of assigning Bank's aggregate
interest in the Revolving Credit (and participations
in any outstanding Letters of Credit) and Term Loans;
provided however that, after giving effect to such
assignment, in no event shall the entire remaining
amount (if any) of assigning Bank's aggregate
interest in the Revolving Credit (and participations
in any outstanding Letters of Credit) and Term Loans
be less than $10,000,000; and
(ii) no assignment shall be effective unless Agent has
received from the assignee (or from the assigning
Bank) an assignment fee of $3,500 for each such
assignment.
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In connection with any assignment, Borrowers and Agent shall be entitled to
continue to deal solely and directly with the assigning Bank in connection with
the interest so assigned until (x) the Agent shall have received a notice of
assignment duly executed by the assigning Bank and an Assignment Agreement (with
respect thereto) duly executed by the assigning Bank and each assignee; and (y)
the assigning Bank shall have delivered to the Agent the original of each Note
held by the assigning Bank under this Agreement. From and after the date on
which the Agent shall notify Borrowers and the assigning Bank that the foregoing
conditions shall have been satisfied and all consents (if any) required shall
have been given, the assignee thereunder shall be deemed to be a party to this
Agreement. To the extent that rights and obligations hereunder shall have been
assigned to such assignee as provided in such notice of assignment (and
Assignment Agreement), such assignee shall have the rights and obligations of a
Bank under this Agreement and the other Loan Documents (including without
limitation the right to receive fees payable hereunder in respect of the period
following such assignment). In addition, the assigning Bank, to the extent that
rights and obligations hereunder shall have been assigned by it as provided in
such notice of assignment (and Assignment Agreement), but not otherwise, shall
relinquish its rights and be released from its obligations under this Agreement
and the other Loan Documents.
Within five (5) Business Days following Borrowers' receipt of notice from the
Agent that Agent has accepted and executed a notice of assignment and the duly
executed Assignment Agreement and assuming the Borrowers have consented to such
assignment (if their consent is required), Borrowers shall, to the extent
applicable, execute and deliver to the Agent in exchange for any surrendered
Note, new Note(s) payable to the order of the assignee in an amount equal to the
amount assigned to it pursuant to such notice of assignment (and Assignment
Agreement), and with respect to the portion of the Indebtedness retained by the
assigning Bank, to the extent applicable, new Note(s) payable to the order of
the assigning Bank in an amount equal to the amount retained by such Bank
hereunder. Agent, the Banks and the Borrowers acknowledge and agree that any
such new Note(s) shall be given in renewal and replacement of the surrendered
Notes and shall not effect or constitute a novation or discharge of the
Indebtedness evidenced by any surrendered Note, and each such new Note may
contain a provision confirming such agreement. In addition, promptly following
receipt of such Notes, Agent shall prepare and distribute to Borrowers and the
assigning Bank and the assignee Bank a revised Schedule 1.2 to this Agreement
setting forth the applicable new Percentages of the Banks (including the
assignee Bank), taking into account such assignment.
(e) Each Bank agrees that any participation agreement permitted
hereunder shall comply with all applicable laws and shall be subject to the
following restrictions (which shall be set forth in the applicable Participation
Agreement):
(i) such Bank shall remain the holder of its Notes
hereunder, notwithstanding any such participation;
(ii) except as expressly set forth in this Section 14.8(e)
with respect to rights of setoff and the benefits of
Section 12 hereof, a participant shall have no direct
rights or remedies hereunder;
(iii) a participant shall not reassign or transfer, or
grant any sub-participations in its participation
interest hereunder or any part thereof; and
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(iv) such Bank shall retain the sole right and
responsibility to enforce the obligations of the
Borrowers relating to the Notes and the other Loan
Documents, including, without limitation, the right
to proceed against any Guaranties, or cause Agent to
do so (subject to the terms and conditions hereof),
and the right to approve any amendment, modification
or waiver of any provision of this Agreement without
the consent of the participant, except for those
matters covered by Section 14.11(a) through (e) and
(h) hereof (provided that a participant may exercise
approval rights over such matters only on an indirect
basis, acting through such Bank, and Borrowers, Agent
and the other Banks may continue to deal directly
with such Bank in connection with such Bank's rights
and duties hereunder).
Borrowers agree that each participant shall be deemed to have the right of
setoff under Section 10.6 hereof in respect of its participation interest in
amounts owing under this Agreement and the other Loan Documents to the same
extent as if the Indebtedness were owing directly to it as a Bank under this
Agreement, shall be subject to the pro rata recovery provisions of Section 11.3
hereof and shall be entitled to the benefits of Section 12 hereof. The amount,
terms and conditions of any participation shall be as set forth in the
participation agreement between the issuing Bank and the Person purchasing such
participation, and none of the Borrowers, the Agent and the other Banks shall
have any responsibility or obligation with respect thereto, or to any Person to
whom any such participation may be issued. No such participation shall relieve
any issuing Bank of any of its obligations under this Agreement or any of the
other Loan Documents, and all actions hereunder shall be conducted as if no such
participation had been granted.
(f) The Agent shall maintain at its principal office a copy of
each Assignment Agreement delivered to it and a register (the "Register") for
the recordation of the names and addresses of the Banks, the Percentages of
such Banks and the principal amount of each type of Advance owing to each such
Bank from time to time. The entries in the Register shall be conclusive
evidence, absent manifest error, and the Borrowers, the Agent, and the Banks
may treat each Person whose name is recorded in the Register as the owner of
the Advances recorded therein for all purposes of this Agreement. The Register
shall be available for inspection by the any of the Borrowers or any Bank upon
reasonable notice to the Agent and a copy of such information shall be provided
to any such party on their prior written request. The Agent shall give prompt
written notice to Autocam of the making of any entry in the Register or any
change in such entry.
(g) Nothing in this Agreement, the Notes or the other Loan
Documents, expressed or implied, is intended to or shall confer on any Person
other than the respective parties hereto and thereto and their successors and
assignees and participants permitted hereunder and thereunder any benefit or
any legal or equitable right, remedy or other claim under this Agreement, the
Notes or the other Loan Documents.
14.9 Indulgence. No delay or failure of Agent and the Banks in
exercising any right, power or privilege hereunder shall affect such right,
power or privilege nor shall any single or partial exercise thereof preclude
any further exercise thereof, nor the exercise of any other right, power or
privilege. The rights of Agent and the Banks hereunder are cumulative and are
not exclusive of any rights or remedies which Agent and the Banks would
otherwise have.
14.10 Counterparts. This Agreement may be executed in several
counterparts, and each executed copy shall constitute an original instrument,
but such counterparts shall together constitute but one and the same instrument.
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14.11 Amendment and Waiver. No amendment or waiver of any provision
of this Agreement or any other Loan Document, nor consent to any departure by
Borrowers or any Subsidiary therefrom, shall in any event be effective unless
the same shall be in writing and signed by the Majority Banks (or by the Agent
at the written request of the Majority Banks) or, if this Agreement expressly so
requires with respect to the subject matter thereof, by all Banks (and, with
respect to any amendments to this Agreement or the other Loan Documents, by
Borrowers or the Subsidiaries which are signatories thereto), and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no amendment, waiver
or consent shall, unless in writing and signed by all the Banks, do any of the
following: (a) increase any Bank's commitments hereunder, (b) reduce the
principal of, or interest on, the Notes or any Fees or other amounts payable
hereunder, (c) postpone any date fixed for any payment of principal of, or
interest on, the Notes or any Fees or other amounts payable hereunder, (d) waive
any Event of Default specified in Sections 10.1(a) or (b) hereof, (e) except as
expressly permitted hereunder, or under the Collateral Documents, release or
defer the granting or perfecting of a lien or security interest in any
Collateral or release any guaranty or similar undertaking provided by any Person
except as shall be otherwise expressly permitted in this Agreement or any other
Loan Document, provided however that Agent shall be entitled to release any
Collateral which any Borrower or any Subsidiary is permitted to sell or transfer
under the terms of this Agreement or the other Loan Documents without notice to
or any further action or consent of the Bank, (f) terminate or modify any
indemnity provided to the Banks hereunder or under the other Loan Documents,
except as shall be otherwise expressly provided in this Agreement or any other
Loan Document, (g) take any action which requires the approval or consent of all
Banks pursuant to the terms of this Agreement or any other Loan Document, or (h)
change the definitions of "Alternative Currency", "Revolving Credit Percentage",
"Term Loan A Percentage", "Term Loan B Percentage", "Weighted Percentage",
"Interest Period","Majority Banks", "Majority Revolving Credit Banks", "Majority
Term Loan Banks" or this Section 14.11; provided, further, that notwithstanding
the foregoing, (v) the definition of "Permitted Borrower" may be amended and the
Revolving Credit Maturity Date may be extended with the consent of all of the
Revolving Credit Banks and (w) any date fixed for payment of principal of or
interest on any Term Loan may be postponed or extended with the consent of all
the applicable Term Loan Banks; and provided further, that no amendment, waiver
or consent shall, unless in writing signed by the Swing Line Bank, do any of the
following: (x) reduce the principal of, or interest on, the Swing Line Note or
(y) postpone any date fixed for any payment of principal of, or interest on, the
Swing Line Note; and provided further, however, that no amendment, waiver, or
consent shall, unless in writing and signed by the Agent in addition to all the
Banks, affect the rights or duties of the Agent under this Agreement or any
other Loan Document. All references in this Agreement to "Banks" or "the Banks"
shall refer to all Banks, unless expressly stated to refer to Majority Banks.
