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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES AND EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): FEBRUARY 3, 1999
HAYES LEMMERZ INTERNATIONAL, INC.
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<S> <C> <C>
DELAWARE 1-11592 13-3384636
State or Other Jurisdiction (Commission File Number)
of Incorporation) (IRS Employer Identification Number)
</TABLE>
<TABLE>
<S> <C>
38481 HURON RIVER DRIVE, ROMULUS, MICHIGAN 48174
(Address of principal executive offices) (Zip Code)
</TABLE>
Registrant's Telephone number, including area code (734) 941-2000
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ITEM 2. ACQUISITION AND DISPOSITION OF ASSETS
THE ACQUISITION
On February 3, 1999, Hayes Lemmerz International, Inc. (the "Company")
consummated its previously announced acquisition (the "CMI Acquisition") of CMI
International, Inc., a Michigan corporation ("CMI"), pursuant to an Agreement
and Plan of Merger (the "Merger Agreement") among the Company, CMI, HL-CMI
Holding Co. and Ray H. Witt, as Trustee of the Ray H. Witt Living Trust
Agreement dated December 2, 1981, as amended and restated. CMI designs and
manufactures a select group of products, including wheel-end attachments and
assemblies, undercarriage components and powertrain and engine components,
principally for sale to original equipment manufacturers of passenger cars and
light trucks.
Pursuant to the Merger Agreement, the Company acquired the capital stock of
CMI for $605 million in cash, of which approximately $135 million was used to
repay CMI's indebtedness existing at the time of the CMI Acquisition and the
balance of which was paid to the then existing shareholders of CMI. The cash
portion of the consideration, the refinancing of existing CMI debt and the fees
and expenses of the CMI Acquisition were financed with proceeds (i) under the
Company's Third Amended and Restated Credit Agreement dated as of February 3,
1999 among the Company, the Managing Agents (as defined therein) and the Lenders
thereto (the "Amended Credit Agreement") and (ii) from the sale of $250 million
aggregate principal amount of 8 1/4% Senior Subordinated Notes of Hayes due 2008
(the "New Notes").
The Merger Agreement has been filed as an exhibit to the Company's
Quarterly Report on Form 10-Q dated December 15, 1998 and such document is
incorporated herein by reference. The foregoing description is qualified in its
entirety by reference to such exhibit.
THE FINANCING
AMENDED CREDIT AGREEMENT
In connection with the CMI Acquisition, the Company entered into the
Amended Credit Agreement pursuant to which a syndicate of lenders has agreed to
lend to the Company up to $1.1 billion in the form of a $450 million senior
secured term loan facility (the "Term Loan Facility"), a portion of which Term
Loan Facility is permitted to be denominated in Deutschemarks or euro units, and
a $650 million senior secured revolving credit facility (the "Revolving Credit
Facility," and, together with the Term Loan Facility, the "Loans").
Use of Proceeds Maturities. The Term Loan Facility was made available to
the Company and its subsidiaries upon the consummation of the CMI Acquisition
(the "Effective Time") to finance the payment of the purchase price. The
Revolving Credit Facility was also made available at the Effective Time
(including through the making of revolving loans and the issuance of letters of
credit) for general corporate purposes of the Company and its subsidiaries. The
Term Loan Facility will mature on February 15, 2005, and will amortize in
quarterly installments. The Revolving Credit Facility will mature on February
15, 2005. The Amended Credit Agreement requires the Company to reduce the amount
outstanding under the Revolving Credit Facility to $300 million during a thirty
(30) day period each year.
Prepayments; Reduction of Commitments. Loans under the Term Loan Facility
are required to be prepaid with (i) 75% of excess cash flow (reducing to 50% in
the event the Company's leverage ratio is less than 3.0 to 1), (ii) 100% of the
net cash proceeds of all non-ordinary-course asset sales or other dispositions
of property by the Company and its subsidiaries (including insurance and
condemnation proceeds), subject to limited exceptions, and (iii) 100% of the net
proceeds of issuances of debt obligations of the Company and its subsidiaries,
subject to limited exceptions. Such mandatory prepayments and commitment
reductions are first allocated to the Term Loan Facility and second to
commitments under the Revolving Credit Facility. Within the Term Loan Facility,
such prepayments are applied pro rata to the remaining amortization payments
under such facility, provided, however, that in the event Term Loans denominated
in Deutschemarks or euro units are outstanding at the time of any prepayment,
mandatory prepayments shall be applied first to prepay the Term Loans
denominated in dollars.
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Voluntary prepayments are permitted, in whole or in part, at the option of
the Company, without premium or penalty, subject to reimbursement of the
Lenders' redeployment costs in the case of prepayment of eurocurrency borrowings
("Eurocurrency Loans") other than on the last day of the relevant interest
period. All voluntary prepayments under the Term Loan Facility are applied pro
rata to the remaining amortization payments under the Term Loan Facility.
Interest. The interest rates under the Loans are, at the option of the
Company, based upon either an adjusted eurocurrency rate (the "Eurocurrency
Rate") or the rate which is equal to the highest of CIBC's prime rate, the
federal funds rate plus 1/2 of 1% and the base certificate of deposit rate plus
1 % ("ABR"), in each case plus an applicable margin based on the leverage ratio
of the Company from time to time in effect. The applicable margin for ABR Loans
ranges from 0% to 1.0%. The applicable margin for Loans at the Eurocurrency Rate
("Eurocurrency Loans") is from 1.25% to 2.50%.
The Company may elect interest periods of 1, 2, 3 or 6 months for
Eurocurrency Loans. Calculation of interest is computed on the basis of actual
number of days elapsed in a year of 360 days (or 365 or 366 days, as the case
may be, in the case of ABR loans based on the Prime Rate) and interest is
payable at the end of each interest period and, in any event, at least every
three months.
Collateral and Guarantees. The Loans are guaranteed by the Company and all
of its existing and future domestic subsidiaries. The Loans are secured by a
first priority lien in substantially all of the properties and assets of the
Company and its domestic subsidiaries, now owned or acquired later, including a
pledge of all of the shares of the Company's respective existing and future
domestic subsidiaries and 65% of the shares of certain of the Company's existing
and future foreign subsidiaries.
Covenants. The Amended Credit Agreement contains covenants restricting the
ability of the Company and its subsidiaries to, among others (i) declare
dividends or redeem or repurchase capital stock, (ii) prepay, redeem or purchase
debt, (iii) incur liens and engage in sale-leaseback transactions, (iv) make
loans and investments, (v) issue more debt, (vi) amend or otherwise alter debt
and other material agreements, (vii) make capital expenditures, (viii) engage in
mergers, acquisitions and asset sales, (ix) engage in transactions with
affiliates and (x) alter the business it conducts. The Company must also make
certain customary indemnifications of the Managing Agents and the Lenders and
will also be required to comply with financial covenants with respect to (i) a
maximum leverage ratio, (ii) a minimum interest coverage ratio and (iii) a
minimum fixed charge coverage ratio. The Company is also required to satisfy
certain customary affirmative covenants.
Events of Default. Events of default under the Amended Credit Agreement
include but are not limited to (i) the Company's failure to pay principal or
interest when due, (ii) the Company's material breach of any covenant,
representation or warranty contained in the loan documents, (iii) customary
cross-default provisions, (iv) events of bankruptcy, insolvency or dissolution
of the Company or its subsidiaries, (v) the existence of certain judgments
against the Company, its subsidiaries or their assets, (vi) certain adverse
events under ERISA plans of the Company or its subsidiaries, (vii) the actual or
asserted invalidity of security documents or guarantees of the Company or its
subsidiaries and (viii) a change of control of the Company.
NEW NOTES
In connection with the CMI Acquisition, on December 14, 1998, the Company
issued the New Notes, comprising $250 million aggregate principal amount of 8
1/4% Senior Subordinated Notes due 2008, in a transaction which was exempt from
registration under the Securities Act of 1933 in reliance on Rule 144A
promulgated thereunder. The New Notes are general unsecured obligations of the
Company, subordinated in right of payment to senior indebtedness of the Company,
pari passu with an aggregate of $250 million of the Company's 11% Senior
Subordinated Indebtedness due 2006 and $400 million of the Company's 9 1/8%
Senior Subordinated Indebtedness due 2007, and senior in right of payment to any
current or future subordinated indebtedness of the Company. The New Notes are
unconditionally guaranteed, on a senior subordinated basis, as to the payment of
principal, premium, if any, and interest, jointly and severally by the Company's
material domestic subsidiaries. Interest on the New Notes is payable in arrears
on June 15 and December 15 commencing June 15, 1999.
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The Indenture governing the New Notes (the "New Notes Indenture") limits or
restricts, among other things: (i) the incurrence of additional domestic and
foreign indebtedness, with certain exceptions; (ii) the making of any Restricted
Payment (as defined in the New Notes Indenture); (iii) the incurrence of debt
that is junior to the senior secured indebtedness of the Company and senior to
the New Notes; (iv) the creation of certain liens; (v) entering into certain
transactions with affiliates; (vi) the sale of assets; (vii) the issuance of
common stock of subsidiaries; and (viii) the merger, consolidation or sale of
substantially all of the assets of the Company. The New Notes Indenture also
provides that a holder of the New Notes may, under certain circumstances, have
the right to require that the Company repurchase such holder's New Notes upon a
change of control of the Company.
The New Notes mature on December 15, 2008 and may not be redeemed prior to
December 15, 2003; provided, however, that the Company may, at any time and from
time to time prior to December 15, 2001, redeem up to 35% of the aggregate
principal amount of the New Notes at a price equal to 108.25% of the aggregate
principal amount so redeemed, plus accrued and unpaid interest to the date of
redemption, with the Net Cash Proceeds (as defined in the New Notes Indenture)
of one or more Equity Offerings (as defined in the New Notes Indenture),
provided that at least $162.5 million aggregate principal amount of the New
Notes remain outstanding. On or after December 15, 2003, the Company may, at its
option, redeem the New Notes in whole or in part, on at least 30 days' notice
but not more than 60 days' notice to each holder of the New Notes, at the prices
during the twelve-month periods set forth below, together with accrued and
unpaid interest to the redemption date:
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TWELVE-MONTH PERIOD
COMMENCING DECEMBER 15 OF PERCENTAGE
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2003........................................................ 104.125%
2004........................................................ 102.750
2005........................................................ 101.375
2006 and thereafter......................................... 100.000
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Pursuant to an Exchange Offer Registration Rights Agreement (the
"Registration Rights Agreement"), the Company has agreed to use its best efforts
to file and have declared effective an Exchange Offer Registration Statement
with respect to an offer to exchange the New Notes for notes of the Company with
terms substantially identical to the New Notes. The Company is also obligated to
consummate such exchange offer on or prior to August 16, 1999.
Copies of the Amended Credit Agreement, the New Notes Indenture and the
Registration Rights Agreement are being filed as exhibits to this Report. The
foregoing descriptions are qualified in their entirety by reference to such
exhibits.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(a) Financial Statements of Business to be Acquired:
CMI Consolidated Balance Sheets as of May 31, 1998 and 1997 and
Consolidated Income Statements and Statement of Cash Flows for the years
ended May 31, 1998, 1997 and 1996 and CMI Consolidated Balance Sheet as of
August 31, 1998 and Consolidated Income Statements and Statement of Cash
Flows for the quarters ended August 31, 1998 and 1997 (incorporated by
reference from the Company's Current Report on Form 8-K dated December 7,
1998)
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(b) Pro Forma Financial Information:
Unaudited Pro Forma Combined Financial Statements for the year ended
January 31, 1998 and the six months ended July 31, 1998 and the notes
thereto (incorporated by reference from the Company's Current Report on
Form 8-K dated December 7, 1998)
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(c) Exhibits
4.11 Indenture, dated as of December 14, 1998, among the Company,
as Issuer, certain subsidiaries of the Company, as
Guarantors, and The Bank of New York, a New York banking
corporation, as Trustee.
4.12 Registration Rights Agreement, dated as of December 14,
1998, among the Company, as Issuer, certain subsidiaries of
the Company, as Guarantors, and CIBC Oppenheimer Corp.,
Credit Suisse First Boston Corporation, Merrill Lynch,
Pierce, Fenner & Smith Incorporated, as the Initial
Purchasers.
10.29 Third Amended and Restated Credit Agreement, dated as of
February 3, 1999, among the Company, as Borrower, the
several banks and other financial institutions from time to
time Parties thereto, as Lenders, Canadian Imperial Bank of
Commerce, as Administrative Agent and Co-Lead Arranger,
Credit Suisse First Boston, as Syndication Agent and Co-Lead
Arranger, Merrill Lynch Capital Corporation, as
Co-Documentation Agent, and Dresdner Bank AG, as
Co-Documentation Agent and European Swing Line
Administrator.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
HAYES LEMMERZ INTERNATIONAL, Inc.
By: /s/ WILLIAM D. SHOVERS
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William D. Shovers
Vice President- Finance
Date: February 18, 1999
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EXHIBIT INDEX
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EXHIBIT
NO. DESCRIPTION
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4.11 Indenture, dated as of December 14, 1998, among the Company,
as Issuer, certain subsidiaries of the Company, as
Guarantors, and The Bank Of New York, a New York banking
corporation, as Trustee.
4.12 Registration Rights Agreement, dated as of December 14,
1998, among the Company, as Issuer, certain subsidiaries of
the Company, as Guarantors, and CIBC Oppenheimer Corp.,
Credit Suisse First Boston Corporation, Merrill Lynch,
Pierce, Fenner & Smith Incorporated, as the Initial
Purchasers.
10.29 Third Amended and Restated Credit Agreement, dated as of
February 3, 1999, among the Company, as Borrower, the
several banks and other financial institutions from time to
time Parties thereto, as Lenders, Canadian Imperial Bank of
Commerce, as Administrative Agent and Co-Lead Arranger,
Credit Suisse First Boston, as Syndication Agent and Co-Lead
Arranger, Merrill Lynch Capital Corporation, as
Co-Documentation Agent, and Dresdner Bank AG, as
Co-Documentation Agent and European Swing Line
Administrator.
</TABLE>
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EXHIBIT 4.11
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HAYES LEMMERZ INTERNATIONAL, INC.
THE GUARANTORS NAMED HEREIN,
and
The Bank of New York, as Trustee
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INDENTURE
Dated as of December 14, 1998
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$250,000,000
8-1/4% Senior Subordinated Notes due 2008
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
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310(a)(1).................................................. 7.10
(a)(2).................................................. 7.10
(a)(3).................................................. N.A.
(a)(4).................................................. N.A.
(a)(5).................................................. 7.10
(b)..................................................... 7.08; 7.10;
12.02
(b)(1).................................................. 7.10
(c)..................................................... N.A.
311(a)..................................................... 7.11
(b)..................................................... 7.11
(c)..................................................... N.A.
312(a)..................................................... 2.05
(b)..................................................... 12.03
(c)..................................................... 12.03
313(a)..................................................... 7.06
(b)(1).................................................. 7.06
(b)(2).................................................. 7.06
(c)..................................................... 7.06; 12.02
(d)..................................................... 7.06
314(a)..................................................... 4.02; 4.04
12.02
(b)..................................................... N.A.
(c)(1).................................................. 12.04; 12.05
(c)(2).................................................. 12.04; 12.05
(c)(3).................................................. N.A.
(d)..................................................... N.A.
(e)..................................................... 12.05
(f)..................................................... N.A.
315(a)..................................................... 7.01; 7.02
(b)..................................................... 7.05; 12.02
(c)..................................................... 7.01
(d)..................................................... 6.05; 7.01;
7.02
(e)..................................................... 6.11
316(a) (last sentence)..................................... 12.06
(a)(1)(A)............................................... 6.05
(a)(1)(B)............................................... 6.04
(a)(2).................................................. 8.02; 12.06
(b)..................................................... 6.07
(c)..................................................... 8.04
317(a)(1).................................................. 6.08
(a)(2).................................................. 6.09
(b)..................................................... 7.12
318(a)..................................................... 12.01
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N.A. means Not Applicable
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
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TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
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Section 1.01. Definitions.......................................... 1
Section 1.02. Other Definitions.................................... 24
Section 1.03. Incorporation by Reference of
Trust Indenture Act............................... 25
Section 1.04. Rules of Construction................................ 25
ARTICLE 2
THE NOTES
Section 2.01. Amount of Notes and Form and
Dating............................................ 26
Section 2.02. Execution and Authentication......................... 27
Section 2.03. Registrar and Paying Agent........................... 28
Section 2.04. Paying Agent To Hold Assets in Trust................. 28
Section 2.05. Noteholder Lists..................................... 29
Section 2.06. Transfer and Exchange................................ 29
Section 2.07. Replacement Notes.................................... 30
Section 2.08. Outstanding Notes.................................... 30
Section 2.09. Temporary Notes...................................... 31
Section 2.10. Cancellation......................................... 31
Section 2.11. Defaulted Interest................................... 32
Section 2.12. Deposit of Moneys.................................... 32
Section 2.13. CUSIP Number......................................... 32
Section 2.14. Book-Entry Provisions for Global
Notes............................................. 32
Section 2.15. Special Transfer Provisions.......................... 35
Section 2.16. Computation of Interest.............................. 37
ARTICLE 3
REDEMPTION
Section 3.01. Notices to Trustee................................... 37
Section 3.02. Selection by Trustee of Notes To
Be Redeemed....................................... 38
Section 3.03. Notice of Redemption................................. 38
Section 3.04. Effect of Notice of Redemption....................... 39
Section 3.05. Deposit of Redemption Price.......................... 39
Section 3.06. Notes Redeemed in Part............................... 40
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ARTICLE 4
COVENANTS
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Section 4.01. Payment of Notes................................. 40
Section 4.02. SEC Reports...................................... 41
Section 4.03. Waiver of Stay, Extension or Usury
Laws.......................................... 41
Section 4.04. Compliance Certificate........................... 42
Section 4.05. Payment of Taxes and Other Claims................ 43
Section 4.06. Maintenance of Properties and
Insurance..................................... 43
Section 4.07. Compliance with Laws............................. 44
Section 4.08. Corporate Existence.............................. 44
Section 4.09. Maintenance of Office or Agency.................. 45
Section 4.10. Limitation on Additional
Indebtedness.................................. 45
Section 4.11. Limitation on Foreign Indebtedness............... 46
Section 4.12. Limitation on Common Stock of
Subsidiaries.................................. 47
Section 4.13. Limitation on Restricted Payments................ 47
Section 4.14. Limitation on Other Senior Subordinated Debt..... 49
Section 4.15. Limitation on Certain Asset Sales................ 49
Section 4.16. Limitation on Transactions with
Affiliates.................................... 53
Section 4.17. Limitations on Liens............................. 53
Section 4.18. Limitation on Creation of
Subsidiaries.................................. 54
Section 4.19. Payments for Consent............................. 54
Section 4.20. Change of Control................................ 55
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.01. Limitation on Consolidation,
Merger and Sale of Assets................... 57
Section 5.02. Successor Person Substituted................... 58
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.............................. 59
Section 6.02. Acceleration................................... 60
Section 6.03. Other Remedies................................. 61
Section 6.04. Waiver of Past Defaults and Events
of Default.................................. 62
Section 6.05. Control by Majority............................ 62
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Section 6.06. Limitation on Suits............................. 62
Section 6.07. Rights of Holders To Receive
Payment...................................... 63
Section 6.08. Collection Suit by Trustee...................... 63
Section 6.09. Trustee May File Proofs of Claim................ 63
Section 6.10. Priorities...................................... 64
Section 6.11. Undertaking for Costs........................... 64
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee............................... 65
Section 7.02. Rights of Trustee............................... 66
Section 7.03. Individual Rights of Trustee.................... 67
Section 7.04. Trustee's Disclaimer............................ 67
Section 7.05. Notice of Default............................... 68
Section 7.06. Reports by Trustee to Holders................... 68
Section 7.07. Compensation and Indemnity...................... 68
Section 7.08. Replacement of Trustee.......................... 69
Section 7.09. Successor Trustee by
Consolidation, Merger or
Conversion................................... 70
Section 7.10. Eligibility; Disqualification................... 71
Section 7.11. Preferential Collection of Claims
Against Company.............................. 71
Section 7.12. Paying Agents................................... 71
ARTICLE 8
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.01. Without Consent of Holders...................... 72
Section 8.02. With Consent of Holders......................... 72
Section 8.03. Compliance with Trust Indenture
Act.......................................... 74
Section 8.04. Revocation and Effect of Consents............... 74
Section 8.05. Notation on or Exchange of Notes................ 75
Section 8.06. Trustee To Sign Amendments, etc................. 75
ARTICLE 9
DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.01. Discharge of Indenture.......................... 75
Section 9.02. Legal Defeasance................................ 76
Section 9.03. Covenant Defeasance............................. 76
Section 9.04. Conditions to Defeasance or Covenant
Defeasance................................... 77
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Section 9.05. Deposited Money and U.S.
Government Obligations To Be
Held in Trust; Other
Miscellaneous Provisions............................................... 79
Section 9.06. Reinstatement............................................................. 80
Section 9.07. Moneys Held by Paying Agent............................................... 80
Section 9.08. Moneys Held by Trustee.................................................... 80
ARTICLE 10
GUARANTEE OF NOTES
Section 10.01. Guarantee................................................................. 81
Section 10.02. Execution and Delivery of
Guarantees............................................................. 82
Section 10.03. Limitation of Guarantee................................................... 83
Section 10.04. Additional Guarantors..................................................... 83
Section 10.05. Release of Guarantor...................................................... 83
Section 10.06. Guarantee Obligations Subordinated
to Guarantor Senior Indebtedness....................................... 84
Section 10.07. Payment Over of Proceeds upon
Dissolution, etc., of a
Guarantor.............................................................. 84
Section 10.08. Suspension of Guarantee
Obligations When Guarantor
Senior Indebtedness in Default......................................... 86
Section 10.09. Subrogation to Rights of Holders
of Guarantor Senior Indebtedness....................................... 88
Section 10.10. Guarantee Subordination Provisions
Solely To Define Relative Rights....................................... 89
Section 10.11. Application of Certain Article 11
Provisions............................................................. 90
ARTICLE 11
SUBORDINATION OF NOTES
Section 11.01. Notes Subordinate to Senior
Indebtedness........................................................... 90
Section 11.02. Payment Over of Proceeds upon
Dissolution, etc. ..................................................... 90
Section 11.03. Suspension of Payment When Senior
Indebtedness in Default................................................ 92
Section 11.04. Trustee's Relation to Senior
Indebtedness........................................................... 94
Section 11.05. Subrogation to Rights of Holders
of Senior Indebtedness................................................. 94
Section 11.06. Provisions Solely To Define
Relative Rights........................................................ 95
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Section 11.07. Trustee To Effectuate
Subordination.......................................................... 96
Section 11.08. No Waiver of Subordination
Provisions............................................................. 96
Section 11.09. Notice to Trustee......................................................... 97
Section 11.10. Reliance on Judicial Order or
Certificate of Liquidating
Agent.................................................................. 98
Section 11.11. Rights of Trustee as a Holder of
Senior Indebtedness;
Preservation of Trustee's Rights....................................... 98
Section 11.12. Article Applicable to
Paying Agents.......................................................... 98
Section 11.13. No Suspension of Remedies................................................. 99
ARTICLE 12
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls.............................................. 99
Section 12.02. Notices................................................................... 99
Section 12.03. Communications by Holders with
Other Holders.......................................................... 100
Section 12.04. Certificate and Opinion as to
Conditions Precedent................................................... 100
Section 12.05. Statements Required in Certificate
and Opinion............................................................ 101
Section 12.06. When Treasury Notes Disregarded........................................... 101
Section 12.07. Rules by Trustee and Agents............................................... 102
Section 12.08. Business Days; Legal Holidays............................................. 102
Section 12.09. Governing Law............................................................. 102
Section 12.10. No Adverse Interpretation of Other
Agreements............................................................. 102
Section 12.11. No Recourse Against Others................................................ 102
Section 12.12. Successors................................................................ 103
Section 12.13. Multiple Counterparts..................................................... 103
Section 12.14. Table of Contents, Headings, etc.......................................... 103
Section 12.15. Separability.............................................................. 103
EXHIBITS
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Exhibit A. Form of Note.............................................................. A-1
Exhibit B. Form of Legend for 144A Note.............................................. B-1
Exhibit C. Form of Legend for Regulation S
Note................................................................... C-1
Exhibit D. Form of Legend for Global Note............................................ D-1
Exhibit E. Form of Certificate for Non-QIB
Transfers.............................................................. E-1
Exhibit F. Form of Certificate for Regulation S Transfers............................ F-1
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Exhibit G. Form of Guarantee......................................................... G-1
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INDENTURE, dated as of December 14, 1998, among HAYES LEMMERZ
INTERNATIONAL, INC., a Delaware corporation, as Issuer (the "Company"), the
GUARANTORS (as hereinafter defined) and THE BANK OF NEW YORK, a New York banking
corporation, as Trustee (the "Trustee").
Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of the Company's
8-1/4% Senior Subordinated Notes due 2008 (the "Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
"9 1/8% Notes" means the 9 1/8% Senior Subordinated Notes due
2007 of the Company issued June 30, 1997 and July 15, 1997.
"9 1/8% Notes Indentures" means the Indentures, dated as of
June 30, 1997 and July 15, 1997, among the Company, the Guarantors and The Bank
of New York, as Trustee, as such indentures may be amended, modified or
supplemented from time to time.
"11% Notes" means the 11% Senior Subordinated Notes due 2006
of the Company.
"11% Notes Indenture" means the Indenture, dated as of July 2,
1996, among the Company, the Guarantors and Comerica Bank, as Trustee, as such
indenture may be amended, modified or supplemented from time to time.
"Acquired Indebtedness" means Indebtedness of a Person
(including an Unrestricted Subsidiary) existing at the time such Person becomes
a Restricted Subsidiary or is merged or consolidated with or into the Company or
a Restricted Subsidiary or assumed in connection with the acquisition of assets
from such Person.
"Adjusted EBITDA" means, for any Person, for any period, the
EBITDA of such Person, plus any amounts excluded from the calculation of the
Consolidated Net Income of such Person pursuant to clause (b) of the definition
thereof.
"Additional Interest" means additional interest on the Notes
which the Company and the Guarantors, jointly and
<PAGE> 10
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severally, agree to pay to the Holders pursuant to Section 4(a) of the
Registration Rights Agreement.
"Adjusted Net Assets" of a Guarantor at any date shall mean
the lesser of the amount by which (x) the fair value of the property of such
Guarantor exceeds the total amount of liabilities, including, without
limitation, contingent liabilities (after giving effect to all other fixed and
contingent liabilities (including, without limitation, any guarantees of Senior
Indebtedness)), but excluding liabilities under the Guarantee, of such Guarantor
at such date and (y) the present fair salable value of the assets of such
Guarantor at such date exceeds the amount that will be required to pay the
probable liability of such Guarantor on its debts (after giving effect to all
other fixed and contingent liabilities (including, without limitation, any
guarantees of Senior Indebtedness) and after giving effect to any collection
from any Subsidiary of such Guarantor in respect of the obligations of such
Subsidiary under the Guarantee), excluding Indebtedness in respect of the
Guarantee, as they become absolute and matured.
"Affiliate" of any specified Person means any other Person
which directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, such specified Person. For the
purposes of this definition, "control" (including, with correlative meanings,
the terms "controlling," "controlled by," and "under common control with"), as
used with respect to any Person, means the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of
such Person, whether through the ownership of voting securities, by agreement or
otherwise.
"Agent" means any Registrar, Paying Agent, co-registrar or
agent for service of notices and demands.
"Amended Credit Agreement" means the Second Amended and
Restated Credit Agreement, dated as of June 12, 1998, among the Company, CIBC,
as administrative agent, Merrill Lynch Capital Corporation, as documentation
agent, and the lenders from time to time parties thereto as such agreement may
be amended, modified or supplemented from time to time, including the proposed
amendment to the Amended Credit Agreement pursuant to a certain commitment
letter dated November 19, 1998 from Credit Suisse First Boston Corporation and
Canadian Imperial Bank of Commerce, or deferred, renewed, extended, refunded,
refinanced, restructured or replaced from time to time in whole or in part
(whether with the original administrative agent and lenders or other agents and
lenders or otherwise, and whether provided un-
<PAGE> 11
-3-
der the Second Amended and Restated Credit Agreement or other amended credit
agreements or otherwise).
"Argosy" means CIBC WG Argosy Merchant Fund 2, L.L.C.
"Asset Sale" means the sale, transfer or other disposition in
any single transaction or series of related transactions of (a) any Capital
Stock of or other equity interest in any Restricted Subsidiary of the Company,
(b) all or substantially all of the assets of the Company or of any Restricted
Subsidiary thereof, (c) real property or (d) all or substantially all of the
assets of any business owned by the Company or any Restricted Subsidiary
thereof, or a division, line of business or comparable business segment of the
Company or any Restricted Subsidiary thereof; provided that Asset Sales shall
not include (i) sales, leases, conveyances, transfers or other dispositions to
the Company or to a Restricted Subsidiary or to any other Person if after giving
effect to such sale, lease, conveyance, transfer or other disposition such other
Person becomes a Restricted Subsidiary, or (ii) leases, conveyances or other
transfers by the Company or a Restricted Subsidiary of Property to any Person as
an Investment in such Person provided that the Company or such Restricted
Subsidiary receives consideration at the time of such lease, conveyance or other
transfer at least equal to the fair market value of such Property and such
Investment is included in clause (v) of the second paragraph of Section 4.13.
"Asset Sale Proceeds" means, with respect to any Asset Sale,
(i) cash received by the Company or any Restricted Subsidiary from such Asset
Sale (including cash received as consideration for the assumption of liabilities
incurred in connection with or in anticipation of such Asset Sale), after (a)
provision for all income or other taxes measured by or resulting from such Asset
Sale, (b) payment of all brokerage commissions, underwriting and other fees and
expenses related to such Asset Sale, (c) provision for minority interest holders
in any Restricted Subsidiary as a result of such Asset Sale and (d) deduction of
appropriate amounts to be provided by the Company or a Restricted Subsidiary as
a reserve, in accordance with GAAP, against any liabilities associated with the
assets sold or disposed of in such Asset Sale and retained by the Company or a
Restricted Subsidiary after such Asset Sale, including, without limitation,
pension and other post-employment benefit liabilities and liabilities related to
environmental matters or against any indemnification obligations associated with
the assets sold or disposed of in such Asset Sale, and (ii) promissory notes and
other non-cash consideration received by the Company or any Restricted
Subsidiary from such Asset
<PAGE> 12
-4-
Sale or other disposition upon the liquidation or conversion of such notes or
non-cash consideration into cash.
"Attributable Indebtedness" in respect of a Sale and
Lease-Back Transaction means, as at the time of determination, the present value
of the Notes (discounted according to GAAP at the cost of indebtedness implied
in the lease) of the total obligations of the lessee for rental payments during
the remaining term of the lease included in such Sale and Lease-Back Transaction
(including any period for which such lease has been extended).
"Available Asset Sale Proceeds" means, with respect to any
Asset Sale, the aggregate Asset Sale Proceeds from such Asset Sale that have not
been applied in accordance with clause (iii)(A), (iii)(B) or (iii)(C) of Section
4.15(a) and that have not been the basis for an Excess Proceeds Offer in
accordance with clause (iii)(D) of such Section 4.15(a).
"Board of Directors" means the board of directors of the
Company or a Guarantor, as appropriate, or any committee authorized to act
therefor.
"Board Resolution" means a copy of a resolution certified
pursuant to an Officers' Certificate to have been duly adopted by the Board of
Directors of the Company or a Guarantor, as appropriate, and to be in full force
and effect, and delivered to the Trustee.
"Capital Stock" means, with respect to any Person, any and all
shares or other equivalents (however designated) of capital stock, partnership
interests or any other participation, right or other interest in the nature of
an equity interest in such Person or any option, warrant or other security
convertible into any of the foregoing.
"Capitalized Lease Obligations" means Indebtedness represented
by obligations under a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP, and the amount of such Indebtedness
shall be the capitalized amount of such obligations determined in accordance
with GAAP.
"Cash Equivalents" means (i) direct obligations of the United
States of America or any agency thereof, or obligations guaranteed or insured by
the United States of America, provided that in each case such obligations mature
within one year from the date of acquisition thereof, (ii) certificates of
deposit maturing within one year from the date of creation thereof issued by any
U.S. national or state banking institu-
<PAGE> 13
-5-
tion having capital, surplus and undivided profits aggregating at least
$500,000,000 and rated at least A-1 by S&P and P-1 by Moody's, (iii) commercial
paper with a maturity of 180 days or less issued by a corporation (except an
Affiliate of the Company) organized under the laws of any state of the United
States or the District of Columbia and rated at least A-1 by S&P or at least P-1
by Moody's and (iv) repurchase agreements and reverse repurchase agreements
relating to marketable direct obligations issued or unconditionally guaranteed
by the United States of America or issued by an agency thereof and backed by the
full faith and credit of the United States of America, in each case maturing
within one year from the date of acquisition; provided that the terms of such
agreements comply with the guidelines set forth in the Federal Financial
Agreements of Depository Institutions with Securities Dealers and Others, as
adopted by the Comptroller of the Currency and (v) tax-exempt auction rate
securities and municipal preferred stock, in each case, subject to reset no more
than 35 days after the date of acquisition and having a rating of at least AA by
S&P or AA by Moody's.
A "Change of Control" of the Company will be deemed to have
occurred at such time as (i) any Person (including a Person's Affiliates and
associates), other than a Permitted Holder, becomes the beneficial owner (as
defined under Rule 13d-3 or any successor rule or regulation promulgated under
the Exchange Act) of 50% or more of the total voting power of the Company's
Common Stock, (ii) any Person (including a Person's Affiliates and associates),
other than a Permitted Holder, becomes the beneficial owner of more than 30% of
the total voting power of the Company's Common Stock, and the Permitted Holders
beneficially own, in the aggregate, a lesser percentage of the total voting
power of the Common Stock of the Company than such other Person and do not have
the right or ability by voting power, contract or otherwise to elect or
designate for election a majority of the Board of Directors of the Company,
(iii) there shall be consummated any consolidation or merger of the Company in
which the Company is not the continuing or surviving corporation or pursuant to
which the Common Stock of the Company would be converted into cash, securities
or other property, other than a merger or consolidation of the Company in which
the holders of the Common Stock of the Company outstanding immediately prior to
the consolidation or merger hold, directly or indirectly, at least a majority of
the Common Stock of the surviving corporation immediately after such
consolidation or merger, or (iv) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board of
Directors of the Company (together with any new directors whose election by such
Board of Directors or whose nomination for election by the shareholders of the
Com-
<PAGE> 14
-6-
pany has been approved by 66 2/3% of the directors then still in office who
either were directors at the beginning of such period or whose election or
recommendation for election was previously so approved) cease to constitute a
majority of the Board of Directors of the Company.
"Chase" means Chase Equity Associates, L.P.
"CIBC" means Canadian Imperial Bank of Commerce.
"Common Stock" of any Person means all Capital Stock of such
Person that is generally entitled to (i) vote in the election of directors of
such Person or (ii) if such Person is not a corporation, vote or otherwise
participate in the selection of the governing body, partners, managers or others
that will control the management and policies of such Person.
"Company" means the party named as such in the first paragraph
of this Indenture until a successor replaces such party pursuant to Article 5 of
this Indenture and thereafter means the successor and any other obligor on the
Notes.
"Company Request" means any written request signed in the name
of the Company by the Chief Executive Officer, the President, any Vice
President, the Chief Financial Officer or the Treasurer and attested to by the
Secretary or any Assistant Secretary of the Company.
"Consolidated Fixed Charges" means, with respect to any
Person, the sum of a Person's (i) Consolidated Interest Expense, plus (ii) the
product of (x) the aggregate amount of all dividends paid on Disqualified
Capital Stock of the Company or on each series of preferred stock of each
Subsidiary of such Person (other than dividends paid or payable in additional
shares of preferred stock or to the Company or any of its Wholly-Owned
Subsidiaries) times (y) a fraction, the numerator of which is one and the
denominator of which is one minus the then current effective combined federal,
state and local tax rate of such Person (expressed as a decimal), in each case,
for such four-quarter period.
"Consolidated Interest Expense" means, with respect to any
Person, for any period, the aggregate amount of interest which, in conformity
with GAAP, would be set forth opposite the caption "interest expense" or any
like caption on an income statement for such Person and its Subsidiaries on a
consolidated basis (including, but not limited to, (i) imputed interest included
in Capitalized Lease Obligations, (ii) all commissions, discounts and other fees
and charges owed with respect to letters of credit and bankers' acceptance
financing, (iii)
<PAGE> 15
-7-
net payments made in connection with Interest Rate Agreements, (iv) the interest
portion of any deferred payment obligation, (v) amortization of discount or
premium, if any, and (vi) all other non-cash interest expense (other than
interest amortized to cost of sales)) plus, without duplication, all net
capitalized interest for such period and all interest paid under any guarantee
of Indebtedness (including a guarantee of principal, interest or any combination
thereof) of any Person, and minus (i) net payments received in connection with
Interest Rate Agreements and (ii) amortization of deferred financing costs and
expenses.
"Consolidated Net Income" means, with respect to any Person,
for any period, the aggregate of the net income (before preferred stock
dividends, if any) of such Person and its Subsidiaries for such period, on a
consolidated basis, determined in accordance with GAAP; provided, however, that
there shall be excluded from Consolidated Net Income (a) the net income of any
Person which under GAAP is not consolidated with the Person in question other
than the amount of dividends or distributions paid to the Person in question or
the Subsidiary, (b) the net income of any Subsidiary of the Person in question,
other than a Domestic Subsidiary, that is subject to any restriction or
limitation on the payment of dividends or the making of other distributions
(other than pursuant to the Notes or this Indenture) to the extent of such
restriction or limitation (provided that if any such restriction or limitation
by its terms takes effect upon the occurrence of a default or an event of
default, such exclusion shall become effective only upon the occurrence and
during the continuance of such default or event of default), (c) the net income
of any Person acquired in a pooling of interests transaction for any period
prior to the date of such acquisition, (d) any net gain or loss resulting from a
sale of Property by the Person in question or any of its Subsidiaries other than
in the ordinary course of business, (e) extraordinary gains and losses, (f)
non-recurring gains, non-cash non-recurring losses and charges (including
restructuring charges and costs) and, in the case of the Company, cash
restructuring charges for any period prior to July 31, 1998, (g) any amounts
received by the Company or a Restricted Subsidiary which are used to offset
Investments pursuant to the terms of clause (ii) of the definition of "Net
Investments," and (h) in the case of clauses (d), (e) and (f), the associated
tax effects during such period.
"Corporate Trust Office" means the office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is located
at 101 Barclay Street, Floor 21 West, New York, New York 10286.
<PAGE> 16
-8-
"Default" means any event that is, or with the passing of time
or giving of notice or both would be, an Event of Default.
"Depositary" means, with respect to the notes issued in the
form of one or more Global Notes, The Depository Trust Company or another Person
designated as Depositary by the Company, which Person must be a clearing agency
registered under the Exchange Act.
"Designated Senior Indebtedness," as to the Company or any
Guarantor, as the case may be, means any Senior Indebtedness (a) under or in
respect of the Amended Credit Agreement, or (b) which at the time of
determination exceeds $25,000,000 in aggregate principal amount (or accreted
value in the case of Indebtedness issued at a discount) outstanding or available
under a committed facility, and (i) which is specifically designated in the
instrument evidencing such Senior Indebtedness as "Designated Senior
Indebtedness" by such Person and (ii) as to which the Trustee has been given
written notice of such designation.
"Disqualified Capital Stock" means any Capital Stock of the
Company or a Restricted Subsidiary thereof which, by its terms (or by the terms
of any security into which it is convertible or for which it is exchangeable at
the option of the holder), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the option of the holder thereof, in whole or in part, on or
prior to the maturity date of the Notes, for cash or securities constituting
Indebtedness. Without limitation of the foregoing, Disqualified Capital Stock
shall be deemed to include any Preferred Stock of a Restricted Subsidiary of the
Company or the Company, under which, by agreement or otherwise, such Restricted
Subsidiary or the Company is obligated to pay current dividends or distributions
in cash during the period prior to the maturity date of the Notes; provided,
however, that Preferred Stock of the Company or any Restricted Subsidiary
thereof that is issued with the benefit of provisions requiring a change of
control offer to be made for such Preferred Stock in the event of a change of
control of the Company or Restricted Subsidiary, which provisions have
substantially the same effect as the provisions described in Section 4.20, shall
not be deemed to be Disqualified Capital Stock solely by virtue of such
provisions and, provided, further, that Capital Stock owned by the Company or
any Restricted Subsidiary shall not constitute Disqualified Capital Stock.
<PAGE> 17
-9-
"Domestic" with respect to any Person shall mean a Person
whose jurisdiction of incorporation or formation is the United States, any state
thereof or the District of Columbia.
"Domestic Restricted Subsidiary" means any Restricted
Subsidiary whose jurisdiction of incorporation or formation is the United
States, any state thereof or the District of Columbia.
"EBITDA" means, for any Person, for any period, an amount
equal to (a) the sum of (i) Consolidated Net Income for such period, plus (ii)
the provision for taxes for such period based on income or profits to the extent
such income or profits were included in computing Consolidated Net Income and
any provision for taxes utilized in computing net loss under clause (i) hereof,
plus (iii) Consolidated Interest Expense for such period, plus (iv) depreciation
for such period, plus (v) amortization for such period (including the
amortization of deferred financing costs and expenses), plus (vi) any other
non-cash items (including minority interests) reducing Consolidated Net Income
for such period, plus (vii) non-recurring losses and charges (including
restructuring charges and costs) whether cash or non-cash for such period to the
extent not included in the calculation of Consolidated Net Income, minus (viii)
all non-cash items increasing Consolidated Net Income for such period, all for
such Person and its Subsidiaries determined on a consolidated basis in
accordance with GAAP, except that with respect to the Company each of the
foregoing items shall be determined on a consolidated basis with respect to the
Company and its Restricted Subsidiaries only.
"Equity Offering" means an offering by the Company of shares
of its common stock (however designated and whether voting or non-voting) and
any and all rights, warrants or options to acquire such common stock.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Notes" has the meaning provided in the Registration
Rights Agreement.
"Existing Indentures" means the 9-1/8 Notes Indentures and the
11% Notes Indenture, or any such indenture.
"Existing Notes" means the 9-1/8% Notes and the 11% Notes, or
any such notes.
"Fixed Charge Coverage Ratio" of any Person means, with
respect to any determination date, the ratio of (i) EBITDA
<PAGE> 18
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for such Person's prior four full fiscal quarters for which financial results
have been reported immediately preceding the determination date to (ii)
Consolidated Fixed Charges of such Person.
"Foreign EBITDA" means, for any period, the aggregate of the
EBITDA of each of the Company's Restricted Subsidiaries which are not
Guarantors.
"Foreign Interest Expense" means, for any period, the
aggregate of the Consolidated Interest Expense of each of the Company's
Restricted Subsidiaries which are not Guarantors.
"GAAP" means generally accepted accounting principles
consistently applied as in effect in the United States from time to time.
"Guarantee" means the guarantee of the Obligations of the
Company with respect to the Notes by each Guarantor pursuant to the terms of
Article 10 hereof.
"Guarantor" means each of Hayes Lemmerz
International-California, Inc., Hayes Lemmerz International-Georgia, Inc., Hayes
Lemmerz International-Indiana, Inc., Hayes Lemmerz International-Mexico, Inc.,
Hayes Lemmerz International-Michigan, Inc., Hayes Lemmerz International-Ohio,
Inc. and HL Ohio Sub, Inc.
"Guarantor Senior Indebtedness" means the principal of and
premium, if any, and interest (including, without limitation, interest accruing
or that would have accrued but for the filing of a bankruptcy, reorganization or
other insolvency proceeding whether or not such interest constitutes an allowed
claim in such proceeding) on, and any and all other fees, charges, expense
reimbursement obligations, indemnities and other amounts due pursuant to the
terms of all agreements, documents and instruments providing for, creating,
securing, guaranteeing or evidencing or otherwise entered into in connection
with, (a) Guarantor's direct incurrence of any Indebtedness or its guarantee of
all Indebtedness of the Company, in each case, owed to lenders under or in
respect of the Amended Credit Agreement, (b) all obligations of such Guarantor
with respect to any Interest Rate Agreement, (c) all obligations of such
Guarantor to reimburse any bank or other person in respect of amounts paid under
letters of credit, acceptances or other similar instruments, (d) all other
Indebtedness of such Guarantor which does not provide that it is to rank pari
passu with or subordinate to the Guarantees and (e) all deferrals, renewals,
extensions, refundings, refinancings and restructurings of, and amendments,
modifications and supplements to, any of
<PAGE> 19
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the Guarantor Senior Indebtedness described above. Notwithstanding anything to
the contrary in the foregoing, Guarantor Senior Indebtedness will not include
(i) Indebtedness of such Guarantor to any of its Subsidiaries, (ii) Indebtedness
represented by the Notes, the Existing Notes, the Guarantees and the Guarantees
of the Existing Notes, (iii) any Indebtedness which by the express terms of the
agreement or instrument creating, evidencing or governing the same is junior or
subordinate in right of payment to any item of Guarantor Senior Indebtedness,
(iv) any trade payable arising from the purchase of goods or materials or for
services obtained in the ordinary course of business or (v) Indebtedness
incurred in violation of this Indenture.
"Holder" or "Noteholder" means the Person in whose name a Note
is registered on the Registrar's books.
"Incur" means, with respect to any Indebtedness or other
obligation of any Person, to create, issue, incur (by conversion, exchange or
otherwise), assume, guarantee or otherwise become liable in respect of such
Indebtedness or other obligation or the recording, as required pursuant to GAAP
or otherwise, of any such Indebtedness or other obligation on the balance sheet
of such Person (and "incurrence," "incurred," "incurrable," and "incurring"
shall have meanings correlative to the foregoing); provided that a change in
GAAP that results in an obligation of such Person that exists at such time
becoming Indebtedness shall not be deemed an incurrence of such Indebtedness.
"Indebtedness" means (without duplication), with respect to
any Person, any indebtedness at any time outstanding, secured or unsecured,
contingent or otherwise, which is for borrowed money (whether or not the
recourse of the lender is to the whole of the assets of such Person or only to a
portion thereof), or evidenced by bonds, notes, debentures or similar
instruments or representing the balance deferred and unpaid of the purchase
price of any Property (excluding, without limitation, any balances that
constitute accounts payable or trade payables, and other accrued liabilities
arising in the ordinary course of business) if and to the extent any of the
foregoing indebtedness would appear as a liability upon a balance sheet of such
Person prepared in accordance with GAAP, and shall also include, to the extent
not otherwise included, (i) any Capitalized Lease Obligations, (ii) obligations
of others secured by a lien to which the property or assets owned or held by
such Person is subject, whether or not the obligation or obligations secured
thereby shall have been assumed, (iii) guarantees of obligations of other
Persons which would be included within this definition for such other Persons
(whether or not such
<PAGE> 20
-12-
items would appear upon the balance sheet of the guarantor), excluding
guarantees of Indebtedness incurred by a Person to acquire or finance real
estate assets which are then leased to the Company or a Restricted Subsidiary on
an operating lease basis in a "synthetic lease" transaction, (iv) all
obligations for the reimbursement of any obligor on any letter of credit,
banker's acceptance or similar credit transaction, (v) in the case of the
Company, Disqualified Capital Stock and, in the case of any Restricted
Subsidiary, Preferred Stock, (vi) obligations of any such Person under any
Interest Rate Agreement (if and to the extent such Interest Rate Agreement
obligations would appear as a liability upon a balance sheet of such Person
prepared in accordance with GAAP) and (vii) Attributable Indebtedness. The
amount of Indebtedness of any Person at any date shall be the outstanding
balance at such date of all unconditional obligations as described above and,
with respect to contingent obligations, the maximum liability upon the
occurrence of the contingency giving rise to the obligation, provided (i) that
the amount outstanding at any time of any Indebtedness issued with original
issue discount is the principal amount of such Indebtedness less the remaining
unamortized portion of the original issue discount of such Indebtedness at such
time as determined in conformity with GAAP and (ii) that Indebtedness shall not
include any liability for federal, state, local or other taxes. Notwithstanding
any other provision of the foregoing definition, any trade payable arising from
the purchase of goods or materials or for services obtained in the ordinary
course of business shall not be deemed to be "Indebtedness" of the Company or
any Restricted Subsidiaries for purposes of this definition. Furthermore,
guarantees of (or obligations with respect to letters of credit supporting)
Indebtedness and Liens securing Indebtedness otherwise included in the
determination of such amount shall not also be included.
"Indenture" means this Indenture as amended, restated or
supplemented from time to time.
"Initial Global Securities" means the Regulation S Global
Security and the 144A Global Security, each of which contains a Securities Act
Legend.
"Initial Purchasers" means CIBC Oppenheimer Corp., Credit
Suisse First Boston Corporation and Merrill Lynch, Pierce, Fenner & Smith
Incorporated.
"Institutional Accredited Investor" means an institution that
is an "accredited investor" as that term is defined in Rule 501(a)(1), (2), (3)
or (7) promulgated under the Securities Act.
<PAGE> 21
-13-
"Interest Payment Date" means the stated maturity of an
installment of interest on the Notes.
"Interest Rate Agreement" means, for any Person, any interest
rate swap agreement, interest rate cap agreement, interest rate collar agreement
or other similar agreement designed to protect the party indicated therein
against fluctuations in interest rates.
"Investments" means, directly or indirectly, any advance,
account receivable, loan or capital contribution to (by means of transfers of
property to others, payments for property or services for the account or use of
others or otherwise), the purchase of any stock, bonds, notes, debentures,
partnership or joint venture interests or other securities of, the acquisition,
by purchase or otherwise, of all or substantially all of the business or assets
or stock or other evidence of beneficial ownership of, any Person. Investments
shall exclude extensions of trade credit on commercially reasonable terms in
accordance with normal trade practices.
"Issue Date" means the date the Notes are first issued by the
Company and authenticated by the Trustee under this Indenture.
"JLL" means Joseph Littlejohn & Levy.
"Lien" means, with respect to any Property of any Person, any
mortgage or deed of trust, pledge, hypothecation, deposit arrangement, security
interest, lien, charge, encumbrance, preference, priority, or other security
agreement or preferential arrangement of any kind or nature whatsoever on or
with respect to such Property or assets (including, without limitation, any
Capitalized Lease Obligation, conditional sales, or other title retention
agreement having substantially the same economic effect as any of the
foregoing).
"Maturity Date" means December 15, 2008.
"Merrill Lynch" means Merrill Lynch Capital Corporation.
"Moody's" means Moody's Investors Service, Inc. and its
successors.
"Net Cash Proceeds" means (a) in the case of any sale of
Capital Stock by the Company, the aggregate net cash proceeds received by the
Company, after payment of expenses, commissions, underwriting discounts and the
like incurred in connection therewith, (b) in the case of any exchange,
exercise,
<PAGE> 22
-14-
conversion or surrender of outstanding securities of any kind for or into shares
of Capital Stock of the Company which is not Disqualified Capital Stock, the net
cash proceeds received from the sale of such outstanding securities so
exchanged, exercised, converted or surrendered (plus any additional amount
required to be paid in cash by the holder to the Company upon such exchange,
exercise, conversion or surrender, less any and all payments made to the
holders, e.g., on account of fractional shares and less all expenses incurred by
the Company in connection therewith) and (c) in the case of any issuance of any
Indebtedness by the Company or any Restricted Subsidiary, the aggregate net cash
proceeds received by such Person after payment of expenses, commissions,
underwriting discounts and the like incurred in connection therewith.
"Net Investment" means the excess of (i) the aggregate amount
of all Investments in Unrestricted Subsidiaries or joint ventures made by the
Company or any Restricted Subsidiary on or after the Original Issue Date (in the
case of an Investment made other than in cash, the amount shall be the fair
market value of such Investment as determined in good faith by the Board of
Directors of the Company or such Restricted Subsidiary) over (ii) the sum of (A)
the aggregate amount returned in cash on or with respect to such Investments
whether through interest payments, principal payments, dividends or other
distributions or payments and (B) the Net Cash Proceeds received by the Company
or any Restricted Subsidiary or joint venture from the disposition of all or any
portion of such Investments (other than to a Subsidiary of the Company);
provided, however, that with respect to all Investments made in any Unrestricted
Subsidiary or joint ventures the sum of clauses (A) and (B) above with respect
to such Investments shall not exceed the aggregate amount of all such
Investments made in such Unrestricted Subsidiary.
"Nomura" means Nomura Holding America, Inc.
"Non-Payment Event of Default" means any event (other than a
Payment Default) the occurrence of which entitles one or more Persons to
accelerate the maturity of any Designated Senior Indebtedness.
"Non-U.S. Person" means a Person who is not a U.S. person, as
defined in Regulation S.
"Notes" means the 8-1/4% Senior Subordinated Notes due 2008
issued by the Company, including, without limitation, the Private Exchange
Notes, if any, and the Exchange Notes, treated as a single class of securities,
as amended or supple-
<PAGE> 23
-15-
mented from time to time in accordance with the terms hereof, that are issued
pursuant to this Indenture.
"Obligations" means, with respect to any Indebtedness, any
principal, premium, interest, penalties, fees, indemnifications, reimbursements,
damages and other expenses payable under the documentation governing such
Indebtedness.
"Offering" means the offering of the Notes as described in the
Offering Memorandum.
"Offering Memorandum" means the Offering Memorandum dated
December 7, 1998 pursuant to which the Notes issued on the Issue Date were
offered.
"Officer" means the Chief Executive Officer, the President,
any Vice President, the Chief Financial Officer, the Treasurer or the Secretary
of the Company or a Guarantor, or any other officer designated by the Board of
Directors, as the case may be.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chief Executive Officer, the President or any Vice
President, and the Chief Financial Officer or any Treasurer of such Person that
shall comply with applicable provisions of this Indenture.
"Opinion of Counsel" means a written opinion from legal
counsel which counsel is reasonably acceptable to the Trustee.
"Original Issue Date" means December 14, 1998.
"Payment Default" means any default, whether or not any
requirement for the giving of notice, the lapse of time or both, or any other
condition to such default becoming an Event of Default has occurred, in the
payment of principal of (or premium, if any) or interest on or any other amount
payable in connection with Designated Senior Indebtedness.
"Permitted Holders" means (i) JLL or any other fund controlled
by Joseph Littlejohn & Levy, (ii) TSG, (iii) Argosy, (iv) Nomura and (v) Chase.
"Permitted Indebtedness" means:
(i) Indebtedness of the Company or any Domestic Restricted
Subsidiary arising under or in respect of the Amended Credit Agreement
in an aggregate amount (the "Permitted Credit Agreement Amount") not to
exceed (A)
<PAGE> 24
-16-
$550,000,000 (after giving effect to the concurrent repayment of
amounts outstanding under the Amended Credit Agreement on the Issue
Date), less (B) any mandatory prepayments actually made thereunder (to
the extent, in the case of payments of revolving credit Indebtedness,
that the corresponding commitments have been permanently reduced) or
scheduled payments actually made thereunder;
(ii) Indebtedness under the Notes and the Guarantees;
(iii) Indebtedness not covered by any other clause of this
definition which is outstanding on the Issue Date;
(iv) Indebtedness incurred to finance the working capital
requirements of the Western European operations of the Company's
Restricted Subsidiaries pursuant to commitments outstanding on the
Issue Date in an aggregate amount not to exceed $10,000,000 (or, to the
extent non-U.S. dollar denominated, the U.S. dollar equivalent
thereof);
(v) Indebtedness of Autokola not to exceed $35,000,000 in
principal amount in the aggregate;
(vi) Indebtedness of the Company to any Domestic Restricted
Subsidiary which is a Wholly-Owned Subsidiary and Indebtedness of any
Restricted Subsidiary to the Company or another Restricted Subsidiary
provided that in the case of Indebtedness of a Domestic Restricted
Subsidiary such Indebtedness is owed to another Domestic Restricted
Subsidiary;
(vii) Purchase Money Indebtedness and Capitalized Lease
Obligations incurred to acquire property in the ordinary course of
business which Indebtedness and Capitalized Lease Obligations do not in
the aggregate exceed 5% of the Company's consolidated total assets as
of the Company's most recent quarterly balance sheet;
(viii) Interest Rate Agreements;
(ix) additional Indebtedness of the Company and its
Restricted Subsidiaries not to exceed $50,000,000 in aggregate
principal amount outstanding at any time;
(x) Refinancing Indebtedness;
(xi) Indebtedness incurred in accordance with Section 4.11;
and
<PAGE> 25
-17-
(xii) Indebtedness of the Company or its Subsidiaries which
is denominated in a currency other than U.S. dollars, provided that (a)
the U.S. dollar equivalent thereof on the date of incurrence (together
with the U.S. dollar equivalent on such date of all other Indebtedness
incurred under this clause (xii)) shall not exceed $80,000,000, and (b)
on the last Business Day of each month, the sum of (1) the U.S. dollar
equivalent of all Indebtedness outstanding under this clause (xii), and
(2) the outstanding principal amount of Indebtedness under the Amended
Credit Agreement, including reimbursement obligations in respect of
letters of credit (in each case after giving effect to any currency
hedging arrangements applicable thereto to which the Company or a
Subsidiary of the Company is a party), shall not exceed the Permitted
Credit Agreement Amount.
"Permitted Investments" means, for any Person, Investments
made on or after the date of this Indenture consisting of:
(i) Investments by the Company, or by a Restricted
Subsidiary thereof, in the Company or a Restricted Subsidiary;
(ii) Temporary Cash Investments;
(iii) Investments by the Company, or by a Restricted
Subsidiary thereof, in a Person, if as a result of such Investment (a)
such Person becomes a Restricted Subsidiary of the Company or (b) such
Person is merged, consolidated or amalgamated with or into, or
transfers or conveys substantially all of its assets to, or is
liquidated into, the Company or a Restricted Subsidiary;
(iv) reasonable and customary loans made to employees not to
exceed $1,000,000 in the aggregate at any one time outstanding;
(v) an Investment that is made by the Company or a
Restricted Subsidiary thereof in the form of any stock, bonds, notes,
debentures, partnership or joint venture interests or other securities
that are issued by a third party to the Company or Restricted
Subsidiary solely as partial consideration for the consummation of an
Asset Sale;
(vi) Investments in Unrestricted Subsidiaries and joint
ventures permitted under subclause (v) of the second paragraph of
Section 4.13;
<PAGE> 26
-18-
(vii) Investments received in connection with the bankruptcy
or reorganization of Persons having obligations in favor of the Company
or its Subsidiaries (which obligations were incurred in the ordinary
course), in settlement of such obligations; and
(viii) Investments paid for in Common Stock of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government (including any agency or political subdivision thereof).
"Physical Notes" means certificated Notes in registered form
in substantially the form set forth in Exhibit A.
"Preferred Stock" means any Capital Stock of a Person, however
designated, which entitles the holder thereof to a preference with respect to
dividends, distributions or liquidation proceeds of such Person over the holders
of other Capital Stock issued by such Person.
"Private Exchange" has the meaning set forth in the
Registration Rights Agreement.
"Private Exchange Notes" has the meaning set forth in the
Registration Rights Agreement.
"Private Placement Legend" means the legend initially set
forth on the Rule 144A Notes in the form set forth in Exhibit B.
"Property" of any Person means all types of real, personal,
tangible, intangible or mixed property owned by such Person whether or not
included in the most recent consolidated balance sheet of such Person and its
Subsidiaries under GAAP.
"Purchase Agreement" means the Purchase Agreement dated as of
December 7, 1998 by and among the Company, the Guarantors and the Initial
Purchasers.
"Purchase Money Indebtedness" means any Indebtedness incurred
in the ordinary course of business by a Person to finance the cost (including
the cost of construction) of an item of Property, the principal amount of which
Indebtedness does not exceed the sum of (i) 100% of such cost and (ii)
reasonable fees and expenses of such Person incurred in connection therewith.
<PAGE> 27
-19-
"Qualified Institutional Buyer" or "QIB" shall have the
meaning specified in Rule 144A promulgated under the Securities Act.
"Redemption Date" when used with respect to any Note to be
redeemed means the date fixed for such redemption pursuant to this Indenture.
"Refinancing Indebtedness" means Indebtedness that refunds,
refinances or extends any Indebtedness of the Company or its Subsidiaries
outstanding on the Issue Date or other Indebtedness permitted to be incurred by
the Company or its Restricted Subsidiaries pursuant to the terms of this
Indenture, but only to the extent that (i) the Refinancing Indebtedness is
subordinated to the Notes to at least the same extent as the Indebtedness being
refunded, refinanced or extended, if at all, (ii) the Refinancing Indebtedness
is scheduled to mature either (a) no earlier than the Indebtedness being
refunded, refinanced or extended, or (b) after the maturity date of the Notes,
(iii) the portion, if any, of the Refinancing Indebtedness that is scheduled to
mature on or prior to the maturity date of the Notes has a weighted average life
to maturity at the time such Refinancing Indebtedness is incurred that is equal
to or greater than the weighted average life to maturity of the portion of the
Indebtedness being refunded, refinanced or extended that is scheduled to mature
on or prior to the maturity date of the Notes, (iv) such Refinancing
Indebtedness is in an aggregate principal amount that is equal to or less than
the sum of (a) the aggregate principal amount then outstanding under the
Indebtedness being refunded, refinanced or extended, (b) the amount of accrued
and unpaid interest, if any, and any necessary premiums (including the amount of
any premium reasonably determined by the Company or the applicable Restricted
Subsidiary as necessary to accomplish such refunding, refinancing or extension)
on such Indebtedness being refunded, refinanced or extended and (c) the amount
of customary fees, expenses and costs related to the incurrence of such
Refinancing Indebtedness, (v) such Refinancing Indebtedness is incurred by the
same Person that initially incurred the Indebtedness being refunded, refinanced
or extended, except that the Company may incur Refinancing Indebtedness to
refund, refinance or extend Indebtedness of any Wholly-Owned Subsidiary of the
Company; provided, however, that any non-Domestic Restricted Subsidiary may
incur Refinancing Indebtedness to refund, refinance or extend Indebtedness of
the Company arising under or in respect of the Amended Credit Agreement in an
aggregate amount not to exceed $20,000,000 outstanding at any time; and
provided, further, that with respect to such Refinancing Indebtedness referred
to in the previous provision, clauses (ii) and (iii) shall not apply, and (vi)
if such Indebtedness was incurred pursuant to
<PAGE> 28
-20-
Section 4.11(a) and does not contain any restriction or limitation on the
payment of dividends or the making of other distributions then the Refinancing
Indebtedness shall not contain any such limitation or restriction.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of the Issue Date among the Company, the Guarantors and the
Initial Purchasers, as amended from time to time.
"Regulation S" means Regulation S promulgated under the
Securities Act.
"Responsible Officer" when used with respect to the Trustee,
means any officer within the corporate trust department of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Note" has the same meaning as "Restricted
Security" set forth in Rule 144(a)(3) promulgated under the Securities Act;
provided, that the Trustee shall be entitled to request and conclusively rely
upon an Opinion of Counsel with respect to whether any Note is a Restricted
Note.
"Restricted Payment" means any of the following: (i) the
declaration or payment of any dividend or any other distribution or payment on
Capital Stock of the Company or any Restricted Subsidiary of the Company or any
payment made to the direct or indirect holders (in their capacities as such) of
Capital Stock of the Company or any Restricted Subsidiary of the Company other
than (x) dividends or distributions payable solely in Capital Stock (other than
Disqualified Capital Stock) or in options, warrants or other rights to purchase
Capital Stock (other than Disqualified Capital Stock), and (y) in the case of
Restricted Subsidiaries of the Company, dividends or distributions payable to
the Company or to a Wholly-Owned Subsidiary of the Company), (ii) the purchase,
redemption or other acquisition or retirement for value of any Capital Stock of
the Company or any of its Restricted Subsidiaries (other than Capital Stock
owned by the Company or a Wholly-Owned Subsidiary of the Company, excluding
Disqualified Capital Stock), (iii) the purchase, defeasance, repurchase,
redemption or other acquisition or retirement for value, prior to any scheduled
maturity, scheduled repayment or scheduled sinking fund payment of, or the
making of any principal payment on, any Indebtedness which
<PAGE> 29
-21-
is subordinated in right of payment to the Notes other than subordinated
Indebtedness acquired in anticipation of satisfying a scheduled sinking fund
obligation, principal installment or final maturity (in each case due within one
year of the date of acquisition), (iv) the making of any Investment or guarantee
of any Investment in any Person other than a Permitted Investment, (v) any
designation of a Restricted Subsidiary as an Unrestricted Subsidiary on the
basis of the Net Investment by the Company therein and (vi) forgiveness of any
Indebtedness of an Affiliate of the Company to the Company or a Restricted
Subsidiary. For purposes of determining the amount expended for Restricted
Payments, cash distributed or invested shall be valued at the face amount
thereof and property other than cash shall be valued at its fair market value
determined in good faith by the Board of Directors of the Company.
"Restricted Subsidiary" means a Subsidiary of the Company
other than an Unrestricted Subsidiary. The Board of Directors of the Company may
designate any Unrestricted Subsidiary or any Person that is to become a
Subsidiary as a Restricted Subsidiary if immediately after giving effect to such
action (and treating any Acquired Indebtedness as having been incurred at the
time of such action), the Company could have incurred at least $1.00 of
additional Indebtedness (other than Permitted Indebtedness) pursuant to Section
4.10.
"Rule 144" means Rule 144 promulgated under the Securities
Act.
"Rule 144A" means Rule 144A promulgated under the Securities
Act.
"Sale and Lease-Back Transaction" means any arrangement with
any Person providing for the leasing by the Company or any Restricted Subsidiary
of the Company of any real or tangible personal Property, which Property has
been or is to be sold or transferred by the Company or such Restricted
Subsidiary to such Person in contemplation of such leasing.
"S&P" means Standard & Poor's Corporation and its successors.
"SEC" means the United States Securities and Exchange
Commission as constituted from time to time or any successor performing
substantially the same functions.
"Securities Act" means the Securities Act of 1933, as amended.
<PAGE> 30
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"Senior Indebtedness" means the principal of and premium, if
any, and interest (including, without limitation, interest accruing or that
would have accrued but for the filing of a bankruptcy, reorganization or other
insolvency proceeding whether or not such interest constitutes an allowed claim
in such proceeding) on, and any and all other fees, charges, expense
reimbursement obligations, indemnities and other amounts due pursuant to the
terms of all agreements, documents and instruments providing for, creating,
securing, guaranteeing or evidencing or otherwise entered into in connection
with (a) all obligations, whether outstanding on the Issue Date or thereafter
incurred, of the Company owed to lenders under or in respect of the Amended
Credit Agreement, (b) all obligations of the Company with respect to any
Interest Rate Agreement, (c) all obligations of the Company to reimburse any
bank or other person in respect of amounts paid under letters of credit,
acceptances or other similar instruments, (d) all other Indebtedness of the
Company which does not provide that it is to rank pari passu with or subordinate
to the Notes and (e) all deferrals, renewals, extensions, refundings,
refinancings and restructurings of, and amendments, modifications and
supplements to, any of the Senior Indebtedness described above. Notwithstanding
anything to the contrary in the foregoing, Senior Indebtedness will not include
(i) Indebtedness of the Company to any of its Subsidiaries, (ii) Indebtedness
represented by the Notes, the 11% Notes, the 9 1/8% Notes, and, in each case,
the guarantees thereof, (iii) any Indebtedness which by the express terms of the
agreement or instrument creating, evidencing or governing the same is junior or
subordinate in right of payment to any item of Senior Indebtedness, (iv) any
trade payable arising from the purchase of goods or materials or for services
obtained in the ordinary course of business, or (v) Indebtedness incurred in
violation of this Indenture.
"Subsidiary" of any specified Person means any corporation,
partnership, joint venture, association or other business entity, whether now
existing or hereafter organized or acquired, (i) in the case of a corporation,
of which more than 50% of the total voting power of the Capital Stock entitled
(without regard to the occurrence of any contingency) to vote in the election of
directors, officers or trustees thereof is held by such first-named Person or
any of its Subsidiaries; or (ii) in the case of a partnership, joint venture,
association or other business entity, with respect to which such first-named
Person or any of its Subsidiaries has the power to direct or cause the direction
of the management and policies of such entity by contract or otherwise or if in
accordance with GAAP such entity is consolidated with the first-named Person for
financial statement purposes.
<PAGE> 31
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"Temporary Cash Investments" means (i) Investments in
marketable, direct obligations issued or guaranteed by the United States of
America, or of any governmental agency or political subdivision thereof,
maturing within 365 days of the date of purchase; (ii) Investments in demand
deposits or certificates of deposit issued by a bank organized under the laws of
the United States of America or any state thereof or the District of Columbia,
in each case having capital, surplus and undivided profits totaling more than
$500,000,000 and rated at least A by S&P and A-2 by Moody's, maturing within 365
days of purchase; (iii) Investments in commercial paper, maturing not more than
180 days after the date of acquisition, issued by a corporation (other than an
Affiliate of the Company) organized and in existence under the laws of the
United States of America or any foreign country recognized by the United States
of America with a rating at the time as of which any Investment therein is made
of P-1 (or higher) according to Moody's or A-1 (or higher) according to S&P;
(iv) in the case of any non-Domestic Restricted Subsidiary, Investments: (a) in
direct obligations of the sovereign nation (or any agency thereof) in which such
non-Domestic Restricted Subsidiary is organized and is conducting business or in
obligations fully and unconditionally guaranteed by such sovereign nation (or
any agency thereof) or (b) of the type and maturity described in clauses (i)
through (iii) above of foreign obligors, which Investments or obligors (of the
parents of such obligors) have ratings described in such clauses or equivalent
ratings from comparable foreign rating agencies; or (v) Investments not
exceeding 365 days in duration in money market funds that invest substantially
all of such funds' assets in the Investments described in the preceding clauses
(i) and (iv).
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
ss.ss. 77aaa-77bbbb) as in effect on the date of this Indenture (except as
provided in Section 8.03 hereof).
"Trust Officer" means any officer or assistant officer of the
Trustee assigned by the Trustee to administer trust accounts.
"Trustee" means the party named as such in this Indenture
until a successor replaces it pursuant to this Indenture and thereafter means
the successor.
"TSG" means TSG Capital Fund II, L.P.
"Unrestricted Subsidiary" means (a) any Subsidiary of an
Unrestricted Subsidiary and (b) any Subsidiary of the Company which is
classified after the Issue Date as an Unrestricted Subsidiary by a resolution
adopted by the Board of Di-
<PAGE> 32
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rectors of the Company; provided that a Subsidiary organized or acquired after
the Issue Date may be so classified as an Unrestricted Subsidiary only if such
classification is in compliance with Section 4.13 hereof. The Trustee shall be
given prompt notice by the Company of each resolution adopted by the Board of
Directors of the Company under this provision, together with a copy of each such
resolution adopted.
"U.S. Government Obligations" means direct non-callable
obligations of, or non-callable obligations guaranteed by, the United States of
America for the payment of which obligation or guarantee the full faith and
credit of the United States of America is pledged.
"Western Europe" means, with respect to any jurisdictional
matter, any of the twelve current member states of the European Community and
Switzerland, Norway, Sweden, Finland, Austria and the Czech Republic (and
"Western European" shall have a meaning correlative to the foregoing).
"Wholly-Owned Subsidiary" means any Restricted Subsidiary all
of the outstanding voting securities (other than directors' qualifying shares or
similar requirements of law in respect of non-Domestic Subsidiaries and other
than shares of Lemmerz representing not more than .01% of the voting securities
thereof) of which are owned, directly or indirectly, by the Company.
Section 1.02. Other Definitions.
The definitions of the following terms may be found in the
sections indicated as follows:
<TABLE>
<CAPTION>
Term Defined in Section
- ---- ------------------
<S> <C>
"Acquisition".......................................................... 4.10
"Affiliate Transaction"................................................ 4.16
"Bankruptcy Law"....................................................... 6.01
"Business Day"......................................................... 12.08
"Change of Control Offer".............................................. 4.20
"Change of Control Payment Date"....................................... 4.20
"Change of Control Purchase Price"..................................... 4.20
"Covenant Defeasance".................................................. 9.03
"Custodian"............................................................ 6.01
"Event of Default"..................................................... 6.01
"Excess Proceeds Offer"................................................ 4.15
"Guarantee Payment Blockage Period".................................... 10.08
"Guarantor Representative"............................................. 10.08
"Initial Blockage Period".............................................. 11.03
"Initial Guarantee Blockage Period".................................... 10.08
</TABLE>
<PAGE> 33
-25-
<TABLE>
<S> <C>
"Legal Defeasance"..................................................... 9.02
"Legal Holiday"........................................................ 12.08
"Offer Period"......................................................... 4.15
"Other Notes".......................................................... 2.01
"Paying Agent"......................................................... 2.03
"Payment Blockage Period".............................................. 11.03
"Purchase Date"........................................................ 4.15
"Registrar"............................................................ 2.03
"Regulation S Notes"................................................... 2.01
"Reinvestment Date".................................................... 4.15
"Representative"....................................................... 11.03
"Restricted Global Notes".............................................. 2.42
"Rule 144A Notes"...................................................... 2.01
</TABLE>
Section 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
portion of such provision required to be incorporated herein in order for this
Indenture to be qualified under the TIA is incorporated by reference in and made
a part of this Indenture. The following TIA terms used in this Indenture have
the following meanings:
"Commission" means the SEC.
