Exhibit 10.1
EXECUTION COPY
CREDIT AGREEMENT
dated as of
November 30, 2004,
among
AFFINIA GROUP INTERMEDIATE HOLDINGS INC.,
AFFINIA GROUP INC.,
as Borrower,
The Lenders Party Hereto,
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent and Collateral Agent,
GOLDMAN SACHS CREDIT PARTNERS L.P. and
CREDIT SUISSE FIRST BOSTON,
as Co-Syndication Agents,
and
DEUTSCHE BANK AG, CAYMAN ISLANDS BRANCH and
UBS SECURITIES LLC
as Co-Documentation Agents
---------------------------
J.P. MORGAN SECURITIES INC. and GOLDMAN
SACHS CREDIT PARTNERS L.P.,
as Co-Lead Arrangers,
and
J.P. MORGAN SECURITIES INC., GOLDMAN
SACHS CREDIT PARTNERS L.P. and
CREDIT SUISSE FIRST BOSTON
as Joint Bookrunners
TABLE OF CONTENTS
Page
----
ARTICLE I
Definitions
SECTION 1.01. Defined
Terms..................................................3
SECTION 1.02. Classification of Loans and
Borrowings........................35
SECTION 1.03. Terms
Generally...............................................35
SECTION 1.04. Accounting Terms;
GAAP........................................36
ARTICLE II
The Credits
SECTION 2.01.
Commitments...................................................36
SECTION 2.02. Loans and
Borrowings..........................................36
SECTION 2.03. Requests for
Borrowings.......................................37
SECTION 2.04. Swingline
Loans...............................................38
SECTION 2.05. Letters of
Credit.............................................39
SECTION 2.06. Funding of
Borrowings.........................................43
SECTION 2.07. Interest
Elections............................................44
SECTION 2.08. Termination and Reduction of
Commitments......................45
SECTION 2.09. Repayment of Loans; Evidence of
Debt..........................46
SECTION 2.10. Amortization of Tranche B Term
Loans..........................47
SECTION 2.11. Prepayment of
Loans...........................................48
SECTION 2.12.
Fees..........................................................49
SECTION 2.13.
Interest......................................................50
SECTION 2.14. Alternate Rate of
Interest....................................51
SECTION 2.15. Increased
Costs...............................................52
SECTION 2.16. Break Funding
Payments........................................53
SECTION 2.17.
Taxes.........................................................53
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs...55
SECTION 2.19. Mitigation Obligations; Replacement of
Lenders................57
SECTION 2.20. Incremental Extensions of
Credit..............................57
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization;
Power...........................................59
SECTION 3.02. Authorization;
Enforceability.................................59
SECTION 3.03. Governmental Approvals; No
Conflicts..........................59
SECTION 3.04. Financial Condition; No Material Adverse
Change...............60
SECTION 3.05.
Properties....................................................60
SECTION 3.06. Litigation and Environmental
Matters..........................61
SECTION 3.07. Compliance with Laws and
Agreements...........................61
SECTION 3.08. Investment and Holding Company
Status.........................62
SECTION 3.09.
Taxes.........................................................62
SECTION 3.10.
ERISA.........................................................62
SECTION 3.11.
Disclosure....................................................62
SECTION 3.12. Subsidiaries and Joint
Ventures...............................62
SECTION 3.13.
Insurance.....................................................63
SECTION 3.14. Labor
Matters.................................................63
SECTION 3.15.
Solvency......................................................63
SECTION 3.16. Senior Indebtedness; Designated Senior
Indebtedness...........63
SECTION 3.17. Collateral
Matters............................................63
ii
ARTICLE IV
Conditions
SECTION 4.01. Effective
Date................................................65
SECTION 4.02. Each Credit
Event.............................................69
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements and Other
Information....................70
SECTION 5.02. Notices of Material
Events....................................72
SECTION 5.03. Information Regarding
Collateral..............................72
SECTION 5.04. Existence; Conduct of
Business................................72
SECTION 5.05. Payment of
Taxes..............................................73
SECTION 5.06. Maintenance of
Properties.....................................73
SECTION 5.07.
Insurance.....................................................73
SECTION 5.08. Casualty and
Condemnation.....................................73
SECTION 5.09. Books and Records; Inspection and Audit
Rights................74
SECTION 5.10. Compliance with
Laws..........................................74
SECTION 5.11. Use of Proceeds and Letters of
Credit.........................74
SECTION 5.12. Additional
Subsidiaries.......................................74
SECTION 5.13. Further
Assurances............................................75
SECTION 5.14. Interest Rate
Protection......................................76
SECTION 5.15. End of Fiscal Year; Fiscal
Quarters...........................76
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness; Certain Equity
Securities.......................76
SECTION 6.02.
Liens.........................................................79
iii
SECTION 6.03. Fundamental
Changes...........................................81
SECTION 6.04. Investments, Loans, Advances, Guarantees and
Acquisitions.....82
SECTION 6.05. Asset
Sales...................................................86
SECTION 6.06. Sale and Leaseback
Transactions...............................88
SECTION 6.07. Swap
Agreements...............................................88
SECTION 6.08. Restricted Payments; Certain Payments of
Indebtedness.........88
SECTION 6.09. Transactions with
Affiliates..................................89
SECTION 6.10. Restrictive
Agreements........................................90
SECTION 6.11. Amendment of Material
Documents...............................91
SECTION 6.12. Interest Expense Coverage
Ratio...............................91
SECTION 6.13. Leverage
Ratio................................................92
SECTION 6.14. Maximum Capital
Expenditures..................................92
ARTICLE VII
Events of Default
SECTION 7.01. Events of
Default.............................................93
SECTION 7.02. Exclusion of Immaterial
Subsidiaries..........................96
ARTICLE VIII
The Agents
ARTICLE IX
Miscellaneous
SECTION 9.01.
Notices.......................................................99
SECTION 9.02. Waivers;
Amendments..........................................100
SECTION 9.03. Expenses; Indemnity; Damage
Waiver...........................102
SECTION 9.04. Successors and
Assigns.......................................103
SECTION 9.05.
Survival.....................................................106
iv
SECTION 9.06. Counterparts; Integration;
Effectiveness.....................107
SECTION 9.07.
Severability.................................................107
SECTION 9.08. Right of
Setoff..............................................107
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of
Process...108
SECTION 9.10. WAIVER OF JURY
TRIAL.........................................108
SECTION 9.11.
Headings.....................................................109
SECTION 9.12.
Confidentiality..............................................109
SECTION 9.13. Interest Rate
Limitation.....................................110
SECTION 9.14. USA Patriot
Act..............................................110
v
SCHEDULES:
Schedule 1.01(a) -- Existing Joint Ventures
Schedule 1.01(b) -- Mortgaged Property
Schedule 1.01(c) -- Foreign Subsidiaries Pledged Under Foreign
Pledge Agreements
Schedule 1.01(d) -- Domestic Subsidiary Non-Loan Parties
Schedule 1.01(e) -- Delivery of Certificates for Foreign Subsidiary
Equity
Interests
Schedule 2.01 -- Commitments
Schedule 3.05 -- Real Property
Schedule 3.06 -- Disclosed Matters
Schedule 3.12 -- Subsidiaries and Joint Ventures
Schedule 3.13 -- Insurance
Schedule 3.17(a) -- Enforceability of Security Interests
Schedule 3.17(c) -- Mortgages
Schedule 4.01(a) -- Foreign Jurisdictions
Schedule 4.01(f)(i) -- Excluded Foreign Subsidiaries
Schedule 4.01(f)(ii) -- Deferred Foreign Subsidiaries
Schedule 4.01(m) -- Sources and Uses
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02 -- Existing Liens
Schedule 6.04(a) -- Existing Investments
Schedule 6.04(s) -- Permitted Intercompany Investments
Schedule 6.09 -- Existing Transactions with Affiliates
Schedule 6.10 -- Existing Restrictions
EXHIBITS:
---------
Exhibit A -- Form of Assignment and Assumption
Exhibit B-1 -- Form of Opinion of Simpson, Thacher & Bartlett
LLP
Exhibit B-2 -- Form of Opinion of General Counsel of the Borrower
Exhibit C -- Form of Collateral Agreement
Exhibit D -- Form of Perfection Certificate
Exhibit E-1 -- Form of Borrowing Request
Exhibit E-2 -- Form of Swingline Borrowing Request
Exhibit F -- Form of Interest Election Request
vi
CREDIT AGREEMENT dated as of November
30, 2004, among
AFFINIA GROUP INTERMEDIATE HOLDINGS INC., a
Delaware
corporation, AFFINIA GROUP INC., a Delaware
corporation, the
LENDERS party hereto, JPMORGAN CHASE BANK, N.A.,
as
Administrative Agent and Collateral Agent,
GOLDMAN SACHS
CREDIT PARTNERS L.P. and CREDIT SUISSE FIRST
BOSTON, as
Co-Syndication Agents, and DEUTSCHE BANK AG,
CAYMAN ISLANDS
BRANCH and UBS SECURITIES LLC, as
Co-Documentation Agents.
Pursuant to the Stock and Asset Purchase Agreement dated
as of July 8,
2004, as amended by Amendment No. 1 thereto dated as of November 1,
2004 and
Amendment No. 2 thereto dated as of November 30, 2004 (as so
amended, the
"Purchase Agreement"), by and between Affinia Group Inc., a
Delaware corporation
(the "Borrower"), and Dana Corporation, a Virginia corporation (the
"Seller"),
the Borrower will acquire (the "Acquisition") the Automotive
Aftermarket Group
of the Seller (the "Business") for an aggregate purchase price of
approximately
$1,054,375,000 (the "Purchase Price"), comprised of (a) cash
consideration (the
"Cash Purchase Price") of $950,000,000, (b) a subordinated
pay-in-kind note
having a principal amount at maturity (excluding any pay-in-kind
interest
accrued thereon) of $74,500,000 and a present value on the
Effective Date (as
defined below) of approximately $50,000,000 and issued by Affinia
Group Holdings
Inc. ("Holdings"), a Delaware corporation, to Seller (the "Holdings
PIK Note"),
(c) $20,000,000 (the "Working Capital Payment") and (d) $9,825,000
(the "Cash
Balance Payment" and, together with the Working Capital Payment,
the "Current
Asset Payments"). Following the Effective Date, the Current Asset
Payments may
be adjusted based upon the actual amount of working capital and
cash of the
Business on the Effective Date, with (i) any increase in the
Current Asset
Payments up to $45,000,000 resulting in an additional cash payment
by the
Borrower to the Seller and any increase in the Current Asset
Payments above
$45,000,000 resulting in an increase of the principal amount of the
Holdings PIK
Note, and (ii) any decrease in the Current Asset Payments up to
$74,500,000
resulting in a decrease of the principal amount of the Holdings PIK
Note and any
decrease in the Current Asset Payments above $74,500,000 resulting
in a cash
refund from the Seller to the Borrower. On or shortly after the
Effective Date,
the Borrower will contribute (the "Beck/Arnley Contribution")
$25,000,000 in
cash to Beck/Arnley Worldparts Corp., a wholly owned subsidiary of
the Business
to be acquired by the Borrower in the Acquisition.
Immediately prior to, or substantially concurrently with,
the
consummation of the Acquisition, (a) Cypress Merchant Banking
Partners II L.P.,
Cypress Merchant Banking II C.V., 55th Street Partners II L.P.,
Cypress
Side-by-Side LLC, Ontario Municipal Employees Retirement System,
The
Northwestern Mutual Life Insurance Company, California State
Teachers Retirement
System and Stockwell Fund L.P. (the "Initial Investors") will
contribute cash of
not less than $355,000,000 to Holdings in exchange for all the
issued and
outstanding shares of common stock of Holdings, (b) Holdings will
contribute the
aggregate amount of cash described in clause (a) to Affinia Group
Intermediate
Holdings Inc. ("Intermediate Holdings"), a Delaware corporation, as
common
equity in exchange for all the issued and outstanding
2
Equity Interests (as defined below) of Intermediate Holdings, (c)
Intermediate
Holdings will contribute the aggregate amount of cash described in
clause (b) to
the Borrower as common equity in exchange for all the issued and
outstanding
Equity Interests of the Borrower (the equity contributions
described in clauses
(a), (b) and (c) are referred to herein collectively as the "Equity
Contribution"), (d) the Borrower will obtain senior secured credit
facilities
having an aggregate principal amount of $475,000,000 pursuant to
this Agreement,
(e) the Borrower will issue $300,000,000 aggregate principal amount
of Senior
Subordinated Notes (as defined below) in a public offering, Rule
144A offering
or other private placement, (f) the Borrower will establish a
receivables
purchase facility (the "Effective Date Receivables Securitization")
in an
aggregate amount of $100,000,000, of which $75,000,000 will be
funded on the
Effective Date, which Effective Date Receivables Securitization
will be
established with Affinia Receivables LLC ("Affinia Receivables"), a
Delaware
limited liability corporation and a wholly owned,
bankruptcy-remote, special
purpose subsidiary of the Borrower, and (g) Intermediate Holdings
and the
Borrower will pay fees, expenses and other costs in connection with
the
foregoing in an aggregate amount not to exceed $55,000,000 (the
"Transaction
Costs").
The Borrower has requested that the Lenders extend credit
in the form
of (a) Term Loans on the Effective Date in an aggregate principal
amount not to
exceed $350,000,000 and (b) Revolving Loans, Swingline Loans and
Letters of
Credit at any time and from time to time during the Revolving
Availability
Period (as defined below) in an aggregate principal amount not to
exceed
$125,000,000 at any time outstanding.
The proceeds of the Term Loans will be used by the
Borrower on the
Effective Date, solely (i) first, to pay the Transaction Costs and
(ii) second,
together with (x) the proceeds of the Equity Contribution, (y) the
proceeds of
the issuance of the Senior Subordinated Notes and (z) the proceeds
of amounts
funded under the Effective Date Receivables Securitization on the
Effective
Date, to pay the Cash Purchase Price and make the Beck/Arnley
Contribution. The
proceeds of the Revolving Loans, Swingline Loans and Letters of
Credit will be
used by the Borrower solely for working capital and general
corporate purposes
of the Borrower and the Subsidiaries, provided that up to
$20,000,000 aggregate
principal amount of Revolving Loans may be made on the Effective
Date and used
by the Borrower to make the Current Asset Payments, to make VAT
payments in
connection with the Acquisition and for other general corporate
purposes.
The Lenders are willing to extend such credit to the
Borrower, and the
Issuing Bank is willing to issue Letters of Credit for the account
of the
Borrower, on the terms and subject to the conditions set forth
herein.
Accordingly, the parties hereto agree as follows:
3
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement,
the following
terms have the meanings specified below:
"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.
"Acquisition" has the meaning set forth in the preamble to
this
Agreement.