14.12 Confidentiality. Each Bank agrees that it will not disclose
without the prior consent of Borrowers (other than to its employees, its
Subsidiaries, another Bank, an Affiliate of a Bank or to its auditors or
counsel) any information with respect to Borrowers, which is furnished pursuant
to this Agreement or any of the other Loan Documents; provided that any Bank
may disclose any such information (a) as has become generally available to the
public or has been lawfully obtained by such Bank from any third party under no
duty of confidentiality to Borrowers, (b) as may be required or appropriate in
any report, statement or testimony submitted to, or in respect to any inquiry,
by, any municipal, state or federal regulatory body having or claiming to have
jurisdiction over such Bank, including the Board of Governors of the Federal
Reserve System of the United States, the Office of the Comptroller of the
Currency or the Federal Deposit Insurance Corporation or similar organizations
(whether in the United States or elsewhere) or their successors, (c) as may be
required or appropriate in respect to any summons or subpoena or in connection
with any litigation, (d) in order to comply with any law, order, regulation or
ruling applicable to such Bank, and (e) to any permitted transferee or assignee
or to any approved participant of, or with respect to, the Notes, as aforesaid.
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14.13 Withholding Taxes. If any Bank is not incorporated under the
laws of the United States or a state thereof, such Bank shall promptly (but in
any event prior to the initial payment of interest hereunder) deliver to the
Agent two executed copies of (i) Internal Revenue Service Form 1001 specifying
the applicable tax treaty between the United States and the jurisdiction of
such Bank's domicile which provides for the exemption from withholding on
interest payments to such Bank, (ii) Internal Revenue Service Form 4224
evidencing that the income to be received by such Bank hereunder is effectively
connected with the conduct of a trade or business in the United States or (iii)
other evidence satisfactory to the Agent that such Bank is exempt from United
States income tax withholding with respect to such income; provided, however,
that such Bank shall not be required to deliver to Agent the aforesaid forms or
other evidence with respect to (i) Advances to any Foreign Subsidiary which is
or becomes a Permitted Borrower hereunder or (ii) with respect to Advances to
Autocam or any Domestic Subsidiary which subsequently becomes a Permitted
Borrower hereunder, if such Bank has assigned its interest in the Revolving
Credit (including any outstanding Advances thereunder and participations in
Letters of Credit issued hereunder) and any Notes issued to it by Autocam, to
an Affiliate which is incorporated under the laws of the United States or a
state thereof, and so notifies the Agent. Such Bank shall amend or supplement
any such form or evidence as required to insure that it is accurate, complete
and non-misleading at all times. Promptly upon notice from the Agent of any
determination by the Internal Revenue Service that any payments previously made
to such Bank hereunder were subject to United States income tax withholding
when made, such Bank shall pay to the Agent the excess of the aggregate amount
required to be withheld from such payments over the aggregate amount actually
withheld by the Agent. In addition, from time to time upon the reasonable
request and at the sole expense of the Borrowers, each Bank and the Agent shall
(to the extent it is able to do so based upon applicable facts and
circumstances), complete and provide the Borrowers with such forms,
certificates or other documents as may be reasonably necessary to allow the
Borrowers, as applicable, to make any payment under this Agreement or the other
Loan Documents without any withholding for or on the account of any tax under
Section 11.1(d) hereof (or with such withholding at a reduced rate), provided
that the execution and delivery of such forms, certificates or other documents
does not adversely affect or otherwise restrict the right and benefits
(including without limitation economic benefits) available to such of the Bank
or the Agent, as the case may be, under this Agreement or any of the other Loan
Documents, or under or in connection with any transactions not related to the
transactions contemplated hereby.
14.14 Taxes and Fees. Should any tax (other than as a result of a
Bank's failure to comply with Section 14.13 or a tax based upon the net income
or capitalization of any Bank or the Agent by any jurisdiction where a Bank or
Agent is located), recording or filing fee become payable in respect of this
Agreement or any of the other Loan Documents or any amendment, modification or
supplement hereof or thereof, the Borrowers agree to pay the same, together with
any interest or penalties thereon arising from the Borrowers' act or omission,
and agrees to hold the Agent and the Banks harmless with respect thereto.
Notwithstanding the foregoing, nothing contained in this Section 14.14 shall
affect or reduce the rights of any Bank or the Agent under Section 12.7 hereof.
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14.15 WAIVER OF JURY TRIAL. THE BANKS, THE AGENT AND THE BORROWERS
AFTER CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL,
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT ANY OF THEM MAY HAVE
TO A TRIAL BY JURY IN ANY LITIGATION BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR ANY RELATED INSTRUMENT OR AGREEMENT OR ANY OF THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT OR ANY COURSE OF CONDUCT, DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTION OF ANY OF THEM. NEITHER THE BANKS, THE
AGENT, NOR BORROWERS SHALL SEEK TO CONSOLIDATE, BY COUNTERCLAIM OR OTHERWISE,
ANY SUCH ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN
WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. THESE PROVISIONS SHALL NOT
BE DEEMED TO HAVE BEEN MODIFIED IN ANY RESPECT OR RELINQUISHED BY THE BANKS AND
THE AGENT OR BORROWERS EXCEPT BY A WRITTEN INSTRUMENT EXECUTED BY ALL OF THEM.
14.16 Complete Agreement; Conflicts. This Agreement, the Notes (if
issued), any Requests for Revolving Credit Advance, Term Loan Rate Requests and
Requests for Swing Line Advance hereunder, and the Loan Documents contain the
entire agreement of the parties hereto, superseding all prior agreements,
discussions and understandings relating to the subject matter hereof, and none
of the parties shall be bound by anything not expressed in writing. In the event
of any conflict between the terms of this Agreement and the other Loan
Documents, this Agreement shall govern.
14.17 Severability. In case any one or more of the obligations of
Borrowers under this Agreement, the Notes or any of the other Loan Documents
shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining obligations of Borrowers shall not
in any way be affected or impaired thereby, and such invalidity, illegality or
unenforceability in one jurisdiction shall not affect the validity, legality or
enforceability of the obligations of Borrowers under this Agreement, the Notes
or any of the other Loan Documents in any other jurisdiction.
14.18 Table of Contents and Headings. The table of contents and the
headings of the various subdivisions hereof are for convenience of reference
only and shall in no way modify or affect any of the terms or provisions hereof.
14.19 Construction of Certain Provisions. If any provision of this
Agreement or any of the Loan Documents refers to any action to be taken by any
Person, or which such Person is prohibited from taking, such provision shall be
applicable whether such action is taken directly or indirectly by such Person,
whether or not expressly specified in such provision.
14.20 Independence of Covenants. Each covenant hereunder shall be
given independent effect (subject to any exceptions stated in such covenant) so
that if a particular action or condition is not permitted by any such covenant
(taking into account any such stated exception), the fact that it would be
permitted by an exception to, or would be otherwise within the limitations of,
another covenant shall not avoid the occurrence of a Default or an Event of
Default.
E-104
<PAGE> 105
14.21 Reliance on and Survival of Various Provisions. All terms,
covenants, agreements, representations and warranties of Borrowers or any party
to any of the Loan Documents made herein or in any of the Loan Documents or in
any certificate, report, financial statement or other document furnished by or
on behalf of Borrowers or any Subsidiary in connection with this Agreement or
any of the Loan Documents shall be deemed to have been relied upon by the Banks,
notwithstanding any investigation heretofore or hereafter made by any Bank or on
such Bank's behalf, and those covenants and agreements of Borrowers set forth in
Section 12.6 hereof (together with any other indemnities of Borrowers or any
Subsidiary contained elsewhere in this Agreement or in any of the other Loan
Documents) and of Banks set forth in Section 13.8 hereof shall survive the
repayment in full of the Indebtedness and the termination of the Revolving
Credit Aggregate Commitment.