"indenture securities" means the Notes.
"indenture securityholder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor on the indenture securities" means the Company, the
Guarantors or any other obligor on the Notes or the Guarantees.
All other terms used in this Indenture that are defined by the
TIA, defined in the TIA by reference to another statute or defined by SEC rule
have the meanings therein assigned to them.
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein, whether
defined expressly or by reference;
<PAGE> 34
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(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular; and
(5) words used herein implying any gender shall apply to
every gender.
ARTICLE 2
THE NOTES
Section 2.01. Amount of Notes and Form and Dating.
The Trustee shall, upon receipt of a Company Request,
authenticate Notes for original issue on the Issue Date in the aggregate
principal amount of $250,000,000. Each such written order shall specify the
amount of Notes to be authenticated and the date on which the Notes are to be
authenticated and the title of the Notes of the series (which shall distinguish
the Notes of the series from Notes of any other series). All Notes issued on the
Issue Date shall be identical in all respects. The aggregate principal amount of
Notes outstanding at any time may not exceed $250,000,000 except as provided in
Section 2.08.
Upon receipt of a Company Request and an Officers' Certificate
certifying that a registration statement relating to an exchange offer specified
in the Registration Rights Agreement is effective and that, if necessary, the
conditions precedent to a Private Exchange thereunder have been met, the Trustee
shall authenticate an additional series of Notes in an aggregate principal
amount not to exceed $250,000,000 for issuance in exchange for the Notes
tendered for exchange pursuant to such exchange offer registered under the
Securities Act and, if necessary, pursuant to a Private Exchange. Exchange Notes
or Private Exchange Notes may have such distinctive series designations and such
changes in the form thereof as are specified in the Company Request.
The Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A which is incorporated in and
made part of this Indenture. The Notes may have notations, legends or
endorsements required by law, rule or usage. The Company may use "CUSIP" numbers
in issuing the Notes. The Company shall approve the form of the Notes.
<PAGE> 35
-27-
Without limiting the generality of the foregoing, Notes
offered and sold to Qualified Institutional Buyers in reliance on Rule 144A
("Rule 144A Notes") shall bear the Private Placement Legend and include the form
of assignment set forth in Exhibit C-1, Notes subsequently offered and sold in
offshore transactions in reliance on Regulation S ("Regulation S Notes") shall
bear the Private Placement Legend and include the form of assignment set forth
in Exhibit C-2, and Notes subsequently offered and sold to Institutional
Accredited Investors in transactions exempt from registration under the
Securities Act not made in reliance on Rule 144A or Regulation S ("Other Notes")
may be represented by the Restricted Global Note or, if such an investor may not
hold an interest in the Restricted Global Note, a Physical Note in each case
bearing the Private Placement Legend. Each Note shall be dated the date of its
authentication.
The terms and provisions contained in the Notes and the
Guarantee shall constitute, and are hereby expressly made, a part of this
Indenture and, to the extent applicable, the Company, the Subsidiary Guarantors
and the Trustee, by their execution and delivery of this Indenture, expressly
agree to such terms and provisions and to be bound thereby.
Section 2.02. Execution and Authentication.
The Notes shall be executed on behalf of the Company by two
Officers of the Company or an Officer and an Assistant Secretary of the Company.
Such signature may be either manual or facsimile. The Company's seal shall be
impressed, affixed, imprinted or reproduced on the Notes and may be in facsimile
form.
If an Officer whose signature is on a Note no longer holds
that office at the time the Trustee authenticates the Note, the Note shall be
valid nevertheless.
A Note shall not be valid until the Trustee manually signs the
certificate of authentication on the Note. Such signature shall be conclusive
evidence that the Note has been authenticated under this Indenture.
The Trustee or an authenticating agent shall authenticate
Notes for original issue in the aggregate principal amount of $250,000,000 upon
a Company Request. The aggregate principal amount of Notes outstanding at any
time may not exceed such amount except as provided in Section 2.07 hereof. The
Notes shall be issuable only in registered form without coupons and only in
denominations of $1,000 and integral multiples thereof.
<PAGE> 36
-28-
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate Notes. An authenticating agent may
authenticate Notes whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same right as an Agent to deal with the
Company or an Affiliate.
Section 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency where Notes may
be presented for registration of transfer or for exchange ("Registrar"), an
office or agency located in the Borough of Manhattan, City of New York, State of
New York where Notes may be presented for payment ("Paying Agent") and an office
or agency where notices and demands to or upon the Company in respect of the
Notes and this Indenture may be served. The Registrar shall keep a register of
the Notes and of their transfer and exchange. The Company may have one or more
co-registrars and one or more additional paying agents. Neither the Company nor
any Affiliate may act as Paying Agent. The Company may change any Paying Agent,
Registrar or co-registrar without notice to any Noteholder.
The Company shall enter into an appropriate agency agreement
with any Registrar or Paying Agent not a party to this Indenture. The agreement
shall implement the provisions of this Indenture that relate to such Agent. The
Company shall notify the Trustee in writing of the name and address of any such
Agent. If the Company fails to maintain a Registrar or Paying Agent, or agent
for service of notices and demands, or fails to give the foregoing notice, the
Trustee shall act as such. The Company initially appoints the Trustee as
Registrar, Paying Agent and agent for service of notices and demands in
connection with the Notes.
Section 2.04. Paying Agent To Hold Assets in Trust.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that, subject to Articles 10 and 11, each Paying
Agent shall hold in trust for the benefit of the Holders or the Trustee all
assets held by the Paying Agent for the payment of principal of, or interest on,
the Notes (whether such assets have been distributed to it by the Company or any
other obligor on the Notes), and the Company and the Paying Agent shall notify
the Trustee in writing of any Default by the Company (or any other obligor on
the Notes) in making any such payment. The Company at any time may require a
Paying Agent to distribute all assets held by it to the Trustee and account for
any assets disbursed and the Trustee may at any
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time during the continuance of any Payment Default, upon written request to a
Paying Agent, require such Paying Agent to distribute all assets held by it to
the Trustee and to account for any assets distributed. Upon distribution to the
Trustee of all assets that shall have been delivered by the Company to the
Paying Agent, the Paying Agent shall have no further liability for such assets.
Section 2.05. Noteholder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Noteholders and shall otherwise comply with TIA Section 312(a). If
the Trustee is not the Registrar, the Company shall furnish to the Trustee as of
each Record Date and at least seven Business Days before each related Interest
Payment Date, and at such other times as the Trustee may request in writing, a
list in such form and as of such date as the Trustee may reasonably require of
the names and addresses of Noteholders.
Section 2.06. Transfer and Exchange.
Subject to Sections 2.14 and 2.15, when a Note is presented to
the Registrar with a request to register the transfer thereof, the Registrar
shall register the transfer as requested if the requirements of applicable law
are met and, when Notes are presented to the Registrar with a request to
exchange them for an equal principal amount of Notes of other authorized
denominations, the Registrar shall make the exchange as requested provided that
every Note presented or surrendered for registration of transfer or exchange
shall be duly endorsed, or be accompanied by a written instrument of transfer in
form satisfactory to the Company and the Registrar duly executed by the Holder
thereof or his attorney duly authorized in writing. To permit transfers and
exchanges, upon surrender of any Note for registration of transfer at the office
or agency maintained pursuant to Section 2.03 hereof, the Company shall execute
and the Trustee shall authenticate Notes (and the Subsidiary Guarantors shall
execute the guarantee thereon) at the Registrar's written request. Any exchange
or transfer shall be without charge, except that the Company may require payment
by the Holder of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation to a transfer or exchange, but this provision
shall not apply to any exchange pursuant to Sections 2.09, 3.06 or 8.05 hereof.
The Trustee shall not be required to register transfers of Notes or to exchange
Notes for a period of 15 days before selection of any Notes to be redeemed. The
Trustee shall not be required to exchange or register transfers of any Notes
called or being
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called for redemption in whole or in part, except the unredeemed portion of any
Note being redeemed in part.
Any Holder of the Global Note shall, by acceptance of such
Global Note, agree that transfers of the beneficial interests in such Global
Note may be effected only through a book entry system maintained by the Holder
of such Global Note (or its agent), and that ownership of a beneficial interest
in the Global Note shall be required to be reflected in a book entry.
Each Holder of a Note agrees to indemnify the Company and the
Trustee against any liability that may result from the transfer, exchange or
assignment of such Holder's Note in violation of any provision of this Indenture
and/or applicable United States federal or state securities law.
The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any transfer of any
interest in any Note (including any transfers between or among Depository
Participants or beneficial owners of interests in any Global Security) other
than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when expressly
required by the terms of, this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
Section 2.07. Replacement Notes.
If a mutilated Note is surrendered to the Trustee or if the
Holder of a Note presents evidence to the satisfaction of the Company and the
Trustee that the Note has been lost, destroyed or wrongfully taken, the Company
shall issue and the Trustee shall authenticate a replacement Note (and the
Guarantors shall execute a guarantee thereon) if the Trustee's requirements are
met. An indemnity bond must be supplied by such Holder that is sufficient in the
judgment of the Company and the Trustee to protect the Company, the Trustee or
any Agent from any loss which any of them may suffer if a Note is replaced. The
Company may charge such Holder for its reasonable, out-of-pocket expenses in
replacing a Note, including reasonable fees and expenses of counsel. Every
replacement Note is an additional obligation of the Company.
Section 2.08. Outstanding Notes.
Notes outstanding at any time are all Notes authenticated by
the Trustee except for those cancelled by it, those
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delivered to it for cancellation, and those described in this Section 2.08 as
not outstanding.
If a Note is replaced pursuant to Section 2.07 (other than a
mutilated Note surrendered for replacement), it ceases to be outstanding until
the Company and the Trustee receive proof satisfactory to each of them that the
replaced Note is held by a bona fide purchaser. A mutilated Note ceases to be
outstanding upon surrender of such Note and replacement thereof pursuant to
Section 2.07.
If a Paying Agent holds on a Redemption Date or Maturity Date
money sufficient to pay the principal of, premium, if any, and accrued interest
on Notes payable on that date and is not prohibited from paying such money to
the Holders thereof pursuant to the terms of this Indenture, then on and after
that date such Notes cease to be outstanding and interest on them ceases to
accrue.
Subject to Section 12.06, a Note does not cease to be
outstanding solely because the Company or an Affiliate holds the Note.
Section 2.09. Temporary Notes.
Until definitive Notes are ready for delivery, the Company may
prepare and the Trustee shall, upon receipt of a Company Request, authenticate
temporary Notes. Temporary Notes shall be substantially in the form, and shall
carry all rights, of definitive Notes but may have variations that the Company
considers appropriate for temporary Notes. Without unreasonable delay, the
Company shall prepare and the Trustee shall authenticate definitive Notes in
exchange for temporary Notes presented to it.
Section 2.10. Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for transfer, exchange or payment. The Trustee, or
at the direction of the Trustee, the Registrar or the Paying Agent, and no one
else, shall cancel and at the written request of the Company, shall dispose of
all Notes surrendered for transfer, exchange, payment or cancellation, provided,
however, that in no event shall the Trustee be required to destroy any such
Notes. If the Company or any Guarantor shall acquire any of the Notes, such
acquisition shall not operate as a redemption or satisfaction of the
Indebtedness represented by such Notes unless and
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until the same are surrendered to the Trustee for cancellation or pursuant to
this Section 2.10.
Section 2.11. Defaulted Interest.
If the Company defaults in a payment of interest on the Notes,
it shall pay the defaulted amounts, plus any interest payable on defaulted
amounts pursuant to Section 4.01 hereof, to the persons who are Noteholders on a
subsequent special record date, which date shall be the fifteenth day next
preceding the date fixed by the Company for the payment of defaulted interest or
the next succeeding Business Day if such date is not a Business Day. At least 15
days before the special record date, the Company shall mail or cause to be
mailed to each Noteholder, with a copy to the Trustee, a notice that states the
special record date, the payment date, and the amount of defaulted interest, and
interest payable on such defaulted interest, if any, to be paid.
Section 2.12. Deposit of Moneys.
Prior to 10:00 a.m., New York City time, on each Interest
Payment Date and on the Maturity Date, the Company shall have deposited with the
Paying Agent in immediately available funds money sufficient to make cash
payments, if any, due on such Interest Payment Date or on the Maturity Date, as
the case may be, in a timely manner which permits the Trustee to remit payment
to the Holders on such Interest Payment Date or on the Maturity Date, as the
case may be.
Section 2.13. CUSIP Number.
The Company in issuing the Notes may use one or more "CUSIP"
numbers, and if so, the Trustee shall use the CUSIP number(s) in notices of
redemption or exchange as a convenience to Holders, provided that any such
notice may state that no representation is made as to the correctness or
accuracy of the CUSIP number(s) printed in the notice or on the Notes, and that
reliance may be placed only on the other identification numbers printed on the
Notes.
Section 2.14. Book-Entry Provisions for Global Notes.
(a) Rule 144A Notes and Other Notes which may be held in
global form, other than Regulation S Notes, initially shall be represented by
one or more notes in registered, global form without interest coupons
(collectively, the "Restricted Global Note"). Regulation S Notes initially shall
be represented by one or more notes in registered, global form without
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interest coupons (collectively, the "Regulation S Global Note," and, together
with the Restricted Global Note, the "Global Notes"). The Global Notes initially
shall (i) be registered in the name of The Depository Trust Company ("DTC") or
the nominee of DTC, in each case for credit to an account of an Agent Member (as
defined below) (or, in the case of the Regulation S Global Notes, of Morgan
Guaranty Trust Company, as operator of the Euroclear System ("Euroclear") and
Cedel Bank, Societe Anonyme ("CEDEL")), (ii) be delivered to the Trustee as
custodian for DTC and (iii) bear legends as set forth in Exhibit D.
Members of, or direct or indirect participants in, DTC ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Note held by DTC, or the Trustee as its custodian, or under the Global Notes,
and DTC may be treated by the Company, the Trustee and any agent of the Company
or the Trustee as the absolute owner of the Global Note for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by
DTC or impair, as between DTC and its Agent Members, the operation of customary
practices governing the exercise of the rights of a Holder of any Note.
(b) Transfers of Global Notes shall be limited to transfer in
whole, but not in part, to DTC, its successors or their respective nominees.
Interests of beneficial owners in the Global Notes may be transferred or
exchanged for Physical Notes upon receipt by the Trustee of written instructions
from DTC or its nominee on behalf of any beneficial owner and in accordance with
the rules and procedures of DTC and the provisions of Section 2.15. In addition,
a Global Note shall be exchangeable for Physical Notes if (i) DTC (x) notifies
the Company that it is unwilling or unable to continue as depository for such
Global Note and the Company thereupon fails to appoint a successor depository or
(y) has ceased to be a clearing agency registered under the Exchange Act, (ii)
the Company, at its option, notifies the Trustee in writing that it elects to
cause the issuance of such Physical Notes or (iii) there shall have occurred and
be continuing a Default or an Event of Default with respect to the Notes. In all
cases, Physical Notes delivered in exchange for any Global Note or beneficial
interests therein shall be registered in the names, and issued in any approved
denominations, requested by or on behalf of DTC (in accordance with its
customary procedures).
(c) In connection with any transfer or exchange of a portion
of the beneficial interest in any Global Note to beneficial owners pursuant to
paragraph (b), the Registrar shall
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(if one or more Physical Notes are to be issued) reflect on its books and
records the date and a decrease in the principal amount of the Global Note in an
amount equal to the principal amount of the beneficial interest in the Global
Note to be transferred, and the Company shall execute, and the Trustee shall
upon receipt of a written order from the Company authenticate and make available
for delivery, one or more Physical Notes of like tenor and amount.
(d) In connection with the transfer of Global Notes as an
entirety to beneficial owners pursuant to paragraph (b), the Global Notes shall
be deemed to be surrendered to the Trustee for cancellation, and the Company
shall execute, and the Trustee shall authenticate and deliver or make available
for delivery, to each beneficial owner identified by the Depository in writing
in exchange for its beneficial interest in the Global Notes, an equal aggregate
principal amount of Physical Notes of authorized denominations.
(e) Any Physical Note constituting a Restricted Note delivered
in exchange for an interest in a Global Note pursuant to paragraph (b) shall,
except as otherwise provided by paragraphs (a)(i)(x) and (c) of Section 2.15,
bear the Private Placement Legend or, in the case of the Regulation S Global
Note, the legend set forth in Exhibit C, in each case, unless the Company
determines otherwise in compliance with applicable law.
(f) On or prior to the 40th-day after the later of the
commencement of the offering of the Notes represented by the Regulation S Global
Note and the issue date of such Notes (such period through and including such
40th day, the "Restricted Period"), a beneficial interest in a Regulation S
Global Note may be transferred to a Person who takes delivery in the form of an
interest in the corresponding Restricted Global Note only upon receipt by the
Trustee of a written certification from the transferor to the effect that such
transfer is being made (i)(a) to a Person whom the transferor reasonably
believes is a Qualified Institutional Buyer in a transaction meeting the
requirements of Rule 144A or (b) pursuant to another exemption from the
registration requirements under the Securities Act which is accompanied by an
opinion of counsel regarding the availability of such exemption and (ii) in
accordance with all applicable securities laws of any state of the United States
or any other jurisdiction.
(g) Beneficial interests in the Restricted Global Note may be
transferred to a Person who takes delivery in the form of an interest in the
Regulation S Global Note, whether before or after the expiration of the
Restricted Period, only
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if the transferor first delivers to the Trustee a written certificate to the
effect that such transfer is being made in accordance with Rule 903 or 904 of
Regulation S or Rule 144 (if available) and that, if such transfer occurs prior
to the expiration of the Restricted Period, the interest transferred will be
held immediately thereafter through Euroclear or CEDEL.
(h) Any beneficial interest in one of the Global Notes that is
transferred to a Person who takes delivery in the form of an interest in another
Global Note shall, upon transfer, cease to be an interest in such Global Note
and become an interest in such other Global Note and, accordingly, shall
thereafter be subject to all transfer restrictions and other procedures
applicable to beneficial interests in such other Global Note for as long as it
remains such an interest.
(i) The Holder of any Global Note may grant proxies and
otherwise authorize any Person, including Agent Members and Persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Notes.
Section 2.15. Special Transfer Provisions.
(a) Transfers to Non-QIB Institutional Accredited Investors
and Non-U.S. Persons. The following provisions shall apply with respect to the
registration of any proposed transfer of a Note constituting a Restricted Note
to any Institutional Accredited Investor which is not a QIB or to any Non-U.S.
Person:
(i) the Registrar shall register the transfer of any Note
constituting a Restricted Note, whether or not such Note bears the
Private Placement Legend, if (x) the requested transfer is after the
Issue Date plus two years or such other date as such Note shall be
freely transferable under Rule 144 as certified in an Officers'
Certificate or (y)(1) in the case of a transfer to an Institutional
Accredited Investor which is not a QIB (excluding Non-U.S. Persons),
the proposed transferee has delivered to the Registrar a certificate
substantially in the form of Exhibit E hereto or (2) in the case of a
transfer to a Non-U.S. Person (including a QIB), the proposed
transferor has delivered to the Registrar a certificate substantially
in the form of Exhibit F hereto; provided that in the case of a
transfer of a Note bearing the Private Placement Legend for a Note not
bearing the Private Placement Legend, the Registrar has received an
Officers' Certificate authorizing such transfer; and
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(ii) if the proposed transferor is an Agent Member holding a
beneficial interest in a Global Note, upon receipt by the Registrar of
(x) the certificate, if any, required by paragraph (i) above and (y)
instructions given in accordance with the Depositary's and the
Registrar's procedures,
whereupon the Registrar shall reflect on its books and records the date and (if
the transfer does not involve a transfer of outstanding Physical Notes) a
decrease or increase, as the case may be, in the principal amount of a Global
Note in an amount equal to the principal amount of the beneficial interest in a
Global Note to be transferred.
(b) Transfers to QIBs. The following provisions shall apply
with respect to the registration of any proposed registration of transfer of a
Note constituting a Restricted Note to a QIB (excluding transfers to Non-U.S.
Persons):
(i) the Registrar shall register the transfer if such transfer
is being made by a proposed transferor who has checked the box provided
for on such Holder's Note stating, or has otherwise advised the Company
and the Registrar in writing, that the sale has been made in compliance
with the provisions of Rule 144A to a transferee who has signed the
certification provided for on such Holder's Note stating, or has
otherwise advised the Company and the Registrar in writing, that it is
purchasing the Note for its own account or an account with respect to
which it exercises sole investment discretion and that it and any such
account is a QIB within the meaning of Rule 144A, and is aware that the
sale to it is being made in reliance on Rule 144A and acknowledges that
it has received such information regarding the Company as it has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon
its foregoing representations in order to claim the exemption from
registration provided by Rule 144A; and
(ii) if the proposed transferee is an Agent Member, and the
Notes to be transferred consist of Physical Notes which after transfer
are to be evidenced by an interest in the Global Note, upon receipt by
the Registrar of instructions given in accordance with the Depositary's
and the Registrar's procedures, the Registrar shall reflect on its
books and records the date and an increase in the principal amount of
the Global Note in an amount equal to the principal amount of the
Physical Notes to be transferred, and the Trustee shall cancel the
Physical Notes so transferred.
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(c) Private Placement Legend. Upon the registration of
transfer, exchange or replacement of Notes not bearing the Private Placement
Legend, the Registrar shall deliver Notes that do not bear the Private Placement
Legend. Upon the registration of transfer, exchange or replacement of Notes
bearing the Private Placement Legend, the Registrar shall deliver only Notes
that bear the Private Placement Legend unless (i) it has received the Officers'
Certificate required by paragraph (a)(i)(y) of this Section 2.15, (ii) there is
delivered to the Registrar an Opinion of Counsel reasonably satisfactory to the
Company and the Trustee to the effect that neither such legend nor the related
restrictions on transfer are required in order to maintain compliance with the
provisions of the Securities Act or (iii) such Note has been sold pursuant to an
effective registration statement under the Securities Act and the Registrar has
received an Officers' Certificate from the Company to such effect.
(d) General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in this
Indenture.
The Registrar shall retain for a period of two years copies of
all letters, notices and other written communications received pursuant to
Section 2.14 or this Section 2.15. The Company shall have the right to inspect
and make copies of all such letters, notices or other written communications at
any reasonable time upon the giving of reasonable notice to the Registrar.
Section 2.16. Computation of Interest.
Interest on the Notes shall be computed on the basis of a
360-day year of twelve 30-day months.
ARTICLE 3
REDEMPTION
Section 3.01. Notices to Trustee.
If the Company elects to redeem Notes pursuant to, and at the
redemption prices set forth in, Paragraph 5 of the Notes, it shall notify the
Trustee of the Redemption Date and the principal amount of Notes to be redeemed
at least 30 days (unless a shorter notice shall be satisfactory to the Trustee)
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but not more than 60 days before the Redemption Date. Any such notice may be
cancelled at any time prior to notice of such redemption being mailed to any
Holder and shall thereby be void and of no effect.
Section 3.02. Selection by Trustee of Notes To Be Redeemed.
If fewer than all of the Notes are to be redeemed, the Trustee
shall select the Notes to be redeemed pro rata, by lot or by any other method
that the Trustee considers fair and appropriate and, if such Notes are listed on
any securities exchange, by a method that complies with the requirements of such
exchange.
The Trustee shall make the selection from the Notes
outstanding and not previously called for redemption and shall promptly notify
the Company in writing of the Notes selected for redemption and, in the case of
any Note selected for partial redemption, the principal amount thereof to be
redeemed. Notes in denominations of $1,000 may be redeemed only in whole. The
Trustee may select for redemption portions (equal to $1,000 or integral
multiples thereof) of the principal amount of Notes that have denominations
larger than $1,000. Provisions of this Indenture that apply to Notes called for
redemption also apply to portions of Notes called for redemption.
Section 3.03. Notice of Redemption.
At least 30 days, and no more than 60 days, before a
Redemption Date, the Company shall mail, or cause to be mailed, a notice of
redemption by first-class mail to each Holder of Notes to be redeemed at his or
her last address as the same appears on the registry books maintained by the
Registrar pursuant to Section 2.03 hereof.
The notice shall identify the Notes to be redeemed (including
the CUSIP number(s) thereof) and shall state:
(1) the Redemption Date;
(2) the redemption price;
(3) if any Note is being redeemed in part, the portion of
the principal amount of such Note to be redeemed and that, after the
Redemption Date and upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion will be issued;
(4) the name and address of the Paying Agent;
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(5) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(6) that, unless (a) the Company defaults in making the
redemption payment or (b) such redemption payment is prohibited
pursuant to Article 10 or 11 hereof or otherwise, interest on the Notes
called for redemption ceases to accrue on and after the Redemption
Date, and the only remaining right of the Holders of such Notes is to
receive payment of the redemption price upon surrender to the Paying
Agent of the Notes redeemed;
(7) the paragraph of the Notes pursuant to which the Notes
called for redemption are being redeemed; and
(8) if fewer than all the Notes are to be redeemed, the
identification of the particular Notes (or portion thereof) to be
redeemed, as well as the aggregate principal amount of Notes to be
redeemed and the aggregate principal amount of Notes to be outstanding
after such partial redemption.
At the Company's written request delivered at least 45 days
prior to the Redemption Date, the Trustee shall give the notice of redemption in
the Company's name and at the Company's sole expense; provided, however, that
the Company shall have delivered to the Trustee, at least 30 days prior to the
Redemption Date, a Company Request requesting that the Trustee give such notice
and setting forth the information to be stated in such notice as provided in the
preceding paragraph.
Section 3.04. Effect of Notice of Redemption.
Once the notice of redemption described in Section 3.03 is
mailed, Notes called for redemption become due and payable on the Redemption
Date and at the redemption price, plus interest, if any, accrued to the
Redemption Date. Upon surrender to the Trustee or Paying Agent, such Notes shall
be paid at the redemption price, plus accrued interest, if any, to the
Redemption Date unless prohibited by Article 10 or 11, provided that if the
Redemption Date is after a regular interest payment record date and on or prior
to the Interest Payment Date, the accrued interest shall be payable to the
Holder of the redeemed Notes registered on the relevant record date.
Section 3.05. Deposit of Redemption Price.
On or prior to 10:00 A.M., New York City time, on each
Redemption Date, the Company shall deposit with the Paying Agent in immediately
available funds money sufficient to pay
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the redemption price of and accrued interest, if any, on all Notes to be
redeemed on that date other than Notes or portions thereof called for redemption
on that date which have been delivered by the Company to the Trustee for
cancellation.
On and after any Redemption Date, if money sufficient to pay
the redemption price of and accrued interest on Notes called for redemption
shall have been made available in accordance with the preceding paragraph, the
Notes called for redemption will cease to accrue interest and the only right of
the Holders of such Notes will be to receive payment of the redemption price of
and, subject to the first proviso in Section 3.04, accrued and unpaid interest
on such Notes to the Redemption Date. If any Note called for redemption shall
not be so paid, interest will be paid, from the Redemption Date until such
redemption payment is made, on the unpaid principal of the Note and any interest
not paid on such unpaid principal, in each case, at the rate and in the manner
provided in the Notes.
Section 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, upon the
Company's written request, the Trustee shall authenticate for a Holder, at the
expense of the Company, a new Note equal in principal amount to the unredeemed
portion of the Note surrendered.
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes.
The Company shall pay the principal of and interest on the
Notes on the dates and in the manner provided in the Notes and this Indenture.
An installment of principal or interest shall be considered paid on the date it
is due if the Trustee or Paying Agent holds, as of 10:00 A.M., New York City
time on that date money designated for and sufficient to pay such installment
and is not prohibited from paying such money to the Holders pursuant to the
terms of this Indenture.
The Company shall pay interest on overdue principal, and
overdue interest, to the extent lawful, at the rate specified in the Notes.
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Section 4.02. SEC Reports.
The Company will deliver to the Trustee within 15 days after
the filing of the same with the SEC, copies of the quarterly and annual reports
and of the information documents and other reports, if any, which the Company is
required to file with the SEC pursuant to Section 13 or 15(d) of the Securities
Exchange Act. The Company will also comply with the other provisions of TIA
Section 314(a).
Notwithstanding that the Company may not be subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company
will file with the SEC, to the extent permitted, and provide the Trustee and
Holders of Notes with such quarterly and annual reports and such information,
documents and other reports specified in Section 13 and 15(d) of the Exchange
Act. In such event, the Company shall also, upon request, provide to any Holder
of Notes or any prospective transferee of any such Holder any information
concerning the Company (including financial statements) necessary in order to
permit such Holder to sell or transfer Notes in compliance with Rule 144A under
the Securities Act; provided, however, that the Company shall not be required to
furnish such information in connection with any request made on or after the
date which is two years from the later of (i) the date such Note (or any
predecessor Note) was acquired from the Company or (ii) the date such Note (or
any predecessor Note) was last acquired from an "affiliate" of the Company
within the meaning of Rule 144 under the Securities Act.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Issuer's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
Section 4.03. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead (as a defense or
otherwise) or in any manner whatsoever claim or take the benefit or advantage
of, any stay or extension law or any usury law or other law which would prohibit
or forgive the Company from paying all or any portion of the principal of,
premium, if any, and/or interest on the Notes as contemplated herein, wherever
enacted, now or at any time hereafter in force, or which may affect the
covenants or the performance of
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this Indenture; and (to the extent that it may lawfully do so) the Company
hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
Section 4.04. Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 100 days
after the end of each fiscal year and on or before 50 days after the end of the
first, second and third quarters of each fiscal year, an Officers' Certificate
which complies with TIA Section 314(a)(4) stating that a review of the
activities of the Company and its Subsidiaries during such fiscal year or fiscal
quarter, as the case may be, has been made under the supervision of the signing
Officers with a view to determining whether each has kept, observed, performed
and fulfilled its obligations under this Indenture, and further stating, as to
each such Officer signing such certificate, that to the best of his or her
knowledge each has kept, observed, performed and fulfilled each and every
covenant contained in this Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions hereof (or, if a
Default or Event of Default shall have occurred, describing all or such Defaults
or Events of Default of which he or she may have knowledge and what action each
is taking or proposes to take with respect thereto) and that to the best of his
or her knowledge no event has occurred and remains in existence by reason of
which payments on account of the principal of or interest, if any, on the Notes
is prohibited or if such event has occurred, a description of the event and what
action each is taking or proposes to take with respect thereto.
(b) So long as not contrary to the then current
recommendations of the American Institute of Certified Public Accountants, the
year-end financial statements delivered pursuant to Section 4.02 above shall be
accompanied by a written statement of the Company's independent public
accountants (who shall be a firm of established national reputation) that in
making the examination necessary for certification of such financial statements
nothing has come to their attention which would lead them to believe that the
Company has violated any provisions of this Article 4 or Article 5 hereof of
this Indenture or, if any such violation has occurred, specifying the nature and
period of existence thereof, it being understood that such accountants shall not
be liable directly or indirectly for any failure to obtain knowledge of any such
violation.
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(c) (i) If any Default or Event of Default has occurred and is
continuing or (ii) if any Holder seeks to exercise any remedy hereunder with
respect to a claimed Default under this Indenture or the Notes, the Company
shall deliver to the Trustee an Officers' Certificate specifying such event,
notice or other action within five Business Days of its becoming aware of such
occurrence.
Section 4.05. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (i) all taxes, assessments
and governmental charges (including withholding taxes and any penalties,
interest and additions to taxes) levied or imposed upon it or any of its
Subsidiaries or properties of it or any of its Subsidiaries and (ii) all lawful
claims for labor, materials and supplies that, if unpaid, might by law become a
Lien upon the property of it or any of its Subsidiaries; provided, however, that
the Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim if the amount,
applicability or validity thereof is being contested in good faith by
appropriate proceedings and an adequate reserve has been established therefor to
the extent required by GAAP.
Section 4.06. Maintenance of Properties and Insurance.
(a) The Company shall cause all properties used or useful to
the conduct of its business or the business of any of its Subsidiaries to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in its
judgment may be necessary, so that the business carried on in connection
therewith may be properly and advantageously conducted at all times unless the
failure to so maintain such properties (together with all other such failures)
would not have a material adverse effect on the financial condition or results
of operations of the Company and its Subsidiaries, taken as a whole; provided,
however, that nothing in this Section 4.06 shall prevent the Company or any
Subsidiary from discontinuing the operation or maintenance of any of such
properties, or disposing of any of them, if such discontinuance or disposal is
in the good faith judgment of the Board of Directors of the Company or the
Subsidiary concerned, as the case may be, desirable in the conduct of the
business of the Company or such Subsidiary, as the case may be, and is not
disadvantageous in any material respect to the Holders.
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(b) The Company shall provide or cause to be provided, for
itself and each of its Subsidiaries, insurance (including appropriate
self-insurance) against loss or damage of the kinds that, in the reasonable,
good faith opinion of the Company are adequate and appropriate for the conduct
of the business of the Company and such Subsidiaries in a prudent manner, with
reputable insurers or with the government of the United States of America or an
agency or instrumentality thereof, in such amounts, with such deductibles, and
by such methods as shall be customary, in the good faith judgment of the
Company, for corporations similarly situated in the industry, unless the failure
to provide such insurance (together with all other such failures) would not have
a material adverse effect on the financial condition or results of operations of
the Company and its Subsidiaries, taken as a whole.
Section 4.07. Compliance with Laws.
The Company shall, and shall cause each of its Subsidiaries
to, comply with all applicable statutes, rules, regulations, orders and
restrictions of the United States of America, all states and municipalities
thereof, and of any governmental department, commission, board, regulatory
authority, bureau, agency and instrumentality of the foregoing, in respect of
the conduct of its businesses and the ownership of its properties, except for
such noncompliances as would not in the aggregate have a material adverse effect
on the business or financial condition of the Company and its Subsidiaries,
taken as a whole.
Section 4.08. Corporate Existence.
Subject to Article 5 hereof, the Company shall do or cause to
be done all things necessary to preserve and keep in full force and effect (i)
its corporate existence, and the corporate, partnership or other existence of
each Restricted Subsidiary, in accordance with the respective organizational
documents (as the same may be amended from time to time) of each Restricted
Subsidiary and the rights (charter and statutory), licenses and franchises of
the Company and its Restricted Subsidiaries; provided, however, that the Company
shall not be required to preserve any such right, license or franchise, or the
corporate, partnership or other existence of any of its Restricted Subsidiaries,
if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and its
Restricted Subsidiaries, taken as a whole, and that the loss thereof is not
adverse in any material respect to the Holders.
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Section 4.09. Maintenance of Office or Agency.
The Company shall maintain an office or agency where Notes may
be surrendered for registration of transfer or exchange or for presentation for
payment and where notices and demands to or upon the Company in respect of the
Notes and this Indenture may be served. The Company shall give prompt written
notice to the Trustee of the location, and any change in the location, of such
office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the address of the Trustee as set forth in Section 12.02.
The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations.
The Company shall give prompt written notice to the Trustee of such designation
or rescission and of any change in the location of any such other office or
agency.
The Company hereby initially designates the Corporate Trust
Office of the Trustee set forth in Section 12.02 as such office of the Company.
Section 4.10. Limitation on Additional Indebtedness.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary of the Company to, directly or indirectly, incur any Indebtedness
(including Acquired Indebtedness) other than Permitted Indebtedness.
(b) Notwithstanding the foregoing, the Company and its
Restricted Subsidiaries may incur Indebtedness (including Acquired
Indebtedness), if (i) after giving effect to the incurrence of such Indebtedness
and the receipt and application of the proceeds thereof, the Company's Fixed
Charge Coverage Ratio (determined on a pro forma basis for the last four fiscal
quarters of the Company for which financial statements are available at the date
of determination in accordance with the further provisions of this clause (b))
is greater than 2.0 to 1 and (ii) no Default or Event of Default shall have
occurred and be continuing at the time or as a consequence of the incurrence of
such Indebtedness. For purposes of computing the Fixed Charge Coverage Ratio,
(A) if the Indebtedness which is the subject of a determination under this
provision is Acquired Indebtedness, or Indebtedness incurred in connection with
the si-
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multaneous acquisition (by way of merger, consolidation or otherwise) of any
Person, business, property or assets (an "Acquisition"), then such ratio shall
be determined by giving effect to (on a pro forma basis, as if the transaction
had occurred at the beginning of the four-quarter period used to make such
calculation) both the incurrence or assumption of such Acquired Indebtedness or
such other Indebtedness and the inclusion in the Company's EBITDA of the EBITDA
of the acquired Person, business, property or assets, (B) if any Indebtedness
outstanding or to be incurred (x) bears a floating rate of interest, the
interest expense on such Indebtedness shall be calculated as if the rate in
effect on the date of determination had been the applicable rate for the entire
period (taking into account on a pro forma basis any Interest Rate Agreement
applicable to such Indebtedness if such Interest Rate Agreement has a remaining
term as at the date of determination in excess of 12 months), (y) bears, at the
option of the Company or a Restricted Subsidiary, a fixed or floating rate of
interest, the interest expense on such Indebtedness shall be computed by
applying, at the option of the Company or such Restricted Subsidiary, either a
fixed or floating rate and (z) was incurred under a revolving credit facility,
the interest expense on such Indebtedness shall be computed based upon the
average daily balance of such Indebtedness during the applicable period, (C) for
any quarter included in the calculation of such ratio prior to the date that any
Asset Sale was consummated, or that any Indebtedness was incurred, or that any
Acquisition was effected, by the Company or any of its Subsidiaries, such
calculation shall be made on a pro forma basis, giving effect to each Asset
Sale, incurrence of Indebtedness or Acquisition, as the case may be, and the use
of any proceeds therefrom, as if the same had occurred at the beginning of the
four quarter period used to make such calculation, and (D) the Fixed Charge
Coverage Ratio shall not take into account Permitted Indebtedness that is
incurred at the same time as Indebtedness under this paragraph.
Section 4.11. Limitation on Foreign Indebtedness.
(a) The Company shall not permit any Restricted Subsidiary of
the Company which is not a Guarantor to, directly or indirectly, incur any
Indebtedness (including Acquired Indebtedness) other than Permitted Indebtedness
set forth in clauses (i) through (x) and (xii) of the definition thereof unless
after giving effect to the incurrence of such Indebtedness and the receipt of
the application of the proceeds thereof, (A) if, as a result of the incurrence
of such Indebtedness such Restricted Subsidiary will become subject to any
restriction or limitation on the payment of dividends or the making of other
distributions, (I) the ratio of Foreign EBITDA to Foreign In-
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terest Expense (determined on a pro forma basis for the last four fiscal
quarters for which financial statements are available at the date of
determination) is greater than 2.5 to 1 and (II) the ratio of the Company's
Adjusted EBITDA to Consolidated Fixed Charges (determined on a pro forma basis
for the last four fiscal quarters of the Company for which financial statements
are available at the date of determination) is greater than 2.0 to 1 and (B) in
any other case, the Company's Fixed Charge Coverage Ratio (determined on a pro
forma basis for the last four fiscal quarters of the Company for which financial
statements are available at the date of determination) is greater than 2.0 to 1
and (iii) no Default or Event of Default shall have occurred and be continuing
at the time or as a consequence of the incurrence of such Indebtedness.
(b) In the event that any Indebtedness incurred pursuant to
clause (B) of the foregoing paragraph (a) is proposed to be amended, modified or
otherwise supplemented such that the payment of dividends or the making of other
distributions becomes subject in any manner to any restriction or limitation,
the Company will not permit the Restricted Subsidiary to so amend, modify or
supplement such Indebtedness unless such Indebtedness could be incurred pursuant
to the terms of clause (A) of the foregoing paragraph (a).
(c) All calculations required under paragraphs (a) and (b)
hereof shall be made in a manner consistent with the calculations required under
paragraph (b) of Section 4.10.
Section 4.12. Limitation on Common Stock of Subsidiaries.
The Company shall not (i) sell, pledge, hypothecate or
otherwise convey or dispose of any Common Stock of a Restricted Subsidiary
(other than under or in respect of the Amended Credit Agreement or under the
terms of any Designated Senior Indebtedness and other than pledges of the
Capital Stock of Restricted Subsidiaries that are not Guarantors securing
Indebtedness of such Restricted Subsidiaries that are not Guarantors) or (ii)
permit any of its Subsidiaries to issue any Common Stock, other than to the
Company or a Wholly-Owned Subsidiary of the Company. The foregoing restrictions
shall not apply to an Asset Sale made in compliance with Section 4.15.
Section 4.13. Limitation on Restricted Payments.
The Company shall not make, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, make, any Restricted
Payment, unless:
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(a) no Default or Event of Default shall have occurred and be
continuing at the time of or immediately after giving effect to such
Restricted Payment;
(b) immediately after giving pro forma effect to such
Restricted Payment, the Company could incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) under Section 4.10;
and
(c) immediately after giving effect to such Restricted
Payment, the aggregate of all Restricted Payments declared or made
after July 2, 1996 does not exceed the sum of (1) $5,000,000, plus (2)
50% of the Company's Consolidated Net Income (or in the event that such
Consolidated Net Income shall be a deficit, minus 100% of such deficit)
after July 2, 1996, plus (3) 100% of the aggregate Net Cash Proceeds
from the issue or sale, after July 2, 1996, of Capital Stock (other
than Disqualified Capital Stock or Capital Stock of the Company issued
to any Subsidiary of the Company) of the Company or any Indebtedness or
other securities of the Company convertible into or exercisable or
exchangeable for Capital Stock (other than Disqualified Capital Stock)
of the Company which has been so converted or exercised or exchanged,
as the case may be. For purposes of determining under this clause (c)
the amount expended for Restricted Payments, cash distributed shall be
valued at the face amount thereof and property other than cash shall be
valued at its fair market value.
The provisions of this Section 4.13 shall not prohibit (i) the
payment of any distribution within 60 days after the date of declaration
thereof, if at such date of declaration such payment would comply with the
provisions of this Indenture, (ii) the retirement of any shares of Capital Stock
of the Company or Indebtedness which is subordinated in right of payment to the
Notes by conversion into, or by or in exchange for, shares of Capital Stock
(other than Disqualified Capital Stock), or out of, the Net Cash Proceeds of the
substantially concurrent sale (other than to a Subsidiary of the Company) of
other shares of Capital Stock of the Company (other than Disqualified Capital
Stock), (iii) the redemption, repayment or retirement of Indebtedness of the
Company subordinated in right of payment to the Notes in exchange for, by
conversion into, or out of the Net Cash Proceeds of, a substantially concurrent
sale or incurrence of Indebtedness (other than any Indebtedness owed to a
Subsidiary) of the Company that is contractually subordinated in right of
payment to the Notes to at least the same extent as the Indebtedness being
redeemed, repaid or retired, (iv) the retirement of any shares of Disqualified
Capital Stock by conversion into, or by exchange for, shares of Disqualified
<PAGE> 57
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Capital Stock, or out of the Net Cash Proceeds of the substantially concurrent
issuance or sale (other than to a Subsidiary of the Company) of other shares of
Disqualified Capital Stock, or (v) the making of Investments in Unrestricted
Subsidiaries and joint ventures, provided that the Net Investment therein made
since July 2, 1996 shall not exceed an aggregate of $60,000,000 or (vi) the
making of Investments funded with the transfer of excess fixed assets no longer
necessary in the conduct of the business of the Company and its Subsidiaries in
an aggregate amount not to exceed $40,000,000; provided, however, that in
calculating the aggregate amount of Restricted Payments made subsequent to July
2, 1996, the amount of Net Investments made pursuant to clauses (v) and (vi)
shall be included in the calculation.
Not later than the date of making any Restricted Payment, the
Company shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by this Section 4.13 were computed, which calculations may
be based upon the Company's latest available financial statements, and that no
Default or Event of Default exists and is continuing and no Default or Event of
Default will occur immediately after giving effect to any Restricted Payments.
Section 4.14. Limitation on Other Senior Subordinated Debt.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, incur, contingently or
otherwise, any Indebtedness (other than the Notes and the Guarantees, as the
case may be) that is both (i) subordinate in right of payment to any Senior
Indebtedness of the Company or its Restricted Subsidiaries, as the case may be,
and (ii) senior in right of payment to the Notes and the Guarantees, as the case
may be. For purposes of this Section 4.14, Indebtedness is deemed to be senior
in right of payment to the Notes and the Guarantees, as the case may be, if it
is not explicitly subordinate in right of payment to Senior Indebtedness at
least to the same extent as the Notes and the Guarantees, as the case may be,
are subordinate to Senior Indebtedness.
Section 4.15. Limitation on Certain Asset Sales.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company or
its Restricted Subsidiaries, as the case may be, receives consideration at the
time of such sale or other disposition at least equal to the fair market value
thereof (as determined in good faith by the Company's Board of
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Directors, and evidenced by a Board Resolution); (ii) not less than 75% of the
consideration received by the Company or its Subsidiaries, as the case may be,
is in the form of cash or Temporary Cash Investments other than in the case
where the Company or a Restricted Subsidiary is exchanging assets held by the
Company or such Restricted Subsidiary for assets held by another Person;
provided that any Investment received in such exchange would be permitted under
clause (B) below; and (iii) the Asset Sale Proceeds received by the Company or
such Restricted Subsidiary are applied (A) first, to the extent the Company
elects, or is required, to prepay, repay or purchase any then existing Senior
Indebtedness of the Company or any Restricted Subsidiary within 180 days
following the receipt of the Asset Sale Proceeds from any Asset Sale, provided
that any such repayment shall result in a permanent reduction of the
commitments, if any, thereunder in an amount equal to the principal amount so
repaid; (B) second, to repurchase the Existing Notes within 270 days following
the receipt of the Asset Sale Proceeds from any Asset Sale, tendered pursuant to
the offer to repurchase required under the terms of the Existing Indentures, to
the extent such repurchase is required prior to the Notes under the terms of the
Existing Indentures; (C) third, to the extent of the balance of Asset Sale
Proceeds after application as described in clauses (A) and (B) above, to the
extent the Company elects, to an investment in assets used or useful in
businesses similar or reasonably related to the business of the Company or
Restricted Subsidiary as conducted on the Issue Date (either directly or
indirectly through the purchase of Capital Stock or other securities of a Person
holding such assets), provided that such investment occurs or the Company or a
Restricted Subsidiary enters into contractual commitments to make such
investment, subject only to customary conditions (other than the obtaining of
financing), on or prior to the 181st day following receipt of such Asset Sale
Proceeds (the "Reinvestment Date") and Asset Sale Proceeds contractually
committed are so applied within 270 days following the receipt of such Asset
Sale Proceeds; and (D) fourth, if on the Reinvestment Date with respect to any
Asset Sale, the Available Asset Sale Proceeds exceed $25,000,000, the Company
shall apply an amount equal to such Available Asset Sale Proceeds to an offer to
repurchase the Notes and any other senior subordinated securities of the Company
then outstanding (other than the Existing Notes that were the subject of an
offer to purchase pursuant to clause (B) above), pro rata, at a purchase price
in cash equal to 100% of the principal amount thereof plus accrued and unpaid
interest, if any, to the date of repurchase (an "Excess Proceeds Offer"). If an
Excess Proceeds Offer is not fully subscribed, the Company may retain the
portion of the Available Asset Sale Proceeds not required to repurchase Notes.
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(b) If the Company is required to make an Excess Proceeds
Offer, the Company shall mail, within 30 days following the Reinvestment Date, a
notice to the Holders with a copy to the Trustee which shall include, among
other things, the instructions, determined by the Company, that each Holder must
follow in order to have such Notes repurchased and the calculations used in
determining the amount of Available Asset Sale Proceeds to be applied to the
repurchase of such Notes. The notice, which shall govern the terms of the Excess
Proceeds Offer, shall also state:
(1) that the Excess Proceeds Offer is being made pursuant to
this Section 4.15 and that the Excess Proceeds Offer shall remain open
for a period of 20 Business Days following its commencement or such
longer period as may be required by law (the "Offer Period");
(2) that such Holders have the right to require the Company to
apply the Available Asset Sale Proceeds to repurchase such Notes and
any other senior subordinated securities of the Company then
outstanding (other than the Existing Notes that were the subject of an
offer to purchase pursuant to clause (B) above), pro rata, at a
purchase price in cash equal to 100% of the principal amount thereof
plus accrued and unpaid interest, if any, to the date of purchase;
(3) the purchase date, which shall be no earlier than 30 days
and not later than 60 days from the date such notice is mailed (the
"Purchase Date");
(4) that any Note not tendered or accepted for payment will
continue to accrue interest;
(5) that any Note accepted for payment pursuant to the Excess
Proceeds Offer shall cease to accrue interest on and after the Purchase
Date;
(6) that Holders electing to have a Note purchased pursuant to
any Excess Proceeds Offer will be required to surrender the Note, with
the form entitled "Option of Holder to Elect Purchase" on the reverse
of the Note completed, to the Company, a depositary, if appointed by
the Company, or a Paying Agent at the address specified in the notice
at least three Business Days before the Purchase Date;
(7) that Holders will be entitled to withdraw their election
if the Company, Depositary or Paying Agent, as the case may be,
receives, not later than the expiration
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of the Offer Period, a facsimile transmission or letter setting forth
the name of the Holder, the principal amount of the Note the Holder
delivered for purchase and a statement that such Holder is withdrawing
his election to have the Note purchased;
(8) that, if the aggregate principal amount of Notes
surrendered by Holders exceeds the Available Asset Sale Proceeds, the
Company shall select the Notes to be purchased on a pro rata basis
(with such adjustments as may be deemed appropriate by the Company so
that only Notes in denominations of $1,000, or integral multiples
thereof, shall be purchased); and
(9) that Holders whose Notes were purchased only in part will
be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered.
On or before the Purchase Date, the Company shall, to the
extent lawful, accept for payment, on a pro rata basis to the extent necessary,
Notes and any other senior subordinated securities of the Company (except for
the Existing Notes), or portions thereof, tendered pursuant to the Excess
Proceeds Offer, deposit with the Paying Agent U.S. legal tender sufficient to
pay the purchase price plus accrued interest, if any, on the Notes and
securities to be purchased and deliver to the Trustee an Officers' Certificate
stating that such Notes, securities or portions thereof were accepted for
payment by the Company in accordance with the terms of this Section 4.15. The
Paying Agent shall promptly (but in any case not later than three days after the
Purchase Date) mail or deliver to each tendering Holder an amount equal to the
purchase price of the Note tendered by such Holder and accepted by the Company
for purchase, and the Company shall promptly issue a new Note, and the Trustee,
upon the receipt of a written request from the Company, shall authenticate and
mail or make available for delivery such new Note to such Holder equal in
principal amount to any unpurchased portion of the Note surrendered. Any Note
not so accepted shall be promptly mailed or delivered by the Company to the
Holder thereof. The Company will publicly announce the results of the Excess
Proceeds Offer on the Purchase Date. If an Excess Proceeds Offer is not fully
subscribed, the Company may retain that portion of the Available Asset Sale
Proceeds not required to repurchase Notes or other senior subordinated
securities.
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Section 4.16. Limitation on Transactions with Affiliates.
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, enter into or suffer to
exist any transaction or series of related transactions (including, without
limitation, the sale, purchase, exchange or lease of assets, property or
services) with any Affiliate (including entities in which the Company or any of
its Restricted Subsidiaries own a minority interest) or holder of 10% or more of
the Company's Common Stock (an "Affiliate Transaction") or extend, renew, waive
or otherwise modify the terms of any Affiliate Transaction entered into prior to
the Issue Date unless (i) such Affiliate Transaction is between or among the
Company and its Wholly-Owned Subsidiaries; or (ii) the terms of such Affiliate
Transaction are fair and reasonable to the Company or such Restricted
Subsidiary, as the case may be, and the terms of such Affiliate Transaction are
at least as favorable as the terms which could be obtained by the Company or
such Restricted Subsidiary, as the case may be, in a comparable transaction made
on an arm's-length basis between unaffiliated parties. In any Affiliate
Transaction involving an amount or having a value in excess of $2,000,000 which
is not permitted under clause (i) above, the Company must obtain a resolution of
the Board of Directors certifying that such Affiliate Transaction complies with
clause (ii) above. In transactions with a value in excess of $25,000,000 which
are not permitted under clause (i) above, the Company or such Restricted
Subsidiary must obtain a written opinion as to the fairness of such a
transaction from an independent investment banking firm.
(b) The foregoing provisions of this Section 4.16 will not
apply to (i) any Restricted Payment that is not prohibited by Section 4.13, (ii)
reasonable and customary fees paid by the Company or its Restricted Subsidiaries
to their respective directors or (iii) customary investment banking,
underwriting, placement agent or financial advisor fees paid in connection with
services rendered to the Company or its Subsidiaries.
Section 4.17. Limitations on Liens.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, create, incur or otherwise cause or suffer to exist
or become effective any Liens of any kind upon any Property of the Company or
any Restricted Subsidiary, now owned or hereafter acquired which secures
Indebtedness pari passu with or subordinated to the Notes unless (i) if such
Lien secures Indebtedness which is pari passu with the
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Notes, then the Notes are secured on an equal and ratable basis with the
obligations so secured until such time as such obligation is no longer secured
by a Lien or (ii) if such Lien secures Indebtedness which is subordinated to the
Notes, any such Lien shall be subordinated to a Lien granted to the Holders of
the Notes in the same collateral as that securing such Lien to the same extent
as such subordinated Indebtedness is subordinated to the Notes.
Section 4.18. Limitation on Creation of Subsidiaries.
The Company shall not create or acquire, nor permit any of its
Restricted Subsidiaries to create or acquire, any Subsidiary other than (i) a
Restricted Subsidiary existing as of the date of this Indenture, (ii) a
Restricted Subsidiary conducting a business similar or reasonably related to the
business of the Company and its Subsidiaries as conducted on the Issue Date, or
(iii) an Unrestricted Subsidiary; provided, however, that each Restricted
Subsidiary which is a Domestic Subsidiary acquired or created pursuant to clause
(ii) shall have executed a Guarantee, satisfactory in form and substance to the
Trustee (and with such documentation relating thereto as the Trustee shall
require, including, without limitation, a supplement or amendment to this
Indenture and opinions of counsel as to the enforceability of such Guarantee),
pursuant to which such Restricted Subsidiary shall become a Guarantor. Neither
the Company nor any of the Guarantors will transfer any assets to a Domestic
Restricted Subsidiary which is not a Guarantor unless such Restricted Subsidiary
simultaneously with such transfer executes a Guarantee satisfactory in form and
substance to the Trustee (together with the documentation referred to in the
preceding sentence) pursuant to which such Restricted Subsidiary shall become a
Guarantor.
Section 4.19. Payments for Consent.
Neither the Company nor any of its Subsidiaries shall,
directly or indirectly, pay or cause to be paid any consideration, whether by
way of interest, fee or otherwise, to any Holder of any Notes for or as an
inducement to any consent, waiver or amendment of any of the terms or provisions
of this Indenture or the Notes unless such consideration is offered to be paid
or agreed to be paid to all Holders of the Notes which so consent, waive or
agree to amend in the time frame set forth in solicitation documents relating to
such consent, waiver or agreement.
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Section 4.20. Change of Control.
(a) Within 20 days of the occurrence of a Change of Control,
the Company shall notify the Trustee in writing of such occurrence and shall
make an offer to purchase (the "Change of Control Offer") the outstanding Notes
at a purchase price equal to 101% of the principal amount thereof plus any
accrued and unpaid interest thereon to the Change of Control Payment Date (such
purchase price being hereinafter referred to as the "Change of Control Purchase
Price") in accordance with the procedures set forth in this Section 4.20.
(b) Within 20 days of the occurrence of a Change of Control,
the Company also shall (i) cause a notice of the Change of Control Offer to be
sent at least once to the Dow Jones News Service or similar business news
service in the United States and (ii) send by first-class mail, postage prepaid,
to the Trustee and to each Holder of the Notes, at the address appearing in the
register maintained by the Registrar of the Notes, a notice stating:
(i) that the Change of Control Offer is being made pursuant to
this Section 4.20 and that all Notes tendered will be accepted for
payment, and otherwise subject to the terms and conditions set forth
herein;
(ii) the Change of Control Purchase Price and the purchase
date (which shall be a Business Day no earlier than 20 business days
from the date such notice is mailed (the "Change of Control Payment
Date"));
(iii) that any Note not tendered will continue to accrue
interest;
(iv) that, unless the Company defaults in the payment of the
Change of Control Purchase Price, any Notes accepted for payment
pursuant to the Change of Control Offer shall cease to accrue interest
after the Change of Control Payment Date;
(v) that Holders accepting the offer to have their Notes
purchased pursuant to a Change of Control Offer will be required to
surrender the Notes, with the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Note completed, to the Paying Agent at
the address specified in the notice prior to the close of business on
the Business Day preceding the Change of Control Payment Date;
(vi) that Holders will be entitled to withdraw their
acceptance if the Paying Agent receives, not later than
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the close of business on the third Business Day preceding the Change of
Control Payment Date, a facsimile transmission or letter setting forth
the name of the Holder, the principal amount of the Notes delivered for
purchase, and a statement that such Holder is withdrawing his election
to have such Notes purchased;
(vii) that Holders whose Notes are being purchased only in
part will be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered, provided that each Note
purchased and each such new Note issued shall be in an original
principal amount in denominations of $1,000 and integral multiples
thereof;
(viii) any other procedures that a Holder must follow to
accept a Change of Control Offer or effect withdrawal of such
acceptance; and
(ix) the name and address of the Paying Agent.
On the Change of Control Payment Date, the Company shall, to
the extent lawful, (i) accept for payment Notes or portions thereof tendered
pursuant to the Change of Control Offer, (ii) deposit with the Paying Agent
money sufficient to pay the purchase price of all Notes or portions thereof so
tendered and (iii) deliver or cause to be delivered to the Trustee Notes so
accepted together with an Officers' Certificate stating the Notes or portions
thereof tendered to the Company. The Paying Agent shall promptly mail to each
Holder of Notes so accepted payment in an amount equal to the purchase price for
such Notes, and the Company shall execute and issue, and the Trustee shall, upon
the receipt of a written request from the Company, promptly authenticate and
mail to such Holder, a new Note equal in principal amount to any unpurchased
portion of the Notes surrendered; provided that each such new Note shall be
issued in an original principal amount in denominations of $1,000 and integral
multiples thereof.
(c) If the Amended Credit Agreement is in effect, or any
amounts are owing thereunder or in respect thereof, at the time of the
occurrence of a Change of Control, prior to the mailing of the notice to Holders
described in the preceding paragraph (b), but in any event within 30 days
following any Change of Control, the Company covenants to (A) repay in full all
obligations under or in respect of the Amended Credit Agreement or offer to
repay in full all obligations under or in respect of the Amended Credit
Agreement and repay the obligations under or in respect of the Amended Credit
Agreement of each lender who has accepted such offer or (B) obtain the requisite
consent under the Amended Credit Agreement to permit the
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repurchase of the Notes as described above. The Company must first comply with
the covenant described in the preceding sentence before it shall be required to
purchase Notes in the event of a Change of Control; provided that the Company's
failure to comply with the covenant described in the preceding sentence
constitutes an Event of Default described in Section 6.01(3) if not cured within
60 days after the notice required by that section.
(d) (i) If the Company or any Subsidiary thereof has issued
any outstanding (A) Indebtedness that is subordinated in right of payment to the
Notes or (B) Preferred Stock, and the Company or such Subsidiary is required to
make a Change of Control Offer or to make a distribution with respect to such
subordinated Indebtedness or Preferred Stock in the event of a Change of
Control, the Company shall not consummate any such offer or distribution with
respect to such subordinated Indebtedness or Preferred Stock until such time as
the Company shall have paid the Change of Control Purchase Price in full to the
Holders of Notes that have accepted the Company's Change of Control Offer and
shall otherwise have consummated the Change of Control Offer made to Holders of
the Notes and (ii) the Company will not issue Indebtedness that is subordinated
in right of payment to the Notes or Preferred Stock with change of control
provisions requiring the payment of such Indebtedness or Preferred Stock prior
to the payment of the Notes in the event of a Change of Control under this
Indenture.
In the event that a Change of Control occurs and the Holders
of Notes exercise their right to require the Company to purchase Notes, if such
purchase constitutes a "tender offer" for purposes of Rule 14e-1 under the
Exchange Act at that time, the Company will comply with the requirements of Rule
14e-1 as then in effect with respect to such repurchase.
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.01. Limitation on Consolidation, Merger and Sale of Assets.
(a) The Company shall not and shall not permit any Guarantor
to consolidate with, merge with or into, or transfer all or substantially all of
its assets (as an entirety or substantially as an entirety in one transaction or
a series of related transactions), to any Person unless: (i) the Company or the
Guarantor, as the case may be, shall be the continuing Person, or the Person (if
other than the Company or the Guarantor)
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formed by such consolidation or into which the Company or the Guarantor, as the
case may be, is merged or to which the properties and assets of the Company or
the Guarantor, as the case may be, are transferred shall be a corporation
organized and existing under the laws of the United States or any State thereof
or the District of Columbia and shall expressly assume, by a supplemental
indenture, executed and delivered to the Trustee, in form satisfactory to the
Trustee, all of the obligations of the Company or the Guarantor, as the case may
be, under the Notes and this Indenture, and the obligations under this Indenture
shall remain in full force and effect; (ii) immediately before and immediately
after giving effect to such transaction, no Default or Event of Default shall
have occurred and be continuing; and (iii) immediately after giving effect to
such transaction on a pro forma basis the Company or such Person could incur at
least $1.00 additional Indebtedness (other than Permitted Indebtedness) pursuant
to Section 4.10 hereof, provided that a Person that is a Guarantor may merge
into the Company or another Person that is a Guarantor without complying with
this clause (iii).
(b) In connection with any consolidation, merger or transfer
of assets contemplated by this Section 5.01, the Company shall deliver, or cause
to be delivered, to the Trustee, in form and substance reasonably satisfactory
to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, merger or transfer and the supplemental indenture in
respect thereto comply with this Section 5.01 and that all conditions precedent
herein provided for relating to such transaction or transactions have been
complied with.
Section 5.02. Successor Person Substituted.
Upon any consolidation or merger, or any transfer of all or
substantially all of the assets of the Company or any Guarantor in accordance
with Section 5.01 above, the successor corporation formed by such consolidation
or into which the Company is merged or to which such transfer is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company or such Guarantor under this Indenture with the same effect as if
such successor corporation had been named as the Company or such Guarantor
herein, and thereafter the predecessor corporation shall be relieved of all
obligations and covenants under this Indenture and the Notes.
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ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
An "Event of Default" occurs if
(1) there is a default in the payment of any principal of, or
premium, if any, on the Notes when the same becomes due and payable at
maturity, upon acceleration, redemption or otherwise, whether or not
such payment is prohibited by the provisions of Article 11 hereof;
(2) there is a default in the payment of any interest on any
Note when the same becomes due and payable and the Default continues
for a period of 30 days, whether or not such payment is prohibited by
the provisions of Article 11 hereof;
(3) the Company or any Guarantor defaults in the observance or
performance of any other covenant in the Notes or this Indenture for 60
days after written notice from the Trustee or the Holders of not less
than 25% in the aggregate principal amount of the Notes then
outstanding;
(4) there is a default in the payment at final maturity of
principal in an aggregate amount of $10,000,000 or more with respect to
any Indebtedness of the Company or any Restricted Subsidiary thereof
which default shall not be cured, waived or postponed pursuant to an
agreement with the holders of such Indebtedness within 60 days after
written notice, or the acceleration of any such Indebtedness
aggregating $10,000,000 or more which acceleration shall not be
rescinded or annulled within 20 days after written notice to the
Company of such Default by the Trustee or any Holder;
(5) a court of competent jurisdiction enters a final judgment
or judgments which can no longer be appealed for the payment of money
in excess of $10,000,000 against the Company or any Restricted
Subsidiary thereof and such judgment remains undischarged, for a period
of 60 consecutive days during which a stay of enforcement of such
judgment shall not be in effect;
(6) the Company or any Restricted Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
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(A) commences a voluntary case,
(B) consents to the entry of an order for relief against
it in an involuntary case,
(C) consents to the appointment of a Custodian of it or
for all or substantially all of its property,
(D) makes a general assignment for the benefit of its
creditors, or
(E) generally is not paying its debts as they become due;
or
(7) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any Restricted
Subsidiary in an involuntary case,
(B) appoints a Custodian of the Company or any Restricted
Subsidiary or for all or substantially all of the property of
the Company or any Restricted Subsidiary, or
(C) orders the liquidation of the Company or any
Restricted Subsidiary,
and the order or decree remains unstayed and in effect for 60
days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any
similar Federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
The Trustee may withhold notice to the Holders of the Notes of
any Default (except in payment of principal or premium, if any, or interest on
the Notes) if the Trustee considers it to be in the best interest of the Holders
of the Notes to do so.
Section 6.02. Acceleration.
If an Event of Default (other than an Event of Default arising
under Section 6.01(6) or (7) with respect to the Company) occurs and is
continuing, the Trustee by notice to the Company, or the Holders of not less
than 25% in aggregate principal amount of the Notes then outstanding may by
written no-
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tice to the Company and the Trustee declare to be immediately due and payable
the entire principal amount of all the Notes then outstanding plus accrued but
unpaid interest to the date of acceleration and (i) such amounts shall become
immediately due and payable or (ii) if there are any amounts outstanding under
or in respect of the Amended Credit Agreement, such amounts shall become due and
payable upon the first to occur of an acceleration under or in respect of the
Amended Credit Agreement or five Business Days after receipt by the Company and
the Representative of notice of the acceleration of the Notes; provided,
however, that after such acceleration but before a judgment or decree based on
such acceleration is obtained by the Trustee, the Holders of a majority in
aggregate principal amount of the outstanding Notes may rescind and annul such
acceleration and its consequences if (i) all existing Events of Default, other
than the nonpayment of accelerated principal, premium, if any, or interest that
has become due solely because of the acceleration, have been cured or waived,
(ii) to the extent the payment of such interest is lawful, interest on overdue
installments of interest and overdue principal, which has become due otherwise
than by such declaration of acceleration, has been paid and (iii) if the
rescission would not conflict with any judgment or decree. No such rescission
shall affect any subsequent Default or impair any right consequent thereto. In
case an Event of Default specified in Section 6.01(6) or (7) with respect to the
Company occurs, such principal, premium, if any, and interest amount with
respect to all of the Notes shall be due and payable immediately without any
declaration or other act on the part of the Trustee or the Holders of the Notes.
Section 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of, or premium, if any, and interest on the Notes or to
enforce the performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Noteholder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
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Section 6.04. Waiver of Past Defaults and Events of Default.
Subject to Sections 6.02, 6.07 and 8.02 hereof, the Holders of
a majority in principal amount of the Notes then outstanding have the right to
waive any existing Default or Event of Default or compliance with any provision
of this Indenture or the Notes. Upon any such waiver, such Default shall cease
to exist, and any Event of Default arising therefrom shall be deemed to have
been cured for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other Default or Event of Default or impair any right
consequent thereto.
Section 6.05. Control by Majority.
The Holders of a majority in principal amount of the Notes
then outstanding may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee by this Indenture. The Trustee, however, may
refuse to follow any direction that conflicts with law or this Indenture or that
the Trustee determines may be unduly prejudicial to the rights of another
Noteholder or that may involve the Trustee in personal liability; provided that
the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
Section 6.06. Limitation on Suits.
Subject to Section 6.07 below, a Noteholder may not institute
any proceeding or pursue any remedy with respect to this Indenture or the Notes
unless:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(2) the Holders of at least 25% in aggregate principal amount
of the Notes then outstanding make a written request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
reasonably satisfactory to the Trustee against any loss, liability or
expense to be incurred in compliance with such request;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of indemnity; and
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(5) no direction inconsistent with such written request has
been given to the Trustee during such 60 day period by the Holders of a
majority in aggregate principal amount of the Notes then outstanding.
A Noteholder may not use this Indenture to prejudice the
rights of another Noteholder or to obtain a preference or priority over another
Noteholder.
Section 6.07. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Note to receive payment of principal of, or premium, if
any, and interest of the Note on or after the respective due dates expressed in
the Note, or to bring suit for the enforcement of any such payment on or after
such respective dates, is absolute and unconditional and shall not be impaired
or affected without the consent of the Holder.
Section 6.08. Collection Suit by Trustee.
If an Event of Default in payment of principal, premium or
interest specified in Section 6.01(1) or (2) hereof occurs and is continuing,
the Trustee may recover judgment in its own name and as trustee of an express
trust against the Company or the Guarantors (or any other obligor on the Notes)
for the whole amount of unpaid principal and accrued interest remaining unpaid,
together with interest on overdue principal and, to the extent that payment of
such interest is lawful, interest on overdue installments of interest, in each
case at the rate then borne by the Notes, and such further amounts as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
Section 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Noteholders allowed in any judicial proceedings relative to the Company or the
Guarantors (or any other obligor upon the Notes), any of their respective
creditors or any of their respective property and shall be entitled and
empowered to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same after deduction of its
charges and expenses to the extent that any such charges and expenses are not
paid out of the estate in any such proceedings
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and any custodian in any such judicial proceeding is hereby authorized by each
Noteholder to make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments directly to the
Noteholders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07 hereof.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Noteholder any plan or reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Noteholder in any such
proceedings.
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article 6,
it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07
hereof, including payment of all compensation, expenses and liabilities
incurred and all advances made, by the Trustee and the costs and
expense of collection;
SECOND: to Noteholders for amounts due and unpaid on the Notes
for principal, premium, if any, and interest as to each, ratably,
without preference or priority of any kind, according to the amounts
due and payable on the Notes; and
THIRD: to the Company or, to the extent the Trustee collects
any amount from any Guarantor, to such Guarantor.
The Trustee may fix a record date and payment date for any
payment to Noteholders pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees and expenses, against any party litigant in the suit,
having due regard to the merits and good faith of the claims or defenses made by
the party litigant.
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This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07 hereof or a suit by Holders of more than 10% in
principal amount of the Notes then outstanding.
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in its exercise as a prudent
person would exercise or use under the same circumstances in the conduct of his
own affairs.
(b) Except during the continuance of an Event of Default:
(1) The duties of the Trustee shall be determined solely by
the express provisions of this Indenture and the TIA and the Trustee
need perform only those duties that are specifically set forth in this
Indenture and no others, and no covenants or obligations shall be
implied in this Indenture against the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture but, in the case of any such certificates or opinions
which by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this
Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b)
of this Section 7.01.
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(2) The Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Sections 6.02 and 6.05 hereof.
(d) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any liability. The Trustee
shall be under no obligation to exercise any of its rights or powers under the
Indenture unless adequate indemnity satisfactory to it against such risk or
liability has been assured to it.
(e) Whether or not therein expressly so provided, paragraphs
(a), (b), (c) and (d) of this Section 7.01 shall govern every provision of this
Indenture that in any way relates to the Trustee.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company or
any Guarantor. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by the law.
Section 7.02. Rights of Trustee.
Subject to Section 7.01 hereof:
(1) The Trustee may conclusively rely on and shall be
protected in acting or refraining from acting upon any document
reasonably believed by it to be genuine and to have been signed or
presented by the proper person. The Trustee need not investigate any
fact or matter stated in the document.
(2) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, or both,
which shall conform to the provisions of Section 12.05 hereof. The
Trustee shall be protected and shall not be liable for any action it
takes or omits to take in good faith in reliance on such certificate or
opinion.
(3) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent
appointed by it with due care.
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(4) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it reasonably believes to be
authorized or within its rights or powers.
(5) The Trustee may consult with counsel of its selection, and
the advice or opinion of such counsel as to matters of law shall be
full and complete authorization and protection from liability in
respect of any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of such
counsel.
(6) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Holders pursuant to the provisions of
this Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby.
(7) The Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the Trustee
has actual knowledge thereof or unless written notice of any event
which is in fact such a default is received by the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the
Notes and this Indenture.
Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may make loans to, accept deposits from,
perform services for or otherwise deal with the Company or any Guarantor, or any
Affiliates thereof, with the same rights it would have if it were not Trustee.
Any Agent may do the same with like rights. The Trustee, however, shall be
subject to Sections 7.10 and 7.11 hereof.
Section 7.04. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Notes, it shall not be accountable for the
Company's use of the proceeds from the sale of Notes or any money paid to the
Company or upon the Company's direction pursuant to the terms of this Indenture,
it shall not be responsible for the use or application of money received by any
Paying Agent other than the Trustee, and it shall not be responsible for any
statement in the Notes other than its certificate of authentication.
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Section 7.05. Notice of Default.
If a Default or an Event of Default occurs and is continuing
and if it is actually known to the Trustee, the Trustee shall mail to each
Noteholder notice of the Default or the Event of Default, as the case may be,
within 90 days after it occurs. Except in the case of a Default or an Event of
Default in payment of the principal of, or premium, if any, or interest on any
Note the Trustee may withhold the notice if and so long as the board of
directors of the Trustee, the executive committee or any trust committee of such
board and/or its Trust Officers in good faith determine(s) that withholding the
notice is in the interests of the Noteholders.
Section 7.06. Reports by Trustee to Holders.
Within 60 days after May 15 of any year, commencing the May 15
following the date of this Indenture, the Trustee shall mail to each Noteholder
a brief report dated as of such May 15 that complies with TIA Section 313(a)
(but if no event described in TIA Section 313(a) has occurred within the twelve
months preceding the report date, no report need be transmitted). The Trustee
also shall comply with TIA Sections 313(b) and 313(c).
A copy of each report at the time of its mailing to
Noteholders shall be filed with the SEC and each stock exchange, if any, on
which the Notes are listed. The Company shall promptly notify the Trustee when
the Notes are listed on any stock exchange and the Trustee shall comply with TIA
Section 313(d).
Section 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such
compensation for its services as the Trustee and the Company shall from time to
time agree in writing. The Trustee's compensation shall not be limited by any
provision of law on compensation of a trustee of an express trust. The Company
shall reimburse the Trustee promptly upon request for all reasonable
disbursements, expenses and advances incurred or made by it in connection with
its duties under this Indenture, including the reasonable compensation,
disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify each of the Trustee and any
predecessor Trustee for, and hold it harmless against, any and all damages,
claims, loss or liability incurred by it in connection with the acceptance or
performance of its duties under this Indenture including the reasonable costs
and expenses of enforcing this Indenture against the Company and the Guaran-
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tors and defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The Trustee
shall notify the Company promptly of any claim asserted against the Trustee for
which it may seek indemnity. However, the failure by the Trustee to so notify
the Company shall not relieve the Company of its obligations. Notwithstanding
the foregoing, the Company and the Guarantors need not reimburse the Trustee for
any expense or indemnify it against any loss or liability incurred by the
Trustee through its negligence or bad faith. To secure the payment obligations
of the Company and the Guarantors in this Section 7.07, the Trustee shall have a
lien prior to the Notes on all money or property held or collected by the
Trustee except such money or property held in trust to pay principal of and
interest on particular Notes. Such lien shall survive the satisfaction and
discharge of this Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(6) or (7) hereof occurs, the expenses
and the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
For purposes of this Section 7.07, the term "Trustee" shall
include any trustee appointed pursuant to Article 9.
The obligation of the Company and the Guarantors under this
Section 7.07 shall survive the satisfaction and discharge of this Indenture.
Section 7.08. Replacement of Trustee.
The Trustee may resign by so notifying the Company in writing.
The Holders of a majority in principal amount of the outstanding Notes may
remove the Trustee by notifying the removed Trustee in writing and may appoint a
successor Trustee with the Company's written consent which consent shall not be
unreasonably withheld. The Company may remove the Trustee at its election if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
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(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly notify each
Holder of such event and shall promptly appoint a successor Trustee.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of at least 10% in principal amount of the outstanding
Notes may petition, at the expense of the Company, any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10 hereof, any
Noteholder may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately following
such delivery, the retiring Trustee shall, subject to its rights under Section
7.07 hereof, transfer all property held by it as Trustee to the successor
Trustee (provided all sums owing to the Trustee hereunder have been paid and
subject to the lien provided for in Section 7.07 hereof), the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall mail notice of its succession to each
Noteholder.
Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, the obligations of the Company and the Guarantors under Section
7.07 hereof shall continue for the benefit of the retiring Trustee.
Section 7.09. Successor Trustee by Consolidation, Merger or Conversion.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust assets to, another
corporation, subject to Section 7.10 hereof, the successor corporation without
any further act shall be the successor Trustee.
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Section 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5) in every respect. The Trustee
shall have a combined capital and surplus of at least $100,000,000 as set forth
in its most recent published annual report of condition. The Trustee shall
comply with TIA Section 310(b), including the provision in Section 310(b)(1).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311 (b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated therein.
Section 7.12. Paying Agents.
The Company shall cause each Paying Agent other than the
Trustee to execute and deliver to it and the Trustee an instrument in which such
agent shall agree with the Trustee, subject to the provisions of this Section
7.12:
(A) that it will hold all sums held by it as agent for the
payment of principal of, or premium, if any, or interest on, the Notes
(whether such sums have been paid to it by the Company or by any
obligor on the Notes) in trust for the benefit of Holders of the Notes
or the Trustee;
(B) that it will at any time during the continuance of any
Event of Default, upon written request from the Trustee, deliver to the
Trustee all sums so held in trust by it together with a full accounting
thereof; and
(C) that it will give the Trustee written notice within three
(3) Business Days of any failure of the Company (or by any obligor on
the Notes) in the payment of any installment of the principal of,
premium, if any, or interest on, the Notes when the same shall be due
and payable.
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ARTICLE 8
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.01. Without Consent of Holders.
The Company and the Guarantors, when authorized by a Board
Resolution of each of them, and the Trustee may amend or supplement this
Indenture or the Notes without notice to or consent of any Noteholder:
(1) to comply with Section 5.01 hereof;
(2) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(3) to comply with any requirements of the SEC under the TIA;
(4) to cure any ambiguity, defect or inconsistency, or to make
any other change that does not materially and adversely affect the
rights of any Noteholder; or
(5) to make any other change that does not, in the opinion of
the Trustee, adversely affect in any material respect the rights of any
Noteholders hereunder.
The Trustee is hereby authorized to join with the Company and
the Guarantors in the execution of any supplemental indenture authorized or
permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations which may be therein contained, but the Trustee
shall not be obligated to enter into any such supplemental indenture which
adversely affects its own rights, duties or immunities under this Indenture.
Section 8.02. With Consent of Holders.
The Company, the Guarantors, when authorized by a Board
Resolution of each of them, and the Trustee may amend or supplement this
Indenture or the Notes with the written consent of the Holders of not less than
a majority in aggregate principal amount of the outstanding Notes without notice
to any Noteholder. The Holders of not less than a majority in aggregate
principal amount of the outstanding Notes may waive compliance in a particular
instance by the Company with any provision of this Indenture or the Notes
without notice to any Noteholder. Subject to Section 8.04, without the consent
of each Noteholder
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affected, however, an amendment, supplement or waiver, including a waiver
pursuant to Section 6.04, may not:
(1) reduce the amount of Notes whose Holders must consent to an
amendment, supplement or waiver to this Indenture or the Notes;
(2) reduce the rate of or change the time for payment of interest on
any Note;
(3) reduce the principal of or premium on or change the stated maturity
of any Note;
(4) make any Note payable in money other than that stated in the Note
or change the place of payment from New York, New York;
(5) change the amount or time of any payment required by the Notes or
reduce the premium payable upon any redemption of the Notes in accordance
with Paragraph 6 of the Notes, or change the time before which no such
redemption may be made;
(6) waive a default in the payment of the principal of, or interest on,
or redemption payment with respect to, any Note;
(7) make any changes in Sections 6.04 or 6.07 hereof or this sentence
of Section 8.02; or
(8) affect the ranking of the Notes or the Guarantees in a manner
adverse to the Holders.
After an amendment, supplement or waiver under this Section 8.02
becomes effective, the Company shall mail to the Holders a notice briefly
describing the amendment, supplement or waiver.
Upon the request of the Company, accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and upon the
receipt by the Trustee of evidence reasonably satisfactory to the Trustee of the
consent of the Noteholders as aforesaid and upon receipt by the Trustee of the
documents described in Section 8.06 hereof, the Trustee shall join with the
Company and the Guarantors in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee's own rights, duties or
immunities under this Indenture, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
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It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
Section 8.03. Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the Notes shall
comply with the TIA as then in effect.
Section 8.04. Revocation and Effect of Consents.
Until an amendment, supplement, waiver or other action becomes
effective, a consent to it by a Holder of a Note is a continuing consent
conclusive and binding upon such Holder and every subsequent Holder of the same
Note or portion thereof, and of any Note issued upon the transfer thereof or in
exchange therefor or in place thereof, even if notation of the consent is not
made on any such Note. Any such Holder or subsequent Holder, however, may revoke
the consent as to his Note or portion of a Note, if the Trustee receives the
notice of revocation before the date the amendment, supplement, waiver or other
action becomes effective.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement, or waiver which record date shall be at least 30 days prior to the
first solicitation of such consent. If a record date is fixed, then,
notwithstanding the preceding paragraph, those Persons who were Holders at such
record date (or their duly designated proxies), and only such Persons, shall be
entitled to consent to such amendment, supplement, or waiver or to revoke any
consent previously given, whether or not such Persons continue to be Holders
after such record date. No such consent shall be valid or effective for more
than 90 days after such record date.
After an amendment, supplement, waiver or other action becomes
effective, it shall bind every Noteholder, unless it makes a change described in
any of clauses (1) through (8) of Section 8.02 hereof. In that case the
amendment, supplement, waiver or other action shall bind each Holder of a Note
who has consented to it and every subsequent Holder of a Note or portion of a
Note that evidences the same debt as the consenting Holder's Note; provided that
any such waiver shall not impair or affect the right of any Holder to receive
payment of principal of and interest on a Note, on or after the respective due
dates expressed in such Note, or to bring suit for the enforcement of any such
payment on or after such respective dates without the consent of such Holder.
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Section 8.05. Notation on or Exchange of Notes.
If an amendment, supplement, or waiver changes the terms of a Note, the
Trustee may request the Holder of the Note to deliver it to the Trustee. In such
case, the Trustee shall place an appropriate notation on the Note about the
changed terms and return it to the Holder. Alternatively, if the Company or the
Trustee so determines, the Company in exchange for the Note shall issue and the
Trustee shall authenticate a new security that reflects the changed terms.
Failure to make the appropriate notation or issue a new Note shall not affect
the validity and effect of such amendment supplement or waiver.
Section 8.06. Trustee To Sign Amendments, etc.
The Trustee shall sign any amendment, supplement or waiver authorized
pursuant to this Article 8 if the amendment, supplement or waiver does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may, but need not, sign it. In signing or refusing to
sign such amendment, supplement or waiver the Trustee shall be entitled to
receive and, subject to Section 7.01 hereof, shall be fully protected in relying
upon an Officers' Certificate and an Opinion of Counsel stating that such
amendment, supplement or waiver is authorized or permitted by this Indenture,
that it is not inconsistent herewith, and that it will be valid and binding upon
the Company and the Guarantors in accordance with its terms. The Company or any
Guarantor may not sign an amendment or supplement until the Board of Directors
of the Company or such Guarantor, as appropriate, approves it.
ARTICLE 9
DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.01. Discharge of Indenture.
The Company and the Guarantors may terminate their obligations under
the Notes, the Guarantees and this Indenture, except the obligations referred to
in the last paragraph of this Section 9.01, if there shall have been cancelled
by the Trustee or delivered to the Trustee for cancellation all Notes
theretofore authenticated and delivered (other than any Notes that are asserted
to have been destroyed, lost or stolen and that shall have been replaced as
provided in Section 2.07 hereof) and the Company has paid all sums payable by it
hereunder or deposited all required sums with the Trustee.
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After such delivery the Trustee upon request shall acknowledge in
writing the discharge of the Company's and the Guarantors' obligations under the
Notes, the Guarantees and this Indenture except for those surviving obligations
specified below.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company in Sections 7.07, 9.05 and 9.06 hereof shall survive.
Section 9.02. Legal Defeasance.
The Company may at its option, by Board Resolution, be discharged from
its obligations with respect to the Notes and the Guarantors discharged from
their obligations under the Guarantees on the date the conditions set forth in
Section 9.04 below are satisfied (hereinafter, "Legal Defeasance"). For this
purpose, such Legal Defeasance means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by the Notes and to have
satisfied all its other obligations under such Notes and this Indenture insofar
as such Notes are concerned (and the Trustee, at the expense of the Company,
shall, subject to Section 9.06 hereof, execute proper instruments acknowledging
the same), except for the following which shall survive until otherwise
terminated or discharged hereunder: (A) the rights of Holders of outstanding
Notes to receive solely from the trust funds described in Section 9.04 hereof
and as more fully set forth in such Section, payments in respect of the
principal of, premium, if any, and interest on such Notes when such payments are
due, (B) the Company's obligations with respect to such Notes under Sections
2.03, 2.04, 2.05, 2.06, 2.07, 2.08 and 4.09 hereof, (C) the rights, powers,
trusts, duties, and immunities of the Trustee hereunder (including claims of, or
payments to, the Trustee under or pursuant to Section 7.07 hereof) and (D) this
Article 9. Subject to compliance with this Article 9, the Company may exercise
its option under this Section 9.02 with respect to the Notes notwithstanding the
prior exercise of its option under Section 9.03 below with respect to the Notes.
Section 9.03. Covenant Defeasance.
At the option of the Company, pursuant to a Board Resolution, the
Company and the Guarantors shall be released from their respective obligations
under Sections 4.02 through 4.08 and Sections 4.10 through 4.20 hereof,
inclusive, and clause (a)(iii) of Section 5.01 hereof with respect to the
outstanding Notes on and after the date the conditions set forth in Section 9.04
hereof are satisfied (hereinafter, "Covenant Defeasance"). For this purpose,
such Covenant Defeasance means
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that the Company and the Guarantors may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
specified Section or portion thereof, whether directly or indirectly by reason
of any reference elsewhere herein to any such specified Section or portion
thereof or by reason of any reference in any such specified Section or portion
thereof to any other provision herein or in any other document, but the
remainder of this Indenture and the Notes shall be unaffected thereby.
Section 9.04. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of Section 9.02 or
Section 9.03 hereof to the outstanding Notes:
(1) the Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 7.10 hereof who shall agree to comply with the provisions of this
Article 9 applicable to it) as funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of the Notes, (A) money in an amount,
or (B) U.S. Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms
will provide, not later than the due date of any payment, money in an
amount, or (C) a combination thereof, sufficient, in the opinion of a
nationally-recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge, the principal of, premium, if any, and
accrued interest on the outstanding Notes at the maturity date of such
principal, premium, if any, or interest, or on dates for payment and
redemption of such principal, premium, if any, and interest selected in
accordance with the terms of this Indenture and of the Notes;
(2) no Event of Default or Default with respect to the Notes shall
have occurred and be continuing on the date of such deposit, or shall have
occurred and be continuing at any time during the period ending on the 91st
day after the date of such deposit or, if longer, ending on the day
following the expiration of the longest preference period under any
Bankruptcy Law applicable to the Company in respect of such deposit (it
being understood
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that this condition shall not be deemed satisfied until the expiration of
such period);
(3) such Legal Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest for purposes of the TIA with respect
to any securities of the Company;
(4) such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute default under any other agreement or
instrument to which the Company is a party or by which it is bound;
(5) the Company shall have delivered to the Trustee an Opinion of
Counsel stating that, as a result of such Legal Defeasance or Covenant
Defeasance, neither the trust nor the Trustee will be required to register
as an investment company under the Investment Company Act of 1940, as
amended;
(6) in the case of an election under Section 9.02 above, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (i)
the Company has received from, or there has been published by, the Internal
Revenue Service a ruling to the effect that or (ii) there has been a change
in any applicable Federal income tax law with the effect that, and such
opinion shall confirm that, the Holders of the outstanding Notes or persons
in their positions will not recognize income, gain or loss for Federal
income tax purposes solely as a result of such Legal Defeasance and will be
subject to Federal income tax on the same amounts, in the same manner,
including as a result of prepayment, and at the same times as would have
been the case if such Legal Defeasance had not occurred;
(7) in the case of an election under Section 9.03 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect that
the Holders of the outstanding Notes will not recognize income, gain or loss
for Federal income tax purposes as a result of such Covenant Defeasance and
will be subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such Covenant
Defeasance had not occurred;
(8) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the Legal Defeasance under Section
9.02
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above or the Covenant Defeasance under Section 9.03 hereof (as the case may
be) have been complied with;
(9) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit under clause (1) was not made by the
Company with the intent of defeating, hindering, delaying or defrauding any
creditors of the Company or others; and
(10) the Company shall have paid or duly provided for payment under
terms mutually satisfactory to the Company and the Trustee all amounts then
due to the Trustee pursuant to Section 7.07 hereof.
Section 9.05. Deposited Money and U.S. Government
Obligations To Be Held in Trust;
Other Miscellaneous Provisions.
All money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee pursuant to Section 9.04 hereof in respect
of the outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent as the Trustee may determine, to the
Holders of such Notes, of all sums due and to become due thereon in respect of
principal, premium, if any, and accrued interest, but such money need not be
segregated from other funds except to the extent required by law.
The Company and the Guarantors shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the U.S.
Government Obligations deposited pursuant to Section 9.04 hereof or the
principal, premium, if any, and interest received in respect thereof other than
any such tax, fee or other charge which by law is for the account of the Holders
of the outstanding Notes.
Anything in this Article 9 to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or U.S. Government Obligations held by it as provided in Section 9.04
hereof which, in the opinion of a nationally-recognized firm of independent
public accountants expressed in a written certification thereof delivered to the
Trustee, is or are in excess of the amount thereof which would then be required
to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
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Section 9.06. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 9.01, 9.02 or 9.03 hereof by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company's and each Guarantor's obligations under this
Indenture, the Notes and the Guarantees shall be revived and reinstated as
though no deposit had occurred pursuant to this Article 9 until such time as the
Trustee or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with Section 9.01 hereof; provided, however, that if
the Company or the Guarantors have made any payment of principal of, premium, if
any, or accrued interest on any Notes because of the reinstatement of their
obligations, the Company or the Guarantors, as the case may be, shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money or U.S. Government Obligations held by the Trustee or Paying
Agent.
Section 9.07. Moneys Held by Paying Agent.
In connection with the satisfaction and discharge of this Indenture,
all moneys then held by any Paying Agent under the provisions of this Indenture
shall, upon demand of the Company, be paid to the Trustee, or if sufficient
moneys have been deposited pursuant to Section 9.01 hereof, to the Company (or,
if such moneys had been deposited by the Guarantors, to such Guarantors), and
thereupon such Paying Agent shall be released from all further liability with
respect to such moneys.
Section 9.08. Moneys Held by Trustee.
Any moneys deposited with the Trustee or any Paying Agent or then held
by the Company or the Guarantors in trust for the payment of the principal of,
or premium, if any, or interest on any Note that are not applied but remain
unclaimed by the Holder of such Note for two years after the date upon which the
principal of, or premium, if any, or interest on such Note shall have
respectively become due and payable shall be repaid to the Company (or, if
appropriate, the Guarantors) upon Company Request, or if such moneys are then
held by the Company or the Guarantors in trust, such moneys shall be released
from such trust; and the Holder of such Note entitled to receive such payment
shall thereafter, as an unsecured general creditor, look only to the Company and
the Guarantors for the payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money shall thereupon cease; provided,
however, that the Trustee or any such Paying Agent,
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before being required to make any such repayment, may, at the expense of the
Company and the Guarantors, either mail to each Noteholder affected, at the
address shown in the register of the Notes maintained by the Registrar pursuant
to Section 2.03 hereof, or cause to be published once a week for two successive
weeks, in a newspaper published in the English language, customarily published
each Business Day and of general circulation in the City of New York, New York,
a notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such mailing or
publication, any unclaimed balance of such moneys then remaining will be repaid
to the Company. After payment to the Company or the Guarantors or the release of
any money held in trust by the Company or any Guarantors, as the case may be,
Noteholders entitled to the money must look only to the Company and the
Guarantors for payment as general creditors unless applicable abandoned property
law designates another person.
ARTICLE 10
GUARANTEE OF NOTES
Section 10.01. Guarantee.
Subject to the provisions of this Article 10, each Guarantor hereby
jointly and severally unconditionally guarantees to each Holder and to the
Trustee, on behalf of the Holders, (i) the due and punctual payment of the
principal of, and premium, if any, and interest on each Note, when and as the
same shall become due and payable, whether at maturity, by acceleration or
otherwise, the due and punctual payment of interest on the overdue principal of,
and premium, if any, and interest on the Notes, to the extent lawful, and the
due and punctual performance of all other Obligations of the Company to the
Holders or the Trustee all in accordance with the terms of such Note and this
Indenture, and (ii) in the case of any extension of time of payment or renewal
of any Notes or any of such other Obligations, that the same will be promptly
paid in full when due or performed in accordance with the terms of the extension
or renewal, at stated maturity, by acceleration or otherwise. Each Guarantor
hereby agrees that its obligations hereunder shall be absolute and
unconditional, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of any such Note or this Indenture, any failure
to enforce the provisions of any such Note or this Indenture, any waiver,
modification or indulgence granted to the Company with respect thereto by the
Holder of such Note or the Trustee, or any other circumstances which may
otherwise constitute a legal or equitable discharge of a surety or such
Guarantor.
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Each Guarantor hereby waives diligence, presentment, filing of claims
with a court in the event of merger or bankruptcy of the Company, any right to
require a proceeding first against the Company, protest or notice with respect
to any such Note or the Indebtedness evidenced thereby and all demands
whatsoever, and covenants that this Guarantee will not be discharged as to any
such Note except by payment in full of the principal thereof, premium if any,
and interest thereon and as provided in Section 9.01 hereof. Each Guarantor
further agrees that, as between such Guarantor, on the one hand, and the Holders
and the Trustee, on the other hand, (i) the maturity of the Obligations
guaranteed hereby may be accelerated as provided in Article 6 hereof for the
purposes of this Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the Obligations
guaranteed hereby, and (ii) in the event of any declaration of acceleration of
such Obligations as provided in Article 6 hereof, such Obligations (whether or
not due and payable) shall forthwith become due and payable by each Guarantor
for the purpose of this Guarantee. In addition, without limiting the foregoing
provisions, upon the effectiveness of an acceleration under Article 6 hereof,
the Trustee shall promptly make a demand for payment on the Notes under the
Guarantee provided for in this Article 10 and not discharged.
The Guarantee set forth in this Section 10.01 shall not be valid or
become obligatory for any purpose with respect to a Note until the certificate
of authentication on such Note shall have been signed by or on behalf of the
Trustee.
Section 10.02. Execution and Delivery of Guarantees.
To evidence the Guarantee set forth in this Article 10, each Guarantor
hereby agrees that a notation of such Guarantee shall be placed on each Note
authenticated and made available for delivery by the Trustee and that this
Guarantee shall be executed on behalf of each Guarantor by the manual or
facsimile signature of an Officer of each Guarantor.
Each Guarantor hereby agrees that the Guarantee set forth in Section
10.01 shall remain in full force and effect notwithstanding any failure to
endorse on each Note a notation of such Guarantee.
If an Officer of a Guarantor whose signature is on the Guarantee no
longer holds that office at the time the Trustee authenticates the Note on which
the Guarantee is endorsed, the Guarantee shall be valid nevertheless.
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The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantee set forth in
this Indenture on behalf of each Guarantor.
Section 10.03. Limitation of Guarantee.
The obligations of each Guarantor are limited to the maximum amount as
will, after giving effect to all other contingent and fixed liabilities of such
Guarantor (including, without limitation, any guarantees of Senior Indebtedness)
and after giving effect to any collections from or payments made by or on behalf
of any other Guarantor in respect of the obligations of such other Guarantor
under its Guarantee or pursuant to its contribution obligations under this
Indenture, result in the obligations of such Guarantor under the Guarantee not
constituting a fraudulent conveyance or fraudulent transfer under federal or
state law. Each Guarantor that makes a payment or distribution under a Guarantee
shall be entitled to a contribution from each other Guarantor in a pro rata
amount based on the Adjusted Net Assets of each Subsidiary Guarantor.
Section 10.04. Additional Guarantors.
The Company covenants and agrees that it will cause any Person which
becomes obligated to guarantee the Notes, pursuant to the terms of Section 4.18
hereof, to execute a guarantee satisfactory in form and substance to the Trustee
pursuant to which such Restricted Subsidiary shall guarantee the obligations of
the Company under the Notes and this Indenture in accordance with this Article
10 with the same effect and to the same extent as if such Person had been named
herein as a Guarantor.
Section 10.05. Release of Guarantor.
A Guarantor shall be released from all of its obligations under its
Guarantee if:
(i) the Guarantor has sold all or substantially all of its assets or
the Company and its Restricted Subsidiaries have sold all of the Capital
Stock of the Guarantor owned by them, in each case in a transaction in
compliance with Sections 4.15 and 5.01 hereof; or
(ii) the Guarantor merges with or into or consolidates with, or
transfers all or substantially all of its assets to, the Company or another
Guarantor in a transaction in compliance with Section 5.01 hereof;
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and in each such case, the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to such transactions have been complied
with.
Section 10.06. Guarantee Obligations Subordinated to Guarantor Senior
Indebtedness.
Each Guarantor covenants and agrees, and each Holder of Notes, by its
acceptance thereof, likewise covenants and agrees, that to the extent and in the
manner hereinafter set forth in this Article 10, the Indebtedness represented by
the Guarantee and the payment of the principal of, premium, if any, and interest
on the Notes pursuant to the Guarantee by such Guarantor are hereby expressly
made subordinate and subject in right of payment as provided in this Article 10
to the prior payment in full in cash or Cash Equivalents or, as acceptable to
the holders of Guarantor Senior Indebtedness of such Guarantor, in any other
manner, of all Guarantor Senior Indebtedness of such Guarantor.
This Section 10.06 and the following Sections 10.07 through 10.11 shall
constitute a continuing offer to all Persons who, in reliance upon such
provisions, become holders of or continue to hold Guarantor Senior Indebtedness
of any Guarantor; and such provisions are made for the benefit of the holders of
Guarantor Senior Indebtedness of each Guarantor; and such holders are made
obligees hereunder and they or each of them may enforce such provisions. Section
10.07. Payment Over of Proceeds upon Dissolution, etc., of a Guarantor.
Section 10.07. Payment Over of Proceeds Upon Dissolution, etc., of a Guarantor.
In the event of (a) any insolvency or bankruptcy case or proceeding, or
any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to any Guarantor or to its
creditors, as such, or to its assets, whether voluntary or involuntary, or (b)
any liquidation, dissolution or other winding-up of any Guarantor, whether
voluntary or involuntary and whether or not involving insolvency or bankruptcy
or (c) any general assignment for the benefit of creditors or any other
marshaling of assets or liabilities of any Guarantor, then and in any such
event:
(1) the holders of all Guarantor Senior Indebtedness of such Guarantor
shall be entitled to receive payment in full in cash or Cash Equivalents or,
as acceptable to the holders of such Guarantor Senior Indebtedness, in any
other manner, of all amounts due on or in respect of all such Guarantor
Senior Indebtedness, or provision shall be
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made for such payment, before the Holders of the Notes are entitled to
receive, pursuant to the Guarantee of such Guarantor, any payment or
distribution of any kind or character by such Guarantor on account of any of
its Obligations on its Guarantee; and
(2) any payment or distribution of assets of such Guarantor of
any kind or character, whether in cash, property or securities, by set-off
or otherwise, to which the Holders or the Trustee would be entitled but for
the subordination provisions of this Article 10 shall be paid by the
liquidating trustee or agent or other Person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or liquidating
trustee or otherwise, directly to the holders of Guarantor Senior
Indebtedness of such Guarantor or their representative or representatives or
to the trustee or trustees under any indenture under which any instruments
evidencing any of such Guarantor Senior Indebtedness may have been issued,
ratably according to the aggregate amounts remaining unpaid on account of
such Guarantor Senior Indebtedness held or represented by each, to the
extent necessary to make payment in full in cash, Cash Equivalents or, as
acceptable to the Holders of such Guarantor Senior Indebtedness of such
Guarantor, in any other manner, of all such Guarantor Senior Indebtedness
remaining unpaid, after giving effect to any concurrent payment or
distribution to the holders of such Guarantor Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions of this
Section 10.07, the Trustee or the Holder of any Note shall have received any
payment or distribution of assets of such Guarantor of any kind or
character, whether in cash, property or securities, including, without
limitation, by way of set-off or otherwise, in respect of any of its
Obligations on its Guarantee before all Guarantor Senior Indebtedness of
such Guarantor is paid in full or payment thereof provided for, then and in
such event such payment or distribution shall be paid over or delivered
forthwith to the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee, agent or other Person making payment or distribution of
assets of such Guarantor for application to the payment of all such
Guarantor Senior Indebtedness remaining unpaid, to the extent necessary to
pay all of such Guarantor Senior Indebtedness in full in cash, Cash
Equivalents or, as acceptable to the holders of such Guarantor Senior
Indebtedness, any other manner, after giving effect to any concurrent
payment or distribution to or for the holders of such Guarantor Senior
Indebtedness.
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The consolidation of a Guarantor with, or the merger of a Guarantor
with or into, another Person or the liquidation or dissolution of a Guarantor
following the conveyance, transfer or lease of its properties and assets
substantially as an entirety to another Person upon the terms and conditions set
forth in Article 5 hereof shall not be deemed a dissolution, winding-up,
liquidation, reorganization, assignment for the benefit of creditors or
marshaling of assets and liabilities of such Guarantor for the purposes of this
Article 10 if the Person formed by such consolidation or the surviving entity of
such merger or the Person which acquires by conveyance, transfer or lease such
properties and assets substantially as an entirety, as the case may be, shall,
as a part of such consolidation, merger, conveyance, transfer or lease, comply
with the conditions set forth in such Article 5 hereof.
Section 10.08. Suspension of Guarantee Obligations When Guarantor Senior
Indebtedness in Default.
(a) Unless Section 10.07 hereof shall be applicable, after the
occurrence of a Payment Default with respect to any Designated Senior
Indebtedness which constitutes Guarantor Senior Indebtedness, no payment or
distribution of any assets or securities of a Guarantor (or any Restricted
Subsidiary or Subsidiary of such Guarantor) of any kind or character (including,
without limitation, cash, property and any payment or distribution which may be
payable or deliverable by reason of the payment of any other Indebtedness of
such Guarantor being subordinated to its Obligations on its Guarantee) may be
made by or on behalf of such Guarantor (or any Restricted Subsidiary or
Subsidiary of such Guarantor), including, without limitation, by way of set-off
or otherwise, for or on account of its Obligations on its Guarantee, and neither
the Trustee nor any holder or owner of any Notes shall take or receive from any
Guarantor (or any Restricted Subsidiary or Subsidiary of such Guarantor),
directly or indirectly in any manner, payment in respect of all or any portion
of its Obligations on its Guarantee following the delivery by the representative
of the holders of , for so long as there shall exist any Designated Senior
Indebtedness under or in respect of the Amended Credit Agreement, the holders of
Designated Senior Indebtedness under or in respect of the Amended Credit
Agreement or, thereafter, the holders of Designated Senior Indebtedness which
constitutes Guarantor Senior Indebtedness (in either such case, the "Guarantor
Representative") to the Trustee of written notice of (i) the occurrence of a
Payment Default on Designated Senior Indebtedness or (ii) the occurrence of a
Non-Payment Event of Default on such Designated Senior Indebtedness and the
acceleration of the maturity of Designated Senior Indebtedness in accordance
with its
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terms, and in any such event, such prohibition shall continue until such Payment
Default is cured, waived in writing or ceases to exist or such acceleration has
been rescinded or otherwise cured. At such time as the prohibition set forth in
the preceding sentence shall no longer be in effect, subject to the provisions
of the following paragraph (b), such Guarantor shall resume making any and all
required payments in respect of its Obligations under its Guarantee.
(b) Unless Section 10.07 hereof shall be applicable, upon the
occurrence of a Non-Payment Event of Default on Designated Senior Indebtedness
guaranteed by a Guarantor (which guarantee constitutes Guarantor Senior
Indebtedness of such Guarantor), no payment or distribution of any assets of
such Guarantor of any kind or character (including, without limitation, cash,
property and any payment or distribution which may be payable or deliverable by
reason of the payment of any other Indebtedness of such Guarantor being
subordinated to its Obligations on its Guarantee) shall be made by such
Guarantor, including, without limitation, by way of set-off or otherwise, on
account of any of its Obligations on its Guarantee, and neither the Trustee nor
any holder or owner of any Notes shall take or receive from any Guarantor (or
any Restricted Subsidiary or Subsidiary of such Guarantor), directly or
indirectly in any manner, payment in respect of all or any portion of its
Obligations on its Guarantee for a period (the "Guarantee Payment Blockage
Period") commencing on the date of receipt by the Trustee of written notice from
the Guarantor Representative of such Non-Payment Event of Default, unless and
until (subject to any blockage of payments that may then be in effect under the
preceding paragraph (a)) the earliest to occur of the following events: (x) more
than 179 days shall have elapsed since the date of receipt of such written
notice by the Trustee, (y) such Non-Payment Event of Default shall have been
cured or waived in writing or shall have ceased to exist or such Designated
Senior Indebtedness shall have been discharged or paid in full in cash or Cash
Equivalents or (z) such Guarantee Payment Blockage Period shall have been
terminated by written notice to such Guarantor or the Trustee from the Guarantor
Representative initiating such Guarantee Payment Blockage Period, or the holders
of at least a majority in principal amount of such issue of Designated Senior
Indebtedness, after which, in the case of clause (x), (y) or (z), such Guarantor
shall resume making any and all required payments in respect of its Obligations
on its Guarantee. Notwithstanding any other provisions of this Indenture, no
Non-Payment Event of Default with respect to Designated Senior Indebtedness
which existed or was continuing on the date of the commencement of any Guarantee
Payment Blockage Period initiated by the Guarantor Representative shall be, or
be made, the basis for the commencement of a second Guarantee Payment
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Blockage Period initiated by the Guarantor Representative unless such event of
default shall have been cured or waived for a period of not less than 90
consecutive days. In no event shall a Guarantee Payment Blockage Period extend
beyond 179 days from the date of the receipt by the Trustee of the notice
referred to in this Section 10.08(b) or, in the event of a Non-Payment Event of
Default which formed the basis for a Payment Blockage Period under Section
11.03(b) hereof, 179 days from the date of the receipt by the Trustee of the
notice referred to in Section 11.03(b) (the "Initial Guarantee Blockage
Period"). Any number of additional Guarantee Payment Blockage Periods may be
commenced during the Initial Guarantee Blockage Period; provided, however, that
no such additional Guarantee Payment Blockage Period shall extend beyond the
Initial Guarantee Blockage Period. After the expiration of the Initial Guarantee
Blockage Period, no Guarantee Payment Blockage Period may be commenced under
this Section 10.08(b) and no Payment Blockage Period may be commenced under
Section 11.03(b) hereof until at least 180 consecutive days have elapsed from
the last day of the Initial Guarantee Blockage Period.
(c) In the event that, notwithstanding the foregoing, the Trustee or
the Holder of any Note shall have received any payment from a Guarantor
prohibited by the foregoing provisions of this Section 10.08, then and in such
event such payment shall be paid over and delivered forthwith to the Guarantor
Representative initiating the Guarantee Payment Blockage Period, in trust for
distribution to the holders of Guarantor Senior Indebtedness or, if no amounts
are then due in respect of Guarantor Senior Indebtedness, promptly returned to
the Guarantor, or as a court of competent jurisdiction shall direct.
Section 10.09. Subrogation to Rights of Holders of Guarantor Senior
Indebtedness.
Upon the payment in full of all amounts payable under or in respect of
all Guarantor Senior Indebtedness of a Guarantor, the Holders shall be
subrogated to the rights of the holders of such Guarantor Senior Indebtedness to
receive payments and distributions of cash, property and securities of such
Guarantor made on such Guarantor Senior Indebtedness until all amounts due to be
paid under the Guarantee shall be paid in full. For the purposes of such
subrogation, no payments or distributions to holders of Guarantor Senior
Indebtedness of any cash, property or securities to which Holders of the Notes
or the Trustee would be entitled except for the provisions of this Article 10,
and no payments over pursuant to the provisions of this Article 10 to holders of
Guarantor Senior Indebtedness by Holders of the Notes or the Trustee, shall, as
among
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each Guarantor, its creditors other than holders of Guarantor Senior
Indebtedness and the Holders of the Notes, be deemed to be a payment or
distribution by such Guarantor to or on account of such Guarantor Senior
Indebtedness.
If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article 10 shall have been
applied, pursuant to the provisions of this Article 10, to the payment of all
amounts payable under Guarantor Senior Indebtedness, then and in such case, the
Holders shall be entitled to receive from the holders of such Guarantor Senior
Indebtedness at the time outstanding any payments or distributions received by
such holders of Guarantor Senior Indebtedness in excess of the amount sufficient
to pay all amounts payable under or in respect of such Guarantor Senior
Indebtedness in full in cash or Cash Equivalents.
Section 10.10. Guarantee Subordination Provisions Solely To Define Relative
Rights.
The subordination provisions of this Article 10 are and are intended
solely for the purpose of defining the relative rights of the Holders of the
Notes on the one hand and the holders of Guarantor Senior Indebtedness on the
other hand. Nothing contained in this Article 10 or elsewhere in this Indenture
or in the Notes is intended to or shall (a) impair, as among each Guarantor, its
creditors other than holders of its Guarantor Senior Indebtedness and the
Holders of the Notes, the obligation of such Guarantor, which is absolute and
unconditional, to make payments to the Holders in respect of its Obligations on
its Guarantee in accordance with its terms; or (b) affect the relative rights
against such Guarantor of the Holders of the Notes and creditors of such
Guarantor other than the holders of the Guarantor Senior Indebtedness; or (c)
prevent the Trustee or the Holder of any Note from exercising all remedies
otherwise permitted by applicable law upon a Default or an Event of Default
under this Indenture, subject to the rights, if any, under this Article 10 of
the holders of Guarantor Senior Indebtedness (1) in any case, proceeding,
dissolution, liquidation or other winding-up, assignment for the benefit of
creditors or other marshaling of assets and liabilities of the Company referred
to in Section 10.07 hereof, to receive, pursuant to and in accordance with such
Section, cash, property and securities otherwise payable or deliverable to the
Trustee or such Holder, or (2) under the conditions specified in Section 10.08
hereof, to prevent any payment prohibited by such Section or enforce their
rights pursuant to Section 10.08(c) hereof.
The failure by any Guarantor to make a payment in respect of its
obligations on its Guarantee by reason of any pro-
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vision of this Article 10 shall not be construed as preventing the occurrence of
a Default or an Event of Default hereunder.
Section 10.11. Application of Certain Article 11 Provisions.
The provisions of Sections 11.04, 11.07, 11.08, 11.09, 11.10, 11.12 and
11.13 hereof shall apply, mutatis mutandis, to each Guarantor and their
respective holders of Guarantor Senior Indebtedness and the rights, duties and
obligations set forth therein shall govern the rights, duties and obligations of
each Guarantor, the holders of Guarantor Senior Indebtedness, the Holders and
the Trustee with respect to the Guarantee and all references therein to Article
11 hereof shall mean this Article 10.
ARTICLE 11
SUBORDINATION OF NOTES
Section 11.01. Notes Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of Notes, by its
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article 11, the Indebtedness
represented by the Notes and the payment of the principal of, premium, if any,
and interest on the Notes are hereby expressly made subordinate and subject in
right of payment as provided in this Article 11 to the prior payment in full in
cash or Cash Equivalents or, as acceptable to the holders of Senior
Indebtedness, in any other manner, of all Senior Indebtedness.
This Article 11 shall constitute a continuing offer to all Persons who,
in reliance upon such provisions, become holders of or continue to hold Senior
Indebtedness; and such provisions are made for the benefit of the holders of
Senior Indebtedness; and such holders are made obligees hereunder and they or
each of them may enforce such provisions.
Section 11.02. Payment Over of Proceeds upon Dissolution, etc.
In the event of (a) any insolvency or bankruptcy case or proceeding, or
any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its creditors,
as such, or to its assets, whether voluntary or involuntary or (b) any
liquida-
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tion, dissolution or other winding-up of the Company, whether voluntary
or involuntary and whether or not involving insolvency or bankruptcy, or (c) any
general assignment for the benefit of creditors or any other marshaling of
assets or liabilities of the Company, then and in any such event:
(1) the holders of Senior Indebtedness shall be entitled to receive
payment in full in cash or Cash Equivalents or, as acceptable to the holders
of Senior Indebtedness, in any other manner, of all amounts due on or in
respect of all Senior Indebtedness, or provision shall be made for such
payment, before the Holders of the Notes are entitled to receive any payment
or distribution of any kind or character on account of principal of,
premium, if any, or interest on the Notes; and
(2) any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, by set-off or otherwise,
to which the Holders or the Trustee would be entitled but for the provisions
of this Article 11 shall be paid by the liquidating trustee or agent or
other Person making such payment or distribution, whether a trustee in
bankruptcy, a receiver or liquidating trustee or otherwise, directly to the
holders of Senior Indebtedness or their representative or representatives or
to the trustee or trustees under any indenture under which any instruments
evidencing any of such Senior Indebtedness may have been issued, ratably
according to the aggregate amounts remaining unpaid on account of the Senior
Indebtedness held or represented by each, to the extent necessary to make
payment in full in cash, Cash Equivalents or, as acceptable to the holders
of Senior Indebtedness, in any other manner, of all Senior Indebtedness
remaining unpaid, after giving effect to any concurrent payment or
distribution, or provision therefor, to the holders of such Senior
Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions of this
Section 11.02, the Trustee or the Holder of any Note shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, including, without limitation, by
way of set-off or otherwise, in respect of principal of, premium, if any,
and interest on the Notes before all Senior Indebtedness is paid in full or
payment thereof provided for, then and in such event such payment or
distribution shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or
other Person making payment or distribution of assets of the
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Company for application to the payment of all Senior Indebtedness remaining
unpaid, to the extent necessary to pay all Senior Indebtedness in full in
cash, Cash Equivalents or, as acceptable to the holders of Senior
Indebtedness, any other manner, after giving effect to any concurrent
payment or distribution, or provision therefor, to or for the holders of
Senior Indebtedness.
The consolidation of the Company with, or the merger of the Company
with or into, another Person or the liquidation or dissolution of the Company
following the conveyance, transfer or lease of its properties and assets
substantially as an entirety to another Person upon the terms and conditions set
forth in Article 5 hereof shall not be deemed a dissolution, winding-up,
liquidation, reorganization, assignment for the benefit of creditors or
marshaling of assets and liabilities of the Company for the purposes of this
Article 11 if the Person formed by such consolidation or the surviving entity of
such merger or the Person which acquires by conveyance, transfer or lease such
properties and assets substantially as an entirety, as the case may be, shall,
as a part of such consolidation, merger, conveyance, transfer or lease, comply
with the conditions set forth in such Article 5 hereof.
Section 11.03. Suspension of Payment When Senior Indebtedness in Default.
(a) Unless Section 11.02 hereof shall be applicable, after the
occurrence of a Payment Default no payment or distribution of any assets or
securities of the Company or any Restricted Subsidiary of any kind or character
(including, without limitation, cash, property and any payment or distribution
which may be payable or deliverable by reason of the payment of any other
Indebtedness of the Company being subordinated to the payment of the Notes by
the Company) may be made by or on behalf of the Company or any Restricted
Subsidiary, including, without limitation, by way of set-off or otherwise, for
or on account of principal of, premium, if any, or interest on the Notes, or for
or on account of the purchase, redemption or other acquisition of the Notes, and
neither the Trustee nor any holder or owner of any Notes shall take or receive
from the Company or any Restricted Subsidiary, directly or indirectly in any
manner, payment in respect of all or any portion of Notes following the delivery
by the representative of , for so long as there shall exist any Designated
Senior Indebtedness under or in respect of the Amended Credit Agreement, the
holders of Designated Senior Indebtedness under or in respect of the Amended
Credit Agreement or, thereafter, the holders of Designated Senior Indebtedness
(in either such case, the "Representative") to the Trustee of written notice of
(i) the occurrence
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of a Payment Default or Designated Senior Indebtedness or (ii) the occurrence of
a Non-Payment Event of Default on Designated Senior Indebtedness and the
acceleration of the maturity of Designated Senior Indebtedness in accordance
with its terms, and in any such event, such prohibition shall continue until
such Payment Default is cured, waived in writing or ceases to exist or such
acceleration has been rescinded or otherwise cured. At such time as the
prohibition set forth in the preceding sentence shall no longer be in effect,
subject to the provisions of the following paragraph (b), the Company shall
resume making any and all required payments in respect of the Notes, including
any missed payments.
(b) Unless Section 11.02 hereof shall be applicable, upon the
occurrence of a Non-Payment Event of Default on Designated Senior Indebtedness,
no payment or distribution of any assets or securities of the Company of any
kind or character (including, without limitation, cash, property and any payment
or distribution which may be payable or deliverable by reason of the payment of
any other Indebtedness of the Company being subordinated to the payment of the
Notes by the Company) shall be made by or on behalf of the Company, including,
without limitation, by way of set-off or otherwise, on account of any principal
of, premium, if any, or interest on the Notes or on account of the purchase,
redemption, defeasance or other acquisition of Notes, and neither the Trustee
nor any holder or owner of any Notes shall take or receive from the Company,
directly or indirectly in any manner, payment in respect of all or any portion
of the Notes, for a period ("Payment Blockage Period") commencing on the date of
receipt by the Trustee of written notice from the Representative of such
Non-Payment Event of Default unless and until (subject to any blockage of
payments that may then be in effect under the preceding paragraph (a)) the
earliest to occur of the following events: (x) more than 179 days shall have
elapsed since the date of receipt of such written notice by the Trustee, (y)
such Non-Payment Event of Default shall have been cured or waived in writing or
shall have ceased to exist or such Designated Senior Indebtedness shall have
been discharged or paid in full in cash or Cash Equivalents or (z) such Payment
Blockage Period shall have been terminated by written notice to the Company or
the Trustee from the Representative initiating such Payment Blockage Period, or
the holders of at least a majority in principal amount of such issue of
Designated Senior Indebtedness, after which, in the case of clause (x), (y) or
(z), the Company shall resume making any and all required payments in respect of
the Notes, including any missed payments. Notwithstanding any other provisions
of this Indenture, no Non-Payment Event of Default with respect to Designated
Senior Indebtedness which existed or was continuing on the date of the
commencement of any
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Payment Blockage Period initiated by the Representative shall be, or be made,
the basis for the commencement of a second Payment Blockage Period initiated by
the Representative unless such event of default shall have been cured or waived
for a period of not less than 90 consecutive days. In no event shall a Payment
Blockage Period extend beyond 179 days from the date of the receipt by the
Trustee of the notice referred to in this Section 11.03(b) (the "Initial
Blockage Period"). Any number of additional Payment Blockage Periods may be
commenced during the Initial Blockage Period; provided, however, that no such
additional Payment Blockage Period shall extend beyond the Initial Blockage
Period. After the expiration of the Initial Blockage Period, no Payment Blockage
Period may be commenced under this Section 11.03(b) and no Guarantee Payment
Blockage Period may be commenced under Section 10.08(b) hereof until at least
180 consecutive days have elapsed from the last day of the Initial Blockage
Period.
(c) In the event that, notwithstanding the foregoing, the Trustee or
the Holder of any Note shall have received any payment prohibited by the
foregoing provisions of this Section 11.03, then and in such event such payment
shall be paid over and delivered forthwith to the Representative initiating the
Payment Blockage Period, in trust for distribution to the holders of Senior
Indebtedness or, if no amounts are then due in respect of Senior Indebtedness,
promptly returned to the Company, or otherwise as a court of competent
jurisdiction shall direct.
Section 11.04. Trustee's Relation to Senior Indebtedness.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article 11, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness and the Trustee shall
not be liable to any holder of Senior Indebtedness if it shall mistakenly pay
over or deliver to Holders, the Company or any other Person moneys or assets to
which any holder of Senior Indebtedness shall be entitled by virtue of this
Article 11 or otherwise.
Section 11.05. Subrogation to Rights of Holders of Senior Indebtedness.
Upon the payment in full of all Senior Indebtedness, the Holders of the
Notes shall be subrogated to the rights of
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the holders of such Senior Indebtedness to receive payments and distributions of
cash, property and securities applicable to the Senior Indebtedness until the
principal of, premium, if any and interest on the Notes shall be paid in full.
For purposes of such subrogation, no payments or distributions to the holders of
Senior Indebtedness of any cash, property or securities to which the Holders of
the Notes or the Trustee would be entitled except for the provisions of this
Article 11, and no payments over pursuant to the provisions of this Article 11
to the holders of Senior Indebtedness by Holders of the Notes or the Trustee,
shall, as among the Company, its creditors other than holders of Senior
Indebtedness and the Holders of the Notes, be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness.
If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article 11 shall have been
applied, pursuant to the provisions of this Article 11, to the payment of all
amounts payable under the Senior Indebtedness of the Company, then and in such
case the Holders shall be entitled to receive from the holders of such Senior
Indebtedness at the time outstanding any payments or distributions received by
such holders of such Senior Indebtedness in excess of the amount sufficient to
pay all amounts payable under or in respect of such Senior Indebtedness in full
in cash or Cash Equivalents.
Section 11.06. Provisions Solely To Define Relative Rights.
The provisions of this Article 11 are and are intended solely for the
purpose of defining the relative rights of the Holders of the Notes on the one
hand and the holders of Senior Indebtedness on the other hand. Nothing contained
in this Article or elsewhere in this Indenture or in the Notes is intended to or
shall (a) impair, as among the Company, its creditors other than holders of
Senior Indebtedness and the Holders of the Notes, the obligation of the Company,
which is absolute and unconditional, to pay to the Holders of the Notes the
principal of, premium, if any, and interest on the Notes as and when the same
shall become due and payable in accordance with their terms; or (b) affect the
relative rights against the Company of the Holders of the Notes and creditors of
the Company other than the holders of Senior Indebtedness; or (c) prevent the
Trustee or the Holder of any Note from exercising all remedies otherwise
permitted by applicable law upon a Default or an Event of Default under this
Indenture, subject to the rights, if any, under this Article 11 of the holders
of Senior Indebtedness (1) in any case, proceeding, dissolution, liquidation or
other winding-up, assignment for the benefit of
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creditors or other marshaling of assets and liabilities of the Company referred
to in Section 11.02 hereof, to receive, pursuant to and in accordance with such
Section, cash, property and securities otherwise payable or deliverable to the
Trustee or such Holder, or (2) under the conditions specified in Section 11.03,
to prevent any payment prohibited by such Section or enforce their rights
pursuant to Section 11.03(c) hereof.
The failure to make a payment on account of principal of, premium, if
any, or interest on the Notes by reason of any provision of this Article 11
shall not be construed as preventing the occurrence of a Default or an Event of
Default hereunder.
Section 11.07. Trustee To Effectuate Subordination.
Each Holder of a Note by his acceptance thereof authorizes and directs
the Trustee on his behalf to take, in the Trustee's sole discretion, such action
as may be necessary or appropriate to effectuate the subordination provided in
this Article and appoints the Trustee his attorney-in-fact for any and all such
purposes, including, in the event of any dissolution, winding-up, liquidation or
reorganization of the Company whether in bankruptcy, insolvency, receivership
proceedings, or otherwise, the timely filing of a claim for the unpaid balance
of the indebtedness of the Company owing to such Holder in the form required in
such proceedings and the causing of such claim to be approved. If the Trustee
does not file such a claim prior to 30 days before the expiration of the time to
file such a claim, the holders of Senior Indebtedness, or any Representative,
may file such a claim on behalf of Holders of the Notes.
Section 11.08. No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any Senior Indebtedness
to enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
non-compliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
(b) Without limiting the generality of subsection (a) of this Section
11.08, the holders of Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Notes, without incurring responsibility to the Holders of the Notes and without
impairing or releasing the subordination provided in this
<PAGE> 105
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Article 11 or the obligations hereunder of the Holders of the Notes to the
holders of Senior Indebtedness, do any one or more of the following: (1) change
the manner, place or terms of payment or extend the time of payment of, or renew
or alter, Senior Indebtedness or any instrument evidencing the same or any
agreement under which Senior Indebtedness is outstanding; (2) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Indebtedness; (3) release any Person liable in any manner for
the collection or payment of Senior Indebtedness; and (4) exercise or refrain
from exercising any rights against the Company and any other Person; provided,
however, that in no event shall any such actions limit the right of the Trustee
or the Holders of the Notes to take any action to accelerate the maturity of the
Notes pursuant to Article 6 hereof or to pursue any rights or remedies hereunder
or under applicable laws if the taking of such action does not otherwise violate
the terms of this Indenture.
Section 11.09. Notice to Trustee.
(a) The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee at its Corporate Trust Office in respect of the Notes.
Notwithstanding the provisions of this Article 11 or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts which would prohibit the making of any payment to or by the Trustee in
respect of the Notes, unless and until the Trustee shall have received written
notice thereof from the Company or a holder of Senior Indebtedness or from any
trustee, fiduciary or agent therefor; and, prior to the receipt of any such
written notice, the Trustee, subject to the provisions of this Section 11.09,
shall be entitled in all respects to assume that no such facts exist.
(b) Subject to the provisions of Section 7.01 hereof, the Trustee shall
be entitled to rely on the delivery to it of a written notice to the Trustee and
the Company by a Person representing itself to be a holder of Senior
Indebtedness (or a trustee, fiduciary or agent therefor) to establish that such
notice has been given by a holder of Senior Indebtedness (or a trustee,
fiduciary or agent therefor); provided, however, that failure to give such
notice to the Company shall not affect in any way the right of the Trustee to
rely on such notice. In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a holder
of Senior Indebtedness to participate in any payment or distribution pursuant to
this Article 11, the Trustee may request such Person to furnish evidence to the
rea-
<PAGE> 106
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sonable satisfaction of the Trustee as to the amount of Senior Indebtedness held
by such Person, the extent to which such Person is entitled to participate in
such payment or distribution and any other facts pertinent to the rights of such
Person under this Article 11, and if such evidence is not furnished, the Trustee
may defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment.
Section 11.10. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets of the Company referred to
in this Article 11, the Trustee, subject to the provisions of Section 7.01
hereof, and the Holders shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding-up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders, for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders of
Senior Indebtedness and other Indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article 11.
Section 11.11. Rights of Trustee as a Holder of Senior Indebtedness;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article 11 with respect to any Senior Indebtedness
which may at any time be held by it, to the same extent as any other holder of
Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee of
any of its rights as such holder. Nothing in this Article 11 shall apply to
claims of, or payments to, the Trustee under or pursuant to Section 7.07 hereof.
Section 11.12. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article 11 shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if
<PAGE> 107
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such Paying Agent were named in this Article 11 in addition to or in place of
the Trustee.
Section 11.13. No Suspension of Remedies.
Nothing contained in this Article 11 shall limit the right of the
Trustee or the Holders of Notes to take any action to accelerate the maturity of
the Notes pursuant to Article 6 or to pursue any rights or remedies hereunder or
under applicable law, subject to the rights, if any, under this Article 11 of
the holders, from time to time, of Senior Indebtedness.
ARTICLE 12
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture by the TIA,
the required provision shall control.
Section 12.02. Notices.
Any notice or communication shall be given in writing and delivered in
person, sent by facsimile, delivered by commercial courier service or mailed by
first-class mail, postage prepaid, addressed as follows:
If to the Company or any Guarantor:
Hayes Lemmerz International, Inc.
38481 Huron River Drive
Romulus, Michigan 48174
Attention: Chief Financial Officer
Copy to: Skadden, Arps, Slate, Meagher & Flom LLP
One Rodney Square
Wilmington, Delaware 19801
Attention: Robert B. Pincus, Esq.
If to the Trustee:
The Bank of New York
101 Barclay Street, Floor 21 West
New York, New York 10286
<PAGE> 108
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Attention: Van Brown
Fax Number: (212) 815-5915
The Company, the Guarantors or the Trustee by written notice to the
others may designate additional or different addresses for subsequent notices or
communications. Any notice or communication to the Company, the Trustee, or the
Guarantors shall be deemed to have been given or made as of the date so
delivered if personally delivered; when receipt is acknowledged, if telecopied;
and five (5) calendar days after mailing if sent by registered or certified
mail, postage prepaid (except that a notice of change of address shall not be
deemed to have been given until actually received by the addressee).
Any notice or communication mailed to a Noteholder shall be mailed to
him by first-class mail, postage prepaid, at his address shown on the register
kept by the Registrar.
Failure to mail a notice or communication to a Noteholder or any defect
in it shall not affect its sufficiency with respect to other Noteholders. If a
notice or communication to a Noteholder is mailed in the manner provided above,
it shall be deemed duly given, whether or not the addressee receives it.
In case by reason of the suspension of regular mail service, or by
reason of any other cause, it shall be impossible to mail any notice as required
by this Indenture, then such method of notification as shall be made with the
approval of the Trustee shall constitute a sufficient mailing of such notice.
Section 12.03. Communications by Holders with Other Holders.
Noteholders may communicate pursuant to TIA Section 312(b) with other
Noteholders with respect to their rights under this Indenture or the Notes. The
Company, the Guarantors, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
Section 12.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company or any Guarantor to the
Trustee to take any action under this Indenture, the Company shall furnish to
the Trustee:
(1) an Officers' Certificate (which shall include the statements set
forth in Section 12.05 below) stating
<PAGE> 109
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that, in the opinion of the signers, all conditions precedent and covenants,
if any, provided for in this Indenture relating to the proposed action have
been complied with; and
(2) an Opinion of Counsel (which shall include the statements set forth
in Section 12.05 below) stating that, in the opinion of such counsel, all
such conditions precedent and covenants have been complied with.
Section 12.05. Statements Required in Certificate and Opinion.
Each certificate and opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, it or he has made
such examination or investigation as is necessary to enable it or him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether or not, in the opinion of such Person,
such covenant or condition has been complied with.
Section 12.06. When Treasury Notes Disregarded.
In determining whether the Holders of the required aggregate principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company, any Guarantor or any other obligor on the Notes or by any Affiliate of
any of them shall be disregarded, except that for the purposes of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent, only Notes which a Trust Officer of the Trustee actually knows are
so owned shall be so disregarded. Notes so owned which have been pledged in good
faith shall not be disregarded if the pledgee establishes to the satisfaction of
the Trustee the pledgee's right so to act with respect to the Notes and that the
pledgee
<PAGE> 110
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is not the Company, a Guarantor or any other obligor upon the Notes or any
Affiliate of any of them.
Section 12.07. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at meetings of
Noteholders. The Registrar and Paying Agent may make reasonable rules for their
functions.
Section 12.08. Business Days; Legal Holidays.
A "Business Day" is a day that is not a Legal Holiday. A "Legal
Holiday" is a Saturday, a Sunday, a federally-recognized holiday or a day on
which banking institutions are not required to be open in the State of New York.
If a payment date is a Legal Holiday at a place of payment, payment may be made
at that place on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period.
Section 12.09. Governing Law.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE NOTES.
Section 12.10. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan,
security or debt agreement of the Company or any Subsidiary thereof. No such
indenture, loan, security or debt agreement may be used to interpret this
Indenture.
Section 12.11. No Recourse Against Others.
A director, officer, employee, stockholder or incorporator, as such, of
the Company shall not have any liability for any obligations of the Company
under the Notes or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creations. Each Noteholder by accepting a
Note waives and releases all such liability. Such waiver and release are part of
the consideration for the issuance of the Notes.
<PAGE> 111
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Section 12.12. Successors.
All agreements of the Company and the Guarantors in this Indenture and
the Notes shall bind their respective successors. All agreements of the Trustee,
any additional trustee and any Paying Agents in this Indenture shall bind its
successor.
Section 12.13. Multiple Counterparts.
The parties may sign multiple counterparts of this Indenture. Each
signed counterpart shall be deemed an original, but all of them together
represent one and the same agreement.
Section 12.14. Table of Contents, Headings, etc.
The table of contents, cross-reference sheet and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
Section 12.15. Separability.
Each provision of this Indenture shall be considered separable and if
for any reason any provision which is not essential to the effectuation of the
basic purpose of this Indenture or the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
<PAGE> 112
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IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed, and the Company's corporate seal to be hereunto affixed and attested,
all as of the date and year first written above.
HAYES LEMMERZ INTERNATIONAL, INC.
By:
------------------------------------------
Name:
Title:
ATTEST:
- -------------------------------
Name:
Title:
Guarantors:
HAYES LEMMERZ INTERNATIONAL -
CALIFORNIA, INC.
HAYES LEMMERZ INTERNATIONAL -
GEORGIA, INC.
HAYES LEMMERZ INTERNATIONAL -
INDIANA, INC.
HAYES LEMMERZ INTERNATIONAL -
MEXICO, INC.
HAYES LEMMERZ INTERNATIONAL -
MICHIGAN, INC.
HAYES LEMMERZ INTERNATIONAL -
OHIO, INC.
HL OHIO SUB, INC.
By:
------------------------------------------
Name:
Title:
ATTEST:
- --------------------------
Name:
Title:
<PAGE> 113
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THE BANK OF NEW YORK
as Trustee
By:
------------------------------------------
Name:
Title:
<PAGE> 114
EXHIBIT A
[FORM OF FACE OF NOTE]
CUSIP
HAYES LEMMERZ INTERNATIONAL, INC.
No. [ ] $
8-1/4% SENIOR SUBORDINATED NOTE DUE 2008
HAYES LEMMERZ INTERNATIONAL, INC., a Delaware corporation (the
"Company", which term includes any successor corporation), for value received,
promises to pay to or registered assigns the principal sum of $ dollars on
December 15, 2008.
Interest Payment Dates: June 15 and December 15, commencing June 15, 1999.
Record Dates: June 1 and December 1.
Reference is made to the further provisions of this Note contained
herein, which will for all purposes have the same effect as if set forth at this
place.
A-1
<PAGE> 115
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
HAYES LEMMERZ INTERNATIONAL, INC.
By:
---------------------------------
Title:
By:
---------------------------------
Title:
Certificate of Authentication
This is one of the 8-1/4% Senior Subordinated Notes due 2008 referred
to in the within-mentioned Indenture.
Dated:
The Bank of New York,
as Trustee
By:
-----------------------------------
Authorized Signatory
A-2
<PAGE> 116
[FORM OF REVERSE OF NOTE]
HAYES LEMMERZ INTERNATIONAL, INC.
8-1/4% SENIOR SUBORDINATED NOTE DUE 2008
1. Interest. Hayes Lemmerz International, Inc., a Delaware
corporation (the "Company"), promises to pay, interest on the principal amount
set forth on the face hereof at a rate of 8-1/4% per annum. Interest hereon will
accrue from and including the most recent date to which interest has been paid
or, if no interest has been paid, from and including December 14, 1998 to but
excluding the date on which interest is paid. Interest shall be payable in
arrears on each June 15 and December 15 commencing June 15, 1999. Interest will
be computed on the basis of a 360-day year of twelve 30-day months. The Company
shall pay interest on overdue principal and on overdue interest (to the full
extent permitted by law) at a rate equal to the rate of interest otherwise
payable on the Notes.
2. Method of Payment. The Company will pay interest hereon (except
defaulted interest) to the Persons who are registered holders (the "Holders") at
the close of business on June 1 or December 1 next preceding the interest
payment date (whether or not a Business Day). Holders must surrender Notes to a
Paying Agent to collect principal payments. The Company will pay principal and
interest in money of the United States of America that at the time of payment is
legal tender for payment of public and private debts. Interest may be paid by
check mailed to the Holder entitled thereto at the address indicated on the
register maintained by the Registrar for the Notes.
3. Paying Agent and Registrar. Initially, The Bank of New York (the
"Trustee") will act as a Paying Agent and Registrar. The Company may change any
Paying Agent or Registrar without notice to the Holders. Neither the Company nor
any of its Affiliates may act as Paying Agent or Registrar.
4. Indenture. The Company issued the Notes under an Indenture dated
as of December 14, 1998 (the "Indenture") among the Company, the Guarantors (as
defined in the Indenture) and the Trustee. This is one of an issue of Notes of
the Company issued, or to be issued, under the Indenture. The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb), as amended from
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<PAGE> 117
time to time. The Notes are subject to all such terms, and Holders are referred
to the Indenture and such Act for a statement of them. Capitalized and certain
other terms used herein and not otherwise defined have the meanings set forth in
the Indenture. The Notes are obligations of the Company limited in aggregate
principal amount to $250 million.
5. Optional Redemption. The Notes will be redeemable at the option of
the Company, in whole or in part, at any time on or after December 15, 2003 upon
not less than 30 nor more than 60 days' notice, at the redemption prices
(expressed as percentages of principal amount), set forth below, together, in
each case, with accrued and unpaid interest to the Redemption Date, if redeemed
during the twelve month period beginning on December 15 of each year listed
below:
<TABLE>
<CAPTION>
Year Redemption Price
---- ----------------
<S> <C>
2003................................................. 104.125%
2004................................................. 102.750%
2005................................................. 101.375%
2006 and thereafter.................................. 100.000%
</TABLE>
Notwithstanding the foregoing, the Company may redeem in the aggregate
up to 35% of the original principal amount of Notes at any time and from time to
time on or prior to December 15, 2001 at a redemption price equal to 108.25% of
the aggregate principal amount so redeemed, plus accrued and unpaid interest
thereon to the Redemption Date with the Net Proceeds of one or more Equity
Offerings; provided, that at least $162.5 million of the principal amount of
Notes originally issued remains outstanding immediately after the occurrence of
any such redemption and that any such redemption occurs within 60 days following
the closing of any such Equity Offering.
6. Notice of Redemption. Notice of redemption will be mailed at least
30 days but not more than 60 days before the Redemption Date to each Holder
whose Notes are to be redeemed at his registered address. On and after the
Redemption Date, unless the Company defaults in making the redemption payment,
interest ceases to accrue on Notes or portions thereof called for redemption.
7. Offers to Purchase. The Indenture provides that upon the
occurrence of a Change of Control or an Asset Sale and subject to further
limitations contained therein, the Company shall make an offer to purchase
outstanding Notes in accordance with the procedures set forth in the Indenture.
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<PAGE> 118
8. Registration Rights. Pursuant to a Registration Rights Agreement
among the Company, the Guarantors and the Initial Purchasers, the Company will
be obligated to consummate an exchange offer pursuant to which the Holders shall
have the right to exchange this Note for notes of a separate series issued under
the Indenture (or a trust indenture substantially identical to the Indenture in
accordance with the terms of the Registration Rights Agreement) which have been
registered under the Securities Act, in like principal amount and having
identical terms in all material respects as the Notes. The Holders shall be
entitled to receive certain additional interest payments in the event such
exchange offer is not consummated and upon certain other conditions, all
pursuant to and in accordance with the terms of the Registration Rights
Agreement.
9. Denominations, Transfer, Exchange. The Notes are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. A Holder may transfer or exchange Notes in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay to it any taxes and
fees required by law or permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Notes or portion of a Note selected for
redemption, or register the transfer of or exchange any Notes for a period of 15
days before a mailing of notice of redemption.
10. Persons Deemed Owners. The registered Holder of this Note may be
treated as the owner of this Note for all purposes.
11. Unclaimed Money. If money for the payment of principal or interest
remains unclaimed for two years, the Trustee will pay the money back to the
Company at its written request. After that, Holders entitled to the money must
look to the Company for payment as general creditors unless an "abandoned
property" law designates another Person.
12. Amendment, Supplement, Waiver, Etc. The Company, the Guarantors
and the Trustee (if a party thereto) may, without the consent of the Holders of
any outstanding Notes, amend, waive or supplement the Indenture or the Notes for
certain specified purposes, including, among other things, curing ambiguities,
defects or inconsistencies, maintaining the qualification of the Indenture under
the Trust Indenture Act of 1939, as amended, and making any change that does not
materially and adversely affect the rights of any Holder. Other amendments and
modifications of the Indenture or the Notes may
A-5
<PAGE> 119
be made by the Company, the Guarantors and the Trustee with the consent of the
Holders of not less than a majority of the aggregate principal amount of the
outstanding Notes, subject to certain exceptions requiring the consent of the
Holders of the particular Notes to be affected.
13. Restrictive Covenants. The Indenture imposes certain limitations
on the ability of the Company and its Restricted Subsidiaries to, among other
things: (i) incur additional Indebtedness; (ii) pay dividends and make
distributions; (iii) issue stock of subsidiaries; (iv) make certain investments;
(v) repurchase stock; (vi) create liens; (vii) enter into transactions with
affiliates; (viii) merge or consolidate the Company or the Guarantors; and (ix)
transfer or sell assets. Such limitations are subject to a number of important
qualifications and exceptions. Pursuant to Section 4.04 of the Indenture, the
Company must annually report to the Trustee on compliance with such limitations.
14. Successor Corporation. When a successor corporation assumes all
the obligations of its predecessor under the Notes and the Indenture and the
transaction complies with the terms of Article 5 of the Indenture, the
predecessor corporation will, except as provided in Article 5, be released from
those obligations.
15. Defaults and Remedies. Events of Default are set forth in the
Indenture. Subject to certain limitations in the Indenture, if an Event of
Default (other than an Event of Default specified in Section 6.01(6) or (7) of
the Indenture with respect to the Company) occurs and is continuing, the Trustee
or the Holders of not less than 25% in aggregate principal amount of the
outstanding Notes may, by written notice to the Trustee and the Company, and the
Trustee upon the request of the Holders of not less than 25% in aggregate
principal amount of the outstanding Notes shall, declare all principal of and
accrued interest on all Notes to be immediately due and payable and (i) such
amounts shall become immediately due and payable or (ii) if there are any
amounts outstanding under or in respect of the Amended Credit Agreement, such
amounts shall become due and payable upon the first to occur of an acceleration
of amounts outstanding under or in respect of the Amended Credit Agreement or
five Business Days after receipt by the Company and the representative of the
holders of Indebtedness under or in respect of the Amended Credit Agreement, of
notice of the acceleration of the Notes. If an Event of Default specified in
Section 6.01(6) or (7) of the Indenture occurs with respect to the Company, the
principal amount of and inter-
A-6
<PAGE> 120
est on, all Notes shall ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any Holder.
Holders may not enforce the Indenture or the Notes except as provided in the
Indenture. The Trustee may require indemnity satisfactory to it before it
enforces the Indenture or the Notes. Subject to certain limitations, Holders of
a majority in principal amount of the then outstanding Notes may direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders notice of any continuing default (except a default in payment of
principal or interest) if it determines that withholding notice is in their
interests. The Company and each Guarantor must furnish an annual compliance
certificate to the Trustee.
16. Trustee Dealings with Company. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not Trustee.
17. No Recourse Against Others. No director, officer, employee
incorporator or stockholder, of the Company or any Guarantor shall have any
liability for any obligations of the Company or the Guarantors under the Notes,
the Indenture or the Guarantees or for a claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder of Notes by accepting
a Note waives and releases all such liability. The waiver and release are part
of the consideration for the issuance of the Notes.
18. Discharge. The Company's obligations pursuant to the Indenture
will be discharged, except for obligations pursuant to certain sections thereof,
subject to the terms of the Indenture, upon the payment of all the Notes or upon
the irrevocable deposit with the Trustee of United States dollars sufficient to
pay when due principal of and interest on the Notes to maturity or redemption,
as the case may be.
19. Guarantees. The Note will be entitled to the benefits of certain
Guarantees made for the benefit of the Holders. Reference is hereby made to the
Indenture for a statement of the respective rights, limitations of rights,
duties and obligations thereunder of the Guarantors, the Trustee and the
Holders.
20. Authentication. This Note shall not be valid until the Trustee
signs the certificate of authentication on the other side of this Note.
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<PAGE> 121
21. Governing Law. THE INTERNAL LAWS OF THE STATE OF NEW YORK
SHALL GOVERN THIS NOTE WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS. The
Trustee, the Company, the Guarantor and the Holders agree to submit to the
jurisdiction of the courts of the State of New York in any action or proceeding
arising out of or relating to the Indenture or the Notes.
22. Abbreviations. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TENANT
(= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
23. CUSIP Numbers. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Issuers has
caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to the Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption and reliance may be placed
only on the other identification numbers placed thereon.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture and Registration Rights Agreement.
