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<PAGE>
Exhibit 99.1
EXECUTION VERSION [2]
EIGHTH AMENDMENT
TO REVOLVING CREDIT, TERM LOAN AND
GUARANTY AGREEMENT
EIGHTH AMENDMENT, dated as of January 23, 2007 (the "Amendment"),
to
the REVOLVING CREDIT, TERM LOAN AND GUARANTY AGREEMENT, dated as of
February 2,
2005, among R.J. TOWER CORPORATION, a Michigan corporation (the
"Borrower"), a
debtor and debtor-in-possession in a case pending under Chapter 11
of the
Bankruptcy Code, TOWER AUTOMOTIVE, INC., a Delaware corporation and
the parent
company of the Borrower (the "Parent"), and the subsidiaries of the
Borrower
signatory hereto (together with the Parent, each a "Guarantor" and
collectively
the "Guarantors"), each of which Guarantors is a debtor and
debtor-in-possession
in a case pending under Chapter 11 of the Bankruptcy Code, JPMORGAN
CHASE BANK,
N.A., a national banking association ("JPMCB"), each of the other
financial
institutions from time to time party hereto (together with JPMCB,
the "Lenders")
and JPMORGAN CHASE BANK, N.A., as administrative agent (in such
capacity, the
"Agent") for the Lenders.
WITNESSETH:
WHEREAS, the Borrower, the Guarantors, the Lenders and the Agent
are
parties to that certain Revolving Credit, Term Loan and Guaranty
Agreement,
dated as of February 2, 2005, as amended by that certain First
Amendment to
Revolving Credit, Term Loan and Guaranty Agreement, dated as of
February 28,
2005, that certain Second Amendment to Revolving Credit, Term Loan
and Guaranty
Agreement dated as of February 28, 2005, that certain Third
Amendment to
Revolving Credit, Term Loan and Guaranty Agreement dated as of
February 28,
2005, that certain Fourth Amendment to Revolving Credit, Term Loan
and Guaranty
Agreement dated as of April 29, 2005, that certain Fifth Amendment
to Revolving
Credit, Term Loan and Guaranty Agreement dated as of October 3,
2005, that
certain Sixth Amendment to Revolving Credit, Term Loan and Guaranty
Agreement
dated as of February 15, 2006 and that certain Seventh Amendment to
Revolving
Credit, Term Loan and Guaranty Agreement dated as of September 29,
2006 (as the
same has been, and as may be further, waived, amended, restated,
modified or
supplemented from time to time, the "Credit Agreement"); and
WHEREAS, upon the occurrence of the Effective Date (as hereinafter
defined)
of this Amendment, each of the Amended and Restated Lenders (as
hereinafter
defined) shall be deemed to have become, by executing and
delivering this
Amendment, a party to the Credit Agreement (as in effect after
giving effect to
this Amendment) in the form of Exhibit A hereto as a "Lender" and
shall have the
rights and obligations of a Lender thereunder and each of the
Amended and
Restated Lenders shall have the interest(s) shown opposite its name
on Annex A
to the Credit Agreement (as in effect after giving effect to this
Amendment)
under the heading "Tranche A Lender" and/or "Tranche B Lender", as
the case may
be (each such Lender, an "Amended and Restated Lender").
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Defined Terms. As used herein, all terms that are defined in
the
Credit Agreement (after giving effect to this Amendment) shall have
the same
meanings herein.
<PAGE>
2. Amendments to Body of Credit Agreement. The Credit Agreement
is
hereby amended and restated by inserting each of the provisions
which appear
with computerized underscoring and by deleting each of the
provisions which
appear with computerized strike-through in the document annexed
hereto as
Exhibit A.
3. Signature Pages to Credit Agreement. The signature pages of
the
Credit Agreement are hereby amended to conform to the signature
pages hereto.
4. Amendments to Annex A. Annex A to the Credit Agreement (as
in
effect prior to giving effect to this Amendment) is hereby replaced
in its
entirety by Annex A to the document attached as Exhibit A
hereto.
5. Conditions to Effectiveness. This Amendment and the amendment
and
restatement of the Credit Agreement shall become effective on the
date (the
"Effective Date") on which each of the following shall have
occurred and the
Agent shall have received evidence reasonably satisfactory to it of
such
occurrence: (i) this Amendment shall have been executed by the
Borrower, the
Guarantors and the Amended and Restated Lenders and the payments
and repayments
specified in paragraph 6 below, shall have been made; (ii) on or
before January
31, 2007, the Bankruptcy Court shall have entered an order
reasonably
satisfactory in form and substance to the Agent authorizing the
amendment and
restatement of the Credit Agreement and the payment by the Borrower
(x) to the
Agent for the account of the Amended and Restated Lenders, of an
amendment fee
in an aggregate amount equal to 1.00% of the Total Commitment on
the Effective
Date and (y) to the Agent for its own account, of the other fees
referred to in
that certain Eighth Amendment Fee Letter dated the date hereof, and
(iii) such
amendment and other fees shall have been paid in cash to the Agent
within one
Business Day after entry of the order referred to above.
6. Payments upon Effectiveness. On the Effective Date, (i) the
Tranche
A Commitments and the Tranche B Commitments, as the case may be, of
the Lenders
under the Credit Agreement before giving effect to this Amendment
who are not
Amended and Restated Lenders (collectively, the "Terminating
Lenders") shall be
terminated, (ii) the Amended and Restated Lenders shall make or be
deemed to
have made, as the case may be, to the extent necessary, Loans or
additional
Loans, as the case may be, to the Borrower in accordance with their
respective
Tranche A Commitment Percentages and Tranche B Commitment
Percentages after
giving effect to this Amendment in an aggregate amount necessary to
repay in
full the outstanding principal amount of the Loans of the
Terminating Lenders
(it being understood and agreed that no Lender shall be obligated
to increase
its Commitment notwithstanding the termination of the Commitment(s)
of any
Terminating Lender), (iii) if any Letters of Credit are outstanding
on the
Effective Date, the undivided interests and participations therein
of the
Terminating Lenders that were Tranche A Lenders before giving
effect to this
Amendment shall terminate and each of the Amended and Restated
Lenders that are
Tranche A Lenders shall be deemed to have purchased from the
Fronting Bank
pursuant to Section 2.03(d) of the Credit Agreement an undivided
interest and
participation in such Letters of Credit to the extent of such
Lender's Tranche A
Commitment Percentage, (iv) the Borrower shall pay any accrued but
unpaid
interest and Fees owing to the Terminating Lenders as of the
Effective Date and
(v) the Terminating Lenders shall no longer be Lenders under the
Credit
Agreement.
2
<PAGE>
7. Ratification. Except to the extent hereby amended, the
Credit
Agreement and each of the Loan Documents remain in full force and
effect and are
hereby ratified and affirmed.
8. Expenses. The Borrower agrees that its obligations set forth
in
Section 10.05 of the Credit Agreement shall extend to the
preparation, execution
and delivery of this Amendment, including the reasonable fees and
disbursements
of counsel to the Agent.
9. Limitation. This Amendment shall be limited precisely as
written
and shall not be deemed (a) to be a consent granted pursuant to, or
a waiver or
modification of, any term or condition of the Credit Agreement or
any of the
instruments or agreements referred to therein or (b) to prejudice
any right or
rights which the Agent or the Lenders may now have or have in the
future under
or in connection with the Credit Agreement or any of the
instruments or
agreements referred to therein. Unless the context indicates
otherwise, whenever
the Credit Agreement is referred to in the Credit Agreement or any
of the
instruments, agreements or other documents or papers executed or
delivered in
connection therewith, such reference shall be deemed to mean the
Credit
Agreement as amended and restated by this Amendment.
10. Counterparts. This Amendment may be executed in any number
of
counterparts and by the different parties hereto in separate
counterparts, each
of which shall be an original and all of which, when taken
together, shall
constitute but one and the same instrument. A facsimile or .pdf
copy of a
counterpart signature page shall serve as the functional equivalent
of a
manually executed copy for all purposes.
11. Governing Law. This Amendment shall be governed by, and
construed
in accordance with, the laws of the State of New York.
[SIGNATURE PAGES FOLLOW]
3
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to
be duly executed as of the day and the year first written.
BORROWER:
R.J. TOWER CORPORATION
By: /s/ James Mallak
------------------------------------
Name: James Mallak
Title: Chief Financial Officer
GUARANTORS:
TOWER AUTOMOTIVE, INC.
By: /s/ James Mallak
------------------------------------
Name: James Mallak
Title: Chief Financial Officer
Signature Page to Eighth Amendment to
Revolving Credit, Term Loan and Guaranty Agreement
<PAGE>
AGENT AND LENDERS:
JPMORGAN CHASE BANK, N.A.
INDIVIDUALLY AND AS AGENT
By: /s/ Richard W. Duker
------------------------------------
Name: Richard W. Duker
Title: Managing Director
Signature Page to Eighth Amendment to
Revolving Credit, Term Loan and Guaranty Agreement
<PAGE>
ACA CLO 2005-1, LIMITED
By: /s/ Vincent Ingato
------------------------------------
Name: Vincent Ingato
Title: Managing Director
ACA CLO 2006-1, LIMITED
By: /s/ Vincent Ingato
------------------------------------
Name: Vincent Ingato
Title: Managing Director
ACCESS INSTITUTIONAL LOAN FUND
BY: DEERFIELD CAPITAL MANAGEMENT LLC AS
ITS PORTFOLIO MANAGER
By: /s/ Carol Kiel
------------------------------------
Name: Carol Kiel
Title: Sr. Vice President
ALLSTATE LIFE INSURANCE COMPANY
By: /s/ Robert B. Bodett
------------------------------------
Name: Robert B. Bodett
Title: Authorized Signatory
By: /s/ Mark Cloghessy
------------------------------------
Name: Mark Cloghessy
Title: Authorized Signatory
AIMCO CLO, SERIES 2005-A
By: /s/ Robert B. Bodett
------------------------------------
Name: Robert B. Bodett
Title: Authorized Signatory
By: /s/ Mark Cloghessy
------------------------------------
Name: Mark Cloghessy
Title: Authorized Signatory
Signature Page to Eighth Amendment to
Revolving Credit, Term Loan and Guaranty Agreement
<PAGE>
AMERIPRISE CERTIFICATE COMPANY
By: RiverSource Investments, LLC as
Collateral Manager
By: /s/ Steven B. Staver
------------------------------------
Name: Steven B. Staver
Title: Managing Director
ATLAS LOAN FUNDING (CENT 1) LLC
By: RiverSource Investments, LLC
Attorney in Fact
By: /s/ Robin C. Stancil
------------------------------------
Name: Robin C. Stancil
Title: Director of Operations
ATRIUM III
By: /s/ Andrew H. Marchak
------------------------------------
Name: Andrew H. Marchak
Title: Managing Director
AURUM CLO 2002-1 LTD.
By: Deutsche Investment Management
America, Inc. (as successor in
interest to Deutsche Asset
Management, Inc.) As Sub-advisor
By: /s/ Eric S. Meyer
------------------------------------
Name: Eric S. Meyer
Title: Director
By: /s/ Mark Rigazio
------------------------------------
Name: Eric S. Meyer
Title: Vice President
AVENUE CLO FUND, LIMITED
AVENUE CLO II, LIMITED
By: /s/ Richard D'Addario
------------------------------------
Name: Richard D'Addario
Title: Senior Portfolio Manager
BALLYROCK CLO II, LIMITED
By: BALLYROCK Investment Advisors LLC,
as Collateral Manager
By: /s/ Lisa Rymut
------------------------------------
Name: Lisa Rymut
Title: Assistant Treasurer
Signature Page to Eighth Amendment to
Revolving Credit, Term Loan and Guaranty Agreement
<PAGE>
BALLYROCK CLO 2006-1 LTD.
By: BALLYROCK Investment Advisors LLC,
as Collateral Manager
By: /s/ Lisa Rymut
------------------------------------
Name: Lisa Rymut
Title: Assistant Treasurer
BALLYROCK CLO III, LIMITED
By: BALLYROCK Investment Advisors LLC,
as Collateral Manager
By: /s/ Lisa Rymut
------------------------------------
Name: Lisa Rymut
Title: Assistant Treasurer
BANK OF AMERICA, N.A.
By: /s/ Jonathan M. Barnes
------------------------------------
Name: Jonathan M. Barnes
Title: Vice President
BANK OF SCOTLAND
By: /s/ Karen Weich
------------------------------------
Name: Karen Weich
Title: Vice President
BAYERISCHE LANDESBANK
New York Branch
By: /s/ Stuart Schuler
------------------------------------
Name: Stuart Schuler
Title: Senior Vice President
By: /s/ Edward J. Cripps
------------------------------------
Name: Edward J. Cripps
Title: Vice President
BEAR STEARNS INVESTMENT PRODUCTS INC.
By: /s/ Jonathan Weiss
------------------------------------
Name: Jonathan Weiss
Title: Authorized Signatory
Signature Page to Eighth Amendment to
Revolving Credit, Term Loan and Guaranty Agreement
<PAGE>
BLACK DIAMOND CLO 2005-1 LTD.
By: Black Diamond CLO 2005-1 Adviser,
L.L.C. as its Collateral Manager
By: /s/ Stephen H. Dockoff
------------------------------------
Name: Stephen H. Dockoff
Title: Managing Principal
BLUE MOUNTAIN CLO LTD.
By: /s/ Kimberly Reina
------------------------------------
Name: Kimberly Reina
Title: Associate
BRYN MAWR CLO, LTD.
By: Deerfield Capital Management LLC as
its Collateral Manager
By: /s/ Carol Kiel
------------------------------------
Name: Carol Kiel
Title: Sr. Vice President
BUSHNELL CBNA LOAN FUNDING LLC, for
itself or as agent for Bushnell CFPI
Loan Funding LLC
By: /s/ Janet Haack
------------------------------------
Name: Janet Haack
Title: As Attorney In Fact
CAINE FUNDING
By: /s/ Neam Ahmed
------------------------------------
Name: Neam Ahmed
Title: Authorized Signatory
CASPIAN CAPITAL PARTNERS, L.P., AS A
LENDER
By: Mariner Investment Group, as
Investment Advisor
By: /s/ Charles R. Howe II
------------------------------------
Name: Charles R. Howe II
Title: President
Signature Page to Eighth Amendment to
Revolving Credit, Term Loan and Guaranty Agreement
<PAGE>
CELERITY CLO LIMITED
By: TCW Advisors, Inc., as Agent
By: /s/ Stephen Suo
------------------------------------
Name: Stephen Suo
Title: Vice President
By: /s/ G. Wayne Hosang
------------------------------------
Name: G. Wayne Hosang
Title: Vice President
CENTAURUS LOAN TRUST
By: Nomura Corporate Research and Asset
Management Inc. as Investment
Adviser
By: /s/ Richard W. Stewart
------------------------------------
Name: Richard W. Steward
Title: Managing Director
CENTURION CDO II, LTD.
By: RiverSource Investments, LLC as
Collateral Manager
By: /s/ Robin C. Stancil
------------------------------------
Name: Robin C. Stancil
Title: Director of Operations
CENTURION CDO III, LTD.
By: RiverSource Investments, LLC as
Collateral Manager
By: /s/ Robin C. Stancil
------------------------------------
Name: Robin C. Stancil
Title: Director of Operations
CENTURION CDO VI, LTD.
By: RiverSource Investments, LLC as
Collateral Manager
By: /s/ Robin C. Stancil
------------------------------------
Name: Robin C. Stancil
Title: Director of Operations
CENTURION CDO VII, LTD.
By: RiverSource Investments, LLC as
Collateral Manager
By: /s/ Robin C. Stancil
------------------------------------
Name: Robin C. Stancil
Title: Director of Operations
Signature Page to Eighth Amendment to
Revolving Credit, Term Loan and Guaranty Agreement
<PAGE>
CENTURION CDO 8, LTD.
By: RiverSource Investments, LLC as
Collateral Manager
By: /s/ Robin C. Stancil
------------------------------------
Name: Robin C. Stancil
Title: Director of Operations
CENTURION CDO 9, LTD.
By: RiverSource Investments, LLC as
Collateral Manager
By: /s/ Robin C. Stancil
------------------------------------
Name: Robin C. Stancil
Title: Director of Operations
CENT CDO 10, LTD.
By: RiverSource Investments, LLC as
Collateral Manager
By: /s/ Robin C. Stancil
------------------------------------
Name: Robin C. Stancil
Title: Director of Operations
CENTCDO XI, LTD.
By: RiverSource Investments, LLC as
Collateral Manager
By: /s/ Robin C. Stancil
------------------------------------
Name: Robin C. Stancil
Title: Director of Operations
CENTCDO 12, LTD.