14.22 Autocam to Act For Other Borrowers.
Autocam France and each Permitted Borrower authorizes Autocam with full
power and authority as attorney-in-fact, to execute and deliver Requests for
Advances, request for issuance of Letters of Credit and each other instrument,
certificate and report to be delivered by such Borrowers to Agent and the Banks
pursuant to this Agreement. Autocam France and each Permitted Borrower agrees
that it shall be bound by any action taken by Autocam on its behalf pursuant to
such appointment.
14.23 Unification of Certain Currencies. If the Euro (or some other
similar unit of account) becomes a currency in its own right in connection with
European monetary union contemplated by the Maastrict Treaty, then each of the
Borrowers, the Banks and the Agent agrees to negotiate in good faith an
amendment to this Agreement satisfactory in form and substance to the Borrowers,
the Banks and the Agent to account therefor. For the avoidance of doubt, the
parties hereto affirm and agree that neither the fixing of a conversion rate of
any such Alternative Currency against the Euro, nor the mandatory conversion of
such obligations into Euro, in each case pursuant to the Maastricht Treaty,
shall require the early termination of this Agreement or the prepayment of any
amount due under the Loan Documents or create any liability of one party to
another party for any direct or consequential loss otherwise arising from any of
such events to the extent required by the Maastrict Treaty.
14.24 Complete Agreement; Amendment and Restatement. This Agreement,
the Notes (if issued), any Requests for Advance or Letters of Credit hereunder,
the other Loan Documents and any agreements, certificates, or other documents
given to secure the Indebtedness, contain the entire agreement of the parties
hereto, and none of the parties hereto shall be bound by anything not expressed
in writing. This Agreement constitutes an amendment and restatement of the
Prior Credit Agreement, which Prior Credit Agreement is fully superseded and
amended and restated in its entirety hereby; provided, however, that the
Indebtedness governed by the Prior Credit Agreement shall remain outstanding
and in full force and effect and provided further that this Agreement does not
constitute a novation of such Indebtedness.
E-105
<PAGE> 106
WITNESS the due execution hereof as of the day and year first above
written.
COMERICA BANK, AUTOCAM CORPORATION
as Agent
By: ________________________ By: ___________________________
Its: ________________________ Its: ___________________________
AUTOCAM FRANCE
By: ___________________________
Its: ___________________________
FRANK & PIGNARD SA
By: ___________________________
Its: ___________________________
SWING LINE BANK: COMERICA BANK
By: ___________________________
Its: ___________________________
BANKS: COMERICA BANK
By: ___________________________
Its: ___________________________
E-106
<PAGE> 107
SCHEDULE 1.1
Applicable Margin Grid
<TABLE>
<CAPTION>
- ------------------------------------------ ------------ -------------- --------------- -------------- -------------
BASIS FOR PRICING LEVEL I LEVEL II LEVEL III*/ LEVEL IV LEVEL V
========================================== ============ ============== =============== ============== =============
<S> <C> <C> <C> <C> <C>
Consolidated Leverage Ratio <2.50:1 >2.5:1 x but >3.0:1 >3.5:1 >4.0:1
- - - -
<3.0:1 but <3.5:1 but <4.0:1
========================================== ============ ============== =============== ============== =============
Revolving Credit Eurocurrency Margin 1.50% 1.75% 2.0% 2.50% 3.0%
========================================== ============ ============== =============== ============== =============
Revolving Credit Prime-Rate Margin 0% 0% 0% .25% .75%
========================================== ============ ============== =============== ============== =============
Term Loan - A Eurocurrency Margin 2.95% 3.35% 3.75% 4.55% 5.40%
========================================== ============ ============== =============== ============== =============
Term Loan - A Prime-Rate Margin .70% 1.10% 1.50% 2.30% 3.15%
========================================== ============ ============== =============== ============== =============
Revolving Credit Facility Fee .50% .50% .50% .50% .50%
========================================== ============ ============== =============== ============== =============
Letter of Credit Fees (exclusive of 1.50% 1.75% 2.0% 2.50% 3.0%
---------
facing fee)
========================================== ============ ============== =============== ============== =============
Term Loan - B Eurocurrency Margin .50% .50% .50% .50% .50%
========================================== ============ ============== =============== ============== =============
Term Loan - B Prime-Rate Margin 0% 0% 0% 0% 0%
- ------------------------------------------ ------------ -------------- --------------- -------------- -------------
</TABLE>
*/Anticipated Initial Level.
E-107
<PAGE> 108
SCHEDULE 1.2
Percentages
<TABLE>
<CAPTION>
-------------------- ---------------- ------------------- ----------------- ------------------
COLUMN 1 COLUMN 2 COLUMN 3 COLUMN 4
==================== ================ =================== ================= ==================
Bank Revolving
Credit Term Loan A Term Loan B Weighted
Percentage Percentage Percentage Percentage
==================== ================ =================== ================= ==================
<S> <C> <C> <C> <C>
Comerica Bank
100% 100% 100% 100%
-------------------- ---------------- ------------------- ----------------- ------------------
</TABLE>
E-108
<PAGE> 109
SCHEDULE 1.3
Permitted Borrower Sublimits
<TABLE>
<CAPTION>
-------------------------------------- ---------------------------------------------
Permitted Borrower Sublimit (in Dollars)
====================================== =============================================
<S> <C>
F&P $40,000,000
-------------------------------------- ---------------------------------------------
</TABLE>
E-109
<PAGE> 110
SCHEDULE 6.2
Jurisdictions in which Autocam and/or Subsidiaries do business (as limited by
Section 7.1)
Michigan
California
South Carolina
Brazil
Barbados
France
Netherlands
E-110
<PAGE> 111
SCHEDULE 6.3
Jurisdictions in which to file financing statements
Each appropriate office within the following jurisdictions:
Michigan
California
South Carolina
E-111
<PAGE> 112
SCHEDULE 6.12
Leased Property
<TABLE>
<CAPTION>
Property Approximate Square Feet
-------- -----------------------
<S> <C>
4060 East Paris Avenue
Kentwood, MI 49512 100,000
31065/31069 Genstar Road
Hayward, CA 94544 27,000
Wolverine Center - Unit 4656
4710 44th St., S.E.
Grand Rapids, MI 49512 Storage Facility
415 E. Prairie Ronde Street
Dowagiac, MI 49047 Storage Facility
</TABLE>
E-112
<PAGE> 113
SCHEDULE 7.9
Compliance with Laws/Pending Litigation
Guarantors' and Subsidiaries' compliance disclosure: None.
Pending litigation affecting Borrower, Guarantors or
Subsidiaries:
Autocam Laser Technologies, Inc. has recently filed a breach
of contract action in Kent County Circuit Court against LPL
Systems, Inc. and George Shukov, in which Autocam Laser
Technologies, Inc. will assert a right of offset against
royalties under the contract. No counterclaims have been
filed.
Threatened litigation affecting Borrower, Guarantors or
Subsidiaries:
Frank & Pignard has been threatened with an
action by Lucas Verity in connection with Frank & Pignard's
contract with Lucas Automotive Ltd.
E-113
<PAGE> 114
SCHEDULE 7.12
Litigation
Pending litigation affecting Borrower, Guarantors or Subsidiaries:
Autocam Laser Technologies, Inc. has recently filed a breach
of contract action in Kent County Circuit Court against LPL
Systems, Inc. and George Shukov, in which Autocam Laser
Technologies, Inc. will assert a right of offset against
royalties under the contract. No counterclaims have been
filed.
Outstanding Judgments, Injunctions or Orders: None.
Threatened litigation affecting Borrower, Guarantors or
Subsidiaries: Frank & Pignard has been threatened with an
action by Lucas Verity in connection with Frank & Pignard's
contract with Lucas Automotive Ltd.
E-114
<PAGE> 115
SCHEDULE 7.16
Employee Pension Benefit Matters
Pension Plans Subject to Title IV of ERISA:
Autocam Corporation 401(k) Employee Savings Plan
E-115
<PAGE> 116
SCHEDULE 7.18
Environmental Matters
Claims, Complaints, Notices, Inquiries, Conditions, or Material
Non-Compliance with Hazardous Material Laws likely to have a
Material Adverse Effect:
Phase II reports and remediation activities have been
voluntarily completed in connection with the acquisition of
the Gaffney, South Carolina and Dowagiac, Michigan facilities,
and no known violations continue to exist at those facilities.
E-116
<PAGE> 117
SCHEDULE 7.19
Subsidiaries of Autocam
Autocam-Pax, Inc.*
Autocam International Sales Corporation
Autocam Acquisition, Inc.*
Autocam Laser Technologies, Inc.*
Autocam South Carolina, Inc.*
Autocam Foreign Sales Corporation
Autocam do Brasil Usinagem, Ltda.**
Autocam Europe B.V. Autocam France, S.A.R.L.