Requests may be made to:
HAYES LEMMERZ INTERNATIONAL, INC.
38481 Huron River Drive
Romulus, Michigan 48174
Attention: Chief Financial Officer
A-8
<PAGE> 122
ASSIGNMENT
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
- -------------------------------------------------------------------
- -------------------------------------------------------------------
- -------------------------------------------------------------------
- -------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
- -------------------------------------------------------------------
- -------------------------------------------------------------------
Agent to transfer this Note on the books of the Company. The Agent may
substitute another to act for him.
Date:
----------
Signature:
-----------------------------------
(Sign exactly as your name appears
on the face of this Note)
Signature Guarantee:
A-9
<PAGE> 123
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Note
purchased by the Company pursuant to Section 4.15 or Section 4.20 of the
Indenture, check the appropriate box:
- Section 4.15 - Section 4.20
If you want to have only part of the Note purchased by the
Company pursuant to Section 4.15 or Section 4.20 of the Indenture, state the
amount you elect to have purchased:
$
--------------------
(multiple of $1,000)
Date:
--------------
Your Signature:
------------------------------
(Sign exactly as your name appears on the face
of this Note)
- -------------------------
Signature Guaranteed
A-10
<PAGE> 124
EXHIBIT B
[FORM OF PRIVATE PLACEMENT LEGEND]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS
SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A)
IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE ACT)
OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(a)(1), (2), (3) OR (7) UNDER THE ACT) (AN "ACCREDITED INVESTOR") OR (C) IT
IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE ACT, (2) AGREES THAT IT WILL NOT WITHIN TWO
YEARS AFTER THE ORIGINAL ISSUANCE OF THIS NOTE RESELL OR OTHERWISE TRANSFER THIS
NOTE EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED
STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
ACT, (C) INSIDE THE UNITED STATES TO AN ACCREDITED INVESTOR THAT, PRIOR TO SUCH
TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO
THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER
CAN BE OBTAINED FROM THE TRUSTEE), (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE ACT, (E) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE ACT (IF AVAILABLE) OR
(F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, AND (3)
AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY
TRANSFER OF THIS NOTE WITHIN TWO YEARS AFTER ORIGINAL ISSUANCE OF THIS NOTE, IF
THE PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO
SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM OR IN A
TRANSACTION NOT SUBJECT TO THE REGISTRATION REQUIREMENTS OF THE ACT. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE
THE MEANING GIVEN TO THEM BY REGULATION S UNDER THE ACT.
B-1
<PAGE> 125
EXHIBIT C-1
[FORM OF ASSIGNMENT FOR 144A NOTE]
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
- -----------------------------------------------------------------------
- -----------------------------------------------------------------------
- -----------------------------------------------------------------------
- -----------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
- -----------------------------------------------------------------------
- -----------------------------------------------------------------------
Agent to transfer this Note on the books of the Company. The Agent may
substitute another to act for him.
[Check One]
[ ] (a) this Note is being transferred in compliance with the
exemption from registration under the Securities Act provided
by Rule 144A thereunder.
or
[ ] (b) this Note is being transferred other than in accordance with
(a) above and documents are being furnished which comply with
the conditions of transfer set forth in this Note and the
Indenture.
If none of the foregoing boxes is checked, the Trustee or Registrar shall not be
obligated to register this Note in the name of any person other than the Holder
hereof unless and until the conditions to any such transfer of registration set
forth herein and in Section 2.15 of the Indenture shall have been satisfied.
Date: Your Signature
------------------- ----------------------------
-----------------------------------------
(Sign exactly as your name appears on the
other side of this Note)
Signature Guarantee:
-----------------------------------------
C-1-1
<PAGE> 126
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated:
----------------------- ----------------------------------
NOTICE: To be executed by an
executive officer
C-1-2
<PAGE> 127
EXHIBIT C-2
[FORM OF ASSIGNMENT FOR REGULATION S NOTE]
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
Agent to transfer this Note on the books of the Company. The Agent may
substitute another to act for him.
[Check One]
[ ] (a) this Note is being transferred in compliance with the
exemption from registration under the Securities Act provided
by Rule 144A thereunder.
or
[ ] (b) this Note is being transferred other than in accordance with
(a) above and documents are being furnished which comply with
the conditions of transfer set forth in this Note and the
Indenture.
If none of the foregoing boxes is checked, the Trustee or Registrar shall not be
obligated to register this Note in the name of any person other than the Holder
hereof unless and until the conditions to any such transfer of registration set
forth herein and in Section 2.15 of the Indenture shall have been satisfied.
Date: Your Signature:
------------------- ---------------------------------
-------------------------------------------------
(Sign exactly as your name appears on the other
side of this Note)
Signature Guarantee:
----------------------------------------------------
C-2-1
<PAGE> 128
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated:
-------------------------- ------------------------------
NOTICE: To be executed by
an executive officer
C-2-2
<PAGE> 129
EXHIBIT D
[FORM OF LEGEND FOR GLOBAL NOTE]
Any Global Note authenticated and delivered hereunder shall
bear a legend (which would be in addition to any other legends required in the
case of a Restricted Note) in substantially the following form:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE OF A DEPOSITARY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN
THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE
(OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF
THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (A NEW YORK CORPORATION) ("DTC") TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
D-1
<PAGE> 130
EXHIBIT E
Form of Certificate to Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
-----------, ----
The Bank of New York
101 Barclay Street, Floor 21 West
New York, New York 10286
Attention:
Re: Hayes Lemmerz International, Inc. (the "Company") 8-1/4% Senior
Subordinated Notes due 2008 (the "Notes")
Dear Sirs:
In connection with our proposed purchase of Notes, we confirm
that:
1. We understand that any subsequent transfer of the
Notes is subject to certain restrictions and conditions set forth in
the Indenture dated as of December 14, 2008 relating to the Notes and
we agree to be bound by, and not to resell, pledge or otherwise
transfer the Notes except in compliance with, such restrictions and
conditions and the Securities Act of 1933, as amended (the "Securities
Act").
2. We understand that the Notes have not been registered
under the Securities Act or any other applicable securities laws, have
not been and will not be qualified for sale under the securities laws
of any non-U.S. jurisdiction, and that the Notes may not be offered,
sold, pledged or otherwise transferred except as permitted in the
following sentence. We agree, on our own behalf and on behalf of any
accounts for which we are acting as hereinafter stated, that if we
should sell any Notes, we will do so only (i) to the Company or any
subsidiary thereof, (ii) in accordance with Rule 144A under the
Securities Act to a "qualified institutional buyer" (as defined in Rule
144A), (iii) to an institutional "accredited investor" (as defined
below) that, prior to such transfer, furnishes (or
E-1
<PAGE> 131
has furnished on its behalf by a U.S. broker-dealer) to you a signed
letter containing certain representations and agreements relating to
the restrictions on transfer of the Notes, (iv) outside the United
States to foreign purchasers in offshore transactions meeting the
requirements of Rule 904 of Regulation S under the Securities Act, (v)
pursuant to the exemption from registration provided by Rule 144 under
the Securities Act (if available), or (vi) pursuant to an effective
registration statement under the Securities Act, and we further agree
to provide to any person purchasing any of the Notes from us a notice
advising such purchaser that resales of the Notes are restricted as
stated herein.
3. We understand that, on any proposed resale of any
Notes, we will be required to furnish to you and the Company such
certifications, legal opinions and other information as you and the
Company may reasonably require to confirm that the proposed sale
complies with the foregoing restrictions. We further understand that
the Notes purchased by us will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act)
and have such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of our
investment in the Notes, and we and any accounts for which we are
acting each are able to bear the economic risk of our or their
investment, as the case may be.
5. We are acquiring the Notes purchased by us for our
account or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which we exercise sole investment
discretion.
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
E-2
<PAGE> 132
By:
----------------------------
Authorized Signature
E-3
<PAGE> 133
EXHIBIT F
Form of Certificate to Be Delivered
in Connection with Transfers
Pursuant to Regulation S
----------, ----
The Bank of New York
101 Barclay Street, Floor 21 West
New York, New York 10286
Attention:
Re: Hayes Lemmerz International, Inc.
(the "Company") 8-1/4% Senior Subordinated
Notes due 2008 (the "Notes")
Dear Sirs:
In connection with our proposed sale of $__________ aggregate
principal amount of the Notes, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the U.S. Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Notes was not made to a U.S. person or
to a person in the United States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the
United States, or (b) the transaction was executed in, on or through
the facilities of a designated off-shore securities market and neither
we nor any person acting on our behalf knows that the transaction has
been pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S, as applicable;
F-1
<PAGE> 134
(4) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer
restrictions applicable to the Notes.
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby. Terms used in this certificate have
the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
-------------------------------
Authorized Signature
F-2
<PAGE> 135
EXHIBIT G
[FORM OF GUARANTEE]
Each of the undersigned (the "Guarantors") hereby jointly and
severally unconditionally guarantees, to the extent set forth in the Indenture
dated as of December 14, 1998 by and among Hayes Lemmerz International, Inc., as
issuer, the Guarantors, as guarantors, and The Bank of New York, as Trustee (as
amended, restated or supplemented from time to time, the "Indenture"), and
subject to the provisions of the Indenture, (a) the due and punctual payment of
the principal of, and premium, if any, and interest on the Notes, when and as
the same shall become due and payable, whether at maturity, by acceleration or
otherwise, the due and punctual payment of interest on overdue principal,
premium and, to the extent permitted by law, interest, and the due and punctual
performance of all other obligations of the Company to the Noteholders or the
Trustee, all in accordance with the terms set forth in Article 10 of the
Indenture, and (b) in case of any extension of time of payment or renewal of any
Notes or any of such other obligations, that the same will be promptly paid in
full when due or performed in accordance with the terms of the extension or
renewal, whether at stated maturity, by acceleration or otherwise.
The obligations of the Guarantors to the Noteholders and to
the Trustee pursuant to this Guarantee and the Indenture are expressly set forth
in Article 10 of the Indenture and reference is hereby made to the Indenture for
the precise terms and limitations of this Guarantee.
HAYES LEMMERZ INTERNATIONAL-
CALIFORNIA, INC.
HAYES LEMMERZ INTERNATIONAL-
GEORGIA, INC.
HAYES LEMMERZ INTERNATIONAL-
INDIANA, INC.
HAYES LEMMERZ INTERNATIONAL-
MEXICO, INC.
HAYES LEMMERZ INTERNATIONAL-
MICHIGAN, INC.
HAYES LEMMERZ INTERNATIONAL-
OHIO, INC.
HL OHIO SUB, INC.
By:
---------------------------
Name:
Title:
<PAGE> 1
EXHIBIT 4.12
- --------------------------------------------------------------------------------
REGISTRATION RIGHTS AGREEMENT
Dated as of December 14, 1998
by and among
HAYES LEMMERZ INTERNATIONAL, INC.,
THE GUARANTORS
named herein
and
THE INITIAL PURCHASERS
named herein
- --------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
-----------------
Page
----
1. Definitions.........................................................1
2. Exchange Offer......................................................5
3. Shelf Registration..................................................9
4. Additional Interest................................................10
5. Registration Procedures............................................12
6. Registration Expenses..............................................23
7. Indemnification....................................................25
8. Rules 144 and 144A.................................................29
9. Underwritten Registrations.........................................29
10. Miscellaneous......................................................30
(a) Remedies..................................................30
(b) Enforcement...............................................30
(c) No Inconsistent Agreements................................30
(d) Adjustments Affecting Registrable Notes...................30
(e) Amendments and Waivers....................................30
(f) Notices...................................................31
(g) Successors and Assigns....................................32
(h) Counterparts..............................................32
(i) Headings..................................................32
(J) GOVERNING LAW.............................................32
(k) Severability..............................................32
(l) Entire Agreement..........................................33
(m) Joint and Several Obligations.............................33
(n) Notes Held by the Company or their Affiliates.............33
-i-
<PAGE> 3
REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of
December 14, 1998, by and among HAYES LEMMERZ INTERNATIONAL, INC., a Delaware
corporation (the "Company"), the Guarantors as listed on the signature pages
hereto (the "Guarantors"), and CIBC OPPENHEIMER CORP. ("CIBC"), CREDIT SUISSE
FIRST BOSTON CORPORATION and MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
as initial purchasers (the "Initial Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement, dated as of December 7, 1998 among the Company, the Guarantors and
the Initial Purchasers (the "Purchase Agreement") relating to the sale by the
Company to the Initial Purchasers of $250,000,000 aggregate principal amount of
the Company's 8-1/4% Senior Subordinated Notes due 2008 (the "Notes") and the
guarantee of the Notes by the Guarantors (the "Guarantees"). In order to induce
the Initial Purchasers to enter into the Purchase Agreement, the Company and the
Guarantors have agreed to provide the registration rights set forth in this
Agreement to the Initial Purchasers and their direct and indirect transferees
and assigns. The execution and delivery of this Agreement is a condition to the
Initial Purchasers' obligation to purchase the Notes under the Purchase
Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the
following meanings:
Additional Interest: See Section 4(a).
Advice: See Section 5.
Applicable Period: See Section 2(b).
Closing: See the Purchase Agreement.
Company: See the introductory paragraph to this Agreement.
Effectiveness Date: The 215th day after the Issue Date.
Effectiveness Period: See Section 3(a).
Event Date: See Section 4(c).
<PAGE> 4
-2-
Exchange Act: The Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
Exchange Notes: See Section 2(a).
Exchange Offer: See Section 2(a).
Exchange Registration Statement: See Section 2(a).
Filing Date: The 155th day after the Issue Date.
Guarantees: See the introductory paragraph of this Agreement.
Holder: Any holder of a Registrable Note or Registrable
Notes.
Indemnified Person: See Section 7(c).
Indemnifying Person: See Section 7(c).
Indenture: The Indenture, dated as of December 14, 1998, among
the Company, the Guarantors and The Bank of New York, as trustee, pursuant to
which the Notes are being issued, as amended or supplemented from time to time
in accordance with the terms thereof.
Initial Purchasers: See the introductory paragraph to this
Agreement.
Initial Shelf Registration: See Section 3(a).
Inspectors: See Section 5(o).
Issue Date: The date on which the original Notes are sold to
the Initial Purchasers pursuant to the Purchase Agreement.
NASD: See Section 5(t).
Notes: See the introductory paragraph to this Agreement.
Participant: See Section 7(a).
Participating Broker-Dealer: See Section 2(b).
<PAGE> 5
-3-
Person: An individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government (including any agency or political
subdivision thereof).
Private Exchange: See Section 2(b).
Private Exchange Notes: See Section 2(b).
Prospectus: The prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A promulgated under the Securities Act), as amended or supplemented by
any prospectus supplement, with respect to the terms of the offering of any
portion of the Registrable Notes covered by such Registration Statement, and all
other amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
Purchase Agreement: See the introductory paragraphs to this
Agreement.
Records: See Section 5(o).
Registrable Notes: The Notes upon original issuance of the
Notes and at all times subsequent thereto and, if issued, the Private Exchange
Notes, until in the case of any such Notes or any such Private Exchange Notes,
as the case may be, (i) a Registration Statement covering such Notes or such
Private Exchange Notes has been declared effective by the SEC and such Notes or
such Private Exchange Notes, as the case may be, have been exchanged and/or
disposed of in accordance with such effective Registration Statement, (ii) such
Notes or such Private Exchange Notes, as the case may be, are sold in compliance
with Rule 144, (iii) in the case of any Note, such Note has been exchanged for
an Exchange Note or Exchange Notes pursuant to an Exchange Offer or (iv) such
Notes or such Private Exchange Notes, as the case may be, cease to be
outstanding.
Registration Default: See Section 4(a).
Registration Statement: Any registration statement of the
Company or the Guarantors, including, but not limited to, the Exchange
Registration Statement, which covers any of the Registrable Notes pursuant to
the provisions of this Agree-
<PAGE> 6
-4-
ment, including the Prospectus, amendments and supplements to such registration
statement, including post-effective amendments, all exhibits, and all material
incorporated by reference or deemed to be incorporated by reference in such
registration statement.
Rule 144: Rule 144 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the SEC providing for offers and sales
of securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
Rule 144A: Rule 144A promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than Rule
144) or regulation hereafter adopted by the SEC providing for offers and sales
of securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
Rule 415: Rule 415 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(c).
Shelf Registration: See Section 3(b).
Subsequent Shelf Registration: See Section 3(b).
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture and, if existent, the
trustee under any indenture governing the Exchange Notes and Private Exchange
Notes (if any).
Underwritten registration or underwritten offering: A
registration under the Securities Act in which securities of
<PAGE> 7
-5-
the Company are sold to an underwriter(s) for reoffering to the public.
2. Exchange Offer
(a) Each of the Company and the Guarantors jointly and
severally agrees to use its best efforts to file with the SEC as soon as
practicable after the Closing, but in no event later than the Filing Date,
documents pertaining to an offer to exchange (the "Exchange Offer") any and all
of the Registrable Notes for a like aggregate principal amount of debt
securities of the Company, guaranteed by the Guarantors, which are identical in
all material respects to the Notes (the "Exchange Notes") (and which are
entitled to the benefits of the Indenture or a trust indenture which is
substantially identical to the Indenture (other than such changes to the
Indenture or any such identical trust indenture as are necessary to comply with
any requirements of the SEC to effect or maintain the qualification thereof
under the TIA) and which, in either case, has been qualified under the TIA),
except that the Exchange Notes shall have been registered pursuant to an
effective registration statement under the Securities Act and will not contain
terms with respect to transfer restrictions. The documents pertaining to the
Exchange Offer will be filed under the Securities Act on the appropriate form
(the "Exchange Registration Statement") and the Exchange Offer will comply with
all applicable tender offer rules and regulations under the Exchange Act. Each
of the Company and the Guarantors jointly and severally agrees to use its best
efforts to (x) cause the Exchange Registration Statement to become effective
under the Securities Act on or before the Effectiveness Date; (y) keep the
Exchange Offer open for at least 30 days (or longer if required by applicable
law) after the date that notice of the Exchange Offer is mailed to Holders; and
(z) consummate the Exchange Offer on or prior to the 245th day (or, in the event
of any extension of the Exchange Offer required by applicable law, the earliest
day following any such extension) following the Issue Date. Each Holder who
participates in the Exchange Offer will be required to represent that any
Exchange Notes received by it will be acquired in the ordinary course of its
business, that at the time of the consummation of the Exchange Offer such Holder
will have no arrangement or understanding with any Person to participate in the
distribution of the Exchange Notes in violation of the provisions of the
Securities Act, that such Holder is not an affiliate of any of the Company or
the Guarantors within the meaning of Rule 405 promulgated under the Securities
Act or if it is such an affiliate, that it will comply with the registration and
prospectus delivery requirements of the Securities
<PAGE> 8
-6-
Act, to the extent applicable and that is not acting on behalf of any Person who
could not truthfully make the foregoing representations. Upon consummation of
the Exchange Offer in accordance with this Section 2, the provisions of this
Agreement shall continue to apply, mutatis mutandis, solely with respect to
Registrable Notes that are Private Exchange Notes and Exchange Notes held by
Participating Broker-Dealers, and the Company and the Guarantors shall have no
further obligation to register Registrable Notes (other than Private Exchange
Notes and Exchange Notes held by Participating Broker-Dealers) pursuant to
Section 3 of this Agreement.
(b) The Company and the Guarantors shall include within the
Prospectus contained in the Exchange Registration Statement a section entitled
"Plan of Distribution," reasonably acceptable to the Initial Purchasers, which
shall contain a summary statement of the positions taken or policies made by the
staff of the SEC with respect to the potential "underwriter" status of any
broker-dealer that is the beneficial owner (as defined in Rule 13d-3 promulgated
under the Exchange Act) of Exchange Notes received by such broker-dealer in the
Exchange Offer (a "Participating Broker-Dealer"), whether such positions or
policies have been publicly disseminated by the staff of the SEC or such
positions or policies, in the reasonable judgment of the Initial Purchasers,
represent the prevailing views of the staff of the SEC. Such "Plan of
Distribution" section shall also allow the use of the Prospectus by all Persons
subject to the prospectus delivery requirements of the Securities Act, including
all Participating Broker-Dealers, and include a statement describing the means
by which Participating Broker-Dealers may resell the Exchange Notes.
Each of the Company and the Guarantors shall use its best
efforts to keep the Exchange Registration Statement effective and to amend and
supplement the Prospectus contained therein in order to permit such Prospectus
to be lawfully delivered by all Persons subject to the prospectus delivery
requirements of the Securities Act for such period of time as such Persons must
comply with such requirements in order to resell the Exchange Notes, provided
that such period shall not exceed 180 days (or such longer period if extended
pursuant to the last paragraph of Section 5) (the "Applicable Period").
If, prior to consummation of the Exchange Offer, the Initial
Purchasers hold any Notes acquired by them and having, or which are reasonably
likely to be determined to have, the status as an unsold allotment in the
initial distribution, the Company and the Guarantors upon the request of such
Initial
<PAGE> 9
-7-
Purchasers shall, simultaneously with the delivery of the Exchange Notes
in the Exchange Offer, issue and deliver to such Initial Purchasers, in exchange
(the "Private Exchange") for the Notes held by such Initial Purchasers, a like
principal amount of debt securities of the Company guaranteed by the Guarantors,
that are identical in all material respects to the Exchange Notes (the "Private
Exchange Notes") (and which are issued pursuant to the same indenture as the
Exchange Notes) except for the placement of a restrictive legend on the Private
Exchange Notes. If possible, the Private Exchange Notes shall bear the same
CUSIP number as the Exchange Notes. Interest on the Exchange Notes and Private
Exchange Notes will accrue from (A) the later of (i) the last interest payment
date on which interest was paid on the Notes surrendered in exchange therefor or
(ii) if the Notes are surrendered for exchange on a date in a period which
includes the record date for an interest payment date to occur on or after the
date of such exchange and as to which interest will be paid, the date of such
interest payment date or (B) if no interest has been paid on the Notes, from the
Issue Date.
In connection with the Exchange Offer, the Company and the
Guarantors shall:
(i) mail to each Holder a copy of the Prospectus forming part
of the Exchange Registration Statement, together with an appropriate
letter of transmittal and related documents;
(ii) utilize the services of a depositary for the Exchange
Offer with an address in the Borough of Manhattan, The City of New
York; and
(iii) permit Holders to withdraw tendered Notes at any time
prior to the close of business, New York City time, on the last
business day on which the Exchange Offer shall remain open.
As soon as practicable after the close of the Exchange Offer
or the Private Exchange, as the case may be, the Company and the Guarantors
shall:
(i) accept for exchange all Notes tendered and not validly
withdrawn pursuant to the Exchange Offer or the Private Exchange;
(ii) deliver to the Trustee for cancellation all Notes so
accepted for exchange; and
<PAGE> 10
-8-
(iii) cause the Trustee to authenticate and deliver promptly
to each Holder of Notes, Exchange Notes or Private Exchange Notes, as
the case may be, equal in principal amount to the Notes of such Holder
so accepted for exchange.
The Exchange Notes and the Private Exchange Notes may be
issued under (i) the Indenture or (ii) an indenture substantially identical to
the Indenture, which in either event will provide that (1) the Exchange Notes
will not be subject to the transfer restrictions set forth in the Indenture and
(2) the Private Exchange Notes will be subject to the transfer restrictions set
forth in the Indenture. The Indenture or such indenture shall provide that the
Exchange Notes, the Private Exchange Notes and the Notes will have the right to
vote and give consents together on all matters presented to such holders for
votes or consents as one class and that neither the Exchange Notes, the Private
Exchange Notes nor the Notes will have the right to vote or consent as a
separate class on any matter.
(c) If (1) prior to the consummation of the Exchange Offer,
the Company and the Guarantors or Holders of at least a majority in aggregate
principal amount of the Registrable Notes reasonably determine in good faith
that (i) the Exchange Notes would not, upon receipt, be freely transferable by
such Holders which are not affiliates (within the meaning of the Securities Act)
of the Company or the Guarantors without restriction under the Securities Act
and without restrictions under applicable state securities laws, (ii) the
interests of the Holders under this Agreement would be adversely affected by the
consummation of the Exchange Offer or (iii) after conferring with counsel, the
SEC is unlikely to permit the commencement of the Exchange Offer prior to the
Effectiveness Date, (2) subsequent to the consummation of the Private Exchange,
any holder of the Private Exchange Notes so requests or (3) the Exchange Offer
is commenced and not consummated within 245 days of the Issue Date, then the
Company and the Guarantors shall promptly deliver to the Holders and the Trustee
written notice thereof (the "Shelf Notice") and shall file an Initial Shelf
Registration pursuant to Section 3. Following the delivery of a Shelf Notice to
the Holders of Registrable Notes (in the circumstances contemplated by clauses
(1) and (3) of the preceding sentence), the Company and the Guarantors shall not
have any further obligation to conduct the Exchange Offer or the Private
Exchange under this Section 2.
<PAGE> 11
-9-
3. Shelf Registration
If a Shelf Notice is required to be delivered as contemplated
by Section 2(c), then:
(a) Initial Shelf Registration. The Company and the Guarantors
shall prepare and file with the SEC a Registration Statement for an offering to
be made on a continuous basis pursuant to Rule 415 covering all of the then
existing Registrable Notes (the "Initial Shelf Registration"). If the Company
and the Guarantors shall have not yet filed an Exchange Registration Statement,
each of the Company and the Guarantors shall use its best efforts to file with
the SEC the Initial Shelf Registration on or prior to the Filing Date. In any
other instance, each of the Company and the Guarantors shall use its best
efforts to file with the SEC the Initial Shelf Registration as promptly as
practicable following delivery of the Shelf Notice. The Initial Shelf
Registration shall be on Form S-3 or another appropriate form permitting
registration of such Registrable Notes for resale by such Holders in the manner
or manners designated by them (including, without limitation, one or more
underwritten offerings). The Company and the Guarantors shall not permit any
securities other than the Registrable Notes to be included in the Initial Shelf
Registration or any Subsequent Shelf Registration. Each of the Company and the
Guarantors shall use its best efforts to cause the Initial Shelf Registration to
be declared effective under the Securities Act, if an Exchange Registration
Statement has not yet been declared effective, on or prior to the Effectiveness
Date, or, in any other instance, as soon as practicable after the filing thereof
and in no event later than 90 days following delivery of the Shelf Notice, and
to keep the Initial Shelf Registration continuously effective under the
Securities Act until the date which is 24 months from the date on which such
Initial Shelf Registration is declared effective (subject to extension pursuant
to the last paragraph of Section 5 hereof), or such shorter period ending when
all Registrable Notes covered by the Initial Shelf Registration have been sold
in the manner set forth and as contemplated in the Initial Shelf Registration
(the "Effectiveness Period").
(b) Subsequent Shelf Registrations. If the Initial Shelf
Registration or any Subsequent Shelf Registration ceases to be effective for any
reason at any time prior to the termination of the Effectiveness Period, each of
the Company and the Guarantors shall use its best efforts to promptly restore
the effectiveness thereof, and in any event shall, within 45 days of such
cessation of effectiveness, amend the Shelf Registra-
<PAGE> 12
-10-
tion in a manner reasonably expected to restore the effectiveness thereof, or
file an additional "shelf" Registration Statement pursuant to Rule 415 covering
all of the then existing Registrable Notes (a "Subsequent Shelf Registration").
If a Subsequent Shelf Registration is filed, each of the Company and the
Guarantors shall use its best efforts to cause the Subsequent Shelf Registration
to be declared effective as soon as practicable after such filing and to keep
such Registration Statement continuously effective during the Effectiveness
Period. As used herein the term "Shelf Registration" means the Initial Shelf
Registration and any Subsequent Shelf Registration.
(c) Supplements and Amendments. The Company and the Guarantors
shall promptly supplement and amend the Shelf Registration if required by the
rules, regulations or instructions applicable to the registration form used for
such Shelf Registration or if required by the Securities Act. The Company and
the Guarantors shall promptly supplement and amend the Shelf Registration if any
such supplement or amendment is reasonably requested by the Holders of a
majority in aggregate principal amount of the Registrable Notes covered by such
Registration Statement or by any underwriter(s) of such Registrable Notes.
4. Additional Interest
(a) The Company and the Initial Purchasers agree that the
Holders of Registrable Notes will suffer damages if the Company fails to fulfill
its obligations under Section 2 or Section 3 hereof and that it would not be
feasible to ascertain the extent of such damages with precision. Accordingly,
the Company agrees to pay additional interest on the Notes ("Additional
Interest") under the circumstances and to the extent set forth below:
(i) if neither the Exchange Registration Statement nor the
Initial Shelf Registration has been filed on or prior to the Filing
Date;
(ii) if neither the Exchange Registration Statement nor the
Initial Shelf Registration has been declared effective on or prior to
the Effectiveness Date;
(iii) if an Initial Shelf Registration required by Section
2(c)(2) has not been filed on or prior to the date 45 days after
delivery of the Shelf Notice;
<PAGE> 13
-11-
(iv) if an Initial Shelf Registration required by Section
2(c)(2) has not been declared effective on or prior to the date 90 days
after the delivery of the Shelf Notice; and/or
(v) if (A) the Company has not exchanged the Exchange Notes
for all Notes validly tendered in accordance with the terms of the
Exchange Offer on or prior to the date 245 days after the Issue Date or
(B) the Exchange Registration Statement ceases to be effective at any
time prior to the time that the Exchange Offer is consummated or (C) if
applicable, the Shelf Registration has been declared effective and such
Shelf Registration ceases to be effective at any time prior to the
termination of the Effectiveness Period;
(each such event referred to in clauses (i) through (v) above is a "Registration
Default"). The sole remedy available to Holders of the Notes for a Registration
Default will be the accrual of Additional Interest as follows: the per annum
interest rate on the Notes will increase by .50% during the first 90-day period
following the occurrence of a Registration Default and until it is waived or
cured; and the per annum interest rate will increase by an additional .25% for
each subsequent 90-day period during which the Registration Default remains
uncured, up to a maximum additional interest rate of 2.0% per annum, provided,
however, that only Holders of Private Exchange Notes shall be entitled to
receive Additional Interest as a result of a Registration Default pursuant to
clause (iii) or (iv), provided, further, that (1) upon the filing of the
Exchange Registration Statement or the Initial Shelf Registration (in the case
of (i) above), (2) upon the effectiveness of the Exchange Registration Statement
or a Shelf Registration (in the case of (ii) above), (3) upon the filing of the
Shelf Registration (in the case of (iii) above), (4) upon the effectiveness of
the Shelf Registration (in the case of (iv) above), or (5) upon the exchange of
Exchange Notes for all Notes tendered or the effectiveness of a Shelf
Registration (in the case of (v)(A) above), or upon the subsequent effectiveness
of the Exchange Registration Statement which had ceased to remain effective or
the effectiveness of a Shelf Registration (in the case of (v)(B) above), or upon
the subsequent effectiveness of the Shelf Registration which had ceased to
remain effective (in the case of (v)(C) above), Additional Interest on the Notes
as a result of such clause (i), (ii), (iii), (iv) or (v) (or the relevant
subclause thereof), as the case may be, shall cease to accrue and the interest
rate on the Notes will revert to the interest rate originally borne by the
Notes.
<PAGE> 14
-12-
(b) Notwithstanding the foregoing, no Additional Interest will
be payable with respect to a Registration Default described in clause (v)(C)
above, if pending a material corporate transaction, the Company issues a notice
that the Registration Statement, or the prospectus contained therein, is
unusable, or such notice is required under applicable securities laws to be
issued by the Company, and the aggregate number of days in any consecutive
twelve month period for which the Registration Statement, or the Prospectus
contained therein, is unusable pursuant to all such notices has not exceeded 75
days in the aggregate.
(c) The Company and the Guarantors shall notify the Trustee
within one business day after each and every date on which an event occurs in
respect of which Additional Interest is required to be paid (an "Event Date").
Any amounts of Additional Interest due pursuant to (a)(i), (a)(ii) or (a)(iii)
of this Section 4 will be payable in cash semi-annually on each June 15 and
December 15 (to the Holders of record on the June 1 and December 1 immediately
preceding such dates), commencing with the first such date occurring after any
such Additional Interest commences to accrue and until such Registration Default
is cured, by depositing with the Trustee, in trust for the benefit of such
Holders, immediately available funds in sums sufficient to pay such Additional
Interest. The amount of Additional Interest will be determined by multiplying
the applicable Additional Interest rate by the principal amount of the
Registrable Notes, multiplied by a fraction, the numerator of which is the
number of days such Additional Interest rate was applicable during such period
(determined on the basis of a 360-day year comprised of twelve 30-day months
and, in the case of a partial month, the actual number of days elapsed), and the
denominator of which is 360.
5. Registration Procedures
In connection with the filing of any Registration Statement
pursuant to Section 2 or 3 hereof, the Company and the Guarantors shall effect
such registrations to permit the sale of the securities covered thereby in
accordance with the intended method or methods of disposition thereof, and
pursuant thereto the Company and the Guarantors shall:
(a) Prepare and file with the SEC, as provided herein, a
Registration Statement or Registration Statements as prescribed by
Section 2 or 3, and use their respective best efforts to cause each
such Registration Statement to become effective and remain effective as
pro-
<PAGE> 15
-13-
vided herein, provided that, if (1) such filing is pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, before filing any
Registration Statement or Prospectus or any amendments or supplements
thereto, the Company and the Guarantors shall, if requested, furnish to
and afford the Holders of the Registrable Notes covered by such
Registration Statement and each such Participating Broker-Dealer, as
the case may be, their counsel and the managing underwriter(s), if any,
a reasonable opportunity to review copies of all such documents
(including copies of any documents to be incorporated by reference
therein and all exhibits thereto) proposed to be filed (to the extent
practicable, at least 5 business days prior to such filing). The
Company and the Guarantors shall not file any Registration Statement or
Prospectus or any amendments or supplements thereto in respect of which
the Holders must be afforded an opportunity to review prior to the
filing of such document, if the Holders of a majority in aggregate
principal amount of the Registrable Notes covered by such Registration
Statement, or such Participating Broker-Dealer, as the case may be,
their counsel, or the managing underwriter(s), if any, reasonably
object to information concerning the Holders or such Participating
Broker-Dealer contained therein.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration or Exchange
Registration Statement, as the case may be, as may be necessary to keep
such Registration Statement continuously effective for the
Effectiveness Period or the Applicable Period, as the case may be;
cause the related Prospectus to be supplemented by any prospectus
supplement required by applicable law, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force)
under the Securities Act; and comply with the provisions of the
Securities Act and the Exchange Act applicable to them with respect to
the disposition of all securities covered by such Registration
Statement as so amended or in such Prospectus as so supplemented and
with respect to the subsequent resale of any securities being sold by a
Participating Broker-Dealer covered by any such Prospectus; the Company
and the Guarantors shall be deemed not to have used their best efforts
to keep a Registration Statement effective during the Applicable Period
if any of them voluntarily takes any action that would result in
<PAGE> 16
-14-
selling Holders of the Registrable Notes covered thereby or
Participating Broker-Dealers seeking to sell Exchange Notes not being
able to sell such Registrable Notes or such Exchange Notes during that
period unless such action is required by applicable law or unless the
Company and the Guarantors comply with this Agreement, including
without limitation, the provisions of clauses 5(c)(v) and (vi) below.
(c) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, notify the selling Holders
of Registrable Notes, or each such Participating Broker-Dealer, as the
case may be, their counsel and the managing underwriter(s), if any,
promptly (but in any event within two business days), and confirm such
notice in writing, (i) when a Prospectus or any prospectus supplement
or post-effective amendment thereto has been filed, and, with respect
to a Registration Statement or any post-effective amendment thereto,
when the same has become effective under the Securities Act (including
in such notice a written statement that any Holder may, upon request,
obtain, without charge, one conformed copy of such Registration
Statement or post-effective amendment thereto including financial
statements and schedules, documents incorporated or deemed to be
incorporated by reference and exhibits), (ii) of the issuance by the
SEC of any stop order suspending the effectiveness of a Registration
Statement or of any order preventing or suspending the use of any
preliminary Prospectus or the initiation of any proceedings for that
purpose, (iii) if at any time when a Prospectus is required by the
Securities Act to be delivered in connection with sales of the
Registrable Notes or resales of Exchange Notes by Participating
Broker-Dealers the representations and warranties of the Company
contained in any agreement (including any underwriting agreement)
contemplated by Section 5(n) below cease to be true and correct, (iv)
of the receipt by any of the Company or the Guarantors of any
notification with respect to the suspension of the qualification or
exemption from qualification of a Registration Statement or any of the
Registrable Notes or the Exchange Notes to be sold by any Participating
Broker-Dealer for offer or sale in any jurisdiction, or the initiation
or threatening of any proceeding for such purpose, (v) of the happening
of any
<PAGE> 17
-15-
event or any information becoming known that makes any statement made
in such Registration Statement or related Prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue
in any material respect or that requires the making of any changes in,
or amendments or supplements to, such Registration Statement,
Prospectus or documents so that, in the case of the Registration
Statement, it will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and that in
the case of the Prospectus, it will not contain any untrue statement of
a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, and (vi)
of the Company's or any Guarantor's reasonable determination that a
post-effective amendment to a Registration Statement would be necessary
or appropriate.
(d) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, use their best efforts to
prevent the issuance of any order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending the use
of a Prospectus or suspending the qualification (or exemption from
qualification) of any of the Registrable Notes or the Exchange Notes to
be sold by any Participating Broker-Dealer, for sale in any
jurisdiction, and, if any such order is issued, to use their best
efforts to obtain the withdrawal of any such order as promptly as
practicable.
(e) If a Shelf Registration is filed pursuant to Section 3 and
if requested by the managing underwriter(s), if any, or the Holders of
a majority in aggregate principal amount of the Registrable Notes being
sold in connection with an underwritten offering, (i) promptly
incorporate in a Prospectus supplement or post-effective amendment such
information as the managing underwriter(s), if any, or such Holders
reasonably request to be included therein and (ii) make all required
filings of such Prospectus supplement or such post-effective amendment
as soon as practicable after the Company has received notifi-
<PAGE> 18
-16-
cation of the matters to be incorporated in such Prospectus supplement
or post-effective amendment.
(f) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, furnish to each selling
Holder of Registrable Notes who so requests and to each such
Participating Broker-Dealer who so requests and to counsel and the
managing underwriter(s), if any, without charge, one conformed copy of
the Registration Statement or Registration Statements and each
post-effective amendment thereto, including financial statements and
schedules, and, if requested, all documents incorporated or deemed to
be incorporated therein by reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, deliver to each selling
Holder of Registrable Notes, or each such Participating Broker-Dealer,
as the case may be, their counsel, and the managing underwriter or
underwriters, if any, without charge, as many copies of the Prospectus
or Prospectuses (including each form of preliminary Prospectus) and
each amendment or supplement thereto and any documents incorporated by
reference therein as such Persons may reasonably request; and, subject
to the last paragraph of this Section 5, each of the Company and the
Guarantors hereby consents to the use of such Prospectus and each
amendment or supplement thereto by each of the selling Holders of
Registrable Notes or each such Participating Broker-Dealer, as the case
may be, and the managing underwriter or underwriters or agents, if any,
and dealers (if any), in connection with the offering and sale of the
Registrable Notes covered by, or the sale by Participating
Broker-Dealers of the Exchange Notes pursuant to, such Prospectus and
any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Notes or any
delivery of a Prospectus contained in the Exchange Registration
Statement by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Appli-
<PAGE> 19
-17-
cable Period, to use their best efforts to register or qualify, and to
cooperate with the selling Holders of Registrable Notes or each such
Participating Broker-Dealer, as the case may be, the managing
underwriter or underwriters, if any, and their respective counsel in
connection with the registration or qualification of (or exemption from
such registration or qualification), such Registrable Notes for offer
and sale under the securities or Blue Sky laws of such jurisdictions
within the United States as any selling Holder, Participating
Broker-Dealer, or the managing underwriter or underwriters, if any,
reasonably request in writing, provided that where Exchange Notes held
by Participating Broker-Dealers or Registrable Notes are offered other
than through an underwritten offering, the Company and the Guarantors
agree to cause their counsel to perform Blue Sky investigations and
file registrations and qualifications required to be filed pursuant to
this Section 5(h); keep each such registration or qualification (or
exemption therefrom) effective during the period such Registration
Statement is required to be kept effective and do any and all other
acts or things reasonably necessary or advisable to enable the
disposition in such jurisdictions of the Exchange Notes held by
Participating Broker-Dealers or the Registrable Notes covered by the
applicable Registration Statement; provided that none of the Company or
the Guarantors shall be required to (A) qualify generally to do
business in any jurisdiction where it is not then so qualified, (B)
take any action that would subject it to general service of process in
any such jurisdiction where it is not then so subject or (C) subject
itself to taxation in any such jurisdiction where it is not otherwise
so subject.
(i) If a Shelf Registration is filed pursuant to Section 3,
cooperate with the selling Holders of Registrable Notes and the
managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable Notes
to be sold, which certificates shall not bear any restrictive legends
and shall be in a form eligible for deposit with The Depository Trust
Company; and enable such Registrable Notes to be in such denominations
and registered in such names as the managing underwriter or
underwriters, if any, or Holders may reasonably request.
(j) Use their best efforts to cause the Registrable Notes
covered by the Registration Statement to be registered with or approved
by such other governmental agencies
<PAGE> 20
-18-
or authorities as may be necessary to enable the seller or sellers
thereof or the managing underwriter or underwriters, if any, to
consummate the disposition of such Registrable Notes, except as may be
required solely as a consequence of the nature of such selling Holder's
business, in which case each of the Company and the Guarantors will
cooperate in all reasonable respects with the filing of such
Registration Statement and the granting of such approvals.
(k) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, upon the occurrence of any
event contemplated by paragraph 5(c)(v) or 5(c)(vi), as promptly as
reasonably practicable prepare and (subject to Section 5(a)) file with
the SEC, at the joint and several expense of each of the Company and
the Guarantors, a supplement or post-effective amendment to the
Registration Statement or a supplement to the related Prospectus or any
document incorporated or deemed to be incorporated therein by
reference, or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Notes being sold
thereunder or to the purchasers of the Exchange Notes to whom such
Prospectus will be delivered by a Participating Broker-Dealer, any such
Prospectus will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(l) Use their best efforts to cause the Registrable Notes
covered by a Registration Statement or the Exchange Notes, as the case
may be, to be rated with the appropriate rating agencies, if so
requested by the Holders of a majority in aggregate principal amount of
Registrable Notes covered by such Registration Statement or the
Exchange Notes, as the case may be, or the managing underwriter or
underwriters, if any.
(m) Prior to the effective date of the first Registration
Statement relating to the Registrable Notes, (i) provide the Trustee
with certificates for the Registrable Notes or Exchange Notes, as the
case may be, in a form eligible for deposit with The Depository Trust
Com-
<PAGE> 21
-19-
pany and (ii) provide a CUSIP number for the Registrable Notes or
Exchange Notes, as the case may be.
(n) In connection with an underwritten offering of Registrable
Notes pursuant to a Shelf Registration, enter into an underwriting
agreement as is customary in underwritten offerings of debt securities
similar to the Notes and take all such other actions as are reasonably
requested by the managing underwriter(s), if any, in order to expedite
or facilitate the registration or the disposition of such Registrable
Notes, and in such connection, (i) make such representations and
warranties to the managing underwriter or underwriters on behalf of any
underwriters, with respect to the business of the Company and its
subsidiaries and the Registration Statement, Prospectus and documents,
if any, incorporated or deemed to be incorporated by reference therein,
in each case, as are customarily made by issuers to underwriters in
underwritten offerings of debt securities similar to the Notes, and
confirm the same if and when requested; (ii) obtain opinions of counsel
to the Company and the Guarantors and updates thereof in form and
substance reasonably satisfactory to the managing underwriter or
underwriters, addressed to the managing underwriter or underwriters
covering the matters customarily covered in opinions requested in
underwritten offerings of debt securities similar to the Notes and such
other matters as may be reasonably requested by the managing
underwriter(s); provided, that no such opinion of outside counsel to
the Company or any Guarantor which shall have rendered an opinion in
connection with the sale of the Notes to the Initial Purchasers (the
"Original Opinion") need cover any matter other than matters covered in
the Original Opinion and such other matters concerning the Registration
Statement and the application of the Securities Act to the offer and
sale of the Registration Notes as may be reasonably requested by the
managing underwriter or underwriters; (iii) obtain "cold comfort"
letters and updates thereof in form and substance reasonably
satisfactory to the managing underwriter or underwriters from the
independent certified public accountants of the Company and the
Guarantors (and, if necessary, any other independent certified public
accountants of any subsidiary of any of the Company or of any business
acquired by any of the Company or the Guarantors for which financial
statements and financial data are, or are required to be, included in
the Registration Statement), addressed to the managing underwriter or
underwriters on behalf of any underwriters, such letters to be in
<PAGE> 22
-20-
customary form and covering matters of the type customarily covered in
"cold comfort" letters in connection with underwritten offerings of
debt securities similar to the Notes and such other matters as may be
reasonably requested by the managing underwriter or underwriters; and
(iv) if an underwriting agreement is entered into, the same shall
contain indemnification provisions and procedures no less favorable
than those set forth in Section 7 hereof (or such other provisions and
procedures acceptable to Holders of a majority in aggregate principal
amount of Registrable Notes covered by such Registration Statement and
the managing underwriter or underwriters or agents) with respect to all
parties to be indemnified pursuant to said Section. The above shall be
done at each closing under such underwriting agreement, or as and to
the extent required thereunder.
(o) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, make available for
inspection by any selling Holder of such Registrable Notes being sold,
or each such Participating Broker-Dealer, as the case may be, the
managing underwriter or underwriters participating in any such
disposition of Registrable Notes, if any, and any attorney, accountant
or other agent retained by any such selling Holder or each such
Participating Broker-Dealer, as the case may be (collectively, the
"Inspectors"), at the offices where normally kept, during reasonable
business hours, all financial and other records, pertinent corporate
documents and properties of the Company and the Guarantors and their
respective subsidiaries (collectively, the "Records") as shall be
reasonably necessary to enable them to exercise any applicable due
diligence responsibilities, and cause the officers, directors and
employees of the Company and the Guarantors and their respective
subsidiaries to supply all information in each case reasonably
requested by any such Inspector in connection with such Registration
Statement. Records which the Company and the Guarantors determine, in
good faith, to be confidential and any Records which they notify the
Inspectors are confidential shall not be disclosed by the Inspectors
unless (i) the disclosure of such Records is necessary to avoid or
correct a material misstatement or material omission in such
Registration Statement, (ii) the release of such Records is ordered
pursuant
<PAGE> 23
-21-
to a subpoena or other order from a court of competent jurisdiction or
(iii) the information in such Records has been made generally available
to the public. Each selling Holder of such Registrable Notes and each
such Participating Broker-Dealer or underwriter will be required to
agree that information obtained by it as a result of such inspections
shall be deemed confidential and shall not be used by it as the basis
for any market transactions in the securities of the Company or for any
purpose other than in connection with such Registration Statement
unless and until such is made generally available to the public. Each
selling Holder of such Registrable Notes and each such Participating
Broker-Dealer will be required to further agree that it will, upon
learning that disclosure of such Records is sought in a court of
competent jurisdiction, give prompt notice to the Company and allow the
Company to undertake appropriate action to prevent disclosure of the
Records deemed confidential at their expense.
(p) Provide an indenture trustee for the Registrable Notes or
the Exchange Notes, as the case may be, and cause the Indenture or the
trust indenture provided for in Section 2(a), as the case may be, to be
qualified under the TIA not later than the effective date of the
Exchange Registration Statement or the first Registration Statement
relating to the Registrable Notes; and in connection therewith,
cooperate with the trustee under any such indenture and the Holders of
the Registrable Notes, to effect such changes to such indenture as may
be required for such indenture to be so qualified in accordance with
the terms of the TIA; and execute, and use its best efforts to cause
such trustee to execute, all documents as may be required to effect
such changes, and all other forms and documents required to be filed
with the SEC to enable such indenture to be so qualified in a timely
manner.
(q) Comply with all applicable rules and regulations of the
SEC and make generally available to its securityholders earnings
statements satisfying the provisions of Section 11(a) of the Securities
Act and Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of any 12-month
period (or 90 days after the end of any 12-month period if such period
is a fiscal year) (i) commencing at the end of any fiscal quarter in
which Registrable Notes are sold to underwriters in a firm commitment
or best efforts underwritten offering and (ii) if not sold to
underwriters in such an offering, commencing on the first day of the
first
<PAGE> 24
-22-
fiscal quarter of the Company after the effective date of a
Registration Statement, which statements shall cover said 12-month
periods.
(r) Upon consummation of an Exchange Offer or a Private
Exchange, obtain an opinion of counsel to the Company and the
Guarantors, in a form customary for underwritten offerings of debt
securities similar to the Notes, addressed to the Trustee for the
benefit of all Holders of Registrable Notes participating in the
Exchange Offer or the Private Exchange, as the case may be, and which
includes an opinion that (i) each of the Company and the Guarantors has
duly authorized, executed and delivered the Exchange Notes and Private
Exchange Notes and the related indenture and (ii) each of the Exchange
Notes or the Private Exchange Notes, as the case may be, and related
indenture constitute a legal, valid and binding obligation of each of
the Company and the Guarantors, enforceable against each of the Company
and the Guarantors in accordance with its respective terms (with
customary exceptions).
(s) If an Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Notes by Holders to the
Company and the Guarantors (or to such other Person as directed by the
Company and the Guarantors) in exchange for the Exchange Notes or the
Private Exchange Notes, as the case may be, the Company and the
Guarantors shall mark, or cause to be marked, on such Registrable Notes
that such Registrable Notes are being canceled in exchange for the
Exchange Notes or the Private Exchange Notes, as the case may be; and,
in no event shall such Registrable Notes be marked as paid or otherwise
satisfied.
(t) Cooperate with each seller of Registrable Notes covered by
any Registration Statement and the managing underwriter(s), if any,
participating in the disposition of such Registrable Notes and their
respective counsel in connection with any filings required to be made
with the National Association of Securities Dealers, Inc. (the "NASD").
(u) Use their respective best efforts to take all other
reasonable steps necessary to effect the registration of the
Registrable Notes covered by a Registration Statement contemplated
hereby.
<PAGE> 25
-23-
The Company and the Guarantors may require each seller of
Registrable Notes or Participating Broker-Dealer as to which any registration is
being effected to furnish to the Company and the Guarantors such information
regarding such seller or Participating Broker-Dealer and the distribution of
such Registrable Notes or Exchange Notes to be sold by such Participating
Broker-Dealer, as the case may be, as the Company and the Guarantors may, from
time to time, reasonably request. The Company may exclude from such registration
the Registrable Notes of any seller or Participating Broker-Dealer who fails to
furnish such information within a reasonable time after receiving such request.
Each seller as to which any Shelf Registration is being effected agrees to
furnish promptly to the Company all information required to be disclosed in
order to make the information previously furnished to the Company by such seller
not materially misleading.
Each Holder of Registrable Notes and each Participating
Broker-Dealer agrees by acquisition of such Registrable Notes or Exchange Notes
to be sold by such Participating Broker-Dealer, as the case may be, that, upon
receipt of any notice from the Company of the happening of any event of the kind
described in Section 5(c)(ii), 5(c)(iv), 5(c)(v) or 5(c)(vi) hereof, such Holder
will forthwith discontinue disposition of such Registrable Notes covered by such
Registration Statement or Prospectus or Exchange Notes to be sold by such Holder
or Participating Broker-Dealer, as the case may be, until such Holder's or
Participating Broker-Dealer's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 5(k), or until it is advised in
writing (the "Advice") by the Company that the use of the applicable Prospectus
may be resumed, and has received copies of any amendments or supplements
thereto. In the event the Company shall give any such notice, each of the
Effectiveness Period and the Applicable Period shall be extended by the number
of days during such periods from and including the date of the giving of such
notice to and including the date when each seller of Registrable Notes covered
by such Registration Statement or Exchange Notes to be sold by such Holder or
Participating Broker-Dealer, as the case may be, shall have received (x) the
copies of the supplemented or amended Prospectus contemplated by Section 5(k) or
(y) the Advice.
6. Registration Expenses
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Company and the Guarantors shall be borne
by the Company and the Guaran-
<PAGE> 26
-24-
tors, jointly and severally, whether or not the Exchange Offer or a Shelf
Registration is filed or becomes effective, including, without limitation, (i)
all registration and filing fees (including, without limitation, (A) fees with
respect to filings required to be made with the NASD in connection with an
underwritten offering and (B) fees and expenses of compliance with state
securities or Blue Sky laws (including, without limitation, reasonable fees and
disbursements of counsel in connection with Blue Sky qualifications of the
Registrable Notes or Exchange Notes and determination of the eligibility of the
Registrable Notes or Exchange Notes for investment under the laws of such
jurisdictions in the United States (x) where the Holders of Registrable Notes
are located, in the case of the Exchange Notes, or (y) as provided in Section
5(h), in the case of Registrable Notes or Exchange Notes to be sold by a
Participating Broker-Dealer during the Applicable Period)), (ii) printing
expenses (including, without limitation, expenses of printing certificates for
Registrable Notes or Exchange Notes in a form eligible for deposit with The
Depository Trust Company and of printing Prospectuses if the printing of
Prospectuses is reasonably requested by the managing underwriter or
underwriters, if any, or, in respect of Registrable Notes or Exchange Notes to
be sold by any Participating Broker-Dealer during the Applicable Period, if
reasonably requested by the Holders of a majority in aggregate principal amount
of the Registrable Notes included in any Registration Statement or of such
Exchange Notes, as the case may be), (iii) messenger, telephone and delivery
expenses, (iv) fees and disbursements of counsel for the Company and fees and
disbursements of special counsel for the sellers of Registrable Notes (subject
to the provisions of Section 6(b)), (v) fees and disbursements of all
independent certified public accountants referred to in Section 5(n)(iii)
(including, without limitation, the expenses of any special audit and "cold
comfort" letters required by or incident to such performance), (vi) rating
agency fees, (vii) Securities Act liability insurance, if the Company and/or the
Guarantors desire such insurance, (viii) fees and expenses of the Trustee, (ix)
fees and expenses of all other Persons retained by the Company and/or the
Guarantors, (x) internal expenses of the Company and the Guarantors (including,
without limitation, all salaries and expenses of officers and employees of the
Company and the Guarantors performing legal or accounting duties), (xi) the
expense of any annual audit, (xii) the fees and expenses incurred in connection
with any listing of the securities to be registered on any securities exchange
and (xiii) the expenses relating to printing, word processing and distributing
all Registration Statements, underwriting agree-
<PAGE> 27
-25-
ments, securities sales agreements, indentures and any other documents necessary
in order to comply with this Agreement.
(b) In connection with any Shelf Registration hereunder, the
Company and the Guarantors, jointly and severally, shall reimburse the Holders
of the Registrable Notes being registered in such registration for the
reasonable fees and disbursements of not more than one counsel (in addition to
appropriate local counsel) chosen by the Holders of a majority in aggregate
principal amount of the Registrable Notes to be included in such Registration
Statement and other reasonable and documented out-of-pocket expenses of the
Holders of Registrable Notes incurred in connection with the registration of the
Registrable Notes. The Company and the Guarantors shall not have any obligation
to pay any underwriting fees, discounts or commissions attributable to the sale
of Registrable Securities.
7. Indemnification
(a) Each of the Company and the Guarantors, jointly and
severally, agrees to indemnify and hold harmless each Holder of Registrable
Notes and each Participating Broker-Dealer selling Exchange Notes during the
Applicable Period, the officers and directors of each such Person, and each
Person, if any, who controls any such Person within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a
"Participant"), from and against any and all losses, claims, damages and
liabilities (including, without limitation, the reasonable and documented legal
fees and other expenses actually incurred in connection with any suit, action or
proceeding or any claim asserted) caused by, arising out of or based upon any
untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) or any preliminary
Prospectus, or caused by, arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except insofar as such losses,
claims, damages or liabilities are caused by any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with information relating to any Participant furnished to the Company in writing
by such Participant expressly for use therein; provided that the foregoing
indemnity with respect to any preliminary Prospectus shall not inure to the
benefit of any Participant (or to the benefit of an officer or director of such
Participant or any
<PAGE> 28
-26-
Person controlling such Participant) from whom the Person
asserting any such losses, claims, damages or liabilities purchased Registrable
Notes or Exchange Notes if such untrue statement or omission or alleged untrue
statement or omission made in such preliminary Prospectus is eliminated or
remedied in the related Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) and a copy of the
related Prospectus (as so amended or supplemented) shall have been furnished to
such Participant at or prior to the sale of such Registrable or Exchange Notes,
as the case may be, to such Person.
(b) Each Participant will be required to agree, severally and
not jointly, to indemnify and hold harmless the Company and the Guarantors,
their respective directors and officers and each Person who controls any of the
Company or the Guarantors within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act to the same extent as the foregoing indemnity
from the Company and the Guarantors to each Participant and shall have the
rights and duties given to the Company and the Guarantors in paragraph (c) of
this Section 7 (except that if the Company and the Guarantors shall have assumed
the defense thereof, such Participant shall not be required to do so, but may
employ separate counsel therein and participate in the defense thereof but the
fees and expenses of such counsel shall be at the expense of such Participant),
but only with reference to information relating to such Participant furnished to
the Company and the Guarantors in writing by such Participant expressly for use
in any Registration Statement or Prospectus, any amendment or supplement
thereto, or any preliminary Prospectus. The liability of any Participant under
this paragraph (b) shall in no event exceed the proceeds received by such
Participant from sales of Registrable Notes or Exchange Notes giving rise to
such obligations.
(c) If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be brought or
asserted against any Person in respect of which indemnity may be sought pursuant
to either paragraph (a) or (b) of this Section 7, such Person (the "Indemnified
Person") shall promptly notify the Person against whom such indemnity may be
sought (the "Indemnifying Person") in writing, and the Indemnifying Person, upon
request of the Indemnified Person, shall retain one counsel reasonably
satisfactory to the Indemnified Person to represent the Indemnified Person and
any others the Indemnifying Person may reasonably designate in such proceeding
and shall pay the reasonable fees and expenses incurred by such counsel related
to such proceeding. In any such
<PAGE> 29
-27-
proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person unless (i) the Indemnifying Person and the Indemnified
Person shall have mutually agreed in writing to the contrary, (ii) the
Indemnifying Person has failed to retain counsel reasonably satisfactory to the
Indemnified Person or (iii) the named parties in any such proceeding (including
any impleaded parties) include both the Indemnifying Person and the Indemnified
Person and such Indemnified Person shall have been advised by counsel that there
may be one or more legal defenses available to it which are different from or
additional to those available to any such Indemnifying Person. It is understood
that the Indemnifying Person shall not, in connection with any proceeding or
related proceeding in the same jurisdiction, be liable for the fees and expenses
of more than one separate law firm (in addition to any local counsel) for all
Indemnified Persons, and that all such fees and expenses shall be reimbursed as
they are incurred. Any such separate firm for the Participants and such control
Persons of Participants shall be designated in writing by Participants who sold
a majority in interest of Registrable Notes and Exchange Notes sold by all such
Participants and any such separate firm for the Company and the Guarantors,
their directors, their officers and such control Persons of the Company and the
Guarantors shall be designated in writing by the Company. The Indemnifying
Person shall not be liable for any settlement of any proceeding effected without
its prior written consent, but if settled with such consent or if there is a
final judgment for the plaintiff for which the Indemnified Person is entitled to
indemnification pursuant to this Agreement, the Indemnifying Person agrees to
indemnify any Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an Indemnified Person shall have requested an Indemnifying Person
to reimburse the Indemnified Person for reasonable fees and expenses incurred by
counsel as contemplated by the third sentence of this paragraph, the
Indemnifying Person agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 60 days after receipt by such Indemnifying Person of the
aforesaid request and (ii) such Indemnifying Person shall not have reimbursed
the Indemnified Person in accordance with such request prior to the date of such
settlement; provided, however, that the Indemnifying Person shall not be liable
for any settlement effected without its consent pursuant to this sentence if the
Indemnifying Party is contesting, in good faith, the request for reimbursement.
No Indemnifying Person shall, without the prior written consent of
<PAGE> 30
-28-
the Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnity could have been sought hereunder by such Indemnified Person,
unless such settlement includes an unconditional release (or any other release
reasonably acceptable to the Indemnified Person) of such Indemnified Person from
all liability on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in paragraphs (a) and
(b) of this Section 7 is unavailable to an Indemnified Person in respect of any
losses, claims, damages or liabilities referred to therein (other than as a
result of the proviso set forth in Section 7(a)), then each Indemnifying Person
under such paragraphs, in lieu of indemnifying such Indemnified Person
thereunder, shall contribute to the amount paid or payable by such Indemnified
Person as a result of such losses, claims, damages or liabilities in such
proportion as is appropriate to reflect the relative fault of the Company and
the Guarantors on the one hand and the Participants on the other in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations. The
relative fault of the Company and the Guarantors on the one hand and the
Participants on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company and the Guarantors or by the Participants and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) The parties agree that it would not be just and equitable
if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Participants were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any reasonable legal or other expenses actually incurred by such
Indemnified Person in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 7, in no event shall a
Participant be required to contribute any amount in excess of the amount by
which proceeds received by such Participant from sales of Registrable Notes or
<PAGE> 31
-29-
Exchange Notes exceeds the amount of any damages that such Participant has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
(f) The indemnity and contribution agreements contained in
this Section 7 will be in addition to any liability which the Indemnifying
Persons may otherwise have to the Indemnified Persons referred to above.
8. Rules 144 and 144A
Each of the Company and the Guarantors covenants that it will
file the reports required to be filed by it under the Securities Act and the
Exchange Act and the rules and regulations adopted by the SEC thereunder in a
timely manner and, if at any time the Company is not required to file such
reports, it will, upon the request of any Holder of Registrable Notes, make
publicly available other information of a like nature so long as necessary to
permit sales pursuant to Rule 144 or Rule 144A. Each of the Company and the
Guarantors further covenants that so long as any Registrable Notes remain
outstanding to make available to any Holder of Registrable Notes in connection
with any sale thereof, the information required by Rule 144A(d)(4) under the
Securities Act in order to permit resales of such Registrable Notes pursuant to
(a) such Rule 144A, or (b) any similar rule or regulation hereafter adopted by
the SEC.
9. Underwritten Registrations
If any of the Registrable Notes covered by any Shelf
Registration are to be sold in an underwritten offering, the investment banking
firm or firms that will underwrite the offering and the manager or managers that
will manage the offering will be selected by the Holders of a majority in
aggregate principal amount of such Registrable Notes included in such offering
and shall be reasonably acceptable to the Company and the Guarantors.
No Holder of Registrable Notes may participate in any
underwritten offering hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Notes on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes
<PAGE> 32
-30-
and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements.
10. Miscellaneous
(a) Remedies. In the event of a breach by the Company or any
Guarantor of any of its obligations under this Agreement, other than the
occurrence of an event which requires payment of Additional Interest, each
Holder of Registrable Notes, in addition to being entitled to exercise all
rights provided herein, in the Indenture or, in the case of the Initial
Purchasers, in the Purchase Agreement or granted by law, including recovery of
damages, will be entitled to specific performance of its rights under this
Agreement. Each of the Company and the Guarantors, jointly and severally, agree
that monetary damages would not be adequate compensation for any loss incurred
by reason of a breach by it of any of the provisions of this Agreement and
hereby further agrees, jointly and severally, that, in the event of any action
for specific performance in respect of such breach, it shall waive the defense
that a remedy at law would be adequate.
(b) Enforcement. The Trustee shall be authorized to enforce
the provisions of this Agreement for the ratable benefit of the Holders.
(c) No Inconsistent Agreements. None of the Company or the
Guarantors has entered, as of the date hereof, and the Company and the
Guarantors shall not enter, after the date of this Agreement, into any agreement
with respect to any of their securities that is inconsistent with the rights
granted to the Holders of Registrable Notes in this Agreement or otherwise
conflicts with the provisions hereof. None of the Company or the Guarantors has
entered or will enter into any agreement with respect to any of its securities
which will grant to any Person piggy-back rights with respect to a Registration
Statement required to be filed under this Agreement.
(d) Adjustments Affecting Registrable Notes. Neither the
Company nor the Guarantors shall, directly or indirectly, take any action with
respect to the Registrable Notes as a class that would adversely affect the
ability of the Holders of Registrable Notes to include such Registrable Notes in
a registration undertaken pursuant to this Agreement.
(e) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not
<PAGE> 33
-31-
be amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, unless the Company and the Guarantors
have obtained the written consent of Holders of at least a majority of the then
outstanding aggregate principal amount of Registrable Notes. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with respect
to a matter that relates exclusively to the rights of Holders of Registrable
Notes whose securities are being sold pursuant to a Registration Statement and
that does not directly or indirectly affect, impair, limit or compromise the
rights of other Holders of Registrable Notes may be given by Holders of at least
a majority in aggregate principal amount of the Registrable Notes being sold by
such Holders pursuant to such Registration Statement, provided that the
provisions of this sentence may not be amended, modified or supplemented except
in accordance with the provisions of the immediately preceding sentence.
(f) Notices. All notices and other communications (including
without limitation any notices or other communications to the Trustee) provided
for or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day courier or telecopier:
(i) if to a Holder of Registrable Notes or any Participating
Broker-Dealer, at the most current address given by the Trustee to the
Company; and
(ii) if to the Company or the Guarantors, to Hayes Lemmerz
International, Inc., 38341 Huron River Drive, Romulus, Michigan 48174,
Attention: General Counsel and with a copy to Skadden, Arps, Slate,
Meagher & Flom LLP, One Rodney Square, Wilmington, Delaware 19801,
Attention: Robert B. Pincus, Esq.
All such notices and communications shall be deemed to have
been duly given: (i) when delivered by hand, if personally delivered; (ii) five
business days after being deposited in the mail, postage prepaid, if mailed;
(iii) one business day after being timely delivered to a next-day courier; and
(iv) when receipt is acknowledged by the addressee, if telecopied.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee
under the Indenture at the address specified in such Indenture.
<PAGE> 34
-32-
(g) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders of Registrable Notes.
(h) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(i) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(j) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO
THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(k) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction.
(l) Entire Agreement. This Agreement, together with the
Purchase Agreement and the Indenture, is intended by the parties as a final
expression of their agreement, and is intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein.
(m) Joint and Several Obligations. Unless otherwise stated
herein, each of the obligations of the Company and the Guarantors under this
Agreement shall be joint and several obligations of each of them.
<PAGE> 35
-33-
(n) Notes Held by the Company or their Affiliates. Whenever
the consent or approval of Holders of a specified percentage of Registrable
Notes is required hereunder, Registrable Notes held by the Company or their
affiliates (as such term is defined in Rule 405 under the Securities Act) shall
not be counted in determining whether such consent or approval was given by the
Holders of such required percentage.
<PAGE> 36
-34-
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
HAYES LEMMERZ INTERNATIONAL, INC.,
a Delaware corporation
By:
--------------------------------------------
Name:
Title:
Guarantors:
HAYES LEMMERZ INTERNATIONAL-
CALIFORNIA, INC., a Delaware
corporation
By:
--------------------------------------------
Name:
Title:
HAYES LEMMERZ INTERNATIONAL-
GEORGIA, INC., a Delaware
corporation
By:
--------------------------------------------
Name:
Title:
HAYES LEMMERZ INTERNATIONAL-
INDIANA, INC., a Delaware
corporation
By:
--------------------------------------------
Name:
Title:
<PAGE> 37
-35-
HAYES LEMMERZ INTERNATIONAL-
MEXICO, INC., a Delaware
corporation
By:
--------------------------------------------
Name:
Title:
HAYES LEMMERZ INTERNATIONAL-
MICHIGAN, INC., a Delaware
corporation
By:
--------------------------------------------
Name:
Title:
HAYES LEMMERZ INTERNATIONAL-OHIO,
INC., an Ohio corporation
By:
--------------------------------------------
Name:
Title
HL OHIO SUB, INC.,
a Delaware corporation
By:
--------------------------------------------
Name:
Title:
<PAGE> 38
-36-
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
CIBC OPPENHEIMER CORP.