By: RiverSource Investments, LLC as
Collateral Manager
By: /s/ Robin C. Stancil
------------------------------------
Name: Robin C. Stancil
Title: Director of Operations
CHATHAM LIGHT II CLO, LIMITED by Sankaty
Advisors LLC, as Collateral Manager
By: /s/ Alan K. Halfenger
------------------------------------
Name: Alan K. Halfenger
Title: Chief Compliance Officer
Assistant Secretary
Signature Page to Eighth Amendment to
Revolving Credit, Term Loan and Guaranty Agreement
<PAGE>
CHATHAM LIGHT III CLO, LTD
By: Sankaty Advisors LLC, as
Collateral Manager
By: /s/ Alan K. Halfenger
------------------------------------
Name: Alan K. Halfenger
Title: Chief Compliance Officer
Assistant Secretary
CITADEL HILL 2000 LTD.
By: /s/ Ken Irvine
------------------------------------
Name: Ken Irvine
Title: Authorized Signatory
THE CIT GROUP / BUSINESS CREDIT, INC.
By: /s/ Eustachio Bruno
------------------------------------
Name: Eustachio Bruno
Title: Vice President
CITIBANK, N.A.
By: /s/ Christine M. Kanicki
------------------------------------
Name: Christine M. Kanicki
Title: Attorney-In-Fact
CLASSIC CAYMAN B.D. LTD. as Lender
By: /s/ John Fitzerald
------------------------------------
Name: John Fitzgerald
Title: Authorized Signatory
By: /s/ Annette Halprin
------------------------------------
Name: Annette Halrpin
Title: Authorized Signatory
Signature Page to Eighth Amendment to
Revolving Credit, Term Loan and Guaranty Agreement
<PAGE>
CLYDESDALE CLO 2003 LTD.
By: Nomura Corporate Research and Asset
Management Inc. as Collateral
Manager
By: /s/ Richard W. Stewart
------------------------------------
Name: Richard W. Steward
Title: Managing Director
CLYDESDALE CLO 2004, LTD.
By: Nomura Corporate Research and Asset
Management Inc. as Investment
Manager
By: /s/ Richard W. Stewart
------------------------------------
Name: Richard W. Steward
Title: Managing Director
CLYDESDALE CLO 2005, LTD.
By: Nomura Corporate Research and Asset
Management Inc. as Investment
Manager
By: /s/ Richard W. Stewart
------------------------------------
Name: Richard W. Steward
Title: Managing Director
CLYDESDALE CLO 2006 LTD.
By: Nomura Corporate Research and Asset
Management Inc. as Investment
Manager
By: /s/ Richard W. Stewart
------------------------------------
Name: Richard W. Steward
Title: Managing Director
CLYDESDALE STRATEGIC CLO-1, LTD.
By: Nomura Corporate Research and Asset
Management Inc. as Investment
Manager
By: /s/ Richard W. Stewart
------------------------------------
Name: Richard W. Steward
Title: Managing Director
Signature Page to Eighth Amendment to
Revolving Credit, Term Loan and Guaranty Agreement
<PAGE>
CREDIT SUISSE ASSET MANAGEMENT
SYNDICATED LOAN FUND
By: /s/ Andrew H. Marshak
------------------------------------
Name: Andrew H. Marshak
Title: Managing Director
CREDIT SUISSE LOAN FUNDING LLC
By: /s/ Barry Zamore
------------------------------------
Name: Barry Zamore
Title: Managing Director
By: /s/ Robert Franz
------------------------------------
Name: Robert Franz
Title: Managing Director
CSAM FUNDING IV
By: /s/ Andrew H. Marshak
------------------------------------
Name: Andrew H. Marshak
Title: Managing Director
CUMBERLAND II CLO LTD.
By: Deerfield Capital Management LLC as
its Collateral Manager
By: /s/ Carol Kiel
------------------------------------
Name: Carol Kiel
Title: Sr. Vice President
CYPRESSTREE CLAIF FUNDING LLC
By: /s/ L. Murchison Taylor
------------------------------------
Name: L. Murchison Taylor
Title: Vice President
DIAMOND SPRINGS TRADING LLC
By: /s/ L. Murchison Taylor
------------------------------------
Name: L. Murchison Taylor
Title: Vice President
Signature Page to Eighth Amendment to
Revolving Credit, Term Loan and Guaranty Agreement
<PAGE>
DINOSAUR SPIRET LOAN TRUST
By: Wilmington Trust Company not in its
individual capacity but solely as
trustee
By: /s/ Mary Kay Crupillo
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EATON VANCE CREDIT OPPORTUNITIES FUND
By: Eaton Vance Management as
Investment Advisor
By: /s/ Michael B. Botthof
------------------------------------
Name: Michael B. Botthof
Title: Vice President
EATON VANCE INSTITUTIONAL SENIOR LOAN
FUND
By: Eaton Vance Management as
Investment Advisor
By: /s/ Michael B. Botthof
------------------------------------
Name: Michael B. Botthof
Title: Vice President
EATON VANCE LIMITED DURATION INCOME FUND
By: Eaton Vance Management as
Investment Advisor
By: /s/ Michael B. Botthof
------------------------------------
Name: Michael B. Botthof
Title: Vice President
EATON VANCE FLOATING-RATE INCOME TRUST
By: Eaton Vance Management as
Investment Advisor
By: /s/ Michael B. Botthof
------------------------------------
Name: Michael B. Botthof
Title: Vice President
EATON VANCE CDO III, LTD.
By: Eaton Vance Management as
Investment Advisor
By: /s/ Michael B. Botthof
------------------------------------
Name: Michael B. Botthof
Title: Vice President
Signature Page to Eighth Amendment to
Revolving Credit, Term Loan and Guaranty Agreement
<PAGE>
EATON VANCE CDO VI, LTD.
By: Eaton Vance Management as Investment
Advisor
By: /s/ Michael B. Botthof
------------------------------------
Name: Michael B. Botthof
Title: Vice President
EATON VANCE CDO VIII, LTD.
By: Eaton Vance Management as Investment
Advisor
By: /s/ Michael B. Botthof
------------------------------------
Name: Michael B. Botthof
Title: Vice President
EATON VANCE CDO IX, LTD.
By: Eaton Vance Management as Investment
Advisor
By: /s/ Michael B. Botthof
------------------------------------
Name: Michael B. Botthof
Title: Vice President
EATON VANCE SENIOR FLOATING-RATE TRUST
By: Eaton Vance Management as Investment
Advisor
By: /s/ Michael B. Botthof
------------------------------------
Name: Michael B. Botthof
Title: Vice President
EATON VANCE SENIOR INCOME TRUST
By: Eaton Vance Management as Investment
Advisor
By: /s/ Michael B. Botthof
------------------------------------
Name: Michael B. Botthof
Title: Vice President
EATON VANCE SHORT DURATION DIVERSIFIED
INCOME FUND
By: Eaton Vance Management as Investment
Advisor
By: /s/ Michael B. Botthof
------------------------------------
Name: Michael B. Botthof
Title: Vice President
Signature Page to Eighth Amendment to
Revolving Credit, Term Loan and Guaranty Agreement
<PAGE>
EATON VANCE VARIABLE LEVERAGE FUND LTD.
By: Eaton Vance Management as Investment
Advisor
By: /s/ Michael B. Botthof
------------------------------------
Name: Michael B. Botthof
Title: Vice President
EVERGREEN CBNA LOAN FUNDING LLC
By: /s/ Janet Haack
------------------------------------
Name: Janet Haack
Title: As Attorney In Fact
FALL CREEK CLO, LTD.
By: /s/ Thomas N. Davis
------------------------------------
Name: Thomas N. Davis
Title: Authorized Signor
FIDELITY PURITAN TRUST: FIDELITY PURITAN
FUND
By: /s/ John H. Costello
------------------------------------
Name: John H. Costello
Title: Assistant Treasurer
FIRST 2004-I CLO, LTD.
By: TCW Advisors, Inc. its Collateral
Manager
By: /s/ Stephen Suo
------------------------------------
Name: Stephen Suo
Title: Vice President
By: /s/ G. Wayne Hosang
------------------------------------
Name: G. Wayne Hosang
Title: Vice President
FIRST 2004-II CLO, LTD.
By: TCW Advisors, Inc. its Collateral
Manager
By: /s/ Stephen Suo
------------------------------------
Name: Stephen Suo
Title: Vice President
By: /s/ G. Wayne Hosang
------------------------------------
Name: G. Wayne Hosang
Title: Vice President
Signature Page to Eighth Amendment to
Revolving Credit, Term Loan and Guaranty Agreement
<PAGE>
FLAGSHIP CLO IV
By: Deutsche Investment Management
Americas, Inc. (as successor in
interest to Deutsche Asset
Management, Inc.), as Sub-adviser
By: /s/ Eric S. Meyer
------------------------------------
Name: Eric S. Meyer
Title: Director
By: /s/ Mark Rigazio
------------------------------------
Name: Mark Rigazio
Title: Vice President
FLAGSHIP CLO V
By: Deutsche Investment Management
Americas, Inc. (as successor in
interest to Deutsche Asset
Management, Inc.)
By: /s/ Eric S. Meyer
------------------------------------
Name: Eric S. Meyer
Title: Director
By: /s/ Mark Rigazio
------------------------------------
Name: Mark Rigazio
Title: Vice President
THE FOOTHILL GROUP, INC.
By: /s/ Jeff Nikora
------------------------------------
Name: Jeff Nikora
Title: Executive Vice President
FOREST CREEK CLO, LTD.
By: Deerfield Capital Management LLC as
its Collateral Manager
By: /s/ Carol Kiel
------------------------------------
Name: Carol Kiel
Title: Sr. Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Rebecca L. Milligan
------------------------------------
Name: Rebecca L. Milligan
Title: Duly Authorized Signatory
Signature Page to Eighth Amendment to
Revolving Credit, Term Loan and Guaranty Agreement
<PAGE>
GOLDMAN SACHS CREDIT PARTNERS, L.P.
By: /s/ Pedre Ramirez
------------------------------------
Name: Pedre Ramirez
Title: Authorized Signatory
THE GOVERNOR AND COMPANY OF THE BANK OF
IRELAND
By: /s/ Paul Clarke
------------------------------------
Name: Paul Clarke
Title: Director
By: /s/ Louise O'Connor
------------------------------------
Name: Louise O'Connor
Title: Vice President
GRAND CENTRAL ASSET TRUST, LMI SERIES
By: /s/ Janet Haack
------------------------------------
Name: Janet Haack
Title: As Attorney In Fact
GRAND CENTRAL ASSET TRUST, PVV SERIES
By: /s/ Molly Walter
------------------------------------
Name: Molly Walter
Title: As Attorney In Fact
GRAYSON & CO.
By: Boston Management and Research as
Investment Advisor
By: /s/ Michael B. Botthof
------------------------------------
Name: Michael B. Botthof
Title: Vice Presidet
GULF STREAM-COMPASS CLO 2003-1 LTD.
By: Gulf Stream Asset Management LLC as
Collateral Manage
By: /s/ Mark Abrahm
------------------------------------
Name: Mark Abrahm
Title: Head Trader
Signature Page to Eighth Amendment to
Revolving Credit, Term Loan and Guaranty Agreement
<PAGE>
GULF STREAM-COMPASS CLO 2005-1 LTD.
By: Gulf Stream Asset Management LLC as
Collateral Manage
By: /s/ Mark Abrahm
------------------------------------
Name: Mark Abrahm
Title: Head Trader
HARBOUR TOWN FUNDING LLC
By: /s/ L. Murchison Taylor
------------------------------------
Name: L. Murchison Taylor
Title: Vice President
HARTFORD INSTITUTIONAL TRUST, ON BEHALF
OF ITS FLOATING RATE BANK LOAN SERIES
By: Hartford Investment Management
Company, its Investment Manager
By: /s/ John P. Connor
------------------------------------
Name: John P. Connor
Title: Senior Vice President
THE HARTFORD MUTUAL FUNDS, INC., ON
BEHALF OF THE HARTFORD FLOATING RATE
FUND by Hartford Investment Management
Company, its sub-advisor, as a lender
By: /s/ John P. Connor
------------------------------------
Name: John P. Connor
Title: Senior Vice President
HEWETT'S ISLAND CDO LTD.
By: CypressTree Investment Management
Company, Inc. as Portfolio Manager
By: /s/ Preston I. Carnes, Jr.
------------------------------------
Name: Preston I. Carnes, Jr.
Title: Managing Director
HEWETT'S ISLAND CLO II LTD.
By: CypressTree Investment Management
Company, Inc. as Portfolio Manager
By: /s/ Preston I. Carnes, Jr.
------------------------------------
Name: Preston I. Carnes, Jr.
Title: Managing Director
Signature Page to Eighth Amendment to
Revolving Credit, Term Loan and Guaranty Agreement
<PAGE>
HEWETT'S ISLAND CLO III LTD.
By: CypressTree Investment Management
Company, Inc. as Portfolio Manager
By: /s/ Preston I. Carnes, Jr.
------------------------------------
Name: Preston I. Carnes, Jr.
Title: Managing Director
HEWETT'S ISLAND CLO IV, LTD.
By: CypressTree Investment Management
Company, Inc. as Portfolio Manager
By: /s/ Robert E. Weeden
------------------------------------
Name: Robert E. Weeden
Title: Managing Director
HEWETT'S ISLAND CLO V, LTD.
By: CypressTree Investment Management
Company, Inc. as Portfolio Manager
By: /s/ Robert E. Weeden
------------------------------------
Name: Robert E. Weeden
Title: Managing Director
HIBISCUS CBNA LOAN FUNDING LLC, for
itself or as agent of Hibiscus CFPI
Loan Funding LLC
By: /s/ Janet Haack
------------------------------------
Name: As Attorney In Fact
Title:
---------------------------------
IDS LIFE INSURANCE COMPANY
By: RiverSource Investments, LLC as
Collateral Manager
By: /s/ Steven B. Staver
------------------------------------
Name: Steven B. Staver
Title: Managing Director
ING CAPITAL LLC
By: /s/ Bennett C. Whitehurst
------------------------------------
Name: Bennett C. Whitehurst
Title: Vice President
Signature Page to Eighth Amendment to
Revolving Credit, Term Loan and Guaranty Agreement
<PAGE>
ING PRIME RATE TRUST
By: ING Investment Management Co. as
its Investment Manager
By: /s/ Mark F. Haak, CFA
------------------------------------
Name: Mark F. Haak, CFA
Title: Vice President
ING SENIOR INCOME FUND
By: ING Investment Management Co. as
its Investment Manager
By: /s/ Mark F. Haak, CFA
------------------------------------
Name: Mark F. Haak, CFA
Title: Vice President
ING INVESTMENT MANAGEMENT CLO I, LTD.
By: ING Investment Management Co. as the
Investment Manager
By: /s/ Mark F. Haak, CFA
------------------------------------
Name: Mark F. Haak, CFA
Title: Vice President
ING INVESTMENT MANAGEMENT CLO II, LTD.
By: ING Alternative Asset Management
LLC, as the Investment Manager
By: /s/ Mark F. Haak, CFA
------------------------------------
Name: Mark F. Haak, CFA
Title: Vice President
ING INVESTMENT MANAGEMENT CLO III, LTD.
By: ING Alternative Asset Management
LLC, as the Investment Manager
By: /s/ Mark F. Haak, CFA
------------------------------------
Name: Mark F. Haak, CFA
Title: Vice President
Signature Page to Eighth Amendment to
Revolving Credit, Term Loan and Guaranty Agreement
<PAGE>
INVESTORS BANK & TRUST COMPANY
as Sub-Custodian Agent of CypressTree
International Loan Holding Company
Limited
By: /s/ Martha Hadeler
------------------------------------
Name: Martha Hadeler
Title: Managing Director
By: /s/ Robert Weeden
------------------------------------
Name: Robert Weeden
Title: Managing Director
JEFFERIES BUCKEYE MASTER FUND LTD.
By: Jefferies Asset Management, LLC,
its Investment Adviser
By: /s/ Michael Kaelan
------------------------------------
Name: Director of Operations
Title:
---------------------------------
JUPITER LOAN FUNDING LLC.
By: /s/ L. Murchison Taylor
------------------------------------
Name: L. Murchison Taylor
Title: Vice President
KKR FINANCIAL
By: /s/ Morgan W. Falk
------------------------------------
Name: Morgan W. Falk
Title: Authorized Signatory
LANDMARK V CDO LIMITED
By: Aladdin Capital Management LLC as
Manager
By: /s/ David S. Jepsky
------------------------------------
Name: David S. Jepsky
Title: Authorized Signatory
Signature Page to Eighth Amendment to
Revolving Credit, Term Loan and Guaranty Agreement
<PAGE>
LIGHTPOINT CLO 2004-1, LTD.
PREMIUM LOAN TRUST I, LTD.
LIGHTPOINT CLO III, LTD.
By: /s/ Colin Donlan
------------------------------------
Name: Colin Donlan
Title: Director
LOAN FUNDING I LLC. a wholly owned
subsidiary of Citibank, N.A.