Compagnie Financiere du Leman SA Frank &
Pignard SA**
- ------------------------
* Significant Domestic Subsidiary.
** Significant Foreign Subsidiary.
E-117
<PAGE> 118
SCHEDULE 7.20
Contingent Obligations of Autocam or its Subsidiaries Not Disclosed by or
Reserved Against in June 30, 1998 Balance Sheets (or notes thereto),
As Applicable: None.
E-118
<PAGE> 119
SCHEDULE 7.23
Existing Funded Debt
Existing Funded Debt for Borrowed Money (other than Indebtedness) of Autocam and
its Subsidiaries in excess of $100,000 for any one issue:
<TABLE>
<CAPTION>
Aggregate Principal
Direct or Amount (as of
Indirect 8-31-98 Unless
Borrower: Payee: Guarantors: Otherwise Noted)
- --------- ------ ----------- ----------------
<S> <C> <C> <C>
Autocam Corporation Michigan Strategic All domestic $ 9,000,000.00*
Fund Subsidiaries
Autocam Corporation Propart None $ 4,173,187.00
Corporation
Autocam Corporation Revolver All domestic
Comerica Bank Subsidiaries $ 4,218,138.76*/***
Autocam Corporation Comerica Bank All domestic
Subsidiaries $ 545,587.00*
Autocam Corporation Term Note All domestic
Comerica Bank Subsidiaries $ 1,217,633.13*
Autocam Corporation Term Note All domestic
Comerica Bank Subsidiaries $ 929,516.23*
Autocam Corporation Term Note All domestic
Comerica Bank Subsidiaries $ 671,000.94*
Autocam Corporation Term Note All domestic
Comerica Bank Subsidiaries $ 496,534.71*
Autocam Corporation Term Note All domestic
Comerica Bank Subsidiaries $ 553,254.26*
Autocam Corporation Term Note All domestic
Comerica Bank Subsidiaries $ 586,680.63*
Autocam Corporation Term Note All domestic
Comerica Bank Subsidiaries $ 369,050.44*
Autocam Corporation Term Note All domestic
Comerica Bank Subsidiaries $ 490,457.50*
Autocam Corporation Term Note All domestic
Comerica Bank Subsidiaries $ 687,734.46*
</TABLE>
E-119
<PAGE> 120
<TABLE>
<CAPTION>
Aggregate Principal
Direct or Amount (as of
Indirect 8-31-98 Unless
Borrower: Payee: Guarantors: Otherwise Noted)
- --------- ------ ----------- ----------------
<S> <C> <C> <C>
Autocam Corporation Term Note All domestic
Comerica Bank Subsidiaries $ 8,527,008.03*/****
Autocam Corporation Revolver All domestic
Comerica Bank Subsidiaries $ 3,520,870.51*
Autocam Corporation Term Note All domestic
Comerica Bank Subsidiaries $ 513,623.46*
Autocam Corporation Term Note All domestic
Comerica Bank Subsidiaries $ 4,620,508.21*
Autocam Corporation Revolver All domestic
Comerica Bank Subsidiaries $ 3,520,963.54*
Autocam Corporation Term Note All domestic
Comerica Bank Subsidiaries $ 943,482.90*
Autocam Corporation Equipment Line of All domestic
Credit Subsidiaries
Comerica Bank $ 2,014,512.50*
Autocam Corporation Old Kent Bank All domestic
Subsidiaries $ 1,342,288.42*
Intercompany Loans:
- -------------------
Autocam Corporation Autocam
Acquisition, Inc. None $ 271,492.35
Autocam Corporation Autocam Laser
Technologies, Inc. None $ 942,968.29
Autocam Corporation Autocam-Pax,
Inc. None $ -0-
Autocam Corporation Autocam South
Carolina, Inc. None $ -0-
Autocam-Pax, Inc. Autocam
Corporation None $ 9,786,570.93
Autocam Acquisition, Inc. Autocam
Corporation None $ -0-
Autocam Laser Autocam
</TABLE>
E-120
<PAGE> 121
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Technologies, Inc. Corporation None $ -0-
Aggregate Principal
Direct or Amount (as of
Indirect 8-31-98 Unless
Borrower: Payee: Guarantors: Otherwise Noted)
- --------- ------ ----------- ----------------
Autocam South Autocam
Carolina, Inc. Corporation None $ 7,421,347.29
Equipment Leases:
Autocam Corporation G.E. Capital
Corporation None $ 6,302,974.00**
Autocam Corporation Key Corporation
Leasing None $ 3,282,638.00**
Autocam Corporation Kennedy Capital None $ 695,207.00**
Autocam Corporation Textron Financial None $ 555,406.00**
Autocam Corporation Fleet Capital
Leasing None $ 522,700.00**
Autocam Corporation U.S. Bancorp None $ 379,312.00**
Real Estate Leases:
- -------------------
Autocam Acquisition, United Genstar Autocam $ 14,040.00
Inc. Corporation monthly
(increasing over term)
Autocam Corporation Rieth Partners/ None $ 25,000.00
Mary's Share monthly
Other:
Cessna Citation G.E. Capital None $ 20,991.00
Corporation monthly
Frank & Pignard Societe Generale None FF 15,961.00
Frank & Pignard Four Unsecured
Bank Revolving
Credits None FF20,500,000.00
Autocam do Itau S/A
Brasil Usinagem Ltda. (Prepayment of
exchange regarding
goods shipped) None R$ 533,795.00
</TABLE>
E-121
<PAGE> 122
SCHEDULE 7.25
Capitalization
<TABLE>
<CAPTION>
Name of Company: Total Authorized Shares: Stockholders: Shares Owned:
- ---------------- ------------------------ ------------- -------------
<S> <C> <C> <C>
Autocam Corporation 10 million shares common see attached lists see attached lists
200,000 shares preferred of stockholders as
of September 4,
1998 record date,
option holders as
of September 29,
1998
Autocam-Pax, Inc. 60,000 shares common Autocam Corporation 100
Autocam International
Sales Corporation 60,000 shares common Autocam Corporation 2,500
Autocam Acquisition, Inc. 60,000 shares common Autocam Corporation 100
Autocam Laser
Technologies, Inc. 60,000 shares common Autocam Corporation 1,000
Autocam South
Carolina, Inc. 60,000 shares common Autocam-Pax, Inc. 100
Autocam Foreign
Sales Corporation Unlimited shares Autocam Corporation 1,000
Autocam do Brasil
Usinagem, Ltda. 3,334,624 paid quotas Autocam Corporation 1,700,659 paid
quotas
637,635 unpaid quotas 325,194 unpaid
quotas [51%]
Propart Corporation 1,633,965 paid
quotas
312,441 unpaid
quotas [49%]
Autocam Europe Autocam Corporation
Autocam France Autocam Europe
Compagnie Financiere Autocam France
du Leman
Frank & Pignard Compagnie Financiere
du Leman
</TABLE>
E-122
<PAGE> 123
SCHEDULE 9.1
(including referenced schedules 9.1(b) and 9.1(c))
Existing Funded Debt
Existing Funded Debt for Borrowed Money of Autocam and its Subsidiaries:
All those items as set forth on Schedule 7.23, Existing Funded Debt, which is
incorporated herein by reference.
<TABLE>
<CAPTION>
Direct or Aggregate
Borrower: Payee Indirect Guarantors: Principal Amount:
- --------- ----- -------------------- -----------------
<S> <C> <C> <C>
Autocam
Corporation Northern Air None $ 2,029.00 monthly
Autocam Imperial
Corporation Leasing None $ 499.00 monthly
Autocam
Corporation Ryder None $ 858.00 monthly
Autocam
Corporation Compatico None $ 4,000.00 monthly
Autocam Crisken Real
Corporation Estate Mgt.
Co., Inc. None $ 887.00 monthly
Autocam- Ronde Realty,
Pax, Inc. Inc. None $ 728.00 monthly
Autocam do
Brasil Usinagem Maria Orcebiades
Ltda. Mangili None R$ 957.00 monthly
Autocam do
Brasil Usinagem Pantaleao Mario
Ltda. Delbin None $ 1,100.00 monthly
Autocam do
Brasil Usinagem Jose Benedito
Ltda. Delbin None $ 1,000.00 monthly
Autocam do
Brasil Usinagem Moacir Theodoro
Ltda. de Carvalho None R$ 10,000.00 monthly
Autocam do
Brasil Usinagem Antenor Serasim
Ltda. Frizo None R$ 9,000.00 monthly
</TABLE>
E-123
<PAGE> 124
<TABLE>
<CAPTION>
Direct or Aggregate
Borrower: Payee Indirect Guarantors: Principal Amount:
- --------- ----- -------------------- -----------------
<S> <C> <C> <C>
Autocam do
Brasil Usinagem Itau S/A
Ltda. (Finance-BNDS) None R$20,435.00
Autocam do
Brasil Usinagem Itau S/A
Ltda. (Trademark Carjac) None R$46,283.00
Autocam do
Brasil Usinagem seller financing
Ltda. (equipment loan) None R$29,635.00
</TABLE>
E-124
<PAGE> 125
SCHEDULE 9.2
Liens Existing on the Effective Date
Liens for real and personal property taxes due and payable but not yet
delinquent, including without limitation personal property taxes which are a
lien but not yet payable to the City of Gaffney, South Carolina estimated at
$7,000.