By:
--------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON CORPORATION
By:
--------------------------------
Name:
Title:
MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED
By:
--------------------------------
Name:
Title:
<PAGE> 1
EXHIBIT 10.29
THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
among
HAYES LEMMERZ INTERNATIONAL, INC.,
as Borrower
The Several Lenders
from Time to Time Parties Hereto,
CANADIAN IMPERIAL BANK OF COMMERCE,
as Administrative Agent and Co-Lead Arranger
CREDIT SUISSE FIRST BOSTON,
as Syndication Agent and Co-Lead Arranger
MERRILL LYNCH CAPITAL CORPORATION,
as Co-Documentation Agent,
and
DRESDNER BANK AG,
as Co-Documentation Agent and European Swing Line Administrator
Dated as of February 3, 1999
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS........................................................2
1.1 Defined Terms......................................................2
1.2 Other Definitional Provisions.....................................31
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS...................................32
2.1 Revolving Credit Commitments......................................32
2.2 Revolving Credit Notes............................................32
2.3 Procedure for Revolving Credit Borrowing..........................32
2.4 Commitment Fees; Other Fees.......................................33
2.5 Termination or Reduction of Revolving Credit Commitments..........33
2.6 Swing Line Commitments............................................34
2.7 Competitive Bid Procedure.........................................39
2.8 Term Loans........................................................42
2.9 Term Notes........................................................42
2.10 Repayment of Loans................................................44
2.11 Guarantee.........................................................44
SECTION 3. LETTERS OF CREDIT.................................................47
3.1 L/C Commitment....................................................47
3.2 Procedure for Issuance of Letters of Credit.......................48
3.3 Fees, Commissions and Other Charges...............................48
3.4 L/C Participations................................................49
3.5 Reimbursement Obligation of the Borrower..........................50
3.6 Obligations Absolute..............................................51
3.7 Letter of Credit Payments.........................................51
3.8 Application.......................................................51
SECTION 4. GENERAL PROVISIONS................................................52
4.1 Interest Rates and Payment Dates..................................52
4.2 Optional Prepayments..............................................52
4.3 Mandatory Prepayments and Reduction of Revolving Credit
Commitments.......................................................53
4.4 Conversion and Continuation Options...............................56
4.5 Minimum Amounts and Maximum Number of Tranches....................56
4.6 Computation of Interest, Fees and Dollar Equivalent Amount........57
4.7 Inability to Determine Interest Rate..............................58
4.8 Pro Rata Treatment and Payments...................................58
4.9 Illegality........................................................60
4.10 Requirements of Law...............................................61
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4.11 Taxes.............................................................62
4.12 Indemnity.........................................................64
4.13 Change of Lending Office; Replacement of Lenders..................64
4.14 Borrower Controls on Non-Dollar Indebtedness;
Calculation of Non-Dollar
Extensions of Credit; Prepayments................................65
SECTION 5. REPRESENTATIONS AND WARRANTIES....................................65
5.1 Financial Condition...............................................65
5.2 No Change; Solvency...............................................66
5.3 Corporate Existence; Compliance with Law..........................67
5.4 Corporate Power; Authorization; Enforceable Obligations...........67
5.5 No Legal Bar......................................................67
5.6 No Material Litigation............................................67
5.7 No Default........................................................68
5.8 Ownership of Property; Liens......................................68
5.9 Intellectual Property.............................................68
5.10 No Burdensome Restrictions........................................68
5.11 Taxes.............................................................68
5.12 Federal Regulations...............................................69
5.13 ERISA.............................................................69
5.14 Collateral........................................................69
5.15 Investment Company Act; Other Regulations.........................70
5.16 Subsidiaries and Joint Ventures...................................70
5.17 Purpose of Loans..................................................70
5.18 Environmental Matters.............................................70
5.19 Regulation H......................................................71
5.20 No Material Misstatements.........................................71
5.21 Labor Matters.....................................................72
5.22 Year 2000.........................................................72
SECTION 6. CONDITIONS PRECEDENT..............................................72
6.1 Conditions to Effectiveness.......................................72
6.2 Conditions to Each Extension of Credit............................75
SECTION 7. AFFIRMATIVE COVENANTS.............................................76
7.1 Financial Statements..............................................76
7.2 Certificates; Other Information...................................77
7.3 Payment of Obligations............................................78
7.4 Conduct of Business and Maintenance of Existence..................78
7.5 Maintenance of Property; Insurance................................79
7.6 Inspection of Property; Books and Records; Discussions............79
7.7 Notices...........................................................79
7.8 Environmental Laws................................................80
7.9 Further Assurances................................................81
7.10 Additional Collateral.............................................81
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SECTION 8. NEGATIVE COVENANTS................................................83
8.1 Financial Condition Covenants.....................................83
8.2 Limitation on Indebtedness........................................86
8.3 Limitation on Liens...............................................87
8.4 Limitation on Guarantee Obligations...............................90
8.5 Limitation on Fundamental Changes.................................91
8.6 Limitation on Sale of Assets......................................91
8.7 Limitation on Dividends...........................................93
8.8 Limitation on Capital Expenditures................................93
8.9 Limitation on Investments, Loans and Advances.....................93
8.10 Limitation on Optional Payments and Modifications of Debt
Instruments.......................................................95
8.11 Limitation on Transactions with Affiliates........................95
8.12 Limitation on Changes in Fiscal Year..............................96
8.13 Limitation on Negative Pledge Clauses.............................96
8.14 Limitation on Lines of Business...................................96
8.15 Limitations on Currency and Commodity Hedging Transactions........96
SECTION 9. EVENTS OF DEFAULT.................................................97
SECTION 10. THE MANAGING AGENTS..............................................100
10.1 Appointment......................................................100
10.2 Delegation of Duties.............................................101
10.3 Exculpatory Provisions...........................................101
10.4 Reliance by Administrative Agent and Other Managing Agents.......101
10.5 Notice of Default................................................101
10.6 Non-Reliance on Administrative Agent, Other Managing Agents and
Other Lenders..................................................102
10.7 Indemnification..................................................102
10.8 Administrative Agent and Other Managing Agents in Their
Individual Capacities..........................................103
10.9 Successor Administrative Agent...................................103
10.10 Issuing Lender...................................................103
10.11 Releases of Guarantees and Collateral............................103
10.12 Foreign Pledge Agreement.........................................104
SECTION 11. MISCELLANEOUS....................................................104
11.1 Amendments and Waivers...........................................104
11.2 Notices..........................................................106
11.3 No Waiver; Cumulative Remedies...................................107
11.4 Survival of Representations and Warranties.......................107
11.5 Payment of Expenses and Taxes....................................107
11.6 Successors and Assigns; Participations and Assignments...........108
11.7 Adjustments; Set-off.............................................111
11.8 Counterparts.....................................................111
11.9 Severability.....................................................112
11.10 Integration......................................................112
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11.11 GOVERNING LAW....................................................112
11.12 Submission To Jurisdiction; Waivers..............................112
11.13 Acknowledgments..................................................113
11.14 WAIVERS OF JURY TRIAL............................................113
11.15 Confidentiality..................................................113
11.16 Effect of Amendment and Restatement of the Prior Credit
Agreement........................................................113
11.17 Judgment.........................................................114
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SCHEDULES
A Commitments and Addresses
B Applicable Margin and Applicable Commitment Fee Rate
C Available Foreign Currencies
D Subsidiary Borrowers
5.1(a) 1998 Acquisitions
5.1(b) Exceptions to GAAP Schedule for CMI
5.4 Consents
5.14 Equipment and Inventory of Borrower and Subsidiaries
5.16 Subsidiaries and Joint Ventures
8.2(e) Permitted Indebtedness
8.3(h) Permitted Liens
8.4(a) Permitted Guarantee Obligations
8.9(j) Investment Schedule
8.10(k) Investments
EXHIBITS
A-1 Form of Revolving Credit Note
A-2 Form of Term Note
A-3 Form of Swing Line Note
B-1 Form of Guarantee and Collateral Agreement
B-2 Form of Fee Mortgage
B-3 Form of Leasehold Mortgage
B-4 Form of Copyright, Patent and Trademark Security Agreement
C Form of Borrowing Certificate
D Form of Opinion of General Counsel to Borrower
E Form of U.S. Tax Compliance Certificate
F Form of Assignment and Acceptance
G-1 Form of Competitive Bid Request
G-2 Form of Competitive Bid Invitation
G-3 Form of Competitive Bid
G-4 Form of Competitive Bid Accept/Reject Letter
H Form of Subsidiary Borrower Agreement
I Form of Subsidiary Borrower Termination
J Form of Intercreditor Agreement
K Form of Intercreditor/Lien Subordination Agreement
L Form of Mexican Stock Pledge Agreement
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THIRD AMENDED AND RESTATED CREDIT AGREEMENT, dated as of February 3,
1999, among HAYES LEMMERZ INTERNATIONAL, INC., a Delaware corporation (the
"Borrower"), the several banks and other financial institutions from time to
time parties to this Agreement (the "Lenders"), CANADIAN IMPERIAL BANK OF
COMMERCE, a Canadian-chartered bank acting through its New York Agency, as
administrative agent for the Lenders and co-lead arranger, CREDIT SUISSE FIRST
BOSTON, as syndication agent for the Lenders and co-lead arranger, MERRILL LYNCH
CAPITAL CORPORATION, a Delaware corporation, as co-documentation agent for the
Lenders, and DRESDNER BANK AG, as co-documentation agent and European Swing Line
Administrator for the Lenders.
W I T N E S S E T H :
WHEREAS, the Borrower, the several banks and other financial
institutions from time to time parties thereto, Canadian Imperial Bank of
Commerce, as administrative agent, Merrill Lynch Capital Corporation, as
documentation agent, and Dresdner Bank AG, as European swing line administrator,
are parties to that certain Second Amended and Restated Credit Agreement, dated
as of June 12, 1998 (the "Prior Credit Agreement"), providing for certain term
loans, revolving credit loans and other extensions of credit described therein;
WHEREAS, the Borrower has requested that the Lenders continue and
increase certain commitments, loans and other extensions of credit under the
Prior Credit Agreement, in part, to fund the acquisition (the "Acquisition") by
the Borrower of all the issued and outstanding capital stock of CMI
International, Inc. ("CMI") from the current stockholders thereof for aggregate
cash consideration (including the refinancing of existing indebtedness of CMI)
of approximately $605,000,000;
WHEREAS, in connection with the Acquisition, (i) the Borrower will
obtain the credit facilities provided for herein, (ii) each of the Borrower's
and CMI's existing senior secured credit facilities and certain of CMI's other
outstanding indebtedness (the "Refinanced Debt") will be continued or refinanced
and (iii) the Borrower will pay fees and expenses in connection with the
foregoing (the Acquisition and the foregoing transactions are collectively
referred to herein as the "Transactions");
WHEREAS, the Lenders are willing (a) to provide a senior secured
revolving credit facility in an aggregate principal amount of $650,000,000, of
which up to $100,000,000 will be available in certain currencies (including euro
units) other than U.S. dollars, up to $130,000,000 will be available in the form
of letters of credit, up to $75,000,000 will be available pursuant to a
competitive bid facility and up to $100,000,000 will be available pursuant to a
swing line facility and (b) to make term loans in an aggregate principal amount
of
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$450,000,000, of which up to the dollar equivalent amount of $100,000,000 may be
denominated in Deutschemarks or euro units upon the terms and subject to the
conditions set forth herein;
NOW THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties hereto hereby agree that, effective on
the Closing Date, the Prior Credit Agreement shall be amended and restated to
read in its entirety as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings (such terms to be equally applicable to the
singular and plural forms thereof):
"ABR Loans": Loans the rate of interest applicable to which is based
upon the CIBC Alternate Base Rate.
"Acquisition": as defined in the recitals hereto.
"Administrative Agent": CIBC, together with its affiliates, as the
arranger of the Commitments and as the administrative agent for the
Lenders under this Agreement and the other Loan Documents.
"Adjustment Date": the second Business Day following receipt by the
Lenders of both (i) the financial statements required to be delivered
pursuant to subsection 7.1(a) or 7.1(b), as applicable, for the most
recently completed fiscal period and (ii) the related Compliance
Certificate required to be delivered pursuant to subsection 7.2(b) with
respect to such fiscal period.
"Affiliate": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled
by, or is under common control with, such Person. For purposes of this
definition, "control" of a Person means the power, directly or indirectly,
either to (a) vote 10% or more of the securities having ordinary voting
power for the election of directors of such Person or (b) direct or cause
the direction of the management and policies of such Person, whether by
contract or otherwise.
"Aggregate Outstanding Revolving Credit": as to any Revolving Credit
Lender at any time, an amount equal to the sum (calculated in accordance
with subsection 4.6(b)) of (a) the aggregate principal Dollar Equivalent
Amount of all Revolving Credit Loans made by such Revolving Credit Lender
then outstanding, (b) such Revolving Credit Lender's Revolving Credit
Commitment Percentage of the Dollar Equivalent Amount of the L/C
Obligations then outstanding and (c) such Revolving Credit Lender's
Revolving Credit Commitment Percentage of the aggregate principal Dollar
Equivalent Amount of (I) the Competitive Loans then outstanding and (II)
the Swing Line Loans (including Foreign Currency Swing Line Commitments as
provided for in subsection 2.6(b)) then outstanding.
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"Aggregate Revolving Credit Outstandings": at any time, an amount
equal to the sum (calculated in accordance with subsection 4.6(b)) of the
Dollar Equivalent Amount of (a) the aggregate then outstanding principal
amount of Revolving Credit Loans, (b) the aggregate then outstanding L/C
Obligations in respect of Letters of Credit, (c) the aggregate then
outstanding principal amount of Swing Line Loans (including Foreign
Currency Swing Line Commitments as provided for in subsection 2.6(b)) and
(d) the aggregate then outstanding principal amount of Competitive Loans.
"Agreement": this Third Amended and Restated Credit Agreement, as
amended, supplemented or otherwise modified from time to time.
"Applicable Commitment Fee Rate": during the period from the Closing
Date until the first Adjustment Date, the Applicable Commitment Fee Rate
shall equal 0.425%; on the first Adjustment Date and on each Adjustment
Date to occur thereafter the Applicable Commitment Fee Rate will be
adjusted to the applicable rate per annum set forth under the heading
"Applicable Commitment Fee Rate" on Schedule B which corresponds to the
Leverage Ratio determined from the financial statements and Compliance
Certificate relating to the end of the fiscal quarter immediately
preceding such Adjustment Date; provided, further, that in the event that
the financial statements required to be delivered pursuant to subsection
7.1(a) or (b), as applicable, and the related Compliance Certificate
required to be delivered pursuant to subsection 7.2(b), are not delivered
when due, then
(a) if such financial statements and Compliance Certificate
are delivered after the date such financial statements and
Compliance Certificate were required to be delivered (without giving
effect to any applicable cure period) and the Applicable Commitment
Fee Rate increases from that previously in effect as a result of the
delivery of such financial statements and Compliance Certificate,
then the Applicable Commitment Fee Rate during the period from the
date upon which such financial statements and Compliance Certificate
were required to be delivered (without giving effect to any
applicable cure period) until the date upon which they actually are
delivered shall, except as otherwise provided in clause (c) below,
be the Applicable Commitment Fee Rate as so increased;
(b) if such financial statements and Compliance Certificate
are delivered after the date such financial statements and
Compliance Certificate were required to be delivered and the
Applicable Commitment Fee Rate decreases from that previously in
effect as a result of the delivery of such financial statements and
Compliance Certificate, then such decrease in the Applicable
Commitment Fee Rate shall not become applicable until the date upon
which such financial statements and Compliance Certificate actually
are delivered; and
(c) if such financial statements and Compliance Certificate
are not delivered prior to the expiration of the applicable cure
period, then, effective upon such expiration, for the period from
the date upon which such financial statements and Compliance
Certificate were required to be delivered (after the expiration of
the applicable cure period) until two Business Days following the
date upon
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which such financial statements and Compliance Certificate actually
are delivered, the Applicable Commitment Fee Rate shall be 0.50% per
annum.
"Applicable Margin": as applied to a given Type of Loan, the rate
per annum determined as follows: during the period from the Closing Date
until the first Adjustment Date, the Applicable Margin in respect of ABR
Loans shall be .50% per annum, and the Applicable Margin in respect of
Eurocurrency Loans shall be 2.00% per annum in respect of Revolving Credit
Loans and Term Loans; and on the first Adjustment Date and on each
Adjustment Date to occur thereafter the Applicable Margin will be adjusted
to the applicable rate per annum set forth under the heading "Applicable
Margin" on Schedule B which corresponds to the Leverage Ratio determined
from the financial statements and Compliance Certificate relating to the
end of the fiscal quarter immediately preceding such Adjustment Date;
provided that in the event that the financial statements required to be
delivered pursuant to subsection 7.1(a) or 7.1(b), as applicable, and the
related Compliance Certificate required to be delivered pursuant to
subsection 7.2(b), are not delivered when due, then
(a) if such financial statements and Compliance Certificate
are delivered after the date such financial statements and
Compliance Certificate were required to be delivered (without giving
effect to any applicable cure period) and the Applicable Margin
increases from that previously in effect as a result of the delivery
of such financial statements and Compliance Certificate, then the
Applicable Margin in respect of the Loans during the period from the
date upon which such financial statements and Compliance Certificate
were required to be delivered (without giving effect to any
applicable cure period) until the date upon which they actually are
delivered shall, except as otherwise provided in clause (c) below,
be the Applicable Margin as so increased;
(b) if such financial statements and Compliance Certificate
are delivered after the date such financial statements and
Compliance Certificate were required to be delivered and the
Applicable Margin decreases from that previously in effect as a
result of the delivery of such financial statements and Compliance
Certificate, then such decrease in the Applicable Margin shall not
become applicable until the date upon which such financial
statements and Compliance Certificate actually are delivered; and
(c) if such financial statements and Compliance Certificate
are not delivered prior to the expiration of the applicable cure
period, then, effective upon such expiration, for the period from
the date upon which such financial statements and Compliance
Certificate were required to be delivered (after the expiration of
the applicable cure period) until two Business Days following the
date upon which such financial statements and Compliance Certificate
actually are delivered, in respect of ABR Loans shall be 1.00% per
annum and in respect of Eurocurrency Loans shall be 2.50% per annum.
"Arrangers": CIBC and Credit Suisse First Boston, as arrangers of
the credit facilities provided for herein.
<PAGE> 11
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"Assignee": as defined in subsection 11.6(c).
"Available Foreign Currencies": the currencies set forth on Schedule
C, and any other available and freely convertible non-Dollar currency
selected by the Borrower and approved in writing by the Administrative
Agent and the Majority Revolving Credit Lenders (or in the case of Foreign
Currency Swing Line Loans, only the applicable Foreign Currency Swing Line
Lender).
"Available Revolving Credit Commitment": as to any Revolving Credit
Lender at any time, an amount equal to the excess, if any, of (a) the
amount of such Revolving Credit Lender's Revolving Credit Commitment at
such time over (b) such Revolving Credit Lender's Aggregate Outstanding
Revolving Credit, provided that for purposes of calculating Available
Revolving Credit Commitments under subsection 2.4(a) it shall be assumed
that no Swing Line Loans and no Competitive Loans are then outstanding and
that no Foreign Currency Swing Line Commitments have been extended;
collectively, as to all the Lenders, the "Available Revolving Credit
Commitments".
"Board": the Board of Governors of the Federal Reserve System or any
successor thereto.
"Borrower": as defined in the preamble hereto; provided that, where
the term "Borrower" is used in any context that provides for more than one
Borrower, it is understood that such reference shall include each Person
included in the term "Borrowers".
"Borrower Guarantee": the Guarantee provided by the Borrower in
subsection 2.11, as the same may be amended, supplemented or otherwise
modified from time to time.
"Borrower Notes": the 9-1/4% Senior Notes of the Borrower due
November 15, 2002, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with subsection 8.10.
"Borrowers": collectively, the Borrower and any Subsidiary Borrower.
"Borrowing Date": any Business Day specified in a notice pursuant to
subsection 2.3, 2.6, 2.7, 2.9 or 3.2 as a date on which the Borrower
requests that Loans be made hereunder or an Issuing Lender to issue a
Letter of Credit hereunder.
"Business Day": (a) when such term is used in respect of a day on
which a Loan in an Available Foreign Currency is to be made, a payment is
to be made in respect of such Loan, an Exchange Rate is to be set in
respect of an Available Foreign Currency or any other dealing in an
Available Foreign Currency is to be carried out pursuant to this
Agreement, such term shall mean a London Banking Day which is also a day
on which banks are open for general banking business in the city which is
the principal financial center of the country of such Available Foreign
Currency, (b) when such term is used to
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describe a day on which a request is to be made to an Issuing Lender for
issuance of a Letter of Credit or on which a Letter of Credit is to be
issued, such term shall mean a day other than a Saturday, Sunday or other
day on which commercial banks in the city in which such Issuing Lender's
issuing office is located are authorized or required by law to close, (c)
when such term is used in any context in this Agreement, such term shall
mean a day other than a Saturday, Sunday or other day on which commercial
banks in New York City are authorized or required by law to close and (d)
when such term is used in relation to any matter relating to euros or euro
units, such term shall mean a day on which the Trans-European Automated
Real-Time Gross Settlement Express Transfer System is operating.
"Capital Expenditure": as defined in subsection 8.8.
"Capital Stock": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than a
corporation) and any and all warrants or options to purchase any of the
foregoing.
"Cash Equivalents": (a) securities with maturities of one year or
less from the date of acquisition issued or fully guaranteed or insured by
the United States Government or any agency thereof, (b) certificates of
deposit and time deposits with maturities of one year or less from the
date of acquisition and overnight bank deposits and demand deposits of any
Lender or of any commercial bank having capital and surplus in excess of
$500,000,000, (c) repurchase obligations of any Lender or of any
commercial bank satisfying the requirements of clause (b) of this
definition, having a term of not more than 30 days with respect to
securities issued or fully guaranteed or insured by the United States
Government, (d) commercial paper of a domestic issuer rated at least A-2
by Standard and Poor's Ratings Services ("S&P") or P-2 by Moody's
Investors Service, Inc. ("Moody's"), (e) securities with maturities of one
year or less from the date of acquisition issued or fully guaranteed by
any state, commonwealth or territory of the United States, by any
political subdivision or taxing authority of any such state, commonwealth
or territory or by any foreign government, the securities of which state,
commonwealth, territory, political subdivision, taxing authority or
foreign government (as the case may be) are rated at least A by S&P or A
by Moody's, (f) securities with maturities of one year or less from the
date of acquisition backed by standby letters of credit issued by any
Lender or any commercial bank satisfying the requirements of clause (b) of
this definition, (g) in the case of any Foreign Subsidiary, (i) direct
obligations of the sovereign nation (or any agency thereof) in which such
Foreign Subsidiary is organized or is conducting business or in
obligations fully and unconditionally guaranteed by such sovereign nation
(or any agency thereof), (ii) deposits, obligations or securities of the
type and maturity described in clauses (b) through (f) above of foreign
obligors, which deposits, obligations or securities or obligors (or the
parent entities of such obligors) have ratings described in such clauses
or equivalent ratings from comparable foreign rating agencies or (iii)
deposits, obligations or securities of the type and maturity described in
clauses (b) through (f) above of foreign obligors (or the parent entities
of such obligors), which deposits, obligations or securities or obligors
(or the parent entities of such obligors) do not have the ratings
described in such clauses or in clause (g)(ii) but which
<PAGE> 13
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are comparable in investment quality to such deposits, obligations or
securities or obligors (or the parent entities of such obligors), as the
case may be, or (h) shares of money market mutual or similar funds which
invest exclusively in assets satisfying the requirements of clauses (a)
through (f) of this definition.
"C/D Published Moving Rate": on any particular date, the latest
three-week moving average of daily secondary market morning offering rates
in the United States for three-month certificates of deposit of major
United States money market lenders, such three-week moving average
(adjusted to the basis of a year of 360 days) being determined weekly for
the three-week period ending on the previous Friday by the Administrative
Agent on the basis of:
(a) such rates reported by certificate of deposit dealers to
and published by the Federal Reserve Bank of New York (as adjusted
for reserves and assessments in the same manner as the C/D Quoted
Rate); or
(b) if such publication shall be suspended or terminated, the
C/D Quoted Rate determined by the Administrative Agent on the basis
of quotations for such rates by the Administrative Agent.
"C/D Quoted Rate": relative to any determination of the C/D
Published Moving Rate in circumstances when publication of the rates
referred to in clause (a) of the definition thereof has been suspended or
terminated, the rate of interest per annum determined by the
Administrative Agent to be the sum (rounded upward to the nearest 1/16th
of 1%) of:
(a) the rate obtained by dividing (i) the average (rounded
upward to the nearest 1/16th of 1%) of the bid rates quoted to the
Administrative Agent, in CIBC's secondary market at approximately
10:00 A.M., New York City time (or as soon thereafter as
practicable), from time to time by three certificate of deposit
dealers of recognized standing selected by the Administrative Agent
in its reasonable discretion for the purchase at face value of
three-month certificates of deposit of CIBC in an amount
approximately equal or comparable to the amount of CIBC's portion of
the Loans outstanding hereunder with respect to which the C/D Quoted
Rate is being determined by (ii) a percentage equal to 100% minus
the average of the daily percentages specified during such period by
the Board for determining the maximum reserve requirement
(including, but not limited to, any marginal reserve requirement)
for a member bank of the Federal Reserve System in respect of
liabilities consisting of or including (among other liabilities)
three-month Dollar nonpersonal time deposits in the United States;
and
(b) the daily average during such period of the net annual
assessment rates estimated by the Administrative Agent for
determining the then current annual assessment payable by CIBC to
the Federal Deposit Insurance Corporation for insuring Dollar
deposits of CIBC in the United States.
<PAGE> 14
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"Change of Control": any of the following events: (a) at any time
prior to the occurrence of (i) the "senior secured bank loan rating" of
the Borrower achieving a rating of an equivalent of at least BBB- by S&P
and a rating of an equivalent of at least Baa3 by Moody's, (ii) the
Leverage Ratio as of the end of the most recently ended fiscal quarter of
the Borrower not being greater than 3.50 to 1.00, as determined from the
financial statements and shown on the Compliance Certificate delivered for
such fiscal quarter pursuant to subsection 7.1(a) or 7.1(b), as
applicable, and subsection 7.2(b), respectively, or (iii) at least 17.5%
in the aggregate of the Borrower's outstanding common stock, determined on
a fully diluted basis, shall have been issued pursuant to one or more
public offerings, JLL and its Affiliates are the beneficial owners (as
defined under Rule 13d-3 or any successor rule or regulation promulgated
under the Exchange Act) of less than 10% of the outstanding common stock
of the Borrower, determined on a fully diluted basis; (b) at any time, any
Person (including such Person's Affiliates and associates), other than the
New Borrower Investors or any underwriter of a public offering of the
Borrower's common stock, is the beneficial owner of more than 30% of the
total voting power of the outstanding common stock of the Borrower,
determined on a fully diluted basis, and the New Borrower Investors are in
the aggregate the beneficial owner of a lesser percentage of the total
voting power of the outstanding common stock of the Borrower, determined
on a fully diluted basis, than such other Person and does not have the
right or ability by voting power, contract or otherwise to elect or
designate for election a majority of the board of directors of the
Borrower; (c) during any period of two consecutive years, individuals who
at the beginning of such period constituted the board of directors of the
Borrower (together with any new directors whose election by such board of
directors or whose nomination for election by the shareholders of the
Borrower has been approved by 66-2/3% of the directors then still in
office who either were directors at the beginning of such period or whose
election or recommendation for election was previously so approved) cease
to constitute a majority of the board of directors of the Borrower; or (d)
a "Change of Control" as defined in any of the Senior Subordinated Note
Indentures shall have occurred.
"CIBC": Canadian Imperial Bank of Commerce, a Canadian-chartered
bank, acting through its New York Agency.
"CIBC Alternate Base Rate": on any particular date, a rate of
interest per annum equal to the highest of:
(a) the rate of interest most recently announced by CIBC as
its base rate (the "CIBC Prime Rate");
(b) the Federal Funds Rate for such date plus 1/2 of 1%; and
(c) the CD Published Moving Rate most recently determined by
CIBC plus 1%.
The CIBC Alternate Base Rate is not necessarily intended to be the lowest
rate of interest charged by CIBC in connection with extensions of credit.
<PAGE> 15
9
"Clean-Down Amount": $300,000,000.
"Closing Date": the date on which the conditions precedent set forth
in subsection 6.1 shall be satisfied.
"CMI": as defined in the recitals hereto.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Co-Documentation Agents": Merrill Lynch and Dresdner Bank AG, as
co-documentation agents for the Lenders under this Agreement and the other
Loan Documents.
"Collateral": all assets (including assets constituting shares of
Capital Stock) of the Loan Parties, now owned or hereinafter acquired,
upon which a Lien is purported to be created by any Security Document.
"Commitments": collectively, the Revolving Credit Commitments, the
Dollar Swing Line Commitment, the L/C Commitment and the Term Loan
Commitments; individually, a "Commitment".
"Commitment Percentage": as to any Lender, prior to the Closing
Date, the percentage of the aggregate Revolving Credit Commitments and the
Term Loan Commitments constituted by such Lender's Revolving Credit
Commitment and Term Loan Commitment, or following the Closing Date, the
percentage representing a fraction the numerator of which is the sum of
(i) the aggregate principal amount of such Lender's Term Loans then
outstanding plus (ii) the Revolving Credit Commitment of such Lender (or,
following the termination or expiration of the Revolving Credit
Commitments, the sum of (x) the aggregate principal amount of such
Lender's Revolving Credit Loans then outstanding plus (y) such Lender's
Revolving Commitment Percentage of all L/C Obligations and Swing Line
Loans then outstanding), and the denominator of which is the sum of (i)
the aggregate principal amount of Term Loans of all Lenders then
outstanding plus (ii) the aggregate Revolving Credit Commitments of all
Lenders (or, following the termination or expiration of the Revolving
Credit Commitments, the sum of (x) the aggregate principal amount of all
Revolving Credit Loans then outstanding plus (y) the aggregate principal
amount of all L/C Obligations and Swing Line Loans then outstanding).
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Borrower within the
meaning of Section 4001 of ERISA or is part of a group which includes the
Borrower and which is treated as a single employer under Section 414 of
the Code.
"Competitive Bid": an offer by a Lender to make a Competitive Loan
pursuant to subsection 2.7 in the form of Exhibit G-3.
<PAGE> 16
10
"Competitive Bid Accept/Reject Letter: a notification made by the
Borrower pursuant to subsection 2.7(d) in the form of Exhibit G-4.
"Competitive Bid Rate": as to any Competitive Bid made by a Lender
pursuant to subsection 2.7(b), (a) in the case of a Eurocurrency Loan, the
Margin and (b) in the case of a Fixed Rate Loan, the fixed rate of
interest offered by the Lender making such Competitive Bid.
"Competitive Bid Request": a request made pursuant to subsection 2.7
in the form of Exhibit G-1.
"Competitive Loan": a Loan from a Lender to the Borrower pursuant to
the bidding procedure described in subsection 2.7. Each Competitive Loan
shall be a Eurocurrency Competitive Loan or a Fixed Rate Loan.
"Competitive Note": as defined in subsection 2.7(h).
"Compliance Certificate": as defined in subsection 7.2(b).
"Consolidated": when used in connection with any financial
statements required to be delivered pursuant to subsection 7.1, means such
term as it applies to the Borrower and its Subsidiaries on a consolidated
basis, after eliminating all intercompany items.
"Consolidating": when used in connection with any financial
statements required to be delivered pursuant to subsection 7.1, means such
term as it applies to the individual business segments of the Borrower and
its Subsidiaries on a stand-alone basis.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Copyright, Patent and Trademark Security Agreement": the Third
Amended and Restated Copyright, Patent and Trademark Security Agreement to
be executed and delivered by the Borrower and certain Domestic
Subsidiaries of the Borrower, substantially in the form of Exhibit B-4, as
the same may be amended, supplemented or otherwise modified from time to
time.
"Currency" or "Currencies": collectively, Dollars and Available
Foreign Currencies.
"Current Assets": on any date, with respect to the Borrower and its
Subsidiaries on a consolidated basis, all assets of the Borrower and its
Subsidiaries on such date which would, in accordance with GAAP, be
classified on a consolidated balance sheet of the Borrower as "current
assets".
"Current Liabilities": on any date, with respect to the Borrower and
its Subsidiaries on a consolidated basis, all liabilities of the Borrower
and its Subsidiaries on
<PAGE> 17
11
such date which, in accordance with GAAP, would be classified on a
consolidated balance sheet of the Borrower as "current liabilities".
"December 1998 Senior Subordinated Notes": the Senior Subordinated
Notes due 2008 of the Borrower in an aggregate principal amount of
$250,000,000 issued pursuant to the December 1998 Senior Subordinated
Notes Indenture, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with subsection 8.10.
"December 1998 Senior Subordinated Notes Indenture": the Indenture
dated as of December 14, 1998 between the Borrower and The Bank of New
York, as trustee, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with subsection 8.10.
"Default": any of the events specified in Section 9, whether or not
any requirement for the giving of notice, the lapse of time, or both, or
any other condition, has been satisfied.
"Dollar Equivalent Amount": with respect to (i) any amount of any
currency other than Dollars on any date, the equivalent amount in Dollars
of such amount of currency as determined by the Administrative Agent in
accordance with subsection 4.6(b) using the applicable Exchange Rate and
(ii) any amount in Dollars, such amount.
"Dollar Indebtedness": at any time, any Indebtedness then
denominated in Dollars.
"Dollar Letters of Credit": at any time, all Letters of Credit then
denominated in Dollars.
"Dollar Refunding Amount": as defined in subsection 2.6(e)(i).
"Dollar Revolving Credit Loans": Revolving Credit Loans denominated
in Dollars.
"Dollar Term Loans": Term Loans denominated in Dollars.
"Dollar Swing Line Commitment": the Dollar Swing Line Lender's
obligation to make Dollar Swing Line Loans pursuant to subsection 2.6(a)
in an aggregate principal amount not to exceed $100,000,000 at any time.
"Dollar Swing Line Lender": Dresdner Bank AG, in its capacity as
provider of Dollar Swing Line Loans.
"Dollar Swing Line Loans": as such term is defined in subsection
2.6(a).
"Dollars" and "$": dollars in lawful currency of the United States.
<PAGE> 18
12
"Domestic Subsidiary": any Subsidiary organized under the laws of
any jurisdiction within the United States.
"EBITDA": for any period, with respect to the Borrower and its
Subsidiaries on a consolidated basis, determined in accordance with GAAP,
an amount equal to the sum of (without duplication) (a) Net Income for
such period, plus (b) income taxes, excluding income taxes (either
positive or negative) attributable to extraordinary and non-recurring
gains or losses or sales or other dispositions of assets permitted under
subsection 8.6, plus (c) Interest Expense for such period, plus (d)
depreciation for such period, plus (e) amortization for such period, plus
(f) any other non-cash items (including minority interests) reducing Net
Income for such period, plus (g) restructuring charges and costs (whether
cash or non-cash) for such period to the extent not added back to Net
Income, plus (h) amortization of deferred financing costs and expenses for
such period, plus (i) for any period from January 31, 1998 through July
31, 1999, up to $5,000,000 of losses incurred by a joint venture owned in
part by the Borrower or a Subsidiary which joint venture becomes a
Subsidiary during such period minus (j) all non-cash items increasing Net
Income for such period.
For the purposes of calculating EBITDA for any period of four
consecutive fiscal quarters (each, a "Reference Period") pursuant to any
determination of the Leverage Ratio, (i) if at any time during such
Reference Period the Borrower or any Subsidiary shall have made any
Material Disposition, the EBITDA for such Reference Period shall be
reduced by an amount equal to the EBITDA (if positive) attributable to the
property that is the subject of such Material Disposition for such
Reference Period or increased by an amount equal to the EBITDA (if
negative) attributable thereto for such Reference Period and (ii) if
during such Reference Period the Borrower or any Subsidiary shall have
made a Material Acquisition, EBITDA for such Reference Period shall be
calculated after giving pro forma effect thereto as if such Material
Acquisition occurred on the first day of such Reference Period. As used in
this definition, "Material Acquisition" means any acquisition of property
or series of related acquisitions of property that (a) constitutes assets
comprising all or substantially all of an operating unit of a business or
Person or constitutes all or substantially all of the common stock of a
Person and (b) involves the payment of consideration (including the
assumption of debt) by the Borrower and its Subsidiaries in excess of
$5,000,000; and "Material Disposition" means any Disposition of property
or series of related Dispositions of property that yields gross proceeds
to the Borrower or any of its Subsidiaries in excess of $1,000,000.
For purposes of calculating EBITDA for any period of four
consecutive fiscal quarters that commences prior to the Closing Date, the
Borrower may exclude certain expenses incurred by CMI and its Subsidiaries
prior to the Closing Date that are not reasonably expected to continue
after the Closing Date and that resulted from payments by them to
affiliates of CMI not being acquired by the Borrower as part of the
Acquisition.
"EMU legislation": legislative measures of the European Council for
the introduction of, changeover to or operation of a single or unified
European currency
<PAGE> 19
13
(whether known as the euro or otherwise), being in part the implementation
of the third stage of EMU.
"Environmental Costs": any and all costs or expenses (including,
without limitation, reasonable attorney's and consultant's fees,
investigation and laboratory fees, response costs, court costs and
litigation expenses, fines, penalties, damages, settlement payments,
judgments and awards), of whatever kind or nature, contingent or
otherwise, arising out of, or in any way relating to, any violation of,
noncompliance with or liability under any Environmental Laws or any
orders, requirements, demands, or investigations of any person related to
any Environmental Laws. Environmental Costs include any and all of the
foregoing, without regard to whether they arise out of or are related to
any past, pending or threatened proceeding of any kind.
"Environmental Laws": any and all laws, rules, orders, regulations,
statutes, ordinances, codes, decrees, or other legally enforceable
requirements (including, without limitation, common law) of any foreign
government, the United States, or any state, local, municipal or other
Governmental Authority, regulating, relating to or imposing liability or
standards of conduct concerning protection of the environment or of human
health, or employee health and safety, as has been, is now, or may at any
time hereafter be, in effect.
"Environmental Permits": any and all permits, licenses,
registrations, notifications, exemptions and any other authorization
required under any Environmental Law.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"euro": the single currency of participating member states of the
European Union.
"Eurocurrency Base Rate": with respect to each day during each
Interest Period pertaining to a Eurocurrency Loan, the rate per annum
determined by the Administrative Agent to be the arithmetic mean of the
offered rates for deposits in the applicable Currency with a term
comparable to such Interest Period that appears on the Dow Jones Market
Service British Bankers Assoc. Interest Settlement Rates Page (as defined
below) at approximately 11:00 A.M., London time, on the second full
Business Day preceding the first day of such Interest Period; provided
that if there shall at any time no longer exist a Dow Jones Market Service
British Bankers Assoc. Interest Settlement Rates Page, "Eurocurrency Base
Rate" shall mean, with respect to each day during each Interest Period
pertaining to a Eurocurrency Loan, the rate per annum equal to the rate at
which CIBC is offered deposits in the applicable Currency at or about
10:00 A.M., New York City time, two Business Days prior to the beginning
of such Interest Period in the interbank eurodollar market where the
eurodollar and foreign currency and exchange operations in respect of its
Eurocurrency Loans are then being conducted for delivery on the first day
of such Interest Period for the number of days comprised therein and in an
amount comparable to the amount of its Eurocurrency Loan to be outstanding
during such
<PAGE> 20
14
Interest Period. "Dow Jones Market Service British Bankers Assoc. Interest
Settlement Rates Page" shall mean the display designated as Page 3750 (or
Page 3740 in the case of French Francs, U.K. Pounds Sterling and
Deutschemarks) on the Dow Jones Market Service System Incorporated Service
(or such other page as may replace such page on such service for the
purpose of displaying the rates at which deposits in the applicable
Currency are offered by leading banks in the London interbank deposit
market). If the Administrative Agent determines that there is no
Eurocurrency Base Rate displayed on the screen for deposits denominated in
the national currency unit in which any Loans are denominated, the
Eurocurrency Base Rate for such Loans shall be based upon the rate
displayed on the screen for the offering of deposits denominated in euro
units.
"Eurocurrency Competitive Loan": any Competitive Loan bearing
interest at a rate determined by reference to the Eurocurrency Rate in
accordance with the provisions of subsection 2.7.
"Eurocurrency Loan": any Eurocurrency Competitive Loan or
Eurocurrency Standby Loan.
"Eurocurrency Rate": with respect to each day during each Interest
Period pertaining to a Eurocurrency Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to the
nearest 1/100th of 1%):
Eurocurrency Base Rate
------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Eurocurrency Reserve Requirements": for any day as applied to a
Eurocurrency Loan, the aggregate (without duplication) of the rates
(expressed as a decimal fraction) of reserve requirements in effect on
such day (including, without limitation, basic, supplemental, marginal and
emergency reserves under any regulations of the Board or other
Governmental Authority having jurisdiction with respect thereto) dealing
with reserve requirements prescribed for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of such Board)
maintained by a member bank of such System.
"Eurocurrency Revolving Credit Loan": any Revolving Credit Loan
(other than a Competitive Loan) bearing interest at a rate determined by
reference to the Eurocurrency Rate in accordance with the provisions of
subsection 4.1(a).
"Eurocurrency Standby Loan": any Loan (other than a Competitive
Loan) bearing interest at a rate determined by reference to the
Eurocurrency Rate in accordance with the provisions of subsection 4.1(a).
"European Swing Line Administrator": Dresdner Bank AG.
"euro unit ": the currency unit of the euro.
<PAGE> 21
15
"Event of Default": any of the events specified in Section 9,
provided that any requirement for the giving of notice, the lapse of time,
or both, or any other condition, has been satisfied.
"Excess Cash Flow": with respect to any fiscal year of the Borrower
and its Subsidiaries, on a consolidated basis, an amount equal to (a) Net
Income for such fiscal year, plus (b) amortization and depreciation for
such fiscal year, plus (c) extraordinary or non-recurring losses for such
fiscal year, minus (d) extraordinary or non-recurring gains for such
fiscal year, minus (e) Capital Expenditures made in accordance with
subsection 8.8 during such fiscal year, minus (f) payments of principal on
Indebtedness resulting in a permanent reduction of such Indebtedness made
during such fiscal year, minus (g) amounts arising from sales of assets
permitted by subsection 8.6 during such fiscal year to the extent included
in Net Income and paid to the Lenders as a mandatory prepayment pursuant
to subsection 4.3(c), minus (h) Investments made in accordance with
subsections 8.9(c) and (g) during such fiscal year, minus (i) plant
closing and restructuring costs and charges during such fiscal year, minus
(j) pension plan expense to the extent not reducing Net Income for such
fiscal year, minus (k) increases in Working Capital for such fiscal year,
plus (l) decreases in Working Capital for such fiscal year in excess of
$40,000,000.
"Exchange Act": the Securities Exchange Act of 1934, as amended from
time to time.
"Exchange Rate": with respect to any currency other than Dollars on
any date, the rate at which such currency may be exchanged into Dollars,
as set forth on such date on the relevant FWDS Series Reuters currency
page at or about 11:00 A.M. New York City time on such date. In the event
that such rate does not appear on any such Reuters page, the "Exchange
Rate" with respect to such currency shall be determined by reference to
such other publicly available service for displaying exchange rates as may
be agreed upon by the Administrative Agent and the Borrower or, in the
absence of such agreement, such "Exchange Rate" shall instead be the
Administrative Agent's spot rate of exchange in the interbank market where
its currency exchange operations in respect of such currency are then
being conducted, at or about 10:00 A.M. local time at such date for the
purchase of Dollars with such currency for delivery two Business Days
later; provided that if at the time of any such determination no such spot
rate can reasonably be quoted, the Administrative Agent may use any
reasonable method (including obtaining quotes from three or more market
makers for such currency) as it deems appropriate to determine such rate
and such determination shall be conclusive absent manifest error (without
prejudice to the determination of the reasonableness of such method).
"Federal Funds Rate": for any particular date, an interest rate per
annum equal to the interest rate (rounded upwards, if necessary, to the
nearest 1/16th of 1%) offered in the interbank market to the
Administrative Agent as the overnight Federal Funds Rate at or about 10:00
A.M. New York City time on such day (or if such day is not a Business Day,
for the next preceding Business Day).
<PAGE> 22
16
"Fee Letter": the Fee Letter dated as of December 16, 1998 among
CIBC, Credit Suisse First Boston and the Borrower, as amended,
supplemented or otherwise modified from time to time.
"Fee Mortgages": the Fee Mortgages executed and delivered by the
Borrower and certain Domestic Subsidiaries, substantially in the form of
Exhibit B-2, as the same may be amended, supplemented or otherwise
modified from time to time.
"Financing Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance
with GAAP to be capitalized on a balance sheet of the lessee.
"Fixed Charge Coverage Ratio": as of the end of each fiscal quarter
of the Borrower, for the twelve month period ending on such date, with
respect to the Borrower and its Subsidiaries on a consolidated basis, the
ratio of (a) EBITDA for the applicable period, minus an amount equal to
the Capital Expenditures for the applicable period, provided that for any
period from January 31, 1998 through July 31, 1999 up to $5,000,000 of
Capital Expenditures made by a joint venture owned in part by the Borrower
or a Subsidiary which joint venture becomes a Subsidiary during such
period shall be excluded from such amount to (b) the sum of (i) cash
Interest Expense for the applicable period, plus (ii) scheduled payments
of principal on the Term Loans for the applicable period.
"Fixed Rate Loan": any Competitive Loan bearing interest at a fixed
percentage rate per annum (expressed in the form of a decimal to no more
than four decimal places) specified by the Lender making such Loan in its
Competitive Bid.
"Foreign Currency Competitive Loans": Competitive Loans demonstrated
in a Currency other than Dollars.
"Foreign Currency Letters of Credit": at any time, all Letters of
Credit then denominated in an Available Foreign Currency.
"Foreign Currency Revolving Credit Loans": at any time, all
Revolving Credit Loans then denominated in an Available Foreign Currency.
"Foreign Currency Subfacility Amount": $100,000,000 or, if less, the
aggregate amount of the Revolving Credit Commitments then in effect.
"Foreign Currency Sublimit Outstandings": at any time, the sum,
without duplication, of the Dollar Equivalent Amount of (a) the aggregate
then outstanding principal amount of Foreign Currency Revolving Credit
Loans, (b) the aggregate then outstanding principal amount of Foreign
Currency Competitive Loans and (c) the aggregate then outstanding amount
of L/C Obligations in respect of Foreign Currency Letters of Credit.
<PAGE> 23
17
"Foreign Currency Swing Line Commitment": as defined in subsection
2.6(b).
"Foreign Currency Swing Line Lender": the European Swing Line
Administrator (including any branch or affiliate thereof) and any other
Lender (including CIBC) that, with the consent of the Borrower and the
Administrative Agent, agrees to make Foreign Currency Swing Line Loans
hereunder, in its capacity as a provider of such Foreign Currency Swing
Line Loans.
"Foreign Currency Swing Line Loan Agreement": as defined in
subsection 2.6(b).
"Foreign Currency Swing Line Loans": as defined in subsection
2.6(b).
"Foreign Currency Swing Line Subfacility Amount": $100,000,000.
"Foreign Stock Pledge Agreements": collectively, the Mexican Stock
Pledge Agreement and each of the other Stock Pledge Agreements executed
and delivered by the Borrower and certain of its Domestic Subsidiaries in
connection with the Initial Credit Agreement, the Prior Credit Agreement
or this Agreement, as the same may be amended, supplemented or otherwise
modified from time to time.
"Foreign Subsidiary": any Subsidiary organized under the laws of any
jurisdiction outside the United States.
"Funded Debt": as to any Person, all Indebtedness of such Person
that matures more than one year from the date of its creation or matures
within one year from such date but is renewable or extendible, at the
option of such Person, to a date more than one year from such date or
arises under a revolving credit or similar agreement that obligates the
lender or lenders to extend credit during a period of more than one year
from such date, including, without limitation, all current maturities and
current sinking fund payments in respect of such Indebtedness whether or
not required to be paid within one year from the date of its creation (the
"Current Portion of Funded Debt") and, in the case of the Borrower,
Indebtedness in respect of the Loans.
"GAAP": generally accepted accounting principles in the United
States consistent with those utilized in preparing the audited financial
statements referred to in subsection 5.1; provided that for purposes of
subsection 7.1 GAAP shall mean generally accepted accounting principles in
the United States as in effect at the time of the applicable financial
statements.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof and any entity (including, without
limitation, any central bank) exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government. For
purposes of subsections 4.9, 4.10 and 11.15, the term "Governmental
Authority" shall be deemed to include, without limitation, the National
Association of Insurance Commissioners.
<PAGE> 24
18
"Guarantee": as defined in the definition of "Guarantor."
"Guarantee and Collateral Agreement": the Third Amended and Restated
Guarantee and Collateral Agreement to be executed and delivered by the
Borrower and each of its material Domestic Subsidiaries, substantially in
the form of Exhibit B-1, as the same may be amended, supplemented or
otherwise modified from time to time.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has issued
a reimbursement, counterindemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, 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
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 the Borrower in
good faith.
"Guarantor": any Person which is now or hereafter a party to (a) the
Guarantee and Collateral Agreement or (b) any other guarantee (a
"Guarantee") hereafter delivered to the Administrative Agent guaranteeing
the obligations and liabilities of each of the Loan Parties hereunder or
under any other Loan Documents, including, without limitation, any
guarantee delivered pursuant to subsection 7.10.
"Guarantor Subsidiaries": each of the Guarantors that is a
Subsidiary of the Borrower.
"HLI Sub": HL Holding Germany GmbH, a limited liability company
under the laws of the Federal Republic of Germany.
<PAGE> 25
19
"IKB": IKB Deutsche Industriebank.
"Indebtedness": at any date, an amount equal to (a) all indebtedness
of such Person for borrowed money or for the deferred purchase price of
property or services (other than current trade liabilities incurred in the
ordinary course of business and payable in accordance with customary
practices), (b) any other indebtedness of such Person which is evidenced
by a note, bond, debenture or similar instrument, (c) all obligations of
such Person under Financing Leases, (d) all obligations of such Person in
respect of acceptances issued or created for the account of such Person,
(e) for purposes of subsections 8.2 and Section 9(e), all obligations of
such Person in respect of interest rate protection agreements, interest
rate futures, interest rate options, interest rate caps and any other
interest rate, currency, commodity or other hedging arrangement, (f) all
liabilities of another Person secured by any Lien on any property owned by
such Person whether or not such Person has assumed or otherwise become
liable for the payment thereof and (g) the net investment paid by the
purchasers to the Borrower or any Subsidiary under a Permitted Receivables
Financing.
"Initial Credit Agreement": the Credit Agreement, dated as of June
27, 1996, among the Borrower, the several banks and other financial
institutions from time to time parties thereto, Canadian Imperial Bank of
Commerce, as administrative agent, and Merrill Lynch Capital Corporation,
as documentation agent.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intercreditor Agreement": the Intercreditor Agreement dated as of
April 30, 1998, substantially in the form of Exhibit J, as the same may be
amended, supplemented or otherwise modified from time to time.
"Intercreditor/Lien Subordination Agreement": the Intercreditor and
Lien Subordination Agreement dated as of September 30, 1998, substantially
in the form of Exhibit K, as the same may be amended, supplemented or
otherwise modified from time to time.
"Interest Coverage Ratio": as of the end of each fiscal quarter of
the Borrower for the twelve month period ending on such date, with respect
to the Borrower and its Subsidiaries on a consolidated basis, the ratio of
(a) EBITDA for the applicable period to (b) cash Interest Expense for the
applicable period.
"Interest Expense": for any period and without duplication, with
respect to the Borrower and its Subsidiaries on a consolidated basis, (a)
the aggregate amount of interest which would be set forth opposite the
caption "interest expense" or any like caption on an income statement for
the Borrower and its Subsidiaries on a consolidated basis, determined in
accordance with GAAP, for such period plus, to the extent not included in
such interest, (i) imputed interest included in Financing Leases for such
<PAGE> 26
20
period, (ii) all commissions, discounts and other fees and charges owed
with respect to letters of credit and bankers' acceptance financing
permitted by subsection 8.2 for such period; (iii) the net payments made
in connection with Interest Rate Protection Agreements for such period,
(iv) the interest portion of any deferred payment obligation for such
period, (v) amortization of discount or premium, if any, for such period,
(vi) all other non-cash interest expense (other than interest amortized to
cost of sales) for such period, (vii) all net capitalized interest for
such period and (viii) all interest paid under any Guarantee Obligation,
minus (b) net payments received in connection with Interest Rate
Protection Agreements for such period, minus (c) amortization of deferred
financing costs and expenses for such period.
"Interest Payment Date": (a) as to any ABR Loan, the last day of
each April, July, October and January, (b) as to any Eurocurrency Loan
having an Interest Period of three months or less, the last day of such
Interest Period, and (c) as to any Eurocurrency Loan having an Interest
Period longer than three months or a Fixed Rate Loan with an Interest
Period of more than 90 days' duration, each day which is three months or
90 days, or a whole multiple thereof, after the first day of such Interest
Period and the last day of such Interest Period.
"Interest Period": (a) with respect to any Eurocurrency Loan (i)
initially, the period commencing on the borrowing or conversion date, as
the case may be, with respect to such Eurocurrency Loan and ending one,
two, three or six months thereafter, as selected by the Borrower in its
notice of borrowing or notice of conversion, as the case may be, given
with respect thereto; and (ii) thereafter, each period commencing on the
last day of the next preceding Interest Period applicable to such
Eurocurrency Loan and ending one, two, three or six months thereafter, as
selected by the Borrower by irrevocable notice to the Administrative Agent
not less than three Business Days prior to the last day of the then
current Interest Period with respect thereto and (b) with respect to any
Fixed Rate Loan, the period commencing on the date of such Loan and ending
on the date specified in the Competitive Bids in which the offers to make
the Fixed Rate Loans were extended, which shall not be earlier than seven
days after the date of such Loan or later than 360 days after the date of
such Loan;
provided that all of the foregoing provisions relating to Interest Periods
are subject to the following:
(1) if any Interest Period would otherwise end on a day that
is not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless, in the case of Eurocurrency
Loans only, the result of such extension would be to carry such
Interest Period into another calendar month in which event such
Interest Period shall end on the immediately preceding Business Day;
(2) any Interest Period that would otherwise extend beyond (a)
the Revolving Credit Commitment Termination Date (in the case of
Revolving Credit Loans) shall end on the Revolving Credit Commitment
Termination Date, or (b)
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21
the Term Loan Maturity Date (in the case of the Term Loans) shall
end on the Term Loan Maturity Date;
(3) any Interest Period pertaining to a Eurocurrency Loan that
begins on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last
Business Day of a calendar month; and
(4) the Borrower shall select Interest Periods so as not to
require a payment or prepayment of any Loan during an Interest
Period for such Loan.
"Interest Rate Protection Agreement": any interest rate protection
agreement, interest rate future, interest rate option, interest rate cap
or collar or other interest rate hedge arrangement, to or under which the
Borrower or any of its Subsidiaries is a party or a beneficiary on the
Closing Date or becomes a party or a beneficiary after the Closing Date.
"Investment": as defined in subsection 8.9.
"Issuing Lender": CIBC or any of its affiliates, and any other
Lender appointed by the Borrower and CIBC, with the consent of such
Lender, in its capacity as issuer of Letters of Credit hereunder.
"JLL": Joseph Littlejohn & Levy Fund II, L.P., a Delaware limited
partnership, or any other fund controlled by Joseph, Littlejohn & Levy.
"July 1996 Senior Subordinated Notes": the Senior Subordinated Notes
due 2006 of the Borrower in an aggregate principal amount of $250,000,000
issued pursuant to the July 1996 Senior Subordinated Notes Indenture, as
the same may be amended, supplemented or otherwise modified from time to
time in accordance with subsection 8.10.
"July 1996 Senior Subordinated Notes Indenture": the Indenture dated
as of June 27, 1996 between the Borrower and First Trust National
Association as successor to Comerica Bank, as trustee, as the same may be
amended, supplemented or otherwise modified from time to time in
accordance with subsection 8.10.
"July 1997 Senior Subordinated Notes": the Senior Subordinated Notes
due 2007 of the Borrower in an aggregate principal amount of $150,000,000
issued pursuant to the July 1997 Senior Subordinated Notes Indenture, as
the same may be amended, supplemented or otherwise modified from time to
time in accordance with subsection 8.10.
"July 1997 Senior Subordinated Notes Indenture": the Indenture dated
as of July 22, 1997 between the Borrower and The Bank of New York, as
trustee, as the same may be amended, supplemented or otherwise modified
from time to time in accordance with subsection 8.10.
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22
"June 1997 Senior Subordinated Notes": the Senior Subordinated Notes
due 2007 of the Borrower in an aggregate principal amount of $250,000,000
issued pursuant to the June 1997 Senior Subordinated Notes Indenture, as
the same may be amended, supplemented or otherwise modified from time to
time in accordance with subsection 8.10.
"June 1997 Senior Subordinated Notes Indenture": the Indenture dated
as of June 30, 1997 between the Borrower and The Bank of New York, as
trustee, as the same may be amended, supplemented or otherwise modified
from time to time in accordance with subsection 8.10.
"L/C Commitment": $130,000,000.
"L/C Fee Payment Date": the last day of each April, July, October
and January.
"L/C Obligations": at any date, the sum of (a) the aggregate amount
then available to be drawn under all outstanding Letters of Credit and (b)
the aggregate amount of drawings under Letters of Credit which have not
then been reimbursed by the Borrower pursuant to subsection 3.5.
"L/C Participants": with respect to any Letter of Credit,
collectively, all the Revolving Credit Lenders other than the Issuing
Lender with respect thereto.
"L/C Participating Interest": with respect to any Letter of Credit
(a) in the case of the Issuing Lender with respect thereto, its interest
in such Letter of Credit and any Letter of Credit Application relating
thereto after giving effect to the granting of participating interests
therein, if any, pursuant hereto and (b) in the case of each L/C
Participant, its undivided participating interest in such Letter of Credit
and any Letter of Credit Application relating thereto.
"Lease Expense": for any period, the aggregate amount of fixed and
contingent rentals payable by the Borrower and its Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP, with
respect to leases (other than Financing Leases) of real and personal
property.
"Leasehold Mortgages": the Leasehold Mortgages executed and
delivered by the Borrower and certain Domestic Subsidiaries of the
Borrower, substantially in the form of Exhibit B-3, as the same may be
amended, supplemented or otherwise modified from time to time.
"Lemmerz": Lemmerz Holding GmbH.
"Lemmerz Shareholders": Marianne Lemmerz, Inge Kruge-Pressl, Renate
Kukwa-Lemmerz and Horst Kukwa-Lemmerz.
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23
"Lenders": as defined in the preamble hereto and including, without
limitation, the Dollar Swing Line Lender, the Foreign Currency Swing Line
Lenders and each Issuing Lender.
"Letters of Credit": as defined in subsection 3.1.
"Letter of Credit Application": an application in such form as the
applicable Issuing Lender may specify from time to time requesting such
Issuing Lender to open a Letter of Credit.
"Leverage Ratio": as of the end of each fiscal quarter of the
Borrower, with respect to the Borrower and its Subsidiaries on a
consolidated basis, the ratio of (a) Total Indebtedness on such date
(provided that, for purposes of this definition, Total Indebtedness shall
include Indebtedness described in clause (g) of the definition of such
term only to the extent that the aggregate Dollar Equivalent Amount
thereof exceeds $250,000,000) to (b) EBITDA for the twelve month period
ending on such date.
"Lien": any mortgage, pledge, hypothecation, deposit arrangement,
encumbrance, lien (statutory or other), charge or other security interest
or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement and
any Financing Lease having substantially the same economic effect as any
of the foregoing).
"Loan": any loan made by any Lender pursuant to this Agreement.
"Loan Documents": this Agreement, any Notes, any Letter of Credit
Applications, any Letters of Credit, any Foreign Currency Swing Line Loan
Agreement (and any documents or agreements executed in connection
therewith), the Security Documents and any Guarantees.
"Loan Parties": the Borrowers and each Subsidiary which is a party
to a Loan Document, individually, a "Loan Party".
"London Banking Day": any day on which banks in London are open for
general banking business, including dealings in foreign currency and
exchange.
"Majority Lenders": at any time, Lenders the Commitment Percentages
of which aggregate more than 50%.
"Majority Revolving Credit Lenders": Revolving Credit Lenders the
Revolving Credit Commitment Percentages of which aggregate more than 50%.
"Managing Agents": collectively, the Administrative Agent,
Syndication Agent and the Co- Documentation Agents.
"Margin": as to any Eurocurrency Competitive Loan, the margin
(expressed as a percentage rate per annum in the form of a decimal to four
decimal
<PAGE> 30
24
places) to be added to, or subtracted from, the Eurocurrency Rate to
determine the interest rate applicable to such Loan, as specified in the
Competitive Bid relating to such Loan.
"Material Adverse Effect": a material adverse effect on (a) the
business, operations, property, condition (financial or otherwise) or
prospects of the Borrower and its Subsidiaries taken as a whole or (b) the
validity or enforceability of this Agreement or any of the other Loan
Documents or the rights or remedies of the Administrative Agent or the
Lenders hereunder or thereunder.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products,
polychlorinated biphenyls, urea-formaldehyde insulation, asbestos or
asbestos-containing materials, pollutants, contaminants, radioactivity,
and any other substances of any kind, whether or not any such substance is
defined as hazardous or toxic under any Environmental Law, that is
regulated pursuant to or could give rise to liability under any
Environmental Law.
"Merrill Lynch": Merrill Lynch Capital Corporation.
"Mexican Stock Pledge Agreement": the Pledge Agreement made by
CMI-Texas, Inc. in favor of the Administrative Agent on behalf of the
Lenders, substantially in the form of Exhibit L, as the same may be
amended, supplemented or otherwise modified from time to time.
"Moody's": as defined in the definition of "Cash Equivalents."
"Mortgages": collectively, the Fee Mortgages and the Leasehold
Mortgages.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"national currency unit": the unit of currency (other than a euro
unit) of a participating member state.
"Net Cash Proceeds": (a) with respect to any sale or other
disposition of assets by the Borrower or any of its Subsidiaries, the net
amount equal to the aggregate amount received in cash (including any cash
received by way of deferred payment pursuant to a note receivable, other
non-cash consideration or otherwise, but only as and when such cash is so
received) minus the sum of (i) the reasonable fees, commissions and other
out-of-pocket expenses incurred by the Borrower or such Subsidiary in
connection with such sale or other disposition, (ii) federal, state and
local taxes incurred in connection with such sale or other disposition,
whether payable at such time or thereafter and (iii) in the case of any
such sale or other disposition of assets subject to a Lien securing any
Indebtedness (which Lien and Indebtedness are permitted by this
Agreement), any amounts required to be repaid by the Borrower or such
Subsidiary in respect of such Indebtedness (other than Indebtedness under
this Agreement and any Notes) in connection with such sale or other
disposition; and
<PAGE> 31
25
(b) with respect to any issuance, sale or other disposition of any
debt security by the Borrower or any of its Subsidiaries (other than to
the Borrower or any of its Subsidiaries), the net amount equal to the
aggregate amount received in cash in connection with such issuance, sale
or other disposition minus the sum of (i) the reasonable fees, commissions
and other out-of-pocket expenses incurred by the Borrower or such
Subsidiary in connection with such issuance, sale or other disposition and
(ii) federal, state and local taxes incurred in connection with such
issuance, sale or other disposition, whether payable at such time or
thereafter.
"Net Income": for any period, the aggregate of the net income of the
Borrower and its Subsidiaries for such period on a consolidated basis,
determined in accordance with GAAP, for such period; provided that there
shall be excluded from Net Income (a) the net income of a Person whose net
income is not consolidated with the Borrower's under GAAP (other than the
amount of dividends and other distributions paid or made by such Person to
the Borrower or any of its Subsidiaries during such period), (b) the net
income of any Person for such period acquired in a pooling of interests
transaction for any period prior to the date of such acquisition, (c) any
net gain or loss for such period (net of the related tax effect thereof)
resulting from any sale or other disposition of assets or any sale or
other disposition of any Capital Stock of any Person by the Borrower or
any of its Subsidiaries, in each case, other than in the ordinary course
of business and permitted by subsection 8.6, (d) extraordinary gains and
losses for such period (net of the related tax effect thereof), (e)
non-recurring gains and losses for such period (net of the related tax
effect thereof) and (f) cash returns on or on account of Investments
permitted under subsection 8.9(g); provided that there shall be added back
to Net Income non-cash restructuring charges deducted in calculating Net
Income for such period.
"New Borrower Investors": JLL, CIBC WG Argosy Merchant Fund 2,
L.L.C., TSG Capital Fund II, L.P., Tri-Links Investment Trust, Chase
Equity Associates, L.P., the Lemmerz Shareholders and their respective
Affiliates.
"Non-Dollar Indebtedness": at any time, all Indebtedness of the
Borrower and its Subsidiaries then denominated in a currency other than
Dollars.
"Non-Excluded Taxes": as defined in subsection 4.11.
"Non-Guarantor Subsidiary": any Subsidiary that is not a Guarantor
Subsidiary.
"Notes": collectively, the Revolving Credit Notes, the Swing Line
Note, the Term Notes and the Competitive Notes, if any.
"Notice of Foreign Currency Swing Line Refunding": as defined in
subsection 2.6(e)(i).
"Obligations": as defined in the Guarantee and Collateral Agreement.
"Participant": as defined in subsection 11.6(b).
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26
"participating member state ": each state so described in any EMU
legislation.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"PBGC Agreement": the Hayes Wheels Int'l Inc. - PBGC Agreement dated
July 2, 1996 between the Borrower and the PBGC with respect to, among
other things, the funding levels of certain pension plans of the Borrower
and Hayes Lemmerz International -- Ohio, Inc., an Ohio corporation.
"Permitted Hedging Arrangement": as defined in subsection 8.15.
"Permitted Receivables Financing": a receivables financing
transaction financed in Dollars or in a currency other than Dollars on
terms and conditions that are similar to and no less favorable in any
material respects to the Lenders and the Borrower than the terms of the
receivables financing transaction entered into by the Borrower on April
30, 1998.
"Person": an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of
whatever nature.
"Plan": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Prior Credit Agreement": as defined in the recitals hereto.
"Refunded Dollar Swing Line Loans": as defined in subsection
2.6(d)(i).
"Register": as defined in subsection 11.6(d).
"Refinanced Debt": as defined in the recitals hereto.
"Reimbursement Obligations": the obligation of the Borrower to
reimburse the Issuing Lenders pursuant to subsection 3.5 for amounts drawn
under Letters of Credit.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043 of
ERISA, other than those events as to which the thirty day notice period is
waived under subsections .13, .14, .16, .18, .19 or .20 of PBGC Reg.
Section 2615.
<PAGE> 33
27
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents
of such Person, and any law, treaty, rule or regulation or determination
of an arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"Responsible Officer": the chief executive officer, the president
and the general counsel of the Borrower or, with respect to financial
matters, the chief financial officer and the treasurer of the Borrower.
"Revolving Credit Commitment": as to any Revolving Credit Lender,
its obligation to make Revolving Credit Loans to, and/or make or
participate in Swing Line Loans made to, and/or issue or participate in
Letters of Credit issued on behalf of, the Borrower in an aggregate amount
not to exceed at any one time outstanding the amount set forth under such
Revolving Credit Lender's name in Schedule A opposite the heading
"Revolving Credit Commitment" or, in the case of any Lender that is an
Assignee, the amount of the assigning Lender's Revolving Credit Commitment
assigned to such Assignee pursuant to subsection 11.6 (in each case as
such amount may be adjusted from time to time as provided herein).
"Revolving Credit Commitment Percentage": as to any Revolving Credit
Lender, the percentage of the aggregate Revolving Credit Commitments
constituted by its Revolving Credit Commitment (or, if the Revolving
Credit Commitments have terminated or expired, the percentage which (i)
the sum of the Dollar Equivalent Amount of (a) such Lender's then
outstanding Revolving Credit Loans plus (b) such Lender's interests in the
aggregate L/C Obligations and Swing Line Loans then outstanding then
constitutes of (ii) the sum of the Dollar Equivalent Amount of (a) the
aggregate Revolving Credit Loans of all the Revolving Credit Lenders then
outstanding plus (b) the aggregate L/C Obligations and Swing Line Loans
then outstanding).
"Revolving Credit Commitment Period": the period from and including
the Closing Date to but not including the Revolving Credit Commitment
Termination Date.
"Revolving Credit Commitment Termination Date": the earlier of (a)
February 15, 2005 or, if such date is not a Business Day, the Business Day
next preceding such date and (b) the date upon which the Revolving Credit
Commitments shall be terminated pursuant hereto.
"Revolving Credit Lender": any Lender having a Revolving Credit
Commitment or that holds outstanding Revolving Credit Loans or L/C
Participating Interests hereunder.
"Revolving Credit Loans": as defined in subsection 2.1.
"Revolving Credit Note": as defined in subsection 2.2.
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"Securities Act": the Securities Act of 1933, as amended from time
to time.
"Security Documents": collectively, the Guarantee and Collateral
Agreement, the Borrower Guarantee, the Foreign Stock Pledge Agreements,
the Copyright, Patent and Trademark Security Agreement, the Fee Mortgages
and the Leasehold Mortgages and all other security documents hereafter
delivered to the Administrative Agent granting a Lien on any asset or
assets of any Person to secure the obligations and liabilities of the
Borrower hereunder or under any of the other Loan Documents or to secure
any guarantee of any such obligations and liabilities, including, without
limitation, any security document delivered pursuant to subsection 7.10.
"Senior Subordinated Note Indentures": collectively, the July 1996
Senior Subordinated Notes Indenture, the June 1997 Senior Subordinated
Notes Indenture, the July 1997 Senior Subordinated Notes Indenture, the
December 1998 Senior Subordinated Notes Indenture and any indenture
pursuant to which the senior subordinated notes permitted by subsection
8.2(k) are issued.
"Senior Subordinated Notes": collectively, the July 1996 Senior
Subordinated Notes, the June 1997 Senior Subordinated Notes, the July 1997
Senior Subordinated Notes, the December 1998 Senior Subordinated Notes and
any other senior subordinated notes permitted by subsection 8.2(k).
"Short-Term Indebtedness ": all Indebtedness other than (a) Funded
Debt and (b) the Current Portion of Funded Debt.
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Specified Assets": those assets specified in the letter, dated as
of the date hereof, from the Borrower to the Administrative Agent
identifying certain assets of the Borrower and its Subsidiaries which the
Borrower proposes to sell.
"S&P": as defined in the definition of "Cash Equivalents."
"Subsidiary": as to any Person, a corporation, partnership, limited
liability company or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such
other ownership interests having such power only by reason of the
happening of a contingency) to elect a majority of the board of directors
or other managers of such corporation, partnership or other entity
("Voting Stock") are at the time owned, or the management of which is
otherwise controlled, directly or indirectly through one or more
intermediaries, or both, by such Person. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall
refer to a Subsidiary or Subsidiaries of the Borrower.
<PAGE> 35
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"Subsidiary Borrower": at any time, any Wholly Owned Subsidiary (or
Kalyani Lemmerz Ltd so long as the Borrower and its Subsidiaries own at
least 85% of the Capital Stock of such entity) of the Borrower designated
as a Subsidiary Borrower by the Borrower and consented to by the European
Swing Line Administrator pursuant to subsection 2.6(g) that has not ceased
to be a Subsidiary Borrower pursuant to subsection 2.6(g); the Subsidiary
Borrowers as of the Closing Date are set forth on Schedule D.
"Subsidiary Borrower Agreement": a Subsidiary Borrower Agreement
substantially in the form of Exhibit H, as the same may be amended,
supplemented or otherwise modified from time to time.
"Subsidiary Borrower Obligations": collectively, the obligations of
each of the Subsidiary Borrowers to make due and punctual payment of
principal of, and interest on (including post-petition interest, whether
or not allowed), the Foreign Currency Swing Line Loans made to it and all
other monetary obligations of each of the Subsidiary Borrowers to the
Managing Agents, the European Swing Line Administrator or any Lender under
this Agreement or any other Loan Document.
"Subsidiary Borrower Termination": a Subsidiary Borrower Termination
substantially in the form of Exhibit I, as the same may be amended,
supplemented or otherwise modified from time to time.
"Syndication Agent": Credit Suisse First Boston, as syndication
agent for the Lenders.
"Swing Line Loans": collectively, Dollar Swing Line Loans and
Foreign Currency Swing Line Loans.
"Swing Line Note": as defined in subsection 2.6(c).
"Swing Line Lenders": collectively, the Dollar Swing Line Lender and
the Foreign Currency Swing Line Lenders.
"Term Loan": as defined in subsection 2.8.
"Term Loan Commitment": as to any Term Loan Lender, its obligation
to make a Term Loan to the Borrower in Deutschemarks or euro units
pursuant to subsection 2.8 in a Dollar Equivalent Amount equal to the
amount set forth opposite such Term Loan Lender's name in Schedule A under
the heading "Term Loan Commitment", collectively, the "Term Loan
Commitments".
"Term Loan Commitment Percentage": as to any Term Loan Lender, the
percentage of the aggregate outstanding Term Loans of all the Term Loan
Lenders constituted by such Term Loan Lender's Term Loan.
"Term Loan Lender": any Lender that holds outstanding Term Loans.
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30
"Term Loan Maturity Date": February 15, 2005.
"Term Note": as defined in subsection 2.9(a).
"Total Indebtedness": on any date, with respect to the Borrower and
its Subsidiaries on a consolidated basis, all Indebtedness of the Borrower
and its Subsidiaries on such date other than Indebtedness permitted by
subsection 8.2(j).
"Tranche": collectively, Eurocurrency Loans the then current
Interest Periods with respect to all of which begin on the same date and
end on the same later date (whether or not such Loans shall originally
have been made on the same day).
"Transactions": as defined in the recitals hereto.
"Transferee": as defined in subsection 11.6(f).
"Type": as to any Loan, its nature as an ABR Loan or a Eurocurrency
Loan.
"Uniform Customs": the Uniform Customs and Practice for Documentary
Credits (1993 Revision), International Chamber of Commerce Publication No.
500, as the same may be amended from time to time, or, with respect to
standby letters of credit, the International Standby Practices (1999),
International Chamber of Commerce Publication No. 590, as the same may be
amended from time to time.
"United States": the United States of America.
"Wholly Owned Subsidiary": means any Subsidiary, all of the
outstanding voting securities (other than directors' qualifying shares or
shares held pursuant to similar requirements of law in respect of Foreign
Subsidiaries, other than shares of Lemmerz representing not more than .01%
of the voting securities thereof and other than shares of Borlem
representing not more than 1% of the voting securities thereof) of which
are owned, directly or indirectly, by the Borrower.
"Working Capital": on any date, with respect to the Borrower and its
Subsidiaries on a consolidated basis, the Current Assets (other than cash
and Cash Equivalents) of the Borrower and its Subsidiaries on such date,
minus the Current Liabilities (other than the current portion of long term
Indebtedness and short term Indebtedness of Foreign Subsidiaries) of the
Borrower and its Subsidiaries on such date.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in any Notes, any other Loan Documents or any certificate or other
document made or delivered pursuant hereto.
(b) As used herein and in any Notes, any other Loan Documents and
any certificate or other document made or delivered pursuant hereto, accounting
terms relating to the Borrower and its Subsidiaries not defined in subsection
1.1 and accounting terms partly defined
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31
in subsection 1.1, to the extent not defined, shall have the respective meanings
given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(e) Without prejudice to the respective liabilities of the Borrower
to the Lenders and the Lenders to the Borrower under or pursuant to this
Agreement, each provision of this Agreement shall be subject to such reasonable
changes of construction as the Administrative Agent may from time to time
specify to be necessary or appropriate to reflect the introduction of or
changeover to the euro in participating member states.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof, each Revolving Credit Lender severally agrees to continue or
make revolving credit loans (each a "Revolving Credit Loan", collectively,
"Revolving Credit Loans") to the Borrower from time to time during the Revolving
Credit Commitment Period in Dollars and/or one or more Available Foreign
Currencies so long as after giving effect thereto (i) the Available Revolving
Credit Commitment of such Revolving Credit Lender would not be less than zero,
(ii) the Aggregate Revolving Credit Outstandings would not exceed the aggregate
amount of the Revolving Credit Commitments of all the Revolving Credit Lenders,
and (iii) the then Dollar Equivalent Amount of the Foreign Currency Sublimit
Outstandings would not exceed the Foreign Currency Subfacility Amount. During
the Revolving Credit Commitment Period, the Borrower may use the Revolving
Credit Commitments by borrowing, prepaying the Revolving Credit Loans in whole
or in part, and reborrowing, all in accordance with the terms and conditions
hereof, provided that the Aggregate Outstanding Revolving Credit (other than in
respect of the undrawn portion of any Letters of Credit) at any time during any
consecutive thirty day period during each fiscal year of the Borrower (such
thirty day period during each fiscal year to be selected by the Borrower) may in
no event exceed the Clean-Down Amount (as certified to the Administrative Agent
pursuant to subsection 7.2(b)(iv)).
