<PAGE>
EXHIBIT 10.1
EXECUTION COPY
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FOURTH AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of December 17, 2004,
Among
TRW AUTOMOTIVE HOLDINGS CORP.,
TRW AUTOMOTIVE INTERMEDIATE HOLDINGS CORP.,
TRW AUTOMOTIVE INC. (f/k/a
TRW AUTOMOTIVE ACQUISITION CORP.),
THE FOREIGN SUBSIDIARY BORROWERS PARTY HERETO,
THE LENDERS PARTY HERETO,
JPMORGAN CHASE BANK, N.A.
(f/k/a JPMORGAN CHASE BANK),
as Administrative Agent,
BANK OF AMERICA, N.A. and
GOLDMAN SACHS CREDIT PARTNERS L.P.,
as Co-Syndication Agents,
and
CREDIT SUISSE FIRST BOSTON and
THE BANK OF NOVA SCOTIA,
as Co-Documentation Agents
--------------
J.P. MORGAN SECURITIES INC. and BANC OF
AMERICA SECURITIES LLC,
as Lead Arrangers
and
J.P. MORGAN SECURITIES INC., BANC OF
AMERICA SECURITIES LLC and
GOLDMAN SACHS CREDIT PARTNERS L.P.,
as Joint Bookrunners
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TABLE OF CONTENTS
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ARTICLE I
Definitions
SECTION 1.01.
Defined
Terms..........................................................
5
SECTION 1.02.
Terms
Generally........................................................
78
SECTION 1.03.
Exchange
Rates.........................................................
79
SECTION 1.04.
Redenomination of Certain Foreign
Currencies........................... 79
SECTION 1.05.
Effectuation of
Transfers..............................................
80
ARTICLE II
The Credits
SECTION 2.01.
Commitments............................................................
80
SECTION 2.02.
Loans and
Borrowings...................................................
82
SECTION 2.03.
Requests for
Borrowings................................................
84
SECTION 2.04.
Swingline
Loans........................................................
85
SECTION 2.05.
Letters of
Credit......................................................
89
SECTION 2.06.
Funding of
Borrowings..................................................
93
SECTION 2.07.
Interest
Elections.....................................................
99
SECTION 2.08.
Termination and Reduction of
Commitments............................... 101
SECTION 2.09.
Repayment of Loans; Evidence of
Debt................................... 102
SECTION 2.10.
Repayment of Term Loans and Revolving
Loans............................ 104
SECTION 2.11.
Prepayment of
Loans.................................................... 110
SECTION 2.12.
Fees...................................................................
111
SECTION 2.13.
Interest...............................................................
114
SECTION 2.14.
Alternate Rate of
Interest............................................. 115
SECTION 2.15.
Increased
Costs........................................................
116
SECTION 2.16.
Break Funding
Payments................................................. 118
SECTION 2.17.
Taxes..................................................................
119
SECTION 2.18.
Payments Generally; Pro Rata Treatment; Sharing of
Set-offs............ 120
SECTION 2.19.
Mitigation Obligations; Replacement of
Lenders......................... 121
SECTION 2.20.
Foreign Subsidiary Loan
Parties........................................ 125
SECTION 2.21. Additional
Reserve Costs...............................................
125
SECTION 2.22.
Ancillary
Facilities...................................................
126
SECTION 2.23.
Incremental Extensions of
Credit....................................... 133
ARTICLE III
Representations and Warranties
SECTION 3.01.
Organization;
Powers................................................... 135
SECTION 3.02.
Authorization..........................................................
135
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SECTION 3.03.
Enforceability.........................................................
136
SECTION 3.04.
Governmental
Approvals................................................. 136
SECTION 3.05.
Financial
Statements...................................................
136
SECTION 3.06.
No Material Adverse Change or Material Adverse
Effect.................. 137
SECTION 3.07.
Title to Properties; Possession Under
Leases........................... 137
SECTION 3.08.
Subsidiaries...........................................................
138
SECTION 3.09.
Litigation; Compliance with
Laws....................................... 139
SECTION 3.10.
Federal Reserve
Regulations............................................ 139
SECTION 3.11.
Investment Company Act; Public Utility Holding Company
Act............. 140
SECTION 3.12.
Use of
Proceeds........................................................
140
SECTION 3.13.
Tax
Returns............................................................
140
SECTION 3.14.
No Material
Misstatements.............................................. 141
SECTION 3.15.
Employee Benefit
Plans................................................. 141
SECTION 3.16.
Environmental
Matters.................................................. 142
SECTION 3.17.
Security
Documents.....................................................
143
SECTION 3.18.
Location of Real Property and Leased
Premises.......................... 144
SECTION 3.19.
Solvency...............................................................
145
SECTION 3.20.
Labor
Matters..........................................................
146
SECTION 3.21.
Insurance..............................................................
146
ARTICLE IV
Conditions
SECTION 4.01.
Effectiveness of Restated Credit
Agreement............................. 146
SECTION 4.02.
All Credit
Events......................................................
149
SECTION 4.03.
Credit Events Relating to Foreign Subsidiary
Borrowers................. 150
ARTICLE V
Affirmative Covenants
SECTION 5.01.
Existence; Businesses and
Properties................................... 151
SECTION 5.02.
Insurance..............................................................
152
SECTION 5.03.
Taxes..................................................................
153
SECTION 5.04.
Financial Statements, Reports, etc. Furnish to the
Administrative
Agent (which will furnish such information to the
Lenders):.......... 155
SECTION 5.05.
Litigation and Other
Notices........................................... 158
SECTION 5.06.
Compliance with
Laws................................................... 158
SECTION 5.07.
Maintaining Records; Access to Properties and
Inspections.............. 158
SECTION 5.08.
Use of
Proceeds........................................................
159
SECTION 5.09.
Compliance with Environmental
Laws..................................... 159
SECTION 5.10.
Further Assurances; Additional
Mortgages............................... 159
SECTION 5.11.
Fiscal Year;
Accounting................................................ 162
SECTION 5.12.
[Intentionally
Omitted]................................................ 162
SECTION 5.13.
Proceeds of Certain
Dispositions....................................... 162
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SECTION 5.14.
Post Restatement Effective Date
Matters................................ 163
SECTION 5.15.
Collateral
Release.....................................................
163
ARTICLE VI
Negative Covenants
SECTION 6.01.
Indebtedness...........................................................
165
SECTION 6.02.
Liens..................................................................
168
SECTION 6.03.
Sale and Lease-Back
Transactions....................................... 171
SECTION 6.04.
Investments, Loans and
Advances........................................ 171
SECTION 6.05.
Mergers, Consolidations, Sales of Assets and
Acquisitions.............. 174
SECTION 6.06.
Dividends and
Distributions............................................ 177
SECTION 6.07.
Transactions with
Affiliates........................................... 179
SECTION 6.08.
Business of Holdings, Intermediate Holdings, the U.S. Borrower
and
the
Subsidiaries.....................................................
181
SECTION 6.09.
Limitation on Modifications of Indebtedness; Modifications of
Certificate of Incorporation, By-Laws and Certain Other
Agreements;
etc...................................................... 182
SECTION 6.10.
[Intentionally
Omitted.]............................................... 184
SECTION 6.11.
Interest Coverage
Ratio................................................ 185
SECTION 6.12.
Leverage
Ratio.........................................................
185
SECTION 6.13.
Swap
Agreements........................................................
186
ARTICLE VII
Events of Default
SECTION 7.01.
Events of
Default......................................................
186
SECTION 7.02.
Exclusion of Immaterial
Subsidiaries................................... 187
SECTION 7.03.
U.S. Borrower's Right to
Cure.......................................... 187
ARTICLE VIII
The Agents
SECTION 8.01.
Appointment............................................................
191
SECTION 8.02.
Nature of
Duties.......................................................
193
SECTION 8.03.
Resignation by the
Agents.............................................. 194
SECTION 8.04.
Each Agent in its Individual
Capacity.................................. 194
SECTION 8.05.
Indemnification........................................................
194
SECTION 8.06.
Lack of Reliance on
Agents............................................. 195
SECTION 8.07.