Liens as disclosed on the UCC searches for Autocam and its Subsidiaries, set
forth on Attachment I.
Liens as disclosed on the title commitments for Autocam and its Subsidiaries,
set forth on Attachment II.
Leases and landlord's liens arising under applicable statute with respect to
leased properties as set forth on Schedule 6.12, and all other properties leased
by Autocam and its Subsidiaries.
[Autocam France]
[Autocam do Brasil Usinagem Ltda.]
E-125
<PAGE> 126
SCHEDULE 9.3
Guarantee Obligations
Autocam Corporation's obligations under the Comerica Bank note and the
Old Kent Bank note, both as set forth on Schedule 7.23, are guaranteed by each
domestic Subsidiary.
The Michigan Strategic Fund-related obligation to Comerica Bank as set
forth on Schedule 7.23 is guaranteed by Autocam-Pax, Inc., Autocam Laser
Technologies, Inc., Autocam South Carolina, Inc. and Autocam Acquisition, Inc.
Autocam Acqusition, Inc.'s obligations under the Hayward, California
facility lease, referenced on Schedule 6.12, are guaranteed by Autocam
Corporation.
E-126
<PAGE> 127
SCHEDULE 9.8
Investments Existing on the Effective Date
Intercompany Loans as set forth on Schedule 7.23, Funded Debt,
incorporated herein by reference.
Intercompany Investments as set forth on Schedule 7.25,
Capitalization, incorporated herein by reference.
Brazilian FINOR investment (marketable tax credit for tax
funds designated for development of northeast Brazil) in the amount of
R$54,644.
E-127
<PAGE> 128
SCHEDULE 14.6
Address for Notices
If to Agent:
Comerica Bank
One Detroit Center
500 Woodward Avenue
9th Floor, MC 3289
Detroit, Michigan 48226
Attention: William B. Murdock
Telephone: (313) 222-5594
Facsimile: (313) 222-9434
If to Comerica Bank:
Comerica Bank
99 Monroe, N.W.
Grand Rapids, Michigan 49503
Attention: Thomas A. Hammer
Telephone: (616) 776-6377
Facsimile: (616) 776-7885
If to any Borrower:
[Name of Borrower]
c/o Autocam Corporation
4070 E. Paris Avenue
Grand Rapids, Michigan 49512
Attention: Warren Veltman
Telephone: (616) 541-8153
Facsimile: (616) 698-6876
E-128
<PAGE> 129
EXHIBIT A
REQUEST FOR REVOLVING CREDIT ADVANCE
No. __________________ Dated: _______________
TO: Comerica Bank ("Agent")
RE: Autocam Corporation Amended and Restated Revolving Credit and Term Loan
Agreement dated as of October 1, 1998 by and among Autocam Corporation,
Autocam France, Frank & Pignard SA, the Permitted Borrowers, the Banks
signatories thereto and Comerica Bank, as Agent (as amended or
otherwise modified from time to time, the "Credit Agreement")
[Autocam] [or] [F&P] [or] [another Permitted Borrower] pursuant to the
Credit Agreement requests an Advance of the Revolving Credit from Banks, as
follows:
A. Date of Advance:
B. (check if applicable)
This Advance is or includes a whole or partial refunding/conversion of:
Advance No(s).
C. Type of Advance (check only one);
Prime-based Advance
Eurocurrency-based Advance
D. Amount of Advance:
E. Type of Currency:
Dollars
British Pounds Sterling
Japanese Yen
German Deutsche Marks
French Francs
Other; Specify:
G. Interest Period (not applicable to Prime-based Advances)
________ months (insert 1, 2, 3 or 6)
H. Disbursement Instructions
E-129
<PAGE> 130
Comerica Bank Account No.
Other:
[Autocam] [or] [F&P] [or] [another Permitted Borrower] certifies to the
matters specified in Section 2.3(g) of the Credit Agreement.
Capitalized terms used herein, except as defined to the contrary, have
the meanings given them in the Credit Agreement.
[AUTOCAM CORPORATION]
[FRANK & PIGNARD SA]
[PERMITTED BORROWER]
By:
Its:
Agent Approval:
E-130
<PAGE> 131
EXHIBIT B
REVOLVING CREDIT NOTE
$ ___________________ __________, 1998
On or before the Revolving Credit Maturity Date, FOR VALUE RECEIVED,
[Name of Revolving Borrower], a __________________ ("Borrower"), promises to pay
to the order of [Insert Bank] ("Bank") at Detroit, Michigan, care of Agent, for
the account of Bank's Eurocurrency Lending Office with respect to any
Eurocurrency-based Advances hereunder, in lawful money of the United States of
America or in such Alternative Currencies applicable to particular Advances
which may, from time to time, be outstanding hereunder, so much of the sum of
[insert amount derived from Percentages] Dollars ($ ), as may from time to time
have been advanced to the Borrower and then be outstanding hereunder pursuant to
the Autocam Corporation Amended and Restated Revolving Credit and Term Loan
Agreement dated as of October 1, 1998 made by and among Autocam, Autocam France,
F&P, the other Borrowers, including the Borrower, and certain banks signatory
thereto, including the Bank, and Comerica Bank as Agent for such banks, as the
same may be amended or otherwise modified from time to time ("Credit
Agreement"), together with interest thereon as hereinafter set forth.
Each of the Advances made hereunder shall bear interest at the
Applicable Interest Rate from time to time applicable thereto under the Credit
Agreement or as otherwise determined thereunder, and interest shall be computed,
assessed and payable as set forth in the Credit Agreement.
This Note is a note under which Advances (including refundings and
conversions), repayments and readvances may be made from time to time, but only
in accordance with the terms and conditions of the Credit Agreement. This Note
evidences borrowings under, is subject to, is secured in accordance with, and
may be accelerated or matured under, the terms of the Credit Agreement to which
reference is hereby made. Capitalized terms used herein, except as defined to
the contrary, shall have the meanings given them in the Credit Agreement.
This Note shall be interpreted and the rights of the parties hereunder
shall be determined under the laws of, and enforceable in, the State of
Michigan.
Borrower hereby waives presentment for payment, demand, protest and
notice of dishonor and nonpayment of this Note and agrees that no obligation
hereunder shall be discharged by reason of any extension, indulgence, release,
or forbearance granted by any holder of this Note to any party now or hereafter
liable hereon or any present or subsequent owner of any property, real or
personal, which is now or hereafter security for this Note.
Nothing herein shall limit any right granted Bank by any other
instrument or by law.
[REVOLVING BORROWER]
By:
Its:
E-131
<PAGE> 132
EXHIBIT C
SWING LINE NOTE
$5,000,000 ______________, 1998
On or before the Revolving Credit Maturity Date, FOR VALUE RECEIVED,
[Name of Revolving Borrower], a _________________ ("Borrower"), promises to pay
to the order of Comerica Bank ("Swing Line Bank") at Detroit, Michigan, for the
account of Swing Line Bank's Eurocurrency Lending Office with respect to any
Eurocurrency-based Advances hereunder, in lawful money of the United States of
America, or in such Alternative Currency applicable to particular Advances which
may be outstanding hereunder, so much of the sum of Five Million Dollars
($5,000,000), as may from time to time have been advanced and then be
outstanding hereunder pursuant to the Autocam Corporation Amended and Restated
Revolving Credit and Term Loan Agreement dated as of October 1, 1998 made by and
among Autocam Corporation, the other Borrowers, including the Borrower, and
certain banks signatory thereto, including the Swing Line Bank, in its
individual capacity and as Agent for such banks, as the same may be or otherwise
modified from time to time (the "Credit Agreement"), together with interest
thereon as hereinafter set forth.
Each of the Advances made hereunder shall bear interest at the
Applicable Interest Rate from time to time applicable thereto under the Credit
Agreement or as otherwise determined thereunder, and interest shall be computed,
assessed and payable as set forth in the Credit Agreement.
This Note is a note under which advances (including refundings and
conversions), repayments and readvances may be made from time to time, but only
in accordance with the terms and conditions of the Credit Agreement. This Note
evidences borrowings under, is subject to, is secured in accordance with, and
may be accelerated or matured under, the terms of the Credit Agreement, to which
reference is hereby made. Capitalized terms used herein, except as defined to
the contrary, shall have the meanings given them in the Credit Agreement.