"Acquisition Documents" means the Purchase Agreement, the
other
material agreements, side letters and instruments to be entered
into in
connection with the Acquisition, all schedules, exhibits and
annexes to each of
the foregoing and all agreements, side letters and instruments
affecting the
terms of any of the foregoing.
"Additional Lender" has the meaning set forth in Section
2.20.
"Additional Senior Subordinated Notes" means any senior
subordinated
notes issued by the Borrower after the Effective Date and the
Indebtedness
represented thereby, provided that (a) such senior subordinated
notes (i) shall
not provide for guarantors, obligors or security in addition to
those which
apply to the Senior Subordinated Notes, (ii) shall not have a
maturity date that
is earlier than the date that is 180 days after the Tranche B
Maturity Date or
provide for any amortization, sinking fund or other scheduled
payments (other
than regularly scheduled interest payments) prior to the date that
is 180 days
after the Tranche B Maturity Date and (iii) shall be subordinated
to the
Obligations on terms not less favorable to the Lenders than the
terms in respect
of the Senior Subordinated Notes and (b) all other terms (excluding
interest
rates and redemption premiums) of such senior subordinated notes
shall not be
materially less favorable to the Lenders than those existing with
respect to the
Senior Subordinated Notes.
"Additional Senior Subordinated Notes Documents" means all
instruments,
agreements and other documents evidencing or governing any
Additional Senior
Subordinated Notes or providing for any Guarantee or other right in
respect
thereof.
"Adjusted LIBO Rate" means, with respect to any Eurodollar
Borrowing
for any Interest Period, an interest rate per annum (rounded
upwards, if
necessary, to the next 1/100 of 1%) equal to (a) the LIBO Rate for
such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means JPMorgan Chase Bank, N.A., in
its capacity
as administrative agent for the Lenders hereunder.
4
"Administrative Questionnaire" means an administrative
questionnaire in
a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, any
other Person
that directly, or indirectly through one or more intermediaries,
Controls or is
Controlled by or is under common Control with the Person specified.
"Affinia Receivables" means Affinia Receivables LLC, a
Delaware limited
liability company.
"Agents" means the Administrative Agent, the Collateral
Agent, the
Co-Syndication Agents and the Co-Documentation Agents.
"Agreement" means this Credit Agreement, as the same may
be renewed,
extended, modified, supplemented or amended from time to time.
"Alternate Base Rate" means, for any day, a rate per annum
equal to the
greater of (a) the Prime Rate in effect on such day and (b) 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 or the Federal Funds
Effective Rate
shall be effective from and including the effective date of such
change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Percentage" means, with respect to any
Revolving Lender,
the percentage of the aggregate Revolving Commitments represented
by such
Lender's Revolving Commitment. If the Revolving Commitments have
terminated or
expired, the Applicable Percentages shall be determined based upon
the Revolving
Commitments most recently in effect, giving effect to any
assignments that occur
thereafter.
"Applicable Rate" means, for any day (a) with respect to
any Tranche B
Term Loan, (i) 1.50% per annum, in the case of an ABR Loan, or (ii)
2.50% per
annum, in the case of a Eurodollar Loan, and (b) with respect to
any ABR Loan or
Eurodollar Loan that is a Revolving Loan, the applicable rate per
annum set
forth below under the caption "Revolving Loan ABR Spread" or
"Revolving Loan
Eurodollar Spread", as applicable, in each case based upon the
Leverage Ratio as
of the most recent determination date, provided that until the
delivery to the
Administrative Agent, pursuant to Section 5.01, of the Borrower's
consolidated
financial information for the Borrower's first two full fiscal
quarters ending
after the Effective Date, the "Applicable Rate" for purposes of
clause (b) above
shall be the applicable rate per annum set forth below in Category
1:
================================================================================
Revolving Loan
Revolving Loan
Leverage Ratio: ABR Spread
Eurodollar Spread
--------------------------------------------------------------------------------
Category 1
----------
Equal to or greater 2.00%
3.00%
than 3.75 to 1.00
--------------------------------------------------------------------------------
Category 2
Less than 3.75 to 1.00 but equal 1.75%
2.75%
to or greater than 3.25 to 1.00
================================================================================
5
================================================================================
Revolving Loan
Revolving Loan
Leverage Ratio: ABR Spread
Eurodollar Spread
--------------------------------------------------------------------------------
Category 3
---------- 1.50%
2.50%
Less than 3.25 to 1.00
================================================================================
For purposes of the foregoing, (a) the Leverage Ratio
shall be
determined as of the end of each fiscal quarter of the Borrower
based upon the
Borrower's consolidated financial statements delivered pursuant to
Section
5.01(a) or (b) and (b) each change in the Applicable Rate resulting
from a
change in the Leverage Ratio shall be effective during the period
commencing on
and including the date of delivery to the Administrative Agent of
such
consolidated financial statements indicating such change and ending
on the date
immediately preceding the effective date of the next such change,
provided that
the Leverage Ratio shall be deemed to be in Category 1 (A) at any
time that an
Event of Default described in paragraph (a), (b), (h), (i) or (j)
of Section
7.01 has occurred and is continuing or (B) at the option of the
Administrative
Agent or at the request of the Required Lenders if the Borrower
fails to deliver
the consolidated financial statements required to be delivered by
it pursuant to
Section 5.01(a) or (b), during the period from the expiration of
the time for
delivery thereof until such consolidated financial statements are
delivered.
"Approved Fund" has the meaning assigned to such term in
Section 9.04.
"Assignment and Assumption" means an assignment and
assumption entered
into by a Lender and an assignee (with the consent of any party
whose consent is
required by Section 9.04), and accepted by the Administrative
Agent, in the form
of Exhibit A or any other form approved by the Administrative
Agent.
"Asset Disposition" means any disposition of assets of the
Borrower or
any Subsidiary outside the ordinary course of business that is
permitted under
Section 6.05.
"Available Basket Amount" means, at any time, an amount
equal to (a)
the aggregate amount of Net Proceeds received by the Borrower and
the
Subsidiaries in respect of the Beck/Arnley Disposition, minus (b)
any amount of
such Net Proceeds used after the Effective Date and prior to such
time to make
investments pursuant to Section 6.04(a), Section 6.04(p) and/or
Section 6.04(q),
minus (c) the aggregate amount of Capital Expenditures made from
such Net
Proceeds after the Effective Date and prior to such time pursuant
to Sections
6.14(d) and/or 6.14(e), minus (d) the aggregate amount of
Restricted Payments
made from such Net Proceeds after the Effective Date and prior to
such time
pursuant to Section 6.08(a)(vi).
"Beck/Arnley Contribution" has the meaning set forth in
the preamble to
this Agreement.
6
"Beck/Arnley Disposition" means the sale, transfer or
disposition
(including by way of merger, consolidation, sale of capital stock
or sale of
assets) of all or substantially all of the operations of
Beck/Arnley Worldparts
Corp.
"Board" means the Board of Governors of the Federal
Reserve System of
the United States of America.
"Borrower" means Affinia Group Inc., a Delaware
corporation.
"Borrowing" means (a) Loans of the same Class and Type,
made, converted
or continued on the same date and, in the case of Eurodollar Loans,
as to which
a single Interest Period is in effect, or (b) a Swingline Loan.
"Borrowing Request" means a request by the Borrower for a
Borrowing in
accordance with Section 2.03, provided that a written Borrowing
Request shall be
substantially in the form of Exhibit E-1, or such other form as
shall be
approved by the Administrative Agent.
"Business" has the meaning set forth in the preamble to
this Agreement.
"Business Day" means any day that is not a Saturday,
Sunday or other
day on which commercial banks in New York City are authorized or
required by law
to remain closed, provided 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 in the London interbank market.
"Capital Expenditures" means, for any period, (a) the
additions to
property, plant and equipment and other capital expenditures of the
Borrower and
the Subsidiaries that are (or would be) set forth in a consolidated
statement of
cash flows of the Borrower for such period prepared in accordance
with GAAP and
(b) Capital Lease Obligations incurred by the Borrower and the
Subsidiaries
during such period, provided that Capital Expenditures shall not
include (i)
expenditures that constitute the consideration paid in respect of
any Permitted
Acquisition, (ii) expenditures to the extent they are made with the
Net Proceeds
from the issuance of Equity Interests of Holdings, (iii)
expenditures to the
extent they are made with the Net Proceeds of a Prepayment Event
described in
clause (a) or (b) of the definition of the term "Prepayment Event",
so long as
such Net Proceeds are reinvested in the business of the Borrower
and the
Subsidiaries pursuant to the requirements of the proviso contained
in Section
2.11(c), (iv) the purchase price of equipment to the extent the
consideration
therefor consists of any combination of (A) used or surplus
equipment traded in
at the time of such purchase and (B) the Net Proceeds of a
substantially
concurrent sale of used or surplus equipment, in each case in the
ordinary
course of business, (v) interest capitalized during such period,
(vi)
expenditures that are accounted for as capital expenditures of the
Borrower and
the Subsidiaries and that actually are paid for by a third party
(excluding
Intermediate Holdings or any subsidiary thereof) and for which
neither
Intermediate Holdings nor any subsidiary thereof has provided or is
required to
provide or incur, directly or indirectly, any consideration or
obligation to
such third party or any other Person (whether before,
7
during or after such period) and (vii) the book value of any asset
owned by the
Borrower or any Subsidiary prior to or during such period to the
extent that
such book value is included as a capital expenditure during such
period as a
result of the Borrower or such Subsidiary reusing or beginning to
reuse such
asset during such period without a corresponding expenditure
actually having
been made in such period, provided that (A) any expenditure
necessary in order
to permit such asset to be reused shall be included as a Capital
Expenditure
during the period that such expenditure actually is made and (B)
such book value
shall have been included in Capital Expenditures when such asset
was originally
acquired if such asset was originally acquired on or after January
1, 2004.
"Capital Lease Obligations" of any Person means the
obligations of such
Person to pay rent or other amounts under any lease of (or other
arrangement
conveying the right to use) real or personal property, or a
combination thereof,
which obligations are required to be classified and accounted for
as capital
leases on a balance sheet of such Person under GAAP, and the amount
of such
obligations shall be the capitalized amount thereof determined in
accordance
with GAAP.
"Cash Balance Payment" has the meaning set forth in the
preamble to
this Agreement.
"Cash Purchase Price" has the meaning set forth in the
preamble to this
Agreement.
"Change in Control" means (a) the acquisition of
ownership, directly or
indirectly, beneficially or of record, by any Person other than
Holdings of any
Equity Interests in Intermediate Holdings, (b) the acquisition of
ownership,
directly or indirectly, beneficially or of record, by any Person
other than
Intermediate Holdings of any Equity Interests in the Borrower, (c)
prior to an
IPO, the failure by the Permitted Holders to own, directly or
indirectly,
beneficially and of record, Equity Interests in Holdings
representing at least a
majority of the aggregate ordinary voting power represented by the
issued and
outstanding Equity Interests in Holdings, (d) after an IPO, (i) the
failure by
the Permitted Holders to own, directly or indirectly, beneficially
and of
record, Equity Interests in Holdings representing at least 35% of
the aggregate
ordinary voting power represented by the issued and outstanding
Equity Interests
in Holdings or (ii) the acquisition of ownership, directly or
indirectly,
beneficially or of record, by any Person or group (within the
meaning of the
Exchange Act as in effect on the date hereof) other than the
Permitted Holders
of Equity Interests in Holdings representing more than 35% of the
aggregate
ordinary voting power represented by the issued and outstanding
Equity Interests
in Holdings, provided that, in the case of this clause (ii), the
Permitted
Holders own directly or indirectly, beneficially or of record, a
smaller
percentage of such aggregate ordinary voting power, (e) occupation
of a majority
of the seats (other than vacant seats) on the board of directors of
Holdings by
Persons who were neither (i) nominated by the board of directors of
Holdings,
(ii) appointed by directors so nominated or (iii) nominated or
appointed by the
Permitted Holders, (f) the acquisition of direct or indirect
Control of Holdings
by any Person or group other than the Permitted Holders or (g) the
occurrence of
a "Change of Control", as defined in any of the Senior
8
Subordinated Notes Documents or Additional Senior Subordinated
Notes Documents
or the terms of the Sponsor Preferred Stock or the Holdings PIK
Note.
"Change in Law" means (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
the Issuing
Bank (or, for purposes of Section 2.15(b), by any lending office of
such Lender
or by such Lender's or the Issuing Bank'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.
"Class", when used in reference to any Loan or Borrowing,
refers to
whether such Loan, or the Loans comprising such Borrowing, are
Revolving Loans,
Tranche B Term Loans or Swingline Loans and, when used in reference
to any
Commitment, refers to whether such Commitment is a Revolving
Commitment or a
Tranche B Commitment.
"CLO" has the meaning assigned to such term in Section
9.04.
"Code" means the Internal Revenue Code of 1986, as amended
from time to
time.
"Co-Documentation Agent" means Deutsche Bank AG, Cayman
Islands Branch
and UBS Securities LLC, in their capacities as co-documentation
agents
hereunder.
"Collateral" means any and all "Collateral", as defined in
any
applicable Security Document.
"Collateral Agent" means JPMorgan Chase Bank, N.A., in its
capacity as
collateral agent for the Lenders under this Agreement and any
Security Document.
"Collateral Agreement" means the Guarantee and Collateral
Agreement
among Intermediate Holdings, the Borrower, the Subsidiary Loan
Parties and the
Collateral Agent, substantially in the form of Exhibit C.