(b) The Revolving Credit Loans may from time to time be (i)
Eurocurrency Loans, (ii) ABR Loans (in the case of Dollar Revolving Credit Loans
only) or (iii) a combination thereof, as determined by the Borrower and notified
to the Administrative Agent in accordance with subsections 2.3 and 4.4, provided
that no Revolving Credit Loan shall be made as a Eurocurrency Loan after the day
that is one month prior to the Revolving Credit Commitment Termination Date.
2.2 Revolving Credit Notes. The Borrower agrees that, upon the
request to the Administrative Agent by any Revolving Credit Lender made on or
prior to the Closing Date or in connection with any assignment pursuant to
subsection 11.6, to evidence such Lender's
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Revolving Credit Loans the Borrower will execute and deliver to such Lender a
promissory note substantially in the form of Exhibit A-1, with appropriate
insertions as to payee, date and principal amount (each, as amended,
supplemented, replaced or otherwise modified from time to time, a "Revolving
Credit Note"), payable to the order of such Lender and in a principal amount
equal to the lesser of (a) the amount set forth under such Lender's name in
Schedule A opposite the heading "Revolving Credit Commitment" and (b) the
aggregate unpaid principal amount of all Revolving Credit Loans made by such
Lender to such Borrower. Each Revolving Credit Note shall (x) be dated the
Closing Date, (y) be stated to mature on the Revolving Credit Commitment
Termination Date and (z) provide for the payment of interest in accordance with
subsection 4.1.
2.3 Procedure for Revolving Credit Borrowing. The Borrower may
borrow under the Revolving Credit Commitments during the Revolving Credit
Commitment Period on any Business Day, provided that the Borrower shall give the
Administrative Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to 11:00 A.M., New York City time, (a) four Business
Days (or three Business Days if the Revolving Credit Loans requested are to be
denominated in Dollars) prior to the requested Borrowing Date, if all or any
part of the requested Revolving Credit Loans are to be initially Eurocurrency
Loans or (b) on the requested Borrowing Date, otherwise), specifying (i) the
amount to be borrowed, (ii) the requested Borrowing Date, (iii) whether the
borrowing is to be of Eurocurrency Loans, ABR Loans or a combination thereof,
(iv) the applicable Currency and (v) if the borrowing is to be entirely or
partly of Eurocurrency Loans, the respective amount of such Type of Loan and the
respective length of the initial Interest Period therefor. Each borrowing under
the Revolving Credit Commitments shall be in an amount equal to (x) in the case
of ABR Loans, $1,000,000 or a whole multiple of $500,000 in excess thereof (or,
if the aggregate Available Revolving Credit Commitments then in effect are less
than $1,000,000, such lesser amount) and (y) in the case of Eurocurrency Loans,
an amount the then Dollar Equivalent Amount of which is $5,000,000 or a whole
multiple of $1,000,000 in excess thereof. Upon receipt of any such notice from
the Borrower, the Administrative Agent shall promptly notify each Revolving
Credit Lender thereof. Each Revolving Credit Lender will make the amount of its
pro rata share of each borrowing available to the Administrative Agent for the
account of the Borrower at the office of the Administrative Agent specified from
time to time by the Administrative Agent prior to (i) in the case of borrowings
in Dollars, 1:00 P.M., New York City time or (ii) in the case of borrowings in
Available Foreign Currencies, 10:00 A.M., New York City time, on the Borrowing
Date requested by the Borrower in the requested Currency in funds immediately
available to the Administrative Agent. Such borrowing will then be made
available to the Borrower by the Administrative Agent crediting the account of
the Borrower as previously specified in writing by the Borrower to the
Administrative Agent with the aggregate of the amounts made available to the
Administrative Agent by the Revolving Credit Lenders and in like funds as
received by the Administrative Agent.
2.4 Commitment Fees; Other Fees. (a) The Borrower agrees to pay to
the Administrative Agent, for the account of each Revolving Credit Lender, a
commitment fee for the period from and including the first day of the Revolving
Credit Commitment Period to the Revolving Credit Commitment Termination Date,
computed at the Applicable Commitment Fee Rate on the average daily amount of
the Available Revolving Credit Commitment of such Lender during the period for
which payment is made, payable quarterly in arrears on the last day of each
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April, July, October and January and on the Revolving Credit Commitment
Termination Date, commencing on the first of such days to occur after the
Closing Date.
(b) The Borrower shall pay to the Managing Agents and the Lenders
the amounts set forth in the Fee Letter on the dates provided for therein.
2.5 Termination or Reduction of Revolving Credit Commitments. (a)
The Borrower shall have the right, upon not less than three Business Days'
notice to the Administrative Agent (which will promptly notify the Lenders
thereof), to terminate the Revolving Credit Commitments or, from time to time,
to reduce the amount of the Revolving Credit Commitments; provided that no such
termination or reduction shall be permitted if, after giving effect thereto and
to any prepayments of the Revolving Credit Loans, the Swing Line Loans and the
Competitive Loans (to the extent permitted by the applicable Lender) made on the
effective date thereof, (i) the Available Revolving Credit Commitment of each
Revolving Credit Lender would be less than zero, (ii) the Aggregate Revolving
Credit Outstandings would exceed the aggregate amount of the Revolving Credit
Commitments of all the Revolving Credit Lenders or (iii) the then Dollar
Equivalent Amount of the Foreign Currency Sublimit Outstandings would exceed the
Foreign Currency Subfacility Amount. Any such reduction shall be in an amount
equal to $1,000,000 or a whole multiple of $500,000 in excess thereof and shall
reduce permanently the Revolving Credit Commitments then in effect.
(b) The Revolving Credit Commitments shall be automatically reduced
in connection with any reductions of the Revolving Credit Commitments in
accordance with subsection 4.3(e). Any such reduction shall reduce permanently
the Revolving Credit Commitments then in effect.
2.6 Swing Line Commitments. (a) Subject to the terms and conditions
hereof, the Dollar Swing Line Lender agrees to make swing line loans denominated
in Dollars ("Dollar Swing Line Loans") to the Borrower from time to time during
the Revolving Credit Commitment Period in an aggregate principal amount at any
one time outstanding, when added to the Dollar Equivalent Amount of then
outstanding Foreign Currency Swing Line Commitments, not to exceed the Dollar
Swing Line Commitment, provided that no Dollar Swing Line Loan shall be required
to be made hereunder unless, after giving effect thereto, (i) the Available
Revolving Credit Commitment of each Revolving Credit Lender would not be less
than zero and (ii) the Aggregate Revolving Credit Outstandings would not exceed
the aggregate amount of the Revolving Credit Commitments of all the Revolving
Credit Lenders. Amounts borrowed by the Borrower under this subsection 2.6(a)
may be repaid and, through but excluding the Revolving Credit Commitment
Termination Date, reborrowed. All Dollar Swing Line Loans shall be made as ABR
Loans and shall not be entitled to be converted into Eurocurrency Loans. The
Borrower shall give the Dollar Swing Line Lender irrevocable notice (which
notice must be received by the Dollar Swing Line Lender prior to 12:00 Noon, New
York City time) on the requested Borrowing Date specifying the amount of the
requested Dollar Swing Line Loan which shall be in an amount equal to $500,000
or a whole multiple of $100,000 in excess thereof. The proceeds of each Dollar
Swing Line Loan will be made available on the date requested by the Dollar Swing
Line Lender to the Borrower by crediting the account of the Borrower as
specified in writing by the Borrower to the Administrative Agent with such
proceeds in Dollars.
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(b) (i) The Borrowers may, subject to the terms and conditions of
this Agreement, borrow swing line loans denominated in Available Foreign
Currencies ("Foreign Currency Swing Line Loans") from any Foreign Currency Swing
Line Lender from time to time during the Revolving Credit Commitment Period upon
the extension of a Foreign Currency Swing Line Commitment (as hereafter defined)
on such terms and conditions as may be agreed to (any such agreement, a "Foreign
Currency Swing Line Loan Agreement") by any of the Borrowers and such Foreign
Currency Swing Line Lender, including, but not limited to, the applicable
Available Foreign Currency, the procedures for the Foreign Currency Swing Line
Lender to make the proceeds of such Foreign Currency Swing Line Loans available
to such Borrower (including, without limitation, the lending installation from
which such Foreign Currency Swing Line Loan is to be made), the applicable
interest rate, the manner of calculation of the applicable interest rate, the
maximum aggregate principal Dollar Equivalent Amount of Foreign Currency Swing
Line Loans that such Foreign Currency Swing Line Lender shall commit to lend to
such Borrower in such Available Foreign Currency (such amount, a "Foreign
Currency Swing Line Commitment") and the duration of such Foreign Currency Swing
Line Commitment, provided that such terms and conditions shall not be
inconsistent with the limitations on Foreign Currency Swing Line Commitments and
Foreign Currency Swing Line Loans set forth in this subsection and elsewhere in
this Agreement. No loan made under a Foreign Currency Swing Line Commitment
shall be treated as a Foreign Currency Swing Line Loan for purposes of this
Agreement and the other Loan Documents, including, but not limited to, for the
purposes of entitling such loans to the benefits of subsection 2.6(e), unless
and until (i) the Borrower and the applicable Foreign Currency Swing Line Lender
shall have informed the Administrative Agent and the European Swing Line
Administrator in writing of the Dollar Equivalent Amount of the Foreign Currency
Swing Line Commitment of such Foreign Currency Swing Line Lender and all other
terms and conditions thereof and (ii) the European Swing Line Administrator
shall have confirmed that the Foreign Currency Swing Line Commitment to be
extended (when added to the Dollar Equivalent Amount (calculated in each case on
the date such Foreign Currency Swing Line Commitment is originally extended) of
all other Foreign Currency Swing Line Commitments then in effect) would not
exceed the Foreign Currency Swing Line Subfacility Amount. At any time, and from
time to time thereafter, subject to the terms and conditions of this Agreement,
such Borrower may borrow Foreign Currency Swing Line Loans from such Foreign
Currency Swing Line Lender in an amount equal to the then unused amount of the
Foreign Currency Swing Line Commitment of such Foreign Currency Swing Line
Lender.
(ii) Except any determinations of the unused amount of any Foreign
Currency Swing Line Commitment for purposes of the final sentence of the
preceding paragraph, as expressly provided otherwise herein or to the extent the
context otherwise requires, in any determination of the aggregate amount of
outstanding Foreign Currency Swing Line Loans at any time for all purposes of
this Agreement and the other Loan Documents, the full Dollar Equivalent Amount
(calculated in each case on the date such Foreign Currency Swing Line Commitment
is originally extended) of each Foreign Currency Swing Line Commitment of each
Foreign Currency Swing Line Lender (other than CIBC) shall be deemed to be
outstanding as Foreign Currency Swing Line Loans, whether borrowed or not
borrowed, and only the aggregate principal Dollar Equivalent Amount of the then
outstanding Foreign Currency Swing Line Loans made by CIBC shall be included in
such determination; provided, further, that at no time shall any Foreign
Currency Swing Line Loan Commitment be extended, or Foreign Currency Swing Line
Loan be made, by a Foreign Currency Swing Line Lender or accepted by any of the
Borrowers if, after
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giving effect thereto, (i) the aggregate Dollar Equivalent Amount (calculated,
in the case of each Foreign Currency Swing Line Commitment, on the date such
Foreign Currency Swing Line Commitment is originally extended) of the Foreign
Currency Swing Line Loans and of the Foreign Currency Swing Line Commitments (as
the case may be as provided for above) of all the Foreign Currency Swing Line
Lenders exceed the Foreign Currency Swing Line Subfacility Amount or (ii) the
sum of (A) the aggregate principal amount of the Dollar Swing Line Loans and (B)
aggregate Dollar Equivalent Amount (calculated, in the case of each Foreign
Currency Swing Line Commitment, on the date such Foreign Swing Line Commitment
is originally extended) of the Foreign Currency Swing Line Loans and the Foreign
Currency Swing Line Commitments (as the case may be as provided for above)
exceed the Dollar Swing Line Commitment and provided, further, however, that at
no time shall any Foreign Currency Swing Line Loan Commitment be extended, or
Foreign Currency Swing Line Loan be made, by a Foreign Currency Swing Line
Lender or accepted by any of the Borrowers if, after giving effect thereto, (I)
the Available Revolving Credit Commitment of a Revolving Credit Lender would be
less than zero or (II) the Aggregate Revolving Credit Outstandings would exceed
the aggregate amount of the Revolving Credit Commitments of all the Revolving
Credit Lenders.
(c) The Borrower agrees that, upon the request to the Administrative
Agent by the Dollar Swing Line Lender made on or prior to the Closing Date or in
connection with any assignment pursuant to subsection 11.6, to evidence the
Dollar Swing Line Loans the Borrower will execute and deliver to the Dollar
Swing Line Lender a promissory note substantially in the form of Exhibit A-3,
with appropriate insertions (as the same may be amended, supplemented, replaced
or otherwise modified from time to time, the "Swing Line Note"), payable to the
order of the Dollar Swing Line Lender and representing the obligation of the
Borrower to pay the amount of the Dollar Swing Line Commitment or, if less, the
unpaid principal amount of the Dollar Swing Line Loans made to the Borrower by
the Dollar Swing Line Lender, with interest thereon as prescribed in subsection
4.1. The Swing Line Note shall (a) be dated the Closing Date, (b) be stated to
mature on the Revolving Credit Commitment Termination Date and (c) provide for
the payment of interest in accordance with subsection 4.1.
(d) (i) The Dollar Swing Line Lender, at any time in its sole and
absolute discretion may, and, at any time as there shall be a Dollar Swing Line
Loan outstanding for more than seven Business Days, the Dollar Swing Line Lender
shall, on behalf of the Borrower (which hereby irrevocably directs and
authorizes the Dollar Swing Line Lender to act on its behalf), request each
Revolving Credit Lender, including the Swing Line Lenders, to make a Revolving
Credit Loan as an ABR Loan in Dollars in an amount equal to such Revolving
Credit Lender's Revolving Credit Commitment Percentage of the principal amount
of all of the Dollar Swing Line Loans (the "Refunded Dollar Swing Line Loans")
outstanding on the date such notice is given; provided that the provisions of
this subsection shall not affect the obligations of the Borrower to prepay
Dollar Swing Line Loans in accordance with the provisions of subsection 4.2.
Unless the Revolving Credit Commitments shall have expired or terminated for any
reason, including but not limited to, the occurrence of any of the events
described in paragraph (f) of Section 9 with respect to the Borrower (in which
event the procedures of paragraph (d)(ii) of this subsection 2.6 shall apply),
and without regard to whether the conditions precedent in subsection 6.2 are
satisfied, each Revolving Credit Lender will make the proceeds of its Revolving
Credit Loan available to the Administrative Agent for the account of the Dollar
Swing Line Lender at the office of the Administrative Agent specified by the
Administrative Agent prior to 12:00
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Noon, New York City time, in funds immediately available on the Business Day
next succeeding the date such notice is given. The proceeds of such Revolving
Credit Loans shall be immediately applied to repay the Refunded Dollar Swing
Line Loans.
(ii) If the Revolving Credit Commitments shall expire or
terminate (for any reason, including but not limited to the occurrence of any of
the events described in paragraph (f) of Section 9 with respect to the Borrower)
at any time while Dollar Swing Line Loans are outstanding, each Revolving Credit
Lender shall, at the option of the Dollar Swing Line Lender exercised
reasonably, either (i) notwithstanding the expiration or termination of the
Revolving Credit Commitments and without regard to whether the conditions
precedent in subsection 6.2 are satisfied, make a Revolving Credit Loan as an
ABR Loan (which Revolving Credit Loan shall be deemed a "Revolving Credit Loan"
for all purposes of this Agreement and the other Loan Documents) or (ii)
purchase an undivided participating interest in such Dollar Swing Line Loans, in
either case, in an amount equal to such Revolving Credit Lender's Revolving
Credit Commitment Percentage (determined on the date of, and immediately prior
to, expiration or termination of the Revolving Credit Commitments), of the
aggregate principal amount of such Dollar Swing Line Loans. Each Revolving
Credit Lender will make the proceeds of any Revolving Credit Loan made pursuant
to the immediately preceding sentence available to the Administrative Agent for
the account of the Dollar Swing Line Lender at the office of the Administrative
Agent specified by the Administrative Agent prior to 12:00 Noon, New York City
time, in funds immediately available on the Business Day next succeeding the
date on which the Revolving Credit Commitments expire or terminate. The proceeds
of such Revolving Credit Loans shall be immediately applied to repay the Dollar
Swing Line Loans outstanding on the date of termination or expiration of the
Revolving Credit Commitments. In the event that the Revolving Credit Lenders
purchase undivided participating interests pursuant to the first sentence of
this paragraph (d)(ii), each Revolving Credit Lender shall immediately transfer
to the Dollar Swing Line Lender, in immediately available funds, the amount of
its participation.
(iii) Whenever, at any time after the Dollar Swing Line Lender
has received from any Revolving Credit Lender such Revolving Credit Lender's
participating interest in a Dollar Swing Line Loan and the Dollar Swing Line
Lender receives any payment on account thereof, the Dollar Swing Line Lender
will distribute to such Revolving Credit Lender its participating interest in
such amount (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Revolving Credit Lender's
participating interest was outstanding and funded); provided that in the event
that such payment received by the Dollar Swing Line Lender is required to be
returned such Revolving Credit Lender will return to the Dollar Swing Line
Lender any portion thereof previously distributed by the Dollar Swing Line
Lender to it.
(e) (i) Subject to the provisions of the second sentence of
subsection 2.6(b)(i), if any Event of Default shall occur and be continuing, any
Foreign Currency Swing Line Lender may, in its sole and absolute discretion,
direct that the Foreign Currency Swing Line Loans owing to it be refunded, by
delivering a notice (with such detail as the Administrative Agent shall request,
a "Notice of Foreign Currency Swing Line Refunding") to the Administrative Agent
and the European Swing Line Administrator. Upon receipt of such notice, the
Administrative Agent shall (i) promptly give notice of the contents thereof to
the Revolving Credit Lenders and, unless an Event of Default described in
paragraph (f) of Section 9 in respect of the Borrower has
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occurred, to the Borrower and (ii) calculate, without regard to the first
sentence of subsection 2.6(b)(ii), the Dollar Equivalent Amount of the aggregate
principal amount of the Foreign Currency Swing Line Loans of such Foreign
Currency Swing Line Lender outstanding as of the date the Administrative Agent
received such Notice of Foreign Currency Swing Line Refunding (the "Dollar
Refunding Amount"). Each such Notice of Foreign Currency Swing Line Refunding
shall be deemed to constitute delivery by the Borrower of a notice to the
Administrative Agent requesting each Revolving Credit Lender to make a Revolving
Credit Loan denominated in Dollars in an amount equal to such Revolving Credit
Lender's Revolving Credit Commitment Percentage of the Dollar Refunding Amount
as an ABR Loan. Unless the Revolving Credit Commitments shall have expired or
terminated for any reason, including but not limited to, the occurrence of any
of the events described in paragraph (f) of Section 9 hereto with respect to the
Borrower (in which event the procedures of paragraph (e)(ii) of this subsection
2.6 shall apply), and without regard to whether the conditions precedent in
subsection 6.2 are satisfied, each Revolving Credit Lender will make the
proceeds of its Revolving Credit Loan available to the Administrative Agent for
the account of the applicable Foreign Currency Swing Line Lender at the office
of the Administrative Agent specified by the Administrative Agent prior to 12:00
Noon, New York City time, in funds immediately available on the Business Day
next succeeding the date such notice is given; provided that the Revolving
Credit Lenders shall not be obligated to make Revolving Credit Loans and
purchase participating interests pursuant to this subsection 2.6(e) in an
aggregate amount that exceeds the sum of (I) $5,000,000 plus (II) the Foreign
Currency Swing Line Subfacility Amount. The proceeds of such Revolving Credit
Loans shall be immediately applied to repay to the applicable Foreign Currency
Swing Line Lender the Dollar Refunding Amount.
(ii) If the Revolving Credit Commitments shall expire or
terminate (for any reason, including but not limited to the occurrence of any of
the events described in paragraph (f) of Section 9 hereto with respect to the
Borrower) at any time while Foreign Currency Swing Line Loans made by a Foreign
Currency Swing Line Lender are outstanding, each Revolving Credit Lender shall,
at the option of the applicable Foreign Currency Swing Line Lender exercised
reasonably, either (i) notwithstanding the expiration or termination of the
Revolving Credit Commitments and without regard to whether the conditions
precedent in subsection 6.2 are satisfied, make a Revolving Credit Loan as an
ABR Loan denominated in Dollars (which Revolving Credit Loan shall be deemed a
"Revolving Credit Loan" for all purposes of this Agreement and the other Loan
Documents) or (ii) purchase an undivided participating interest in the
outstanding Foreign Currency Swing Line Loans of such Foreign Currency Swing
Line Lender, in either case, in a Dollar Equivalent Amount equal to such
Revolving Credit Lender's Revolving Credit Commitment Percentage determined on
the date of, and immediately prior to, expiration or termination of the
Revolving Credit Commitments, of the aggregate principal amount of such Foreign
Currency Swing Line Loans (calculated without regard to the first sentence of
subsection 2.6(b)(ii)); provided that the Revolving Credit Lenders shall not be
obligated to make Revolving Credit Loans and purchase participating interests
pursuant to this subsection 2.6(e) in an aggregate amount that exceeds the sum
of (I) $5,000,000 plus (II) the Foreign Currency Swing Line Subfacility Amount.
Each Revolving Credit Lender will make the proceeds of any Revolving Credit Loan
made pursuant to the immediately preceding sentence available to the
Administrative Agent for the account of the applicable Foreign Currency Swing
Line Lender at the office of the Administrative Agent prior to 12:00 Noon, New
York City time, in funds immediately available on the Business Day next
succeeding the date on which the
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Revolving Credit Commitments expire or terminate. The proceeds of such Revolving
Credit Loans shall be immediately applied to repay the Foreign Currency Swing
Line Loans of such Foreign Currency Swing Line Lender outstanding on the date of
termination or expiration of the Revolving Credit Commitments. In the event that
the Revolving Credit Lenders purchase undivided participating interests pursuant
to the first sentence of this paragraph (e)(ii), each Revolving Credit Lender
shall immediately transfer to the applicable Foreign Currency Swing Line Lender,
in immediately available funds, the amount of its participation.
(iii) Whenever, at any time after a Foreign Currency Swing
Line Lender has received from any Revolving Credit Lender such Revolving Credit
Lender's participating interest in a Foreign Currency Swing Line Loan made by
such Foreign Currency Swing Line Lender and such Foreign Currency Swing Line
Lender receives any payment on account thereof, such Foreign Currency Swing Line
Lender will distribute to such Revolving Credit Lender its participating
interest in such amount (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Revolving Credit
Lender's participating interest was outstanding and funded); provided that in
the event that such payment received by such Foreign Currency Swing Line Lender
is required to be returned such Revolving Credit Lender will return to such
Foreign Currency Swing Line Lender any portion thereof previously distributed by
such Foreign Currency Swing Line Lender to it.
(f) Notwithstanding anything herein to the contrary, neither
the Dollar Swing Line Lender nor any Foreign Currency Swing Line Lender shall be
obligated to make any Swing Line Loan if the conditions set forth in subsection
6.2 have not been satisfied.
(g) The Borrower may designate any Wholly Owned Subsidiary of
the Borrower as a Subsidiary Borrower by delivery to the Administrative Agent
and the European Swing Line Administrator of a Subsidiary Borrower Agreement
executed by such Subsidiary and the Borrower. Upon such delivery and the written
consent of the European Swing Line Administrator to such designation, such
Subsidiary shall for all purposes of this Agreement be a Subsidiary Borrower and
a party to this Agreement until the Borrower shall have executed and delivered
to the Administrative Agent and the European Swing Line Administrator a
Subsidiary Borrower Termination with respect to such Subsidiary, whereupon such
Subsidiary shall cease to be a Subsidiary Borrower and a party to this
Agreement. Notwithstanding the preceding sentence, no Subsidiary Borrower
Termination will become effective as to any Subsidiary Borrower at a time when
any principal of, interest on or any other amount in respect of any extension of
credit to such Subsidiary Borrower shall be outstanding under any Foreign
Currency Swing Line Loan Agreement, provided that such Subsidiary Borrower
Termination shall be effective to terminate such Subsidiary Borrower's right to
make further borrowings under any Foreign Currency Swing Line Loan Agreement.
2.7 Competitive Bid Procedure. (a) To request Competitive
Bids, the Borrower shall hand deliver or telecopy to the Administrative Agent a
duly completed Competitive Bid Request in the form of Exhibit G-1, to be
received by the Administrative Agent (i) in the case of a Eurocurrency
Competitive Loan, not later than 2:00 p.m., New York City time, four Business
Days before a proposed Competitive Loan and (ii) in the case of a Fixed Rate
Loan, not later than 2:00 p.m., New York City time, one Business Day before a
proposed Competitive Loan. Each Competitive Bid Request shall specify the
requested Currency. No ABR Loan shall be requested
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in, or made pursuant to, a Competitive Bid Request. A Competitive Bid Request
that does not conform substantially to the format of Exhibit G-1 may be rejected
in the Administrative Agent's sole discretion, and the Administrative Agent
shall promptly notify the Borrower of such rejection by telecopier. Such request
for Competitive Bids shall in each case refer to this Agreement and specify (i)
whether the Loan then being requested is to be a Eurocurrency Loan or a Fixed
Rate Loan, (ii) the date of such Loan and the aggregate principal Dollar
Equivalent Amount thereof, which shall be in a minimum principal Dollar
Equivalent Amount of $5,000,000 and in an integral multiple of $1,000,000, and
(iii) the Interest Period with respect thereto (which may not end after the
Revolving Credit Commitment Termination Date). No Competitive Loan shall be
requested in an aggregate principal Dollar Equivalent Amount such that after
giving effect to the making of such Competitive Loan, (a) the aggregate
principal Dollar Equivalent Amount of all outstanding Competitive Loans would
exceed $75,000,000, (b) the Dollar Equivalent Amount of the Foreign Currency
Sublimit Outstandings then outstanding would exceed the Foreign Currency
Sublimit Amount, (c) the Available Revolving Credit Commitment of such Revolving
Credit Lender would be less than zero, or (d) the Aggregate Revolving Credit
Outstandings would exceed the aggregate amount of the Revolving Credit
Commitments of all the Revolving Credit Lenders. Promptly after its receipt of a
Competitive Bid Request that is not rejected as aforesaid, the Administrative
Agent shall invite by telecopier (in the form set forth in Exhibit G-2) the
Lenders to bid, on the terms and subject to the conditions of this Agreement, to
make Competitive Loans pursuant to such Competitive Bid Request.
(b) Each Lender may, in its sole discretion, make one or more
Competitive Bids to the Borrower responsive to a Competitive Bid Request. Each
Competitive Bid by a Lender must be received by the Administrative Agent via
telecopier, in the form of Exhibit G-3, (i) in the case of a Eurocurrency
Competitive Loan, not later than 9:30 a.m., New York City time, three Business
Days before a proposed Competitive Loan and (ii) in the case of a Fixed Rate
Loan, not later than 9:30 a.m., New York City time, on the day of a proposed
Competitive Loan. Multiple Competitive Bids will be accepted by the
Administrative Agent. Competitive Bids that do not conform substantially to the
format of Exhibit G-3 may be rejected by the Administrative Agent after
conferring with, and upon the instruction of, the Borrower, and the
Administrative Agent shall notify the Lender making such nonconforming
Competitive Bid of such rejection as soon as practicable. Each Competitive Bid
shall refer to this Agreement and specify (i) the principal Dollar Equivalent
Amount (which shall be in a minimum principal Dollar Equivalent Amount of
$5,000,000 and in an integral multiple of $1,000,000 and which may equal the
entire principal amount of the Competitive Loan requested by the Borrower) of
the Competitive Loan or Loans that the applicable Lender is willing to make to
the Borrower, (ii) the Competitive Bid Rate or Rates at which such Lender is
prepared to make such Competitive Loan or Loans and (iii) the Interest Period or
Interest Periods with respect thereto. A Competitive Bid submitted by a Lender
pursuant to this paragraph (b) shall be irrevocable after the latest time at
which the other Lenders are required to submit their Competitive Bids to the
Administrative Agent pursuant to the foregoing provisions of this paragraph.
(c) The Administrative Agent shall promptly notify the
Borrower by telecopier of all the Competitive Bids made, the Competitive Bid
Rate or Rates and the principal amount of each Competitive Loan in respect of
which a Competitive Bid was made and the identity of the Lender that made each
Competitive Bid. The Administrative Agent shall send a copy of all
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Competitive Bids to the Borrower for its records as soon as practicable after
completion of the bidding process set forth in this subsection 2.7.
(d) The Borrower may in its sole and absolute discretion,
subject only to the provisions of this paragraph (d), accept or reject any
Competitive Bid referred to in paragraph (c) above. The Borrower shall notify
the Administrative Agent by telephone, promptly confirmed by telecopier in the
form of a Competitive Bid Accept/Reject Letter whether and to what extent it has
decided to accept or reject any or all of the Competitive Bids referred to in
paragraph (c) above, (i) in the case of a Eurocurrency Competitive Loan, not
later than 10:30 a.m., New York City time, three Business Days before a proposed
Competitive Loan and (ii) in the case of a Fixed Rate Loan, not later than 10:30
a.m., New York City time, on the day of a proposed Competitive Loan; provided
that (A) the failure by the Borrower to give such notice shall be deemed to be a
rejection of all the Competitive Bids referred to in paragraph (c) above, (B)
the Borrower shall not accept a Competitive Bid made at a particular Competitive
Bid Rate if the Borrower has decided to reject a Competitive Bid made at a lower
Competitive Bid Rate, (C) the aggregate amount of the Competitive Bids accepted
by the Borrower shall not exceed the principal amount specified in the
Competitive Bid Request, (D) if the Borrower shall accept a Competitive Bid or
Competitive Bids made at a particular Competitive Bid Rate but the amount of
such Competitive Bid or Competitive Bids shall cause the total amount of
Competitive Bids to be accepted by the Borrower to exceed the amount specified
in the Competitive Bid Request, then the Borrower shall accept a portion of such
Competitive Bid or Competitive Bids in an amount equal to the amount specified
in the Competitive Bid Request less the amount of all other Competitive Bids
accepted at lower Competitive Bid Rates with respect to such Competitive Bid
Request (it being understood that acceptance in the case of multiple Competitive
Bids at such Competitive Bid Rate, shall be made pro rata in accordance with the
amount of each such Competitive Bid at such Competitive Bid Rate), (E) except
pursuant to clause (D) above, no Competitive Bid shall be accepted for a
Competitive Loan unless such Competitive Loan is in a minimum principal Dollar
Equivalent Amount of $5,000,000 and an integral multiple of $1,000,000 and (F)
the Borrower may not accept Competitive Bids for Competitive Loans in any
Currency other than the Currency specified in the related Competitive Bid
Request; and provided, further, that if a Competitive Loan must be in an amount
less than the Dollar Equivalent Amount of $5,000,000 because of the provisions
of clause (D) above, such Competitive Loan shall be in a minimum principal
Dollar Equivalent Amount of $1,000,000 or any integral multiple thereof, and in
calculating the pro rata allocation of acceptances of portions of multiple
Competitive Bids at a particular Competitive Bid Rate pursuant to clause (D),
the amounts shall be rounded to integral multiples of $1,000,000 in a manner
that shall be in the discretion of the Administrative Agent. A notice given by
the Borrower pursuant to this paragraph (d) shall be irrevocable.
(e) The Administrative Agent shall promptly notify each
bidding Lender whether its Competitive Bid has been accepted (and if so, in what
amount and at what Competitive Bid Rate) by telecopy sent by the Administrative
Agent, and each successful bidder will thereupon become bound, subject to the
other applicable conditions hereof, to make the Competitive Loan in respect of
which its Competitive Bid has been accepted in the applicable Currency.
(f) If the Administrative Agent shall elect to submit a
Competitive Bid in its capacity as a Lender, it shall submit such Competitive
Bid directly to the Borrower one quarter of
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41
an hour earlier than the latest time at which the other Lenders are required to
submit their Competitive Bids to the Administrative Agent pursuant to paragraph
(b) above.
(g) All notices required by this subsection 2.7 shall be given
in accordance with subsection 11.2.
(h) The Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the Borrower will execute and deliver to
such Lender a promissory note of the Borrower evidencing the Competitive Loans
of such Lender, substantially in a form to be agreed upon with appropriate
insertions as to date, principal amount and Currency (a "Competitive Note").
2.8 Term Loans. Subject to the terms and conditions hereof,
each Term Loan Lender severally agrees, on the Closing Date, to continue or make
a term loan (a "Term Loan") in Dollars, Deutschemarks or euro units in an
aggregate principal Dollar Equivalent Amount set forth under such Term Loan
Lender's name in Schedule A opposite the heading "Term Loan Commitment";
provided that the initial aggregate principal Dollar Equivalent Amount of Term
Loans denominated in Deutschemarks or euro units in the aggregate shall not
exceed $100,000,000 on the date such Term Loans are made, and the aggregate
principal amount of Term Loans denominated in Dollars shall not exceed
$350,000,000; and provided, further, that any Term Loans denominated in
Deutschemarks or euro units shall be made on the day that is two Business Days
after the Closing Date. The Term Loans may from time to time be (i) Eurocurrency
Loans, (ii) ABR Loans (in the case of Dollar Term Loans only) or (iii) a
combination thereof, as determined by the Borrower and notified to the
Administrative Agent in accordance with subsection 2.9 or 4.4, provided that no
Term Loan shall be made as a Eurocurrency Loan after the day that is one month
prior to the Term Loan Maturity Date. Amounts paid on account of the Term Loans
pursuant to subsection 2.9 may not be reborrowed.
2.9 Term Notes. (a) The Borrower agrees that, upon the request
to the Administrative Agent by any Term Loan Lender made on or prior to the
Closing Date or in connection with any assignment pursuant to subsection 11.6,
to evidence such Lender's Term Loan the Borrower will execute and deliver to
such Lender a promissory note substantially in the form of Exhibit A-3 (as
amended, supplemented, replaced or otherwise modified from time to time, a Term
Note"), with appropriate insertions therein as to payee, date and principal
amount, payable to the order of such Term Loan Lender and in a principal amount
equal to the amount set forth under such Term Loan Lender's name on Schedule A
opposite the heading "Term Loan Commitment." Any Term Note shall (i) be dated
the Closing Date, (ii) be payable as provided in subsection 2.9(b) and (iii)
provide for the payment of interest in accordance with subsection 4.1.
(b) The Term Loans made in any Currency shall be payable in 20
consecutive quarterly installments on the dates and in the aggregate principal
amount (together with all accrued interest thereon) equal to the percentage set
forth below opposite the applicable installment date multiplied by the original
aggregate principal amount of the Term Loans made in such Currency:
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42
Installment Percentage
April 30, 2000 1.111%
July 31, 2000 2.220
October 31, 2000 3.333
January 31, 2001 4.444
April 30, 2001 4.167
July 31, 2001 4.167
October 31, 2001 4.167
January 31, 2002 4.167
April 30, 2002 5.556
July 31, 2002 5.556
October 31, 2002 5.556
January 31, 2003 5.556
April 30, 2003 5.556
July 31, 2003 5.556
October 31, 2003 5.556
January 31, 2004 5.556
April 30, 2004 6.944
July 31, 2004 6.944
October 31, 2004 6.944
February 15, 2005 6.944
(c) The Borrower shall give the Administrative Agent
irrevocable notice (which notice must be received by the Administrative Agent
prior to 11:00 A.M., New York City time, (a) four Business Days (or three
Business Days if the Term Loans requested are to be denominated in Dollars)
prior to the Borrowing Date, if all or any part of the requested Term Loans are
to be initially Eurocurrency Loans or (b) on the Closing Date, otherwise),
specifying (i) the amount to be borrowed, (ii) whether the borrowing is to be of
Eurocurrency Loans, ABR Loans or a combination thereof, (iii) the applicable
Currency and (iv) if the borrowing is to be entirely or partly of Eurocurrency
Loans, the respective amount of such Type of Loan and the respective length of
the initial Interest Period therefor. Upon receipt of such notice, the
Administrative Agent shall promptly notify each Term Loan Lender thereof. Each
Term Loan Lender will make the amount of its pro rata share of such borrowing
available to the Administrative Agent for the account of the Borrower at the
office of the Administrative Agent specified by the Administrative Agent prior
to (i) in the case of a borrowing in Dollars, 1:00 P.M., New York City time or
(ii) in the case of a borrowing in Deutschemarks or euro unit, 10:00 A.M., New
York City time, on the Borrowing Date requested by the Borrower in the requested
Currency in funds immediately available to the Administrative Agent. The
Administrative Agent shall on such date credit the account of the Borrower
previously specified in writing by the Borrower to the Administrative Agent with
the aggregate of the amounts made available to the Administrative Agent by the
Term Loan Lenders.
2.10 Repayment of Loans. (a) The Borrower (or Borrowers, as
the case may be) hereby unconditionally promises to pay to the Administrative
Agent (or, in the case of Foreign
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43
Currency Swing Line Loans, as provided in subsection 2.6(b)) for the account of:
(i) each Revolving Credit Lender, the then unpaid principal amount of each
Revolving Credit Loan of such Lender made to a Borrower, on the Revolving Credit
Commitment Termination Date (or such earlier date on which the Revolving Credit
Loans become due and payable pursuant to Section 9); (ii) the Dollar Swing Line
Lender and each Foreign Currency Swing Line Lender, the then unpaid principal
amount of the Dollar Swing Line Loans or Foreign Currency Swing Line Loans, as
the case may be, made to a Borrower, on the Revolving Credit Commitment
Termination Date (or such earlier date on which the Swing Line Loans become due
and payable pursuant to Section 9); (iii) each Term Loan Lender, the amounts
specified in subsection 2.9(b) on the dates specified in subsection 2.9(b) (or
such earlier date on which the Term Loans become due and payable pursuant to
Section 9) and (iv) each Lender that makes a Competitive Loan, the then unpaid
principal amount of such Competitive Loan on the last day of the Interest Period
applicable to such Competitive Loan. Each of the Borrowers hereby further agrees
to pay interest on the unpaid principal amount of the Loans made to such
Borrower from time to time outstanding from the date of the making of the Loans
until payment in full thereof at the rates per annum, and on the dates, set
forth in subsection 4.1.
(b) Each Lender (including the Swing Line Lenders) shall
maintain in accordance with its usual practice an account or accounts evidencing
indebtedness of each of the Borrowers to such Lender resulting from each Loan of
such Lender from time to time, including, without limitation, the amounts of
principal and interest payable and paid to such Lender from time to time under
this Agreement.
(c) The Administrative Agent shall maintain the Register
pursuant to subsection 11.6(d), and a subaccount therein for each Lender, in
which shall be recorded (i) the amount of each Loan (other than a Foreign
Currency Swing Line Loan made by a Foreign Currency Swing Line Lender other than
CIBC) made hereunder, the Type thereof and each Interest Period, if any,
applicable thereto, (ii) the amount of any principal or interest due and payable
or to become due and payable from the applicable Borrower to each Lender with
respect to each such Loan hereunder and (iii) both the amount of any sum
received by the Administrative Agent hereunder from any Borrower and each
Lender's share thereof.
(d) The entries made in the Register and the accounts of each
Lender maintained pursuant to subsection 2.10(c) shall, to the extent permitted
by applicable law, be prima facie evidence of the existence and amounts of the
obligations of the applicable Borrower therein recorded; provided that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of the applicable Borrower to repay (with applicable interest) the
Loans made to the Borrower by such Lender in accordance with the terms of this
Agreement. Each Borrower shall repay each Loan made to it, and interest thereon,
in the Currency in which such Loan is denominated.
2.11 Guarantee. (a) To induce the Foreign Currency Swing Line
Lenders to execute and deliver this Agreement and each Foreign Currency Swing
Line Loan Agreement and to make or maintain Foreign Currency Swing Line Loans to
the Subsidiary Borrowers, and in consideration thereof, the Borrower hereby
unconditionally and irrevocably guarantees for the benefit of the Foreign
Currency Swing Line Lenders and the other Lenders, the prompt and complete
payment and performance by the Subsidiary Borrowers when due (whether at stated
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44
maturity, by acceleration or otherwise) of the Subsidiary Borrower Obligations,
and the Borrower further agrees to pay any and all expenses (including, without
limitation, all reasonable fees, charges and disbursements of counsel) which may
be paid or incurred by the Managing Agents, the European Swing Line
Administrator or by the Lenders in enforcing, or obtaining advice of counsel in
respect of, any of their rights under the guarantee contained in this subsection
2.11. The guarantee contained in this subsection 2.11, subject to subsection
2.11(e), shall remain in full force and effect until the Subsidiary Borrower
Obligations are paid in full and the Revolving Credit Commitments are
terminated, notwithstanding that from time to time prior thereto the Subsidiary
Borrowers may be free from any Subsidiary Borrower Obligations.
(b) Notwithstanding any payment or payments made by the
Borrower hereunder or any set-off or application of funds of the Borrower by any
Lender, the Borrower shall not be entitled to be subrogated to any of the rights
of the Managing Agents, the European Swing Line Administrator or any Lender
against the Subsidiary Borrowers or any collateral security or guarantee or
right of offset held by any of the Managing Agents, the European Swing Line
Administrator or any Lender for the payment of the Subsidiary Borrower
Obligations, nor shall the Borrower seek or be entitled to seek any contribution
or reimbursement from the Subsidiary Borrowers in respect of payments made by
the Borrower hereunder, until all amounts owing to the Managing Agents, the
European Swing Line Administrator and the Lenders by the Subsidiary Borrowers on
account of the Subsidiary Borrower Obligations are paid in full and the
Revolving Credit Commitments are terminated. If any amount shall be paid to the
Borrower on account of such subrogation rights at any time when all of the
Subsidiary Borrower Obligations shall not have been paid in full or the
Revolving Credit Commitments shall not have been terminated, such amount shall
be held by the Borrower in trust for the Managing Agents, the European Swing
Line Administrator and the Lenders, segregated from other funds of the Borrower,
and shall, forthwith upon receipt by the Borrower, be turned over to the
Administrative Agent in the exact form received by the Borrower (duly endorsed
by the Borrower to the Administrative Agent, if required), to be applied against
the Subsidiary Borrower Obligations, whether matured or unmatured, in such order
as the Administrative Agent may determine. The Borrower hereby further
irrevocably waives all contractual, common law, statutory and other rights of
reimbursement, contribution, exoneration or indemnity (or any similar right)
from or against the Subsidiary Borrowers or any other Person which may have
arisen in connection with the guarantee contained in this subsection 2.11.
(c) The Borrower shall remain obligated under this subsection
2.11 notwithstanding that, without any reservation of rights against the
Borrower, and without notice to or further assent by the Borrower, any demand
for payment of or reduction in the principal amount of any of the Subsidiary
Borrower Obligations made by either of the Managing Agents, the European Swing
Line Administrator or any Lender may be rescinded by either of the Managing
Agents, the European Swing Line Administrator or such Lender, and any of the
Subsidiary Borrower Obligations continued, and the Subsidiary Borrower
Obligations, or the liability of any other party upon or for any part thereof,
or any collateral security or guarantee therefor or right of offset with respect
thereto, may, from time to time, in whole or in part, be renewed, extended,
amended, modified, accelerated, compromised, waived, surrendered or released by
either of the Managing Agents, the European Swing Line Administrator or any
Lender, and this Agreement, any other Loan Document, and any other documents
executed and delivered in connection therewith may be amended, modified,
supplemented or terminated, in
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45
whole or in part, as the Lenders (or the Required Lenders, as the case may be)
may deem advisable from time to time, and any collateral security, guarantee or
right of offset at any time held by either of the Managing Agents, the European
Swing Line Administrator or any Lender for the payment of the Subsidiary
Borrower Obligations may be sold, exchanged, waived, surrendered or released.
Neither of the Managing Agents, the European Swing Line Administrator nor any
Lender shall have any obligation to protect, secure, perfect or insure any Lien
at any time held by it as security for the Subsidiary Borrower Obligations or
for the guarantee contained in this subsection 2.11 or any property subject
thereto.
(d) The Borrower waives any and all notice of the creation,
renewal, extension or accrual of any of the Subsidiary Borrower Obligations and
notice of or proof of reliance by either of the Managing Agents, the European
Swing Line Administrator or any Lender upon the guarantee contained in this
subsection 2.11 or acceptance of the guarantee contained in this subsection
2.11; the Subsidiary Borrower Obligations, and any of them, shall conclusively
be deemed to have been created, contracted or incurred, or renewed, extended,
amended or waived, in reliance upon the guarantee contained in this subsection
2.11; and all dealings between any of the Subsidiary Borrower or the Borrower,
on the one hand, and the Managing Agents, the European Swing Line Administrator
and the Lenders, on the other, shall likewise be conclusively presumed to have
been had or consummated in reliance upon the guarantee contained in this
subsection 2.11. The Borrower waives diligence, presentment, protest, demand for
payment and notice of default or nonpayment to or upon any Subsidiary Borrower
or the Borrower with respect to the Subsidiary Borrower Obligations. The
guarantee contained in this subsection 2.11 shall be construed as a continuing,
absolute and unconditional guarantee of payment without regard to (i) the
validity or enforceability of this Agreement, any other Loan Document, any of
the Subsidiary Borrower Obligations or any collateral security therefor or
guarantee or right of offset with respect thereto at any time or from time to
time held by either of the Managing Agents, the European Swing Line
Administrator or any Lender, (ii) any defense, setoff or counterclaim (other
than a defense of payment or performance) which may at any time be available to
or be asserted by the Borrower against any Lender, or (iii) any other
circumstance whatsoever (with or without notice to or knowledge of the
Subsidiary Borrower or the Borrower) which constitutes, or might be construed to
constitute, an equitable or legal discharge of the Subsidiary Borrower for the
Subsidiary Borrower Obligations, or of the Borrower under the guarantee
contained in this subsection 2.11, in bankruptcy or in any other instance. When
either of the Managing Agents, the European Swing Line Administrator or any
Lender is pursuing its rights and remedies under this subsection 2.11 against
the Borrower, either of the Managing Agents, the European Swing Line
Administrator or any Lender may, but shall be under no obligation to, pursue
such rights and remedies as it may have against the Subsidiary Borrower or any
other Person or against any collateral security or guarantee for the Subsidiary
Borrower Obligations or any right of offset with respect thereto, and any
failure by either of the Managing Agents, the European Swing Line Administrator
or any Lender to pursue such other rights or remedies or to collect any payments
from the Subsidiary Borrower or any such other Person or to realize upon any
such collateral security or guarantee or to exercise any such right of offset,
or any release of the Subsidiary Borrower or any such other Person or of any
such collateral security, guarantee or right of offset, shall not relieve the
Borrower of any liability under this subsection 2.11, and shall not impair or
affect the rights and remedies, whether express, implied or available as a
matter of law, of the Managing Agents, the European Swing Line Administrator and
the Lenders against the Borrower.
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(e) The guarantee contained in this subsection 2.11 shall
continue to be effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any of the Subsidiary Borrower Obligations is
rescinded or must otherwise be restored or returned by either of the Managing
Agents, the European Swing Line Administrator or any Lender upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of any Subsidiary
Borrower or upon or as a result of the appointment of a receiver, intervenor or
conservator of, or trustee or similar officer for, any Subsidiary Borrower or
any substantial part of its property, or otherwise, all as though such payments
had not been made.
(f) The Borrower hereby agrees that any payments in respect of
the Subsidiary Borrower Obligations pursuant to this subsection 2.11 will be
paid to the Administrative Agent without setoff or counterclaim (other than a
defense of payment or performance) in Dollars at the office of the
Administrative Agent specified in subsection 11.2.
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Subject to the terms and conditions
hereof, the Issuing Lender, in reliance on the agreements of the other Revolving
Credit Lenders set forth in subsection 3.4(a), agrees to issue letters of credit
("Letters of Credit") denominated in Dollars or an Available Foreign Currency
for the account of the Borrower on any Business Day during the Revolving Credit
Commitment Period in such form as may be approved from time to time by the
Issuing Lender; provided that the Issuing Lender shall have no obligation to
issue any Letter of Credit if, after giving effect to such issuance, (i) the
Dollar Equivalent Amount of the aggregate L/C Obligations would exceed the L/C
Commitment, (ii) the Available Revolving Credit Commitment of any Revolving
Credit Lender would be less than zero, (iii) the Aggregate Revolving Credit
Outstandings would exceed the aggregate amount of the Revolving Credit
Commitments of all the Revolving Credit Lenders, or (iv) the then Dollar
Equivalent Amount of the Foreign Currency Sublimit Outstandings would exceed the
Foreign Currency Subfacility Amount. All letters of credit issued pursuant to
the Prior Credit Agreement shall, at all times on or after the Closing Date, be
deemed to be "Letters of Credit" for all purposes of this Agreement and the
other Loan Documents.
(b) Each Letter of Credit shall (i) be either (x) a standby
letter of credit issued to support obligations of the Borrower or any of its
Subsidiaries, contingent or otherwise, to finance the working capital and
business needs of the Borrower or any of its Subsidiaries in the ordinary course
of business or (y) a commercial letter of credit issued in respect of the
purchase of goods or services by the Borrower or any of its Subsidiaries in the
ordinary course of business and (ii) expire no later than the earlier of (x) the
date that is 12 months after the date of its issuance and (y) the fifth Business
Day prior to the Revolving Credit Commitment Termination Date.
(c) Each Letter of Credit shall be subject to the Uniform
Customs and, to the extent not inconsistent therewith, the laws of the State of
New York or, in any case where the Issuing Lender issues such Letters of Credit
from an office located outside of the United States, the laws of the
jurisdiction in which such office is located.
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(d) The Issuing Lender shall not at any time be obligated to
issue any Letter of Credit hereunder if such issuance would conflict with, or
cause the Issuing Lender or any L/C Participant to exceed any limits imposed by,
any applicable Requirement of Law.
3.2 Procedure for Issuance of Letters of Credit. The Borrower
may request that the Issuing Lender issue a Letter of Credit at any time prior
to the fifth Business Day prior to the Revolving Credit Commitment Termination
Date by delivering to the Issuing Lender at its address for notices specified
herein a Letter of Credit Application therefor, completed to the satisfaction of
the Issuing Lender, and such other certificates, documents and other papers and
information as the Issuing Lender may request. Upon receipt of any Letter of
Credit Application, the Issuing Lender will process such Letter of Credit
Application and the certificates, documents and other papers and information
delivered to it in connection therewith in accordance with its customary
procedures and shall promptly issue the Letter of Credit requested thereby (but
in no event shall the Issuing Lender be required to issue any Letter of Credit
earlier than three Business Days after its receipt of the Letter of Credit
Application therefor and all such other certificates, documents and other papers
and information relating thereto) by issuing the original of such Letter of
Credit to the beneficiary thereof or as otherwise may be agreed by the Issuing
Lender and the Borrower. The Issuing Lender shall furnish a copy of such Letter
of Credit to the Borrower promptly following the issuance thereof.
3.3 Fees, Commissions and Other Charges. (a) The Borrower
shall pay to the Administrative Agent, for the account of the Issuing Lender and
the L/C Participants, a letter of credit fee with respect to each Letter of
Credit payable in Dollars in the Dollar Equivalent Amount of the amount of such
fee calculated in the Currency in which such Letter of Credit is denominated,
computed for the period from and including the date of issuance of such Letter
of Credit to the expiration date of such Letter of Credit at a rate per annum
equal to the Applicable Margin in effect during such period for Eurocurrency
Loans that are Revolving Credit Loans (on the basis of the actual number of days
elapsed over a 360-day year) on the aggregate face amount of Letters of Credit
outstanding during such period, payable in arrears on each L/C Fee Payment Date
and on the Revolving Credit Commitment Termination Date. Such fee shall be
payable to the Administrative Agent to be shared ratably among the Revolving
Credit Lenders in accordance with their respective Revolving Credit Commitment
Percentages. In addition, the Borrower shall pay to the Issuing Lender, for its
own account, a fee equal to 0.125% per annum on the aggregate face amount of
outstanding Letters of Credit, payable in Dollars in the Dollar Equivalent
Amount of the amount of such fee calculated in Currency in which such Letter of
Credit is denominated quarterly in arrears on each L/C Fee Payment Date and on
the Revolving Credit Commitment Termination Date and calculated on the basis of
the actual number of days elapsed over a 360-day year.
(b) In addition to the foregoing fees and commissions, the
Borrower shall pay or reimburse the Issuing Lender for such normal and customary
costs and expenses as are incurred or charged by the Issuing Lender in issuing,
effecting payment under, amending or otherwise administering any Letter of
Credit.
(c) The Administrative Agent shall, promptly following its
receipt thereof, distribute to the Issuing Lender and the L/C Participants all
fees and commissions received by the Administrative Agent for their respective
accounts pursuant to this subsection.
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3.4 L/C Participations. (a) The Issuing Lender irrevocably
agrees to grant and hereby grants to each L/C Participant, and, to induce the
Issuing Lender to issue Letters of Credit hereunder, each L/C Participant
irrevocably agrees to accept and purchase and hereby accepts and purchases from
the Issuing Lender, on the terms and conditions hereinafter stated, for such L/C
Participant's own account and risk an undivided interest equal to such L/C
Participant's Revolving Credit Commitment Percentage from time to time in effect
in the Issuing Lender's obligations and rights under each Letter of Credit
issued hereunder and the amount of each draft paid by the Issuing Lender
thereunder. Each L/C Participant unconditionally and irrevocably agrees with the
Issuing Lender that, if a draft is paid under any Letter of Credit for which the
Issuing Lender is not reimbursed in full by the Borrower in accordance with the
terms of this Agreement, such L/C Participant shall pay in the Currency in which
such Letter of Credit is denominated to the Issuing Lender upon demand at the
Issuing Lender's address for notices specified herein an amount equal to such
L/C Participant's then Revolving Credit Commitment Percentage of the amount of
such draft, or any part thereof, which is not so reimbursed; provided that if
such demand is made prior to 12:00 Noon, New York City time, on a Business Day
such L/C Participant shall make such payment to the Issuing Lender prior to the
end of such Business Day and otherwise such L/C Participant shall make such
payment on the next succeeding Business Day.
(b) If any amount required to be paid by any L/C Participant
to the Issuing Lender pursuant to paragraph 3.4(a) in respect of any
unreimbursed portion of any payment made by the Issuing Lender under any Letter
of Credit is paid to the Issuing Lender within three Business Days after the
date such payment is due, such L/C Participant shall pay to the Issuing Lender
on demand an amount equal to the product of (i) such amount, times (ii) (A) in
the case of any such payment obligation denominated in Dollars, the daily
average Federal Funds Rate, as quoted by the Issuing Lender, or (B) in the case
of any such payment obligation denominated in an Available Foreign Currency, the
rate customary in such Available Foreign Currency for settlement of similar
interbank obligations, as quoted by the Issuing Lender, in each case, during the
period from and including the date such payment is required to the date on which
such payment is immediately available to the Issuing Lender, times (iii) a
fraction the numerator of which is the number of days that elapse during such
period and the denominator of which is 360. If any such amount required to be
paid by any L/C Participant pursuant to paragraph 3.4(a) is not in fact made
available to the Issuing Lender by such L/C Participant within three Business
Days after the date such payment is due, the Issuing Lender shall be entitled to
recover from such L/C Participant, on demand, such amount with interest thereon
calculated from such due date at the rate per annum applicable to ABR Loans
hereunder, in the case of payment obligations denominated in Dollars, or the
rate per annum applicable to Eurocurrency Loans having an Interest period of one
day, in the case of payment obligations denominated in an Available Foreign
Currency. A certificate of the Issuing Lender submitted to any L/C Participant
with respect to any amounts owing under this subsection shall be conclusive in
the absence of manifest error.
(c) Whenever, at any time after the Issuing Lender has made
payment under any Letter of Credit and has received from any L/C Participant its
pro rata share of such payment in accordance with subsection 3.4(a), the Issuing
Lender receives any payment related to such Letter of Credit (whether directly
from the Borrower or otherwise, including proceeds of collateral
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49
applied thereto by the Issuing Lender), or any payment of interest on account
thereof, the Issuing Lender will, if such payment is received prior to 12:00
Noon, New York City time, on a Business Day, distribute to such L/C Participant
its pro rata share thereof prior to the end of such Business Day and otherwise
the Issuing Lender will distribute such payment on the next succeeding Business
Day; provided that in the event that any such payment received by the Issuing
Lender shall be required to be returned by the Issuing Lender, such L/C
Participant shall return to the Issuing Lender the portion thereof previously
distributed by the Issuing Lender to it.
3.5 Reimbursement Obligation of the Borrower. (a) The Borrower
agrees to reimburse the Issuing Lender on the same Business Day on which a draft
is presented under any Letter of Credit and paid by the Issuing Lender, provided
that the Issuing Lender provides notice to the Borrower prior to 12:00 Noon, New
York City time, on such Business Day and otherwise the Borrower will reimburse
the Issuing Lender on the next succeeding Business Day; provided, further, that
the failure to provide such notice shall not affect the Borrower's absolute and
unconditional obligation to reimburse the Issuing Lender for any draft paid
under any Letter of Credit. The Issuing Lender shall provide notice to the
Borrower on such Business Day as a draft is presented and paid by the Issuing
Lender indicating the amount of (i) such draft so paid and (ii) any taxes, fees,
charges or other costs or expenses incurred by the Issuing Lender in connection
with such payment. Each such payment shall be made to the Issuing Lender at its
address for notices specified herein in the Currency in which the applicable
Letter of Credit is denominated and in immediately available funds.
(b) Interest shall be payable on any and all amounts remaining
unpaid by the Borrower under this subsection from the date such amounts are
drawn until payment in full at the rate which would be payable on any
outstanding Revolving Credit Loans that are ABR Loans which were then overdue,
in the case of any Dollar Letter of Credit, or Eurocurrency Loans having
Interest Periods of one day which were then overdue, in the case of any Foreign
Currency Letter of Credit (unless such drawing occurs after 11:00 A.M. New York
City time on the date of drawing and the Borrower would be able to satisfy the
conditions to borrowing Revolving Credit Loans on such date in an amount at
least equal to the amount of such drawing, in which case, interest shall be
payable for the first day after such drawing at the respective rates for the
applicable type of Loans that are not overdue).
(c) Each drawing under any Letter of Credit shall constitute a
request by the Borrower to the Administrative Agent for a borrowing pursuant to
subsection 2.3 of ABR Loans in the amount of such drawing (or, in the case of a
drawing under a Foreign Currency Letter of Credit, the Dollar Equivalent Amount
of the amount of such drawing). The Borrowing Date with respect to such
borrowing shall be the date of such drawing.
3.6 Obligations Absolute. (a) The Borrower's obligations under
this Section 3 shall be absolute and unconditional under any and all
circumstances and irrespective of any set-off, counterclaim or defense to
payment which the Borrower may have or have had against the Issuing Lender, any
L/C Participant or any beneficiary of a Letter of Credit.
(b) The Borrower also agrees with the Issuing Lender and any
L/C Participant that the Issuing Lender and any L/C Participant shall not be
responsible for, and the Borrower's Reimbursement Obligations under subsection
3.5(a) shall not be affected by, among other things, (i) the validity or
genuineness of documents or of any endorsements thereon, even though such
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documents shall in fact prove to be invalid, fraudulent or forged, or (ii) any
dispute between or among the Borrower and any beneficiary of any Letter of
Credit or any other party to which such Letter of Credit may be transferred or
(iii) any claims whatsoever of the Borrower against any beneficiary of such
Letter of Credit or any such transferee.
(c) Neither the Issuing Lender nor any L/C Participant shall
be liable for 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, except for errors or omissions caused by
the Issuing Lender's gross negligence or willful misconduct.
(d) The Borrower agrees that any action taken or omitted by
the Issuing Lender under or in connection with any Letter of Credit or the
related drafts or documents, if done in the absence of gross negligence or
willful misconduct and in accordance with the standards of care specified in the
Uniform Commercial Code of the State of New York, shall be binding on the
Borrower and shall not result in any liability of the Issuing Lender or any L/C
Participant to the Borrower.
3.7 Letter of Credit Payments. If any draft shall be presented
for payment under any Letter of Credit, the responsibility of the Issuing Lender
to the Borrower in connection with such draft shall, in addition to any payment
obligation expressly provided for in such Letter of Credit, be limited to
determining that the documents (including each draft) delivered under such
Letter of Credit in connection with such presentment are in conformity with such
Letter of Credit.
3.8 Application. To the extent that any provision of any
Letter of Credit Application related to any Letter of Credit is inconsistent
with the provisions of this Section 3, the provisions of this Section 3 shall
apply.
SECTION 4. GENERAL PROVISIONS
4.1 Interest Rates and Payment Dates. (a) Each Eurocurrency
Loan (other than a Eurocurrency Competitive Loan) shall bear interest for each
day during each Interest Period with respect thereto at a rate per annum equal
to the Eurocurrency Rate determined for such day plus the Applicable Margin.
(b) Each Competitive Loan shall bear interest for each day
during each Interest Period with respect thereto at the applicable rate per
annum determined as provided in subsection 2.7.
(c) Each ABR Loan shall bear interest at a rate per annum
equal to the CIBC Alternate Base Rate plus the Applicable Margin.
(d) If all or a portion of (i) any principal of any Loan, (ii)
any interest payable thereon, (iii) any commitment fee or (iv) any other amount
payable hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), the principal of the Loans and any such overdue
interest, commitment fee or other amount shall bear interest at a rate
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per annum which is (x) in the case of principal, the rate that would otherwise
be applicable thereto pursuant to the foregoing provisions of this subsection
plus 2% or (y) in the case of any such overdue interest, commitment fee or other
amount, the rate described in paragraph (b) of this subsection plus 2%, in each
case, from the date of such non-payment until such overdue principal, interest,
commitment fee or other amount is paid in full (as well after as before
judgment).
(e) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to paragraph (d) of this
subsection shall be payable from time to time on demand.
4.2 Optional Prepayments. Each of the Borrowers may at any
time and from time to time prepay the Loans made to it in whole or in part,
without premium or penalty on any Business Day, provided that (i) such Borrower
shall have given (x) at least three Business Days' irrevocable notice to the
Administrative Agent (in the case of Eurocurrency Loans) or (y) same-day
irrevocable notice to the Administrative Agent (in the case of ABR Loans,
including Dollar Swing Line Loans or to the applicable Foreign Currency Swing
Line Lender in the case of Foreign Currency Swing Line Loans), (ii) such notice
specifies, in the case of any prepayment of Loans, the date, Currency and amount
of prepayment and whether the prepayment is (x) of Term Loans, Revolving Credit
Loans or Dollar Swing Line Loans, Foreign Currency Swing Line Loans, or a
combination thereof, and in each case if a combination thereof, the amount
allocable to each, (y) of Eurocurrency Loans, ABR Loans or a combination
thereof, and, in each case if a combination thereof, the principal amount
allocable to each and (iii) each prepayment is in a minimum principal Dollar
Equivalent Amount of $1,000,000 and a multiple of $100,000 in excess thereof.
Upon the receipt of any such notice the Administrative Agent shall promptly
notify each of the Lenders thereof. If any such notice is given, the amount
specified in such notice shall be due and payable on the date specified therein,
together with any amounts payable pursuant to subsection 4.12 and, in the case
of prepayments of the Term Loans only, accrued interest to such date on the
amount prepaid. Partial prepayments of (i) the Term Loans pursuant to this
subsection shall be applied pro rata to the respective installments of principal
thereof and (ii) the Revolving Credit Loans and the Letters of Credit pursuant
to this subsection shall be applied, first, to payment of the Dollar Swing Line
Loans then outstanding, second, to the payment of the Foreign Currency Swing
Line Loans then outstanding, third, to payment of the Revolving Credit Loans
then outstanding and, last, to cash collateralize any outstanding L/C Obligation
upon terms reasonably satisfactory to the Administrative Agent. The Borrower
shall not have the right to prepay Competitive Loans without the consent of the
applicable Lender.
4.3 Mandatory Prepayments and Reduction of Revolving Credit
Commitments. (a) If, in any fiscal year, commencing with the fiscal year ending
January 31, 1999, there shall be Excess Cash Flow for such fiscal year, then on
the date that is the earlier of (i) the date on which the audited financial
statements for such fiscal year are required to be delivered pursuant to
subsection 7.1(a) and (ii) the date two Business Days after the delivery of such
financial statements, 75% (provided that such percentage shall reduce to 50% if
at the end of such fiscal year the Leverage Ratio is less than 3.00 to 1.00) of
such Excess Cash Flow shall be applied toward the prepayment of the Loans and
the permanent reduction of the Revolving Credit Commitments in accordance with
subsection 4.3(e).
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(b) If, subsequent to the Closing Date, the Borrower or any of
its Subsidiaries shall incur or issue any debt obligations (other than in
respect of Indebtedness permitted by subsection 8.2 (other than subsections
8.2(i) and 8.2(k)), then 100% of the Net Cash Proceeds thereof shall, on the
first Business Day after receipt thereof, be applied toward the prepayment of
the Loans and the permanent reduction of the Revolving Credit Commitments in
accordance with subsection 4.3(e), provided that if, subsequent to the Closing
Date, the Borrower or any of its Subsidiaries shall incur or issue any debt
obligations permitted by subsection 8.2(i), then 100% (provided that such
percentage shall reduce to 50% if at the end of the fiscal quarter most recently
ended prior to the date of such debt issuance for which financial statements
shall have been delivered by the Borrower pursuant to subsection 7.1 and after
giving effect thereto (with EBITDA being calculated on the basis of such
financial statements) the Leverage Ratio would be less than 3.00 to 1.00) of the
Net Cash Proceeds thereof shall, on the first Business Day after receipt
thereof, be applied toward the prepayment of the Loans or any other outstanding
Indebtedness of the Borrower or any Subsidiary (the Loans or other Indebtedness
so prepaid shall be elected by the Borrower in its sole discretion, subject to
subsection 8.10) (provided that the Revolving Credit Commitments shall not be
reduced to the extent the Borrower elects to prepay Revolving Credit Loans).
(c) If, subsequent to the Closing Date, the Borrower or any of
its Subsidiaries shall receive Net Cash Proceeds from any asset sales or other
dispositions permitted by subsection 8.6(b) or (j), then 100% of the portion of
such Net Cash Proceeds required by subsection 8.6(b) or (j), as the case may be,
to be so applied shall on the first Business Day after receipt thereof, be
applied toward the prepayment of the Loans and the permanent reduction of the
Revolving Credit Commitments in accordance with subsection 4.3(e); provided that
(i) such Net Cash Proceeds from any such asset sales or other dispositions shall
not be required to be so applied until the amount of such unapplied Net Cash
Proceeds exceeds the Dollar Equivalent Amount of $5,000,000 in the aggregate, at
which time 100% of such unapplied Net Cash Proceeds shall be applied immediately
toward the prepayment of the Loans and the permanent reduction of the Revolving
Credit Commitments in accordance with subsection 4.3(e) and (ii) to the extent
that such Net Cash Proceeds from any such asset sales or other dispositions may
be used by the Borrower and its Subsidiaries to acquire fixed or capital assets
or make Investments or may be used by Non-Guarantor Subsidiaries to prepay,
repay or repurchase Indebtedness of Non-Guarantor Subsidiaries, or acquire
assets used or useful in the businesses of Non-Guarantor Subsidiaries, in each
case, within 180 days of receipt thereof and otherwise in accordance with
subsection 8.6(b) or (j), as the case may be, but such Net Cash Proceeds are not
so used, such Net Cash Proceeds shall be applied toward the repayment of the
Loans and the permanent reduction of the Revolving Credit Commitments in
accordance with subsection 4.3(e) on the earlier of (x) the 180th day after
receipt of such Net Cash Proceeds and (y) the date on which the Borrower has
reasonably determined that such Net Cash Proceeds shall not be so used. If,
subsequent to the Closing Date, the Borrower or any of its Subsidiaries shall
receive Net Cash Proceeds from asset sales or other dispositions permitted
<PAGE> 59
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by subsection 8.6(g), then 100% of such Net Cash Proceeds shall, on the first
Business Day after receipt thereof, be applied toward the prepayment of the
Loans or any other outstanding Indebtedness of the Borrower or any Subsidiary
(the Loans or other Indebtedness so prepaid shall be elected by the Borrower in
its sole discretion) (provided that the Revolving Credit Commitments shall not
be reduced to the extent the Borrower elects to prepay Revolving Credit Loans).
If, subsequent to the Closing Date, the Borrower or any of its Subsidiaries
shall receive Net Cash Proceeds from any asset sales or other dispositions
permitted by subsection 8.6(i), then the portion of such Net Cash Proceeds
required by subsection 8.6(i) to be applied in accordance with this subsection
4.3(c) shall be applied as follows: 100% of (A) the Dollar Equivalent Amount of
the first $50,000,000 of such portion of such Net Cash Proceeds shall, on the
first Business Day after receipt thereof (or such later date upon which such
application shall be required), be applied toward the prepayment of the Loans or
any other outstanding Indebtedness of the Borrower or any Subsidiary (the Loans
or other Indebtedness so prepaid shall be elected by the Borrower in its sole
discretion) (provided that the Revolving Credit Commitments shall not be reduced
to the extent the Borrower elects to prepay Revolving Credit Loans) and (B) any
additional Net Cash Proceeds shall, on the first Business Day after receipt
thereof (or such later date upon which such application shall be required), be
applied toward the prepayment of the Loans and the permanent reduction of the
Revolving Credit Commitments in accordance with subsection 4.3(e).
(d) If, at any time during the Revolving Credit Commitment
Period, the Aggregate Outstanding Revolving Credit with respect to all Revolving
Credit Lenders (including the Swing Line Lenders) exceeds the aggregate
Revolving Credit Commitments then in effect, the Borrower shall, without notice
or demand, immediately repay the Revolving Credit Loans and/or the Swing Line
Loans in an aggregate principal amount equal to such excess, together with
interest accrued to the date of such payment or prepayment and any amounts
payable under subsection 4.12. To the extent that after giving effect to any
prepayment of the Loans required by the preceding sentence, the Aggregate
Outstanding Revolving Credit with respect to all Revolving Credit Lenders
(including the Swing Line Lenders) exceeds the aggregate Revolving Credit
Commitments then in effect, the Borrower shall, without notice or demand,
immediately cash collateralize the then outstanding L/C Obligations in an amount
equal to such excess upon terms reasonably satisfactory to the Administrative
Agent. On the Business Day next succeeding the date on which a payment has
caused the Aggregate Outstanding Revolving Credit with respect to all Revolving
Credit Lenders (including the Swing Line Lender) to be equal to or less than the
Revolving Credit Commitments then in effect, the Administrative Agent shall
return to the Borrower the cash used to cash collateralize the then outstanding
L/C Obligations pursuant to the preceding sentence.
(e) Except as expressly provided herein, prepayments of the
Loans and permanent reductions of the Revolving Credit Commitments pursuant to
subsections 4.3(a), (b) and (c) shall be applied, first, to payment of the Term
Loans then outstanding and, second, (to the extent that there are no Term Loans
then outstanding) to permanent reduction of the Revolving Credit Commitments
then in effect. Prepayments of the Term Loans pursuant to subsections 4.3(a),
(b), (c) and (h) shall be applied pro rata to the respective installments of
principal thereof. Notwithstanding the foregoing, in the event Term Loans
denominated in Deutschemarks or euro units are outstanding at the time of such
prepayment, mandatory prepayments shall be applied first to prepay outstanding
Term Loans denominated in Dollars.
(f) Amounts prepaid on account of Term Loans pursuant to
subsection 4.3(a), (b), (c) or (h) may not be reborrowed.
(g) If, at any time during the Revolving Credit Commitment
Period, the Aggregate Outstanding Revolving Credit (other than in respect of the
undrawn portion of any Letters of Credit) with respect to all Revolving Credit
Lenders (including the Swing Line
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Lenders) is not less than the Clean-Down Amount for at least a consecutive
thirty day period during each fiscal year of the Borrower, the Borrower shall,
without notice or demand, immediately repay the Revolving Credit Loans and/or
the Swing Line Loans in an aggregate principal amount equal to such excess,
together with interest accrued to the date of such payment or prepayment and any
amounts payable under subsection 4.12, and any borrowings of Revolving Credit
Loans during such thirty day period shall be subject to the proviso to
subsection 2.1(a). To the extent that after giving effect to any prepayment of
the Loans required by the preceding sentence, such Aggregate Outstanding
Revolving Credit with respect to all Revolving Credit Lenders (including the
Swing Line Lenders) exceeds the Clean-Down Amount, the Borrower shall, without
notice or demand, immediately cash collateralize the then outstanding L/C
Obligations in an amount equal to such excess upon terms reasonably satisfactory
to the Administrative Agent. On the Business Day next succeeding the date on
which the thirty day period described above has expired, the Administrative
Agent shall return to the Borrower the cash, if any, used to cash collateralize
the then outstanding L/C Obligations pursuant to the preceding sentence.