This Note shall be interpreted and the rights of the parties shall be
determined under the laws of, and enforceable in, the State of Michigan.
Borrower hereby waives presentment for payment, demand, protest and
notice of dishonor and nonpayment of this Note and agrees that no obligation
hereunder shall be discharged by reason of any extension, indulgence, release,
or forbearance granted by any holder of this Note to any party now or hereafter
liable hereon or any present or subsequent owner of any property, real or
personal, which is now or hereafter security for this Note.
Nothing herein shall limit any right granted Swing Line Bank by any
other instrument or by law.
[REVOLVING BORROWER]
By:
Its:
E-132
<PAGE> 133
EXHIBIT D
REQUEST FOR SWING LINE ADVANCE
No. __________________ Dated: ____________
TO: Comerica Bank ("Swing Line Bank")
RE: Autocam Corporation Amended and Restated Revolving Credit and Term Loan
Agreement dated as of October 1, 1998 by and among Autocam Corporation,
Autocam France, Frank & Pignard SA, the Banks signatories thereto and
Comerica Bank, as Agent (as amended, the "Credit Agreement")
[Autocam] [or] [F&P] [or] [a Permitted Borrower] pursuant to the Credit
Agreement requests an Advance from the Swing Line Bank as follows:
A. Date of Advance:
B. (check if applicable)
This Advance is or includes a whole or partial refund/conversion of:
Advance No(s).
C. Type of Advance (check only one);
Prime-based Advance
Eurocurrency-based Advance
Quoted Rate Advance
D. Amount of Advance:
E. Type of Currency:
Dollars
British Pounds Sterling
Japanese Yen
French Francs
German Deutsche Marks
Other; Specify:
F. Interest Period (not applicable to Prime-based Advances)
(a) Eurocurrency-based Advance
One month
Two months
Three months
Six months
Other __________
E-133
<PAGE> 134
(b) Quoted Rate Advances
One month
Other
G. Disbursement Instructions
Comerica Bank Account No.
Other:
[Autocam] [or] [Frank & Pignard SA] [or] [another Permitted Borrower]
certifies to the matters specified in Section 2.5(c)(viii) of the Credit
Agreement.
Capitalized terms used herein, except as defined to the contrary, have
the meanings given them in the Credit Agreement.
[AUTOCAM CORPORATION]
[FRANK & PIGNARD SA]
[PERMITTED BORROWER]
By:
Its:
E-134
<PAGE> 135
EXHIBIT E
FORM OF SWING LINE BANK PARTICIPATION CERTIFICATE
_______________, ______
[Name of Bank]
_________________________
_________________________
Ladies and Gentlemen:
Pursuant to subsection 2.5(e) of the Autocam Corporation Amended and
Restated Credit and Term Loan Agreement dated as of October 1, 1998 ("Credit
Agreement"), among Autocam Corporation, Autocam France, F&P, the Banks named
therein and Comerica Bank, as Agent, the undersigned hereby acknowledges receipt
from you of ___________________ as payment for a participating interest in the
following Swing Line Loan:
Date of Swing Line Loan:________________________________
Principal Amount of Swing Line Loan:_____________________
Name of Revolving Borrower:
The participation evidenced by this certificate shall be subject to the terms
and conditions of the Credit Agreement including without limitation Section
2.5(e) thereof.
Very truly yours,
COMERICA BANK, as Agent
By:_____________________________________
Its:____________________________________
E-135
<PAGE> 136
EXHIBIT F
LETTER OF CREDIT NOTICE
TO: Revolving Credit Banks
RE: Issuance of Letter of Credit pursuant to Article 3 of the Autocam
Corporation Amended and Restated Revolving Credit and Term Loan
Agreement dated October 1, 1998 (as amended or otherwise modified from
time to time, the "Credit Agreement") among Autocam Corporation, the
other Borrowers, certain Banks and Comerica Bank, as Agent for the
Banks.
On __________, ____________ ,*/ Agent, in accordance with Article 3 of
the Agreement, issued its Letter of Credit number ____________ , in favor of
____________**/ for the account of [________________ ].***/ The face amount of
such Letter of Credit is $___________________. The amount of each Revolving
Credit Bank's participation in such Letter of Credit is as follows:****/
Comerica Bank $
This notification is delivered this _____ day of _____________ , 19__ ,
pursuant to Section 3.3 of the Credit Agreement. Except as otherwise defined,
capitalized terms used herein have the meanings given them in the Credit
Agreement.
Signed:
COMERICA BANK, as Agent
By:
Its:
*/Date of Issuance
**/Beneficiary
***/Account Party
****/Amounts based on Percentages
[This form of Letter of Credit Notice (including footnotes) is subject in all
respects to the terms and conditions of the Credit Agreement which shall govern
in the event of any inconsistencies or omissions.]
____________________
E-136
<PAGE> 137
EXHIBIT G-1
TERM NOTE-A
Detroit, Michigan
$___________________ _________, 1998
FOR VALUE RECEIVED, Autocam France, a societe a responsibilitee limitee
("Autocam France"), promises to pay to the order of [insert Bank] ("Bank"), in
care of Agent, at Detroit, Michigan, the principal sum of [insert amount derived
from Percentages] French Francs (FF_____________) in lawful money of [France]
payable in quarterly principal installments each in the amount and on the dates
set forth in the Agreement (as defined below) until the Term Loan A Maturity
Date, when the entire unpaid balance of principal and interest thereon shall be
due and payable. Interest shall be payable at the rate (including the default
rate) and on the dates provided in the Autocam Amended and Restated Revolving
Credit and Term Loan Agreement (as amended or otherwise modified, the
"Agreement") dated as of October 1, 1998, made by and among the Autocam, Autocam
France, certain Permitted Borrowers, certain banks including the Bank, and
Comerica Bank as agent for such banks. Capitalized terms used herein, unless
defined to the contrary, have the meanings given them in the Agreement.
This Note evidences borrowing under, is subject to, may be accelerated
or matured under, and may be prepaid in accordance with, the terms of the
Agreement, to which reference is hereby made.
This Note shall be interpreted and the rights of the parties hereunder
shall be determined under the laws of, and enforceable in, the State of
Michigan.
Autocam France hereby waives presentment for payment, demand, protest
and notice of dishonor and nonpayment of this Note and agrees that no obligation
hereunder shall be discharged by reason of any extension, indulgence, release,
or forbearance granted by any holder of this Note to any party now or hereafter
liable hereon or any present or subsequent owner of any property, real or
personal, which is now or hereafter security for this Note. Any transferees of,
or endorser, guarantor or surety paying this Note in full shall succeed to all
rights of Bank, and Bank shall be under no further responsibility for the
exercise thereof or the loan evidenced hereby.
Nothing herein shall limit any right granted Bank by any other
instrument or by law.
AUTOCAM FRANCE
By: _________________________
Its: _________________________
E-137
<PAGE> 138
EXHIBIT G-2
TERM NOTE-B
Detroit, Michigan
$___________________ _________, 1998
FOR VALUE RECEIVED, Franh & Pignard SA, a French Societe Anonyme
("F&P"), promises to pay to the order of [insert Bank] ("Bank"), in care of
Agent, at Detroit, Michigan, the principal sum of [insert amount derived from
Percentages] French Francs (FF_____________) in lawful money of [France] payable
in quarterly principal installments each in the amount and on the dates set
forth in the Agreement (as defined below) until the Term Loan A Maturity Date,
when the entire unpaid balance of principal and interest thereon shall be due
and payable. Interest shall be payable at the rate (including the default rate)
and on the dates provided in the Autocam Corporation Amended and Restated
Revolving Credit and Term Loan Agreement (as amended or otherwise modified, the
"Agreement") dated as of October 1, 1998, made by and among Autocam, Autocam
France, certain Permitted Borrowers, certain banks including the Bank, and
Comerica Bank as agent for such banks. Capitalized terms used herein, unless
defined to the contrary, have the meanings given them in the Agreement.
This Note evidences borrowing under, is subject to, may be accelerated
or matured under, and may be prepaid in accordance with, the terms of the
Agreement, to which reference is hereby made.
This Note shall be interpreted and the rights of the parties hereunder
shall be determined under the laws of, and enforceable in, the State of
Michigan.
F&P hereby waives presentment for payment, demand, protest and notice
of dishonor and nonpayment of this Note and agrees that no obligation hereunder
shall be discharged by reason of any extension, indulgence, release, or
forbearance granted by any holder of this Note to any party now or hereafter
liable hereon or any present or subsequent owner of any property, real or
personal, which is now or hereafter security for this Note. Any transferees of,
or endorser, guarantor or surety paying this Note in full shall succeed to all
rights of Bank, and Bank shall be under no further responsibility for the
exercise thereof or the loan evidenced hereby.