By: TCW Advisors, Inc. as Portfolio
Manager of Loan Funding I LLC
By: /s/ Stephen Suo
------------------------------------
Name: Stephen Suo
Title: Vice President
By: /s/ G. Wayne Hosang
------------------------------------
Name: G. Wayne Hosang
Title: Vice President
LONG GROVE CLO, LIMITED
By: Deerfield Capital Management LLC as
its Collateral Manager
By: /s/ Carol Kiel
------------------------------------
Name: Carol Kiel
Title: Sr. Vice President
LONG LANE MASTER TRUST IV
By: /s/ L. Murchison Taylor
------------------------------------
Name: L. Murchison Taylor
Title: Authorized Agent
Signature Page to Eighth Amendment to
Revolving Credit, Term Loan and Guaranty Agreement
<PAGE>
MADISON PARK FUNDING I, LTD.
By: /s/ Andrew H. Marshak
------------------------------------
Name: Andrew H. Marshak
Title: Managing Director
MADISON PARK FUNDING II, LTD.
By: Credit Suisse Alternative Capital,
Inc., as Collateral Manager
By: /s/ Andrew H. Marshak
------------------------------------
Name: Andrew H. Marshak
Title: Managing Director
MALIBU CBNA LOAN FUNDING LLC, for itself
or as agent for Malibu CFPI Loan Funding
LLC
By: /s/ Janet Haack
------------------------------------
Name: Janet Haack
Title: As Attorney In Fact
MARINER LDC, AS A LENDER
By: Mariner Investment Group, as
Investment Advisor
By: /s/ Charles R. Howe II
------------------------------------
Name: Charles R. Howe II
Title: President
MERRILL LYNCH CAPITAL, a division of
Merrill Lynch Business Financial
Services Inc.
By: /s/ J. Burowski
------------------------------------
Name: J. Burowski
Title: Director
METROPOLITAN LIFE INSURANCE COMPANY
By: /s/ Michael Ping
------------------------------------
Name: Michael Ping
Title: Director
Signature Page to Eighth Amendment to
Revolving Credit, Term Loan and Guaranty Agreement
<PAGE>
MIZUHO CORPORATE BANK LTD.
By: /s/ Noel S. Purcell
------------------------------------
Name: Noel S. Purcell
Title: Senior Vice President
MJX ASSET MANAGEMENT
By: /s/ Frederick H. Taylor
------------------------------------
Name: Frederick H. Taylor
Title: Managing Director
MORGAN STANLEY SENIOR FUNDING, INC.
By: /s/ Donna M. Souza
------------------------------------
Name: Donna M. Souza
Title: Vice President
MUIRFIELD TRADING LLC
By: /s/ L. Murchison Taylor
------------------------------------
Name: L. Murchison Taylor
Title: Vice President
NATIONWIDE LIFE INSURANCE COMPANY
By: /s/ Thomas M. Powers
------------------------------------
Name: Thomas M. Powers
Title: Vice President
NATIONWIDE MUTUAL INSURANCE COMPANY
By: /s/ Thomas M. Powers
------------------------------------
Name: Thomas M. Powers
Title: Vice President
NATIXIS
By: /s/ Harold Birk
------------------------------------
Name: Harold Birk
Title: Managing Director
By: /s/ Kelvin Cheng
------------------------------------
Name: Kelvin Cheng
Title: Director
Signature Page to Eighth Amendment to
Revolving Credit, Term Loan and Guaranty Agreement
<PAGE>
NCRAM LOAN TRUST
By: Nomura Corporate Research and Asset
Management Inc. as Investment
Adviser
By: /s/ Richard W. Stewart
------------------------------------
Name: Richard W. Stewart
Title: Managing Director
NCRAM SENIOR LOAN TRUST 2005
By: Nomura Corporate Research and Asset
Management Inc. as Investment
Adviser
By: /s/ Richard W. Stewart
------------------------------------
Name: Richard W. Stewart
Title: Managing Director
NYLIM FLATIRON CLO-2003-1 LTD.
By: New York Life Investment Management
LLC, as Collateral Manager and
Attorney-in-Fact
By: /s/ F. David Melka
------------------------------------
Name: F. David Melka
Title: Director
NYLIM FLATIRON CLO-2004-1 LTD.
By: New York Life Investment Management
LLC, as Collateral Manager and
Attorney-in-Fact
By: /s/ F. David Melka
------------------------------------
Name: F. David Melka
Title: Director
NYLIM FLATIRON CLO-2005-1 LTD.
By: New York Life Investment Management
LLC, as Collateral Manager and
Attorney-in-Fact
By: /s/ F. David Melka
------------------------------------
Name: F. David Melka
Title: Director
NYLIM FLATIRON CLO-2006-1 LTD.
By: New York Life Investment Management
LLC, as Collateral Manager and
Attorney-in-Fact
By: /s/ F. David Melka
------------------------------------
Name: F. David Melka
Title: Director
Signature Page to Eighth Amendment to
Revolving Credit, Term Loan and Guaranty Agreement
<PAGE>
NOMURA BOND 8 LOAN FUND
By: Mitsubishi UFJ Trust & Banking
Corporation as Trustee
By: Nomura Corporate Research & Asset
Management Inc., Attorney-in-Fact
By: /s/ Richard W. Stewart
------------------------------------
Name: Richard W. Stewart
Title: Managing Director
OPPENHEIMER SENIOR FLOATING RATE FUND
By: /s/ Jason Reuter
------------------------------------
Name: Jason Reuter
Title: Manager
PINEHURST TRADING INC.
By: /s/ L. Murchison Taylor
------------------------------------
Name: L. Murchison Taylor
Title: Vice President
PB CAPITAL CORPORATION
By: /s/ Ronni J. Leopold
------------------------------------
Name: Ronni J. Leopold
Title: Vice President
By: /s/ Kevin M. Higgins
------------------------------------
Name: Kevin M. Higgins
Title: Assistant Vice President
PPM MONARCH BAY FUNDING LLC
By: /s/ L. Murchison Taylor
------------------------------------
Name: L. Murchison Taylor
Title: Vice President
PPM SHADOW CREEK FUNDING LLC
By: /s/ L. Murchison Taylor
------------------------------------
Name: L. Murchison Taylor
Title: Vice President
Signature Page to Eighth Amendment to
Revolving Credit, Term Loan and Guaranty Agreement
<PAGE>
RACE POINT IV CLO. LTD.
By: Sankaty Advisors, LLC as Collateral
Manager
By: /s/ Alan K. Halfenger
------------------------------------
Name: Alan K. Halfenger
Title: Chief Compliance Officer
Assistant Secretary
RIVERSOURCE BOND SERIES, INC.-
RIVERSOURCE FLOATING RATE FUND
By: /s/ Robin C. Stancil
------------------------------------
Name: Robin C. Stancil
Title: Assistant Vice President
ROSEMONT CLO, LTD.
By: Deerfield Capital Management LLC as
its Collateral Manager
By: /s/ Carol Kiel
------------------------------------
Name: Carol Kiel
Title: Sr. Vice President
SANKATY ADVISORS, LLC as Collateral
Manager for AVERY POINT CLO, LTD.,
as Term Lender
By: /s/ Alan K. Halfenger
------------------------------------
Name: Alan K. Halfenger
Title: Chief Compliance Officer
Assistant Secretary
SANKATY ADVISORS, LLC as Collateral
Manager for Castle Hill I - INGOTS, Ltd,
as Term Lender
By: /s/ Alan K. Halfenger
------------------------------------
Name: Alan K. Halfenger
Title: Chief Compliance Officer
Assistant Secretary
SANKATY ADVISORS, LLC as Collateral
Manager for Castle Hill II - INGOTS,
Ltd., as Term Lender
By: /s/ Alan K. Halfenger
------------------------------------
Name: Alan K. Halfenger
Title: Chief Compliance Officer
Assistant Secretary
Signature Page to Eighth Amendment to
Revolving Credit, Term Loan and Guaranty Agreement
<PAGE>
SANKATY ADVISORS, LLC as Collateral
Manager for Castle Hill III - INGOTS,
Ltd., as Term Lender
By: /s/ Alan K. Halfenger
------------------------------------
Name: Alan K. Halfenger
Title: Chief Compliance Officer
Assistant Secretary
SANKATY ADVISORS, LLC as Collateral
Manager for Loan Funding XI LLC, as
Term Lender
By: /s/ Alan K. Halfenger
------------------------------------
Name: Alan K. Halfenger
Title: Chief Compliance Officer
Assistant Secretary
SANKATY ADVISORS, LLC as Collateral
Manager for Prospect Funding I, LLC as
Term Lender
By: /s/ Alan K. Halfenger
------------------------------------
Name: Alan K. Halfenger
Title: Chief Compliance Officer
Assistant Secretary
SANKATY ADVISORS, LLC as Collateral
Manager for Race Point CLO, Limited, as
Term Lender
By: /s/ Alan K. Halfenger
------------------------------------
Name: Alan K. Halfenger
Title: Chief Compliance Officer
Assistant Secretary
SANKATY ADVISORS, LLC as Collateral
Manager for Race Point II CLO, Limited,
as Term Lender
By: /s/ Alan K. Halfenger
------------------------------------
Name: Alan K. Halfenger
Title: Chief Compliance Officer
Assistant Secretary
SANKATY CREDIT OPPORTUNITIES, II, L.P.
By: /s/ Alan K. Halfenger
------------------------------------
Name: Alan K. Halfenger
Title: Chief Compliance Officer
Assistant Secretary
Signature Page to Eighth Amendment to
Revolving Credit, Term Loan and Guaranty Agreement
<PAGE>
SANKATY HIGH YIELD PARTERS II, L.P.
By: /s/ Alan K. Halfenger
------------------------------------
Name: Alan K. Halfenger
Title: Chief Compliance Officer
Assistant Secretary
SENIOR DEBT PORTFOLIO
By: Boston Management and Research as
Investor Advisor
By: /s/ Michael B. Botthof
------------------------------------
Name: Michael B. Botthof
Title: Vice President
SATELLITE SENIOR INCOME FUND II, LLC
By: Satellite Asset Management, L.P. its
Investment Manager
By: /s/ Simon Raykher
------------------------------------
Name: Simon Raykher
Title: General Counsel
SCOGGIN WORLDWIDE FUND, LTD.
Scoggin, LLC its Investment Manager
By: /s/ Craig Effron
------------------------------------
Name: Craig Effron
Title: Managing Member
SERVES 2006-1, LTD.
By: PPM America, Inc. as Collateral
Manager
By: /s/ Chris Kappas
------------------------------------
Name: Chris Kappas
Title: Managing Director
SKY CBNA LOAN FUNDING LLC
By: /s/ David Balmert
------------------------------------
Name: David Balmert
Title: Attorney in Kind
STATE OF CALIFORNIA PUBLIC EMPLOYEES'
RETIREMENT SYSTEM
By: /s/ Arnold B. Phillips
------------------------------------
Name: Arnold B. Phillips
Title: Senior Portfolio Manager
Signature Page to Eighth Amendment to
Revolving Credit, Term Loan and Guaranty Agreement
<PAGE>
STEDMAN CBNA LOAN FUNDING LLC, for
itself or as agent for Stedman CFPI Loan
Funding LLC
By: /s/ Janet Haack
------------------------------------
Name: Janet Haack
Title: As Attorney In Fact
TCW SELECT LOAN FUND, LIMITED
By: TCW Advisors, Inc. as its Collateral
Manager
By: /s/ Stephen Suo
------------------------------------
Name: Stephen Suo
Title: Vice President
By: /s/ G. Wayne Hosang
------------------------------------
Name: G. Wayne Hosang
Title: Vice President
TRO IO LLC
By: Deutsche Bank AG New York Branch,
its sole member
By: DB Services New Jersey, Inc.
By: /s/ Alice L. Wagner
------------------------------------
Name: Alice L. Wagner
Title: Vice President
By: /s/ Deborah O'Keeffe
------------------------------------
Name: Deborah O'Keeffe
Title: Vice President
TRO SVCO LLC
By: Deutsche Bank AG New York Branch,
its sole member
By: DB Services New Jersey, Inc.
By: /s/ Deborah O'Keeffe
------------------------------------
Name: Deborah O'Keeffe
Title: Vice President
By: /s/ Deirdre Whorton
------------------------------------
Name: Deirdre Whorton
Title: Assistant Vice President
TRUMBULL THC2 LOAN FUNDING LLC, for
itself or as agent for Trumbull THC2
Loan Funding LLC
By: /s/ Janet Haack
------------------------------------
Name: Janet Haack
Title: As Attorney In Fact
Signature Page to Eighth Amendment to
Revolving Credit, Term Loan and Guaranty Agreement
<PAGE>
UBS AG, Stamford Branch
By: /s/ Douglas Gervolino
------------------------------------
Name: Douglas Gervolino
Title: Associate Director
Banking Products Services, US
By: /s/ Steven J. Nibols
------------------------------------
Name: Steven J. Nibols
Title: Associate Director
Banking Products Services, US
VELOCITY CLO, LTD.
By: TCW Advisors, Inc., its Collateral
Manager
By: /s/ Stephen Suo
------------------------------------
Name: Stephen Suo
Title: Vice President
By: /s/ G. Wayne Hosang
------------------------------------
Name: G. Wayne Hosang
Title: Vice President
VENTURE CDO 2002, LIMITED
By its investment advisor, MJX Asset
Management LLC
By: /s/ Frederick H. Taylor
------------------------------------
Name: Frederick H. Taylor
Title: Managing Director
VENTURE II CDO 2002, LIMITED
By its investment advisor, MJX Asset
Management LLC
By: /s/ Frederick H. Taylor
------------------------------------
Name: Frederick H. Taylor
Title: Managing Director
VENTURE III CDO 2002, LIMITED
By its investment advisor, MJX Asset
Management LLC
By: /s/ Frederick H. Taylor
------------------------------------
Name: Frederick H. Taylor
Title: Managing Director
Signature Page to Eighth Amendment to
Revolving Credit, Term Loan and Guaranty Agreement
<PAGE>
VENTURE IV CDO 2002, LIMITED
By its investment advisor, MJX Asset
Management LLC
By: /s/ Frederick H. Taylor
------------------------------------
Name: Frederick H. Taylor, Jr.
Title: Managing Director
VISTA LEVERAGED INCOME FUND
By its investment advisor MJX Asset
Management LLC
By: /s/ Frederick H. Taylor
------------------------------------
Name: Frederick H. Taylor
Title: Managing Director
VITESSE CLO LTD.
By: TCW Advisors as its Portfolio
Manager
By: /s/ Stephen Suo
------------------------------------
Name: Stephen Suo
Title: Vice President
By: /s/ G. Wayne Hosang
------------------------------------
Name: G. Wayne Hosang
Title: Vice President
VULCAN VENTURES, INC.
By: /s/ Philip Susser
------------------------------------
Name: Philip Susser
Title: Senior Analyst
WACHOVIA CAPITAL FINANCE CORPORATION
(CENTRAL)
By: /s/ Brian Hynds
------------------------------------
Name: Brian Hynds
Title: Vice President
WATERSHED CAPITAL INSTITUTIONAL
PARTNERS, L.P.
By: /s/ Matthew J. Fucci
------------------------------------
Name: Matthew J. Fucci
Title: Authorized Signatory
Signature Page to Eighth Amendment to
Revolving Credit, Term Loan and Guaranty Agreement
<PAGE>
WATERSHED CAPITAL PARTNERS, L.P.
By: /s/ Matthew J. Fucci
------------------------------------
Name: Matthew J. Fucci
Title: Authorized Signatory
WATERSHED CAPITAL (OFFSHORE), LTD.
By: /s/ Matthew J. Fucci
------------------------------------
Name: Matthew J. Fucci
Title: Authorized Signatory
WELLS CAPITAL MANAGEMENT 1222133
By: /s/ Philip Susser
------------------------------------
Name: Philip Susser
Title: Senior Analyst
WELLS CAPITAL MANAGEMENT 12831400
By: /s/ Philip Susser
------------------------------------
Name: Philip Susser
Title: Senior Analyst
WELLS CAPITAL MANAGEMENT 13702900
By: /s/ Philip Susser
------------------------------------
Name: Philip Susser
Title: Senior Analyst
WELLS CAPITAL MANAGEMENT 13823100
By: /s/ Philip Susser
------------------------------------
Name: Philip Susser
Title: Senior Analyst
WELLS CAPITAL MANAGEMENT 14945000
By: /s/ Philip Susser
------------------------------------
Name: Philip Susser
Title: Senior Analyst
Signature Page to Eighth Amendment to
Revolving Credit, Term Loan and Guaranty Agreement
<PAGE>
WELLS CAPITAL MANAGEMENT 16017000
By: /s/ Philip Susser
------------------------------------
Name: Philip Susser
Title: Senior Analyst
WELLS CAPITAL MANAGEMENT 16896700
By: /s/ Philip Susser
------------------------------------
Name: Philip Susser
Title: Senior Analyst
WELLS FARGO FOOTHILL LLC WITHOUT
WARRANTY AND/OR REPRESENTATION
By: /s/ Patrick McCormack
------------------------------------
Name: Patrick McCormack
Title: Vice President
Signature Page to Eighth Amendment to
Revolving Credit, Term Loan and Guaranty Agreement
<PAGE>
EXHIBIT A TO
EIGHTH AMENDMENT
<PAGE>
AMENDED AND RESTATED REVOLVING CREDIT, TERM LOAN
AND GUARANTY AGREEMENT
AMONG
R.J. TOWER CORPORATION,
A DEBTOR AND A DEBTOR-IN-POSSESSION UNDER CHAPTER 11 OF THE
BANKRUPTCY CODE
AS BORROWER,
TOWER AUTOMOTIVE, INC.,
A DEBTOR AND A DEBTOR-IN-POSSESSION UNDER CHAPTER 11 OF THE
BANKRUPTCY CODE
AS PARENT
AND
THE SUBSIDIARIES OF THE BORROWER AND THE PARENT NAMED HEREIN,
EACH A DEBTOR AND A DEBTOR-IN-POSSESSION UNDER CHAPTER 11 OF THE
BANKRUPTCY
CODE
AS GUARANTORS
AND
THE LENDERS PARTY HERETO,
AND
JPMORGAN CHASE BANK, N.A.