"Collateral and Guarantee Requirement" means the
requirement that:
(a) the Collateral Agent shall have received from
each Loan
Party (i) a counterpart of the Collateral Agreement duly
executed and
delivered on behalf of such Loan Party and (ii) a
counterpart of a
Foreign Pledge Agreement relating to the Equity Interests
of the
Foreign Subsidiaries identified on Schedule 1.01(c) duly
executed and
delivered on behalf of such Loan Party;
(b) in the case of any Person that becomes a Loan
Party after
the Effective Date, the Collateral Agent shall have
received from such
Loan Party (i) a supplement to the Collateral Agreement,
in the form
specified therein, duly
9
executed and delivered on behalf of such Loan Party, and
(ii) if such
Loan Party owns Equity Interests of a material Foreign
Subsidiary that,
as a result of the laws of the jurisdiction of
organization of such
Foreign Subsidiary, cannot be pledged to the Collateral
Agent under the
Collateral Agreement, at the reasonable request of the
Collateral
Agent, a counterpart of a Foreign Pledge Agreement with
respect to such
Equity Interests duly executed and delivered on behalf of
such Loan
Party (it being understood that such Loan Party shall not
be required
to pledge more than 65% of the outstanding voting Equity
Interests of
any Foreign Subsidiary);
(c) all outstanding Equity Interests of (i) the
Borrower and
(ii) each Subsidiary owned directly by or on behalf of any
Loan Party
(including the Equity Interests of any SPE Subsidiary)
shall have been
pledged pursuant to the Collateral Agreement or a Foreign
Pledge
Agreement, as applicable (except that the Loan Parties
shall not be
required to pledge more than 65% of the outstanding voting
Equity
Interests of any Foreign Subsidiary), and the Collateral
Agent shall
have received certificates or other instruments
representing all such
Equity Interests, together with undated stock powers or
other
instruments of transfer with respect thereto endorsed in
blank
(provided that certificates representing the Equity
Interests of the
Foreign Subsidiaries listed on Schedule 1.01(e) may be
delivered to the
Collateral Agent not later than the date specified for
delivery thereof
on such schedule);
(d) all Indebtedness of Holdings, Intermediate
Holdings, the
Borrower and each Subsidiary that is owing to any Loan
Party shall be
evidenced by a promissory note and shall have been pledged
pursuant to
the Collateral Agreement, and the Collateral Agent shall
have received
all such promissory notes, together with undated
instruments of
transfer with respect thereto endorsed in blank;
(e) all documents and instruments, including
Uniform
Commercial Code financing statements, required by law or
reasonably
requested by the Collateral Agent to be filed, registered
or recorded
to create the Liens intended to be created by the
Collateral Agreement
and perfect such Liens to the extent required by, and with
the priority
required by, the Collateral Agreement, shall have been
filed,
registered or recorded or delivered to the Collateral
Agent for filing,
registration or recording;
(f) the Collateral Agent shall have received (i)
counterparts
of a Mortgage with respect to each Mortgaged Property duly
executed and
delivered by the record owner of such Mortgaged Property,
(ii) a policy
or policies of title insurance (or a marked-up and
executed binding
commitment in respect thereof, provided that such policy
or policies
are delivered to the Collateral Agent as soon as
reasonably practicable
after receipt of such commitment) issued by a nationally
recognized
title insurance company insuring the Lien of each such
Mortgage as a
valid first-priority Lien on the Mortgaged Property
described therein,
free of any other Liens except as expressly permitted by
Section 6.02,
together with such endorsements, coinsurance and
reinsurance as the
Collateral Agent may
10
reasonably request, and (iii) such surveys, abstracts,
appraisals,
legal opinions and other documents as the Collateral Agent
may
reasonably request with respect to any such Mortgage or
Mortgaged
Property; and
(g) each Loan Party shall have used reasonable
best efforts to
obtain all material consents and approvals required to be
obtained by
it in connection with the execution and delivery of all
Security
Documents to which it is a party, the performance of its
obligations
thereunder and the granting by it of the Liens thereunder;
provided that the foregoing definition shall not require the
creation or
perfection of pledges of or security interests in, or the obtaining
of title
insurance or legal opinions with respect to, particular assets of
the Loan
Parties if and for so long as, the Administrative Agent, in
consultation with
the Borrower, reasonably determines that the cost of creating or
perfecting such
pledges or security interests in such assets (taking into account
any adverse
tax consequences to the Borrower and its Affiliates (including the
imposition of
withholding or other material taxes on Lenders)) shall be excessive
in view of
the benefits to be obtained by the Lenders therefrom. The
Administrative Agent
may grant extensions of time for the perfection of security
interests in or the
obtaining of title insurance or legal opinions with respect to
particular assets
where it determines that perfection cannot be accomplished without
undue effort
or expense by the time or times at which it would otherwise be
required by this
Agreement or the Security Documents.
"Commitment" means a Revolving Commitment, a Tranche B
Commitment, any
Commitment in respect of an Incremental Extension of Credit or any
combination
thereof (as the context requires).
"Consolidated Cash Interest Expense" means, for any
period, the excess
of (a) the sum of (i) the interest expense (including imputed
interest expense
in respect of Capital Lease Obligations) of the Borrower and the
Subsidiaries
for such period, determined on a consolidated basis in accordance
with GAAP,
(ii) any interest accrued during such period in respect of
Indebtedness of the
Borrower or any Subsidiary that is required to be capitalized
rather than
included in such consolidated interest expense for such period in
accordance
with GAAP, (iii) any cash payments made during such period in
respect of
obligations referred to in clause (b)(iii) below that were
amortized or accrued
in a previous period and (iv) to the extent not otherwise included
in
consolidated interest expense for such period, commissions,
discounts, yield and
other fees, charges and amounts incurred in connection with
Permitted
Securitizations during such period that are payable to any person
other than a
Loan Party and that are comparable to or in the nature of interest
under any
Permitted Securitization, including losses on the sale of assets
relating to any
receivables securitization transaction accounted for as a "true
sale" (other
than any one-time financing fees paid upon entering into any
Permitted
Securitization), minus (b) the sum of (i) interest income (to the
extent paid or
payable in cash) of the Borrower and the Subsidiaries for such
period,
determined on a consolidated basis in accordance with GAAP, in an
aggregate
amount not to exceed $4,000,000 during any period of four
consecutive fiscal
quarters, (ii) to the extent included in such consolidated interest
expense for
such period, non-cash amounts attributable to
11
amortization of financing costs paid in a previous period and (iii)
to the
extent included in such consolidated interest expense for such
period, non-cash
amounts attributable to amortization of debt discounts or accrued
interest
payable in kind for such period. Consolidated Cash Interest Expense
shall be
deemed to be $11,600,000 for each of the fiscal quarters ended
March 31, 2004,
June 30, 2004 and September 30, 2004. Consolidated Cash Interest
Expense for the
fiscal quarter ending December 31, 2004 shall be equal to the
product of (a) the
quotient of (i) Consolidated Cash Interest Expense attributable to
the period
from and including the Effective Date to and including December 31,
2004 (the
"Adjustment Period") divided by (ii) the number of calendar days in
the
Adjustment Period multiplied by (b) the number of calendar days in
the fiscal
quarter ending December 31, 2004.
"Consolidated EBITDA" means, for any period, Consolidated
Net Income
for such period plus (a) without duplication and to the extent
deducted in
determining such Consolidated Net Income for such period, the sum
of (i)
consolidated interest expense of the Borrower and the Subsidiaries
for such
period (including, to the extent not otherwise included in
consolidated interest
expense for such period, commissions, discounts, yield and other
fees and
charges incurred during such period in connection with Permitted
Securitizations
that are payable to any person other than a Loan Party, and any
other amounts
for such period comparable to or in the nature of interest under
any Permitted
Securitization, including losses on the sale of assets relating to
any
receivables securitization transaction accounted for as a "true
sale"), (ii)
consolidated income tax expense of the Borrower and the
Subsidiaries for such
period (including any income tax expense of Holdings or
Intermediate Holdings
for such period to the extent the Borrower has made payment to or
for the
account of Holdings or Intermediate Holdings in respect thereof),
(iii) all
amounts attributable to depreciation and amortization expense of
the Borrower
and the Subsidiaries for such period, (iv) any non-cash charges,
losses or
expenses of the Borrower and the Subsidiaries for such period (but
excluding any
non-cash charge, loss or expense in respect of an item that was
included in
Consolidated Net Income in a prior period and any non-cash charge,
loss or
expense that relates to the write-down or write-off of inventory,
other than any
write-down or write-off of inventory as a result of purchase
accounting
adjustments in respect of the Acquisition or any Permitted
Acquisition), (v) any
non-recurring fees, cash charges and other cash expenses (excluding
any
Restructuring Charges) made or incurred by the Borrower and the
Subsidiaries in
connection with the Transactions that are paid or otherwise
accounted for within
90 days of the Effective Date in an aggregate amount not to exceed
$55,000,000,
(vi) any Specified Charges of the Borrower and the Subsidiaries for
such period,
(vii) any Non-Specified Restructuring Charges of the Borrower and
the
Subsidiaries for such period, provided that the aggregate amount of
Non-Specified Restructuring Charges in any period, together with
the aggregate
amount of Non-Regulation S-X Adjustments attributable to such
period, shall not
exceed 7.5% of Consolidated EBITDA for such period, (viii) any
non-recurring
fees, expenses or charges made or incurred by the Borrower and the
Subsidiaries
during such period in respect of professional or financial
advisory, investment
banking, financing, underwriting, placement agent or other similar
services
(including fees and expenses in respect of legal counsel,
consultants and
accountants) to the extent related to any equity offering,
investment,
acquisition, divestiture or recapitalization permitted hereunder or
any issuance
of Indebtedness
12
permitted to be incurred hereunder (whether or not successful),
(ix) any
extraordinary charges or losses of the Borrower and the
Subsidiaries for such
period, (x) any losses of the Borrower and the Subsidiaries for
such period in
respect of the disposal of any discontinued operations during such
period and
(xi) any losses of the Borrower and the Subsidiaries for such
period in respect
of business dispositions or asset dispositions outside the ordinary
course of
business (as determined in good faith by the Borrower) during such
period, minus
(b) without duplication and to the extent included in determining
such
Consolidated Net Income, (i) any cash payments made during such
period in
respect of non-cash charges described in clause (a)(iv) taken in a
prior period,
(ii) any extraordinary gains and any non-cash items of income for
such period,
(iii) any gains for such period in respect of the disposal of any
discontinued
operations during such period and (iv) any gains for such period in
respect of
business dispositions or asset dispositions outside the ordinary
course of
business (as determined in good faith by the Borrower) during such
period, all
determined on a consolidated basis in accordance with GAAP.
Consolidated EBITDA
shall be deemed to be $36,600,000, $47,200,000 and $54,800,000 for
the fiscal
quarters ended March 31, 2004, June 30, 2004 and September 30,
2004,
respectively.
"Consolidated Net Income" means, for any period, the net
income or loss
of the Borrower and the Subsidiaries for such period determined on
a
consolidated basis in accordance with GAAP (adjusted to reflect any
charge, tax
or expense incurred or accrued by Holdings or Intermediate Holdings
during such
period as though such charge, tax or expense had been incurred by
the Borrower,
to the extent that the Borrower has made or is permitted under the
Loan
Documents to make any payment to or for the account of Holdings or
Intermediate
Holdings, as applicable, in respect thereof), provided that (a)
there shall be
excluded from Consolidated Net Income (i) the income of any
Subsidiary to the
extent that the declaration or payment of dividends or other
distributions by
such Subsidiary of that income is not at the time permitted by a
Requirement of
Law or any agreement or instrument applicable to such Subsidiary,
except to the
extent of the amount of cash dividends or other cash distributions
actually paid
to the Borrower or any Subsidiary during such period (unless the
income of the
Subsidiary receiving such dividend or distribution would be
excluded from
Consolidated Net Income pursuant to this proviso) and (ii) the
income or loss of
any Person accrued prior to the date it becomes a Subsidiary or is
merged into
or consolidated with the Borrower or any Subsidiary or the date
that such
Person's assets are acquired by the Borrower or any Subsidiary and
(b) there
shall be included in Consolidated Net Income the income of
Beck/Arnley
Worldparts Corp. or any Permitted Joint Venture to the extent of
the amount of
cash dividends or other cash distributions actually paid by
Beck/Arnley
Worldparts Corp. or such Permitted Joint Venture, as applicable, to
the Borrower
or any Subsidiary during such period (unless the income of the
Subsidiary
receiving such dividend or distribution would be excluded from
Consolidated Net
Income pursuant to clause (a) above).
"Control" means the possession, directly or indirectly, of
the power to
direct or cause the direction of the management or policies of a
Person, whether
through the ability to exercise voting power, by contract or
otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
13
"Controlled Joint Venture" means any Existing Joint
Venture that is a
subsidiary of the Borrower or any other Subsidiary on the Effective
Date.
"Co-Syndication Agents" means Goldman Sachs Credit
Partners L.P. and
Credit Suisse First Boston, in their capacities as co-syndication
agents
hereunder.
"Current Asset Payments" has the meaning set forth in the
preamble to
this Agreement.
"Default" means any event or condition that constitutes an
Event of
Default or which upon notice, lapse of time or both would, unless
cured or
waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and
proceedings and the
environmental matters disclosed in Schedule 3.06.
"Discontinuation" means any discontinuation of any of the
operations of
the Business or any Subsidiary.
"dollars" or "$" refers to lawful money of the United
States of
America.
"Domestic Permitted Acquisition" means any Permitted
Acquisition
pursuant to which (a) any acquired or newly formed Subsidiary is a
Domestic
Subsidiary or (b) the assets that are the subject of such Permitted
Acquisition
are acquired by a Domestic Subsidiary and are located in the United
States of
America.
"Domestic Subsidiary" means any Subsidiary incorporated or
organized
under the laws of the United States of America, any State thereof
or the
District of Columbia.
"Effective Date" means the date on which the conditions
specified in
Section 4.01 are satisfied (or waived in accordance with Section
9.02).
"Effective Date Receivables Securitization" has the
meaning set forth
in the preamble to this Agreement.
"Effective Date Receivables Securitization Documents"
means (a) the
Receivables Sale Agreement dated as November 30, 2004, among the
Borrower, the
originators identified therein and Affinia Receivables, (b) the
Receivables
Purchase Agreement dated as of November 30, 2004, among Affinia
Receivables, the
Borrower, the financial institutions identified therein, Park
Avenue Receivables
Company LLC, as conduit, and JPMorgan Chase Bank, N.A., as agent,
and (c) and
all other instruments, agreements and other documents governing or
relating to
the Effective Date Receivables Securitization.
"Environmental Laws" means all applicable federal, state,
local and
foreign laws (including common law), treaties, regulations, rules,
directives,
orders, injunctions, decrees, notices or legally binding
agreements, in each
case issued,
14
promulgated or entered into by any Governmental Authority relating
to protection
of the environment, natural resources, human health and safety (as
relating to
Hazardous Materials, the environment or occupational health and
safety), or the
presence of, Release of, or exposure to, Hazardous Materials.
"Environmental Liability" means liabilities, obligations,
damages,
claims, actions, suits, judgments, orders, fines, penalties, fees,
expenses and
costs (including administrative oversight costs, natural resource
damages and
medical monitoring, investigation or remediation costs), whether
contingent or
otherwise, arising out of or relating to (a) compliance or
noncompliance with
any Environmental Law, (b) the presence, 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 or (e) any contract, agreement or other
consensual
arrangement pursuant to which liability is assumed or imposed with
respect to
any of the foregoing.
"Equity Contribution" has the meaning set forth in the
preamble to this
Agreement.
"Equity Interests" means 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 from the issuer thereof.
"ERISA" means the Employee Retirement Income Security Act
of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or
not
incorporated) that, together with the Borrower, is treated as a
single employer
under Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined
in Section
4043 of ERISA or the regulations issued thereunder, with respect to
a Plan
(other than reportable events with respect to which the 30-day
notice period has
been 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
15
determination that a Multiemployer Plan is, or is expected to be,
insolvent or
in reorganization, within the meaning of Title IV of ERISA.
"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.
"Event of Default" has the meaning assigned to such term
in Section
7.01.