Nothing herein shall limit any right granted Bank by any other
instrument or by law.
[AUTOCAM FRANCE]
By:_______________________________________
Its:_______________________________________
E-138
<PAGE> 139
EXHIBIT H
PERMITTED BORROWER ADDENDUM
THIS PERMITTED BORROWER ADDENDUM is dated as of _________________, ____
by __________________________, a ______________________ corporation ("New
Permitted Borrower").
WHEREAS, the New Permitted Borrower is a [Domestic] [Foreign]
Significant Subsidiary of Autocam Corporation (the "Company") (held directly or
indirectly); and
WHEREAS, the New Permitted Borrower desires to become a party to that
certain Autocam Corporation Amended and Restated Revolving Credit and Term Loan
Agreement dated as of October 1, 1998 (as amended or otherwise modified from
time to time, the "Credit Agreement") by and among the Company, the other
Borrowers signatory thereto (by execution and delivery of the Credit Agreement
or of a Permitted Borrower Addendum), the Banks signatory thereto and Comerica
Bank, as Agent for the Banks (in such capacity, "Agent"), and to receive all the
benefits of and to become subject to the obligations thereof; and
WHEREAS, pursuant to Section 2.1 of the Credit Agreement, the New
Permitted Borrower must execute and deliver a Permitted Borrower Addendum in
accordance with the Credit Agreement.
NOW, THEREFORE, in consideration of the benefits to be derived by the
Permitted Borrower under the Credit Agreement and other valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the New Permitted
Borrower agrees as follows:
1. Capitalized terms used in the opening paragraph, the recitals and as
otherwise used herein and not defined have the same meanings assigned to such
terms in the Credit Agreement.
2. Upon its execution, this Addendum is made a part of the Credit
Agreement for all purposes, and the New Permitted Borrower shall be and become a
party to the Credit Agreement and shall without any further actions or
conditions have all the rights and become subject to all the obligations of a
Permitted Borrower thereunder.
3. The New Permitted Borrower (a) represents and warrants that it is
legally authorized to enter into this Addendum, (b) confirms that it has
received copies of the Credit Agreement, the other Loan Documents and all
related documents, and that on the basis of its review and analysis of this
information has decided to enter into this Permitted Borrower Addendum, (c)
confirms that it is a Subsidiary of Company, (d) adopts by reference thereto all
of the representations and warranties applicable to is as set forth in the
Credit Agreement as fully and with the same force and effect as though each such
representation and warranty were set forth in its entirety in the Permitted
Borrower Addendum confirms and agrees that it shall perform each and every
covenant applicable to it as a Permitted Borrower as provided in the Credit
Agreement and that it will at all times be in compliance with the terms of the
Credit Agreement, the other Loan Documents and all of the obligations and
covenants set forth therein to the same extent as though each and every such
agreement and covenant were set forth in their entirety in this Permitted
Borrower Addendum required to be performed by it as a Permitted Borrower
thereunder.
4. New Permitted Borrower shall be considered, and deemed to be, for
all purposes of the Credit Agreement and the other Loan Documents, a Permitted
Borrower under the Credit Agreement as fully as though New Permitted Borrower
had executed and delivered the Credit Agreement at the time originally executed
and delivered by the Company and hereby ratifies and confirms its obligations
under the Credit Agreement and the other Loan Documents, all in accordance with
the terms hereof.
E-139
<PAGE> 140
5. No Default or Event of Default (each such term being defined in the
Credit Agreement has occurred and is continuing under the Credit Agreement.
6. This Permitted Borrower Addendum shall not become effective until
the New Permitted Borrower has complied with all of the terms and conditions of
Section 2.1 of the Credit Agreement.
7. This Permitted Borrower Addendum shall be governed by the laws of
the State of Michigan and shall be binding upon New Permitted Borrower and its
successors and assigns.
IN WITNESS WHEREOF, the undersigned New Permitted Borrower has executed
and delivered this Permitted Borrower Addendum as of the date first above
written.
[NEW PERMITTED BORROWER]
By:
Its:
Acknowledged and approved as of date
first set forth above
COMERICA BANK, as Agent
By:
Its:
E-140
<PAGE> 141
EXHIBIT I
FORM OF
ASSIGNMENT AGREEMENT
Date:_____________
To: AUTOCAM CORPORATION
AUTOCAM FRANCE
FRANK & PIGNARD SA
and
COMERICA BANK ("Agent")
Re: Autocam Corporation Amended and Restated Revolving Credit and Term Loan
Agreement dated as of October 1, 1998 (as amended or otherwise modified
from time to time, the "Credit Agreement"), among Autocam Corporation
("Autocam"), Autocam France, Frank & Pignard SA, Comerica Bank in its
capacity as agent for the Banks ("Agent") and certain Banks
Ladies and Gentlemen:
Reference is made to Sections 14.8(c), (d) and (e) of the Credit
Agreement. Unless otherwise defined herein or the context otherwise requires,
all initially capitalized terms used herein without definition shall have the
meanings specified in the Credit Agreement.
This Agreement constitutes notice to each of you of the proposed
assignment and delegation by [insert assignor Bank] (the "Assignor") to [insert
proposed assignee] (the "Assignee"), and the Assignor hereby sells and assigns
to the Assignee, and the Assignee hereby purchases and assumes from the
Assignor, effective on the "Effective Date" (as hereafter defined) that
undivided interest in each of Assignor's rights and obligations under the Credit
Agreement and the other Loan Documents equal to ___% of the Revolving Credit
(and participations in any outstanding Letters of Credit) and __% of Term Loan
A, and __% of Term Loan B such that, after giving effect to the foregoing
assignment and assumption, [and the other assignments by Assignor to ___________
on the date hereof,] the Assignee's interest and the Assignor's remaining
interest in the Revolving Credit (and participations in any outstanding Letters
of Credit) and in each of the Term Loans shall be as set forth on the attached
schedule.
The Assignor hereby instructs the Agent to make all payments from and
including the Effective Date hereof in respect of the interest assigned hereby,
directly to the Assignee. The Assignor and the Assignee agree that all interest
and fees accrued up to, but not including, the Effective Date of the assignment
and delegation being made hereby are the property of the Assignor, and not the
Assignee. The Assignee agrees that, upon receipt of any such interest or fees
accrued up to the Effective Date, the Assignee will promptly remit the same to
the Assignor.
E-141
<PAGE> 142
The Assignee hereby confirms that it has received a copy of the Credit
Agreement and the exhibits and schedules referred to therein, and all other Loan
Documents which it considers necessary, together with copies of the other
documents which were required to be delivered under the Credit Agreement as a
condition to the making of the loans thereunder. The Assignee acknowledges and
agrees that it: (a) is legally authorized to enter into this Assignment
Agreement; (b) has made and will continue to make such inquiries and has taken
and will take such care on its own behalf as would have been the case had its
Percentages been granted and its loans been made directly by such Assignee to
any of the Borrowers without the intervention of the Agent, the Assignor or any
other Bank; and (c) has made and will continue to make, independently and
without reliance upon the Agent, the Assignor or any other Bank, and based on
such documents and information as it has deemed appropriate, its own credit
analysis and decisions relating to the Credit Agreement. The Assignee further
acknowledges and agrees that neither the Agent nor the Assignor has made any
representations or warranties about the creditworthiness of any of the Borrowers
or any other party to the Credit Agreement or any other of the Loan Documents,
or with respect to the legality, validity, sufficiency or enforceability of the
Credit Agreement, or any other of the Loan Documents. This assignment shall be
made without recourse to or warranty by the Assignor, except as set forth
herein.
Assignee represents and warrants that it is a Person to which
assignments are permitted pursuant to Section 14.8(c) of the Credit Agreement.
Assignor represents and warrants, as of the Effective Date, that it is
the legal and beneficial owner of the interest being assigned and delegated by
it hereunder and that such interest is free and clear of any pledge, encumbrance
or other adverse claim or interest created by Assignor.
Except as otherwise provided in the Credit Agreement, effective as of
the Effective Date:
(a) the Assignee: (i) shall be deemed automatically to have become
a party to the Credit Agreement and the other Loan Documents,
to have assumed all of the Assignor's obligations thereunder
to the extent of the Assignee's Percentage referred to in the
second paragraph of this Assignment Agreement, and to have all
the rights and obligations of a party to the Credit Agreement
and the other Loan Documents, as if it were an original
signatory thereto to the extent specified in the second
paragraph hereof; and (ii) agrees to be bound by the terms and
conditions set forth in the Credit Agreement and the other
Loan Documents as if it were an original signatory thereto;
and
(b) the Assignor's obligations under the Credit Agreement and the
other Loan Documents shall be reduced by the percentage
assigned to Assignee referred to in the second paragraph of
this Assignment Agreement.