AS ADMINISTRATIVE AGENT
J.P. MORGAN SECURITIES INC.,
AS SOLE BOOKRUNNER
AND
SOLE LEAD ARRANGER
GENERAL ELECTRIC CAPITAL CORPORATION
AS DOCUMENTATION AGENT
DATED AS OF JANUARY 23, 2007
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
SECTION 1. DEFINITIONS
.................................................. 3
SECTION 1.01 Defined Terms
.......................................... 3
SECTION 1.02 Terms Generally
........................................ 29
SECTION 1.03 Accounting Terms; GAAP
................................. 29
SECTION 2. AMOUNT AND TERMS OF CREDIT
................................... 30
SECTION 2.01 Commitments of the Lenders
............................. 30
SECTION 2.02 Reserved
............................................... 31
SECTION 2.03 Letters of Credit
...................................... 31
SECTION 2.04 Requests for Borrowings
................................ 35
SECTION 2.05 Funding of Borrowings
.................................. 37
SECTION 2.06 Interest Elections
..................................... 37
SECTION 2.07 [Reserved]
............................................. 38
SECTION 2.08 Interest on Loans
...................................... 38
SECTION 2.09 Default Interest
....................................... 39
SECTION 2.10 Alternate Rate of Interest
............................. 40
SECTION 2.11 Repayment of Loans; Evidence of Debt
................... 40
SECTION 2.12 Optional Termination or Reduction of Commitment
........ 41
SECTION 2.13 Mandatory Prepayment; Commitment Termination
........... 41
SECTION 2.14 Optional Prepayment of Loans
........................... 42
SECTION 2.15 Reserved
............................................... 43
SECTION 2.16 Increased Costs
........................................ 43
SECTION 2.17 Break Funding Payments
................................. 44
SECTION 2.18 Taxes
.................................................. 44
SECTION 2.19 Payments Generally; Pro Rata Treatment
................. 45
SECTION 2.20 Mitigation Obligations; Replacement of Lenders
......... 46
SECTION 2.21 Certain Fees
........................................... 47
SECTION 2.22 Commitment Fee
......................................... 47
SECTION 2.23 Letter of Credit Fees
.................................. 48
SECTION 2.24 Nature of Fees
......................................... 48
SECTION 2.25 Priority and Liens
..................................... 48
SECTION 2.26 Right of Set-Off
....................................... 50
SECTION 2.27 Security Interest in Letter of Credit Account
.......... 50
</TABLE>
<PAGE>
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<S> <C>
SECTION 2.28 Payment of Obligations
................................. 51
SECTION 2.29 No Discharge; Survival of Claims
....................... 51
SECTION 2.30 Use of Cash Collateral
................................. 51
SECTION 3. REPRESENTATIONS AND WARRANTIES
............................... 51
SECTION 3.01 Organization and Authority
............................. 51
SECTION 3.02 Due Execution
.......................................... 51
SECTION 3.03 Statements Made
........................................ 52
SECTION 3.04 Financial Statements
................................... 52
SECTION 3.05 Ownership
.............................................. 53
SECTION 3.06 Liens
.................................................. 53
SECTION 3.07 Compliance with Law
.................................... 53
SECTION 3.08 Insurance
.............................................. 54
SECTION 3.09 Use of Proceeds
........................................ 54
SECTION 3.10 Litigation
............................................. 54
SECTION 3.11 Labor Relations
........................................ 54
SECTION 3.12 ERISA
.................................................. 55
SECTION 3.13 The Orders
............................................. 55
SECTION 3.14 Properties
............................................. 55
SECTION 4. CONDITIONS OF LENDING
........................................ 56
SECTION 4.01 Conditions Precedent to Initial Loans and Initial
Letters of Credit ...................................... 56
SECTION 4.02 Conditions Precedent to Each Loan and Each Letter
of
Credit ................................................. 58
SECTION 4.03 Conditions Precedent to the Tranche B Loan
............. 59
SECTION 5. AFFIRMATIVE COVENANTS
........................................ 60
SECTION 5.01 Financial Statements, Reports, etc
..................... 60
SECTION 5.02 Existence
.............................................. 63
SECTION 5.03 Insurance
.............................................. 63
SECTION 5.04 Obligations and Taxes
.................................. 63
SECTION 5.05 Notice of Event of Default, etc
........................ 63
SECTION 5.06 Access to Books and Records
............................ 63
SECTION 5.07 Maintenance of Concentration Account
................... 64
</TABLE>
ii
<PAGE>
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<S> <C>
SECTION 5.08 Borrowing Base Certificate
............................. 64
SECTION 5.09 Collateral Monitoring and Review
....................... 65
SECTION 5.10 Public Rating
.......................................... 65
SECTION 5.11 Schedule Supplement
.................................... 65
SECTION 6. NEGATIVE COVENANTS
........................................... 65
SECTION 6.01 Liens
.................................................. 65
SECTION 6.02 Merger, etc
............................................ 66
SECTION 6.03 Indebtedness
........................................... 66
SECTION 6.04 Capital Expenditures
................................... 67
SECTION 6.05 EBITDA
................................................. 67
SECTION 6.06 Guarantees and Other Liabilities
....................... 68
SECTION 6.07 Chapter 11 Claims
...................................... 69
SECTION 6.08 Dividends; Capital Stock
............................... 69
SECTION 6.09 Transactions with Affiliates
........................... 69
SECTION 6.10 Investments, Loans and Advances
........................ 69
SECTION 6.11 Disposition of Assets
.................................. 70
SECTION 6.12 Nature of Business
..................................... 70
SECTION 7. EVENTS OF DEFAULT
............................................ 70
SECTION 7.01 Events of Default
...................................... 70
SECTION 8. THE AGENT
.................................................... 74
SECTION 8.01 Administration by Agent
................................ 74
SECTION 8.02 Rights of Agent
........................................ 74
SECTION 8.03 Liability of Agent
..................................... 74
SECTION 8.04 Reimbursement and Indemnification
...................... 75
SECTION 8.05 Successor Agent
........................................ 75
SECTION 8.06 Independent Lenders
.................................... 76
SECTION 8.07 Advances and Payments
.................................. 76
SECTION 8.08 Sharing of Setoffs
..................................... 76
SECTION 9. GUARANTY
..................................................... 77
SECTION 9.01 Guaranty
............................................... 77
SECTION 9.02 No Impairment of Guaranty
.............................. 78
</TABLE>
iii
<PAGE>
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<S> <C>
SECTION 9.03 Subrogation
............................................ 78
SECTION 10. MISCELLANEOUS
............................................... 78
SECTION 10.01 Notices
................................................ 78
SECTION 10.02 Survival of Agreement, Representations and
Warranties,
etc. ................................................... 79
SECTION 10.03 Successors and Assigns
................................. 79
SECTION 10.04 Confidentiality
........................................ 83
SECTION 10.05 Expenses; Indemnity; Damage Waiver
..................... 83
SECTION 10.06 CHOICE OF LAW
.......................................... 84
SECTION 10.07 No Waiver
.............................................. 84
SECTION 10.08 Extension of Maturity
.................................. 84
SECTION 10.09 Amendments, etc
........................................ 85
SECTION 10.10 Severability
........................................... 86
SECTION 10.11 Headings
............................................... 86
SECTION 10.12 Survival
............................................... 86
SECTION 10.13 Execution in Counterparts; Integration; Effectiveness
.. 86
SECTION 10.14 Prior Agreements
....................................... 87
SECTION 10.15 Further Assurances
..................................... 87
SECTION 10.16 USA Patriot Act
........................................ 87
SECTION 10.17 WAIVER OF JURY TRIAL
................................... 87
</TABLE>
ANNEX A Commitment Amounts
EXHIBIT A - Form of Interim Order
EXHIBIT B - Form of Security and Pledge Agreement
EXHIBIT C-1 - Form of Opinion of Kirkland & Ellis LLP
EXHIBIT C-2 - Form of Opinion of Varnum, Riddering, Schmidt &
Howlett LLP
EXHIBIT D - Form of Assignment and Acceptance
EXHIBIT E - Form of Borrowing Base Certificate
SCHEDULE 1.01 - Existing Agreement
SCHEDULE 3.04 - Material Adverse Effect
SCHEDULE 3.05 - Subsidiaries
SCHEDULE 3.06 - Liens
SCHEDULE 3.10 - Litigation
SCHEDULE 6.09 - Transactions with Shareholders
SCHEDULE 6.10 - Existing Investments
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TABLE OF CONTENTS
(CONTINUED)
SCHEDULE 6.11 - Sale of Marketable Securities
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AMENDED AND RESTATED REVOLVING CREDIT, TERM LOAN
AND GUARANTY AGREEMENT
DATED AS OF JANUARY 23, 2007
AMENDED AND RESTATED REVOLVING CREDIT, TERM LOAN AND GUARANTY
AGREEMENT, dated as of January 23, 2007, among R.J. TOWER
CORPORATION, a
Michigan corporation (the "Borrower"), a debtor and
debtor-in-possession in a
case pending under Chapter 11 of the Bankruptcy Code, TOWER
AUTOMOTIVE, INC., a
Delaware corporation and the parent company of the Borrower (the
"Parent"), and
the subsidiaries of the Borrower signatory hereto (together with
the Parent,
each a "Guarantor" and collectively the "Guarantors"), each of
which Guarantors
is a debtor and debtor-in-possession in a case pending under
Chapter 11 of the
Bankruptcy Code (the cases of the Borrower and the Guarantors, each
a "Case" and
collectively, the "Cases"), JPMORGAN CHASE BANK, N.A., a national
banking
association ("JPMCB"), each of the other financial institutions
from time to
time party hereto (together with JPMCB, the "Lenders") and JPMORGAN
CHASE BANK,
N.A., as administrative agent (in such capacity, the "Agent") for
the Lenders.
INTRODUCTORY STATEMENT
On February 2, 2005, the Borrower and the Guarantors filed
voluntary
petitions with the Bankruptcy Court initiating the Cases and have
continued in
the possession of their assets and in the management of their
businesses
pursuant to Sections 1107 and 1108 of the Bankruptcy Code.
The Borrower has applied to the Lenders for a loan facility of up
to
$725,000,000, comprised of (i) a revolving credit and letter of
credit facility
in an aggregate principal amount not to exceed $300,000,000 as set
forth herein
and (ii) a term loan in an aggregate principal amount of
$425,000,000 as set
forth herein, all of the Borrower's obligations under each of which
are to be
guaranteed by the Guarantors.
The proceeds of the Loans will be used (i) in the case of
revolving
credit loans and letters of credit, for general working capital and
corporate
purposes of the Borrower and the Guarantors (including, but only to
the extent
permitted under Section 6.10, for loans and advances to
Subsidiaries not party
hereto) and (ii) the case of the term loan, to refinance and repay
in full the
Existing First Lien Indebtedness.
To provide guarantees and security for the repayment of the Loans,
the
reimbursement of any draft drawn under a Letter of Credit and the
payment of the
other obligations of the Borrower and the Guarantors hereunder and
under the
other Loan Documents (including, without limitation, the
Obligations of the
Borrower and the Guarantors to JPMCB, any other Lender or any of
their
respective banking Affiliates permitted by Section 6.03(vi)), the
Borrower and
the Guarantors will provide to the Agent and the Lenders the
following (each as
more fully described herein):
(a) a guaranty from each of the Guarantors of the due and punctual
payment
and performance of the obligations of the Borrower hereunder;
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(b) an allowed administrative expense claim in each of the Cases
pursuant
to Section 364(c)(1) of the Bankruptcy Code having joint and
several
superpriority over all administrative expenses of the kind
specified in Sections
503(b) and 507(b) of the Bankruptcy Code;
(c) a perfected first priority Lien, pursuant to Section 364(c)(2)
of the
Bankruptcy Code, upon all property of the Borrower's and the
Guarantors'
respective estates in the Cases that is not subject to valid,
perfected and
non-avoidable liens on the Filing Date, including, without
limitation, all
present and future accounts receivable (other than, prior to any
repurchase
thereof by any of the Debtors, receivables heretofore sold to the
Receivables
Subsidiary pursuant to the Permitted Receivable Purchase Facility),
inventory,
general intangibles, chattel paper, real property, leaseholds,
fixtures,
machinery and equipment, deposit accounts, patents, copyrights,
trademarks,
tradenames, rights under license agreements, other intellectual
property and the
capital stock of Subsidiaries owned by the Borrower and Guarantors
(but
excluding the Borrower's and the Guarantors' rights in respect of
(x) avoidance
actions under the Bankruptcy Code and (y) Joint Venture Interests
and Specified
LLC Interests and related assets as to which (i) Liens thereon are
not permitted
to be granted or (ii) if as a result of the granting of such Lien,
the value of
such Joint Venture Interests and Specified LLC Interests and
related assets
would be materially adversely compromised, it being understood
that,
notwithstanding such exclusions, the proceeds of such avoidance
actions, Joint
Venture Interests and Specified LLC Interests and related assets
shall be
subject to such Liens under Section 364(c)(2) of the Bankruptcy
Code and
available to repay the Loans) and on all cash and cash equivalents
in the
Letter of Credit Account;
(d) a perfected Lien, pursuant to Section 364(c)(3) of the
Bankruptcy
Code, upon all property of the Borrower's and the Guarantors'
respective estates
in the Cases that is subject to valid, perfected and non-avoidable
Liens in
existence on the Filing Date or that is subject to valid Liens in
existence on
the Filing Date that are perfected subsequent to the Filing Date as
permitted by
Section 546(b) of the Bankruptcy Code (other than the property
referred to in
paragraph (e) below that is subject to the valid and perfected
Liens that
presently secure the Borrower's and Guarantors' pre-petition
Indebtedness under
the Existing Agreement and Liens that are junior to such existing
Liens, which
Liens shall be primed by the Liens to be granted to the Agent as
described in
such paragraph) or that is subject to Permitted Liens, junior to
such valid,
perfected and non-avoidable Liens; and
(e) perfected first priority senior priming Liens, pursuant to
Section
364(d)(1) of the Bankruptcy Code, upon all property of the Borrower
and the
Guarantors that is subject to (x) the existing Liens that presently
secure the
Borrower's and Guarantors' pre-petition Indebtedness under or in
connection with
that certain Credit Agreement dated as of May 24, 2004, as amended,
among the
Borrower, the Guarantors, the Existing First Lien Lenders and
Existing Second
Lien Lenders from time to time party thereto and the Existing
Agent, as
administrative agent, (as amended, the "Existing Agreement") and
any Liens that
are junior to such existing Liens (but subject to any Liens to
which the Liens
being primed hereby are subject on the Filing Date or become
subject subsequent
to the Filing Date as permitted by Section 546(b) of the Bankruptcy
Code) and
(y) any Liens granted after the Filing Date to provide adequate
protection in
respect of such existing Liens under the Existing Agreement or any
Liens that
are junior thereto, which first priority priming Liens in favor of
the Agent and
the Lenders
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shall be senior in all respects to all of such existing Liens under
or in
connection with the Existing Agreement and all of such Liens that
are junior
thereto, and to any Liens granted after the Filing Date to provide
adequate
protection in respect thereof;
All of the claims and the Liens granted hereunder in the Cases to
the
Agent and the Lenders shall be subject to the Carve-Out to the
extent provided
in Section 2.25.
Accordingly, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
SECTION 1.01 DEFINED TERMS.
"ABR", when used in reference to any Loan or Borrowing, refers
to
whether such Loan, or the Loans comprising such Borrowing, are
bearing interest
at a rate determined by reference to the Alternate Base Rate.
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"Account" shall mean any right to payment for goods sold or leased
or
for services rendered, whether or not earned by performance, as set
forth in the
UCC.
"Account Debtor" shall mean the Person obligated on an Account.
"Additional Credit" shall have the meaning given such term in
Section
4.02(d).
"Adjusted Eligible Accounts Receivable" shall mean the Eligible
Accounts Receivable, minus the Dilution Reserve.
"Adjusted Eligible Finished Goods" shall mean, on any date,
Eligible
Finished Goods minus Inventory Reserves.
"Adjusted Eligible Raw Materials" shall mean, on any date,
Eligible
Raw Materials minus Inventory Reserves.