Designation of Affiliates for Foreign Currency
Loans................... 195
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ARTICLE IX
Miscellaneous
SECTION 9.01.
Notices...............................................................
196
SECTION 9.02.
Survival of
Agreement.................................................
197
SECTION 9.03.
Binding
Effect........................................................
197
SECTION 9.04.
Successors and
Assigns................................................
198
SECTION 9.05.
Expenses;
Indemnity...................................................
202
SECTION 9.06.
Right of
Set-off......................................................
205
SECTION 9.07.
Applicable
Law........................................................
205
SECTION 9.08.
Waivers;
Amendment....................................................
205
SECTION 9.08A
Amendment
Fees........................................................
207
SECTION 9.09.
Interest Rate
Limitation..............................................
208
SECTION 9.10.
Entire
Agreement......................................................
208
SECTION 9.11.
WAIVER OF JURY
TRIAL..................................................
208
SECTION 9.12.
Severability..........................................................
208
SECTION 9.13.
Counterparts..........................................................
209
SECTION 9.14.
Headings..............................................................
209
SECTION 9.15.
Jurisdiction; Consent to Service of
Process........................... 209
SECTION 9.16.
Confidentiality.......................................................
210
SECTION 9.17.
Conversion of
Currencies..............................................
210
SECTION 9.18.
USA PATRIOT
Act.......................................................
211
ARTICLE X
Ancillary Facility Adjustments
SECTION 10.01.
Exchange of Interests in Ancillary
Facilities......................... 211
ARTICLE XI
Collection Allocation Mechanism
SECTION 11.01.
Implementation of
CAM................................................. 213
SECTION 11.02.
Letters of Credit and Unfunded Ancillary Credit
Extensions............
215
SECTION 11.03.
Existing Credit Agreement; Effectiveness of this
Agreement............
217
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Exhibits and Schedules
Exhibit A
Form of Assignment and Acceptance
Exhibit B
Form of Administrative Questionnaire
Exhibit C-1
Form of Borrowing Request
Exhibit C-2
Form of Swingline Borrowing Request
Exhibit D
Form of U.S. Mortgage
Exhibit E
Form of U.S. Collateral Agreement
Exhibit F
Form of Foreign Guarantee
Exhibit G
Form of Finco Guarantee
Exhibit H
[Intentionally Omitted]
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5
Exhibit I
[Intentionally Omitted]
Exhibit J
[Intentionally Omitted]
Exhibit K-1
Form of Foreign Subsidiary Borrower Agreement
Exhibit K-2
Form of Foreign Subsidiary Borrower Termination
Exhibit L
Reserve Costs for Mandatory Costs Rate
Exhibit M
[Intentionally Omitted]
Exhibit N
Form of Acceptable Letter of Credit
Exhibit O
Form of Opinion of Simpson Thacher & Bartlett LLP
Exhibit P
Form of Reaffirmation Agreement
Schedule 1.01(a) Acquired Foreign
Subsidiaries
Schedule 1.01(b) Foreign
Acquirors, Foreign Acquiror Equity Contributions
and Foreign Acquiror Loans
Schedule 1.01(c) Restatement
Effective Date Ancillary Facilities
Schedule 1.01(d) Foreign Pledge
Agreements
Schedule 1.01(e) Foreign
Subsidiary Loan Parties
Schedule 1.01(f) Ancillary
Facility Limits
Schedule 1.01(g)
Collateral and
Guarantee Requirement
Schedule 1.01(h) Certain U.S.
Subsidiaries
Schedule 1.01(i) Restatement
Effective Date Foreign Subsidiary Borrower
Agreements
Schedule 2.01
Commitments
Schedule 2.04(a) Swingline Dollar
Commitments
Schedule 2.04(b) Swingline
Foreign Currency Commitments
Schedule 3.01
Organization and Good Standing
Schedule 3.04
Governmental Approvals
Schedule 3.08(b) Subsidiaries
Schedule 3.08(c)
Subscriptions
Schedule 3.09
Litigation
Schedule 3.13
Taxes
Schedule 3.18
Mortgaged Properties
Schedule 3.20
Labor Matters
Schedule 3.21
Insurance
Schedule 4.01
Restatement Effective Date Collateral Matters
Schedule 5.14
Post Restatement Effective Date Collateral Matters
Schedule 6.02
Liens
Schedule 6.03
Sale and Lease-Back Transactions
Schedule 6.04(h) Existing
Investments
Schedule 6.07
Transactions with Affiliates
<PAGE>
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT dated
as of December 17, 2004 (this "Agreement"), among TRW
AUTOMOTIVE HOLDINGS CORP., a Delaware corporation
("Holdings"), TRW AUTOMOTIVE INTERMEDIATE HOLDINGS
CORP., a Delaware corporation ("Intermediate Holdings"),
TRW AUTOMOTIVE INC. (f/k/a TRW AUTOMOTIVE ACQUISITION
CORP.), a Delaware corporation (the "U.S. Borrower"),
the FOREIGN SUBSIDIARY BORROWERS party hereto, the
LENDERS party hereto from time to time, JPMORGAN CHASE
BANK, N.A. (f/k/a JPMORGAN CHASE BANK), as
administrative agent (in such capacity, the
"Administrative Agent"), and as collateral agent (in
such capacity, the "Collateral Agent") for the Lenders,
BANK OF AMERICA, N.A. and GOLDMAN SACHS CREDIT PARTNERS
L.P., each as co-syndication agent (in such capacity, a
"Co-Syndication Agent"), and CREDIT SUISSE FIRST BOSTON
and THE BANK OF NOVA SCOTIA, each as co-documentation
agent (in such capacity, a "Co-Documentation Agent").
Pursuant to or in connection with the Purchase Agreement (with
such term and each other capitalized term used but not defined in
this preamble
having the meaning assigned thereto in Article I), (a) the Equity
Contributions
were made, (b) the financing transactions described in this
preamble were
consummated, (c) the Finco Equity Contribution, the Finco Loan, the
Newco UK
Equity Contribution, the Newco UK Loan, the Foreign Acquiror
Equity
Contributions and the Foreign Acquiror Loans were consummated, (d)
the Stock
Purchases were consummated, and (e) fees and expenses (the
"Transaction Costs")
incurred in connection with the foregoing were paid.
On the Closing Date, (a) Automotive Investors L.L.C., a
Delaware limited liability company ("AILLC") and a Fund Affiliate,
the
Management Group and the Management Equity Vehicle together,
contributed not
less than $500,000,000 in cash to Holdings in exchange for not less
than 500,000
shares of Holdings Common Stock (the "Holdings Equity
Contribution"), (b)
Holdings contributed (i) the proceeds of the Holdings Equity
Contribution and
(ii) a number of shares of Holdings Common Stock (the "Stock
Consideration"),
that taken together with the shares issued pursuant to the Holdings
Equity
Contribution had an implied value of not less than $868,000,000, to
Intermediate
Holdings, in exchange for all the issued and outstanding Equity
Interests of
Intermediate Holdings (the "Intermediate Holdings Equity
Contribution"), (c)
Intermediate Holdings contributed to the U.S.
<PAGE>
2
Borrower in exchange for all the issued and outstanding Equity
Interests of the
U.S. Borrower (i) the cash proceeds of the Intermediate Holdings
Equity
Contribution, (ii) the Stock Consideration and (iii) 62.7% shares
of LucasVarity
Holdings purchased by Intermediate Holdings from a subsidiary of
Northrop Space
and Mission in exchange for the Seller Note and (d) the U.S.
Borrower
contributed $10,000,000 in cash to Automotive (LV) Corp. in
exchange for all the
issued and outstanding Equity Interests of Automotive (LV) Corp.
(the steps
described in clauses (a)-(d) of this paragraph together, the
"Equity
Contributions").
On February 18, 2003, the U.S. Borrower issued and sold in
offerings pursuant to Rule 144A under the Securities Act of 1933
(the
"Securities Act") and Regulation S under the Securities Act (a)
Senior Notes
having an aggregate principal amount of $925,000,000, (b) Senior
Notes having an
aggregate principal amount of (euro)200,000,000, (c) Senior
Subordinated Notes
having an aggregate principal amount of $300,000,000 and (d) Senior
Subordinated
Notes having an aggregate principal amount of
(euro)125,000,000.