As used herein, the term "Effective Date" means the date on which all
of the following have occurred or have been completed, as reasonably determined
by the Agent:
(1) the delivery to the Agent of an original of this Assignment
Agreement executed by the Assignor and the Assignee;
(2) the payment to the Agent, of all accrued fees, expenses and
other items for which reimbursement is then owing under the
Credit Agreement;
(3) the payment to the Agent of the $3,500 processing fee referred
to in Section 14.8(d) (ii) of the Credit Agreement; and
E-142
<PAGE> 143
(4) all other restrictions and items noted in Sections 14.8(c) and
(d) of the Credit Agreement have been completed.
Following the execution and delivery of this Assignment Agreement by
the Assignor and Assignee to the Agent, Agent shall record the assignment in the
Register pursuant to Section 14.8(f) of the Credit Agreement and the Agent shall
notify the Assignor and the Assignee, along with the Borrowers of the Effective
Date.
On the Effective Date the Assignee shall pay to the Assignor the amount
agreed upon with respect to the outstanding principal amount of the outstanding
Advances of the Revolving Credit owed to Assignor by Autocam and the Permitted
Borrowers under the Credit Agreement in respect of the interest being assigned
hereby.
The Assignee has delivered to the Agent (or is delivering to the Agent
concurrently herewith) the tax forms referred to in Section 14.13 of the Credit
Agreement, and other forms reasonably requested by the Agent. The Assignor has
delivered to the Agent (or is delivering to Agent concurrently herewith), the
original of each Note (if any issued) held by the Assignor under the Credit
Agreement.
Please evidence your consent to and acceptance of the proposed
assignment and delegation set forth herein by signing and returning counterparts
hereof to the Assignor and the Assignee.
[ASSIGNOR]
By:
Its:
[ASSIGNEE]
By:
Its:
ACCEPTED AND CONSENTED TO
this _________ day of _________________, _____
COMERICA BANK, Agent
By:
Its:
E-143
<PAGE> 144
AUTOCAM CORPORATION
By:
Its:
AUTOCAM FRANCE
By:
Its:
FRANK & PIGNARD SA
By:
Its:
[This form of Assignment Agreement (including footnotes) is subject in all
respects to the terms and conditions of the Credit Agreement which shall govern
in the event of any inconsistencies or omissions.]
E-144
<PAGE> 145
SCHEDULE TO ASSIGNMENT AGREEMENT
ASSIGNEE'S/ASSIGNOR'S PERCENTAGE AND ALLOCATION
Percentage after Assignment
---------------------------
<TABLE>
<CAPTION>
Revolving
Credit Term Loan A Term Loan B
------ ----------- -----------
<S> <C> <C> <C>
Assignor
[Name]
Assignee
[Name]
</TABLE>
E-145
<PAGE> 146
EXHIBIT L
TERM LOAN RATE REQUEST
To: Comerica Bank ("Agent")
Re: Term Loan --[specify which Term Loan]
A. Request
The undersigned authorized person of [Autocam France/Frank & Pignard
SA], in accordance with Section 4.4 of the Autocam Corporation Amended and
Restated Revolving Credit and Term Loan Agreement dated as of October 1, 1998 by
and among the Borrowers, the banks signatories thereto and Comerica Bank, as
Agent (as amended or otherwise modified from time to time, the "Credit
Agreement"), hereby requests the Agent under the Credit Agreement to refund or
convert, as applicable, a (an) _______________*/ Advance of the Term Loan
referenced above to the undersigned on _____________, ____,**/ in the amount of
FF under the Term Notes dated October 1, 1998 made by the undersigned to said
Banks.
If this Request involves a Eurocurrency-based Advance, the first
Interest Period is .***/
B. Defined Terms
Capitalized terms used herein, unless specifically defined to the
contrary herein, have the meanings given them in the Credit Agreement.
Dated this ____ day of ______________ , ____.
[AUTOCAM FRANCE]
[FRANK & PIGNARD SA]
By:_______________________________________
Its:_______________________________________
*/Insert, as applicable, "Eurocurrency-based" or "Prime-based."
**/Insert date at least three (3) Business Days after the date of
Request, if Request involves a Eurocurrency-based Advance.
***/Insert first Interest Period (of one, two, three, or six months),
if applicable.
__________________________
E-146
<PAGE> 147
EXHIBIT M
COVENANT COMPLIANCE REPORT
To: Comerica Bank, as Agent
Re: Autocam Corporation Amended and Restated Revolving Credit
and Term Loan Agreement dated as of October 1, 1998 (as amended
or otherwise modified from time to time, the "Credit Agreement")
This Covenant Compliance Report ("Report") is furnished pursuant to
Section 8.2(a) of the Credit Agreement and sets forth various information as of
__________ ____ (the "Computation Date").
1. Consolidated Fixed Charge Coverage Ratio. On the Computation
Date, the Consolidated Fixed Charge Coverage Ratio, which is required to be not
less than to ___1, was ___ to 1 as computed in the support documents attached
hereto as Schedule 1.
2. Adjusted Consolidated Tangible Net Worth. On the Computation
Date, the Adjusted Consolidated Tangible Net Worth, which is required to be not
less than $____ , was $ _____ as computed on the supporting documents attached
hereto as Schedule 2.
3. Consolidated Leverage Ratio. On the Computation Date, the
Consolidated Leverage Ratio, which is required to be not greater than ____to 1,
was ___ to 1 as computed in the supporting documents attached hereto as Schedule
3.
4. Total Debt to Capitalization Ratio. On the Computation Date, the
Total Debt to Capitalization Ratio, which is required to be not more than ___ to
1, was ___ to 1 as computed in the supporting documents attached hereto as
Schedule 4.
5. Total Debt to EBITDA Ratio. On the Computation Date, the Total
Debt to EBITDA Ratio, which is required to be not more than 4.5 to 1, was ___ to
1 as computed on the supporting documents attached hereto as Schedule 5.
The undersigned Responsible Officer of Autocam on behalf of itself and
the other Borrowers, hereby certifies that to the best of his/her knowledge,
after due inquiry:
A. All of the information set forth in this Report (and in any
Schedule attached hereto) is true and correct in all material respects.
B. As of the Computation Date, Autocam and the other Borrowers have
observed and performed, in all material respects, all of their covenants and
other agreements contained in the Credit Agreement and in the Notes (if issued)
and any other Loan Documents to be observed, performed and satisfied by them.
C. He/she has personally reviewed the Credit Agreement and this
Report is based on an examination sufficient to assure that this Report is
accurate.
E-147
<PAGE> 148
D. Except as stated as Schedule 5 hereto (which shall describe
any existing Event of Default or event which with the passage of time and/or the
giving of notice, would constitute an Event of Default and the notice and period
of existence thereof and any action taken with respect thereto or contemplated
to be taken by Autocam or another Borrower), no Event of Default, or event which
with the passage of time and/or the giving of notice would constitute an Event
of Default, has occurred and is continuing on the date of this Report.
Capitalized terms used in this Report and in the schedules hereto,
unless specifically defined to the contrary, have the meanings given to them in
the Credit Agreement.
IN WITNESS WHEREOF, Autocam has caused this Report to be executed and
delivered by its duly authorized officer this ______ day of ________________.
AUTOCAM CORPORATION
By:
Its:
E-148
<TABLE> <S> <C>
<ARTICLE> 5
<CIK> 0000879235
<NAME> AUTOCAM CORPORATION
<MULTIPLIER> 1
<CURRENCY> US DOLLARS
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> JUN-30-1999
<PERIOD-START> JUL-01-1998
<PERIOD-END> SEP-30-1998
<EXCHANGE-RATE> 1
<CASH> 1,334,145
<SECURITIES> 0
<RECEIVABLES> 12,911,443
<ALLOWANCES> 0
<INVENTORY> 6,875,841
<CURRENT-ASSETS> 22,638,635
<PP&E> 91,945,595
<DEPRECIATION> 25,156,651
<TOTAL-ASSETS> 117,369,227
<CURRENT-LIABILITIES> 11,866,031
<BONDS> 46,752,232
0
0
<COMMON> 31,874,699
<OTHER-SE> 13,050,667
<TOTAL-LIABILITY-AND-EQUITY> 117,369,227
<SALES> 24,019,951
<TOTAL-REVENUES> 24,019,951
<CGS> 20,579,418
<TOTAL-COSTS> 20,579,418
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 790,146
<INCOME-PRETAX> 703,964
<INCOME-TAX> 526,284
<INCOME-CONTINUING> 177,680
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 177,680
<EPS-PRIMARY> .03
<EPS-DILUTED> .03
</TABLE>