"Adjusted Eligible Work-in-Process" shall mean, on any date,
Eligible
Work in Process minus Inventory Reserves.
"Adjusted LIBO Rate" shall mean, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum
(rounded upwards,
if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate
for such
Interest Period multiplied by (b) the Statutory Reserve Rate.
"Affiliate" shall mean, as to any Person, any other Person
which,
directly or indirectly, is in control of, is controlled by, or is
under common
control with, such Person. For purposes of this definition, a
Person (a
"Controlled Person") shall be deemed to be "controlled by" another
Person (a
"Controlling Person") if the Controlling Person possesses, directly
or
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indirectly, power to direct or cause the direction of the
management and
policies of the Controlled Person whether by contract or
otherwise.
"Agent" shall have the meaning given such term in the
Introduction.
"Agreement" shall mean this Revolving Credit, Term Loan and
Guaranty
Agreement, as the same may from time to time be amended, modified
or
supplemented.
"Alternate Base Rate" shall mean, for any day, a rate per annum
equal
to the greatest of (a) the Prime Rate in effect on such day, (b)
the Base CD
Rate in effect on such day plus 1% and (c) the Federal Funds
Effective Rate in
effect on such day plus 1/2 of 1%. Any change in the Alternate Base
Rate due to
a change in the Prime Rate, the Base CD Rate or the Federal Funds
Effective Rate
shall be effective from and including the effective date of such
change in the
Prime Rate, the Base CD Rate or the Federal Funds Effective Rate,
respectively.
"Approved Fund" shall have the meaning given such term in
Section
10.03.
"Assessment Rate" shall mean, for any day, the annual assessment
rate
in effect on such day that is payable by a member of the Bank
Insurance Fund
classified as "well-capitalized" and within supervisory subgroup
"B" (or a
comparable successor risk classification) within the meaning of 12
C.F.R. Part
327 (or any successor provision) to the Federal Deposit Insurance
Corporation
for insurance by such Corporation of time deposits made in dollars
at the
offices of such member in the United States; provided that if, as a
result of
any change in any law, rule or regulation, it is no longer possible
to determine
the Assessment Rate as aforesaid, then the Assessment Rate shall be
such annual
rate as shall be determined by the Agent to be representative of
the cost of
such insurance to the Lenders.
"Assignment and Acceptance" shall mean an assignment and
acceptance
entered into by a Lender and an Eligible Assignee, and accepted by
the Agent,
substantially in the form of Exhibit D.
"Availability Period" shall mean the period from and including
the
Closing Date to but excluding the Termination Date.
"Available Inventory" at any date of determination shall be equal
to
the lesser of (i) an amount equal to 65% of each of Adjusted
Eligible Finished
Goods, Adjusted Eligible Work in Process and Adjusted Eligible Raw
Material,
less (d) Rent Reserves or (ii) 85% of the product of (x) the Net
Recovery
Liquidation Rate in effect (based on the then most recent
independent inventory
appraisal) on such date of determination multiplied by (y) the
aggregate amount
of gross domestic Inventory (as reported in accordance with the
Company's
perpetual inventory system at such date of determination) as set
forth in the
most recent Borrowing Base Certificate.
"Available Receivables" at any date of determination shall be equal
to
85% of Adjusted Eligible Accounts Receivable.
"Bankruptcy Code" shall mean The Bankruptcy Reform Act of 1978,
as
heretofore and hereafter amended, and codified as 11 U.S.C. Section
101 et seq.
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"Bankruptcy Court" shall mean the United States Bankruptcy Court
for
the Southern District of New York or any other court having
jurisdiction over
the Cases from time to time.
"Base CD Rate" shall mean the sum of (a) the Three-Month Secondary
CD
Rate multiplied by the Statutory Reserve Rate plus (b) the
Assessment Rate.
"Board" shall mean the Board of Governors of the Federal
Reserve
System of the United States.
"Borrower" shall have the meaning given such term in the
Introduction.
"Borrowing" shall mean (a) the incurrence, conversion or
continuation
of Tranche A Loans of a single Type made from all the Tranche A
Lenders on a
single date and having, in the case of Eurodollar Loans, a single
Interest
Period and (b) the Tranche B Loan.
"Borrowing Base" shall mean, at the time of any determination,
an
amount equal to the sum, without duplication, of (A) Available
Receivables, plus
(B) Available Inventory, plus (C) the M&E Component, plus (D)
$25,000,000 during
each of the periods of July 15, 2005 through August 15, 2005,
December 15, 2005
through January 15, 2006, July 15, 2006 through August 15, 2006 and
November 1,
2006 through August 2, 2007, minus (E) Borrowing Base Carve-Out
Amount,
provided, that the amount derived from clause (C) shall not exceed
the lesser of
(i) $200,000,000 or (ii) an amount equal to 75% of the sum of
clauses (A), (B)
and (C). The Borrowing Base at any time shall be determined by
reference to the
most recent Borrowing Base Certificate delivered to Agent pursuant
to Section
5.08. Standards of eligibility and reserves and advance rates of
the Borrowing
Base may be revised and adjusted from time to time by the Agent in
its
reasonable discretion (provided, that the Agent may not revise
Borrowing Base
standards if the effect thereof would be to increase the advance
rates above
the rates in effect on the effective date of the Borrowing Base
Amendment or to
add new asset categories to the Borrowing Base without the consent
of the
requisite Lenders as set forth in Section 10.09), with any changes
in such
standards to be effective upon the later of the date of the next
succeeding
weekly Borrowing Base Certificate or 5 Business Days after delivery
of notice
thereof to the Borrower.
"Borrowing Base Amendment" shall mean that certain First
Amendment,
dated as of February 28, 2005 to the Agreement.
"Borrowing Base Carve-Out Amount" shall mean an amount equal to
$7,000,000.
"Borrowing Base Certificate" shall mean a certificate substantially
in
the form of Exhibit E (with such changes therein as may be required
by the Agent
to reflect the components of and reserves against the Borrowing
Base as provided
for hereunder from time to time), executed and certified as
accurate and
complete in all material respects by a Financial Officer which
shall include
appropriate exhibits, schedules, supporting documentation, and
additional
reports as (i) outlined in Schedule 1 to Exhibit E, (ii) as
reasonably requested
by the Agent, and (iii) as provided for in Section 5.08.
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"Borrowing Request" shall mean a request by the Borrower for a
Borrowing in accordance with Section 2.04.
"Business Day" shall mean any day other than a Saturday, Sunday
or
other day on which commercial banks in New York City are required
or authorized
to remain closed (and, for a Letter of Credit, other than a day on
which the
Issuing Lender issuing such Letter of Credit is closed); provided,
however, that
when used in connection with a Eurodollar Loan, the term "Business
Day" shall
also exclude any day on which banks are not open for dealings in
dollar deposits
on the London interbank market.
"Capital Expenditures" shall mean, for any period, for any Person,
the
aggregate of all expenditures (whether (i) paid in cash and not
theretofore
accrued or (ii) accrued as liabilities during such period, and
including that
portion of any post-petition Capitalized Lease which is capitalized
on the
consolidated balance sheet of the Borrower and the Guarantors) net
of cash
amounts received by such Borrowers and the Guarantors from other
Persons during
such period in reimbursement of Capital Expenditures made by such
Person,
excluding interest capitalized during construction, made by the
Borrowers and
the Guarantors during such period that, in conformity with GAAP,
are required to
be included in or reflected by the property, plant, equipment or
similar fixed
asset accounts reflected in the consolidated balance sheet of the
Borrowers and
the Guarantors (including equipment which is purchased
simultaneously with the
trade-in of existing equipment owned by the Borrower or any
Guarantor to the
extent of the gross amount of such purchase price less the
"trade-in" value or
credit granted by the purchaser of the equipment being traded in at
such time),
but excluding expenditures made in connection with the replacement
or
restoration of assets to the extent reimbursed or financed from (x)
insurance
proceeds paid on account of the loss of or the damage to the assets
being
replaced or restored or (y) awards of compensation arising from the
taking by
condemnation or eminent domain of such assets being replaced.
"Capitalized Lease" shall mean, as applied to any Person, any
lease
of property by such Person as lessee which would be capitalized on
a balance
sheet of such Person prepared in accordance with GAAP.
"Carve-Out" shall have the meaning given such term in Section
2.25.
"Cases" shall have the meaning given such term in the
Introduction.
"Cash Collateralization" shall have the meaning given such term
in
Section 2.03(j).
"Change in Law" shall mean (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any
law, rule or
regulation or in the interpretation or application thereof by any
Governmental
Authority after the date of this Agreement or (c) compliance by any
Lender or
Issuing Lender (or, for purposes of Section 2.16(b), by any lending
office of
such Lender or Issuing Lender or by such Lender's or Issuing
Lender's holding
company, if any) with any request, guideline or directive (whether
or not having
the force of law) of any Governmental Authority made or issued
after the date of
this Agreement.
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"Change of Control" shall mean (i) the acquisition of
ownership,
directly or indirectly, beneficially or of record, by any Person or
group
(within the meaning of the Securities Exchange Act of 1934 and the
rules of the
Securities and Exchange Commission thereunder as in effect on the
date hereof),
of Equity Interests representing more than 50% of the aggregate
ordinary voting
power represented by the issued and outstanding Equity Interests of
the Parent
or the Borrower; or (ii) the occupation of a majority of the seats
(other than
vacant seats) on the Board of Directors of the Parent or the
Borrower by Persons
who were neither (A) nominated by the Board of Directors of the
Parent or the
Borrower nor (B) appointed by directors so nominated.
"Closing Date" shall mean the date on which this Agreement has
been
executed and the conditions precedent to the making of the initial
Loans set
forth in Section 4.01 have been satisfied or waived, which date
shall occur
promptly upon entry of the Interim Order, but in any event not
later than 10
days following the entry of the Interim Order.
"Code" shall mean the Internal Revenue Code of 1986, as amended
from
time to time, and the regulations promulgated and rulings issued
thereunder.
"Collateral" shall mean the "Collateral" as defined in the
Security
and Pledge Agreement.
"Commitment Fee" shall have the meaning given such term in
Section
2.22.
"Commitment Letter" shall mean that certain Commitment Letter
dated
January 31, 2005, among the Agent, JPMorgan and the Borrower.
"Consummation Date" shall mean the date of the substantial
consummation (as defined in Section 1101 of the Bankruptcy Code and
which for
purposes of this Agreement shall be no later than the effective
date) of a
Reorganization Plan that is confirmed pursuant to an order of the
Bankruptcy
Court.
"Dilution Factors" shall mean, without duplication, with respect
to
any period, the aggregate amount of all deductions, credit memos,
returns,
adjustments, allowances, bad debt write-offs and other non-cash
credits which
are recorded to reduce accounts receivable in a manner consistent
with current
and historical accounting practices of the Borrower and the
Guarantors.
"Dilution Ratio" shall mean, at any date, the amount (expressed as
a
percentage) equal to (a) the aggregate amount of the applicable
Dilution Factors
for the twelve (12) most recently ended fiscal months divided by
(b) total gross
sales for the twelve (12) most recently ended fiscal months or such
other amount
as may be determined by the Agent in its reasonable discretion in
the event the
Borrower is unable to calculate dilution effectively in the manner
contemplated.
"Dilution Reserve" shall mean, at any date, (i) the amount by
which
the Dilution Ratio exceeds 5% multiplied by (ii) the Eligible
Accounts
Receivable on such date.
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"DIP Leverage Ratio" shall mean, at any date for which such ratio
is
to be determined, the ratio of (x) the sum of all of the Tranche A
Loans and the
Tranche B Loan outstanding at such time to (y) Global EBITDA at
such time.
"Dollars" and "$" shall mean lawful money of the United States
of
America.
"Domestic EBITDA" shall mean, for any period, all as determined
in
accordance with GAAP, the consolidated net income (or net loss) of
the Domestic
Entities for such period, plus (a) to the extent deducted in the
calculation of
consolidated net income, the sum of (i) depreciation expense, (ii)
amortization
expense, (iii) other non-cash charges, (iv) consolidated federal,
state and
local income tax expense, (v) gross interest expense for such
period less gross
interest income for such period, (vi) extraordinary losses, (vii)
any
restructuring charges, (viii) professional fees and expenses
incurred and costs
under employee retention programs, (ix) without duplication,
"Chapter 11
expenses" (or "administrative costs reflecting Chapter 11
expenses") as shown on
the consolidated statement of income of the Domestic Entities for
such period,
(x) plus or minus the cumulative effect of any change in accounting
principles
and (xi) plus or minus equity in the earnings of Metalsa, less (b)
extraordinary
gains, plus or minus (c) the amount of cash received or expended in
such period
in respect of any amount which, under clause (vii) above, was taken
into
account in determining Domestic EBITDA for such or any prior period
plus (d)
cash dividends and distributions received from Metalsa.
"Domestic Entities" shall mean the Parent, the Borrower and
their
direct and indirect domestic Subsidiaries on a consolidated
basis.
"Eligible Accounts Receivable" means, at the time of any
determination
thereof, each Account that satisfies the following criteria and
continues to
meet the same at the time of such determination: such Account (i)
has been
invoiced to, and represents the bona fide amounts due to the
Borrower or a
Guarantor from, the purchaser of goods or services, in each case
originated in
the ordinary course of business of the Borrower or a Guarantor and
(ii) is not
ineligible for inclusion in the calculation of the Borrowing Base
pursuant to
any of clauses (a) through (u) below. Without limiting the
foregoing, to qualify
as Eligible Accounts Receivable, an Account shall indicate no
person other than
the Borrower or a Guarantor as payee or remittance party. In
determining the
amount to be so included, the face amount of an Account shall be
reduced by,
without duplication, to the extent not reflected in such face
amount, (i) the
amount of all accrued and actual discounts, claims, credits or
credits pending,
promotional program allowances, price adjustments, finance charges
or other
allowances (including any amount that the Borrower or a Guarantor,
as
applicable, may be obligated to rebate to a customer pursuant to
the terms of
any agreement or understanding (written or oral)), (ii) without
duplication, the
aggregate amount of all limits and deductions provided for in this
definition
and elsewhere in this Agreement, if any, and (iii) the aggregate
amount of all
cash received in respect of such Account but not yet applied by the
Borrower or
a Guarantor to reduce the amount of such Account. Criteria and
eligibility
standards used in determining Eligible Accounts Receivable may be
fixed and
revised from time to time by the Agent, in its reasonable
discretion, and in the
Agent's reasonable exclusive judgment, with any changes in such
criteria to be
effective upon the later of the date of the next succeeding weekly
Borrowing
Base Certificate or 5 Business Days after delivery of notice
thereof to the
Borrower. Unless otherwise approved from time to
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time in writing by the Agent, no Account shall be an Eligible
Account Receivable
if, without duplication:
(a) (i) the Borrower or a Guarantor does not have sole lawful
and
absolute title to such Account or (ii) the goods sold with respect
to
such Account have been sold under a purchase order or pursuant to
the
terms of a contract or other agreement or understanding (written
or
oral) that indicates that any Person other than the Borrower or
a
Guarantor has or has purported to have an ownership interest in
such
goods; or
(b) (i) it is unpaid more than 120 days from the original date
of
invoice or 60 days (or 90 days in the case of Accounts with respect
to
which the Account Debtor is Ford Motor Company, General Motors,
Daimler Chrysler, Honda, Toyota or Renault Nissan) from the
original
due date or (ii) it has been written off the books of the Borrower
or
a Guarantor or has been otherwise designated on such books as
uncollectible; or
(c) more than 50% in face amount of all Accounts of the same
Account
Debtor are ineligible pursuant to clause (b) above; or
(d) the Account Debtor is insolvent or the subject of any
bankruptcy
case or insolvency proceeding of any kind (other than
postpetition
accounts payable of an Account Debtor that is a
debtor-in-possession
under the Bankruptcy Code and reasonably acceptable to the Agent);
or
(e) the Account is not payable in Dollars or the Account Debtor
is
either not organized under the laws of the United States of
America,
Canada, any state or province thereof, or the District of Columbia
or
is located outside or has its principal place of business or
substantially all of its assets outside the United States or
Canada;
or
(f) the Account Debtor is the United States of America or any
department, agency or instrumentality thereof, unless the
relevant
Borrower duly assigns its rights to payment of such Account to
the
Agent pursuant to the Assignment of Claims Act of 1940, as
amended,
which assignment and related documents and filings shall be in
form
and substance reasonably satisfactory to the Agent; or
(g) the Account is subject to any security deposit (to the
extent
received from the applicable Account Debtor), progress payment,
retainage or other similar advance made by or for the benefit of
the
applicable Account Debtor, in each case to the extent thereof;
or
(h) (i) it is not subject to a valid and perfected first priority
Lien
in favor of the Agent for the benefit of the Secured Parties,
subject
to no other Liens other than Liens permitted by the Agreement or
(ii)
it does not otherwise conform in all material respects to the
representations and warranties contained in the Agreement relating
to
Accounts; or
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(i) (i) such Account was invoiced in advance of goods or
services
provided, (ii) such Account was invoiced twice or more, or (iii)
the
associated income has not been earned; or
(j) to the extent the Account is classified as a note receivable
by
the Borrower or a Guarantor; or
(k) the Account is a non-trade Account, or relates to payments
for
interest; or
(l) the sale to the Account Debtor is on a bill-and-hold,
guaranteed
sale, sale-and-return, ship-and-return, sale on approval,
extended
terms, or consignment or other similar basis or made pursuant to
any
other agreement providing for repurchases or return of any
merchandise
which has been claimed to be defective or otherwise unsatisfactory;
or
(m) the goods giving rise to such Account have not been shipped
and
title has not been transferred to the Account Debtor, or the
Account
represents a "progress-billing" or otherwise does not represent
a
complete sale; for purposes hereof, "progress-billing" means
any
invoice for goods sold or leased or services rendered under a
contract
or agreement pursuant to which the Account Debtor's obligation to
pay
such invoice is conditioned upon the Borrower completion of any
further performance under the contract or agreement; or
(n) it arises out of a sale made by the Borrower or a Guarantor to
an
employee, officer, agent, director, stockholder, Subsidiary or
Affiliate of the Borrower or a Guarantor; or
(o) such Account was not paid in full, and the Borrower or a
Guarantor
created a new receivable for the unpaid portion of the Account,
and
other Accounts constituting chargebacks, debit memos and other
adjustments for unauthorized deductions; or
(p) the Account Debtor (i) has (other than in the case of a
pre-petition right of set-off) or has asserted a right of
set-off
against the Borrower or a Guarantor (unless such Account Debtor
has
entered into a written agreement reasonably acceptable to the Agent
to
waive such set-off rights) or (ii) has disputed its liability
(whether by chargeback or otherwise) or made any asserted or
unasserted claim with respect to the Account or any other Account
of
the Borrower or a Guarantor which has not been resolved, in each
case,
without duplication, only to the extent of the amount of such
actual
or asserted right of set-off, or the amount of such dispute or
claim,
as the case may be, it being understood that the Accounts described
in
this paragraph (p) shall be updated on a monthly, rather than
weekly,
basis which update shall be reflected on the Borrowing Base
Certificate delivered pursuant to clause (b) of Section 5.08;
or
(q) the Account does not comply in all material respects with
the
requirements of all applicable laws and regulations, whether
Federal,
state or local; or
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<PAGE>
(r) as to any Account, to the extent that a check, promissory
note,
draft, trade acceptance or other Instrument for the payment of
money
has been received, presented for payment and returned uncollected
for
any reason (other than bank error prior to the correction thereof);
or
(s) the Account is an extended terms account, which is due and
payable
more than 90 days from the original date of invoice; or
(t) the Account is created on cash on delivery terms; or
(u) the Account represents tooling receivables related to tooling
that
has not been received by the Borrower or a Guarantor and approved
and
accepted by the applicable customer.