Simultaneously with the consummation of the Equity
Contributions, (a) the U.S. Borrower obtained, and made Borrowings
in an
aggregate amount the Dollar Equivalent of which is not in excess
of
$1,544,000,000 under, the senior secured credit facilities provided
for by the
Original Credit Agreement, (b) the U.S. Borrower made the
Management Equity Loan
and (c) the U.S. Borrower and certain of the Subsidiaries obtained
$150,000,000
in proceeds under the Permitted Receivables Financing.
Prior to the consummation of the transactions described in the
immediately preceding sentence, the U.S. Borrower contributed
(euro)12,500 in
cash to Finco in exchange for all of the issued and outstanding
Equity Interests
of Finco (the "Finco Equity Contributions"). Concurrently with the
consummation
of the transactions described in the immediately preceding
paragraph, (a) the
U.S. Borrower (i) made the Foreign Acquiror Equity Contributions
and the Finco
Loan and (ii) contributed no more than $12,000,000 to Automotive
Holdings (UK),
Ltd. ("Newco UK") in exchange for all the issued and outstanding
Equity
Interests of Newco UK (the "Newco UK Equity Contribution") and made
the Newco UK
Loan, (b) Finco used the proceeds of the Finco Loan to make the
Foreign Acquiror
Loans, (c) the U.S. Borrower purchased from a subsidiary of
Northrop Space and
Mission all the issued and outstanding shares of LucasVarity
Holdings not
purchased by Intermediate Holdings (as described above) for
$356,510,000 in
cash, (d) (i) the Foreign Acquirors used the proceeds of the
Foreign Acquiror
Equity Contributions
<PAGE>
3
and the Foreign Acquiror Loans to purchase from subsidiaries of
Northrop Space
and Mission all the Equity Interests of the Acquired Foreign
Subsidiaries and
(ii) Newco UK used the proceeds of the Newco UK Equity Contribution
and the
Newco UK Loan to acquire 80.4% of the issued and outstanding
LucasVarity shares
and all the issued and outstanding Equity Interests in TRW UK Ltd
and all the
issued and outstanding Equity Interests of TRW INO Ltd., (e)
Automotive Holdings
(France) S.A.S. purchased no less than 90% of the Equity Interests
of TRW France
Holdings SAS from Lucas Investments, Limited in exchange for a
subordinated note
of Automotive Holdings (France) S.A.S. in an aggregate principal
amount of up to
$542,000,000, (f) Automotive (LV) Corp. purchased from a subsidiary
of Northrop
Space and Mission 1% of the issued and outstanding LucasVarity
shares for
$10,000,000 in cash, (g) the U.S. Borrower purchased from a
subsidiary of
Northrop Space and Mission (i) all the issued and outstanding
LucasVarity shares
not purchased by Automotive (LV) Corp. or Newco UK, and (ii) all
the issued and
outstanding shares of TRW Steering & Suspension Co. Ltd., TRW
Vehicle Safety
Systems and TRW Automotive JV LLC for $280,000,000 in cash and the
Stock
Consideration, (h) the U.S. Borrower purchased from a subsidiary of
Northrop
Space and Mission all the issued and outstanding Equity Interests
of TRW Auto
Holdings Inc. and TRW Automotive U.S. LLC for $1,126,000,000 in
cash (the steps
described in clauses (c)-(h) of this paragraph together, the "Stock
Purchases").
Following the consummation of the Stock Purchases, (i) the U.S.
Borrower
contributed to LucasVarity 1% of the Equity Interests of Finco
acquired by the
U.S. Borrower as described in clause (a) above and (j) the U.S.
Borrower
contributed to Newco UK all the LucasVarity shares purchased by
U.S. Borrower
(as described in clause (g) above) in exchange for 18.6% of the
issued and
outstanding shares of Newco UK.
The Borrowers borrowed (a) tranche A term loans on the Closing
Date, in an aggregate principal amount not in excess of
$410,000,000, (b)
tranche B-1 term loans on the Closing Date, in an aggregate
principal amount not
in excess of $1,030,000,000, and (c) tranche B-2 term loans on the
Closing Date
in an aggregate principal amount in Euros not in excess of
(euro)64,814,815.
The proceeds of such term loans were used by the U.S. Borrower
and the Subsidiaries on the Closing Date, together with (a) the
Equity
Contributions, (b) up to $12,000,000 in proceeds of U.S. Revolving
Facility
Loans, (c) the proceeds of the offering and sale of the Senior
Notes and the
Senior Subordinated Notes and (d) the proceeds of the initial sale
on the
Closing Date of accounts receivable and related assets under the
Permitted
Receivables Financing, solely (v) to make the Management Equity
Loan, (w) to
make the Finco Loan, (x) to make
<PAGE>
4
the Foreign Acquiror Loans and the Newco UK Loan, (y) to make the
Stock
Purchases and (z) to pay the Transaction Costs.
On July 22, 2003, Holdings, Intermediate Holdings, the U.S.
Borrower, the Administrative Agent and certain Lenders entered into
an Amendment
and Restatement Agreement (the "First Amendment and Restatement
Agreement")
pursuant to which the Original Credit Agreement was amended and
restated in its
entirety (as so amended and restated, the "First Amended and
Restated Credit
Agreement").
On January 9, 2004, Holdings, Intermediate Holdings, the U.S.
Borrower, the Administrative Agent and certain Lenders entered into
an Amendment
and Restatement Agreement (the "Second Amendment and Restatement
Agreement")
pursuant to which the First Amended and Restated Credit Agreement
was amended
and restated in its entirety (as so amended and restated, the
"Second Amended
and Restated Credit Agreement").
On February 6, 2004, Holdings completed an initial public
offering of 24,137,931 shares of its common stock (the "IPO") and
used the
proceeds therefrom to (a) repurchase 12,068,965 shares of its
common stock from
AILLC (the "IPO Repurchase Transaction") and (b) repay a portion of
its Senior
Notes and Senior Subordinated Notes (both as defined below) as
follows: (i)
approximately $117,000,000 of such proceeds to repay 35% of its
$300,000,000
aggregate principal amount of 11% Senior Subordinated Notes, (ii)
approximately
$61,000,000 of such proceeds to repay 35% of its (euro)125,000,000
aggregate
principal amount of 11.75% Senior Subordinated Notes, (iii)
approximately
$109,000,000 of such proceeds to repay approximately 11% of its
$925,000,000
aggregate principal amount of 9.375% Senior Notes and (iv)
approximately
$30,000,000 of such proceeds to repay approximately 11% of its
(euro)200,000,000
aggregate principal amount of 10.125% Senior Notes.
On November 2, 2004, Holdings, Intermediate Holdings, the U.S.
Borrower, the Administrative Agent and certain Lenders entered into
an Amendment
and Restatement Agreement (the "Third Amendment and Restatement
Agreement")
pursuant to which the Second Amended and Restated Credit Agreement
was amended
and restated in its entirety (as so amended and restated, the
"Existing Credit
Agreement").
The
Existing Credit Agreement provided for the Tranche E
Facility, the proceeds of which (together with cash on hand) were
utilized to
make the Intermediate Holdings Loan. On November 12, 2004,
Intermediate Holdings
utilized the proceeds of the Intermediate Holdings Loan to
repurchase the entire
outstanding principal amount of the Seller Note.
<PAGE>
5
Holdings, Intermediate Holdings, the U.S. Borrower and the
Required
Restatement Lenders desire to further amend and restate the
Existing Credit
Agreement as more fully described herein. Subject to the
satisfaction of the
conditions set forth herein, the Existing Credit Agreement shall be
amended and
restated as provided herein.
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any ABR Term Loan, ABR Revolving Loan or
Swingline Dollar Loan.
"ABR Revolving Borrowing" shall mean a Borrowing comprised of
ABR
Revolving Loans.
"ABR Revolving Loan" shall mean any Revolving Loan bearing
interest
at a rate determined by reference to the Alternate Base Rate in
accordance with
the provisions of Article II.
"ABR Term Loan" shall mean any Term Loan bearing interest at a
rate
determined by reference to the Alternate Base Rate in accordance
with the
provisions of Article II.