"Excess Cash Flow" means, for any fiscal year, the sum
(without
duplication) of:
(a) Consolidated Net Income for such fiscal year,
adjusted to
exclude any gains or losses attributable to Prepayment
Events; plus
(b) depreciation, amortization and other non-cash
charges or
losses (including deferred income taxes) deducted in
determining such
Consolidated Net Income for such fiscal year; plus
(c) the sum of (i) the amount, if any, by which
Net Working
Capital decreased during such fiscal year (except as a
result of
reclassification of items from short-term to long-term)
plus (ii) the
net amount, if any, by which the consolidated deferred
revenues and
other consolidated accrued long-term liability accounts
(excluding
Long-Term Indebtedness) of the Borrower and its
consolidated
Subsidiaries increased during such fiscal year plus (iii)
the net
amount, if any, by which the consolidated accrued
long-term asset
accounts of the Borrower and its consolidated Subsidiaries
decreased
during such fiscal year; minus
(d) the sum of (i) any non-cash gains included in
determining
Consolidated Net Income for such fiscal year plus (ii) the
amount, if
any, by which Net Working Capital increased during such
fiscal year
(except as a result of reclassification of items from
long-term to
short-term) plus (iii) the net amount, if any, by which
the
consolidated deferred revenues and other consolidated
accrued long-term
liability accounts of the Borrower and its consolidated
Subsidiaries
decreased during such fiscal year plus (iv) the net
amount, if any, by
which the consolidated accrued long-term asset accounts of
the Borrower
and its consolidated Subsidiaries increased during such
fiscal year;
minus
(e) the sum of (i) Capital Expenditures for such
fiscal year
(except to the extent (A) attributable to the incurrence
of Capital
Lease Obligations, (B) financed by incurring Long-Term
Indebtedness or
(C) financed with all or any portion of the Available
Basket Amount)
plus (ii) cash consideration paid during such fiscal year
to make
Permitted Acquisitions or other capital investments or
investments or
expenditures pursuant to Section 6.04(p) or 6.04(q)
(except to the
extent financed (A) by incurring Long-Term Indebtedness,
(B) with
Equity Interests of Holdings or with the Net Proceeds of
substantially
concurrent equity contributions to, or sales or issuances
of Equity
Interests of, Holdings), (C) with
16
Retained Excess Cash Flow in respect of the immediately
preceding
fiscal year or (D) with all or any portion of the
Available Basket
Amount); minus
(f) the aggregate principal amount of Long-Term
Indebtedness
repaid or prepaid by the Borrower and its consolidated
Subsidiaries
during such fiscal year, excluding (i) Indebtedness in
respect of
Revolving Loans, Swingline Loans and Letters of Credit
(unless there is
a corresponding reduction in the aggregate Revolving
Commitments), (ii)
Tranche B Term Loans prepaid pursuant to Section 2.11(c)
or (d) and
(iii) repayments or prepayments of Long-Term Indebtedness
financed by
incurring other Long-Term Indebtedness; minus
(g) the aggregate amount of Restricted Payments
made during
such fiscal year pursuant to clause (iii) of Section
6.08(a); minus
(h) amounts paid in cash during such fiscal year
in respect of
(x) items that were accounted for as non-cash reductions
of net income
in determining Consolidated Net Income in a prior fiscal
year and (y)
reserves or accruals established in purchase accounting.
"Exchange Act" means the Securities Exchange Act of 1934,
as amended,
and the rules and regulations of the SEC thereunder.
"Excluded Taxes" means, with respect to the Administrative
Agent, any
Lender, the Issuing Bank 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 described in clause (a) above, (c) in the
case of a
Foreign Lender (other than an assignee pursuant to a request by the
Borrower
under Section 2.19(b)), any withholding tax that is in effect and
would apply to
amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a
party to this Agreement (or designates a new lending office),
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 any
withholding tax
pursuant to Section 2.17(a) and (d) any withholding tax that is
attributable to
a Foreign Lender's failure to comply with Section 2.17(e).
"Existing Joint Ventures" means joint ventures in respect
of which the
Borrower or any Subsidiary holds an Equity Interest on the
Effective Date, as
set forth on Schedule 1.01(a).
"Federal Funds Effective Rate" means, 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
17
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
Administrative Agent from three Federal funds brokers of recognized
standing
selected by it.
"Financial Officer" means the chief financial officer,
principal
accounting officer, treasurer or controller of the Borrower.
"Financial Ratio" means the Interest Coverage Ratio, the
Leverage Ratio
or the Senior Leverage Ratio.
"Foreign Lender" means 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 Permitted Acquisition" means any Permitted
Acquisition that is
not a Domestic Permitted Acquisition.
"Foreign Pledge Agreement" means a pledge agreement (other
than the
Collateral Agreement) with respect to the Equity Interests of a
Foreign
Subsidiary owned by a Loan Party, in form and substance (including
with respect
to governing law) reasonably satisfactory to the Collateral Agent.
"Foreign Subsidiary" means any Subsidiary that is not a
Domestic
Subsidiary.
"Funded Debt" means, as of any date, the sum of (i) the
aggregate
principal amount of Tranche B Term Loans outstanding on such date
and (ii) the
aggregate principal amount of the Senior Subordinated Notes and
Additional
Senior Subordinated Notes outstanding on such date.
"GAAP" means generally accepted accounting principles in
the United
States of America, as in effect from time to time.
"Governmental Authority" means 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.
"Guarantee" of or by any Person (the "guarantor") means
any obligation,
contingent or otherwise, of the guarantor guaranteeing or having
the economic
effect of guaranteeing any Indebtedness or other obligation of any
other Person
(the "primary obligor") in any manner, whether directly or
indirectly, and
including any obligation of the guarantor, direct or indirect, (a)
to purchase
or pay (or advance or supply funds for the purchase or payment of)
such
Indebtedness or other obligation or to purchase (or to advance or
supply funds
for the purchase of) any security for the payment thereof, (b) to
18
purchase or lease property, securities or services for the purpose
of assuring
the owner of such Indebtedness or other obligation of the payment
thereof
(including pursuant to any synthetic lease financing), (c) to
maintain working
capital, equity capital or any other financial statement condition
or liquidity
of the primary obligor so as to enable the primary obligor to pay
such
Indebtedness or other obligation or (d) as an account party or
applicant in
respect of any letter of credit or letter of guaranty issued to
support such
Indebtedness or obligation, provided that the term Guarantee shall
not include
endorsements for collection or deposit in the ordinary course of
business. The
amount of any Guarantee shall be deemed to be the lower of (a) an
amount equal
to the stated or determinable amount of the primary obligation in
respect of
which such Guarantee is made and (b) the maximum amount for which
such
guaranteeing Person may be liable pursuant to the terms of the
instrument
embodying such Guarantee (without giving effect to any rights of
indemnification, contribution or subrogation), unless such primary
obligation
and the maximum amount for which such guaranteeing Person may be
liable are not
stated or determinable, in which case the amount of such Guarantee
shall be such
guaranteeing Person's maximum reasonably anticipated liability in
respect
thereof as determined by such Person in good faith.
"Hazardous Materials" means (i) all petroleum products or
byproducts
and all other petroleum hydrocarbons, coal ash, radon gas, asbestos
or
asbestos-containing materials, urea formaldehyde foam insulation,
polychlorinated biphenyls, chlorofluorocarbons and all other
ozone-depleting
substances and (ii) all chemicals, materials, substances or wastes
that are
prohibited, limited or regulated by or pursuant to any
Environmental Law.
"Holdings" means Affinia Group Holdings Inc., a Delaware
corporation.
"Holdings PIK Note" has the meaning set forth in the
preamble to this
Agreement.
"Incremental Extensions of Credit" has the meaning set
forth in Section
2.20.
"Incremental Facility Amendment" has the meaning set forth
in Section
2.20.
"Incremental Facility Closing Date" has the meaning set
forth in
Section 2.20.
"Indebtedness" of any Person means, without duplication,
(a) all
obligations of such Person for borrowed money or with respect to
deposits or
advances of any kind, (b) all obligations of such Person evidenced
by bonds,
debentures, notes or similar instruments, (c) all obligations of
such Person
upon which interest charges are customarily paid, (d) all
obligations of such
Person under conditional sale or other title retention agreements
relating to
property acquired by such Person, (e) all obligations of such
Person in respect
of the deferred purchase price of property or services (excluding
trade accounts
payable and accrued obligations incurred in the ordinary course of
19
business), (f) all obligations of others secured by (or for which
the holder of
such obligations has an existing right, contingent or otherwise, to
be secured
by) any Lien on property owned or acquired by such Person, whether
or not the
obligations secured thereby have been assumed, (g) all Guarantees
by such Person
of the obligations of others (to the extent such obligations would
constitute
"Indebtedness" pursuant to the other clauses of this definition),
(h) all
Capital Lease Obligations of such Person, (i) all obligations,
contingent or
otherwise, of such Person as an account party or applicant in
respect of letters
of credit and letters of guaranty, (j) the amount of any Permitted
Securitizations of such Person and (k) all obligations, contingent
or otherwise,
of such Person in respect of bankers' acceptances. The Indebtedness
of any
Person shall include the Indebtedness of any other entity
(including any
partnership in which such Person is a general partner) to the
extent such Person
is liable therefor as a result of such Person's ownership interest
in or other
relationship with such entity, except to the extent the terms of
such
Indebtedness provide that such Person is not liable therefor.
Notwithstanding
the foregoing, in connection with any Permitted Acquisition, the
term
"Indebtedness" shall not include post-closing payment adjustments
or earn-outs
to which the seller in such Permitted Acquisition may become
entitled.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Information Memorandum" means the Confidential
Information Memorandum
dated November 2004, relating to Holdings, Intermediate Holdings,
the Borrower
and the Transactions.
"Initial Investors" has the meaning set forth in the
preamble to this
Agreement.
"Interest Coverage Ratio" has the meaning set forth in
Section 6.12.
"Interest Election Request" means a request by the
Borrower to convert
or continue a Revolving Borrowing or a Tranche B Term Borrowing in
accordance
with Section 2.07, provided that a written Interest Election
Request shall be
substantially in the form of Exhibit F, or such other form as shall
be approved
by the Administrative Agent.
"Interest Payment Date" means (a) with respect to any ABR
Loan
(including a Swingline Loan), the last day of each March, June,
September and
December and (b) with respect to any Eurodollar Loan, the last day
of the
Interest Period applicable to the Borrowing of which such Loan is a
part and, in
the case of a Eurodollar Borrowing with an Interest Period of more
than three
months' duration, each day prior to the last day of such Interest
Period that
occurs at intervals of three months' duration after the first day
of such
Interest Period.
"Interest Period" means, with respect to any Eurodollar
Borrowing, the
period commencing on the date of such Borrowing and ending on the
numerically
corresponding day in the calendar month that is one, two, three or
six months
thereafter (or nine or twelve months thereafter if, at the time of
the relevant
Borrowing, all Lenders
20
participating therein make an interest period of such duration
available), as
the Borrower may elect, provided that (a) if any Interest Period
would end on a
day other than 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 (b) any Interest Period that
commences on the
last Business Day of a calendar month (or on a day for which there
is no
numerically corresponding day in the last calendar month of such
Interest
Period) shall end on the last Business Day of the last calendar
month of such
Interest Period. For purposes hereof, the date of a Borrowing
initially shall be
the date on which such Borrowing is made and thereafter shall be
the effective
date of the most recent conversion or continuation of such
Borrowing.
"Intermediate Holdings" means Affinia Group Intermediate
Holdings Inc.,
a Delaware corporation.
"IPO" means a bona fide underwritten initial public
offering of common
stock of Holdings after the Effective Date.
"Issuing Bank" means 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 2.05(i). The Issuing Bank may, in its
discretion, arrange
for one or more Letters of Credit to be issued by Affiliates of the
Issuing
Bank, in which case the term "Issuing Bank" shall include any such
Affiliate
with respect to Letters of Credit issued by such Affiliate.
"LC Disbursement" means a payment made by the Issuing Bank
pursuant to
a Letter of Credit.
"LC Exposure" means, 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 Revolving
Lender at any
time shall be its Applicable Percentage of the aggregate LC
Exposure at such
time.
"Lenders" means the Persons listed on Schedule 2.01 and
any other
Person that shall have become a party hereto pursuant to an
Assignment and
Assumption or an Incremental Facility Amendment, other than any
such Person that
ceases to be a party hereto pursuant to an Assignment and
Assumption. Unless the
context otherwise requires, the term "Lenders" includes the
Swingline Lender.
"Letter of Credit" means any letter of credit issued
pursuant to this
Agreement.
"Leverage Ratio" means, on any date, the ratio of (a)
Total
Indebtedness on such date to (b) Consolidated EBITDA for the period
of four
consecutive fiscal quarters of the Borrower ended on such date (or,
if such date
is not the last day of a fiscal quarter, ended on the last day of
the fiscal
quarter of the Borrower most recently ended prior to such date),
provided that,
to the extent the Borrower or any Subsidiary makes any
21
Permitted Acquisition, Asset Disposition or Discontinuation during
the period of
four fiscal quarters of the Borrower most recently ended, the
Leverage Ratio for
such period shall be calculated on a Pro Forma Basis.
"LIBO Rate" means, 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
Administrative 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 in an amount approximately equal to the amount of such
Eurodollar
Borrowing and for a maturity comparable to such Interest Period are
offered by
the principal London office of the Administrative 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" means, with respect to any asset, (a) any mortgage,
deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in,
on or of such asset, (b) the interest of a vendor or a lessor under
any
conditional sale agreement, capital lease or title retention
agreement (or any
financing lease having substantially the same economic effect as
any of the
foregoing) relating to such asset and (c) in the case of
securities, any
purchase option, call or similar right of a third party with
respect to such
securities.
"Loan Documents" means this Agreement, the promissory
notes, if any,
executed and delivered pursuant to Section 2.09(e), any Incremental
Facility
Amendment, the Collateral Agreement, any Foreign Pledge Agreement
and the other
Security Documents.
"Loan Parties" means Intermediate Holdings, the Borrower
and the
Subsidiary Loan Parties.
"Loans" means the loans made by the Lenders to the
Borrower pursuant to
this Agreement or an Incremental Facility Amendment.
"Long-Term Indebtedness" means any Indebtedness that, in
accordance
with GAAP, constitutes (or, when incurred, constituted) a long-term
liability.
"Material Adverse Effect" means a material adverse effect
on (a) the
business, condition (financial or otherwise) or results of
operations of
Intermediate Holdings, the Borrower and the Subsidiaries, taken as
a whole, (b)
the ability of any Loan
22
Party to perform any of its material obligations under any Loan
Document or (c)
the rights of or benefits available to the Lenders under any Loan
Document.