Notwithstanding the forgoing, all Accounts of any single Account
Debtor and its
Affiliates which, in the aggregate, exceed (i) 25% in respect of an
Account
Debtor whose securities are rated Investment Grade or (ii) 10% in
respect of all
other Account Debtors (other than Ford Motor Company and Renault
Nissan, in
which cases such percentage shall be 35% and other than General
Motors, Daimler
Chrysler, Honda and Toyota, in which cases such percentage shall be
25%), of the
total amount of all Eligible Accounts Receivable at the time of
any
determination shall be deemed not to be Eligible Accounts
Receivable to the
extent of such excess. In determining the aggregate amount from the
same Account
Debtor that is unpaid more than 120 days from the date of invoice
or more than
60 days (or 90 days, as applicable) from the due date pursuant to
clause (b),
above there shall be excluded the amount of any net credit balances
relating to
Accounts due from an Account Debtor with invoice dates more than
120 days from
the date of invoice or more than 60 days (or 90 days, as
applicable) from the
due date.
"Eligible Assignee" shall mean (i) a commercial bank having
total
assets in excess of $1,000,000,000; (ii) a finance company,
insurance company or
other financial institution or fund, in each case reasonably
acceptable to the
Agent, which in the ordinary course of business extends credit of
the type
contemplated herein and has total assets in excess of $200,000,000
and whose
becoming an assignee would not constitute a prohibited transaction
under Section
4975 of ERISA; (iii) a Lender Affiliate of the assignor Lender; and
(iv) any
other financial institution satisfactory to the Agent.
"Eligible Finished Goods" shall mean, on any date, Eligible
Inventory
defined as Finished Goods by the Borrower or a Guarantor on such
date as shown
on the Borrower's or such Guarantor's perpetual inventory records
in accordance
with its current and historical accounting practices.
"Eligible Inventory" shall mean, at the time of any
determination
thereof, without duplication, the Inventory Value of the Borrower
and the
Guarantors at the time of such determination that is not ineligible
for
inclusion in the calculation of the Borrowing Base pursuant to any
of clauses
(a) through (n) below. Without limiting the foregoing, to qualify
as "Eligible
Inventory" no person other than the Borrower or a Guarantor shall
have any
direct or indirect ownership, interest or title to such Inventory
and no person
other than the Borrower or any Guarantor, shall be indicated on any
purchase
order or invoice with respect to such Inventory
11
<PAGE>
as having or purporting to have an interest therein. Borrowing Base
eligibility
standards may be fixed and revised from time to time by the Agent,
in its
reasonable discretion, and in the Agent's reasonable exclusive
judgment, with
any changes in such standards to be effective upon the later of the
date of the
next succeeding weekly Borrowing Base Certificate or 5 Business
Days after
delivery of notice thereof to the Borrower. Unless otherwise from
time to time
approved in writing by the Agent, no Inventory shall be deemed
Eligible
Inventory if, without duplication:
(a) the Borrower or a Guarantor does not have good, valid and
unencumbered
title thereto; or
(b) it is not located in the United States; or
(c) it is not either (i) located on property owned by the Borrower
or a
Guarantor, or (ii) located in a third party warehouse or at a
third
party processor (it being understood that the Borrower will
provide
its best estimate of the value of such Inventory to be agreed to
by
the Agent and reflected in the Borrowing Base Certificate) or
in
another location not owned by the Borrower or a Guarantor, and
either
(A) is not covered by a Landlord Lien Waiver or Bailee Letter,
as
applicable, in each case in form and substance reasonably
acceptable
to the Agent, or (B) a Rent Reserve has not been taken with respect
to
such Inventory; or
(d) it is goods returned or rejected due to quality issues by
customers of
the Borrower or a Guarantor; or
(e) it is operating supplies, packaging or shipping materials,
cartons,
repair parts, labels or miscellaneous spare parts and other
such
materials not considered used for sale in the ordinary course
of
business by the Agent in its reasonable discretion from time to
time;
or
(f) it is not subject to a valid and perfected first priority Lien
in
favor of the Agent; or
(g) it is consigned or at a customer location but still accounted
for in
the Borrower's or a Guarantor's perpetual inventory balance; or
(h) it is Inventory that is in-transit to or from a location not
leased or
operated by the Borrower or a Guarantor (it being understood that
the
Borrower will provide its best estimate of the value of such
Inventory
to be agreed to by the Agent and reflected in the Borrowing
Base
Certificate); or
(i) it is seconds or thirds or it is obsolete or unmerchantable or
is
identified as overstock or excess by the Borrower or a Guarantor,
or
does not otherwise conform to the representations and
warranties
contained in the Agreement applicable to Inventory subject to
any
materiality contained in such representations and warranties;
or
(j) it is Inventory used as a sample or prototype, displays or
display
items; or
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<PAGE>
(k) any portion of Inventory Value thereof is attributable to
intercompany
profit among the Borrower and the Guarantors or their Affiliates;
or
(l) any Inventory that is damaged or marked for return to vendor;
or
(m) such Inventory does not meet all material applicable standards
imposed
by any Governmental Authority having regulatory authority over
it.
"Eligible Raw Materials" shall mean, on any date, Eligible
Inventory
defined as Raw Materials by the Borrower on such date as shown on
the Borrower
perpetual inventory records in accordance with its current and
historical
accounting practices.
"Eligible Work in Process" shall mean, on any date, Eligible
Inventory
defined as Work-in-Process by the Borrower or any Guarantor on such
date as
shown on the Borrower perpetual inventory records in accordance
with its current
and historical accounting practices.
"Environmental Laws" shall mean all laws, rules, regulations,
codes,
ordinances, orders, decrees, judgments, injunctions, notices or
binding
agreements issued, promulgated or entered into by any Governmental
Authority,
relating to the protection of the environment, preservation or
reclamation of
natural resources, the management, release or threatened release of
any
Hazardous Material or to health and safety matters.
"Environmental Liability" shall mean any liability, contingent
or
otherwise (including any liability for damages, costs of
environmental
remediation, fines, penalties or indemnities), of the Parent or any
Subsidiary
directly or indirectly resulting from or based upon (a) violation
of any
Environmental Law, (b) the generation, use, handling,
transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to
any Hazardous
Materials, (d) the release or threatened release of any Hazardous
Materials into
the environment or (e) any contract, agreement or other consensual
arrangement
pursuant to which liability is assumed or imposed with respect to
any of the
foregoing.
"Environmental Lien" shall mean a Lien in favor of any
Governmental
Authority for (i) any liability under federal or state
environmental laws or
regulations, or (ii) damages arising from or costs incurred by such
Governmental
Authority in response to a release or threatened release of a
hazardous or toxic
waste, substance or constituent, or other substance into the
environment.
"Equity Interests" shall mean shares of capital stock,
partnership
interests, membership interests in a limited liability company,
beneficial
interests in a trust or other equity ownership interests in a
Person, and any
warrants, options or other rights entitling the holder thereof to
purchase or
acquire any such equity interest.
"ERISA" shall mean the Employee Retirement Income Security Act
of
1974, as amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or
not
incorporated) that, together with the Borrower, is treated as a
single employer
under Section 414(b) or (c) of
13
<PAGE>
the Code or, solely for purposes of Section 302 of ERISA and
Section 412 of the
Code, is treated as a single employer under Section 414 of the
Code.
"ERISA Event" shall mean (a) any "reportable event", as defined
in
Section 4043 of ERISA or the regulations issued thereunder with
respect to a
Plan (other than an event for which the 30-day notice period is
waived); (b) the
existence with respect to any Plan of an "accumulated funding
deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA),
whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or
Section 303(d)
of ERISA of an application for a waiver of the minimum funding
standard with
respect to any Plan; (d) the incurrence by the Borrower or any of
its ERISA
Affiliates of any liability under Title IV of ERISA with respect to
the
termination of any Plan; (e) the receipt by the Borrower or any
ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an
intention to
terminate any Plan or Plans or to appoint a trustee to administer
any Plan; (f)
the incurrence by the Borrower or any of its ERISA Affiliates of
any liability
with respect to the withdrawal or partial withdrawal from any Plan
or
Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA
Affiliate of
any notice, or the receipt by any Multiemployer Plan from the
Borrower or any
ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to
be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"Eurocurrency Liabilities" shall have the meaning assigned thereto
in
Regulation D issued by the Board, as in effect from time to
time.
"Eurodollar", when used in reference to any Loan or Borrowing,
refers
to whether such Loan, or the Loans comprising such Borrowing, are
bearing
interest at a rate determined by reference to the Adjusted LIBO
Rate.
"Eurodollar Borrowing" shall mean a Borrowing comprised of
Eurodollar
Loans.
"Event of Default" shall have the meaning given such term in
Section
7.
"Excluded Taxes" shall mean, with respect to the Agent, any
Lender,
any Issuing Lender or any other recipient of any payment to be made
by or on
account of any obligation of the Borrower hereunder, (a) income or
franchise
taxes imposed on (or measured by) its net income by the United
States of
America, or by the jurisdiction under the laws of which such
recipient is
organized or in which its principal office is located or, in the
case of any
Lender, in which its applicable lending office is located, (b) any
branch
profits taxes imposed by the United States of America or any
similar tax imposed
by any other jurisdiction in which the Borrower is located and (c)
in the case
of a Foreign Lender, any withholding tax that is imposed on amounts
payable to
such Foreign Lender at the time such Foreign Lender becomes a party
to this
Agreement (or designates a new lending office) or is attributable
to such
Foreign Lender's failure to comply with Section 2.18(e), except to
the extent
that such Foreign Lender (or its assignor, if any) was entitled, at
the time of
designation of a new lending office (or assignment), to receive
additional
amounts from the Borrower with respect to such withholding tax
pursuant to
Section 2.18(a).
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<PAGE>
"Existing Agent" shall mean Silver Point Capital Fund, L.P. in
its
capacity as Administrative Agent for the lenders from time to time
party to the
Existing Agreement.
"Existing Agreement" shall have the meaning set forth in the
Introduction and shall include all of the agreements granting
security interests
and Liens in property and assets of the Borrower and the Guarantors
to the
Existing Lenders, including without limitation, the security
agreements,
mortgages and leasehold mortgages listed on Schedule 1.01 hereto,
each of which
documents was executed and delivered (to the extent party thereto)
by the
Borrower and the Guarantors prior to the Filing Date, as each may
have been
amended or modified from time to time.
"Existing First Lien Indebtedness" shall mean Indebtedness and
other
obligations incurred by the Borrower and the Guarantors under the
First Lien
Facility (as such term is defined in the Existing Agreement).
"Existing First Lien Lenders" shall mean the lenders from time to
time
holding Existing First Lien Indebtedness.
"Existing Lenders" shall mean, collectively, the Existing First
Lien
Lenders and the Existing Second Lien Lenders under the Existing
Agreement,
together with any successors or assigns thereof.
"Existing Second Lien Indebtedness" shall mean Indebtedness and
other
obligations incurred by the Borrower and the Guarantors under the
Second Lien
Facility (as such term is defined in the Existing Agreement).
"Existing Second Lien Lenders" shall mean the lenders from time
to
time holding Existing Second Lien Indebtedness.
"Federal Funds Effective Rate" shall mean, for any day, the
weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of
the rates on
overnight Federal funds transactions with members of the Federal
Reserve System
arranged by Federal funds brokers, as published on the next
succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is
not so
published for any day that is a Business Day, the average (rounded
upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day
for such
transactions received by the Agent from three Federal funds brokers
of
recognized standing selected by it.
"Fees" shall collectively mean the Commitment Fees, Letter of
Credit
Fees and other fees referred to in Sections 2.21, 2.22 and
2.23.
"Filing Date" shall mean February 2, 2005.
"Final Order" shall have the meaning given such term in Section
4.02(d).
"Financial Officer" shall mean the chief financial officer,
controller, corporate controller, treasurer or corporate treasurer
of the
Borrower.
15
<PAGE>
"Finished Goods" shall mean completed goods which require no
additional processing or manufacturing, to be sold to
non-Affiliate/third party
customers by the Borrower or any Guarantor in the ordinary course
of business.
"Foreign Lender" shall mean any Lender that is organized under
the
laws of a jurisdiction other than that in which the Borrower is
located. For
purposes of this definition, the United States of America, each
State thereof
and the District of Columbia shall be deemed to constitute a
single
jurisdiction.
"Foreign Subsidiary" shall mean any direct or indirect non-U.S.
Subsidiary of the Borrower, other than Seojin.
"GAAP" shall mean generally accepted accounting principles applied
in
accordance with Section 1.03.
"Global EBITDA" shall mean, for any period, all as determined
in
accordance with GAAP, the consolidated net income (or net loss) of
the Global
Entities for such period, plus (a) to the extent deducted in the
calculation of
consolidated net income, the sum of (i) depreciation expense, (ii)
amortization
expense, (iii) other non-cash charges, (iv) consolidated foreign,
federal, state
and local income taxes expense, (v) gross interest expense for such
period less
gross interest income for such period, (vi) extraordinary losses,
(vii) any
restructuring charges, (viii) professional fees and expenses
incurred by, and
costs under employee retention programs of, the Domestic Entities,
(ix) without
duplication, "Chapter 11 expenses" (or "administrative costs
reflecting Chapter
11 expenses") of the Domestic Entities as shown on the consolidated
statement of
income of the Domestic Entities for such period, (x) plus or minus
the
cumulative effect of any change in accounting principles and (xi)
plus or minus
equity in the earnings of Metalsa less (b) extraordinary gains,
plus or minus
(c) the amount of cash received or expended in such period in
respect of any
amount which, under clause (vii ) above, was taken into account in
determining
Global EBITDA for such or any prior period, plus (d) cash dividends
and
distributions received from Metalsa.
"Global Entities" shall mean the Parent and all of its direct
and
indirect Subsidiaries, on a consolidated basis.
"Governmental Authority" shall mean the government of the
United
States of America, any other nation or any political subdivision
thereof,
whether state or local, and any agency, authority, instrumentality,
regulatory
body, court, central bank or other entity exercising executive,
legislative,
judicial, taxing, regulatory or administrative powers or functions
of or
pertaining to government.
"Guarantor" shall have the meaning set forth in the
Introduction.