"Acceptable Letter of Credit" shall mean a letter of credit that
(a)
is issued to Lucas by a commercial bank whose long-term debt, or
whose parent
holding company's long-term debt, is rated A (or such similar
equivalent rating)
or higher by at least one nationally recognized statistical rating
organization
(as defined in Rule 436 under the Securities Act), (b) has a face
amount not
less than the outstanding principal amount of the Lucas Notes on
the date of
issuance of such letter of credit, (c) is in substantially the form
of Exhibit N
and (d) provides for drawing upon the earlier to occur of (i) the
date on which
Lucas is required by a judgment of a court of competent
jurisdiction to pay
amounts in respect of principal due under the Lucas Notes and (ii)
10 Business
Days prior to the stated termination date of such letter of credit
if such
letter of credit has not been replaced with a substantially
identical letter of
credit.
<PAGE>
6
"Acquired Foreign Subsidiaries" shall mean the Subsidiaries
specified on Schedule 1.01(a).
"Additional Mortgage" shall have the meaning provided in
Section
5.10(c).
"Adjusted LIBO Rate" shall mean, with respect to any
Eurocurrency
Borrowing for any Interest Period, an interest rate per annum
(rounded upwards,
if necessary, to the next 1/16 of 1%) equal to the product of (a)
the LIBO Rate
in effect for such Interest Period and (b) Statutory Reserves
applicable to such
Eurocurrency Borrowing, if any.
"Administrative Agent" shall have the meaning assigned to such
term
in the introductory paragraph of this Agreement.
"Administrative Agent Fees" shall have the meaning assigned to
such
term in Section 2.12(c).
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit B.
"Affiliate" shall mean, when used with respect to a specified
person, another person that directly, or indirectly through one or
more
intermediaries, Controls or is Controlled by or is under common
Control with the
person specified.
"Agents" shall mean the Administrative Agent and the Collateral
Agent.
"Aggregate Revolving Credit Exposure" shall mean the aggregate
amount of the Lenders' Revolving Credit Exposures and the Ancillary
Facility
Exposures.
"Agreement" shall have the meaning assigned to such term in the
introductory paragraph of this Agreement.
"Agreement Currency" shall have the meaning assigned to such term
in
Section 9.17(b).
"AILLC" shall have the meaning assigned to such term in the
preamble
to this Agreement.
"Alternate Base Rate" shall mean, 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%.
If for any
reason the Administrative Agent shall have determined (which
determination shall
be conclusive absent manifest error) that it is unable to ascertain
the Federal
Funds Effective Rate, including the failure of the Federal Reserve
Bank of New
York to publish rates or the
<PAGE>
7
inability of the Administrative Agent to obtain quotations in
accordance with
the terms thereof, the Alternate Base Rate shall be determined
without regard to
clause (b) of the preceding sentence until the circumstances giving
rise to such
inability no longer exist. Any change in the Alternate Base Rate
due to a change
in the Prime Rate or the Federal Funds Effective Rate shall be
effective on the
effective date of such change in the Prime Rate or the Federal
Funds Effective
Rate, respectively.
"Ancillary Commitment" shall mean, with respect to any
Ancillary
Lender, the maximum amount that such Ancillary Lender has agreed to
make
available from time to time during the Availability Period under
Ancillary
Facilities created pursuant to Section 2.22 by such Ancillary
Lender; provided
that at no time shall (a) the sum of (i) the Ancillary Commitment
of such
Ancillary Lender and (ii) the Available Unused Commitment of such
Ancillary
Lender exceed (b) the Global Revolving Facility Commitment of such
Ancillary
Lender.
"Ancillary Commitment Limit" shall mean $125,000,000; provided
that
the Ancillary Commitments with respect to the Ancillary Facilities
in the
jurisdictions set forth on Schedule 1.01(f) shall be limited to the
amounts set
forth opposite such jurisdictions on such Schedule.
"Ancillary Credit Extensions" shall mean Funded Ancillary
Credit
Extensions and Unfunded Ancillary Credit Extensions.
"Ancillary Facility" shall mean any facility or financial
accommodation (including any revolving, overdraft, foreign
exchange, guarantee,
letter of credit, bonding, credit card or automated payments
facility) made
available to a Foreign Subsidiary Borrower by a Global Revolving
Facility Lender
pursuant to Section 2.22.
"Ancillary Facility Document" shall mean, with respect to any
Ancillary Facility, the agreements between the applicable Foreign
Subsidiary
Borrower and the Ancillary Lender thereunder providing for such
Ancillary
Facility.
"Ancillary Facility Exposure" shall mean, at any time with
respect
to an Ancillary Facility made available by an Ancillary Lender, the
sum of the
Dollar Equivalents at such time of each of the following amounts
(as calculated
by such Ancillary Lender using the relevant Exchange Rate at such
time):
(a) the
aggregate principal amount under any overdraft, check
drawing or
other account facilities, determined on the same basis as that
for
determining any
<PAGE>
8
limit on
such facilities imposed by the terms of such Ancillary
Facility;
(b) the maximum
potential liability (excluding amounts
representing interest, fees and similar amounts) under all letters
of
credit,
guarantees and bonds then outstanding under such Ancillary
Facility;
(c) the
aggregate principal amount of loans outstanding
thereunder; and
(d) in the case
of any other facility or financial accommodation,
such other
amount as fairly represents the aggregate exposure of such
Ancillary
Lender under such facility or financial accommodation, as
reasonably
determined by such Ancillary Lender from time to time in
accordance
with its usual banking practice for facilities or
accommodations of such type.
"Ancillary Facility Repayment Amount" shall have the meaning
assigned to such term in Section 2.22(e)(ii).
"Ancillary Facility Termination Date" shall have the meaning
assigned to such term in Section 2.22(e)(i).
"Ancillary Lender" shall mean, with respect to an Ancillary
Facility, the Global Revolving Facility Lender that has made such
Ancillary
Facility available pursuant to Section 2.22.
"Ancillary Replacement Borrowing" shall mean a Global Revolving
Facility Borrowing made by an Eligible Borrower upon the
termination of an
Ancillary Facility pursuant to clause (ii) of the first sentence of
Section
2.22(e).
"Applicable Agent" shall mean (a) with respect to a Loan or
Borrowing denominated in Dollars or with respect to any payment
that does not
relate to any Loan or Borrowing, the Administrative Agent and (b)
with respect
to a Loan or Borrowing denominated in a Foreign Currency, a
Swingline Foreign
Currency Borrowing or Swingline Foreign Currency Loan, the
Administrative Agent
or an Affiliate thereof designated pursuant to Section 8.07.
"Applicable Creditor" shall have the meaning assigned to such
term
in Section 9.17(b).
"Applicable Margin" shall mean, for any day, with respect to
any
Loan that is a Tranche A Term Loan, Tranche A-1 Term Loan, Tranche
B Term Loan,
Tranche D-1 Term Loan, Tranche D-2 Term Loan, Tranche E Term Loan
or a Revolving
Loan, or with respect to the Commitment Fees payable hereunder
after
<PAGE>
9
the Effective Funding Time, as the case may be, the applicable
margin per annum
set forth below under the caption "Existing Revolving Loan ABR
Spread",
"Existing Revolving Loan Eurocurrency Spread", "New Revolving Loan
ABR Spread",
"New Revolving Loan Eurocurrency Spread", "Tranche A Term Loan ABR
Spread",
"Tranche A Term Loan Eurocurrency Spread", "Tranche A-1 Term Loan
ABR Spread",
"Tranche A-1 Term Loan Eurocurrency Spread", "Tranche D-1 Term Loan
ABR Spread",
"Tranche D-1 Term Loan Eurocurrency Spread", "Tranche D-2 Term Loan
Eurocurrency
Spread", "Tranche E Term Loan and Tranche B Term Loan ABR Spread",
"Tranche E
Term Loan and Tranche B Term Loan Eurocurrency Spread" or
"Commitment Fee Rate",
as applicable, based upon the Leverage Ratio or, with respect to
the Tranche A-1
Term Loans, Tranche D-1 Term Loans, Tranche D-2 Term Loans, Tranche
B Term Loans
and Tranche E Term Loans, the ratings assigned to the Facilities by
S&P and/or
Moody's as of the most recent determination date.