"Material Indebtedness" means Indebtedness (other than the
Loans and
Letters of Credit), or obligations in respect of one or more Swap
Agreements, of
any one or more of Intermediate Holdings, the Borrower and the
Subsidiaries in
an aggregate principal amount exceeding $17,500,000. For purposes
of determining
Material Indebtedness, the "principal amount" of the obligations of
the Borrower
or any Subsidiary in respect of any Swap Agreement at any time
shall be the
maximum aggregate amount (giving effect to any netting agreements)
that the
Borrower or such Subsidiary would be required to pay if such Swap
Agreement were
terminated at such time.
"Moody's" means Moody's Investors Service, Inc.
"Mortgage" means a mortgage, deed of trust, assignment of
leases and
rents, leasehold mortgage or other security document granting a
Lien on any
Mortgaged Property to secure the Obligations. Each Mortgage shall
be reasonably
satisfactory in form and substance to the Collateral Agent with
such changes as
may be advisable under the law of the jurisdiction in which such
Mortgage is to
be recorded.
"Mortgaged Property" means, initially, each parcel of real
property and
the improvements thereto owned by a Loan Party and identified on
Schedule
1.01(b) and includes each other parcel of real property and
improvements thereto
with respect to which a Mortgage is granted pursuant to Section
5.12 or 5.13.
"Multiemployer Plan" means a multiemployer plan as defined
in Section
4001(a)(3) of ERISA.
"Net Proceeds" means, with respect to any event, (a) the
cash proceeds
received in respect of such event including (i) any cash received
in respect of
any non-cash proceeds (including any cash payments received by way
of deferred
payment of principal pursuant to a note or installment receivable
or purchase
price adjustment receivable or otherwise, but excluding any
interest payments),
but only as and when received, (ii) in the case of a casualty,
insurance
proceeds and (iii) in the case of a condemnation or similar event,
condemnation
awards and similar payments, net of (b) the sum of (i) all
reasonable fees and
out-of-pocket expenses paid to third parties (other than
Affiliates) in
connection with such event, (ii) in the case of a sale, transfer or
other
disposition of an asset (including pursuant to a sale and leaseback
transaction
or a casualty or a condemnation or similar proceeding), the amount
of all
payments required to be made as a result of such event to repay
Indebtedness
(other than Loans) secured by such asset or otherwise subject to
mandatory
prepayment as a result of such event and (iii) the amount of all
taxes paid (or
reasonably estimated to be payable) and the amount of any reserves
established
to fund contingent liabilities reasonably estimated to be payable,
in each case
that are directly attributable to such event (as determined
reasonably and in
good faith by a Financial Officer). Notwithstanding the foregoing,
for purposes
of clauses (a) and (b) of the definition of the term "Prepayment
Event", no net
23
proceeds (calculated in the manner provided in the immediately
preceding
sentence) received in respect of any single transaction or series
of related
transactions shall constitute "Net Proceeds" unless such net
proceeds shall
exceed $2,000,000 (in which case the entire amount of net proceeds
from such
transaction or series of related transactions shall constitute "Net
Proceeds").
"Net Working Capital" means, at any date, (a) the
consolidated current
assets of the Borrower and the Subsidiaries as of such date
(excluding cash and
Permitted Investments) minus (b) the consolidated current
liabilities of the
Borrower and the Subsidiaries as of such date (excluding current
liabilities in
respect of Indebtedness). Net Working Capital at any date may be a
positive or
negative number. Net Working Capital increases when it becomes more
positive or
less negative and decreases when it becomes less positive or more
negative.
"Non-Regulation S-X Adjustments" has the meaning assigned
to such term
in the definition of "Pro Forma Basis".
"Non-Specified Restructuring Charges" means any
non-recurring
Restructuring Charges that do not constitute Specified Charges.
"Obligations" has the meaning assigned to such term in the
Collateral
Agreement.
"Other Taxes" means any and all present or future
recording, stamp,
documentary, excise, transfer, sales, property or similar taxes,
charges or
levies arising from any payment made under any Loan Document or
from the
execution, delivery or enforcement of, or otherwise with respect
to, any Loan
Document.
"Participant" has the meaning set forth in Section 9.04.
"PBGC" means the Pension Benefit Guaranty Corporation
referred to and
defined in ERISA and any successor entity performing similar
functions.
"Perfection Certificate" means a certificate in the form
of Exhibit D
or any other form approved by the Collateral Agent.
"Permitted Acquisition" means any acquisition by the
Borrower or any
wholly owned Subsidiary of all the outstanding Equity Interests in,
all or
substantially all the assets of, or all or substantially all the
assets
constituting a business unit, division, product line or line of
business of, a
Person if (a) such acquisition was not preceded by, or consummated
pursuant to,
a hostile offer (including a proxy contest), (b) no Default has
occurred and is
continuing or would result therefrom, (c) all transactions related
thereto are
consummated in accordance with applicable laws, (d) immediately
after giving
effect to such acquisition, any acquired or newly formed Subsidiary
that is a
Domestic Subsidiary is designated as a Subsidiary Loan Party
hereunder and all
actions required to be taken with respect to such acquired or newly
formed
Subsidiary and any assets acquired in such acquisition under
Sections 5.12 and
5.13 shall have been taken, (e) on a Pro Forma Basis, as of the
last day of the
most recently ended fiscal quarter of
24
the Borrower for which financial statements are available, (i) the
Borrower
shall be in compliance with the covenants contained in Sections
6.12 and 6.13,
(ii) the Leverage Ratio shall be less than 4.50 to 1.00 and (iii)
the Senior
Leverage Ratio shall be less than 3.00 to 1.00, provided that the
Borrower shall
not be required to comply with the terms of this clause (e) in
connection with
any acquisition to the extent that the aggregate purchase price
payable by the
Borrower and its Subsidiaries in respect of such acquisition, taken
together
with the aggregate purchase price paid by the Borrower and its
Subsidiaries in
respect of all other acquisitions consummated without complying
with the terms
of this clause (e), does not exceed $25,000,000, (f) the business
of such Person
or such assets, as applicable, constitute a business permitted by
Section
6.03(b), (g) immediately before and after such Permitted
Acquisition, the
aggregate Revolving Commitments exceed the aggregate Revolving
Exposures by not
less than $50,000,000 and (h) the Borrower has delivered to the
Administrative
Agent a certificate of a Financial Officer to the effect set forth
in clauses
(a), (b), (c), (d), (e), (f) and (g) above, together with all
relevant financial
information for the Person or assets to be acquired. For purposes
of Section
6.04(a) and Section 6.04(p), the purchase price in respect of any
Permitted
Acquisition shall be deemed to include (i) the principal amount of
Indebtedness
that is assumed in connection with such Permitted Acquisition and
(ii) the
Borrower's good faith estimate (as of the date of consummation of
such Permitted
Acquisition) of the aggregate amount that will be payable by the
Borrower and
its Subsidiaries pursuant to any post-closing payment adjustments
or earn-outs
with respect to such Permitted Acquisition (provided that the
Borrower and its
Subsidiaries shall only be permitted to make any such post-closing
adjustment
payment or earn-out payment to the extent that, on a Pro Forma
Basis, as of the
last day of the fiscal quarter most recently ended prior to the
date of such
payment and for which financial statements are available, (A) the
Borrower is in
compliance with the covenants contained in Sections 6.12 and 6.13,
(B) the
Leverage Ratio shall be less than 4.50 to 1.00 and (C) the Senior
Leverage Ratio
shall be less than 3.00 to 1.00).
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes, rates,
assessments or
other governmental charges that are not yet due or are
being contested
in compliance with Section 5.05;
(b) carriers', warehousemen's, mechanics',
materialmen's,
repairmen's, suppliers' and other like Liens imposed by
law (including
Liens of customs and revenue authorities to secure customs
duties in
connection with the importation of goods), arising in the
ordinary
course of business and securing obligations that are not
overdue by
more than 30 days or are being contested in compliance
with Section
5.05;
(c) pledges and deposits made in the ordinary
course of
business in compliance with workers' compensation,
unemployment
insurance and other social security laws or regulations;
25
(d) deposits to secure the performance of bids,
trade
contracts, leases, statutory obligations, surety and
appeal bonds,
performance bonds and other obligations of a like nature,
in each case
in the ordinary course of business;
(e) judgment liens in respect of judgments that
do not
constitute an Event of Default under paragraph (k) of
Section 7.01;
(f) easements, zoning restrictions,
rights-of-way, minor
defects or irregularities of title and other similar
encumbrances on
real property imposed by law or arising in the ordinary
course of
business that do not secure any monetary obligations and
do not
materially detract from the value of the affected property
or
materially interfere with the ordinary conduct of business
of the
Borrower or any Subsidiary; and
(g) landlords' and lessors' and other like Liens
in respect of
rent not in default,
provided that the term "Permitted Encumbrances" shall not include
any Lien
securing Indebtedness.
"Permitted Holder" means (i) the Sponsor and any Affiliate
of the
Sponsor that is neither an operating company nor a company
controlled by an
operating company and (ii) any general partner of any of the
foregoing.
"Permitted Investments" means:
(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 one year 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, the highest credit rating obtainable from
S&P or from
Moody's;
(c) investments in certificates of deposit,
banker's
acceptances and time deposits maturing within 180 days
from the date of
acquisition thereof issued or guaranteed by or placed
with, and money
market deposit accounts issued or offered by, any domestic
office of
any commercial bank 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) repurchase agreements with a term of not more
than 30 days
for securities described in clause (a) above and entered
into with a
financial institution satisfying the criteria described in
clause (c)
above; and
26
(e) money market funds that comply with the
criteria set forth
in SEC Rule 2a-7 under the Investment Company Act of 1940,
substantially all of whose assets are invested in
investments of the
type described in clauses (a) through (d) above.
"Permitted Joint Venture" means any joint venture (a) in
which the
Borrower or any Subsidiary holds an Equity Interest that represents
less than
80% of the ordinary voting power and aggregate equity value
represented by the
issued and outstanding Equity Interests in such joint venture and
(b) that is
engaged in a business permitted under Section 6.03(b), including
the Existing
Joint Ventures.
"Permitted Quinton Hazell Joint Venture" has the meaning
set forth in
the definition of "Quinton Hazell Disposition".
"Permitted Securitization" means any transaction or series
of
transactions that may be entered into by the Borrower or any
Subsidiary pursuant
to which it may sell, convey, contribute to capital or otherwise
transfer (which
sale, conveyance, contribution to capital or transfer may include
or be
supported by the grant of a security interest) Receivables or
interests therein
and all collateral securing such Receivables, all contracts and
contract rights,
purchase orders, security interests, financing statements or other
documentation
in respect of such Receivables, any guarantees, indemnities,
warranties or other
obligations in respect of such Receivables, any other assets that
are
customarily transferred or in respect of which security interests
are
customarily granted in connection with asset securitization
transactions
involving receivables similar to such Receivables and any
collections or
proceeds of any of the foregoing (collectively, the "Related
Assets") (i) to a
trust, partnership, corporation or other Person (other than the
Borrower or any
Subsidiary other than a SPE Subsidiary), which transfer is funded
in whole or in
part, directly or indirectly, by the incurrence or issuance by the
transferee or
any successor transferee of Indebtedness, fractional undivided
interests or
other securities that are to receive payments from, or that
represent interests
in, the cash flow derived from such Receivables and Related Assets
or interests
in such Receivables and Related Assets, or (ii) directly to one or
more
investors or other purchasers (other than the Borrower or any
Subsidiary), it
being understood that a Permitted Securitization may involve (A)
one or more
sequential transfers or pledges of the same Receivables and Related
Assets, or
interests therein (such as a sale, conveyance or other transfer to
an SPE
Subsidiary followed by a pledge of the transferred Receivables and
Related
Assets to secure Indebtedness incurred by the SPE Subsidiary), and
all such
transfers, pledges and Indebtedness incurrences shall be part of
and constitute
a single Permitted Securitization, and (B) periodic transfers or
pledges of
Receivables and/or revolving transactions in which new Receivables
and Related
Assets, or interests therein, are transferred or pledged upon
collection of
previously transferred or pledged Receivables and Related Assets,
or interests
therein, provided that any such transactions shall provide for
recourse to such
Subsidiary (other than any SPE Subsidiary) or the Borrower (as
applicable) only
in respect of the cash flows in respect of such Receivables and
Related Assets
and to the extent of other customary securitization undertakings in
the
jurisdiction relevant to such transactions. The Effective Date
Receivables
Securitization shall constitute a Permitted Securitization.
27
The "amount" or "principal amount" of any Permitted
Securitization
shall be deemed at any time to be (1) the aggregate principal or
stated amount
of the Indebtedness, fractional undivided interests (which stated
amount may be
described as a "net investment" or similar term reflecting the
amount invested
in such undivided interest) or other securities incurred or issued
pursuant to
such Permitted Securitization, in each case outstanding at such
time, or (2) in
the case of any Permitted Securitization in respect of which no
such
Indebtedness, fractional undivided interests or securities are
incurred or
issued, the cash purchase price paid by the buyer in connection
with its
purchase of Receivables less the amount of collections received by
the Borrower
or any Subsidiary in respect of such Receivables and paid to such
buyer,
excluding any amounts applied to purchase fees or discount or in
the nature of
interest. Each Lender authorizes the Administrative Agent to enter
into an
intercreditor agreement in respect of each Permitted Securitization
from time to
time in effect and to take all actions it deems appropriate or
necessary in
connection with any such intercreditor agreement.
"Person" means any natural person, corporation, limited
liability
company, trust, joint venture, association, company, partnership,
Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan subject to
the
provisions of Title IV or Section 302 of ERISA or Section 412 of
the Code, 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 Event" means:
(a) any sale, transfer or other disposition of
any property or
asset of Intermediate Holdings, the Borrower or any
Subsidiary, other
than dispositions described in clauses (a), (b), (c), (d),
(e), (f),
(h), (i), (k) and (l) of Section 6.05; or
(b) any casualty or other insured damage to, or
any taking
under power of eminent domain or by condemnation or
similar proceeding
of, any property or asset of Intermediate Holdings, the
Borrower or any
Subsidiary; or
(c) the incurrence by Intermediate Holdings, the
Borrower or
any Subsidiary of any Indebtedness pursuant to Section
6.01(a)(xiii)
(other than amounts funded under the Effective Date
Receivables
Securitization on the Effective Date and thereafter, up to
a maximum
amount of $100,000,000) or Section 6.01(a)(xv) or any
Indebtedness not
permitted under Section 6.01 or by the Required Lenders
pursuant to
Section 9.02 (it being understood that the transfer of
Receivables in
connection with the establishment of a Permitted
Securitization (and
any subsequent transfer of Receivables that results in an
increase in
the aggregate funded amount of any Permitted
Securitization over the
greatest aggregate funded amount previously outstanding
thereunder)
shall be treated hereunder as an incurrence of
Indebtedness).
28
"Prime Rate" means the rate of interest per annum publicly
announced
from time to time by JPMorgan Chase Bank, N.A. as its prime rate in
effect for
dollars 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.