"Hazardous Materials" shall mean all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes
or other
pollutants, including petroleum or petroleum distillates, asbestos
or asbestos
containing materials, polychlorinated biphenyls, radon gas,
infectious or
medical wastes and all other substances or wastes of any nature
regulated
pursuant to any Environmental Law.
16
<PAGE>
"Indebtedness" shall mean, at any time and with respect to any
Person,
(i) all indebtedness of such Person for borrowed money, (ii) all
indebtedness of
such Person for the deferred purchase price of property or services
(other than
property, including inventory, and services purchased, trade
payables that are
not more than 60 days past due (or that are more than 60 days past
due, if the
validity or amount thereof is being contested in good faith and by
appropriate
proceedings and if such Person shall have set aside on its books
adequate
reserves therefor in accordance with GAAP) and expense accruals and
deferred
compensation items arising, in the ordinary course of business),
(iii) all
obligations of such Person evidenced by notes, bonds, debentures or
other
similar instruments (other than performance, surety and appeal
bonds arising in
the ordinary course of business), (iv) all indebtedness of such
Person created
or arising under any conditional sale or other title retention
agreement with
respect to property acquired by such Person (even though the rights
and remedies
of the seller or lender under such agreement in the event of
default are limited
to repossession or sale of such property, in which case such
Indebtedness shall
be limited to the value of the property), (v) all obligations of
such Person
under Capitalized Leases, (vi) all reimbursement, payment or
similar obligations
of such Person, contingent or otherwise, under acceptance, letter
of credit or
similar facilities and all obligations of such Person in respect of
(x) currency
swap agreements, currency future or option contracts and other
similar
agreements designed to hedge against fluctuations in foreign
interest or
exchange rates and (y) interest rate swap, cap or collar agreements
and interest
rate future or option contracts, in each case on a marked-to-market
basis; (vii)
all Indebtedness referred to in clauses (i) through (vi) above
guaranteed
directly or indirectly by such Person, or in effect guaranteed
directly or
indirectly by such Person through an agreement (A) to pay or
purchase such
Indebtedness or to advance or supply funds for the payment or
purchase of such
Indebtedness, (B) to purchase, sell or lease (as lessee or lessor)
property, or
to purchase or sell services, primarily for the purpose of enabling
the debtor
to make payment of such Indebtedness or to assure the holder of
such
Indebtedness against loss in respect of such Indebtedness, (C) to
supply funds
to or in any other manner invest in the debtor (including any
agreement to pay
for property or services irrespective of whether such property is
received or
such services are rendered) or (D) otherwise to assure a creditor
against loss
in respect of such Indebtedness, and (viii) all Indebtedness
referred to in
clauses (i) through (vii) above secured by (or for which the holder
of such
Indebtedness has an existing right, contingent or otherwise, to be
secured by)
any Lien upon or in property (including, without limitation,
accounts and
contract rights) owned by such Person, even though such Person has
not assumed
or become liable for the payment of such Indebtedness; provided,
however, such
Indebtedness referred to in this clause (viii) shall be the lesser
of the value
of such property on which a Lien is attached or the amount of such
Indebtedness.
"Indemnified Taxes" shall mean Taxes other than Excluded Taxes.
"Indemnitee" shall have the meaning given such term in Section
10.05(b).
"Insufficiency" shall mean, with respect to any Plan, its "amount
of
unfunded benefit liabilities" within the meaning of Section
4001(a)(18) of
ERISA, if any.
"Interest Election Request" shall mean a request by the Borrower
to
convert or continue a Borrowing in accordance with Section
2.06.
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<PAGE>
"Interest Payment Date" shall mean (i) as to any Eurodollar Loan,
the
last day of each consecutive 30 day period running from the
commencement of the
applicable Interest Period, and (ii) as to all ABR Loans, the last
calendar day
of each month and the date on which any ABR Loans are converted to
Eurodollar
Loans pursuant to Section 2.06.
"Interest Period" shall mean, as to any Borrowing of Eurodollar
Loans,
the period commencing on the date of such Borrowing (including as a
result of a
conversion from ABR Loans) or on the last day of the preceding
Interest Period
applicable to such Borrowing and ending on the numerically
corresponding day (or
if there is no corresponding day, the last day) in the calendar
month that is
one, three, six or nine months thereafter, as the Borrower may
elect in the
related notice delivered pursuant to Sections 2.04, 2.06 or 2.07;
provided,
however, that (i) if any Interest Period would end on a day which
shall not be
a Business Day, such Interest Period shall be extended to the next
succeeding
Business Day unless such next succeeding Business Day would fall in
the next
calendar month, in which case such Interest Period shall end on the
next
preceding Business Day, and (ii) no Interest Period shall end later
than the
Termination Date.
"Interim Order" shall have the meaning given such term in
Section
4.01(b).
"Inventory" has the meaning set forth in Article 9 of the
Uniform
Commercial Code as in effect from time to time in the State of New
York (and
includes Finished Goods, Raw Materials and Work in Process).
"Inventory Reserves" shall mean reserves against Inventory equal
to
the sum of the following:
(a) a reserve determined by the Agent in its reasonable discretion
for
Inventory that, at any time, is equal to 50% of the amount of
Inventory in excess of the most recent 6 months of (A) sales in
the
case of Finished Goods, (B) usage in the case of Raw Materials and
(C)
usage in the case of Work-in-Process Inventory or, in each case,
as
otherwise reasonably determined by the Agent; and
(b) a revaluation reserve whereby favorable variances shall be
deducted from Eligible Inventory and unfavorable variances shall
not
be added to Eligible Inventory;
(c) a lower of cost or market value reserve for any differences
between the Borrower's or a Guarantor's actual cost to produce
versus
its selling price to third parties; and
(d) any other reserve as deemed necessary by the Agent in its
reasonable discretion, from time to time with any such
additional
reserve to be effective upon the later of the date of the next
succeeding weekly Borrowing Base Certificate or 5 Business days
after
delivery of notice thereof to the Borrower.
"Inventory Value" shall mean with respect to any Inventory of
the
Borrower or a Guarantor at the time of any determination thereof,
the standard
cost carried on the perpetual records of the Borrower or a
Guarantor stated on a
basis consistent with their current and
18
<PAGE>
historical accounting practices, in Dollars, determined in
accordance with the
standard cost method of accounting less (i) any markup on Inventory
from an
Affiliate and (ii) in the event variances under the standard cost
method are
expensed, a reserve shall be reasonably determined as appropriate
in order to
adjust the standard cost of Eligible Inventory to approximate
actual cost.
"Investment Grade" shall mean a rating established by a third
party
rating agency, equivalent to 'BBB-' by S&P or 'Baa3' by
Moody's, or better.
"Investments" shall have the meaning given such term in Section
6.10.
"Issuing Lender" shall mean JPMorgan Chase Bank, N.A., in its
capacity
as the issuer of Letters of Credit hereunder, and its successors in
such
capacity as provided in Section 2.03(i) and up to four other
Lenders, which
other Lenders shall be reasonably satisfactory to the Borrower and
the Agent.
The Issuing Lender may, in its discretion, arrange for one or more
Letters of
Credit to be issued by Affiliates of the Issuing Lender, in which
case the term
"Issuing Lender" shall include any such Affiliate with respect to
Letters of
Credit issued by such Affiliate.
"JPMorgan" shall have the meaning given such term in Section
10.05(a).
"JPMCB" shall have the meaning given such term in the
Introduction.
"Joint Venture" shall mean Metalsa, Tower Automotive (WuHu)
Company
Ltd. and Changehun Tower Golden Ring Automotive Products Company,
Ltd.
"Joint Venture Interests" shall mean any interest of the Borrower
or a
Guarantor in a Joint Venture.
"Landlord Lien Waiver" shall mean a written agreement that is
reasonably acceptable to the Agent, pursuant to which a Person
shall waive or
subordinate its rights (if any, that are or would be prior to the
Liens granted
to the Agent and the Lenders under the Agreement) and claims as
landlord in any
Inventory of the Borrower or a Guarantor for unpaid rents, grant
access to the
Agent for the repossession and sale of such inventory and make
other agreements
relative thereto.
"LC Disbursement" shall mean a payment made by the Issuing
Lender
pursuant to a Letter of Credit.
"LC Exposure" shall mean, at any time, the sum of (a) the
aggregate
undrawn amount of all outstanding Letters of Credit at such time
plus (b) the
aggregate amount of all LC Disbursements that have not yet been
reimbursed by or
on behalf of the Borrower at such time. The LC Exposure of any
Lender at any
time shall be its Tranche A Commitment Percentage of the LC
Exposure at such
time.
"Lender Affiliate" shall mean, (a) with respect to any Lender, (i)
an
Affiliate of such Lender or (ii) any entity (whether a corporation,
partnership,
trust or otherwise) that is engaged in making, purchasing, holding
or otherwise
investing in bank loans and similar extensions of credit in the
ordinary course
of its business and is administered or managed by a
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<PAGE>
Lender or an Affiliate of such Lender and (b) with respect to any
Lender that is
a fund which invests in bank loans and similar extensions of
credit, any other
fund that invests in bank loans and similar extensions of credit
and is managed
by the same investment advisor as such Lender or by an Affiliate of
such
investment advisor.
"Lenders" shall have the meaning set forth in the Introduction.
"Letter of Credit" shall mean any irrevocable letter of credit
issued
pursuant to Section 2.03, which letter of credit shall be (i) an
import
documentary or a standby letter of credit, (ii) issued for purposes
that are
consistent with the provisions of this Agreement (including,
without limitation,
Section 3.09), (iii) denominated in Dollars and (iv) otherwise in
such form as
may be reasonably approved from time to time by the Agent and the
applicable
Issuing Lender.
"Letter of Credit Account" shall mean the account established by
the
Borrower under the sole and exclusive control of the Agent
maintained at the
office of the Agent at 270 Park Avenue, New York, New York 10017
designated as
the "Tower Letter of Credit Account" that shall be used solely for
the purposes
set forth herein.
"Letter of Credit Fees" shall mean the fees payable in respect
of
Letters of Credit pursuant to Section 2.23.
"LIBO Rate" shall mean, with respect to any Eurodollar Borrowing
for
any Interest Period, the rate appearing on Page 3750 of the Dow
Jones Market
Service (or on any successor or substitute page of such Service, or
any
successor to or substitute for such Service, providing rate
quotations
comparable to those currently provided on such page of such
Service, as
determined by the Agent from time to time for purposes of providing
quotations
of interest rates applicable to dollar deposits in the London
interbank market)
at approximately 11:00 a.m., London time, two Business Days prior
to the
commencement of such Interest Period, as the rate for dollar
deposits with a
maturity comparable to such Interest Period. In the event that such
rate is not
available at such time for any reason, then the "LIBO Rate" with
respect to such
Eurodollar Borrowing for such Interest Period shall be the rate at
which dollar
deposits of $5,000,000 and for a maturity comparable to such
Interest Period are
offered by the principal London office of the Agent in immediately
available
funds in the London interbank market at approximately 11:00 a.m.,
London time,
two Business Days prior to the commencement of such Interest
Period.
"Lien" shall mean (a) any mortgage, deed of trust, pledge,
hypothecation, security interest, encumbrance, lien or charge of
any kind
whatsoever, (b) the interest of a vendor or a lessor under any
conditional sale,
capital lease or other title retention agreement (or any financing
lease having
substantially the same economic effect as any of the foregoing) and
(c) in the
case of securities, any purchase option, call or similar right of a
third party
with respect to such securities.
"Loan" shall mean, collectively, the Tranche A Loans and the
Tranche B
Loan.
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<PAGE>
"Loan Documents" shall mean this Agreement, the Letters of Credit,
the
Security and Pledge Agreement, and any other instrument or
agreement executed
and delivered to the Agent or any Lender in connection
herewith.
"M&E Component" shall mean, at the time of any determination,
an
amount allocable to the machinery and equipment of the Borrower and
the
Guarantors, which amount shall be equal to not less than
$200,000,000, subject
to adjustment: (i) from time to time upon receipt of periodic
valuation updates
received from the Agent's internal or third party asset valuation
experts; or
(ii) concurrent with the sale or commitment to sell any assets
constituting part
of the M&E Component.
"Maturity Date" shall mean August 2, 2007.
"Metalsa" shall mean Metalsa, S.A. De C.V.
"Minority Lenders" shall have the meaning given such term in
Section
10.09(b).
"MLB" shall have the meaning given such term in Section
10.05(a).
"Moody's" shall mean Moody's Investors Service, Inc.
"Multiemployer Plan" shall mean a multiemployer plan as defined
in
Section 4001(a)(3) of ERISA.
"Net Proceeds" shall mean, in respect of any sale of assets, the
cash
proceeds of such sale after the payment of or reservation for (i)
expenses that
are directly related to (or the need for which arises as a result
of) the
transaction of sale, including, but not limited to, related
severance costs,
taxes payable, brokerage commissions, professional expenses, other
similar costs
that are directly related to the sale (all of which expenses shall
be reasonably
satisfactory to the Agent in its reasonable judgment) and (ii) the
amount
secured by valid and perfected Liens, if any, that are senior to
the Liens on
such assets held by the Agent on behalf of the Lenders.
"Net Recovery Liquidation Rate" shall mean, at any time with
respect
to any domestic Inventory, the quotient (expressed as a percentage)
of (i ) the
Net Recovery Liquidation Value of such Inventory divided by (ii)
the gross
inventory cost of such Inventory, determined on the basis of the
then most
recently conducted inventory appraisal performed by an independent
inventory
appraisal firm reasonably satisfactory to the Agent.
"Net Recovery Liquidation Value" shall mean, at any time, with
respect
to any domestic Inventory, the net orderly liquidation value of
such Inventory
as then most recently determined, based on the then most recently
conducted
inventory appraisal performed by an independent inventory appraisal
firm
reasonably satisfactory to the Agent.
"Obligations" shall mean (a) the due and punctual payment of
principal
of and interest on the Loans and the reimbursement of all amounts
drawn under
Letters of Credit, and (b) the due and punctual payment of the Fees
and all
other present and future, fixed or contingent, monetary obligations
of the
Borrower and the Guarantors to the Lenders and the Agent under the
Loan
Documents.
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<PAGE>
"Orders" shall mean the Interim Order and the Final Order of
the
Bankruptcy Court referred to in Sections 4.01(b) and 4.02(d).
"Other Taxes" shall mean any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or
similar
levies arising from any payment made hereunder or from the
execution, delivery
or enforcement of, or otherwise with respect to, this
Agreement.
"Parent" shall have the meaning given such term in the
Introduction.
"Participant" shall have the meaning given such term in Section
10.03(d).
"Patriot Act" shall mean the USA Patriot Act, Title III of Pub.
L.
107-56, signed into law on October 26, 2001.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or
any
successor agency or entity performing substantially the same
functions.
"Permitted Investments" shall mean:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United
States of
America (or by any agency thereof to the extent such obligations
are backed by
the full faith and credit of the United States of America), in each
case
maturing within twelve months from the date of acquisition
thereof;
(b) investments in commercial paper maturing within 270 days from
the
date of acquisition thereof and having, at such date of
acquisition, a credit
rating of at least 'A' from S&P or 'A2' from Moody's;
(c) investments in certificates of deposit, banker's acceptances
and
time deposits (including Eurodollar time deposits) maturing within
180 days from
the date of acquisition thereof issued or guaranteed by or placed
with (i) any
domestic office of the Agent or (ii) any domestic office of any
other commercial
bank of recognized standing organized under the laws of the United
States of
America or any State thereof that has a combined capital and
surplus and
undivided profits of not less than $500,000,000;
(d) investments in repurchase obligations with a term of not more
than
seven days for underlying securities of the types described in
clause (a) above
entered into with any office of a bank or trust company meeting
the
qualifications specified in clause (c) above;
(e) investments in money market funds substantially all the assets
of
which are comprised of securities of the types described in clauses
(a) through
(e) above;
(f) in the case of a Foreign Subsidiary, investments similar to
those
described in clauses (a) through (e) in obligations of Persons
located in (x) a
jurisdiction in which such Foreign Subsidiary is organized or has
operations or
(y) The Netherlands; and
22
<PAGE>
(g) to the extent owned on the Filing Date, investments by the
Borrower or any Guarantor in the capital stock of any direct or
indirect
Subsidiary and by any Foreign Subsidiary in any other Foreign
Subsidiary.