<PAGE>
10
Applicable Margins for Existing Revolving Loans
<TABLE>
<CAPTION>
Existing Revolving
Existing Revolving
Loan
Loan ABR
Eurocurrency
Leverage Ratio:
Spread
Spread
-------------------------
------------------
------------------
<S>
<C>
<C>
Category 1
Leverage Ratio greater than 4.375
to 1.00
3.25%
4.25%
Category 2
Leverage Ratio less
than or equal
to 4.375 to 1.00 but
greater than
3.00 to 1.00
2.50%
3.50%
Category 3
Leverage Ratio less than or equal
to 3.00 to 1.00 but greater than
2.50 to 1.00
2.00%
3.00%
Category 4
Leverage Ratio less than or equal
to 2.50 to 1.00 but greater than
2.00
to 1.00
1.50%
2.50%
Category 5
Leverage Ratio less than or equal
to 2.00 to 1.00
1.25%
2.25%
</TABLE>
Applicable Margins for New Revolving Loans,
Tranche A Term Loans and Commitment Fee Rates
<TABLE>
<CAPTION>
New Revolving Loan
New Revolving Loan and
Tranche A Term Loan
and Tranche A Term
Eurocurrency
Leverage Ratio:
Loan ABR Spread
Spread
Commitment Fee Rate
------------------------
------------------
----------------------- -------------------
<S>
<C>
<C>
<C>
Category 1
Leverage Ratio greater
than or
equal to
2.25 to 1.00
0.375%
1.375%
0.35%
Category 2
Leverage Ratio less
than 2.25 to
1.00 but greater than or equal to
2.00 to 1.00
0.25%
1.25%
0.30%
Category 3
Leverage Ratio less
than 2.00 to
1.00 but greater than or equal to
1.75 to 1.00
0.125%
1.125%
0.25%
</TABLE>
<PAGE>
11
<TABLE>
<CAPTION>
New Revolving Loan
New Revolving Loan and
Tranche A Term Loan
and Tranche A Term
Eurocurrency
Leverage Ratio:
Loan ABR Spread
Spread
Commitment Fee Rate
------------------------
------------------
----------------------- -------------------
<S>
<C>
<C>
<C>
Category 4
Leverage Ratio less
than 1.75 to
1.00
0.00%
1.00%
0.20%
</TABLE>
Applicable Margins for Tranche A-1 Term Loans,
Tranche D-1 Term Loans, Tranche D-2 Term Loans,
Tranche E Term Loans and Tranche B Term Loans
<TABLE>
<CAPTION>
Tranche E Tranche
E
Term Loan Term
Loan
Tranche A-1 Tranche A-1
Tranche D-1 Tranche D-2
and
and Tranche
Term
Term Loan Tranche D-1
Term Loan
Term Loan Tranche B
B
Term Loan
Leverage Ratio or Loan ABR
Euro-currency Term Loan Euro-currency
Euro-currency
Term Loan
Euro-currency
Ratings:
Spread
Spread ABR
Spread
Spread
Spread
ABR Spread Spread
----------------- -----------
-------------
-----------
-------------
-------------
----------
-------------
<S>
<C>
<C>
<C>
<C>
<C>
<C>
<C>
Category
1
Leverage Ratio
greater than 3.75
to 1.00
1.50%
2.50%
1.75%
2.75%
2.75%
0.75%
1.75%
Category
2
Leverage Ratio
less than or equal
to 3.75 to 1.00
but greater than
3.25 to 1.00
1.25%
2.25%
1.50%
2.50%
2.50%
0.75%
1.75%
Category
3
Leverage Ratio
less than or equal
to 3.25 to 1.00
but greater than
2.00 to 1.00
1.00%
2.00%
1.50%
2.50%
2.50%
0.75%
1.75%
Category
4
Leverage Ratio
less than or equal
to 2.00 to 1.00
OR
Ratings either BB+
or better by S&P
or Ba1 or better
by Moody's
0.75%
1.75%
1.25%
2.25%
2.25%
0.50%
1.50%
Category
5
Ratings both BB+
or better by S&P
and Ba1 or better
by Moody's
0.75%
1.75%
1.00%
2.00%
2.25%
0.50%
1.50%
</TABLE>
<PAGE>
12
For purposes of the foregoing, (a) the Leverage Ratio shall be
determined as of the end of each fiscal quarter of the U.S.
Borrower's fiscal
year based upon the consolidated financial information of the U.S.
Borrower and
the Subsidiaries delivered pursuant to Section 5.04(a) or (b) and
(b) each
change in the Applicable Margin resulting from a change in the
Leverage Ratio
shall be effective during the period commencing on and including
the first
Business Day after the date of delivery to the Administrative Agent
of such
consolidated financial information 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 (i) at any
time that an
Event of Default has occurred and is continuing or (ii) at the
option of the
Administrative Agent or at the request of the Required Lenders, if
the U.S.
Borrower fails to deliver the consolidated financial information
required to be
delivered pursuant to Section 5.04(a) or (b), during the period
from the
expiration of the time for delivery thereof until such consolidated
financial
information is delivered.
For purposes of the foregoing, (i) if either S&P or Moody's
shall
not have in effect a rating for the Facilities (other than by
reason of the
circumstances referred to in the following sentence), then such
rating agency
(or, if an Event of Default has occurred and is continuing, both
rating
agencies) will have deemed to have established a rating for the
Facilities that
is below BB+ (in the case of S&P) or below Ba1 (in the case of
Moody's) and (ii)
if any rating established or deemed to have been established by
S&P or Moody's
shall be changed (other than as a result of a change in the rating
system of
either S&P or Moody's), such change shall be effective as of
the date on which
such change is first announced by the rating agency making such
change. If the
rating system of S&P or Moody's shall change, or if either such
rating agency
shall cease to be in the business of rating corporate debt
obligations, the U.S.
Borrower and the Required Lenders shall negotiate in good faith to
amend this
definition to reflect such changed rating system or the
non-availability of
ratings from such rating agency and, pending the effectiveness of
any such
amendment, the rating of such rating agency shall be determined by
reference to
the rating most recently in effect from such rating agency prior to
such change
or cessation.
For purposes of the Tranche A-1 Term Loans, Tranche D-1 Term
Loans,
Tranche D-2 Term Loans, Tranche B Term Loans and Tranche E Term
Loans, in the
event the ratings established or deemed to have been established by
S&P or
Moody's for the Facilities and the Leverage Ratio shall fall in
different
<PAGE>
13
Categories, the Applicable Margin shall be determined by reference
to the
Category with the lower Applicable Margin.
"Applicant Party" shall mean, with respect to a Letter of
Credit,
the Borrower that requested such Letter of Credit.
"Approved Fund" shall have the meaning assigned to such term in
Section 9.04(b).
"Asset Disposition" shall mean any sale, transfer or other
disposition by Holdings, the U.S. Borrower or any of the
Subsidiaries to any
person other than a Borrower or any Subsidiary Loan Party of any
asset or group
of related assets in one or a series of related transactions, the
Net Proceeds
from which exceed $50,000,000.
"Assignment and Acceptance" shall mean an assignment and
acceptance
entered into by a Lender and an assignee, and accepted by the
Administrative
Agent and the U.S. Borrower, in the form of Exhibit A or such other
form as
shall be approved by the Administrative Agent.
"Automotive (LV) Corp." shall mean Automotive (LV) Corp., a
Delaware
corporation.
"Availability Period" shall mean the period from and including
the
Closing Date to but excluding the earlier of the Revolving Credit
Maturity Date
and (a) in the case of each of Global Revolving Facility Loans,
Global Revolving
Facility Borrowings, Swingline Foreign Currency Loans and Swingline
Foreign
Currency Borrowings, the date of termination of the Global
Revolving Facility
Commitments and (b) in the case of each of U.S. Revolving Facility
Loans, U.S.
Revolving Facility Borrowings, Swingline Dollar Borrowings and
Letters of
Credit, the date of termination of the U.S. Revolving Facility
Commitments.