"Pro Forma Basis" means, with respect to the calculation
of any
Financial Ratio (to the extent calculation of such Financial Ratio
is required
on a "Pro Forma Basis" pursuant to the terms of this Agreement) for
any period
of four consecutive fiscal quarters (the "Reference Period"):
(a) in making any determination of Consolidated
EBITDA, pro
forma effect shall be given to any Permitted Acquisition,
Asset
Disposition or Discontinuation, in either case that
occurred during
such Reference Period (or, in the case of any
determination made
pursuant to the definition of the term "Permitted
Acquisition" or
Section 2.20, or pursuant to Section 6.01(a)(xii) or
Section
6.08(a)(vi), occurring during such Reference Period or
thereafter and
through and including the date of the applicable Permitted
Acquisition,
Incremental Extension of Credit, issuance of Additional
Senior
Subordinated Notes or Restricted Payment, as the case may
be), as if
such Permitted Acquisition, Asset Disposition or
Discontinuation
occurred on the first day of such Reference Period; and
(b) in making any determination of Total
Indebtedness or
Consolidated Cash Interest Expense, pro forma effect shall
be given to
any incurrence, repayment or assumption of Indebtedness
that occurred
during such Reference Period and (i) in the case of any
determination
made pursuant to the definition of the term "Permitted
Acquisition",
occurring thereafter and through and including the date of
the
applicable Permitted Acquisition (including in connection
with such
Permitted Acquisition), (ii) in the case of any
determination made
pursuant to Section 2.20, occurring thereafter and through
and
including the date of the applicable Incremental Extension
of Credit
(including in connection with such Incremental Extension
of Credit),
(iii) in the case of any determination made pursuant to
Section
6.01(a)(xii), occurring thereafter and through and
including the date
of the applicable issuance of Additional Senior
Subordinated Notes
(including such issuance of Additional Senior Subordinated
Notes) or
(iv) in the case of any determination made pursuant to
Section
6.08(a)(vi), occurring thereafter and through and
including the date of
the applicable Restricted Payment (including in connection
with such
Restricted Payment), in each case as if such incurrence,
repayment or
assumption of Indebtedness occurred on the first day of
such Reference
Period,
in each case with such pro forma adjustments (i) as would be
permitted to be
reflected in pro forma financial information complying with the
requirements of
Article 11 of Regulation S-X under the Securities Act (and the
interpretations
of the SEC thereunder) and (ii) that represent cost savings
reasonably expected
by such Financial Officer to be realized within 12 months of the
consummation of
the applicable Permitted Acquisition, Asset Disposition or
Discontinuation (the
adjustments described in this clause (ii) being
29
referred to herein as "Non-Regulation S-X Adjustments"), in each
case to the
extent reflected in a certificate of a Financial Officer (with
appropriate
information and calculations in reasonable detail supporting such
adjustments)
delivered to the Administrative Agent. For purposes of calculating
Consolidated
EBITDA for the fiscal quarter ending December 31, 2004,
Consolidated EBITDA
shall be calculated on a Pro Forma Basis to give effect to the
Acquisition as if
it were a Permitted Acquisition.
For purposes of clause (b) above, if any Indebtedness the
incurrence,
repayment or assumption of which is being given pro forma effect
bears interest
at a floating rate, the interest on such Indebtedness shall be
calculated as if
the rate in effect on the date of determination had been the
applicable rate for
the entire Reference Period (taking into account any Swap Agreement
applicable
to such Indebtedness if such Swap Agreement has a remaining term in
excess of 12
months).
"Purchase Agreement" has the meaning set forth in the
preamble to this
Agreement.
"Purchase Price" has the meaning set forth in the preamble
to this
Agreement.
"Quinton Hazell Disposition" means the sale, transfer or
disposition
(including by way of merger, consolidation, sale of capital stock
or sale of
assets) of all or substantially all of the Quinton Hazell
operations of the
Borrower and the Subsidiaries, including any such sale, transfer or
disposition
in connection with the creation of a Permitted Joint Venture
engaged in such
operations (a "Permitted Quinton Hazell Joint Venture").
"Receivables" means accounts receivable (including all
rights to
payment created by or arising from the sales of goods, leases of
goods or the
rendition of services, no matter how evidenced (including in the
form of chattel
paper) and whether or not earned by performance).
"Register" has the meaning set forth in Section 9.04.
"Related Assets" has the meaning set forth in the
definition of
"Permitted Securitization".
"Related Parties" means, with respect to any specified
Person, such
Person's Affiliates and the respective directors, officers,
employees, trustees,
agents and advisors of such Person and such Person's Affiliates.
"Release" means any release, spill, emission, leaking,
dumping,
injection, pouring, deposit, disposal, discharge, dispersal,
leaching or
migration into or through the environment or within or upon any
building,
structure, facility or fixture.
"Remaining Present Value" means, as of any date with
respect to any
lease, the present value as of such date of the scheduled future
lease payments
with
30
respect to such lease, determined with a discount rate equal to a
market rate of
interest for such lease reasonably determined at the time such
lease was entered
into.
"Required Lenders" means, at any time, Lenders having
Revolving
Exposures, Tranche B Term Loans, Loans in respect of Incremental
Extensions of
Credit, if any, and unused Commitments representing more than 50%
of the
aggregate Revolving Exposures, outstanding Tranche B Term Loans,
outstanding
Loans in respect of Incremental Extensions of Credit, if any, and
unused
Commitments at such time.
"Requirement of Law" means, with respect to any Person,
(i) the
charter, articles or certificate of organization or incorporation
and bylaws or
other organizational or governing documents of such Person and (ii)
any statute,
law, treaty, rule, regulation, order, decree, writ, injunction or
determination
of any arbitrator or court or other Governmental Authority, in each
case
applicable to or binding upon such Person or any of its property or
to which
such Person or any of its property is subject.
"Restricted Payment" means any dividend or other
distribution (whether
in cash, securities or other property) with respect to any Equity
Interests in
Intermediate Holdings, the Borrower or any Subsidiary, or any
payment (whether
in cash, securities or other property), including any sinking fund
or similar
deposit, on account of the purchase, redemption, retirement,
acquisition,
cancelation or termination of any Equity Interests in Intermediate
Holdings, the
Borrower or any Subsidiary or any option, warrant or other right to
acquire any
such Equity Interests in Intermediate Holdings, the Borrower or any
Subsidiary.
"Restructuring Charges" means charges in respect of
restructurings,
plant closings, headcount reductions or other similar actions,
including
severance charges in respect of employee terminations.
"Retained Excess Cash Flow" means, with respect to any
fiscal year
ended after the Effective Date, the amount of Excess Cash Flow for
such fiscal
year that the Borrower was not required to use to prepay Tranche B
Term
Borrowings pursuant to Section 2.11(d).
"Revolving Availability Period" means the period from and
including the
Effective Date to but excluding the earlier of (a) the Revolving
Maturity Date
and (b) the date of termination of the Revolving Commitments.
"Revolving Commitment" means, with respect to each Lender,
the
commitment, if any, of such Lender to make Revolving Loans and to
acquire
participations in Letters of Credit and Swingline Loans hereunder,
expressed as
an amount representing the maximum possible aggregate amount of
such Lender's
Revolving Exposure hereunder, as such commitment may be (a) reduced
from time to
time pursuant to Section 2.08 and (b) reduced or increased from
time to time
pursuant to assignments by or to such Lender pursuant to Section
9.04. The
initial amount of each Lender's Revolving Commitment is set forth
on Schedule
2.01, or in the Assignment and Assumption pursuant to which such
Lender shall
have assumed its Revolving
31
Commitment, as applicable. The initial aggregate amount of the
Lenders'
Revolving Commitments is $125,000,000.
"Revolving Exposure" means, with respect to any Lender at
any time, the
sum of the outstanding principal amount of such Lender's Revolving
Loans and its
LC Exposure and Swingline Exposure at such time.
"Revolving Lender" means a Lender with a Revolving
Commitment or, if
the Revolving Commitments have terminated or expired, a Lender with
Revolving
Exposure.
"Revolving Loan" means a Loan made pursuant to clause (b)
of Section
2.01.
"Revolving Maturity Date" means November 30, 2010.
"S&P" means Standard & Poor's Ratings Group, Inc.
"Sale and Leaseback Transaction" has the meaning set forth
in Section
6.06.
"SEC" means the Securities and Exchange Commission or any
Governmental
Authority succeeding to any of its principal functions.
"Secured Party" means each applicable "Secured Party", as
defined in
any applicable Security Document.
"Securities Act" means the Securities Act of 1933, as
amended, and the
rules and regulations of the SEC thereunder.
"Security Documents" means the Collateral Agreement, the
Mortgages and
each other security agreement or other instrument or document
executed and
delivered pursuant to Section 5.12 or 5.13 to secure any of the
Obligations.
"Senior Leverage Ratio" means, on any date, the ratio of
(a) Total
Senior Indebtedness as of such date to (b) Consolidated EBITDA for
the period of
four consecutive fiscal quarters of the Borrower ended on such date
(or, if such
date is not the last day of a fiscal quarter, ended on the last day
of the
fiscal quarter of the Borrower most recently ended prior to such
date), provided
that, to the extent the Borrower or any Subsidiary makes any
Permitted
Acquisition, Asset Disposition or Discontinuation during the period
of four
fiscal quarters of the Borrower most recently ended, the Senior
Leverage Ratio
for such period shall be calculated on a Pro Forma Basis.
"Senior Subordinated Notes" means the 9% Senior
Subordinated Notes due
2014 to be issued by the Borrower on or prior to the Effective Date
in the
aggregate principal amount of $300,000,000 and the Indebtedness
represented
thereby.
32
"Senior Subordinated Notes Documents" means the indenture
dated as of
November 30, 2004, among the Borrower, the Subsidiaries listed
therein and
Wilmington Trust Company, as trustee, in respect of the Senior
Subordinated
Notes and all other instruments, agreements and other documents
evidencing or
governing the Senior Subordinated Notes or providing for any
Guarantee or other
right in respect thereof.
"Sources and Uses Table" has the meaning set forth in
Section 4.01(m).
"Specified Charges" means (a) non-recurring Restructuring
Charges
related to the operations of the Borrower and the Subsidiaries
(including the
charges relating to the planned restructuring of the brake and
chassis
operations of the Borrower and the Subsidiaries previously
disclosed to the
Lenders) and (b) incremental expenditures incurred in connection
with
change-over inventory acquisitions, provided that (i) such charges
and expenses
are paid or otherwise accounted for within 18 months of the
Effective Date, (ii)
the aggregate amount of expenses described in clause (b) of this
definition
shall not exceed $7,500,000 and (iii) the aggregate amount of
Specified Charges
shall not exceed $42,500,000.
"SPE Subsidiary" means any wholly owned Subsidiary formed
solely for
the purpose of, and that engages only in, one or more Permitted
Securitizations.
Affinia Receivables is an SPE Subsidiary for purposes of the
Effective Date
Receivables Securitization.
"Sponsor" means The Cypress Group L.L.C.
"Statutory Reserve Rate" means 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 bank serving as the
Administrative Agent
is subject 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.
"Subordinated Debt" means the Senior Subordinated Notes
and the
Additional Senior Subordinated Notes, and the Indebtedness
represented thereby.
"subsidiary" means, with respect to any Person (the
"parent") at any
date, any corporation, limited liability company, partnership,
association or
other entity the accounts of which would be consolidated with those
of the
parent in the parent's consolidated financial statements if such
financial
statements were prepared in accordance with GAAP as of such date,
as well as any
other corporation, limited liability
33
company, partnership, association or other entity of which
securities or other
ownership interests representing more than 50% of the equity or
more than 50% of
the ordinary voting power or, in the case of a partnership, more
than 50% of the
general partnership interests are, as of such date, owned,
controlled or held.
"Subsidiary" means any subsidiary of the Borrower, other
than any
Permitted Joint Venture and other than Beck/Arnley Worldparts Corp.
"Subsidiary Loan Party" means any Domestic Subsidiary,
other than any
SPE Subsidiary and any Domestic Subsidiary listed on Schedule
1.01(d).
"Swap Agreement" means any agreement with respect to any
swap, forward,
future or derivative transaction or option or similar agreement
involving, or
settled by reference to, one or more rates, currencies,
commodities, equity or
debt instruments or securities, or economic, financial or pricing
indices or
measures of economic, financial or pricing risk or value or any
similar
transaction or any combination of these transactions, provided that
no phantom
stock or similar plan providing for payments only on account of
services
provided by current or former directors, officers, employees or
consultants of
the Borrower or the Subsidiaries shall be a Swap Agreement.
"Swingline Exposure" means, at any time, the aggregate
principal amount
of all Swingline Loans outstanding at such time. The Swingline
Exposure of any
Lender at any time shall be its Applicable Percentage of the
aggregate Swingline
Exposure at such time.
"Swingline Borrowing Request" means a request by the
Borrower for a
Swingline Borrowing in accordance with Section 2.04, provided that
a written
Swingline Borrowing Request shall be substantially in the form of
Exhibit E-2,
or such other form as shall be approved by the Administrative Agent
and the
Swingline Lender.
"Swingline Lender" means JPMorgan Chase Bank, N.A., in its
capacity as
lender of Swingline Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section
2.04.
"Tax Distribution" means, in the event that Holdings,
Intermediate
Holdings and the Borrower become pass-through or disregarded
entities for U.S.
federal income tax purposes, a distribution to Holdings to the
extent the
proceeds of such distribution are distributed to the holders of
Equity Interests
of Holdings in any taxable year to enable such holders to pay their
Tax
liability on their respective shares of cumulative taxable income
attributable
to Holdings for such year.
"Taxes" means any and all present or future taxes, levies,
imposts,
duties, deductions, charges or withholdings imposed by any
Governmental
Authority.
"Total Indebtedness" means, as of any date, the sum of (a)
the
aggregate principal amount of Indebtedness of the Borrower and the
Subsidiaries
outstanding as of such date, in the amount that would be reflected
on a balance
sheet prepared as of such
34
date on a consolidated basis in accordance with GAAP, plus (b) the
aggregate
principal amount of Indebtedness of the Borrower and the
Subsidiaries
outstanding as of such date that is not required to be reflected on
a balance
sheet in accordance with GAAP, determined on a consolidated basis,
provided
that, for purposes of clause (b) above, the term "Indebtedness"
shall not
include contingent obligations of the Borrower or any Subsidiary as
an account
party or applicant in respect of any letter of credit or letter of
guaranty
unless such letter of credit or letter of guaranty supports an
obligation that
constitutes Indebtedness, minus (c) the aggregate amount of cash
and Permitted
Investments of the Borrower and the Subsidiaries as of such date
with respect to
which the Collateral Agent has a valid and enforceable security
interest, prior
and superior to the rights of any other Person, except for rights
secured by
Liens permitted by Section 6.02, provided that the aggregate amount
of cash and
Permitted Investments permitted to be included in this clause (c)
shall not
exceed $40,000,000.