"Permitted Liens" shall mean: (i) Liens imposed by law (other
than
Environmental Liens and any Lien imposed under ERISA) for taxes,
assessments or
charges of any Governmental Authority for claims not yet due or
which are being
contested in good faith by appropriate proceedings and with respect
to which
adequate reserves or other appropriate provisions are being
maintained in
accordance with GAAP; (ii) Liens of landlords and Liens of
carriers,
warehousemen, suppliers, mechanics, materialmen and other Liens
(other than
Environmental Liens and any Lien imposed under ERISA) in existence
on the Filing
Date or thereafter imposed by law and created in the ordinary
course of
business; (iii) Liens (other than any Lien imposed under ERISA)
incurred or
deposits made in the ordinary course of business (including,
without limitation,
surety bonds and appeal bonds) in connection with workers'
compensation,
unemployment insurance and other types of social security benefits
or to secure
the performance of tenders, bids, leases, contracts (other than for
the
repayment of Indebtedness), statutory obligations and other similar
obligations
or arising as a result of progress payments under government
contracts; (iv)
easements (including, without limitation, reciprocal easement
agreements and
utility agreements), rights-of-way, covenants, consents,
reservations,
encroachments, variations and zoning and other restrictions,
charges or
encumbrances (whether or not recorded) and interest of ground
lessors, which do
not interfere materially with the ordinary conduct of the business
of the
Borrower or any Guarantor, as the case may be, and which do not
materially
detract from the value of the property to which they attach or
materially impair
the use thereof to the Borrower or any Guarantor, as the case may
be; (v)
letters of credit or deposits in the ordinary course to secure
leases; (vi)
extensions, renewals or replacements of any Lien referred to in
paragraphs (i)
through (v) above, provided that the principal amount of the
obligation secured
thereby is not increased and that any such extension, renewal or
replacement is
limited to the property originally encumbered thereby; (vii) Liens
consisting of
deposits with derivatives traders as may be required pursuant to
the terms of
the International Swaps and Derivatives Association, Inc.'s Master
Agreement(s)
executed in the ordinary course of business in connection with the
Borrower's
and the Guarantors' foreign exchange and interest hedging programs
in an
aggregate amount not to exceed at any time $5,000,000; and (viii)
Liens in
respect of judgments that would not result in an Event of Default
under Section
7.01(k).
"Permitted Receivable Purchase Facility" shall mean the
Receivables
Funding Agreement dated as of December 30, 2004 by and among Tower
Automotive
ASC, L.L.C., as borrower, R.J. Tower Corporation, as servicer, the
financing
institutions party thereto, and General Electric Capital
Corporation as
administrative agent and that certain Receivables Sale Agreement
dated as
December 30, 2004 by and among certain Debtors as originators,
Tower Automotive
ASC, L.L.C., and R.J. Tower Corporation and the agreements related
thereto.
"Person" shall mean any natural person, corporation, division of
a
corporation, partnership, limited liability company, trust, joint
venture,
association, company, estate, unincorporated organization or
Governmental or
Authority or any agency or political subdivision thereof.
23
<PAGE>
"Plan" shall mean any employee pension benefit plan (other than
a
Multiemployer Plan) subject to the provisions of Title IV of ERISA
or Section
412 of the Code or Section 302 of ERISA, and in respect of which
the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would
under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section
3(5) of
ERISA.
"Prepayment Date" shall mean the date that is forty-five (45)
days
after the entry of the Interim Order by the Bankruptcy Court if the
Final Order
has not been entered by the Bankruptcy Court prior to the
expiration of such
forty-five (45) day period.
"Pre-Petition Payment" shall mean a payment (by way of adequate
protection or otherwise) of principal or interest or otherwise on
account of any
pre-petition Indebtedness or trade payables or other pre-petition
claims against
the Borrower or any Guarantor.
"Prime Rate" shall mean the rate of interest per annum publicly
announced from time to time by JPMorgan Chase Bank, N.A. as its
prime rate in
effect at its principal office in New York City; each change in the
Prime Rate
shall be effective from and including the date such change is
publicly announced
as being effective.
"Qualified Receivables Transaction" shall mean any transaction
or
series of transactions that may be entered into by one or more
Foreign
Subsidiaries pursuant to which one or more Foreign Subsidiaries may
sell, convey
or otherwise transfer to (1) a Receivables Subsidiary (in the case
of a transfer
by any Foreign Subsidiary) and (2) any other Person (in the case of
a transfer
by a Receivables Subsidiary), or may grant a security interest in,
Receivables
(whether now existing or arising in the future) of any Foreign
Subsidiary, and
any assets related thereto, including, without limitation, all
contracts and all
guarantees or other obligations in respect of such Receivables, the
proceeds of
such Receivables and other assets which are customarily
transferred, or in
respect of which security interests are customarily granted, in
connection with
asset securitizations involving Receivables.
"Raw Materials" shall mean items/materials used or consumed in
the
manufacturing of goods to be sold by the Borrower or a Guarantor in
the ordinary
course of business.
"Receivable" shall mean a right to receive payment arising from a
sale
or lease of goods or the performance of services by a Person
pursuant to an
arrangement with another Person pursuant to which such other Person
is obligated
to pay for good or services under terms that permit the purchase of
such goods
and services on credit and shall include, in any event, any items
of property
that would be classified as an "account," "chattel paper," "payment
intangible"
or "instrument" under the Uniform Commercial Code as in effect in
the State of
New York and any supporting obligations.
"Receivables Subsidiary" shall mean any wholly-owned Subsidiary of
any
Foreign Subsidiary (or another Person in which any Foreign
Subsidiary makes an
Investment and to which one or more Foreign Subsidiaries transfer
Receivables
and related assets) which engages in no activities other than in
connection with
the financing of Receivables and which is
24
<PAGE>
designated by the Board of Directors of the applicable Foreign
Subsidiary (as
provided below) as a Receivables Subsidiary:
1. no portion of the Indebtedness or any other obligations
(contingent or otherwise) of which:
(i) is guaranteed by the Borrower or any Guarantor;
(ii) is recourse to or obligates the Borrower or any
Guarantor; or
(iii) subjects any property or assets of the Borrower or
any Guarantor, directly or indirectly, contingently or
otherwise, to the satisfaction thereof;
2. with which neither the Borrower nor any Guarantor has any
material contract, agreement, arrangement or understanding; and
3. to which neither the Borrower nor any Guarantor has any
obligation to maintain or preserve such entity's financial
condition or cause such entity to achieve certain levels of
operating results.
Any such designation by the Board of Directors of the applicable
Foreign
Subsidiary shall be evidenced by a certified copy of the resolution
of the Board
of Directors of such Foreign Subsidiary giving effect to such
designation and an
officers certificate certifying, to the best of such officer's
knowledge and
belief, that such designation complies with the foregoing
conditions.
"Register" shall have the meaning given such term in Section
10.03(b)(iv).
"Related Parties" shall mean, with respect to any specified
Person,
such Person's Affiliates and the respective directors, officers,
employees,
agents and advisors of such Person and such Person's
Affiliates.
"Rent Reserve" shall mean, with respect to any plant, warehouse
distribution center or other operating facility where any Inventory
subject to
Liens arising by operation of law is located (including landlords'
Liens), a
reserve equal to one (1) month's rent at such plant, warehouse
distribution
center, or other operating facility.
"Reorganization Plan" shall mean a Chapter 11 plan in any of
the
Cases.
"Required Lenders" shall mean, at any time, (x) Lenders holding
Tranche A Loans representing in excess of 50% of the aggregate
principal amount
of such Tranche A Loans outstanding or, if no Tranche A Loans are
outstanding,
Lenders having Tranche A Commitments representing in excess of 50%
of the Total
Tranche A Commitment as well as (y) Lenders having Tranche A
Commitments and
Lenders holding Tranche B Loans representing in excess of 50%
25
<PAGE>
of the sum of the total Tranche A Commitment plus the aggregate
outstanding
principal amount of the Tranche B Loans.
"S&P" shall mean Standard & Poor's, a division of The
McGraw-Hill
Companies, Inc.
"Security and Pledge Agreement" shall have the meaning set forth
in
Section 4.01(c).
"Seojin" shall have the meaning given such term in Section
6.01.
"Single Employer Plan" shall mean a single employer plan, as
defined
in Section 4001(a)(15) of ERISA, that (i) is maintained for
employees of the
Borrower or an ERISA Affiliate or (ii) was so maintained and in
respect of which
the Borrower could reasonably be expected to have liability under
Title IV of
ERISA in the event such Plan has been or were to be terminated.
"Specified LLC Interests" shall mean any interest of the Borrower
or a
Guarantor in Tower Automotive Madison LLC and Tower Automotive ASC,
LLC.
"Standard Securitization Undertakings" shall mean
representations,
warranties, covenants and indemnities entered into by any Foreign
Subsidiary
which are reasonably customary in securitization of Receivables
transactions.
"Statutory Reserve Rate" shall mean a fraction (expressed as a
decimal), the numerator of which is the number one and the
denominator of which
is the number one minus the aggregate of the maximum reserve
percentages
(including any marginal, special, emergency or supplemental
reserves) expressed
as a decimal established by the Board to which the Agent is subject
(a) with
respect to the Base CD Rate, for new negotiable nonpersonal time
deposits in
dollars of over $100,000 with maturities approximately equal to
three months and
(b) with respect to the Adjusted LIBO Rate, for eurocurrency
funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of the
Board). Such
reserve percentages shall include those imposed pursuant to such
Regulation D.
Eurodollar Loans shall be deemed to constitute eurocurrency funding
and to be
subject to such reserve requirements without benefit of or credit
for proration,
exemptions or offsets that may be available from time to time to
any Lender
under such Regulation D or any comparable regulation. The Statutory
Reserve Rate
shall be adjusted automatically on and as of the effective date of
any change in
any reserve percentage.
"Subsidiary" shall mean, with respect to any Person (in this
definition referred to as the "parent"), any corporation,
association or other
business entity (whether now existing or hereafter organized) of
which at least
a majority of the securities or other ownership or membership
interests having
ordinary voting power for the election of directors is, at the time
as of which
any determination is being made, owned or controlled by the parent
or one or
more subsidiaries of the parent or by the parent and one or more
subsidiaries of
the parent.
"Super-majority Lenders" shall have the meaning given such term
in
Section 10.09(b).
26
<PAGE>
"Superpriority Claim" shall mean a claim against the Borrower and
any
Guarantor in any of the Cases which is an administrative expense
claim having
priority over any or all administrative expenses of the kind
specified in
Sections 503(b) or 507(b) of the Bankruptcy Code.
"Taxes" shall mean any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any
Governmental
Authority.
"Termination Date" shall mean the earliest to occur of (i) the
Prepayment Date, (ii) the Maturity Date, (iii) the Consummation
Date and (iv)
the acceleration of the Loans and the termination of the Total
Commitment in
accordance with the terms hereof.
"Termination Event" shall mean (i) a "reportable event", as such
term
is described in Section 4043(c) of ERISA (other than a "reportable
event" as to
which the 30-day notice is waived under subsection .22, .23, .25,
.27 or .28 of
PBGC Regulation Section 4043) or an event described in Section 4068
of ERISA and
excluding events which would not be reasonably likely (as
reasonably determined
by the Agent) to have a material adverse effect on the operations,
business,
properties, assets or condition (financial or otherwise) of the
Borrower and the
Guarantors taken as a whole, or (ii) the withdrawal of the Borrower
or any ERISA
Affiliate from a Multiple Employer Plan during a plan year in which
it was a
"substantial employer," as such term is defined in Section
4001(a)(2) of ERISA,
the incurrence of liability by the Borrower or any ERISA Affiliate
under Section
4064 of ERISA upon the termination of a Multiple Employer Plan, the
imposition
of Withdrawal Liability, or (iii) providing notice of intent to
terminate a Plan
pursuant to Section 4041(c) of ERISA or the treatment of a Plan
amendment as a
termination under Section 4041 of ERISA, if such amendment requires
the
provision of security, or (iv) the institution of proceedings to
terminate a
Plan by the PBGC under Section 4042 of ERISA, or (v) any other
event or
condition (other than the commencement of the Cases and the failure
to have made
any contribution accrued as of the Filing Date but not paid) which
would
reasonably be expected to constitute grounds under Section 4042 of
ERISA for the
termination of, or the appointment of a trustee to administer, any
Plan, or the
imposition of any liability under Title IV of ERISA (other than for
the payment
of premiums to the PBGC in the ordinary course).
"Three-Month Secondary CD Rate" shall mean, for any day, the
secondary
market rate for three-month certificates of deposit reported as
being in effect
on such day (or, if such day is not a Business Day, the next
preceding Business
Day) by the Board through the public information telephone line of
the Federal
Reserve Bank of New York (which rate will, under the current
practices of the
Board, be published in Federal Reserve Statistical Release
H.15(519) during the
week following such day) or, if such rate is not so reported on
such day or such
next preceding Business Day, the average of the secondary market
quotations for
three-month certificates of deposit of major money center banks in
New York City
received at approximately 10:00 a.m., New York City time, on such
day (or, if
such day is not a Business Day, on the next preceding Business Day)
by the Agent
from three negotiable certificate of deposit dealers of recognized
standing
selected by it.
"Total Commitment" shall mean, at any time, the sum of the
Total
Tranche A Commitment and the Total Tranche B Commitment at such
time.
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<PAGE>
"Total Commitment Percentage" shall mean at any time, with respect
to
each Tranche A Lender or Tranche B Lender, the percentage obtained
by dividing
such Lender's Tranche A Commitment and/or Tranche B Commitment, as
the case may
be, by the Total Commitment at such time.
"Total Commitment Usage" shall mean, at any time, the sum of
the
Tranche A Total Commitment Usage and the outstanding principal
amount of the
Tranche B Loan.
"Total Tranche A Commitment" shall mean, any time, the sum of
the
Tranche A Commitments at such time.
"Total Tranche B Commitment" shall mean, at any time, the
outstanding
amount of the Tranche B Loan at such time.
"Tower Automotive Korea" shall mean Tower Automotive Korea Co.,
Ltd.
"Tranche A Commitment" shall mean the commitment of each Tranche
A
Lender to make Tranche A Loans hereunder in the amount set forth
opposite its
name in Annex A hereto or as may be subsequently set forth in the
Register from
time to time, as the case may be, and as may be reduced from time
to time
pursuant to Sections 2.12 and 2.13.
"Tranche A Commitment Percentage" shall mean, at any time, with
respect to each Tranche A Lender, the percentage obtained by
dividing its
Tranche A Commitment at such time by the Total Tranche A Commitment
or, if the
Tranche A Commitments have been terminated, the Tranche A
Commitment Percentage
of each Tranche A Lender that existed immediately prior to such
termination.
"Tranche A Lender" shall mean each Lender having a Tranche A
Commitment.
"Tranche A Loan" shall have the meaning set forth in Section
2.01(a).
"Tranche A Total Commitment Usage" shall mean, at any time, the sum
of
(i) the aggregate outstanding principal amount of all Tranche A
Loans and (ii)
the aggregate LC Exposure at such time.
"Tranche B Commitment" shall mean the commitment of each Tranche
B
Lender to make such amount of the Tranche B Loan hereunder in the
amount set
forth opposite its name on Annex A hereto or as may be subsequently
set forth in
the Register from time to time, as the case may be.
"Tranche B Commitment Percentage" shall mean, at any time, with
respect to each Tranche B Lender, the percentage obtained by
dividing its
Tranche B Commitment at such time by the Total Tranche B
Commitment.
"Tranche B Lender" shall mean each Lender having a Tranche B
Commitment.
"Tranche B Loan" shall have the meaning set forth in Section
2.01(b).
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<PAGE>
"Transactions" shall mean the execution, delivery and performance
by
the Borrower and Guarantors of this Agreement, the borrowing of
Loans, the use
of the proceeds thereof and the request for and issuance of Letters
of Credit
hereunder.
"Type", when used in reference to any Loan or Borrowing, refers
to
whether the rate of interest on such Loan, or on the Loans
comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or
the Alternate
Base Rate.
"UCC" shall mean the Uniform Commercial Code as in effect from time
to
time in the State of New York; provided, however, that if by reason
of any
provisions of law, the perfection or the effect of perfection or
non-perfection
of the security interests granted to the Agent pursuant to the
applicable Loan
Document is governed by the Uniform Commercial Code as in effect in
a
jurisdiction of the United States other than New York, then "UCC"
shall mean the
Uniform Commercial Code as in effect from time to time in such
other
jurisdiction for purposes of the provisions of each Loan
Document.
"Unused Total Tranche A Commitment" shall mean, at any time, (i)
the
Total Tranche A Commitment less (ii) the Tranche A Total Commitment
Usage.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan
as
a result of a complete or partial withdrawal from such
Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of
ERISA.
"Work-in-Process" shall mean Inventory which consists of
work-in-process including without limitation materials other than
Raw Materials,
Finished Goods or saleable products, title to which and sole
ownership of which
is vested in the Borrower or a Guarantor.
SECTION 1.02 TERMS GENERALLY. The definitions of terms herein shall
apply
equally to the singular and plural forms of the terms defined.
Whenever the
context may require, any pronoun shall include the corresponding
masculine,
feminine and neuter forms. The words "include", "includes" and
"including" shall
be deemed to be followed by the phrase "without limitation". The
word "will"
shall be construed to have the same meaning and effect as the word
"shall".
Unless the context requires otherwise (a) any definition of or
reference to any
agreement, instrument or other document herein shall be construed
as referring
to such agreement, instrument or other document as from time to
time amended,
supplemented or otherwise modified (subject to any restrictions on
such
amendments, supplements or modifications set forth herein), (b) any
reference
herein to any Person shall be construed to include such Person's
successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and
words of similar
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