(h) If, subsequent to the Closing Date, the Borrower or any of
its Subsidiaries shall receive any cash proceeds of any casualty or
condemnation, then on the first Business Day after receipt thereof 100% of the
portion of such proceeds required by subsection 8.6(h) to be applied pursuant to
the terms of this subsection 4.3(h) shall be either (at the election of the
Borrower) (a) deposited by the Borrower with the Administrative Agent, which
shall hold such proceeds in a cash collateral account upon terms reasonably
satisfactory to it or (b) applied by the Borrower to prepay Term Loans or
Revolving Credit Loans (at the election of the Borrower), provided that to the
extent the Borrower elects to prepay Revolving Credit Loans (i) the Borrower
shall maintain Available Revolving Credit Commitments (in addition to any
requirement to maintain Available Revolving Credit Commitments in accordance
with subsections 8.2(h) and (l)) at least equal to the aggregate principal
amount of Revolving Credit Loans so prepaid and (ii) if such property is not
replaced or rebuilt within one year (subject to reasonable extension for force
majeure or weather delays) following the condemnation or casualty or if the
Borrower fails to notify the Administrative Agent in writing on or before the
180th day after such casualty or condemnation that the Borrower shall commence
the replacement or rebuilding of such property, then, the Revolving Credit
Commitments shall be permanently reduced at such time in an amount equal to the
aggregate amount of proceeds applied by the Borrower to prepay Revolving Credit
Loans rather than Term Loans.
4.4 Conversion and Continuation Options. (a) The Borrower may
elect from time to time to convert Eurocurrency Revolving Credit Loans
denominated in Dollars to ABR Loans by giving the Administrative Agent at least
three Business Days' prior irrevocable notice of such election, provided that
any such conversion of Eurocurrency Revolving Credit Loans may only be made on
the last day of an Interest Period with respect thereto. The Borrower may elect
from time to time to convert ABR Loans to Eurocurrency Revolving Credit Loans by
giving the Administrative Agent at least three Business Days' prior irrevocable
notice of such election. Any such notice of conversion to Eurocurrency Revolving
Credit Loans shall specify the length of the initial Interest Period or Interest
Periods therefor. Upon receipt of any such notice the Administrative Agent shall
promptly notify each Lender thereof. All or any part of outstanding Eurocurrency
Revolving Credit Loans and ABR Loans may be converted as provided herein,
provided that (i) unless the Majority Lenders otherwise consent, no Loan may be
converted into a
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Eurocurrency Revolving Credit Loan when any Event of Default has occurred and is
continuing and (ii) no Loan may be converted into a Eurocurrency Revolving
Credit Loan after the date that is one month prior to the Revolving Credit
Commitment Termination Date.
(b) Any Eurocurrency Standby Loans may be continued as such in
the same Currency upon the expiration of the then current Interest Period with
respect thereto by the Borrower giving notice to the Administrative Agent, in
accordance with the applicable notice provisions of subsection 2.3, of the
length of the next Interest Period to be applicable to such Loans, provided that
no such Eurocurrency Loan may be continued as such (i) unless the Majority
Lenders otherwise consent, when any Event of Default has occurred and is
continuing or (ii) after the date that is one month prior to the Revolving
Credit Commitment Termination Date (in the case of continuations of Revolving
Credit Loans) or the Term Loan Maturity Date (in the case of continuations of
Term Loans) and provided, further, that if the Borrower shall fail to give such
notice or if such continuation is not permitted such Eurocurrency Loans shall be
automatically continued with an Interest Period of one month.
4.5 Minimum Amounts and Maximum Number of Tranches. All
borrowings, conversions and continuations of Loans hereunder and all selections
of Interest Periods hereunder shall be in such amounts and be made pursuant to
such elections so that, after giving effect thereto, the aggregate principal
Dollar Equivalent Amount of the Loans comprising each Tranche shall be equal to
$5,000,000 or a whole multiple of $1,000,000 in excess thereof. In no event
shall there be more than (a) 25 Tranches outstanding at any time or (b) 20
Tranches in respect of Revolving Credit Loans and 5 Tranches in respect of Term
Loans.
4.6 Computation of Interest, Fees and Dollar Equivalent
Amounts. (a) Interest (other than interest based on the CIBC Prime Rate) on all
Loans and commitment fees payable pursuant hereto shall be calculated on the
basis of a year of 360 days for the actual days elapsed; interest based on the
CIBC Prime Rate shall be calculated on the basis of a 365-(or 366-, as the case
may be) day year for the actual days elapsed. The Administrative Agent shall as
soon as practicable notify the Borrower and the Lenders of each determination of
a Eurocurrency Rate. Any change in the interest rate on the Loans resulting from
a change in the CIBC Alternate Base Rate or the Eurocurrency Reserve
Requirements shall become effective as of the opening of business on the day on
which such change shall become effective, provided that such change becomes
effective prior to 5:00 P.M., New York City time, on such day. The
Administrative Agent shall as soon as practicable notify the Borrower and each
Lender of the effective date and the amount of each such change.
(b) The Administrative Agent will determine the Dollar
Equivalent Amount with respect to:
(i) any borrowing of Foreign Currency Revolving Credit
Loans or Foreign Currency Competitive Loans, on the second full
Business Day preceding the first day of the applicable Interest Period;
(ii) any Foreign Currency Swing Line Loans made by CIBC, as
of the proposed Borrowing Date thereof;
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(iii) any issuance of a Foreign Currency Letter of Credit,
as of the requested issuance date of such Letter of Credit;
(iv) any drawing under a Foreign Currency Letter of Credit
and any calculation of letter of credit fees in respect thereof, as of
the date the Borrower is required pursuant to subsection 3.5 to
reimburse the Issuing Lender;
(v) all outstanding Foreign Currency Revolving Credit
Loans, Foreign Currency Swing Line Loans, L/C Obligations in respect of
Foreign Currency Letters of Credit and Foreign Currency Competitive
Loans, on any date on which the Revolving Credit Commitments are
reduced pursuant to subsection 2.5;
(vi) all outstanding Foreign Currency Revolving Credit
Loans, Foreign Currency Competitive Loans, Foreign Currency Swing Line
Loans and L/C Obligations in respect of Foreign Currency Letters of
Credit, for purposes of calculating compliance with the proviso to
subsection 2.1(a) (as reflected in the certificate to be delivered by
the Borrower pursuant to subsection 7.2(b)(iv)), as of the first day of
the thirty-day compliance period provided for in such clause;
(vii) each Foreign Currency Swing Line Commitment, as of the
date such Foreign Currency Swing Line Commitment is originally
extended; and
(viii) all Foreign Currency Revolving Credit Loans and L/C
Obligations in respect of Foreign Currency Letters of Credit for
purposes of calculating the letter of credit fees and the commitment
fees due the Revolving Credit Lenders pursuant to subsection 2.4(a), as
of the first Business Day prior to the last day of the fiscal quarter
for which computation thereof is made.
(c) Each determination of an interest rate or a Dollar
Equivalent Amount by the Administrative Agent pursuant to any provision of this
Agreement shall be conclusive and binding on the Borrower and the Lenders in the
absence of manifest error. The Administrative Agent shall, at the reasonable
request of the Borrower or any Lender, deliver to the Borrower or such Lender,
as the case may be, a statement showing the quotations used by the
Administrative Agent in determining any interest rate pursuant to subsection
4.1.
4.7 Inability to Determine Interest Rate. If prior to the
first day of any Interest Period: (a) the Administrative Agent shall have
determined (which determination shall be conclusive and binding upon the
Borrower) that, by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the Eurocurrency
Rate for any Currency for such Interest Period, or (b) the Administrative Agent
shall have received notice from the Majority Lenders that the Eurocurrency Rate
for any Currency determined or to be determined for such Interest Period will
not adequately and fairly reflect the cost to such Lenders (or any affiliate of
any such Lender from which such Lender customarily obtains funds) (as
conclusively certified by such Lenders) of making or maintaining their affected
Loans during such Interest Period, then the Administrative Agent shall give
telecopy or telephonic notice thereof to the Borrower and the Lenders as soon as
practicable thereafter. If such notice is given (x) any Eurocurrency Loans in
the affected Currency requested to be made on the first day of such Interest
Period shall be made as ABR Loans, (y) any Loans that were to
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have been converted on the first day of such Interest Period to Eurocurrency
Loans in the affected Currency shall be converted to or continued as ABR Loans
and (z) any outstanding Eurocurrency Loans in the affected Currency shall be
converted, on the first day of such Interest Period, to ABR Loans, provided that
nothing in this sentence shall be deemed to prevent the Eurocurrency Loans in
the affected Currency from being converted to Eurocurrency Loans in another
Currency if the applicable requirements of this Agreement to the prepayment of
such Eurocurrency Loans in the affected Currency and to the making of such
Eurocurrency Loans in such other Currency shall be satisfied. Until such notice
has been withdrawn by the Administrative Agent, no further Eurocurrency Loans in
the affected Currency shall be made or continued as such, nor shall the Borrower
have the right to convert Loans to Eurocurrency Loans in the affected Currency.
4.8 Pro Rata Treatment and Payments. (a) Each borrowing of
Revolving Credit Loans (other than Swing Line Loans) by the Borrower from the
Revolving Credit Lenders hereunder shall be made, each payment by the Borrower
on account of any commitment fee in respect of the Revolving Credit Commitments
hereunder shall be allocated by the Administrative Agent, and any reduction of
the Revolving Credit Commitments of the Revolving Credit Lenders shall be
allocated by the Administrative Agent, pro rata according to the Revolving
Credit Commitment Percentages of the Revolving Credit Lenders. Each payment
(including each prepayment) by the Borrower on account of principal of and
interest on any Revolving Credit Loan shall be allocated by the Administrative
Agent pro rata according to the respective outstanding principal Dollar
Equivalent Amounts of such Revolving Credit Loans then held by the Revolving
Credit Lenders. Each payment (including each prepayment) by the Borrower on
account of principal of and interest on any Term Loans shall be allocated by the
Administrative Agent pro rata according to the respective outstanding principal
amounts of such Term Loans then held by the Term Loan Lenders. Each payment of
interest on any Competitive Loan shall be allocated pro rata among the Lenders
participating in such Loan in accordance with the respective principal amount of
their outstanding Competitive Loans. For purposes of determining the Available
Revolving Credit Commitments of the Revolving Credit Lenders at any time, each
outstanding Competitive Loan shall be deemed to have utilized the Revolving
Credit Commitment of the Revolving Credit Lenders (including those Revolving
Credit Lenders that shall not have made Competitive Loans) pro rata in
accordance with such respective Revolving Credit Commitments. All payments
(including prepayments) to be made by the Borrower hereunder and under any Notes
in any Currency, whether on account of principal, interest, fees, Reimbursement
Obligations or otherwise, shall be made in such Currency without set-off or
counterclaim and shall be made prior to 12:00 Noon, New York City time, on the
due date thereof to the Administrative Agent, for the account of the Lenders
holding the relevant Loans or the L/C Participants, as the case may be, at the
Administrative Agent's office specified by the Administrative Agent from time to
time, in such Currency and in immediately available, freely transferable funds.
Payments received by the Administrative Agent after such time shall be deemed to
have been received on the next Business Day. If any payment hereunder (other
than payments on Eurocurrency Loans) becomes due and payable on a day other than
a Business Day, the maturity of such payment shall be extended to the next
succeeding Business Day, and, with respect to payments of principal, interest
thereon shall be payable at the then applicable rate during such extension. If
any payment on a Eurocurrency Loan becomes due and payable on a day other than a
Business Day, the maturity of such payment shall be extended to the next
succeeding Business Day (and, with respect to payments of principal, interest
thereon shall be payable at the then applicable rate during such extension)
unless the result of such extension
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would be to extend such payment into another calendar month, in which event such
payment shall be made on the immediately preceding Business Day. To the extent
that any EMU legislation provides that an amount denominated either in the euro
or in the national currency unit of a participating member state and payable
within that participating member state by crediting an account of the creditor
can be paid by the debtor either in the euro unit or in that national currency
unit, each party to this Agreement shall be entitled to pay or repay any such
amount either in the euro unit or in such national currency unit.
(b) Unless the Administrative Agent shall have been notified
in writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its Commitment Percentage of such borrowing
available to the Administrative Agent, the Administrative Agent may assume that
such Lender is making such amount available to the Administrative Agent, and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower a corresponding amount. If such amount is not made available to the
Administrative Agent by the required time on the Borrowing Date therefor, such
Lender shall pay to the Administrative Agent, on demand, such amount with
interest thereon at a rate equal to the daily average Federal Funds Rate in the
case of any amount denominated in Dollars, or the rate customary in such
Currency for settlement of similar interbank obligations in the case of any
amount denominated in an Available Foreign Currency as quoted by the
Administrative Agent, in each case, for the period until such Lender makes such
amount immediately available to the Administrative Agent. A certificate of the
Administrative Agent submitted to any Lender with respect to any amounts owing
under this subsection shall be conclusive in the absence of manifest error. If
such Lender's Commitment Percentage of such borrowing is not made available to
the Administrative Agent by such Lender within three Business Days of such
Borrowing Date, the Administrative Agent shall also be entitled to recover such
amount with interest thereon at the rate per annum applicable to ABR Loans, in
the case of obligations denominated in Dollars, or the rate per annum applicable
to Eurocurrency Loans having an Interest Period of one day, in the case of
payment obligations denominated in an Available Foreign Currency, in each case,
on demand, from the Borrower.
(c) With respect to the payment of any amount denominated in
the euro or in a national currency unit, the Administrative Agent shall not be
liable to any Borrower or any of the Lenders in any way whatsoever for any
delay, or the consequences of any delay, in the crediting to any account of any
amount required by this Agreement to be paid by the Administrative Agent if the
Administrative Agent shall have taken all relevant steps to achieve, on the date
required by this Agreement, the payment of such amount in immediately available,
freely transferable, cleared funds (in the euro unit or, as the case may be, in
a national currency unit) to the account of any Lender in the principal
financial center in the participating member state which such Borrower or, as
the case may be, such Lender shall have specified for such purpose. In this
paragraph, "all relevant steps" means all such steps as may be prescribed from
time to time by the regulations or operating procedures of such clearing or
settlement system as the Administrative Agent may from time to time determine
for the purpose of clearing or settling payments of the euro.
4.9 Illegality. Notwithstanding any other provision herein, if
the adoption of or any change in any Requirement of Law or in the interpretation
or application thereof shall make it unlawful for any Lender (or any affiliate
of such Lender from which such Lender customarily
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obtains funds) to make or maintain Eurocurrency Loans in Dollars or any
Available Foreign Currency or Foreign Currency Swing Line Loans as contemplated
by this Agreement, (a) the commitment of such Lender hereunder to make
Eurocurrency Standby Loans in Dollars or such Available Foreign Currency or make
Foreign Currency Swing Line Loans, as the case may be, continue Eurocurrency
Standby Loans in Dollars or such Available Foreign Currency, as the case may be,
as such and convert ABR Loans to Eurocurrency Standby Loans in Dollars or such
Available Foreign Currency or make Foreign Currency Swing Line Loans, as the
case may be, shall forthwith be canceled, (b) the Borrower shall be prohibited
from requesting Eurocurrency Competitive Loans from such Lender and (c) such
Lender's Loans then outstanding as Eurocurrency Loans in Dollars or such
Available Foreign Currency, as the case may be, if any, shall be converted
automatically to ABR Loans or, if a Foreign Currency Swing Line Loan,
immediately repaid, and on the respective last days of the then current Interest
Periods with respect to such Loans or within such earlier period as required by
law. If any such conversion of a Eurocurrency Loan or a Foreign Currency Swing
Line Loan occurs on a day which is not the last day of the then current Interest
Period (or other agreed payment date in the case of a Foreign Currency Swing
Line Loan) with respect thereto, the applicable Borrower shall pay to such
Lender such amounts, if any, as may be required pursuant to subsection 4.12.
4.10 Requirements of Law. (a) If the adoption of or any change
in any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Note, any Letter of
Credit, any Letter of Credit Application, any Foreign Currency Swing
Line Loan or any Eurocurrency Loan made by it, or change the basis of
taxation of payments to such Lender in respect thereof (except for
Non-Excluded Taxes covered by subsection 4.11 and changes in the rate
of tax on the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender (or any affiliate of
such Lender from which such Lender customarily obtains funds) which is
not otherwise included in the determination of the Eurocurrency Rate
hereunder or the rate applicable to any Foreign Currency Swing Line
Loan; or
(iii) shall impose on such Lender (or such affiliate) any
other condition; and the result of any of the foregoing is to increase the cost
to such Lender, by an amount which such Lender deems to be material, of making,
converting into, continuing or maintaining Eurocurrency Loans or Foreign
Currency Swing Line Loans or issuing or participating in Letters of Credit or to
reduce any amount receivable hereunder in respect thereof, then, in any such
case, the applicable Borrower shall promptly pay such Lender such additional
amount or amounts as will compensate such Lender for such increased cost or
reduced amount receivable.
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(b) If any Lender shall have determined that the adoption of
or any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder or under any Letter of Credit to a
level below that which such Lender or such corporation could have achieved but
for such adoption, change or compliance (taking into consideration such Lender's
or such corporation's policies with respect to capital adequacy) by an amount
deemed by such Lender to be material, then from time to time, the applicable
Borrower shall promptly pay to such Lender such additional amount or amounts as
will compensate such Lender or such corporation for such reduction.
(c) If any Lender becomes entitled to claim any additional
amounts pursuant to this subsection, such Lender shall promptly notify the
applicable Borrower (with a copy to the Administrative Agent) of the event by
reason of which it has become so entitled. A certificate as to any additional
amounts payable pursuant to this subsection submitted by such Lender to the
applicable Borrower (with a copy to the Administrative Agent) shall be
conclusive in the absence of manifest error. The agreements in this subsection
shall survive the termination of this Agreement and the payment of the Loans and
all other amounts payable hereunder.
4.11 Taxes. (a) All payments made by the Borrowers under this
Agreement, any Notes, any Letters of Credit, any Letter of Credit Application or
any Foreign Currency Swing Line Agreement shall be made free and clear of, and
without deduction or withholding for or on account of, any present or future
income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions
or withholdings and all interest, penalties or similar liabilities imposed with
respect to such tax, now or hereafter imposed, levied, collected, withheld or
assessed by any Governmental Authority, excluding net income taxes and franchise
taxes (imposed in lieu of net income taxes) imposed on the Administrative Agent
or any Lender as a result of a present or former connection between the
Administrative Agent or such Lender and the jurisdiction of the Governmental
Authority imposing such tax or any political subdivision or taxing authority
thereof or therein (other than any such connection arising solely from the
Administrative Agent or such Lender having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement or any
Note). If any such non-excluded taxes, levies, imposts, duties, charges, fees,
deductions or withholdings ("Non-Excluded Taxes") are required to be withheld
from any amounts payable to the Administrative Agent or any Lender hereunder or
under any Note, any Letters of Credit or any Letter of Credit Applications, the
amounts so payable to the Administrative Agent or such Lender shall be increased
to the extent necessary to yield to the Administrative Agent or such Lender
(after payment of all Non-Excluded Taxes) interest or any such other amounts
payable hereunder at the rates or in the amounts specified in this Agreement,
provided that the Borrowers shall not be required to increase any such amounts
payable to any Lender that is not organized under the laws of the United States
or a state thereof if such Lender fails to comply with the requirements of
paragraph (b) of this subsection. Whenever any Non-Excluded Taxes are payable by
a Borrower, as promptly as possible thereafter such Borrower shall send to the
Administrative Agent for its own account or for the account of such Lender, as
the case may be, a certified copy of an original official receipt
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received by such Borrower showing payment thereof. If a Borrower fails to pay
any Non-Excluded Taxes when due to the appropriate taxing authority or fails to
remit to the Administrative Agent the required receipts or other required
documentary evidence, such Borrower shall indemnify the Administrative Agent and
the Lenders for any incremental taxes, interest or penalties that may become
payable by the Administrative Agent or any Lender as a result of any such
failure. The agreements in this subsection shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of the
United States or a state thereof shall:
(X) in the case of a Lender that is a "bank" within the
meaning of Section 881 (c)(3)(A) of the Code,(i) deliver to the
Borrower and the Administrative Agent (A) two duly completed copies of
United States Internal Revenue Service Form 1001 or 4224, or successor
applicable form, as the case may be, and (B) an Internal Revenue
Service Form W-8 or W-9, or successor applicable form, as the case may
be;
(ii) deliver to the Borrower and the Administrative Agent two
further copies of any such form or certification on or before the date
that any such form or certification expires or becomes obsolete and
after the occurrence of any event requiring a change in the most recent
form previously delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing and complete
such forms or certifications as may reasonably be requested by the
Borrower or the Administrative Agent; or
(Y) in the case of any such Lender that is not a "bank" within
the meaning of Section 881(c)(3)(A) of the Code, (i) represent to the
Borrower (for the benefit of the Borrower and the Administrative Agent)
that it is not a bank within the meaning of Section 881(c)(3)(A) of the
Code, (ii) agree to furnish to the Borrower on or before the date of
any payment by the Borrower, with a copy to the Administrative Agent,
(A) a certificate substantially in the form of Exhibit E (any such
certificate a "U.S. Tax Compliance Certificate") and (B) two accurate
and complete original signed copies of Internal Revenue Service Form
W-8, or successor applicable form certifying to such Lender's legal
entitlement at the date of such certificate to an exemption from U.S.
withholding tax under the provisions of Section 881(c) of the Code with
respect to payments to be made under this Agreement and any Notes (and
to deliver to the Borrower and the Administrative Agent two further
copies of such form on or before the date it expires or becomes
obsolete and after the occurrence of any event requiring a change in
the most recently provided form and, if necessary, obtain any
extensions of time reasonably requested by the Borrower or the
Administrative Agent for filing and completing such forms), and (iii)
agree, to the extent legally entitled to do so, upon reasonable request
by the Borrower, to provide to the Borrower (for the benefit of the
Borrower and the Administrative Agent) such other forms as may be
reasonably required in order to establish the legal entitlement of such
Lender to an exemption from withholding with respect to payments under
this Agreement and any Notes, provided that in determining the
reasonableness of a request under this clause (iii) such Lender shall
be
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entitled to consider the cost (to the extent unreimbursed by the
Borrower) which would be imposed on such Lender of complying with such
request;
unless in any such case any change in treaty, law or regulation has occurred
after the date such Person becomes a Lender hereunder which renders all such
forms inapplicable or which would prevent such Lender from duly completing and
delivering any such form with respect to it and such Lender so advises the
Borrower and the Administrative Agent. Each Person that shall become a Lender or
a Participant pursuant to subsection 11.6 shall, upon the effectiveness of the
related transfer, be required to provide all of the forms, certifications and
statements required pursuant to this subsection, provided that in the case of a
Participant the obligations of such Participant pursuant to this paragraph (b)
shall be determined as if such Participant were a Lender except that such
Participant shall furnish all such required forms, certifications and statements
to the Lender from which the related participation shall have been purchased.
4.12 Indemnity. Each Borrower agrees to indemnify each Lender
and to hold each Lender harmless from any loss or expense which such Lender may
sustain or incur as a consequence of (a) default by such Borrower in making a
borrowing of, conversion from or into or continuation of Eurocurrency Loans or
Foreign Currency Swing Line Loans after such Borrower has given a notice
requesting the same in accordance with the provisions of this Agreement, (b)
default by such Borrower in making any prepayment of Eurocurrency Standby Loans
or Foreign Currency Swing Line Loans after such Borrower has given a notice
thereof in accordance with the provisions of this Agreement or (c) the making of
a prepayment of Eurocurrency Standby Loans or Foreign Currency Swing Line Loans
on a day which is not the last day of an Interest Period or other agreed payment
date (in the case of Foreign Currency Swing Line Loans) with respect thereto.
Such indemnification may include an amount equal to the excess, if any, of (i)
the amount of interest which would have accrued on the amount so prepaid, or not
so borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period or other agreed payment date (in the case of Foreign
Currency Swing Line Loans) (or, in the case of a failure to borrow, convert or
continue, the Interest Period or other agreed loan period (in the case of
Foreign Currency Swing Line Loans) that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided
for herein (excluding, however, the Applicable Margin included therein, if any)
over (ii) the amount of interest (as reasonably determined by such Lender) which
would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank eurodollar
market. This covenant shall survive the termination of this Agreement and the
payment of the Loans and all other amounts payable hereunder.
4.13 Change of Lending Office; Replacement of Lenders. (a)
Each Lender agrees that if it makes any demand for payment under subsection 4.10
or 4.11(a), or if any adoption or change of the type described in subsection 4.9
shall occur with respect to it, it shall use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions and so long as such
efforts would not be disadvantageous to it, as determined in its sole
discretion) to designate a different lending office if the making of such a
designation would reduce or obviate the need for a Borrower to make payments
under subsection 4.10 or 4.11(a), or would eliminate or reduce the effect of any
adoption or change described in subsection 4.9.
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(b) The Borrower shall be permitted to replace any Lender that
(a) requests reimbursement for amounts owing pursuant to subsection 4.10 or
4.11(a) or (b) defaults in its obligation to make Loans hereunder, with a
replacement financial institution; provided that (i) such replacement does not
conflict with any Requirement of Law, (ii) no Event of Default shall have
occurred and be continuing at the time of such replacement, (iii) prior to any
such replacement, such Lender shall have taken no action under subsection
4.13(a) so as to eliminate the continued need for payment of amounts owing
pursuant to subsection 4.10 or 4.11(a), (iv) the replacement financial
institution shall purchase, at par, all Loans and other amounts owing to such
replaced Lender on or prior to the date of replacement, (v) the Borrower shall
be liable to such replaced Lender under subsection 4.12 if any Eurocurrency Loan
owing to such replaced Lender shall be purchased other than on the last day of
the Interest Period relating thereto, (vi) the replacement financial
institution, if not already a Lender, shall be reasonably satisfactory to the
Administrative Agent, (vii) the replaced Lender shall be obligated to make such
replacement in accordance with the provisions of subsection 11.6 (provided that
the Borrower shall be obligated to pay the registration and processing fee
referred to therein), (viii) until such time as such replacement shall be
consummated, the Borrower shall pay all additional amounts (if any) required
pursuant to subsection 4.10 or 4.11(a), as the case may be, and (ix) any such
replacement shall not be deemed to be a waiver of any rights that the Borrower,
the Administrative Agent or any other Lender shall have against the replaced
Lender.
4.14 Borrower Controls on Non-Dollar Indebtedness; Calculation
of Non-Dollar Extensions of Credit; Prepayments. The Borrowers will implement
and maintain internal accounting controls to monitor the borrowings and
repayments of Foreign Currency Revolving Credit Loans (including Foreign
Currency Swing Line Loans and Foreign Currency Competitive Loans), the issuance
of and drawings under Foreign Currency Letters of Credit and other Non-Dollar
Indebtedness with the object of preventing any request for an extension of
credit that would result in the Borrower failing to comply with this Agreement,
including subsections 2.1, 2.5, 2.6, 2.7, 3.1 and 8.2, and of promptly
identifying and remedying any circumstance where, by reason of changes in
exchange rates, the Borrower fails to be in compliance with such subsections.
SECTION 5. REPRESENTATIONS AND WARRANTIES
To induce the Managing Agents and the Lenders to enter into
this Agreement and to make the Loans and issue or participate in the Letters of
Credit, each of the Borrowers hereby represents and warrants, on the Closing
Date and on any date thereafter on which any Loan or any other extension of
credit is requested to be made by any Lender or on which any Letter of Credit is
requested to be issued by the Issuing Lender to the Managing Agents and each
Lender that:
5.1 Financial Condition. (a) The consolidated balance sheets
of the Borrower and its consolidated Subsidiaries as of January 31, 1996,
January 31, 1997 and January 31, 1998 and the related consolidated statements of
income and of cash flows for the fiscal years ended on such dates, reported on
by KPMG Peat Marwick LLP, copies of which have heretofore been furnished to each
Lender, are complete and correct and present fairly the consolidated financial
condition of the Borrower and its consolidated Subsidiaries as at such dates,
and the consolidated results of their operations and their consolidated cash
flows for the fiscal years then ended. The unaudited consolidated balance sheet
of the Borrower and its consolidated Subsidiaries as at October 31, 1998 and the
related unaudited consolidated statements of income and of cash flows for the
nine-month period ended on such date, certified by a Responsible Officer, copies
of which have heretofore been furnished to each Lender, are complete and correct
and present fairly the consolidated financial condition of the Borrower and its
consolidated Subsidiaries as at such date, and the consolidated
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results of their operations and their consolidated cash flows for the
nine-month period then ended (subject to normal year-end audit
adjustments). All such financial statements, including the related
schedules and notes thereto, have been prepared in accordance with GAAP
applied consistently throughout the periods involved (except as
approved by such accountants or Responsible Officer, as the case may
be, and as disclosed therein). Neither the Borrower nor any of its
consolidated Subsidiaries had, at the date of the most recent balance
sheet referred to above, any material Guarantee Obligation, contingent
liability or liability for taxes, or any long-term lease or other
material agreement or unusual forward or long-term commitment,
including, without limitation, any interest rate or foreign currency
swap or exchange transaction, which is not reflected in the foregoing
statements or in the notes thereto. During the period from January 31,
1998 to and including the Closing Date (other than the Acquisition and
as set forth on Schedule 5.1(a) hereto) there has been no sale,
transfer or other disposition by the Borrower or any of its
consolidated Subsidiaries of any material part of its business or
property and no purchase or other acquisition of any business or
property (including any capital stock of any other Person) material in
relation to the consolidated financial condition of the Borrower and
its consolidated Subsidiaries at January 31, 1998.
(b) The Borrower has furnished the Lenders with copies of the
CMI (i) unaudited consolidated balance sheet as of September 30, 1998 (the
"Latest Balance Sheet") and the related consolidated statements of income and
cash flow for the four-month period then ended and (ii) audited consolidated
balance sheets and consolidated statements of income and cash flow for the
fiscal years ended May 31, 1998, 1997 and 1996. Each of the foregoing financial
statements (including in all cases the notes thereto, if any) (the "Financial
Statements") is correct and complete, presents fairly in all material respects
CMI"s and its Subsidiaries" financial condition and results of operations as of
the times and for the periods referred to therein, and except as set forth on
Schedule 5.1(b) hereto (the "Exceptions to GAAP Schedule") has been prepared in
accordance with generally accepted accounting principles consistently applied
("GAAP"), subject in the case of unaudited financial statements to changes
resulting from normal year-end audit adjustments and to the absence of footnote
disclosure. Without limiting the generality of the foregoing, with respect to
the Financial Statements (i) adequate provision has been made for doubtful
accounts; (ii) receivables and sales are stated net of discounts, returns and
allowances; and (iii) all items of income or expense that are unusual or of a
non-recurring nature are separately disclosed on the Financial Statements. As to
CMI and its Subsidiaries, no accounts payable have been written off since May
31, 1998 and no provision in the Financial Statements is necessary under GAAP
(except as otherwise disclosed therein) for liability for product warranties or
the manufacture or sale of defective products.
5.2 No Change; Solvency. Since January 31, 1998, there has
been no development or event which has had or could reasonably be expected to
have a Material Adverse Effect. As of the Closing Date, after giving effect to
the transactions contemplated by the Loan
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Documents, the Borrower and its Subsidiaries are solvent, on a
consolidated basis and on an individual basis.
5.3 Corporate Existence; Compliance with Law. Each of the
Borrower and the other Loan Parties (a) is duly organized, validly existing and
in good standing under the laws of the jurisdiction of its organization, (b) has
the corporate power and authority, and the legal right, to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification, except for jurisdictions in which the failure to so
qualify, in the aggregate, could not reasonably be expected to have a Material
Adverse Effect, and (d) is in compliance with all Requirements of Law except to
the extent that the failure to comply therewith could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
5.4 Corporate Power; Authorization; Enforceable Obligations.
Each of the Borrower and the other Loan Parties has the corporate power and
authority, and the legal right, to execute, deliver and perform the Loan
Documents to which it is a party and, in the case of the Borrower, to borrow
hereunder and each of the Borrower and the other Loan Parties has taken all
necessary corporate action to authorize the borrowings on the terms and
conditions of this Agreement and any Notes and to authorize the execution,
delivery and performance of the Loan Documents to which it is a party. No
consent or authorization of, filing with, notice to or other act by or in
respect of, any Governmental Authority or any other Person is required to be
received, made, given or completed by any of the Loan Parties in connection with
the borrowings hereunder or with the execution, delivery, performance, validity
or enforceability of the Loan Documents to which the Borrower or any of the
other Loan Parties is a party other than those set forth on Schedule 5.4 (which
consents, authorizations, filings, notices and other acts have been heretofore
received, made, given or completed). This Agreement has been duly executed and
delivered by the Borrower, and each of the other Loan Documents to which the
Borrower or any of the other Loan Parties is a party will be duly executed and
delivered by the Borrower or such other Loan Party. This Agreement constitutes a
legal, valid and binding obligation of the Borrower, and each other Loan
Document to which the Borrower or any of the other Loan Parties is a party, when
executed and delivered by the Borrower or such other Loan Party, will constitute
a legal, valid and binding obligation of the Borrower or such other Loan Party,
enforceable against the Borrower or such other Loan Party in accordance with its
terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.
5.5 No Legal Bar. The execution, delivery and performance of
the Loan Documents to which the Borrower or any of the other Loan Parties is a
party, the borrowings hereunder and the use of the proceeds thereof will not
violate any Requirement of Law or material Contractual Obligation of the
Borrower or of any of the other Loan Parties and will not result in, or require,
the creation or imposition of any Lien on any of its or their respective
properties or revenues pursuant to any such Requirement of Law or Contractual
Obligation (other than the Loan Documents).
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5.6 No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Borrower, threatened by or against the Borrower or any
of the other Loan Parties or against any of its or their respective properties
or revenues (a) with respect to any of the Loan Documents or any of the
transactions contemplated hereby or thereby or (b) which could reasonably be
expected to have a Material Adverse Effect.
5.7 No Default. Neither the Borrower nor any of the other Loan
Parties is in default under or with respect to any of its Contractual
Obligations in any respect which could reasonably be expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
5.8 Ownership of Property; Liens. Each of the Borrower and the
other Loan Parties has good record and marketable title in fee simple to, or a
valid leasehold interest in, all its material real property, and good title to,
or a valid leasehold interest in, all its other material property, and none of
such property is subject to any Lien except as permitted by subsection 8.3. The
properties encumbered by the Fee Mortgages constitute all of the material real
properties owned in fee by the Borrower and the other Loan Parties.
5.9 Intellectual Property. The Borrower and each of the other
Loan Parties owns, or is licensed to use, all trademarks, tradenames,
copyrights, technology, know-how and processes necessary for the conduct of its
business as currently conducted except for those the failure to own or license
which could not reasonably be expected to have a Material Adverse Effect (the
"Intellectual Property"). No claim has been asserted and is pending by any
Person challenging or questioning the use of any such Intellectual Property or
the validity or effectiveness of any such Intellectual Property, except for such
claims which, in the aggregate, could not reasonably be expected to have a
Material Adverse Effect, nor does the Borrower know of any valid basis for any
such claim. The use of such Intellectual Property by the Borrower and the other
Loan Parties does not infringe on the rights of any Person, except for such
infringements that, in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
5.10 No Burdensome Restrictions. No Requirement of Law (other
than ongoing compliance in the ordinary course of business with tax laws and
Environmental Laws to the extent that the existence thereof could be understood
to have a Material Adverse Effect) or Contractual Obligation of the Borrower or
any of the other Loan Parties could reasonably be expected to have a Material
Adverse Effect.
5.11 Taxes. Each of the Borrower and the other Loan Parties
has filed or caused to be filed all United States federal income tax returns and
all other material tax returns which, to the knowledge of the Borrower, are
required to be filed and has paid all taxes shown to be due and payable on said
returns or on any assessments made against it or any of its property and all
other taxes, fees or other charges imposed on it or any of its property by any
Governmental Authority (other than any taxes, fees or other charges (i) with
respect to which the failure to pay, in the aggregate, could not reasonably be
expected to have a Material Adverse Effect or (ii) the amount or validity of
which are currently being contested in good faith by appropriate
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proceedings and with respect to which reserves in conformity with GAAP have been
provided on the books of the Borrower or any of the other Loan Parties, as the
case may be); no tax Lien has been filed, and, to the knowledge of the Borrower,
no claim is being asserted, with respect to any such tax, fee or other charge.
5.12 Federal Regulations. No part of the proceeds of any Loans
or other extensions of credit hereunder have been or will be used "buying" or
"carrying" any "margin stock" within the respective meanings of each of the
quoted terms under Regulation U as now and from time to time after in effect or
for any purpose which violates the provisions of the Regulations of the Board,
including, without limitation, Regulation U thereunder. If requested by any
Lender or the Administrative Agent, the Borrower will furnish to the
Administrative Agent and each Lender a statement to the foregoing effect in
conformity with the requirements of FR Form U-1 referred to in said Regulation
U.
5.13 ERISA. Neither a Reportable Event nor an "accumulated
funding deficiency" (within the meaning of Section 412 of the Code or Section
302 of ERISA) has occurred during the five-year period prior to the date on
which this representation is made or deemed made with respect to any Plan, and
each Plan has complied in all material respects with the applicable provisions
of ERISA and the Code. No termination of a Single Employer Plan has occurred,
and no Lien in favor of the PBGC or a Plan has arisen, during such five year
period. The present value of all accrued benefits under all Single Employer
Plans taken as a whole does not exceed the value of the assets of such Single
Employer Plans by more than $75,000,000. Neither the Borrower nor any Commonly
Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan, except that on December 31, 1998, Hayes Lemmerz
International-Michigan, Inc. withdrew from National Industrial Group Pension
Plan in connection with which neither the Borrower nor any Commonly Controlled
Entity has incurred any material obligation or liability, and neither the
Borrower nor any Commonly Controlled Entity would become subject to any material
liability under ERISA if the Borrower or any such Commonly Controlled Entity
were to withdraw completely from all Multiemployer Plans as of the valuation
date most closely preceding the date on which this representation is made or
deemed made. As of the Closing Date, and to the knowledge of the Borrower on any
Borrowing Date thereafter, no such Multiemployer Plan is in Reorganization or
Insolvent.
5.14 Collateral. The provisions of each of the Security
Documents, when executed and delivered, will constitute in favor of the
Administrative Agent for the ratable benefit of the Lenders, a legal, valid and
enforceable security interest in all right, title, and interest of the Borrower
or any of the other Loan Parties which is a party to such Security Document, as
the case may be, in the Collateral described in such Security Document, in the
Intercreditor Agreement and in the Intercreditor/Lien Subordination Agreement.
As of the Closing Date, all Equipment and Inventory (as each of such terms is
defined in the Guarantee and Collateral Agreement) of the Borrower and each
other Loan Party will be kept at, or will be in transit to, the locations listed
on Schedule 5.14, and when financing statements have been filed in the offices
in the jurisdictions listed in Schedule 3 to the Guarantee and Collateral
Agreement, when appropriate filings have been made in the U.S. Patent and
Trademark Office and the U.S. Copyright Office, and when such other actions as
are each described in each of the Security Documents have been taken in
accordance with the Security Documents, each of the Security Documents shall
constitute a perfected security interest in all right, title and interest of the
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Borrower or such other Loan Parties, as the case may be, in the Collateral
described therein, in the Intercreditor Agreement and in the Intercreditor/Lien
Subordination Agreement, and except for Liens existing on the Closing Date which
are permitted by subsection 8.3 and whose priority cannot be superseded by the
provisions hereof or of any Security Document and the filings hereunder or
thereunder, a perfected first lien on, and security interest in, all right,
title and interest of the Borrower or such other Loan Parties, as the case may
be, in the Collateral described in each Security Document, in the Intercreditor
Agreement and in the Intercreditor/Lien Subordination Agreement.
5.15 Investment Company Act; Other Regulations. None of the
Borrowers is an "investment company", or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended. None of the Borrowers is subject to regulation under any Federal or
State statute or regulation (other than Regulation X of the Board) which limits
its ability to incur Indebtedness.
5.16 Subsidiaries and Joint Ventures. Schedule 5.16 hereto
sets forth all of the Subsidiaries of the Borrower, and all of the joint
ventures in which the Borrower or any of its Subsidiaries has an interest, at
the Closing Date, the jurisdiction of their incorporation and the direct or
indirect ownership interest of the Borrower therein.
5.17 Purpose of Loans. The Term Loans shall be used solely to
finance the Acquisition (including the refinancing of indebtedness in connection
therewith) and to pay related fees and expenses, provided that the proceeds of
Term Loans denominated in Deutschemarks or euro units will be used to repay
Revolving Credit Loans the proceeds of which shall have been used for the
foregoing purposes. The Revolving Credit Loans (and Competitive Loans) may be
used by the Borrower for the same purposes as the Term Loans (in an amount
(excluding amounts that will be repaid with the proceeds of Term Loans
denominated in Deutschemarks or euro units) not to exceed $200,000,000) as well
as for the general corporate purposes of the Borrower and its Subsidiaries. The
Swing Line Loans and Letters of Credit shall be used by the Borrower and its
Subsidiaries for ordinary course purposes.
5.18 Environmental Matters. Other than exceptions to any of
the following that would not, individually or in the aggregate, reasonably be
expected to give rise to a Material Adverse Effect:
(i) The Borrower and the other Loan Parties: (A) are, and
within the period of all applicable statutes of limitation have been, in
compliance with all applicable Environmental Laws; (B) hold all Environmental
Permits (each of which is in full force and effect) required for any of their
current operations or for any property owned, leased, or otherwise operated by
any of them and have no reason to believe that they will not be able to timely
obtain without material expense all such Environmental Permits required for
planned operations; (C) are, and within the period of all applicable statutes of
limitation have been, in compliance with all of their Environmental Permits; and
(D) have no reason to believe that: any of their Environmental Permits will not
be, or will entail material expense to be, timely renewed or complied with; any
additional Environmental Permits that may be required of any of them will not
be, or will entail material expense to be, timely granted or complied with; or
that compliance with any
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Environmental Law that is applicable to any of them will not be, or will entail
material expense to be, timely attained and maintained.
(ii) Materials of Environmental Concern have not been
generated, transported, disposed of, emitted, discharged, or otherwise released
or threatened to be released, to or at any real property presently or formerly
owned, leased or operated by the Borrower or any of the other Loan Parties or,
to the best knowledge of the Borrower, at any other location, which could
reasonably be expected to (A) give rise to liability of the Borrower or any of
the other Loan Parties under any applicable Environmental Law, or (B) interfere
with the Borrower's or any other Loan Party's planned or continued operations,
or (C) impair the fair saleable value of any real property owned or leased by
the Borrower or any other Loan Parties.
(iii) There is no judicial, administrative, or arbitral
proceeding (including any notice of violation or alleged violation) under any
Environmental Law to which the Borrower or any of the other Loan Parties is
named as a party that is pending or, to the knowledge of the Borrower,
threatened.
(iv) Neither the Borrower nor any of the other Loan Parties
has received any written request for information, or been notified that it is a
potentially responsible party, under the federal Comprehensive Environmental
Response, Compensation, and Liability Act or any similar Environmental Law, or
received any other written request for information with respect to any Materials
of Environmental Concern.
(v) Neither the Borrower nor any of the other Loan Parties has
entered into or agreed to any consent decree, order, or settlement or other
agreement, nor is subject to any judgment, decree, or order or other agreement,
in any judicial, administrative, arbitral, or other forum, relating to
compliance with or liability under any Environmental Law, as to which any
obligation has not been fully and finally resolved.
(vi) Neither the Borrower nor any of its Subsidiaries has
assumed or retained, by contract or, to the best knowledge of the Borrower, by
operation of law, any liabilities of any kind, fixed or contingent, known or
unknown, under any Environmental Law or with respect to any Material of
Environmental Concern.
5.19 Regulation H. Except as otherwise disclosed in writing to
the Administrative Agent, no Fee Mortgage or Leasehold Mortgage encumbers
improved real property which is located in an area that has been identified by
the Secretary of Housing and Urban Development as an area having special flood
hazards and in which flood insurance has been made available under the National
Flood Insurance Act of 1968.
5.20 No Material Misstatements. The written information,
reports, financial statements, exhibits and schedules furnished by or on behalf
of the Borrower and each other Loan Party to the Administrative Agent or the
other Managing Agents and the Lenders in connection with the negotiation of any
Loan Document or included therein or delivered pursuant thereto do not contain,
and will not contain as of the Closing Date, any material misstatement of fact
and do not, taken as a whole, omit, and will not, taken as a whole, omit as of
the Closing Date, to state any material fact necessary to make the statements
therein, in the light of the circumstances under
70
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which they were made, not materially misleading. It is understood that no
representation or warranty is made concerning the forecasts, estimates, pro
forma information, projections and statements as to anticipated future
performance or conditions, and the assumptions on which they were based,
contained in any such information, reports, financial statements, exhibits or
schedules, except that as of the date such forecasts, estimates, pro forma
information, projections and statements were generated, (a) such forecasts,
estimates, pro forma information, projections and statements were based on the
good faith assumptions of the management of the Borrower and (b) such
assumptions were believed by such management to be reasonable.
5.21 Labor Matters. There are no strikes pending or, to the
knowledge of the Borrower, threatened against the Borrower or any other Loan
Party which, individually or in the aggregate, would reasonably be expected to
have a Material Adverse Effect. The hours worked and payments made to employees
of the Borrower and each other Loan Party have not been in violation of any
applicable laws, rules or regulations, except where such violations would not
reasonably be expected to have a Material Adverse Effect.
5.22 Year 2000. Any reprogramming required to permit the
proper functioning, in and following the year 2000, of the Borrower's (i)
computer systems and (ii) equipment containing embedded microchips and the
testing of all such systems and equipment, as so reprogrammed, will be completed
by October 31, 1999. The Borrower has not received any written notice and no
senior systems officer has received any oral notice from any Person with regard
to systems and equipment supplied by others or with which the Borrower's systems
interface that any of such systems or equipment will not be Year 2000 compliant
on or before November 30, 1999. The reasonably estimated cost to the Borrower of
such reprogramming and testing and of the reasonably foreseeable consequences of
year 2000 to the Borrower is not reasonably likely to result in an Event of
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 Borrower and its Subsidiaries are and,
with such upgrading and maintenance as the Borrower reasonably determines is
necessary, will continue for the term of this Agreement to be, sufficient to
permit the Borrower to conduct its business without a Material Adverse Effect.
SECTION 6. CONDITIONS PRECEDENT
6.1 Conditions to Effectiveness. The effectiveness of the
agreement of each Lender to make and/or continue the Loans or other extensions
of credit requested to be made and/or continued by it hereunder is subject to
the satisfaction, immediately prior to or concurrently with the making and/or
continuation of such Loans or other extensions of credit on the Closing Date
(provided that the Closing Date shall occur on or before March 1, 1999), of the
following conditions precedent:
(a) Loan Documents. The Administrative Agent shall have
received on or prior to the Closing Date (i) this Agreement, executed
and delivered by a duly authorized officer of the Borrower, with a
counterpart for each Lender, (ii) for the account of each of the
Lenders which has requested a Note pursuant to the terms hereof, a
Revolving Credit Note, a Swing Line Note or a Term Note, as the case
may be, each conforming to the
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requirements hereof and executed and delivered by a duly authorized
officer of the Borrower, (iii) the Guarantee and Collateral Agreement,
executed and delivered by a duly authorized officer of each party
thereto, with a counterpart or a conformed copy for each Lender, (iv)
the Copyright, Patent and Trademark Security Agreement, executed and
delivered by a duly authorized officer of the Borrower and the other
signatories thereto, with a counterpart or a conformed copy for each
Lender, (v) such amendments to the Mortgages existing prior to the
Closing Date as may be reasonably requested by the Administrative
Agent, each executed and delivered by a duly authorized officer of each
party thereto, with a counterpart or conformed copy for each Lender,
(vi) Mortgages in respect of the real property acquired by the Borrower
and its Subsidiaries pursuant to the Acquisition, each executed and
delivered by a duly authorized officer of each party thereto, with a
counterpart or conformed copy for each Lender, (vii) the Mexican Stock
Pledge Agreement, executed and delivered by a duly authorized officer
of each party thereto, with a counterpart or conformed copy for each
Lender and (viii) such confirmations of the Foreign Stock Pledge
Agreements as the Administrative Agent may reasonably request, each
executed and delivered by a duly authorized officer of each party
thereto, with a counterpart or conformed copy for each Lender.
(b) Existing Indebtedness. Other than obligations outstanding
under the Prior Credit Agreement, all principal, interest, fees and
other amounts outstanding under the Refinanced Debt shall have been
repaid in full, the commitments thereunder terminated and all
guarantees thereof and security therefor released, and the Arrangers
shall have received reasonably satisfactory evidence thereof, and after
giving effect to the Transactions and the other transactions
contemplated hereby, the Borrower, CMI and their respective
Subsidiaries shall have outstanding no Indebtedness or preferred
Capital Stock other than (a) the loans under the credit facilities
provided for herein, (b) the Senior Subordinated Notes, (c) certain
existing Indebtedness of Foreign Subsidiaries, (d) certain existing
other Indebtedness, guarantees or other obligations (contingent or
otherwise) of Foreign Subsidiaries and (e) other Indebtedness or
preferred Capital Stock permitted or not prohibited herein.
(c) Financial Information. On or prior to the Closing Date,
the Lenders shall have received copies of and shall be reasonably
satisfied, in form and substance, with the financial statements
referred to in subsection 5.1, including, without limitation, the Pro
Forma Balance Sheet. The financial statements referred to in subsection
5.1(b) and the Pro Forma Balance Sheet, in each case, shall not be
materially inconsistent with the applicable forecasts previously
provided to the Lenders.
(d) Borrowing Certificate. On or prior to the Closing Date,
the Administrative Agent shall have received, with a counterpart for
each Lender, a certificate of the Borrower, dated the Closing Date,
substantially in the form of Exhibit C, with appropriate insertions and
attachments, satisfactory in form and substance to the Administrative
Agent, executed by the President or any Vice President and the
Secretary or any Assistant Secretary of the Borrower.
(e) Corporate Proceedings of the Loan Parties. On or prior to
the Closing Date, the Administrative Agent shall have received, with a
counterpart for each Lender, a
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copy of the resolutions, in form and substance satisfactory to the
Administrative Agent, of the Board of Directors of each of the Loan
Parties authorizing (i) the execution, delivery and performance of this
Agreement and the other Loan Documents to which it is a party, (ii) in
the case of the Borrower, the borrowings contemplated hereunder and
(iii) the granting by it of the Liens created pursuant to the Security
Documents, certified by the Secretary or an Assistant Secretary of such
Loan Party as of the Closing Date, which certificate shall be in form
and substance satisfactory to the Administrative Agent and shall state
that the resolutions thereby certified have not been amended, modified,
revoked or rescinded.
(f) Incumbency Certificate of the Loan Parties. On or prior to
the Closing Date, the Administrative Agent shall have received, with a
counterpart for each Lender, a certificate of each of the Loan Parties,
dated the Closing Date, as to the incumbency and signature of the
officers of such Loan Party executing any Loan Document satisfactory in
form and substance to the Administrative Agent, executed by the
President or any Vice President and the Secretary or any Assistant
Secretary of such Loan Party.
(g) Corporate Documents. On or prior to the Closing Date, the
Administrative Agent shall have received, with a counterpart for each
Lender, true and complete copies of the certificate of incorporation
and by-laws of each of the Loan Parties, certified as of the Closing
Date as complete and correct copies thereof by the Secretary or an
Assistant Secretary of such Loan Party (provided that if a Loan Party
has previously provided any of such documents to the Administrative
Agent and such documents have not been amended, supplemented or
otherwise modified since such time, then such Loan Party may so certify
to the Lenders rather than delivering to the Administrative Agent an
additional copy of such document).
(h) Consents, Licenses and Approvals. On or prior to the
Closing Date, the Administrative Agent shall have received a
certificate of a Responsible Officer of the Borrower stating that all
consents, licenses and filings referred to in subsection 5.4 are in
full force and effect.
(i) Fees. The Administrative Agent and the Lenders shall have
received the fees to be received on the Closing Date referred to in
subsection 2.4.
(j) Legal Opinions. On or prior to the Closing Date, the
Administrative Agent shall have received, with a counterpart for each
Lender, the executed legal opinion of the general counsel or assistant
general counsel of the Borrower, substantially in the form of Exhibit
D, with such changes thereto as may be approved by the Administrative
Agent. Such legal opinion shall cover such other matters incident to
the transactions contemplated by this Agreement as the Administrative
Agent may reasonably require.
(k) Pledged Stock; Stock Powers; Pledged Notes. The
Administrative Agent shall possess the certificates representing the
shares pledged pursuant to the Guarantee and Collateral Agreement and
the Foreign Stock Pledge Agreements, together with an undated stock
power for each such certificate executed in blank by a duly authorized
officer of the pledgor thereof, and the notes pledged pursuant to the
Guarantee
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and Collateral Agreement, each endorsed in blank by a duly authorized
officer of the pledgor thereof, and each of the pledgors to the Foreign
Stock Pledge Agreements shall have consented to the terms of this
Agreement and confirmed its pledge in connection herewith.
(l) Actions to Perfect Liens. On or prior to the Closing Date,
the Administrative Agent shall have received evidence in form and
substance satisfactory to it that all filings, recordings,
registrations and other actions, including, without limitation, the
filing of duly executed financing statements on Form UCC-1, necessary
or, in the opinion of the Administrative Agent, desirable to perfect
the Liens created by the Security Documents shall have been completed
or that all such financing statements and other documents with respect
to such filings, recordings, registrations and other actions shall have
been delivered to the Administrative Agent.
(m) Transactions. The Transactions shall have been consummated
or shall be consummated simultaneously on the Closing Date, in each
case in all material respects in accordance with the terms hereof and
the terms of the relevant documentation therefor (and without the
waiver of any such terms).
(n) Solvency Opinion. The Arrangers and the Lenders shall have
received an opinion, reasonably satisfactory in all respects to the
Lenders and the Arrangers, from an independent valuation firm
reasonably satisfactory to the Lenders and the Arrangers, to the effect
that, after giving effect to the Transactions, the Borrower and its
Subsidiaries will not (a) be insolvent, (b) be rendered insolvent by
the indebtedness incurred in connection therewith, (c) be left with
unreasonably small capital with which to engage in its business or (d)
have incurred debts beyond its ability to pay such debts as they
mature;
(o) Structure; Insurance. The Arrangers shall be satisfied
that there shall not have occurred any material change in the capital,
corporate and organizational structure of the Borrower, CMI and their
respective subsidiaries (after giving effect to the Transactions), and
the Borrower shall have obtained insurance in compliance with the terms
hereof.
6.2 Conditions to Each Extension of Credit. The agreement of
each Lender to make any Loan or any other extension of credit requested to be
made by it on any date (including, without limitation, its initial extension of
credit), and of the Issuing Lender to issue any Letter of Credit requested to be
issued by it on any date, is subject to the satisfaction of the following
conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by the Borrower and any other Loan
Party in or pursuant to the Loan Documents shall be true and correct in
all material respects on and as of such date as if made on and as of
such date, except for representations and warranties stated to relate
to a specific earlier date, in which case such representations and
warranties shall be true and correct in all material respects on and as
of such earlier date.
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(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
extensions of credit requested to be made on such date.
(c) Additional Matters. All corporate and other proceedings,
and all documents, instruments and other legal matters in connection
with the transactions contemplated by this Agreement and the other Loan
Documents shall be satisfactory in form and substance to the
Administrative Agent, and the Administrative Agent shall have received
such other documents and legal opinions in respect of any aspect or
consequence of the transactions contemplated hereby or thereby as it
shall reasonably request.
Each borrowing by and Letter of Credit issued on behalf of the Borrower
hereunder shall constitute a representation and warranty by the Borrower as of
the date thereof that the conditions contained in this subsection have been
satisfied.
SECTION 7. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, on and after the Closing Date
and so long as the Commitments remain in effect or any Letter of Credit remains
outstanding and unpaid or any amount is owing to any Lender or the
Administrative Agent hereunder or under any other Loan Document, the Borrower
shall and (except in the case of delivery of financial information, reports and
notices) shall cause each of its Subsidiaries to:
7.1 Financial Statements. Furnish to each Lender:
(a) as soon as available, but in any event within 90 days
after the end of each fiscal year of the Borrower, a copy of the
Consolidated and Consolidating balance sheets of the Borrower and its
consolidated Subsidiaries as at the end of such year and the related
Consolidated and Consolidating statements of income and Consolidated
statements of retained earnings and of cash flows for such year,
setting forth (i) in the case of such Consolidated balance sheet, in
comparative form the budgeted figures as at the end of such fiscal year
and the figures as at the end of the previous fiscal year and (ii) in
the case of such Consolidated statements of income and of cash flows,
in comparative form the budgeted figures for such fiscal year and the
figures for the previous fiscal year, reported on, in the case of such
Consolidated financial statements, without a "going concern" or like
qualification or exception, or qualification arising out of the scope
of the audit, by KPMG Peat Marwick or other independent certified
public accountants of nationally recognized standing; and
(b) as soon as available, but in any event within 45 days
after the end of each of the first three quarterly periods of each
fiscal year of the Borrower, the unaudited Consolidated balance sheets
of the Borrower and its consolidated Subsidiaries as at the end of such
quarter and the related unaudited Consolidated statements of income and
of cash flows of the Borrower and its consolidated Subsidiaries for
such quarter and the portion of the fiscal year through the end of such
quarter, setting forth (i) in the case of such Consolidated balance
sheet, in comparative form the budgeted figures as at the end
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of such quarter and the figures as at the end of the corresponding
quarter of the previous fiscal year and (ii) in the case of such
Consolidated statements of income and of cash flows, in comparative
form the budgeted figures for such quarter and the figures for the
corresponding quarter of the previous fiscal year, certified by a
Responsible Officer as being fairly stated in all material respects
(subject to normal year-end audit adjustments);
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or Responsible Officer, as the
case may be, and disclosed therein).
7.2 Certificates; Other Information. Furnish to each Lender:
(a) concurrently with the delivery of the financial statements
referred to in subsection 7.1(a), a certificate of the independent
certified public accountants reporting on such financial statements
stating that in connection with their audit nothing has come to their
attention to cause them to believe that the Borrower or any of its
Subsidiaries failed to comply with the covenants contained in Section
8; provided that such audit shall not have been directed primarily
toward obtaining knowledge of such noncompliance, except as specified
in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsections 7.1(a) and (b), a certificate of a
Responsible Officer ("Compliance Certificate") stating that, to the
best of such Officer's knowledge, during such period (i) no Subsidiary
has been formed or acquired (or, if any such Subsidiary has been formed
or acquired, the Borrower has complied with the requirements of
subsection 7.10 with respect thereto), (ii) neither the Borrower nor
any of its Subsidiaries has changed its name, its principal place of
business, its chief executive office or the location of any material
item of tangible Collateral without complying with the requirements of
this Agreement and the Security Documents with respect thereto, (iii)
the Borrower has observed or performed all of its covenants and other
agreements, and satisfied every condition, contained in this Agreement
and the other Loan Documents to be observed, performed or satisfied by
it, and (iv) the Borrower has set forth in reasonable detail any and
all calculations necessary to show compliance with subsection 2.1(a)
(including, but not limited to, the proviso therein (for which the
Borrower shall calculate and provide the Dollar Equivalent Amount of
the Aggregate Outstanding Revolving Credit for the first day of the
thirty-day compliance period provided for therein)) and all of the
financial condition covenants set forth in subsections 8.1 and 8.9,
including, without limitation, calculations and reconciliations, if
any, necessary to show compliance with such financial condition
covenants on the basis of generally accepted accounting principles in
the United States consistent with those utilized in preparing the
audited financial statements referred to in subsection 5.1, and that
such Officer has obtained no knowledge of any Default or Event of
Default except as specified in such certificate;
(c) not later than 45 days after the end of each fiscal year
of the Borrower, a copy of the projections by the Borrower of the
balance sheet, statement of income and statement of cash flows on a
consolidated basis of the Borrower and its Subsidiaries for
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each of the next succeeding two fiscal years, such projections to be
accompanied by a certificate of a Responsible Officer to the effect
that such projections have been prepared on the basis of sound
financial planning practice and that such Officer has no reason to
believe they are incorrect or misleading in any material respect;
(d) within five days after the same are sent, copies of all
financial statements and reports which the Borrower sends to its
stockholders generally, and within five days after the same are filed,
copies of all financial statements and reports which the Borrower may
make to, or file with, the Securities and Exchange Commission or any
successor or analogous Governmental Authority; and
(e) promptly, such additional financial and other information
as any Lender may from time to time reasonably request.
7.3 Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all its obligations of whatever nature, including, without limitation,
taxes, except where (a) 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 Borrower
or its Subsidiaries, as the case may be, or (b) the failure to so pay, discharge
or otherwise satisfy such obligations could not, in the aggregate, be reasonably
be expected to have a Material Adverse Effect.
7.4 Conduct of Business and Maintenance of Existence. Continue
to engage in business of the same general type as now conducted by it and
preserve, renew and keep in full force and effect its corporate existence and
take all reasonable action to maintain all rights, privileges and franchises
necessary or desirable in the normal conduct of its business except as otherwise
permitted pursuant to subsection 8.5; comply with all Contractual Obligations
and Requirements of Law except to the extent that failure to comply therewith
could not, in the aggregate, be reasonably expected to have a Material Adverse
Effect.
7.5 Maintenance of Property; Insurance. Keep all property
useful and necessary in its business in good working order and condition,
reasonable wear and tear excepted; maintain with financially sound and reputable
insurance companies insurance on all the Collateral in accordance with the
requirements of Section 5.3 of the Guarantee and Collateral Agreement, Section 5
of each of the Fee Mortgages and Section 5 of each of the Leasehold Mortgages
and on all its other property in at least such amounts (including as to amounts
of deductibles) and against at least such risks (but including in any event
commercial general liability, product liability and business interruption) as
are usually insured against in the same general area by companies engaged in the
same or a similar business; and furnish to each Lender, upon written request,
full information as to the insurance carried.
7.6 Inspection of Property; Books and Records; Discussions.
Keep proper books of records and account in which full, true and correct entries
in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities; and permit
representatives of any Lender to visit and inspect any of its properties and
examine and make abstracts from any of its books and records at any reasonable
time and upon reasonable notice and as often as may reasonably be desired and to
discuss the business,
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operations, properties and financial and other condition of the Borrower and its
Subsidiaries with officers and employees of the Borrower and its Subsidiaries
and with its independent certified public accountants (provided that any
officers or employees of the Borrower shall be permitted to be present at any
such discussions between representatives of any Lender and the Borrower's
independent certified public accountants).
7.7 Notices. Promptly give notice to the Administrative Agent
and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries, including,
without limitation, under the Senior Subordinated Notes or (ii)
litigation, investigation or proceeding which may exist at any time
between the Borrower or any of its Subsidiaries and any Governmental
Authority, which in either case, if not cured or if adversely
determined, as the case may be, could reasonably be expected to have a
Material Adverse Effect;
(c) any litigation or proceeding affecting the Borrower or any
of its Subsidiaries (i) in which the amount involved is $30,000,000 or
more and not covered by insurance or (ii) in which injunctive or
similar relief is sought which could reasonably be expected to have a
Material Adverse Effect;
(d) the following events, as soon as possible and in any event
within 30 days after the Borrower knows or has reason to know thereof:
(i) the occurrence or expected occurrence of any Reportable Event with
respect to any Plan, a failure to make any required contribution to a
Plan, the creation of any Lien in favor of the PBGC or a Plan or any
withdrawal from, or the termination, Reorganization or Insolvency of,
any Multiemployer Plan or (ii) the institution of proceedings or the
taking of any other action by the PBGC or the Borrower or any Commonly
Controlled Entity or any Multiemployer Plan with respect to the
withdrawal from, or the terminating, Reorganization or Insolvency of,
any Plan;
(e) any material adverse change in the business, operations,
property, condition (financial or otherwise) or prospects of the
Borrower and its Subsidiaries taken as a whole; and
(f) as soon as possible after a Responsible Officer of the
Borrower knows or reasonably should know thereof, (i) any release or
discharge by the Borrower or any of its Subsidiaries of any Materials
of Environmental Concern required to be reported under applicable
Environmental Laws to any Governmental Authority, unless the Borrower
reasonably determines that the total Environmental Costs arising out of
such release or discharge are unlikely to exceed $30,000,000 or to have
a Material Adverse Effect; (ii) any condition, circumstance, occurrence
or event not previously disclosed in writing to the Administrative
Agent that could result in liability under applicable Environmental
Laws unless the Borrower reasonably determines that the total
Environmental Costs arising out of such condition, circumstance,
occurrence or event are unlikely to exceed
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$30,000,000 or to have a Material Adverse Effect, or could result in
the imposition of any Lien or other restriction on the title, ownership
or transferability of any facilities and properties owned, leased or
operated by the Borrower or any of its Subsidiaries that could
reasonably be expected to have a Material Adverse Effect; and (iii) any
proposed action to be taken by the Borrower or any of its Subsidiaries
that would reasonably be expected to subject the Borrower or any of its
Subsidiaries to any material additional or different requirements or
liabilities under Environmental Laws, unless the Borrower determines
that the total Environmental Costs arising out of such proposed action
are unlikely to exceed $30,000,000 or to have a Material Adverse
Effect.
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Borrower proposes to take with respect thereto.
7.8 Environmental Laws. (a) (i) Comply substantially with, and
undertake all reasonable efforts to ensure substantial compliance by all
tenants, subtenants, and contractors with, all applicable Environmental Laws;
(ii) obtain, comply substantially with and maintain any and all Environmental
Permits necessary for its operations as conducted and as planned; and (iii)
undertake all reasonable efforts to ensure that all tenants, subtenants, and
contractors obtain, comply substantially with and maintain any and all
Environmental Permits necessary for their operations as conducted and as
planned, with respect to any property leased or subleased from, or operated by
the Borrower or its Subsidiaries. For purposes of this subsection 7.8(a), the
Borrower and its Subsidiaries shall be deemed to comply substantially, or
require substantial compliance, with an Environmental Law or an Environmental
Permit, provided that they comply with subsection 7.8(c) and that, upon learning
of any actual or suspected noncompliance, the Borrower and any such affected
Subsidiary shall promptly undertake all reasonable efforts, if any, to achieve
compliance, and provided, further, that in any case such noncompliance would not
reasonably be expected to have a Material Adverse Effect.
(b) Promptly comply with all orders and directives of all
Governmental Authorities regarding Environmental Laws, other than any such order
or directive as to which an appeal or other appropriate contest is or has been
timely and properly taken, is being diligently pursued in good faith, and the
pendency of such appeal or other appropriate contest would not reasonably be
expected to have a Material Adverse Effect.
(c) Maintain, update as appropriate, and implement in all
material respects an environmental program reasonably designed to (i) ensure
that the Borrower, its Subsidiaries, any of their respective operations
(including, without limitation, disposal), and any properties owned, leased or
operated by any of them, attain and remain in substantial compliance with all
applicable Environmental Laws and (ii) reasonably and prudently manage any
liabilities or potential liabilities that the Borrower, any of the other Loan
Parties, any of their respective operations (including, without limitation,
disposal), and any properties owned or leased by any of them, may have under all
applicable Environmental Laws.
7.9 Further Assurances. Upon the reasonable request of the
Administrative Agent, promptly perform or cause to be performed any and all acts
and execute or cause to be executed any and all documents (including, without
limitation, financing statements and
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continuation statements) for filing under the provisions of the Uniform
Commercial Code or any other Requirement of Law which are reasonably necessary
or advisable to maintain in favor of the Administrative Agent, for the benefit
of the Lenders, Liens on the Collateral that are duly perfected in accordance
with all applicable Requirements of Law.
7.10 Additional Collateral. (a) With respect to any assets (or
any interest therein) acquired after the Closing Date by the Borrower or any of
its Subsidiaries (excluding (x) real estate (including leasehold interests
therein) the fair market value of which is less than $2,000,000 per parcel, (y)
any assets described in paragraph (b) or (c) of this subsection and (z) any
asset acquired by a Foreign Subsidiary) as to which the Administrative Agent,
for the benefit of the Lenders, does not have a perfected Lien, promptly (and in
any event within 30 days after the acquisition thereof): (i) execute and deliver
to the Administrative Agent such amendments to the relevant Security Documents
or such other documents as the Administrative Agent shall deem necessary or
advisable to grant to the Administrative Agent, for the benefit of the Lenders,
a Lien on such assets (or such interest therein), (ii) take all actions
necessary or advisable to cause such Lien to be duly perfected in accordance
with all applicable Requirements of Law, including, without limitation, the
filing of financing statements and the recording of Mortgages in such
jurisdictions as may be requested by the Administrative Agent (provided that the
Borrower and its Subsidiaries shall not be required to deliver certificates to
the Administrative Agent in respect of (A) any foreign joint venture equity
interest (i.e. an equity interest of 50% or less of the outstanding equity
interests of a joint venture) owned by (x) the Borrower and/or any Domestic
Subsidiary or Subsidiaries the fair market value of which is less than
$30,000,000 or (y) any Foreign Subsidiary, (B) any domestic joint venture equity
interest (i.e. an equity interest of 50% or less of the outstanding equity
interests of a joint venture) owned by the Borrower and/or any Domestic
Subsidiary, the fair market value of which is less than $2,000,000 or (C) any
joint venture equity interest with respect to which such delivery is prohibited
by the organizational documents of such joint venture), (iii) if requested by
the Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described in clauses (i) and (ii) immediately preceding,
which opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Administrative Agent, and (iv) if reasonably requested by
the Administrative Agent, deliver to the Administrative Agent surveys, title
insurance and flood insurance.
(b) With respect to any Person that, subsequent to the Closing
Date, becomes a Subsidiary (other than a Foreign Subsidiary and provided that a
Subsidiary shall not be required to comply with the provisions of this
subsection 7.10(b) until such time as the fair market value of its assets is
greater than $2,000,000), promptly: (i) execute and deliver to the
Administrative Agent, for the benefit of the Lenders, a new Pledge Agreement or
such amendments to the Guarantee and Collateral Agreement as the Administrative
Agent shall deem necessary or advisable to grant to the Administrative Agent,
for the benefit of the Lenders, a Lien on the Capital Stock of such Subsidiary
which is owned by the Borrower or any of its Subsidiaries, (ii) deliver to the
Administrative Agent the certificates representing such Capital Stock, together
with undated stock powers executed and delivered in blank by a duly authorized
officer of the Borrower or such Subsidiary, as the case may be, (iii) cause such
new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement
or to a new Security Agreement, in each case pursuant to an annex to the
Guarantee and Collateral Agreement or otherwise pursuant to documentation which
is in form and substance satisfactory to the Administrative Agent, and (B)
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to take all actions necessary or advisable to cause the Lien created by the
Guarantee and Collateral Agreement or such Security Agreement to be duly
perfected in accordance with all applicable Requirements of Law, including,
without limitation, the filing of financing statements in such jurisdictions as
may be requested by the Administrative Agent and (iv) if requested by the
Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described in clauses (i), (ii) and (iii) immediately
preceding, which opinions shall be in form and substance, and from counsel,
reasonably satisfactory to the Administrative Agent.
(c) With respect to any Person that subsequent to the Closing
Date becomes a Foreign Subsidiary (provided that the requirements of this
subsection 7.10(c) need not be complied with until such time as the aggregate
fair market value of the assets of such Foreign Subsidiary is greater than
$2,000,000) shares of the Capital Stock of which are owned directly by the
Borrower or a Domestic Subsidiary, promptly upon the request of the
Administrative Agent: (i) execute and deliver to the Administrative Agent a new
Pledge Agreement or such amendments to the Collateral and Guarantee Agreement as
the Administrative Agent shall deem necessary or advisable to grant to the
Administrative Agent, for the benefit of the Lenders, a Lien on the Capital
Stock of such Subsidiary (provided that in no event shall more than 65% of the
Capital Stock of any such Subsidiary be required to be so pledged), (ii) deliver
to the Administrative Agent any certificates representing such Capital Stock,
together with undated stock powers executed and delivered in blank by a duly
authorized officer of the Borrower or such Subsidiary, as the case may be, and
take or cause to be taken all such other actions under the law of the
jurisdiction of organization of such Foreign Subsidiary as may be necessary or
advisable to perfect such Lien on such Capital Stock and (iii) if requested by
the Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described in clauses (i) and (ii) immediately preceding,
which opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Administrative Agent.