"Total Senior Indebtedness" means, as of any date, (a)
Total
Indebtedness as of such date minus (b) the portion of Total
Indebtedness as of
such date represented by Subordinated Debt or that is otherwise
expressly
subordinated to the Obligations.
"Tranche B Commitment" means, with respect to each Lender,
the
commitment, if any, of such Lender to make a Tranche B Term Loan
hereunder on
the Effective Date, expressed as an amount representing the maximum
principal
amount of the Tranche B Term Loan to be made by such Lender
hereunder, as such
commitment may be (a) reduced from time to time pursuant to Section
2.08 and (b)
reduced or increased from time to time pursuant to assignments by
or to such
Lender pursuant to Section 9.04. The initial amount of each
Lender's Tranche B
Commitment is set forth on Schedule 2.01, or in the Assignment and
Assumption
pursuant to which such Lender shall have assumed its Tranche B
Commitment, as
applicable. The initial aggregate amount of the Lenders' Tranche B
Commitments
is $350,000,000.
"Tranche B Lender" means a Lender with a Tranche B
Commitment or an
outstanding Tranche B Term Loan.
"Tranche B Maturity Date" means November 30, 2011.
"Tranche B Term Loan" means a Loan made pursuant to clause
(a) of
Section 2.01.
"Transaction Costs" has the meaning set forth in the
preamble to this
Agreement.
"Transactions" means (a) the Acquisition and the other
transactions
contemplated by the Acquisition Documents, (b) the Equity
Contribution, (c) the
execution, delivery and performance by each Loan Party of the Loan
Documents to
which it is to be a party, the borrowing of Loans, the use of the
proceeds
thereof and the issuance of Letters of Credit hereunder, (d) the
execution,
delivery and performance by each Loan Party of the Senior
Subordinated Notes
Documents to which it is to be a party,
35
the issuance of the Senior Subordinated Notes and the use of the
proceeds
thereof and (e) the payment of the Transaction Costs.
"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.
"USA Patriot Act" means the USA Patriot Act (Title III of
Pub. L.
107-56 (signed into law October 26, 2001)).
"VAT" means any value added Tax, goods and services Tax,
sales or
turnover Tax or similar Tax, including such Tax as may be imposed
by the Sixth
Council Directive of the European Communities and national
legislation
implementing or supplemental to that directive.
"Withdrawal Liability" means liability to a Multiemployer
Plan as a
result of a complete or partial withdrawal from such Multiemployer
Plan, as such
terms are defined in ERISA.
"Working Capital Payment" has the meaning set forth in the
preamble to
this Agreement.
SECTION 1.02. Classification of Loans and Borrowings. For
purposes of
this Agreement, Loans may be classified and referred to by Class
(e.g., a
"Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by
Class and Type
(e.g., a "Eurodollar Revolving Loan"). Borrowings also may be
classified and
referred to by Class (e.g., a "Revolving Borrowing") or by Type
(e.g., a
"Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar
Revolving
Borrowing").
SECTION 1.03. 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
import, shall be construed to refer to this Agreement in its
entirety and not to
any particular provision hereof, (d) all references herein to
Articles,
Sections, Exhibits and Schedules shall be construed to refer to
Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e)
the words
"asset" and "property" shall be construed to have the same meaning
and effect
and to refer to any and all tangible and intangible assets and
properties,
including cash, securities, accounts and contract rights.
36
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise
expressly
provided herein, all terms of an accounting or financial nature
shall be
construed in accordance with GAAP, as in effect from time to time,
provided
that, if the Borrower notifies the Administrative Agent that the
Borrower
requests an amendment to any provision hereof to eliminate the
effect of any
change occurring after the date hereof in GAAP or in the
application thereof on
the operation of such provision (or if the Administrative Agent
notifies the
Borrower that the Required Lenders request an amendment to any
provision hereof
for such purpose), regardless of whether any such notice is given
before or
after such change in GAAP or in the application thereof, then such
provision
shall be interpreted on the basis of GAAP as in effect and applied
immediately
before such change shall have become effective until such notice
shall have been
withdrawn or such provision amended in accordance herewith.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and
conditions set
forth herein, each Lender agrees (a) to make a Tranche B Term Loan
to the
Borrower on the Effective Date in a principal amount not exceeding
its Tranche B
Commitment and (b) to make Revolving Loans to the Borrower from
time to time
during the Revolving Availability Period in an aggregate principal
amount that
will not result in such Lender's Revolving Exposure exceeding such
Lender's
Revolving Commitment, provided that the aggregate amount of
Revolving Loans made
on the Effective Date may not exceed $20,000,000. Within the
foregoing limits
and subject to the terms and conditions set forth herein, the
Borrower may
borrow, prepay and reborrow Revolving Loans. Amounts prepaid or
repaid in
respect of Tranche B Term Loans may not be reborrowed.
SECTION 2.02. Loans and Borrowings. (a) Each Loan (other
than a
Swingline Loan) shall be made as part of a Borrowing consisting of
Loans of the
same Class and Type made by the Lenders ratably in accordance with
their
respective Commitments of the applicable Class. The failure of any
Lender to
make any Loan required to be made by it shall not relieve any other
Lender of
its obligations hereunder, provided that the Commitments of the
Lenders are
several and no Lender shall be responsible for any other Lender's
failure to
make Loans as required.
(b) Subject to Section 2.14, each Revolving Borrowing and
Tranche B
Term Borrowing shall be comprised entirely of ABR Loans or
Eurodollar Loans as
the Borrower may request in accordance herewith, provided that all
Borrowings
made on the Effective Date must be made as ABR Borrowings or
Eurodollar
Borrowings with an Interest Period of one month's duration. Each
Swingline Loan
shall be an ABR Loan. Each Lender at its option may make any
Eurodollar Loan by
causing any domestic (or, if it does not result in any increased
costs to the
Borrower, foreign) branch or Affiliate of such Lender to make such
Loan,
provided that any exercise of such option shall not affect the
obligation of the
Borrower to repay such Loan in accordance with the terms of this
Agreement.
37
(c) At the commencement of each Interest Period for any
Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount that is
an integral
multiple of $1,000,000 and not less than $5,000,000. At the time
that each ABR
Borrowing is made, such Borrowing shall be in an aggregate amount
that is an
integral multiple of $100,000 and not less than $500,000. Each
Swingline Loan
shall be in an amount that is an integral multiple of $100,000 and
not less than
$100,000. Borrowings of more than one Type and Class may be
outstanding at the
same time. There shall not at any time be more than a total of 15
Eurodollar
Borrowings outstanding. Notwithstanding anything to the contrary
herein, an ABR
Revolving Borrowing or Swingline Loan may be in an aggregate amount
(i) that is
equal to the entire unused balance of the aggregate Revolving
Commitments or
(ii) that is required to finance the reimbursement of an LC
Disbursement as
contemplated by Section 2.05(e).
(d) Notwithstanding any other provision of this Agreement,
the Borrower
shall not be entitled to request, or to elect to convert or
continue, any
Borrowing if the Interest Period requested with respect thereto
would end after
the Revolving Maturity Date or the Tranche B Maturity Date, as
applicable.
SECTION 2.03. Requests for Borrowings. To request a
Revolving Borrowing
or Tranche B Term Borrowing, the Borrower shall notify the
Administrative Agent
of such request by telephone (a) in the case of a Eurodollar
Borrowing, not
later than 12:00 noon, New York City time, three Business Days
before the date
of the proposed Borrowing or (b) in the case of an ABR Borrowing,
not later than
12:00 noon, New York City time, one Business Day before the date of
the proposed
Borrowing, provided that any such notice of an ABR Revolving
Borrowing to
finance the reimbursement of an LC Disbursement as contemplated by
Section
2.05(e) may be given not later than 10:00 a.m., New York City time,
on the date
of the proposed Borrowing. Each such telephonic Borrowing Request
shall be
irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the
Administrative Agent of a written Borrowing Request signed by the
Borrower. Each
such telephonic and written Borrowing Request shall specify the
following
information in compliance with Section 2.02:
(i) whether the requested Borrowing is to be a
Revolving
Borrowing or a Tranche B Term Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) the date of such Borrowing, which shall be
a Business
Day;
(iv) whether such Borrowing is to be an ABR
Borrowing or a
Eurodollar Borrowing;
(v) in the case of a Eurodollar Borrowing, the
initial
Interest Period to be applicable thereto, which shall be a
period
contemplated by the definition of the term "Interest
Period"; and
38
(vi) the location and number of the Borrower's
account to
which funds are to be disbursed, which shall comply with
the
requirements of Section 2.06.
If no election as to the Type of Borrowing is specified, then the
requested
Borrowing shall be an ABR Borrowing. If no Interest Period is
specified with
respect to any requested Eurodollar Borrowing, then the Borrower
shall be deemed
to have selected an Interest Period of one month's duration.
Promptly following
receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details
thereof and of the
amount of such Lender's Loan to be made as part of the requested
Borrowing.
SECTION 2.04. Swingline Loans. (a) Subject to the terms
and conditions
set forth herein, the Swingline Lender agrees to make Swingline
Loans to the
Borrower from time to time during the Revolving Availability
Period, in an
aggregate principal amount at any time outstanding that will not
result in (i)
the aggregate principal amount of outstanding Swingline Loans
exceeding
$20,000,000 or (ii) the aggregate Revolving Exposures exceeding the
aggregate
Revolving Commitments, provided that the Swingline Lender shall not
be required
to make a Swingline Loan to refinance an outstanding Swingline
Loan. Within the
foregoing limits and subject to the terms and conditions set forth
herein, the
Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify
the
Administrative Agent of such request by telephone (confirmed by a
Swingline
Borrowing Request by telecopy), not later than 1:00 p.m., New York
City time, on
the day of a proposed Swingline Loan. Each such notice and
Swingline Borrowing
Request shall be irrevocable and shall specify the requested date
(which shall
be a Business Day) and amount of the requested Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of
any such
notice received from the Borrower. The Swingline Lender shall make
each
Swingline Loan available to the Borrower by means of a credit to
the general
deposit account of the Borrower maintained with the Swingline
Lender (or, in the
case of a Swingline Loan made to finance the reimbursement of an LC
Disbursement
as provided in Section 2.05(e), by remittance to the Issuing Bank)
by 3:00 p.m.,
New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to
the
Administrative Agent not later than 12:00 noon, New York City time,
on any
Business Day require the Revolving Lenders to acquire
participations on such
Business Day in all or a portion of the Swingline Loans
outstanding. Such notice
shall specify the aggregate amount of Swingline Loans in which
Revolving Lenders
will participate. Promptly upon receipt of such notice, the
Administrative Agent
will give notice thereof to each Revolving Lender, specifying in
such notice
such Lender's Applicable Percentage of such Swingline Loan or
Swingline Loans.
Each Revolving Lender hereby absolutely and unconditionally agrees,
upon receipt
of notice as provided above, to pay to the Administrative Agent,
for the account
of the Swingline Lender, such Lender's Applicable Percentage of
such Swingline
Loan or Swingline Loans. Each Revolving Lender
39
acknowledges and agrees that its obligation to acquire
participations in
Swingline Loans pursuant to this paragraph is absolute and
unconditional and
shall not be affected by any circumstance whatsoever, including the
occurrence
and continuance of a Default or reduction or termination of the
Commitments, and
that each such payment shall be made without any offset, abatement,
withholding
or reduction whatsoever. Each Revolving Lender shall comply with
its obligation
under this paragraph by wire transfer of immediately available
funds, in the
same manner as provided in Section 2.06 with respect to Loans made
by such
Lender (and Section 2.06 shall apply, mutatis mutandis, to the
payment
obligations of the Revolving Lenders), and the Administrative Agent
shall
promptly pay to the Swingline Lender the amounts so received by it
from the
Revolving Lenders. The Administrative Agent shall notify the
Borrower of any
participations in any Swingline Loan acquired pursuant to this
paragraph, and
thereafter payments in respect of such Swingline Loan shall be made
to the
Administrative Agent and not to the Swingline Lender. Any amounts
received by
the Swingline Lender from the Borrower (or other party on behalf of
the
Borrower) in respect of a Swingline Loan after receipt by the
Swingline Lender
of the proceeds of a sale of participations therein shall be
promptly remitted
to the Administrative Agent; any such amounts received by the
Administrative
Agent shall be promptly remitted by the Administrative Agent to the
Revolving
Lenders that shall have made their payments pursuant to this
paragraph and to
the Swingline Lender, as their interests may appear, provided that
any such
payment so remitted shall be repaid to the Swingline Lender or to
the
Administrative Agent, as applicable, if and to the extent such
payment is
required to be refunded to the Borrower for any reason. The
purchase of
participations in a Swingline Loan pursuant to this paragraph shall
not relieve
the Borrower of any default in the payment thereof.
SECTION 2.05. Letters of Credit. (a) General. Subject to
the terms and
conditions set forth herein, the Borrower may request the issuance
of Letters of
Credit for its own account, in a form reasonably acceptable to the
Administrative Agent and the Issuing Bank, at any time and from
time to time
during the Revolving Availability Period. In the event of any
inconsistency
between the terms and conditions of this Agreement and the terms
and conditions
of any form of letter of credit application or other agreement
submitted by the
Borrower to, or entered into by the Borrower with, the Issuing Bank
relating to
any Letter of Credit, the terms and conditions of this Agreement
shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension;
Certain
Conditions. To request the issuance of a Letter of Credit (or the
amendment,
renewal or extension of an outstanding Letter of Credit), the
Borrower shall
hand deliver or telecopy (or transmit by electronic communication,
if
arrangements for doing so have been approved by the Issuing Bank)
to the Issuing
Bank and the Administrative Agent (reasonably in advance of the
requested date
of issuance, amendment, renewal or extension) a notice requesting
the issuance
of a Letter of Credit, or identifying the Letter of Credit to be
amended,
renewed or extended, and specifying the date of issuance,
amendment, renewal or
extension (which shall be a Business Day), the date on which such
Letter of
Credit is to expire (which shall comply with paragraph (c) of this
Section), the
amount of such Letter of Credit, the name and address of the
beneficiary thereof
and such other information as shall be necessary to prepare, amend,
renew or
extend such
40
Letter of Credit. If requested by the Issuing Bank, the Borrower
also shall
submit a letter of credit application on the Issuing Bank's
standard form in
connection with any request for a Letter of Credit. A Letter of
Credit shall be
issued, amended, renewed or extended only if (and upon issuance,
amendment,
renewal or extension of each Letter of Credit the Borrower shall be
deemed to
represent and warrant that), after giving effect to such issuance,
amendment,
renewal or extension (i) the LC Exposure shall not exceed
$40,000,000 and (ii)
the aggregate Revolving Exposures shall not exceed the aggregate
Revolving
Commitments.