"Available Intercompany Investment Amount" shall mean, at any
time
with respect to any investment, loan or Guarantee, (a) 10% of
Consolidated Total
Assets as of the end of the fiscal quarter immediately prior to the
date of such
investment, loan or Guarantee for which financial statements have
been delivered
pursuant to Section 5.04, minus (b) the sum of (x) the aggregate
amount of
investments made prior to such time by the Borrowers and the
Subsidiary Loan
Parties in Subsidiaries that are not Loan Parties pursuant to
Section 6.04(a)
(valued at the time of the making thereof without giving effect to
any
write-downs or write-offs thereof), (y) the aggregate amount of
intercompany
loans made prior to such time by the Borrowers and the Subsidiary
Loan Parties
in Subsidiaries that are not Loan Parties pursuant to
<PAGE>
14
Section 6.04(d) and (z) the aggregate amount of Guarantees provided
prior to
such time by the Borrowers and the Subsidiary Loan Parties in
respect of
obligations of Subsidiaries that are not Loan Parties pursuant to
Section
6.04(l), plus (c) the sum of (x) the aggregate amount of returns of
capital
received by the Borrowers and the Subsidiary Loan Parties in cash
prior to such
time in respect of investments made by them in Subsidiaries that
are not Loan
Parties pursuant to Section 6.04(a) or Section 6.04(h), (y) the
aggregate
principal amount of intercompany loans made by the Borrowers and
the Subsidiary
Loan Parties in Subsidiaries that are not Loan Parties pursuant to
Section
6.04(d) or Section 6.04(h) that have been repaid in cash or with
assets prior to
such time by Subsidiaries that are not Loan Parties to the
Borrowers and the
Subsidiary Loan Parties, provided that, with respect to the
repayment of
intercompany loans with assets pursuant to this clause (y), the
aggregate
principal amount of intercompany loans repaid for purposes of this
clause (y)
shall not exceed the fair market value of the assets of
Subsidiaries that are
not Loan Parties received by the Borrowers and the Subsidiary Loan
Parties in
respect of such repayments (as shall be specified in a certificate
delivered by
the chief financial officer of the U.S. Borrower to the
Administrative Agent at
the time of such repayment), and (z) the aggregate reduction prior
to such time
of Indebtedness of Subsidiaries that are not Loan Parties that had
been
Guaranteed by the Borrowers and the Subsidiary Loan Parties
pursuant to Section
6.04(l) or Section 6.04(h) (other than any such reduction in
Indebtedness funded
by the Borrowers and the Subsidiary Loan Parties).
"Available Unused Commitment" shall mean (a) with respect to
any
Global Revolving Facility Lender prior to the Effective Funding
Time, the
Existing Available Unused Commitment of such Global Revolving
Facility Lender
and (b) with respect to any Global Revolving Facility Lender at and
after the
Effective Funding Time, the New Available Unused Commitment of such
New Global
Revolving Facility Lender.
"Board" shall mean the Board of Governors of the Federal
Reserve
System of the United States of America.
"Borrowers" shall mean the U.S. Borrower and the Foreign
Subsidiary
Borrowers.
"Borrowing" shall mean a group of Loans of a single Type under
a
single Facility and made on a single date and, in the case of
Eurocurrency
Loans, as to which a single Interest Period is in effect.
<PAGE>
15
"Borrowing Minimum" shall mean (a) in the case of an ABR
Revolving
Borrowing, $5,000,000, (b) in the case of a Eurocurrency Revolving
Borrowing
denominated in Dollars, $5,000,000, (c) in the case of a Global
Revolving
Facility Borrowing denominated in a Foreign Currency, the smallest
amount of
such Foreign Currency that is a multiple of 1,000,000 units of such
Foreign
Currency and has a Dollar Equivalent in excess of $5,000,000, (d)
in the case of
a Swingline Dollar Borrowing, $500,000 and (e) in the case of a
Swingline
Foreign Currency Borrowing, the smallest amount of such Foreign
Currency that is
a multiple of 500,000 units of such Foreign Currency and has a
Dollar Equivalent
in excess of $1,000,000.
"Borrowing Multiple" shall mean (a) in the case of a Revolving
Borrowing denominated in Dollars, $1,000,000, (b) in the case of a
Swingline
Dollar Borrowing, $500,000 and (c) in the case of a Global
Revolving Facility
Borrowing denominated in a Foreign Currency or a Swingline Foreign
Currency
Borrowing, 100,000 units of such Foreign Currency.
"Borrowing Request" shall mean a request by a Borrower in
accordance
with the terms of Section 2.03 and substantially in the form of
Exhibit C-1.
"Business Day" shall mean 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 (a) when used in connection
with a
Eurocurrency Loan, the term "Business Day" shall also exclude any
day on which
banks are not open for dealings in deposits in the applicable
currency in the
London interbank market and (b) when used in connection with a Loan
denominated
in Euros, the term "Business Day" shall also exclude any day on
which the TARGET
payment system is not open for the settlement of payments in
Euro.
"Calculation Date" shall mean (a) the last Business Day of each
calendar month, (b) each date (with such date to be reasonably
determined by the
Administrative Agent) that is on or about the date of (i) a
Borrowing Request or
an Interest Election Request with respect to any Global Revolving
Facility Loan
denominated in a Foreign Currency, (ii) the issuance, amendment,
renewal or
extension of a Foreign Currency Letter of Credit or (iii) a request
for a
Swingline Foreign Currency Borrowing and (c) if an Event of Default
has occurred
and is continuing, any Business Day as determined by the
Administrative Agent in
its sole discretion.
"CAM" shall mean the mechanism for the allocation and exchange
of
interests in the Loans and extensions of credit under
<PAGE>
16
Ancillary Facilities, participations in Letters of Credit and
collections
thereunder established under Article XI.
"CAM Dollar Lender" shall mean each Lender other than a CAM
Euro
Lender.
"CAM Euro Lender" shall mean a Lender that has made or holds
only
Tranche D-2 Loans.
"CAM Exchange" shall mean the exchange of the Lenders'
interests
provided for in Section 11.01.
"CAM Exchange Date" shall mean the first date after the Closing
Date
on which there shall occur (a) any event described in paragraph (h)
or (i) of
Section 7.01 with respect to any Borrower or (b) an acceleration of
Loans
pursuant to Section 7.01.
"CAM Percentage" shall mean, as to each Lender, a fraction,
expressed as a decimal, of which (a) the numerator shall be the sum
of (i) the
Dollar Equivalent, determined using the Exchange Rates calculated
as of the CAM
Exchange Date, of the aggregate Obligations in respect of Loans
(other than
Swingline Loans) owed to such Lender, (ii) the Revolving L/C
Exposure, if any,
of such Lender, (iii) the Swingline Exposure, if any, of such
Lender, and (iv)
the Ancillary Facility Exposure, if any, of such Lender, in each
case
immediately prior to the CAM Exchange Date, and (b) the denominator
shall be the
sum of (i) the Dollar Equivalent, determined using the Exchange
Rates calculated
as of the CAM Exchange Date, of the aggregate Obligations in
respect of Loans
(other than Swingline Loans) owed to all the Lenders, (ii) the
aggregate
Revolving L/C Exposure of all the Lenders, (iii) the Swingline
Exposures of all
Lenders and (iv) the Ancillary Facility Exposures of all Lenders,
in each case
immediately prior to the CAM Exchange Date; provided that, for
purposes of
clause (a) above, the Obligations owed to a Swingline Lender will
be deemed not
to include any Swingline Loans except to the extent provided in
clause (a)(iii)
above.