(d) At its own expense, request, and use reasonable efforts to
obtain, prior to entering into a lease of a facility located in the United
States at which Inventory of any of the Loan Parties the fair market value of
which exceeds $5,000,000 will be located on or after the Closing Date, a
consent, in such form as may be reasonably satisfactory to the Administrative
Agent, from the landlord of each such facility, pursuant to which such landlord
acknowledges the Administrative Agent's first priority security interest in such
Inventory.
7.11 Title Insurance. Within 30 days after the Closing Date,
deliver to the Administrative Agent all title insurance, surveys and customary
related documents in connection with the Mortgages and amendments to the
Mortgages.
SECTION 8. NEGATIVE COVENANTS
The Borrower hereby agrees that on and after the Closing Date
and, so long as the Commitments remain in effect or any Letter of Credit remains
outstanding and unpaid or any amount is owing to any Lender or the
Administrative Agent hereunder or under any other Loan Document, the Borrower
shall not, and (except with respect to subsection 8.1) shall not permit any of
its Subsidiaries to, directly or indirectly:
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8.1 Financial Condition Covenants.
(a) Leverage Ratio. Permit the Leverage Ratio as of the end of
each fiscal quarter of the Borrower set forth below to be greater than
the ratio set forth opposite such fiscal quarter set forth below:
Fiscal Quarter Leverage Ratio
1999 1st 5.50 to 1.00
2nd 5.50 to 1.00
3rd 5.25 to 1.00
4th 5.25 to 1.00
2000 1st 5.00 to 1.00
2nd 5.00 to 1.00
3rd 4.75 to 1.00
4th 4.75 to 1.00
2001 1st 4.50 to 1.00
2nd 4.25 to 1.00
3rd 4.00 to 1.00
4th 3.75 to 1.00
2002 1st 3.50 to 1.00
2nd 3.50 to 1.00
3rd 3.50 to 1.00
4rd 3.50 to 1.00
2003 1st 3.25 to 1.00
2nd 3.25 to 1.00
3rd 3.25 to 1.00
4rd 3.25 to 1.00
2004 1st 3.25 to 1.00
2nd 3.25 to 1.00
3rd 3.25 to 1.00
4th 3.25 to 1.00
(b) Interest Coverage Ratio. Permit the Interest Coverage
Ratio as of the end of each fiscal quarter of the Borrower set forth
below to be less than the ratio set forth opposite such fiscal quarter
set forth below:
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Fiscal Quarter Interest Coverage Ratio
1999 1st 2.00 to 1.00
2nd 2.00 to 1.00
3rd 2.00 to 1.00
4th 2.00 to 1.00
2000 1st 2.00 to 1.00
2nd 2.00 to 1.00
3rd 2.25 to 1.00
4th 2.25 to 1.00
2001 1st 2.25 to 1.00
2nd 2.25 to 1.00
3rd 2.50 to 1.00
4th 2.75 to 1.00
2002 1st 2.75 to 1.00
2nd 2.75 to 1.00
3rd 3.00 to 1.00
4th 3.00 to 1.00
2003 1st 3.00 to 1.00
2nd 3.00 to 1.00
3rd 3.00 to 1.00
4th 3.00 to 1.00
2004 1st 3.00 to 1.00
2nd 3.00 to 1.00
3rd 3.00 to 1.00
4th 3.00 to 1.00
(c) Fixed Charge Coverage Ratio. Permit the Fixed Charge
Coverage Ratio as of the end of each fiscal quarter of the Borrower set
forth below to be less than the ratio set forth opposite such fiscal
quarter set forth below:
Fiscal Quarter Fixed Charge Coverage Ratio
1999 1st 1.00 to 1.00
2nd 1.00 to 1.00
3rd 1.00 to 1.00
4th 1.00 to 1.00
2000 1st 1.00 to 1.00
2nd 1.00 to 1.00
3rd 1.05 to 1.00
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4th 1.05 to 1.00
2001 1st 1.05 to 1.00
2nd 1.05 to 1.00
3rd 1.05 to 1.00
4th 1.05 to 1.00
2002 1st 1.05 to 1.00
2nd 1.05 to 1.00
3rd 1.05 to 1.00
4th 1.10 to 1.00
2003 1st 1.10 to 1.00
2nd 1.10 to 1.00
3rd 1.10 to 1.00
4th 1.15 to 1.00
2004 1st 1.15 to 1.00
2nd 1.15 to 1.00
3rd 1.15 to 1.00
4th 1.15 to 1.00
8.2 Limitation on Indebtedness. Create, incur, assume or
suffer to exist any Indebtedness, except:
(a) Indebtedness of the Borrower and its Subsidiaries under
this Agreement and any Notes (including, without limitation, Swing Line
Loans in an aggregate principal amount not to exceed $100,000,000);
(b) Indebtedness of the Borrower to any Subsidiary and of any
Subsidiary to the Borrower or any other Subsidiary;
(c) Dollar Indebtedness evidenced by the Borrower Notes and
the Senior Subordinated Notes and, in the case of such Borrower Notes,
any refinancings, refundings, renewals or extensions thereof; provided
that the amount of such Indebtedness is not increased at the time of
such refinancing, refunding, renewal or extension of such Borrower
Notes and the terms and conditions thereof (including, without
limitation, terms and conditions relating to the interest rate, fees,
amortization, maturity, subordination (provided that such terms and
conditions relating to subordination are no less favorable to the
Lenders than those of such Borrower Notes), covenants, events of
default and remedies) are no less favorable to the Borrower than those
of such Borrower Notes as in effect on the Closing Date;
(d) Dollar Indebtedness and Non-Dollar Indebtedness of the
Borrower and its Subsidiaries under Permitted Hedging Arrangements
permitted by subsection 8.15;
(e) Indebtedness of the Borrower and the Guarantor
Subsidiaries outstanding on the Closing Date listed on Schedule 8.2(e)
and any refinancings,
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refundings, renewals or extensions thereof; provided that the amount of
such Indebtedness is not increased at the time of such refinancing,
refunding, renewal or extension;
(f) Indebtedness of a Person which becomes a Guarantor
Subsidiary after the Closing Date; provided that (i) such Indebtedness
existed at the time such Person became a Subsidiary and was not created
in anticipation thereof and (ii) immediately after giving effect to the
acquisition of such Person by the Borrower or a Subsidiary no Default
or Event of Default shall have occurred and be continuing, and any
refinancings, refundings, renewals or extensions thereof; provided that
the amount of such Indebtedness is not increased at the time of such
refinancing, refunding, renewal or extension;
(g) Indebtedness of the Borrower or any of its Guarantor
Subsidiaries incurred to finance the acquisition of fixed or capital
assets (whether pursuant to a loan, a Financing Lease or otherwise) in
an aggregate principal amount not exceeding as to the Borrower and its
Guarantor Subsidiaries $125,000,000 at any time outstanding;
(h) Indebtedness of the Borrower and its Subsidiaries under
uncommitted lines of credit in an aggregate outstanding principal
Dollar Equivalent Amount not exceeding at any time the lesser of (i)
the then Available Revolving Credit Commitments (other than any such
Available Revolving Credit Commitments required to be maintained
pursuant to subsection 4.3(h)) and (ii) $50,000,000;
(i) Indebtedness incurred by the Borrower or any of its
Subsidiaries in connection with a Permitted Receivable Financing;
provided that the Net Cash Proceeds of such Indebtedness shall be
applied to make mandatory prepayments of the Loans or pay or prepay
other outstanding Indebtedness of the Borrower and its Guarantor
Subsidiaries pursuant to subsection 4.3(b);
(j) Indebtedness of the Borrower and its Guarantor
Subsidiaries in an aggregate amount not in excess of $110,000,000 in
connection with synthetic leases secured in accordance with subsection
8.3(p);
(k) Dollar Indebtedness of the Borrower incurred in respect of
senior subordinated notes issued in one or more series in an aggregate
principal amount not to exceed $400,000,000 on terms and conditions
substantially similar to the December 1998 Senior Subordinated Notes
except that the interest rate payable thereon shall be based on market
conditions at the date of incurrence; provided that the Net Cash
Proceeds of such Indebtedness (other than any such Indebtedness to the
extent that it refinances, refunds or replaces any other Senior
Subordinated Notes) shall be applied to make mandatory prepayments of
the Loans and to reduce permanently the Revolving Credit Commitments
pursuant to subsection 4.3(b); and
(l) Indebtedness of Non-Guarantor Subsidiaries in an aggregate
outstanding principal Dollar Equivalent Amount, when added to the then
aggregate outstanding principal Dollar Equivalent Amount of
Indebtedness of Non-Guarantor
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Subsidiaries under uncommitted lines of credit, not to exceed
$350,000,000 at any time; provided that at no time shall (A) (x) the
excess of (i) the aggregate outstanding principal Dollar Equivalent
Amount of such Indebtedness that constitutes Short Term Indebtedness
(including, without limitation, Indebtedness under uncommitted lines of
credit) over (ii) $150,000,000 exceed (y) the then aggregate Available
Revolving Credit Commitments (other than any such Available Revolving
Credit Commitments required to be maintained pursuant to subsection
4.3(h)) or (B) the aggregate outstanding principal Dollar Equivalent
Amount of such Indebtedness that constitutes Short-Term Indebtedness
exceed $260,000,000.
8.3 Limitation on Liens. Create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being contested
in good faith by appropriate proceedings; provided that adequate
reserves with respect thereto are maintained on the books of the
Borrower or its Subsidiaries, as the case may be, in conformity with
GAAP (or, in the case of Foreign Subsidiaries, generally accepted
accounting principles in effect from time to time in their respective
jurisdictions of incorporation);
(b) carrier's, warehousemen's, mechanic's, landlord's,
materialmen's, repairmen's 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 the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances 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 the
Borrower or such Subsidiary conducted at the property subject thereto;
(f) Liens on the property or assets of a Person which becomes
a Subsidiary after the Closing Date securing Indebtedness permitted by
subsection 8.2(f); provided that (i) such Liens existed at the time
such Person became a Subsidiary and were not created in anticipation
thereof, (ii) any such Lien is not spread to cover any property or
assets of such Person after the time such corporation becomes a
Subsidiary, and (iii) the amount of Indebtedness secured thereby is not
increased;
(g) Liens created pursuant to the Security Documents;
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(h) Liens in existence on the Closing Date listed on Schedule
8.3(h), securing Indebtedness permitted by subsection 8.2(l); provided
that no such Lien is spread to cover any additional property after the
Closing Date and that the amount of Indebtedness secured thereby is not
increased;
(i) Liens securing Indebtedness of the Borrower and its
Subsidiaries permitted by subsection 8.2(g) 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, and (ii) such Liens do not at any time
encumber any property other than the property financed by such
Indebtedness;
(j) Liens on assets of any Foreign Subsidiary (including, in
the case of any Foreign Subsidiary which is not a direct Subsidiary of
the Borrower or any Domestic Subsidiary, the Capital Stock of such
Foreign Subsidiary) securing Indebtedness of such Foreign Subsidiary
permitted by subsection 8.2(l);
(k) Liens arising by reason of any judgment, decree or order
of any court or other Governmental Authority, if appropriate legal
proceedings are being diligently prosecuted and shall not have been
finally terminated or the period within which such proceedings may be
initiated shall not have expired, in an aggregate amount not to exceed
$15,000,000 at any time outstanding;
(l) leases and subleases of real property owned or leased by
the Borrower or any of its Subsidiaries not interfering with the
ordinary conduct of the business of the Borrower and its Subsidiaries;
(m) Liens arising from the sale or other disposition of any
accounts receivable in connection with a receivables financing
transaction otherwise permitted by subsection 8.6(g) and Liens in
respect of assets sold or otherwise disposed of pursuant to subsection
8.6(j);
(n) renewals, extensions and replacements of the Liens
permitted under clauses (f) and (h) above; provided that no such Lien
shall as a result thereof cover any additional assets and the principal
amount of Indebtedness secured thereby is not increased;
(o) Liens securing Non-Dollar Indebtedness of any Foreign
Subsidiary incurred pursuant to subsections 8.2(l) to finance the
construction or acquisition of fixed or capital assets, provided that
(i) such Liens shall be created substantially simultaneously with the
construction or acquisition of such fixed or capital assets and (ii)
such Liens do not at any time encumber any property other than the
property of such Foreign Subsidiary financed by such Indebtedness; and
(p) Liens securing obligations in an amount not in excess of
$110,000,000 in connection with synthetic leases to finance the
construction, acquisition or use of fixed or capital assets, which
Liens may be on any or all of the assets and property of the Borrower
and its Guarantor Subsidiaries; provided that (i) the documentation
creating or
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otherwise relating to such Liens shall be in form and substance
satisfactory to the Majority Lenders (a form of documentation approved
by the Majority Lenders under this Agreement or the Prior Credit
Agreement for use in one synthetic lease financing may be used in
substantially such form for subsequent synthetic lease financings
without further approval by the Majority lenders), (ii) as compared to
the first priority security interest granted by the Borrower and its
Guarantor Subsidiaries to the Lenders, such Lien shall be a junior and
second priority security interest to the extent such Lien is granted in
the Collateral and (iii) to the extent such Lien is granted in
Collateral, the Borrower and applicable creditors shall enter into an
intercreditor agreement with the Administrative Agent on behalf of the
Lenders in form and substance satisfactory to the Majority Lenders (a
form of intercreditor agreement approved by the Majority Lenders under
this Agreement or the Prior Credit Agreement for use in one synthetic
lease financing may be used in substantially such form for subsequent
synthetic lease financings without further approval by the Majority
Lenders).
8.4 Limitation on Guarantee Obligations. Create, incur, assume
or suffer to exist any Guarantee Obligation except:
(a) Guarantee Obligations in existence on the Closing Date and
listed on Schedule 8.4(a), and any refinancing, refundings, renewals or
extensions thereof provided that the amount of such Guarantee
Obligation shall not be increased at the time of such refinancing,
refunding, extension or renewal;
(b) guarantees made in the ordinary course of its business by
the Borrower or any of its Subsidiaries of obligations of any of the
Borrower's Guarantor Subsidiaries, which obligations are otherwise
permitted under this Agreement;
(c) the Guarantee and Collateral Agreement and any of the
other Guarantees;
(d) Guarantee Obligations of certain Subsidiaries of the
Borrower set forth in any of the Senior Subordinated Notes and the
related Senior Subordinated Note Indenture which are subordinated as
provided therein;
(e) Guarantee Obligations in respect of Indebtedness of a
Person or Persons in connection with one or more joint ventures in an
aggregate amount not exceeding at any time outstanding, when aggregated
with the amount of any Investments permitted by subsection 8.9(g) which
are outstanding at such time, an amount equal to the amount of
Investments permitted by subsection 8.9(g) to be made in such a Person
or Persons; provided that no Default or Event of Default shall have
occurred and be continuing on the date of the incurrence of any such
Guarantee Obligations or would result therefrom;
(f) Guarantee Obligations consisting of any Reimbursement
Obligation in respect of Letters of Credit;
<PAGE> 94
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(g) Guarantee Obligations of a Person which becomes a
Subsidiary after the Closing Date; provided that (i) such Guarantee
Obligations existed at the time such Person became a Subsidiary and
were not created in anticipation thereof and (ii) immediately after
giving effect to the acquisition of such Person by the Borrower no
Default or Event of Default shall have occurred and be continuing, and
any refinancings, refundings, renewals or extensions thereof; provided,
further, that the amount of such Guarantee Obligations is not increased
at the time of such refinancing, refunding, renewal or extension;
(h) Guarantee Obligations in respect of synthetic leases
entered into by the Borrower or any Subsidiary in an aggregate amount
not to exceed $110,000,000; and
(i) Guarantee Obligations of the Borrower and the
Non-Guarantor Subsidiaries (including, without limitation, those
resulting from the issuance of Letters of Credit) in respect of
Indebtedness permitted by subsection 8.2(l), provided that at no time
shall the aggregate Dollar Equivalent Amount of such Guarantee
Obligations (x) of the Borrower and the Non-Guarantor Subsidiaries
exceed $150,000,000 or (y) of the Borrower exceed the then aggregate
Available Revolving Credit Commitments (other than any such Available
Revolving Credit Commitments required to be maintained pursuant to
subsection 4.3(h)).
8.5 Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets, or make any material change in its present method of conducting
business, except:
(a) any Subsidiary of the Borrower may be merged or
consolidated with or into the Borrower (provided that the Borrower
shall be the continuing or surviving corporation) or with or into any
one or more Wholly Owned Subsidiaries of the Borrower (provided that
the Wholly Owned Subsidiary or Subsidiaries shall be the continuing or
surviving corporation);
(b) any Wholly Owned Subsidiary may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to the Borrower or any other Wholly Owned
Subsidiary of the Borrower;
(c) mergers and consolidations in connection with Investments
permitted under subsection 8.9(e), subject to compliance with
subsection 7.10; and
(d) sales and other dispositions of assets permitted by
subsection 8.6.
8.6 Limitation on Sale of Assets. Convey, sell, lease, assign,
transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, receivables and leasehold interests), whether
now owned or hereafter acquired, or, in the case of any Subsidiary, issue or
sell any shares of such Subsidiary's Capital Stock to any Person other than the
Borrower or any Wholly Owned Subsidiary, except:
<PAGE> 95
89
(a) the sale or other disposition of any property in the
ordinary course of business;
(b) the sale or other disposition of any assets at fair market
value; provided that the Net Cash Proceeds of all sales of assets
permitted by this clause (b) in excess of $50,000,000 are applied to
make mandatory prepayments and permanent reductions of the Revolving
Credit Commitments pursuant to subsection 4.3(c), except that (i) the
Borrower and the Guarantor Subsidiaries may use up to $150,000,000 in
the aggregate of such excess Net Cash Proceeds received by them in any
fiscal year of the Borrower to acquire within 180 days after the
receipt thereof, assets used or useful in the business of the Borrower
and the Guarantor Subsidiaries, and such excess amount so used need not
be so applied pursuant to subsection 4.3(c) and (ii) the Non-Guarantor
Subsidiaries may use all such excess Net Cash Proceeds received by
them, within 180 days of the receipt thereof, to (x) prepay, repay or
purchase Indebtedness of Non-Guarantor Subsidiaries permitted by
subsection 8.2 or (y) acquire assets used or useful in the businesses
of Non-Guarantor Subsidiaries, and such excess amount so used shall not
be required to be so applied pursuant to subsection 4.3(c);
(c) the sale or discount without recourse of accounts
receivable arising in the ordinary course of business, but only in
connection with the compromise or collection thereof;
(d) as permitted by subsection 8.5(b);
(e) transfers of property or assets in connection with
Investments permitted under subsection 8.9(g);
(f) sales, leases, conveyances, transfers or other
dispositions to the Borrower or to any Subsidiary of the Borrower or to
any Person if after giving effect to such sale, lease, conveyance,
transfer or other disposition such other Person becomes a Subsidiary,
subject to compliance with subsection 7.10 and, to the extent
applicable, subsection 8.9;
(g) the sale or other disposition of any accounts receivable
in connection with a Permitted Receivables Financing, so long as the
Net Cash Proceeds of such sale or other disposition are applied as
provided in subsection 4.3(c);
(h) dispositions resulting from any casualty or condemnation
of any property; provided that the proceeds of any such single
disposition of property permitted by this clause (h) in excess of
$20,000,000 are applied pursuant to subsection 4.3(h);
(i) the sale or other disposition of any Specified Assets at
fair market value; provided that the Net Cash Proceeds of all sales of
Specified Assets permitted by this clause (i) are applied as provided
in subsection 4.3(c), except that (i) any such Net Cash Proceeds of
sales or other dispositions of Specified Assets permitted by this
clause (i) to the extent that they are used to (x) make Investments
permitted by subsection 8.9(e) within 180 days of receipt thereof or
(y) acquire assets used or useful in the businesses of
<PAGE> 96
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the Borrower and its Subsidiaries within 180 days of receipt thereof,
shall not be required to be applied as provided in subsection 4.3(c);
(j) the sale or other disposition of assets in connection with
one or more sale and leaseback transactions as to which the resulting
Lease Expense shall not exceed $25,000,000 (provided that in connection
therewith the Administrative Agent shall be authorized to enter into an
intercreditor agreement on behalf of the Lenders in respect of such
assets if requested to do so by the Borrower on terms and conditions
reasonably satisfactory to the Administrative Agent), so long as the
Net Cash Proceeds of such sale or other disposition are applied to make
mandatory prepayments and permanent reductions of the Revolving Credit
Commitments pursuant to subsection 4.3(c); and
(k) the sale or other disposition of assets in connection with
one or more sale and leaseback transactions on customary terms in
respect of assets purchased after the Closing Date and no more than one
year prior to the consummation of such sale and leaseback transaction.
8.7 Limitation on Dividends. Declare or pay any dividend on,
or make any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, defeasance, retirement or other
acquisition of, any shares of any class of Capital Stock of the Borrower or any
warrants or options to purchase any such Capital Stock, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either directly
or indirectly, whether in cash or property or in obligations of the Borrower or
any Subsidiary, except for dividends, payments or distributions solely in common
stock of the Borrower.
8.8 Limitation on Capital Expenditures. Make any expenditure,
other than pursuant to subsection 8.9, in respect of the purchase or other
acquisition of fixed or capital assets (a "Capital Expenditure") except for
expenditures in the ordinary course of business not exceeding, in the aggregate
for the Borrower and its Subsidiaries during any of the test periods set forth
below, the amount set forth opposite such test period set forth below:
<TABLE>
<CAPTION>
Test Period Amount
----------- ------
<S> <C>
February 1, 1999 - January 31, 2000 $200,000,000
February 1, 2000 - January 31, 2001 200,000,000
February 1, 2001 - January 31, 2002 200,000,000
February 1, 2002 - January 31, 2003 190,000,000
February 1, 2003 - January 31, 2004 190,000,000
February 1, 2004 - January 31, 2005 190,000,000
</TABLE>
provided that (a) up to $60,000,000 of any Capital Expenditures permitted to be
made during any test period and not made during such test period may be carried
over and expended during the next succeeding test period (it being understood
and agreed that any Capital Expenditures made during such next succeeding test
period shall count, first, against the amount permitted to be made during such
next succeeding test period as set forth in the table above and, second, against
any amounts carried over to such next succeeding test period) and (b) up to
$40,000,000 of any Capital Expenditures permitted to be made during any test
period and not made during such test period (to the extent not expended during
the next succeeding test period) may be carried over
<PAGE> 97
91
and expended during the second succeeding test period (it being understood and
agreed that any Capital Expenditures made during such second succeeding test
period shall count, first, against the amount permitted to be made during such
second succeeding test period as set forth in the table above, second, against
any amounts carried over to such second succeeding test period from the
immediately preceding test period and, third, against any amounts carried over
to such second succeeding test period from the second preceding test period).
8.9 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 or permit to exist any other
investment, in cash or by transfer of assets or property, in, any Person (each,
an "Investment"), except:
(a) extensions of trade credit in the ordinary course of
business;
(b) Investments in Cash Equivalents;
(c) loans and advances to employees of the Borrower or its
Subsidiaries for travel, entertainment and relocation expenses in the
ordinary course of business;
(d) Investments by the Borrower in its Subsidiaries and
Investments by such Subsidiaries in the Borrower and in other
Subsidiaries of the Borrower;
(e) Investments by the Borrower or any of its Subsidiaries in
a Person, if as a result of any such Investment (i) such Person becomes
a Subsidiary of the Borrower, subject to compliance with subsection
7.10, or (ii) such Person is merged or consolidated with or into, or
transfers or conveys the assets which are the subject of such
Investment to, or is liquidated into, the Borrower or any of its
Subsidiaries; provided that (y) no Default or Event of Default shall
have occurred and be continuing on the date of any such Investment or
would result therefrom and (z) the aggregate amount of consideration
(other than consideration consisting of common stock of the Borrower)
given by the Borrower and its Subsidiaries in respect of all such
Investments ("Non-Stock Consideration") subsequent to the date hereof
shall not exceed $400,000,000;
(f) Investments by the Borrower or any of its Subsidiaries in
the form of promissory notes that are issued to the Borrower or such
Subsidiary by a Person which is not the Borrower or such Subsidiary
solely as partial consideration for the consummation of an asset sale
or other disposition permitted by subsection 8.6 (not to exceed 25% of
the total consideration received by the Borrower or such Subsidiary in
respect of such asset sale); provided that the aggregate principal
amount of such promissory notes as to all such asset sales or other
dispositions does not exceed $15,000,000 at any time outstanding and
such promissory notes held by the Borrower or any Domestic Subsidiary
are pledged to the Administrative Agent for the benefit of the Lenders
pursuant to the Security Documents;
(g) Investments in a Person or Persons in connection with one
or more joint ventures (in addition to those permitted by subsection
8.9(j)) in an aggregate amount,
<PAGE> 98
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when aggregated with the amount of any Guarantee Obligations permitted
by subsection 8.4(e) which are outstanding at such time and
disregarding the amount of any Investments permitted by subsection
8.9(j), not to exceed $50,000,000 at any one time outstanding; provided
that such amount shall be increased by an amount equal to the aggregate
amount of cash returned on or on account of Investments permitted under
this clause (g), whether through interest payments, principal payments,
dividends or other distributions or payments, provided, further that no
Investment shall be permitted under this clause (g) if any Default or
Event of Default shall have occurred and be continuing on the date of
any such Investment or would result therefrom;
(h) Investments in the nature of promissory notes, other
securities or other property received in connection with the bankruptcy
or reorganization of Persons having obligations in favor of the
Borrower or its Subsidiaries, in settlement of such obligations;
provided that such promissory notes, other securities or other property
held by the Borrower or any Domestic Subsidiary are pledged to the
Administrative Agent for the benefit of the Lenders pursuant to the
Security Documents;
(i) Investments paid for solely in common stock of the
Borrower; and
(j) Investments in existence on the date hereof (including in
joint ventures) that are listed on Schedule 8.9(j).
8.10 Limitation on Optional Payments and Modifications of Debt
Instruments. (a) (i) Make any optional payment or prepayment on or repurchase or
redemption or purchase of any of the Senior Subordinated Notes or the Borrower
Notes (including, without limitation, any payment on account of, or for a
sinking or other analogous fund for the repurchase, redemption, defeasance or
other acquisition thereof); provided that a series of Senior Subordinated Notes
may be refinanced, refunded or replaced on terms and conditions more favorable
to the Borrower and the Lenders than those applicable to such series being so
refinanced, refunded or replaced or (ii) amend, modify or change, or consent or
agree to any amendment, modification or change to any of the terms of such
Indebtedness or any instrument, document or other agreement pursuant to which
the same shall have been issued or created (other than any such amendment,
modification or change which would (A) extend the maturity or reduce the amount
of any payment of principal thereof or which would reduce the rate or extend the
date for payment of interest thereon or (B) amend the Senior Subordinated Notes,
other than the December 1998 Senior Subordinated Notes, to contain provisions
identical in all material respects to the December 1998 Senior Subordinated
Notes).
(b) In the event of the occurrence of a Change of Control,
repurchase any of the Senior Subordinated Notes or Borrower Notes or any portion
thereof, unless the Borrower shall have (i) repaid in full the Loans, all
Reimbursement Obligations and any other amounts then due and owing to any Lender
or the Administrative Agent hereunder and under any Note or any other Loan
Document and cash collateralized the L/C Obligations on terms reasonably
satisfactory to the Administrative Agent or (ii) made an offer to repay the
Loans, all Reimbursement Obligations and any other amounts then due and owing to
each Lender and the Administrative Agent hereunder and under any Note or any
other Loan Document and to cash collateralize the L/C Obligations in respect of
each Lender and shall have made repayment in full thereof to each
<PAGE> 99
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such Lender or the Administrative Agent which has accepted such offer and cash
collateralized the L/C Obligations in respect of each such Lender which has
accepted such offer.
8.11 Limitation on Transactions with Affiliates. Enter into
any transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate unless
such transaction is (a) otherwise permitted under this Agreement, (b) in the
ordinary course of the Borrower's or such Subsidiary's business and (c) upon
fair and reasonable terms no less favorable to the Borrower or such Subsidiary,
as the case may be, than it would obtain in a comparable arm's length
transaction with a Person which is not an Affiliate. This subsection 8.11 shall
not apply to customary investment banking underwriter, placement agent or
financial advisor fees paid to CIBC and its Affiliates in connection with
services rendered to the Borrower or its Subsidiaries.
8.12 Limitation on Changes in Fiscal Year. Permit the fiscal
year of the Borrower to end on a day other than January 31.
8.13 Limitation on Negative Pledge Clauses. Enter into with
any Person any agreement which prohibits or limits the ability of the Borrower
or any of its Subsidiaries to create, incur, assume or suffer to exist any Lien
upon any of its property, assets or revenues, whether now owned or hereafter
acquired, other than (a) this Agreement, (b) agreements in effect on the Closing
Date, including, without limitation, the Senior Subordinated Note Indentures or
any refinancing, refunding, renewal or extension thereof which is permitted
hereunder, (c) customary non-assignment provisions under contracts to the extent
such provisions prohibit or limit the ability to grant a Lien on the rights
under such contracts, (d) agreements under which Indebtedness permitted
hereunder is incurred by Foreign Subsidiaries, to the extent such agreements
prohibit or limit Liens on assets of such Foreign Subsidiaries (including, in
the case of Foreign Subsidiaries which are not direct Subsidiaries of the
Borrower or any Domestic Subsidiary, the Capital Stock of such Foreign
Subsidiaries), (e) restrictions on granting Liens on assets under agreements to
sell or otherwise dispose of such assets, (f) restrictions in Indebtedness
incurred to finance the acquisition of fixed or capital assets or Financing
Leases permitted hereunder with respect to Liens on the assets financed
thereunder and (g) restrictions in Indebtedness permitted by subsection 8.2(j).
8.14 Limitation on Lines of Business. Enter into any business,
either directly or through any Subsidiary or any joint venture, except for those
businesses in which the Borrower and its Subsidiaries are engaged on the Closing
Date or which are related thereto (provided that the Borrower and its
Subsidiaries may acquire unrelated businesses in connection with the acquisition
of a related business permitted hereunder so long as such unrelated business is
not a material portion of the assets acquired in such acquisition).
8.15 Limitations on Currency and Commodity Hedging
Transactions. Enter into, purchase or otherwise acquire agreements or
arrangements relating to currency, commodity or other hedging except, to the
extent and only to the extent that, such agreements or arrangements are entered
into, purchased or otherwise acquired in the ordinary course of business of the
Borrower or any of its Subsidiaries with reputable financial institutions and
not for purposes of investment or speculation (any such agreement or arrangement
permitted by this subsection, a
<PAGE> 100
94
"Permitted Hedging Arrangement"), including the two Dollar/Deutschemark currency
swaps entered into by the Borrower in connection with the June 1997 Senior
Subordinated Notes.
SECTION 9. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) Any of the Borrowers shall fail to pay any principal of
any Loan or any Reimbursement Obligation when due in accordance with
the terms thereof or hereof; or any Borrower shall fail to pay any
interest on any Loan, or any other amount payable hereunder, within
five days after any such interest or other amount becomes due in
accordance with the terms thereof or hereof (it being agreed that any
amounts payable hereunder (other than principal, interest, commitment
fees and letter of credit fees) shall be due on the date which is five
days after the Administrative Agent or the applicable Lender shall give
written notice thereof to the applicable Borrower); or
(b) Any representation or warranty made or deemed made by the
Borrower or any other Loan Party herein or in any other Loan Document
or which is contained in any certificate, document or financial or
other written statement furnished by it at any time under or in
connection with this Agreement or any such other Loan Document shall
prove to have been incorrect in any material respect on or as of the
date made or deemed made; or
(c) The Borrower or any other Loan Party shall default in the
observance or performance of any agreement contained in subsection
7.7(a) or Section 8; or
(d) The Borrower or any other Loan Party shall default in the
observance or performance of any other agreement contained in this
Agreement or any other Loan Document (other than as provided in
paragraphs (a) through (c) of this Section 9), and such default shall
continue unremedied for a period of 30 days or, in the case of any
agreement contained in subsection 7.1 or 7.2, such default shall
continue unremedied for a period ending on the date three days after
notice has been given to the Borrower by the Administrative Agent or
any Lender of the expiration of such 30 day period; or
(e) The Borrower or any of its Subsidiaries shall (i) default
in any payment of principal of or interest on any Indebtedness (other
than the Loans and the Reimbursement Obligations) in excess of
$30,000,000 or in the payment of any Guarantee Obligation in excess of
$30,000,000, beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness or Guarantee
Obligation was created; or (ii) default in the observance or
performance of any other agreement or condition relating to any such
Indebtedness or Guarantee Obligation or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event
shall occur or condition exist, the effect of which default or other
event or condition is to cause, or to permit the holder or holders of
such Indebtedness or beneficiary or beneficiaries of such Guarantee
Obligation (or a trustee or agent on behalf of such holder or holders
or beneficiary or
<PAGE> 101
95
beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or such
Guarantee Obligation to become payable; or
(f) (i) The Borrower or any of its Subsidiaries shall commence
any case, proceeding or other action (A) under any existing or future
law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to adjudicate
it a bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other
relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian, conservator or other similar official for
it or for all or any substantial part of its assets, or the Borrower or
any of its Subsidiaries shall make a general assignment for the benefit
of its creditors; or (ii) there shall be commenced against the Borrower
or any of its Subsidiaries any case, proceeding or other action of a
nature referred to in clause (i) above which (A) results in the entry
of an order for relief or any such adjudication or appointment or (B)
remains undismissed, undischarged or unbonded for a period of 60 days;
or (iii) there shall be commenced against the Borrower or any of its
Subsidiaries any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against
all or any substantial part of its assets which results in the entry of
an order for any such relief which shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from the
entry thereof; or (iv) the Borrower or any of its Subsidiaries shall
take any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth in clause
(i), (ii), or (iii) above; or (v) the Borrower or any of its
Subsidiaries shall generally not, or shall be unable to, or shall admit
in writing its inability to, pay its debts as they become due; or
(g) (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the
Code) involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist
with respect to any Plan or any Lien in favor of the PBGC or a Plan
shall arise on the assets of the Borrower or any Commonly Controlled
Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any Single Employer
Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is, in the reasonable opinion of the Majority
Lenders, likely to result in the termination of such Plan for purposes
of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for
purposes of Title IV of ERISA, (v) the Borrower or any Commonly
Controlled Entity shall, or in the reasonable opinion of the Majority
Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other event or condition shall occur or
exist with respect to a Plan; and in each case in clauses (i) through
(vi) above, such event or condition, together with all other such
events or conditions, if any, could reasonably be expected to have a
Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against
the Borrower or any of its Subsidiaries involving in the aggregate a
liability (not paid or fully covered by insurance) of $30,000,000 or
more, and all such judgments or decrees shall not have been
<PAGE> 102
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vacated, discharged, stayed or bonded pending appeal within 60 days
from the entry thereof; or
(i) Except as, and to the extent, permitted by this Agreement,
(i) any of the Security Documents or any of the other Loan Documents
shall cease, for any reason, to be in full force and effect, or the
Borrower or any other Loan Party which is a party to any of the
Security Documents or any of the other Loan Documents shall so assert
or (ii) the Lien created by any of the Security Documents shall cease
to be enforceable and of the same effect and priority purported to be
created thereby, and, in any such case, such cessation or, in the case
of clause (i), assertion thereof shall affect a material portion of the
Collateral; or
(j) The occurrence of any Change of Control; or
(k) Any of the Senior Subordinated Notes, for any reason,
shall not be or shall cease to be validly subordinated, as provided
therein and in the related Senior Subordinated Note Indenture, to the
obligations of the Borrower under this Agreement, any Notes and the
other Loan Documents, or the obligations of any other Loan Party under
a guarantee of any of the Senior Subordinated Notes, for any reason,
shall not be or shall cease to be validly subordinated as provided
therein and in the related Senior Subordinated Note Indenture to the
obligations of such Loan Party under the Guarantee and Collateral
Agreement or any of the Guarantees to which it is a party; or
(l) (i) If any of the remaining contributions referred to in
the PBGC Agreement in an aggregate amount in excess of $10,000,000
shall not be paid within 30 days after the date on which such
contributions are due if such remaining contributions in an aggregate
amount in excess of $10,000,000 shall become immediately due and
payable prior to the stated maturity thereof or (ii) any Lien in favor
of the PBGC shall arise on the assets of the Borrower or any of its
Subsidiaries with respect to the transactions contemplated by the PBGC
Agreement or the definitive documentation with respect to the PBGC
Agreement (it being understood and agreed that the Lenders shall not
seek to enjoin any such Liens from arising based on subsection 8.3);
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) of this Section with respect to the
Borrower, automatically the Commitments shall immediately terminate and
automatically the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement (including, without limitation, all amounts
of L/C Obligations, whether or not the beneficiaries of the then outstanding
Letters of Credit shall have presented the documents required thereunder) shall
immediately become due and payable, and (B) if such event is any other Event of
Default, either or both of the following actions may be taken: (i) with the
consent of the Majority Lenders, the Administrative Agent may, or upon the
request of the Majority Lenders, the Administrative Agent shall, by notice to
the Borrower declare the Commitments to be terminated forthwith, whereupon the
Commitments shall immediately terminate; and (ii) with the consent of the
Majority Lenders, the Administrative Agent may, or upon the request of the
Majority Lenders, the Administrative Agent shall, by notice to the Borrower,
declare the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement (including, without limitation, all
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97
amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) and the Notes to be due and payable forthwith, whereupon the same
shall immediately become due and payable.
With respect to all Letters of Credit with respect to which
presentment for honor shall not have occurred at the time of an acceleration
pursuant to the preceding paragraph, the Borrower shall at such time deposit in
a cash collateral account opened by the Administrative Agent an amount equal to
the aggregate then undrawn and unexpired amount of such Letters of Credit. The
Borrower hereby grants to the Administrative Agent, for the benefit of the
Issuing Lender and the L/C Participants, a security interest in such cash
collateral to secure all obligations of the Borrower under this Agreement and
the other Loan Documents. Amounts held in such cash collateral account shall be
applied by the Administrative Agent to the payment of drafts drawn under such
Letters of Credit, and the unused portion thereof after all such Letters of
Credit shall have expired or been fully drawn upon, if any, shall be applied to
repay other obligations of the Borrower hereunder and under the Notes. Within a
reasonable period after all such Letters of Credit shall have expired or been
fully drawn upon, all Reimbursement Obligations shall have been satisfied and
all other obligations of the Borrower hereunder and under the Notes shall have
been paid in full, the balance, if any, in such cash collateral account shall be
returned to the Borrower. The Borrower shall execute and deliver to the
Administrative Agent, for the account of the Issuing Lender and the L/C
Participants, such further documents and instruments as the Administrative Agent
may request to evidence the creation and perfection of the within security
interest in such cash collateral account.
Except as expressly provided above in this Section,
presentment, demand, protest and all other notices of any kind are hereby
expressly waived.
SECTION 10. THE MANAGING AGENTS
10.1 Appointment. Each Lender hereby irrevocably designates
and appoints CIBC as the Administrative Agent, Credit Suisse First Boston as the
Syndication Agent, Merrill Lynch as Co-Documentation, Agent and Dresdner Bank AG
as Co-Documentation Agent, in each case under this Agreement and the other Loan
Documents, and each such Lender irrevocably authorizes each such Managing Agent,
in such capacities, to take such action on its behalf under the provisions of
this Agreement and the other Loan Documents and to exercise such powers and
perform such duties as are expressly delegated to the Administrative Agent, the
Syndication Agent and the Co-Documentation Agents, respectively, by the terms of
this Agreement and the other Loan Documents, together with such other powers as
are reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, neither the Administrative Agent nor the other
Managing Agents shall have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against either the Administrative Agent or the other Managing
Agents.
10.2 Delegation of Duties. The Administrative Agent may
execute any of its duties under this Agreement and the other Loan Documents by
or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such
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duties. The Administrative Agent shall not be responsible for the negligence or
misconduct of any agents or attorneys-in-fact selected by it with reasonable
care.
10.3 Exculpatory Provisions. Neither the Administrative Agent,
the other Managing Agents nor any of their respective officers, directors,
employees, agents, attorneys-in-fact or Affiliates shall be (i) liable for any
action lawfully taken or omitted to be taken by it or such Person under or in
connection with this Agreement or any other Loan Document (except for its or
such Person's own gross negligence or willful misconduct) or (ii) responsible in
any manner to any of the Lenders for any recitals, statements, representations
or warranties made by any Loan Party or any officer thereof contained in this
Agreement or any other Loan Document or in any certificate, report, statement or
other document referred to or provided for in, or received by the Administrative
Agent or the other Managing Agents under or in connection with, this Agreement
or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or for any failure of any Loan Party to perform its obligations
hereunder or thereunder. Neither the Administrative Agent nor the other Managing
Agents shall be under any obligation to any Lender to ascertain or to inquire as
to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of the Borrower or any other Loan Party.
10.4 Reliance by Administrative Agent and Other Managing
Agents. Each of the Administrative Agent and the other Managing Agents shall be
entitled to rely, and shall be fully protected in relying, upon any Note,
writing, resolution, notice, consent, certificate, affidavit, letter, telecopy,
telex or teletype message, statement, order or other document or conversation
reasonably believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to any Borrower),
independent accountants and other experts selected by it. The Administrative
Agent may deem and treat the payee of any Note as the owner thereof for all
purposes unless a written notice of assignment, negotiation or transfer thereof
shall have been filed with the Administrative Agent. The Administrative Agent
shall be fully justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first receive such advice
or concurrence of the Majority Lenders as it deems appropriate or it shall first
be indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement and the
other Loan Documents in accordance with a request of the Majority Lenders, and
such request and any action taken or failure to act pursuant thereto shall be
binding upon all the Lenders and all future holders of the Loans.
10.5 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent has received notice from a
Lender or the Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In the
event that the Administrative Agent receives such a notice, the Administrative
Agent shall give notice thereof, reasonably promptly thereof to the other
Managing Agents and to the Lenders. The Administrative Agent shall take such
action reasonably promptly with respect to such Default or Event of Default as
shall be reasonably directed by the Majority Lenders;
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99
provided that unless and until the Administrative Agent shall have received such
directions, the Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interests of the
Lenders.
10.6 Non-Reliance on Administrative Agent, Other Managing
Agents and Other Lenders. Each Lender expressly acknowledges that neither the
Administrative Agent, the other Managing Agents nor any of their respective
officers, directors, employees, agents, attorneys-in-fact or Affiliates has made
any representations or warranties to it and that no act by the Administrative
Agent or the other Managing Agents hereinafter taken, including any review of
the affairs of the Borrower or any other Loan Party, shall be deemed to
constitute any representation or warranty by the Administrative Agent or the
other Managing Agents to any Lender. Each Lender represents to the
Administrative Agent and the other Managing Agents that it has, independently
and without reliance upon the Administrative Agent or the other Managing Agents
or any other Lender, and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Borrower and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Lender also represents that it
will, independently and without reliance upon the Administrative Agent or the
other Managing Agents or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Borrower or any of the
other Loan Parties and the other Loan Parties. Except for notices, reports and
other documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent and the other Managing
Agents shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, operations, property,
condition (financial or otherwise), prospects or creditworthiness of the
Borrower or any of the other Loan Parties which may come into the possession of
the Administrative Agent or the other Managing Agents or any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates.
10.7 Indemnification. The Lenders agree to indemnify each of
the Administrative Agent and the other Managing Agents in their respective
capacities as such (to the extent not reimbursed by the Borrower or any of the
other Loan Parties and without limiting the obligation of the Borrower or any of
the other Loan Parties to do so), ratably according to their respective
Commitment Percentages in effect on the date on which indemnification is sought,
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever which may at any time (including, without limitation, at any
time following the payment of the Loans) be imposed on, incurred by or asserted
against the Administrative Agent or the other Managing Agents in any way
relating to or arising out of, the Commitments, this Agreement, any of the other
Loan Documents or any documents contemplated by or referred to herein or therein
or the transactions contemplated hereby or thereby or any action taken or
omitted by the Administrative Agent or the other Managing Agents under or in
connection with any of the foregoing; provided that no Lender shall be liable
for the payment of any portion of such liabilities, obligations, losses,
damages,
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penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the Administrative Agent's or the other Managing Agents' gross negligence
or willful misconduct, as the case may be. The agreements in this subsection
shall survive the payment of the Loans and all other amounts payable hereunder.
10.8 Administrative Agent and Other Managing Agents in Their
Individual Capacities. The Administrative Agent, the other Managing Agents and
their respective Affiliates may make loans to, accept deposits from and
generally engage in any kind of business with the Borrower or any other Loan
Party as if the Administrative Agent and the other Managing Agents were not the
Administrative Agent or the other Managing Agents, as the case may be, hereunder
and under the other Loan Documents. With respect to the Loans made by it and
with respect to any Letter of Credit issued or participated in by it, each of
the Administrative Agent and the other Managing Agents shall have the same
rights and powers under this Agreement and the other Loan Documents as any
Lender and may exercise the same as though it were not the Administrative Agent
or the other Managing Agents, as the case may be, and the terms "Lender" and
"Lenders" shall include each of the Administrative Agent and the other Managing
Agents in its individual capacity.
10.9 Successor Administrative Agent. The Administrative Agent
may resign as Administrative Agent upon 10 days' notice to the Lenders. If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Majority Lenders shall appoint from among
the Lenders a successor agent for the Lenders, which successor agent (provided
that it shall have been approved by the Borrower), shall succeed to the rights,
powers and duties of the Administrative Agent hereunder. Effective upon such
appointment and approval, the term "Administrative Agent" shall mean such
successor agent, such former Administrative Agent's rights, powers and duties as
Administrative Agent shall be terminated, without any other or further act or
deed on the part of such former Administrative Agent or any of the parties to
this Agreement or any holders of the Loans. After any retiring Administrative
Agent's resignation as Administrative Agent, the provisions of this Section 10
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was an Administrative Agent under this Agreement and the other Loan
Documents.
10.10 Issuing Lender. The provisions of this Section 10 shall
apply to the Issuing Lender in its capacity as such and to the European Swing
Line Administrator in its capacity as such to the same extent that such
provisions apply to the Administrative Agent.
10.11 Releases of Guarantees and Collateral. In connection
with the sale or other disposition of all of the Capital Stock of any Guarantor
or the sale or other disposition of Collateral (as defined in each of the
Security Documents) permitted under subsection 8.6, the Administrative Agent
shall, and is hereby authorized by the Lenders to, promptly, upon the request of
the Borrower and at the sole expense of the Borrower, take all actions
reasonably necessary to release such Guarantor from its guarantee contained in
the Guarantee and Collateral Agreement or its Guarantee or to release the
Collateral subject to such sale or other disposition, as the case may be, and
shall take any other actions reasonably requested by the Borrower to effect the
transactions permitted under subsection 8.6.
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10.12 Foreign Pledge Agreement. Each Lender has authorized the
Administrative Agent to enter into a Foreign Stock Pledge Agreement (and/or a
confirmation thereof) with HLI (Europe) Ltd., 38481 Huron River Drive, Romulus,
Michigan, pursuant to which certain present and future shares in HLI Sub as well
as certain rights and claims relating thereto are pledged as security to the
Lenders and the Administrative Agent. The Administrative Agent is authorized to
agree on any provisions and to make all declarations that it considers in its
discretion necessary or appropriate in this context, including any amendments of
such Foreign Stock Pledge Agreement. The Administrative Agent is released of the
restrictions set forth in Section 181 German Civil Code and authorized to
delegate this power of attorney or grant sub-power of attorney.
SECTION 11. MISCELLANEOUS
11.1 Amendments and Waivers. Neither this Agreement nor any
other Loan Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this
subsection. The Majority Lenders may, or, with the written consent of the
Majority Lenders, the Administrative Agent may, from time to time, (a) enter
into with the Borrower and the other Loan Parties written amendments,
supplements or modifications hereto and to the other Loan Documents for the
purpose of amending, supplementing or modifying any provisions of this Agreement
or the other Loan Documents or changing in any manner the rights of the Lenders
or of the Borrower hereunder or thereunder or (b) waive, on such terms and
conditions as the Majority Lenders or the Administrative Agent, as the case may
be, may specify in such instrument, any of the requirements of this Agreement or
the other Loan Documents or any Default or Event of Default and its
consequences; provided that no such waiver and no such amendment, supplement or
modification shall:
(i) reduce the amount or extend the scheduled date of
maturity of any Loan or any installment thereof or any Reimbursement
Obligation or reduce the stated rate of any interest or fee payable
hereunder or extend the scheduled date of any payment thereof or
increase the amount or extend the expiration date of any Lender's
Commitments, in each case without the consent of each Lender affected
thereby; or
(ii) amend, modify or waive any provision of this subsection
11.1 or reduce the percentage specified in the definition of Majority
Lenders, or consent to the assignment or transfer by any of the
Borrowers of any of its rights and obligations under this Agreement and
the other Loan Documents or release any guarantee obligation contained
in the Guarantee and Collateral Document, the Borrower Guarantee or any
of the other Guarantees or release all or a substantial part of the
Collateral (other than in connection with any release permitted by
subsection 10.11), in each case without the written consent of all the
Lenders; or
(iii) amend, modify or waive any provision of Section 10
without the written consent of the then Administrative Agent; or
(iv) amend, modify or waive any provision of this Agreement
regarding the application of prepayment amounts to the installments of
principal under the Term Loans
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without the written consent of the Term Loan Lenders the Term Loan
Commitment Percentages of which aggregate more than 50%; or
(v) subject to clause (i) of this subsection 11.1(a) as it
relates to reducing the amount or extending the scheduled date of
maturity of any Loan or any installment thereof, amend, modify or waive
any provision of subsection 2.9 without the written consent of Term
Loan Lenders the Term Loan Commitment Percentages of which aggregate
more than 50%; or
(vi) amend, modify or waive any provision of subsection 2.1,
2.2, 2.3, 2.5, 2.6 or 2.7 or, subject to paragraph (i) of this
subsection 11.1(a) as it relates to reducing the amount or extending
the scheduled date of maturity of any Reimbursement Obligation, Section
3 without the written consent of the Revolving Credit Lenders the
Revolving Credit Commitment Percentages of which aggregate more than
50%; or
(vii) amend, modify or waive any provision of any Swing Line
Note, subsection 2.6 or any Foreign Currency Swing Line Loan Agreement
without the written consent of each Swing Line Lender affected thereby;
or
(viii) amend, modify or waive the provisions of any Letter of
Credit or any L/C Obligation without the written consent of the
affected Issuing Lender;
(ix) amend, modify or waive any provision of any Security
Document that provides for the ratable sharing by the Lenders under
such Security Document of the proceeds of any realization on the
Collateral to provide for a non-ratable sharing thereof, without the
consent of (y) the Majority Revolving Credit Lenders, and (z) the Term
Loan Lenders the Term Loan Commitment Percentages of which aggregate
more than 50%; or
(x) amend, modify or waive any provision of the Loan
Documents in respect of an outstanding Competitive Bid Loan without the
consent of each Lender that made such Loan.
Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Lenders and shall be binding
upon the Borrower, the Lenders, the Administrative Agent and all future holders
of the Loans. In the case of any waiver, the Borrower, the Lenders and the
Administrative Agent shall be restored to their former positions and rights
hereunder and under the other Loan Documents, and any Default or Event of
Default waived shall be deemed to be cured and not continuing; no such waiver
shall extend to any subsequent or other Default or Event of Default or impair
any right consequent thereon.
11.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile transmission) and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made (a) in the case of delivery by hand or
by overnight courier, when delivered, (b) in the case of delivery by mail, three
days after being deposited in the mails, postage prepaid, or (c) in the case of
delivery by facsimile transmission, when sent and receipt has been confirmed,
addressed as follows in the case of the Borrower and each Managing Agent, as set
forth in Schedule A in the case of the
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other parties hereto, and as set forth in the applicable Subsidiary Borrower
Agreement in the case of a Subsidiary Borrower or to such other address as may
be hereafter notified by the respective parties hereto:
The Borrower:
Hayes Lemmerz International, Inc.
38481 Huron River Drive
Romulus, Michigan 48174
Attention: Treasurer
Fax: (734) 942-7783
with a copy to:
Hayes Lemmerz International, Inc.
38481 Huron River Drive
Romulus, Michigan 48174
Attention: General Counsel
Fax: (734) 942-5199
The Administrative Agent:
Canadian Imperial Bank of Commerce
425 Lexington Avenue
7th Floor
New York, New York 10017
Attention: Darren Gaffney
Fax: (212) 856-3763
The Syndication Agent:
Credit Suisse First Boston
11 Madison Avenue
New York, New York 10010
Attention: Thomas G. Muoio
Fax: (212) 325-8319
The Co-Documentation Agents:
Merrill Lynch Capital Corporation
World Financial Center
South Tower
New York, New York 10281
Attention: Christopher Reilly
Fax: (212) 623-7584
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104
Dresdner Bank AG
75 Wall Street
New York, New York 10005
Attention: Gary Jermansky
Fax: (212) 429-2130
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to subsection 2.3, 2.5, 2.6, 2.7, 2.12, 3.2, 4.2, 4.4 or
4.8 shall not be effective until received.
11.3 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Administrative Agent or any
Lender, any right, remedy, power or privilege hereunder or under the other Loan
Documents shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
11.4 Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Loan Documents (or
in any amendment, modification or supplement hereto or thereto) and in any
document, certificate or statement delivered pursuant hereto or in connection
herewith shall survive the execution and delivery of this Agreement and the
making of the Loans hereunder.
11.5 Payment of Expenses and Taxes. The Borrower agrees (a) to
pay or reimburse the Administrative Agent and the other Managing Agents for all
their respective out-of-pocket costs and expenses incurred in connection with
the development, preparation and execution of, and any amendment, supplement or
modification to, this Agreement and the other Loan Documents and any other
documents prepared in connection herewith or therewith, and the consummation and
administration of the transactions contemplated hereby and thereby (including
the syndication of the Revolving Credit Commitments and Term Loans (including
the reasonable expenses of the Administrative Agent's due diligence
investigation)), including, without limitation, the reasonable fees and
disbursements of counsel to the Administrative Agent and the other Managing
Agents, (b) to pay or reimburse each Lender and the Administrative Agent for all
their respective costs and expenses incurred in connection with the enforcement
or preservation of any rights under this Agreement, the other Loan Documents and
any such other documents, including, without limitation, the fees and
disbursements of counsel (including the allocated fees and expenses of in-house
counsel) to the respective Lenders and the Administrative Agent, (c) to pay,
indemnify, and hold each Lender, the Administrative Agent, the other Managing
Agents and the European Swing Line Administrator harmless from, any and all
recording and filing fees and any and all liabilities with respect to, or
resulting from any delay in paying, stamp, excise and other taxes, if any, which
may be payable or determined to be payable in connection with the execution and
delivery of, or consummation or administration of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, this Agreement, the other Loan Documents and
any such other documents, and (d) to pay, indemnify, and hold each Lender, the
Administrative Agent, the other Managing Agents and the European Swing Line
Administrator and their respective directors, trustees,
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officers, affiliates, employees and agents harmless from and against any and all
other liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever with
respect to the execution, delivery, enforcement, performance and administration
of this Agreement, the other Loan Documents or the use or proposed use of the
proceeds of the Loans in connection with the transactions contemplated hereby
and thereby and any such other documents regardless of whether the
Administrative Agent or any Lender is a party to the litigation or other
proceeding giving rise thereto and regardless of whether any such litigation or
other proceeding is brought by the Borrower or any other Person, including,
without limitation, any of the foregoing relating to the violation of,
noncompliance with or liability under, any Environmental Law applicable to the
operations of the Borrower, any of its Subsidiaries or any of the facilities and
properties owed, leased or operated by the Borrower or any of its Subsidiaries
(all the foregoing in this clause (d), collectively, the "indemnified
liabilities"), provided that the Borrower shall have no obligation hereunder to
the Administrative Agent or any Lender or any other Person with respect to
indemnified liabilities arising from the gross negligence or willful misconduct
of the party seeking indemnification. The agreements in this subsection shall
survive repayment of the Loans and all other amounts payable hereunder.
11.6 Successors and Assigns; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of the
Borrower, the Lenders, the Administrative Agent, other Managing Agents and their
respective successors and assigns, except that none of the Borrowers may assign
or transfer any of its rights or obligations under this Agreement without the
prior written consent of each Lender.
(b) Any Lender may, in the ordinary course of its business or
investment activities and in accordance with applicable law, at any time sell to
one or more banks or other entities ("Participants") participating interests in
any Loan owing to such Lender, any Commitment of such Lender or any other
interest of such Lender hereunder and under the other Loan Documents. In the
event of any such sale by a Lender of a participating interest to a Participant,
such Lender's obligations under this Agreement to the other parties to this
Agreement shall remain unchanged, such Lender shall remain solely responsible
for the performance thereof, such Lender shall remain the holder of any such
Loan for all purposes under this Agreement and the other Loan Documents, and the
Borrower and the Administrative Agent shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and obligations under
this Agreement and the other Loan Documents. No Lender shall be entitled to
create in favor of any Participant, in the participation agreement pursuant to
which such Participant's participating interest shall be created or otherwise,
any right to vote on, consent to or approve any matter relating to this
Agreement or any other Loan Document except for those matters specified in
clauses (i) and (ii) of the proviso to subsection 11.1. The Borrower agrees that
if amounts outstanding under this Agreement are due or unpaid, or shall have
been declared or shall have become due and payable upon the occurrence of an
Event of Default, each Participant shall, to the maximum extent permitted by
applicable law, be deemed to have the right of setoff in respect of its
participating interest in amounts owing under this Agreement to the same extent
as if the amount of its participating interest were owing directly to it as a
Lender under this Agreement, provided that, in purchasing such participating
interest, such Participant shall be deemed to have agreed to share with the
Lenders the proceeds thereof as provided in subsection 11.7(a) as fully as if it
were a Lender hereunder. The Borrower also agrees that each Participant shall be
entitled
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to the benefits of subsections 4.10, 4.11 and 4.12 with respect to its
participation in the Commitments and the Loans outstanding from time to time as
if it was a Lender; provided that, in the case of subsection 4.11, such
Participant shall have complied with the requirements of said subsection and
provided, further, that no Participant shall be entitled to receive any greater
amount pursuant to any such subsection than the transferor Lender would have
been entitled to receive in respect of the amount of the participation
transferred by such transferor Lender to such Participant had no such transfer
occurred.
(c) Any Lender may, in the ordinary course of its business or
investment activities and in accordance with applicable law, at any time and
from time to time assign to any Lender or any branch or affiliate thereof or,
with the consent of the Borrower and the Administrative Agent (which in each
case shall not be unreasonably withheld or delayed), to an additional bank or
financial institution (an "Assignee") all or any part of its rights and
obligations under this Agreement and the other Loan Documents pursuant to an
Assignment and Acceptance, substantially in the form of Exhibit F, executed by
such Assignee and such assigning Lender (and, in the case of an Assignee that is
not then a Lender or a branch or an affiliate thereof, by the Borrower and the
Administrative Agent) and delivered to the Administrative Agent for its
acceptance and recording in the Register, provided that, in the case of any such
assignment to an additional bank or financial institution, if such assignment is
of less than all of the rights and obligations of the assigning Lender, the sum
of the aggregate principal amount of the Loans, the aggregate amount of the L/C
Obligations and the aggregate amount of the Available Revolving Credit
Commitment being assigned shall not be less than $5,000,000 (or such lesser
amount as may be agreed to by the Borrower and the Administrative Agent). Upon
such execution, delivery, acceptance and recording, from and after the effective
date determined pursuant to such Assignment and Acceptance, (x) the Assignee
thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender hereunder
with a Commitment as set forth therein, and (y) the assigning Lender thereunder
shall, to the extent provided in such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such assigning Lender shall cease to be a
party hereto but shall nonetheless continue to be entitled to the benefits of
subsections 4.10, 4.11, 4.12 and 11.5). Notwithstanding any provision of this
paragraph (c) and paragraph (e) of this subsection, the consent of the Borrower
shall not be required for any assignment which occurs at any time when any of
the Events of Default described in Section 9(f) shall have occurred and be
continuing.
(d) The Administrative Agent, on behalf of the Borrower, shall
maintain at the address of the Administrative Agent referred to in subsection
11.2 a copy of each Assignment and Acceptance delivered to it and a register
(the "Register") for the recordation of the names and addresses of the Lenders
and the Commitments of, and principal amounts of the Loans owing to, each Lender
from time to time (whether or not evidenced by a Note). Any assignment or
transfer of all or part of a Loan evidenced by a Note shall be registered on the
Register only upon surrender for registration of assignment or transfer of the
Note evidencing such Loan, accompanied by a duly executed Assignment and
Acceptance, and thereupon one or more new Notes in the same aggregate principal
amount shall be issued to the designated Assignee and the old Note shall be
returned by the Administrative Agent to the Borrower marked "canceled". The
entries in the Register shall be conclusive, in the absence of manifest error,
and the Borrower, the
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Administrative Agent and the Lenders shall treat each Person whose name is
recorded in the Register as the owner of a Loan or other obligation hereunder as
the owner thereof for all purposes of this Agreement and the other Loan
Documents, notwithstanding any notice to the contrary. Any assignment of any
Loan or other obligation (whether or not evidenced by a Note) hereunder shall be
effective only upon appropriate entries with respect thereto being made in the
Register. The Register shall be available for inspection by the Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an Assignee (and, in the case of an Assignee that is
not then a Lender or an affiliate thereof, by the Borrower and the
Administrative Agent) together with payment to the Administrative Agent of a
registration and processing fee of $3,500, the Administrative Agent shall
promptly accept such Assignment and Acceptance and record the information
contained therein in the Register. Such Assignment and Acceptance and the
assignment evidenced thereby shall only be effective upon appropriate entries
with respect to the information contained therein being made in the Register
pursuant to subsection 11.6(d).
(f) The Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee,
subject to such Person agreeing to comply with the provisions of subsection
11.15, any and all financial and other information in such Lender's possession
concerning the Borrower and its Affiliates which has been delivered to such
Lender by or on behalf of the Borrower pursuant to this Agreement or which has
been delivered to such Lender by or on behalf of the Borrower in connection with
such Lender's credit evaluation of the Borrower and its Affiliates prior to
becoming a party to this Agreement.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection concerning assignments of
Loans and Notes relate only to absolute assignments and that such provisions do
not prohibit assignments creating security interests, including, without
limitation, any pledge or assignment by a Lender of any Loan or Note to any
Federal Reserve Bank in accordance with applicable law.
11.7 Adjustments; Set-off. (a) Other than as provided for in
subsection 2.6 in respect of the Swing Line Lenders, if any Lender (a
"benefitted Lender") shall at any time receive any payment of all or part of its
Loans or the Reimbursement Obligations owing to it, or interest thereon, or
receive any collateral in respect thereof (whether voluntarily or involuntarily,
by set-off, pursuant to events or proceedings of the nature referred to in
Section 9(f), or otherwise), in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of such other
Lender's Loans or the Reimbursement Obligations owing to it, or interest
thereon, such benefitted Lender shall purchase for cash from the other Lenders a
participating interest (or, at the option of such benefitted Lender, a direct
interest) in such portion of each such other Lender's Loan or the Reimbursement
Obligations owing to it, or shall provide such other Lenders with the benefits
of any such collateral, or the proceeds thereof, as shall be necessary to cause
such benefitted Lender to share the excess payment or benefits of such
collateral or proceeds ratably with each of the Lenders; provided that if all or
any portion of such excess payment or benefits is thereafter recovered from such
benefitted Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest.
<PAGE> 114
108
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to any
Borrower, any such notice being expressly waived by each Borrower to the extent
permitted by applicable law, upon any amount remaining unpaid (including,
without limitation, any amount owing to such Lender in respect of an undivided
participation interest purchased by such Lender in any Swing Line Loan pursuant
to subsection 2.6(d) or an undivided interest purchased by such Lender in any
draft paid by the Issuing Lender under any Letter of Credit pursuant to
subsection 3.4(a)) after it becomes due and payable by a Borrower hereunder
(whether at the stated maturity, by acceleration or otherwise) to set-off and
appropriate and apply against such amount any and all deposits (general or
special, time or demand, provisional or final), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender or any affiliate, branch or agency thereof to or for the
credit or the account of a Borrower. Each Lender agrees promptly to notify the
Borrower and the Administrative Agent after any such set-off and application
made by such Lender, provided that the failure to give such notice shall not
affect the validity of such set-off and application.
11.8 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts
(including by facsimile transmission), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. A set of the
copies of this Agreement signed by all the parties shall be lodged with the
Borrower and the Administrative Agent.
11.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
11.10 Integration. This Agreement and the other Loan Documents
and the Fee Letter represent the agreement of the Loan Parties, the
Administrative Agent and the Lenders with respect to the subject matter hereof,
and there are no promises, undertakings, representations or warranties by the
Administrative Agent or any Lender relative to subject matter hereof not
expressly set forth or referred to herein or in the other Loan Documents or the
Fee Letter.
11.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
11.12 Submission To Jurisdiction; Waivers. Each of the
Borrowers hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any
judgement in respect thereof, to the non-exclusive
<PAGE> 115
109
general jurisdiction of the courts of the State of New York, the courts
of the United States for the Southern District of New York, and
appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or
that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to such Borrower at its address referred to in subsection 11.2
or at such other address of which the Administrative Agent shall have
been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this subsection any special, exemplary, punitive or
consequential damages.
11.13 Acknowledgments. Each of the Borrowers hereby
acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to such Borrower arising out of or
in connection with this Agreement or any of the other Loan Documents,
and the relationship between Administrative Agent and Lenders, on one
hand, and such Borrower, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among such Borrower and the
Lenders.
11.14 WAIVERS OF JURY TRIAL. EACH OF THE BORROWERS, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
11.15 Confidentiality. Each Lender agrees to keep confidential
any written information (a) provided to it by or on behalf of the Borrower or
any of its Subsidiaries pursuant to or in connection with this Agreement or (b)
obtained by such Lender based on a review of the books and records of the
Borrower or any of its Subsidiaries; provided that nothing herein shall
<PAGE> 116
110
prevent any Lender from disclosing any such information (i) to the
Administrative Agent or any other Lender, (ii) to any Transferee, prospective
Transferee or to any direct or indirect contractual counterparty in swap
agreements payments with respect to which are related to payments made pursuant
to this Agreement or such contractual counterparty's professional advisors, in
each case, which agrees to comply with the provisions of this subsection, (iii)
to its employees, directors, agents, attorneys, affiliates, accountants and
other professional advisors, (iv) upon the request or demand of any Governmental
Authority having jurisdiction over such Lender or as shall be required pursuant
to any Requirement of Law, (v) in response to any order of any court or other
Governmental Authority or as may otherwise be required pursuant to any
Requirement of Law, (vi) in connection with any litigation to which such Lender
is a party, (vii) which has been publicly disclosed other than in breach of this
Agreement, or (viii) to the extent reasonably necessary, in connection with the
exercise of any remedy hereunder.
11.16 Effect of Amendment and Restatement of the Prior Credit
Agreement. On the Closing Date, the Prior Credit Agreement shall be amended,
restated and superseded in its entirety. The parties hereto acknowledge and
agree that (a) this Agreement and the other Loan Documents executed and
delivered in connection herewith do not constitute a novation, payment and
reborrowing, or termination of the "Obligations" (as defined in the Loan
Documents in respect of the Prior Credit Agreement) under the Prior Credit
Agreement as in effect prior to the Closing Date; (b) such "Obligations" are in
all respects continuing (as amended and restated hereby) with only the terms
thereof being modified as provided in this Agreement; and (c) the Liens and
security interests as granted under the Security Documents (as defined herein)
securing payment of such "Obligations" are in all respects continuing and in
full force and effect and secure the payment of the Obligations (as defined in
the Loan Documents in respect of this Agreement).
11.17 Judgment. (a) If for the purpose of obtaining judgment
in any court it is necessary to convert a sum due hereunder in one currency into
another currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could
purchase the first currency with such other currency on the second Business Day
preceding the day on which final judgment is given.
(b) The obligation of each of the Borrowers in respect of any
sum due to any Lender or the Administrative Agent hereunder shall,
notwithstanding any judgment in a currency (the "Judgment Currency") other than
that in which such sum is denominated in accordance with the applicable
provisions of this Agreement or the other Loan Documents (the "Agreement
Currency"), be discharged only to the extent that on the second Business Day
following receipt by such Lender or the Administrative Agent (as the case may
be) of any sum adjudged to be so due in the Judgment Currency such Lender or the
Administrative Agent (as the case may be) may in accordance with normal banking
procedures purchase the Agreement Currency with the Judgment Currency; if the
amount of the Agreement Currency so purchased is less than the sum originally
due to such Lender or the Administrative Agent (as the case may be) in the
Agreement Currency, each of the Borrowers agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify such Lender or the
Administrative Agent (as the case may be) against such loss, and if the amount
of the Agreement Currency so purchased exceeds the sum originally due to any
Lender or the Administrative Agent (as the case may be), such Lender or the
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111
Administrative Agent (as the case may be) agrees to remit to the Borrower such
excess. The obligations of each of the Borrowers contained in this subsection
11.17 shall survive the termination of this Agreement and the payment of all
amounts owing hereunder.
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112
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
HAYES LEMMERZ INTERNATIONAL, INC.
By:
Title:
CANADIAN IMPERIAL BANK OF
COMMERCE, NEW YORK AGENCY, as
Administrative Agent, Co-Lead Arranger
and as a Lender
By:
Title:
CREDIT SUISSE FIRST BOSTON, as
Syndication Agent, Co-Lead Arranger and
as a Lender
By:
Title:
By:
Title:
DRESDNER BANK AG NEW YORK AND GRAND
CAYMAN BRANCHES, as Co-Documentation
Agent, as European Swing Line
Administrator and as a Lender
By:
Title:
MERRILL LYNCH & CO., MERRILL LYNCH
PIERCE FENNER & SMITH INCORPORATED, as
Co-Documentation Agent
<PAGE> 119
113
By:
Title:
MERRILL LYNCH CAPITAL CORPORATION, as
Lender
By:
Title:
<PAGE> 120
1
SCHEDULE B
APPLICABLE MARGIN AND APPLICABLE COMMITMENT FEE RATE
<TABLE>
<CAPTION>
Applicable Margin
Applicable
Commitment Fee
Leverage Ratio LIBOR Spread Base Rate Spread Rate
- ------------------------------------------------------------ ------------- ------------------ --------------
<S> <C> <C> <C>
Greater than or equal to 5.250 to 1 2.50 % 1.00 % 0.500 %
Less than 5.250 to 1 but greater than or equal to 4.750
to 1 2.25 % .75 % 0.500 %
Less than 4.750 to 1 but greater than or equal to 4.250
to 1 2.00 % .50 % 0.425 %
Less than 4.250 to 1 but greater than or equal to 3.750
to 1 1.75 % .25 % 0.375 %
Less than 3.750 to 1 but greater than or equal to 3.250
to 1 1.50 % .00 % 0.300 %
Less than 3.250 to 1 1.25 % .00 % 0.300 %
</TABLE>
<PAGE> 121
1
SCHEDULE C
AVAILABLE FOREIGN CURRENCIES
TERM LOANS
1. Deutschemarks or such other lawful currency of Germany.
1. euro unit.
FOREIGN CURRENCY REVOLVING CREDIT LOANS, FOREIGN CURRENCY COMPETITIVE
LOANS AND FOREIGN CURRENCY LETTERS OF CREDIT
1. Deutschemarks or such other lawful currency of Germany.
2. U.K. Pounds Sterling or such other lawful currency of England.
3. French Francs or such other lawful currency of France.
4. euro unit.
FOREIGN CURRENCY SWING LINE LOANS
1. Deutschemarks or such other lawful currency of Germany.
2. Lire or such other lawful currency of Italy.
3. Belgian Francs or such other lawful currency of Belgium.
4. Guilders or such other lawful currency of the Netherlands.
5. Pesetas or such other lawful currency of Spain.
6. Turkish Lira or such other lawful currency of Turkey.
2. euro unit.
3. Brazilian Real or such other lawful currency of Brazil.