(c) Expiration Date. Each Letter of Credit shall expire at
or prior to
the close of business on the earlier of (i) the date that is one
year after the
date of the issuance of such Letter of Credit (or, in the case of
any renewal or
extension thereof, one year after such renewal or extension) and
(ii) the date
that is five Business Days prior to the Revolving Maturity Date.
(d) Participations. By the issuance of a Letter of Credit
(or an
amendment to a Letter of Credit increasing the amount thereof) and
without any
further action on the part of the Issuing Bank or the Lenders, the
Issuing Bank
hereby grants to each Revolving Lender, and each Revolving Lender
hereby
acquires from the Issuing Bank, a participation in such Letter of
Credit equal
to such Lender's Applicable Percentage of the aggregate amount
available to be
drawn under such Letter of Credit. In consideration and in
furtherance of the
foregoing, each Revolving Lender hereby absolutely and
unconditionally agrees to
pay to the Administrative Agent, for the account of the Issuing
Bank, such
Lender's Applicable Percentage of each LC Disbursement made by the
Issuing Bank
and not reimbursed by the Borrower on the date due as provided in
paragraph (e)
of this Section, or of any reimbursement payment required to be
refunded to the
Borrower for any reason. Each Revolving Lender acknowledges and
agrees that its
obligation to acquire participations pursuant to this paragraph in
respect of
Letters of Credit is absolute and unconditional and shall not be
affected by any
circumstance whatsoever, including any amendment, renewal or
extension of any
Letter of Credit or the occurrence and continuance of a Default or
reduction or
termination of the Commitments, and that each such payment shall be
made without
any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any LC
Disbursement
in respect of a Letter of Credit, the Borrower shall reimburse such
LC
Disbursement by paying to the Administrative Agent an amount equal
to such LC
Disbursement not later than 12:00 noon, New York City time, on the
Business Day
immediately following the day that the Borrower receives notice of
such LC
Disbursement, provided that the Borrower may, subject to the
conditions to
borrowing set forth herein, request in accordance with Section 2.03
or 2.04 that
such payment be financed with an ABR Revolving Borrowing or
Swingline Loan in an
equivalent amount and, to the extent so financed, the Borrower's
obligation to
make such payment shall be discharged and replaced by the resulting
ABR
Revolving Borrowing or Swingline Loan. If the Borrower fails to
make such
payment when due, the Administrative Agent shall notify each
Revolving Lender of
the applicable LC Disbursement, the payment then due from the
Borrower in
respect thereof and such Lender's Applicable Percentage thereof.
Promptly
41
following receipt of such notice, each Revolving Lender shall pay
to the
Administrative Agent its Applicable Percentage of the payment then
due from the
Borrower, in the same manner as provided in Section 2.06 with
respect to Loans
made by such Lender (and Section 2.06 shall apply, mutatis
mutandis, to the
payment obligations of the Revolving Lenders), and the
Administrative Agent
shall promptly pay to the Issuing Bank the amounts so received by
it from the
Revolving Lenders. Promptly following receipt by the Administrative
Agent of any
payment from the Borrower pursuant to this paragraph, the
Administrative Agent
shall distribute such payment to the Issuing Bank or, to the extent
that
Revolving Lenders have made payments pursuant to this paragraph to
reimburse the
Issuing Bank, then to such Lenders and the Issuing Bank as their
interests may
appear. Any payment made by a Revolving Lender pursuant to this
paragraph to
reimburse the Issuing Bank for any LC Disbursement (other than the
funding of
ABR Revolving Loans or a Swingline Loan as contemplated above)
shall not
constitute a Loan and shall not relieve the Borrower of its
obligation to
reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrower's obligation to
reimburse LC
Disbursements as provided in paragraph (e) of this Section shall be
absolute,
unconditional and irrevocable, and shall be performed strictly in
accordance
with the terms of this Agreement under any and all circumstances
whatsoever and
irrespective of (i) any lack of validity or enforceability of any
Letter of
Credit or this Agreement, or any term or provision therein, (ii)
any draft or
other document presented under a Letter of Credit proving to be
forged,
fraudulent or invalid in any respect or any statement therein being
untrue or
inaccurate in any respect, (iii) payment by the Issuing Bank under
a Letter of
Credit against presentation of a draft or other document that does
not comply
with the terms of such Letter of Credit or (iv) any other event or
circumstance
whatsoever, whether or not similar to any of the foregoing, that
might, but for
the provisions of this Section, constitute a legal or equitable
discharge of, or
provide a right of setoff against, the Borrower's obligations
hereunder. Neither
the Administrative Agent, the Lenders nor the Issuing Bank, nor any
of their
Related Parties, shall have any liability or responsibility by
reason of or in
connection with the issuance or transfer of any Letter of Credit or
any payment
or failure to make any payment thereunder (irrespective of any of
the
circumstances referred to in the preceding sentence), or any error,
omission,
interruption, loss or delay in transmission or delivery of any
draft, notice or
other communication under or relating to any Letter of Credit
(including any
document required to make a drawing thereunder), any error in
interpretation of
technical terms or any consequence arising from causes beyond the
control of the
Issuing Bank, provided that the foregoing shall not be construed to
excuse the
Issuing Bank from liability to the Borrower to the extent of any
direct damages
(as opposed to consequential or punitive damages, claims in respect
of which are
hereby waived by the Borrower to the extent permitted by applicable
law)
suffered by the Borrower that are caused by the Issuing Bank's
failure to
exercise care when determining whether drafts and other documents
presented
under a Letter of Credit comply with the terms thereof. The parties
hereto
expressly agree that, in the absence of gross negligence or willful
misconduct
on the part of the Issuing Bank (as determined by a court of
competent
jurisdiction), the Issuing Bank shall be deemed to have exercised
care in each
such determination. In furtherance of the foregoing and without
limiting the
generality thereof, the parties agree that, with respect to
documents presented
that appear on their face to be in substantial compliance
42
with the terms of a Letter of Credit, the Issuing Bank may, in its
sole
discretion, either accept and make payment upon such documents
without
responsibility for further investigation, regardless of any notice
or
information to the contrary, or refuse to accept and make payment
upon such
documents if such documents are not in strict compliance with the
terms of such
Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall,
promptly following
its receipt thereof, examine all documents purporting to represent
a demand for
payment under a Letter of Credit. The Issuing Bank shall promptly
notify the
Administrative Agent and the Borrower by telephone (confirmed by
telecopy) of
such demand for payment and whether the Issuing Bank has made or
will make an LC
Disbursement thereunder, provided that any failure to give or delay
in giving
such notice shall not relieve the Borrower of its obligation to
reimburse the
Issuing Bank and the Revolving Lenders with respect to any such LC
Disbursement
in accordance with paragraph (e) of this Section.
(h) Interim Interest. If the Issuing Bank shall make any
LC
Disbursement, then, unless the Borrower shall reimburse such LC
Disbursement in
full on the date such LC Disbursement is made, the unpaid amount
thereof shall
bear interest, for each day from and including the date such LC
Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR
Revolving Loans,
provided that, if the Borrower fails to reimburse such LC
Disbursement when due
pursuant to paragraph (e) of this Section, then Section 2.13(c)
shall apply.
Interest accrued pursuant to this paragraph shall be for the
account of the
Issuing Bank, except that interest accrued on and after the date of
payment by
any Revolving Lender pursuant to paragraph (e) of this Section to
reimburse the
Issuing Bank shall be for the account of such Lender to the extent
of such
payment.
(i) Replacement of the Issuing Bank. The Issuing Bank may
be replaced
at any time by written agreement among the Borrower, the
Administrative Agent
and the successor Issuing Bank. Any successor Issuing Bank must be
a Lender or
an Affiliate of a Lender. The Administrative Agent shall notify the
Lenders of
any such replacement of the Issuing Bank. At the time any such
replacement shall
become effective, the Borrower shall pay all unpaid fees accrued
for the account
of the replaced Issuing Bank pursuant to Section 2.12(b). From and
after the
effective date of any such replacement, (i) the successor Issuing
Bank shall
have all the rights and obligations of the Issuing Bank under this
Agreement
with respect to Letters of Credit to be issued thereafter and (ii)
references
herein to the term "Issuing Bank" shall be deemed to refer to such
successor or
to any previous Issuing Bank, or to such successor and all previous
Issuing
Banks, as the context shall require. After the replacement of the
Issuing Bank
hereunder, the replaced Issuing Bank shall remain a party hereto
and shall
continue to have all the rights and obligations of the Issuing Bank
under this
Agreement with respect to Letters of Credit issued by it prior to
such
replacement, but shall not be required to issue additional Letters
of Credit.
(j) Cash Collateralization. If any Event of Default shall
occur and be
continuing, on the Business Day that the Borrower receives notice
from the
Administrative Agent or the Required Lenders (or, if the maturity
of the Loans
has been
43
accelerated, Revolving Lenders with LC Exposure representing
greater than 50% of
the aggregate LC Exposure) demanding the deposit of cash collateral
pursuant to
this paragraph, the Borrower shall deposit in an account with the
Collateral
Agent, in the name of the Collateral Agent and for the benefit of
the Lenders,
an amount in cash equal to the LC Exposure as of such date plus any
accrued and
unpaid interest thereon, provided that the obligation to deposit
such cash
collateral shall become effective immediately, and such deposit
shall become
immediately due and payable, without demand or other notice of any
kind, upon
the occurrence of any Event of Default with respect to the Borrower
described in
paragraph (h) or (i) of Section 7.01. The Borrower also shall
deposit cash
collateral pursuant to this paragraph as and to the extent required
by Section
2.11(b). Each such deposit shall be held by the Collateral Agent as
collateral
for the payment and performance of the obligations of the Borrower
under this
Agreement. The Collateral Agent shall have exclusive dominion and
control,
including the exclusive right of withdrawal, over such account.
Other than any
interest earned on the investment of such deposits (which
investments shall be
made (i) at the option and sole discretion of (A) for so long as an
Event of
Default shall be continuing, the Administrative Agent and (B) at
any other time,
the Borrower, (ii) in Permitted Investments and (iii) at the
Borrower's risk and
expense), such deposits shall not bear interest. Interest or
profits, if any, on
such investments shall accumulate in such account. Moneys in such
account shall
be applied by the Administrative Agent to reimburse the Issuing
Bank for LC
Disbursements for which it has not been reimbursed and, to the
extent not so
applied, shall be held for the satisfaction of the reimbursement
obligations of
the Borrower for the LC Exposure at such time or, if the maturity
of the Loans
has been accelerated (but subject to the consent of Revolving
Lenders with LC
Exposure representing greater than 50% of the aggregate LC
Exposure), be applied
to satisfy other obligations of the Borrower under this Agreement.
If the
Borrower is required to provide an amount of cash collateral
hereunder as a
result of the occurrence of an Event of Default, such amount (to
the extent not
applied as aforesaid) shall be returned to the Borrower within
three Business
Days after all Events of Default have been cured or waived. If the
Borrower is
required to provide an amount of cash collateral pursuant to this
paragraph as
required by Section 2.11(b), such amount (to the extent not applied
as
aforesaid) shall be returned to the Borrower as and to the extent
that, after
giving effect to such return, the Borrower would remain in
compliance with
Section 2.11(b) and no Event of Default shall have occurred and be
continuing.
SECTION 2.06. Funding of Borrowings. (a) Each Lender shall
make each
Loan to be made by it hereunder on the proposed date thereof by
wire transfer of
immediately available funds by 12:00 noon, New York City time, to
the account of
the Administrative Agent most recently designated by it for such
purpose by
notice to the Lenders, provided that Swingline Loans shall be made
as provided
in Section 2.04. The Administrative Agent will make such Loans
available to the
Borrower by promptly crediting the amounts so received, in like
funds, to an
account of the Borrower maintained with the Administrative Agent in
New York
City and designated by the Borrower in the applicable Borrowing
Request,
provided that ABR Revolving Loans made to finance the reimbursement
of an LC
Disbursement as provided in Section 2.05(e) shall be remitted by
the
Administrative Agent to the Issuing Bank.
44
(b) Unless the Administrative Agent shall have received
notice from a
Lender prior to the proposed date of any Borrowing that such Lender
will not
make available to the Administrative Agent such Lender's share of
such
Borrowing, the Administrative Agent may assume that such Lender has
made such
share available on such date in accordance with paragraph (a) of
this Section
and may, in reliance upon such assumption, make available to the
Borrower a
corresponding amount. In such event, if a Lender has not in fact
made its share
of the applicable Borrowing available to the Administrative Agent,
then the
applicable Lender and the Borrower severally agree to pay to the
Administrative
Agent forthwith on demand such corresponding amount with interest
thereon, for
each day from and including the date such amount is made available
to the
Borrower to but excluding the date of payment to the Administrative
Agent, at
(i) in the case of such Lender, the greater of the Federal Funds
Effective Rate
and a rate determined by the Administrative Agent in accordance
with banking
industry rules on interbank compensation or (ii) in the case of the
Borrower,
the interest rate applicable to ABR Loans. If such Lender pays such
amount to
the Administrative Agent, then such amount shall constitute such
Lender's Loan
included in such Borrowing.
SECTION 2.07. Interest Elections. (a) Each Revolving
Borrowing and
Tranche B Term Borrowing initially shall be of the Type specified
in the
applicable Borrowing Request and, in the case of a Eurodollar
Borrowing, shall
have an initial Interest Period as specified in such Borrowing
Request or as
designated by Section 2.03. Thereafter, the Borrower may elect to
convert such
Borrowing to a different Type or to continue such Borrowing and, in
the case of
a Eurodollar Borrowing, may elect Interest Periods therefor, all as
provided in
this Section. The Borrower may elect different options with respect
to different
portions of the affected Borrowing, in which case each such portion
shall be
allocated ratably among the Lenders holding the Loans comprising
such Borrowing,
and the Loans comprising each such portion shall be considered a
separate
Borrowing. This Section shall not apply to Swingline Borrowings,
which may not
be converted or continued.
(b) To make an election pursuant to this Section, the
Borrower shall
notify the Administrative Agent of such election by telephone by
the time that a
Borrowing Request would be required under Section 2.03 if the
Borrower were
requesting a Revolving Borrowing of the Type resulting from such
election to be
made on the effective date of such election. Each such telephonic
Interest
Election Request shall be irrevocable and shall be confirmed
promptly by hand
delivery or telecopy to the Administrative Agent of a written
Interest Election
Request signed by the Borrower.
(c) Each telephonic and written Interest Election Request
shall specify
the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election
Request
applies and, if different options are being elected with
respect to
different portions thereof, the portions thereof to be
allocated to
each resulting Borrowing (in which case the information to
be specified
pursuant to clauses (iii) and (iv) below shall be
specified for each
resulting Borrowing);
45
(ii) the effective date of the election made
pursuant to such
Inter
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