"Capital Expenditures" shall mean, for any person in respect of
any
period, the aggregate of all expenditures incurred by such person
during such
period that, in accordance with GAAP, are or should be included in
"additions to
property, plant or equipment" or similar items reflected in the
statement of
cash flows of such person, provided, however, that Capital
Expenditures for the
U.S. Borrower and the Subsidiaries shall not include (a)
expenditures to the
extent they are made with the proceeds of the issuance of Equity
Interests of
Holdings after the Closing Date or with funds that would have
constituted Net
Proceeds under clause (a) of the definition of the term "Net
<PAGE>
17
Proceeds" (but that will not constitute Net Proceeds as a result of
the first
proviso to such clause (a)), (b) expenditures of proceeds of
insurance
settlements, condemnation awards and other settlements in respect
of lost,
destroyed, damaged or condemned assets, equipment or other property
to the
extent such expenditures are made to replace or repair such lost,
destroyed,
damaged or condemned assets, equipment or other property or
otherwise to
acquire, maintain, develop, construct, improve, upgrade or repair
assets or
properties useful in the business of the U.S. Borrower and the
Subsidiaries
within 12 months of receipt of such proceeds, (c) interest
capitalized during
such period, (d) expenditures that are accounted for as capital
expenditures of
such person and that actually are paid for by a third party
(excluding Holdings
or any subsidiary thereof) and for which neither 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, during or after such period), (e) the book value of any
asset owned by
such person 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
such person
reusing or beginning to reuse such asset during such period without
a
corresponding expenditure actually having been made in such period,
provided
that (i) 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 (ii) such book value shall have
been included
in Capital Expenditures when such asset was originally acquired,
(f) the
purchase price of equipment purchased during such period to the
extent the
consideration therefor consists of any combination of (i) used or
surplus
equipment traded in at the time of such purchase and (ii) the
proceeds of a
concurrent sale of used or surplus equipment, in each case, in the
ordinary
course of business and (g) investments in respect of a Permitted
Business
Acquisition.
"Capital Lease Obligations" of any person shall mean 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, for purposes hereof, the amount of such obligations at any
time shall be
the capitalized amount thereof at such time determined in
accordance with GAAP.
"Cash Interest Expense" shall mean, with respect to the U.S.
Borrower and the Subsidiaries on a consolidated basis for any
period, the sum of
Interest Expense of the U.S. Borrower and the Subsidiaries for such
period less
the sum of (a) pay-in-
<PAGE>
18
kind Interest Expense, (b) to the extent included in Interest
Expense (and
without duplication), the amortization of any financing fees paid
by, or on
behalf of, the U.S. Borrower or any of the Subsidiaries, including
such fees
paid in connection with the Restatement Transactions (including any
such fees
paid by Holdings from the proceeds of distributions from the U.S.
Borrower) and
(c) the amortization of debt discounts, if any, or fees in respect
of Swap
Agreements.
A "Change in Control" shall be deemed to occur if:
(a) at any time,
(i) Holdings shall fail to own directly,
beneficially and of record, 100% of the issued and outstanding
Equity
Interests
of Intermediate Holdings (or the surviving entity in any merger
of Intermediate
Holdings and the U.S. Borrower pursuant to Section
6.05(b)),
unless and until such time as Intermediate Holdings (or such
surviving
entity) is merged with Holdings pursuant to Section 6.05(b),
(ii)
Intermediate Holdings (or the surviving entity in any merger of
Intermediate Holdings and Holdings pursuant to Section 6.05(b))
shall fail
to own
directly, beneficially and of record, 100% of the issued and
outstanding Equity Interests of the U.S. Borrower, unless and until
such
time as
Intermediate Holdings (or such surviving entity) is merged with
the U.S.
Borrower pursuant to Section 6.05(b), (iii) a majority of the
seats
(other than vacant seats) on the board of directors of Holdings
shall at any
time be occupied by persons who were neither (A) nominated by
the board
of directors of Holdings or a Permitted Holder nor (B)
appointed
by
directors so nominated or (iv) a "Change in Control" shall occur
under
the Senior
Note Indentures or the Senior Subordinated Note Indentures;
(b) any person
or group (within the meaning of Rule 13d-5 of the
Securities
Exchange Act of 1934 as in effect on the Closing Date), other
than the
Permitted Holders or any combination of the Permitted Holders,
shall own
beneficially, directly or indirectly, in the aggregate Equity
Interests
representing at least 35% of the aggregate ordinary voting
power
represented by the issued and outstanding Equity Interests of
Holdings and
the
Permitted Holders own beneficially, directly or indirectly, a
smaller
percentage
of such ordinary voting power at such time than the Equity
Interests
owned by such other person or group.
"Change in Law" shall mean (a) the adoption of any law, rule or
regulation after the Closing Date, (b) any change in law, rule or
regulation or
in the interpretation or application thereof by any Governmental
Authority after
the Closing Date or
<PAGE>
19
(c) compliance by any Lender or Issuing Bank (or, for purposes of
Section
2.15(b), by any lending office of such Lender or by such Lender's
or 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 Closing Date.
"Charges" shall have the meaning assigned to such term in
Section
9.09.
"Closing Date" shall mean February 28, 2003.
"Code" shall mean the Internal Revenue Code of 1986, as amended
from
time to time.
"Co-Documentation Agent" shall have the meaning assigned to
such
term in the introductory paragraph to this Agreement.
"Collateral" shall mean all the "Collateral" as defined in any
Security Document and shall also include the Mortgaged
Properties.
"Collateral Agent" shall have the meaning given such term in
the
introductory paragraph of this Agreement.
"Collateral and Guarantee Requirement" shall mean the
requirement
that:
(a) the
Collateral Agent shall have received (i) from Holdings,
Intermediate Holdings, the U.S. Borrower and each Domestic
Subsidiary Loan
Party, a
counterpart of the U.S. Collateral Agreement duly executed and
delivered
on behalf of such person, (ii) from each Subsidiary listed on
Schedule
1.01(d), a counterpart of a Foreign Pledge Agreement with
respect
to the
amount of the Equity Interests of each Foreign Subsidiary
listed
opposite
such Subsidiary on such Schedule, duly executed and delivered
on
behalf of
such party, (iii) except as set forth on Schedule 1.01(g), from
each
Foreign Subsidiary Loan Party a counterpart of a Foreign
Security
Agreement
and a Foreign Mortgage, duly executed and delivered on behalf
of
such
Foreign Subsidiary, (iv) except as set forth on Schedule
1.01(g),
from each
Foreign Subsidiary Loan Party a counterpart of the Foreign
Guarantee,
duly executed and delivered on behalf of each such person, (v)
from
Finco, a counterpart of the Finco Guarantee and Foreign Pledge
Agreements, with respect to its interest in certain of the
Foreign
Acquiror
Notes, in each case, duly executed and delivered on behalf of
Finco and
(vi) from the U.S.
<PAGE>
20
Borrower
and each Domestic Subsidiary Loan Party thereto a counterpart
of
the
First-Tier Subsidiary Pledge Agreement, duly executed and delivered
on
behalf of
each such person;
(b) in the case
of any person that becomes a Domestic Subsidiary
Loan Party
after the Closing Date, the Collateral Agent shall have
received
from such subsidiary (i) a supplement to the U.S. Collateral
Agreement,
in the form specified therein, duly executed and delivered on
behalf of
such Domestic Subsidiary Loan Party, (ii) if such Subsidiary
owns
Equity Interests of a Foreign Subsidiary that, as a result the law
of
the
jurisdiction or organization of such Foreign Subsidiary, cannot
be
pledged to
the Collateral Agent under the U.S. Collateral Agreement, a
counterpart of a Foreign Pledge Agreement with respect to such
Equity
Interests
(provided that in no event shall more than 65% of the issued
and
outstanding voting Equity Interests of any Foreign Subsidiary,
other than
Finco, be
pledged to secure Obligations of the U.S. Borrower), duly
executed
and delivered on behalf of such Subsidiary and (iii) a
supplement
to the
First-Tier Subsidiary Pledge Agreement or a Foreign Pledge
Agreement,
as applicable, with respect to the portion that is not being
pledged
pursuant to clause (ii) above of the Equity Interests of a
Foreign
Subsidiary
owned by it, duly executed and delivered on behalf of such
Subsidiary;
(c) in the case
of any person that becomes a Foreign Subsidiary
Loan Party
after the Closing Date, the Collateral Agent shall have
received
(i) from such person (x) subject to clause (iii) of Section
5.10(f), a
counterpart of a Foreign Security Agreement and (if applicable)
a Foreign
Mortgage, duly executed and delivered on behalf of such person
and (y) a
supplement to the Foreign Guarantee, in the form specified
therein,
duly executed and delivered on behalf of such person and (ii)
from the
parent of such Foreign Subsidiary, a counterpart of a Foreign
Pledge
Agreement duly executed and delivered on behalf of such parent;
(d) all the
issued and outstanding Equity Interests (i) of (A)
Intermediate Holdings (or the surviving entity of any merger of
Intermediate Holdings and the U.S. Borrower pursuant to Section
6.05(b)),
until such
time as Intermediate Holdings (or such surviving entity) is
merged
with Holdings (or the surviving entity of any merger of
Intermediate Holdings and Holdings) pursuant to Section 6.05(b),
(B) the
U.S.
Borrower, until such time as the U.S. Borrower is merged with
Intermediate Holdings pursuant to Section 6.05(b), (C) each
Domestic
Subsidiary
<PAGE>
21
Loan
Party, (D) each Foreign Subsidiary Loan Party, (E) each Wholly
Owned
Subsidiary
directly owned by or on behalf of (1) the U.S. Borrower, (2) a
Subsidiary
listed on Schedule 1.01(e), (3) any Domestic Subsidiary Loan
Party or
(4) subject to clause (iii) of Section 5.10(f), any person that
becomes a
Foreign Subsidiary Loan Party after the Closing Date, (ii) of
any other
person owned on the Closing Date directly by or on behalf by
any
Loan
Party, subject to Section 5.10(h) and except to the extent that
a
pledge of
such Equity Interests would violate applicable law or a
contractual obligation binding upon such Equity Interests as of
the
Closing
Date and for so long as such restriction exists and (iii)
subject
to Section
5.10(h), that are acquired by a Loan Party after the Closing
Date,
shall have been pledged pursuant to the U.S. Collateral Agreement
or
a Foreign
Pledge Agreement, as applicable (provided that in no event
shall
more than
65% of the issued and outstanding voting Equity Interests of
any
Foreign
Subsidiary, other than Finco, be pledged to secure Obligations
of
the U.S.
Borrower), and the Collateral Agent shall have received all
certificates or other instruments (if any) representing such
Equity
Interests,
together with stock powers or other instruments of transfer
with
respect thereto endorsed in blank;
(e) all
Indebtedness of Holdings, Intermediate Holdings, the U.S.
Borrower
and each Subsidiary having an aggregate principal amount that
has
a Dollar
Equivalent in excess of $10,000,000 (other than intercompany
current
liabilities incurred in the ordinary course of business in
connection
with the cash management operations of the U.S. Borrower and
the
Subsidiaries) that is owing to any Loan Party shall be evidenced by
a
promissory
note or an instrument and shall have been pledged pursuant to
the U.S.
Collateral Agreement or a Foreign Pledge Agreement, as
applicable, and the Collateral Agent shall have received all
such
promissory
notes or instruments, together with note powers or other
instruments of transfer with respect thereto endorsed in blank;
(f) 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 Security Documents (in each case,
including
any
supplements thereto) and perfect such Liens to the extent required
by,
and with
the priority required by, the Security Documents, shall have
been
filed,
registered or recorded or delivered to the Collateral Agent for
filing,
registration or the recording concurrently with, or
<PAGE>
22
promptly
following, the execution and delivery of each such Security
Document;
(g) the
Collateral Agent shall have received (i) counterparts of
each
Mortgage to be entered into on the Closing Date 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, paid
for
by the
U.S. Borrower, issued by a nationally recognized title
insurance
company
insuring the Lien of each U.S. Mortgage specified on Schedule
3.18
as a valid
first Lien on the Mortgaged Property described therein, free of
any other
Liens except as permitted by Section 6.02 and Liens arising by
operation
of law, together with such endorsements, coinsurance and
reinsurance as the Collateral Agent may reasonably request, and
(iii) such
legal
opinions and other documents as the Collateral Agent may
reasonably
request
with respect to any such Mortgage or Mortgaged Property; and
(h) each Loan
Party shall have obtained (i) all consents and
approvals
required to be obtained by it in connection with (A) the
execution
and delivery of all Security Documents (or supplements thereto)
to which
it is a party and the granting by it of the Liens thereunder,
(B)
in the
case of each Domestic Subsidiary Loan Party, the performance of
its
obligations thereunder and (C) in the case of each Foreign
Subsidiary Loan
Party, the
performance of its obligations under the Foreign Guarantee and
(ii) in
the case of a Foreign Subsidiary Loan Party, all material
consents
and
approvals required to be obtained by it in connection with the
performance by it of its obligations under the Security Documents
(other
than the
Foreign Guarantee).
"Collateral Release Period" shall mean any period after the
repayment of all outstanding Tranche B Term Loans, Tranche E Term
Loans and, if
applicable, Incremental Extensions of Credit during which the
senior unsecured
debt obligations of the U.S. Borrower have Investment Grade Ratings
(determined
without regard to any form of credit enhancement). Each Collateral
Release
Period shall commence upon written notice by the U.S. Borrower to
the
Administrative Agent and shall terminate on the first date
following the
commencement of such Collateral Release Period on which the senior
unsecured
debt obligations of the U.S. Borrower cease to have Investment
Grade Ratings
(determined without regard to any form of credit enhancement).
"Commitment Fee" shall have the meaning assigned to such term
in
Section 2.12(a).
<PAGE>
23
"Commitments" shall mean, (a) with respect to any Lender, such
Lender's Global Revolving Facility Commitment, U.S. Revolving
Facility
Commitment, Tranche A Term Loan Commitment and Tranche B Term Loan
Commitment,
or any commitment in respect of any Incremental Extension of
Credit, and (b)
with respect to any Swingline Lender, its Swingline Dollar
Commitment or
Swingline Foreign Currency Commitment, as applicable.
"Consolidated Net Income" means, with respect to any person for
any
period, the aggregate of the Net Income of such person and its
subsidiaries for
such period, on a consolidated basis; provided, however, that (i)
any net
after-tax extraordinary gains or losses (less all fees and expenses
relating
thereto) shall be excluded, (ii) any net after-tax gains or losses
on disposal
of discontinued operations shall be excluded, (iii) any net
after-tax gains or
losses (less all fees and expenses relating thereto) attributable
to asset
dispositions other than in the ordinary course of business (as
determined in
good faith by the U.S. Borrower) shall be excluded, (iv) the Net
Income for such
period of any person that is not a subsidiary of such person, or
that is
accounted for by the equity method of accounting, shall be included
only to the
extent of the amount of dividends or distributions or other
payments paid in
cash (or to the extent converted into cash) to the referent person
or a
subsidiary thereof in respect of such period, (v) the Net Income
for such period
of any subsidiary of such person shall be excluded to the extent
that the
declaration or payment of dividends or similar distributions by
such subsidiary
of its Net Income is not at the date of determination permitted
without any
prior governmental approval (which has not been obtained) or,
directly or
indirectly, by the operation of the terms of its charter or any
agreement,
instrument, judgment, decree, order, statute, rule, or governmental
regulation
applicable to that subsidiary or its stockholders, unless such
restriction with
respect to the payment of dividends or in similar distributions has
been legally
waived, (vi) in the case of the U.S. Borrower, Consolidated Net
Income for such
period shall be decreased by the amount of all payments made during
such period
pursuant to Sections 6.06(b) and used by Holdings or Intermediate
Holdings to
make payments that reduce the Consolidated Net Income of Holdings
or
Intermediate Holdings, as applicable, for such period, (vii)
Consolidated Net
Income for such period shall not include the cumulative effect of a
change in
accounting principles during such period and (viii) Consolidated
Net Income for
such period shall be (x) increased by the amount of the net
after-tax premium
paid in respect of debt repurchases or redemptions during such
period and (y)
decreased by any net after-tax gains in respect of debt repurchases
or
redemptions during such period.
<PAGE>
24
"Consolidated Total Assets" shall mean, as of any date, the
total
assets of the U.S. Borrower and the consolidated Subsidiaries,
determined in
accordance with GAAP, as set forth on the consolidated balance
sheet of the U.S.
Borrower as of such date.
"Consolidated Total Debt" at any date shall mean the sum of
(without
duplication), (a) all Indebtedness consisting of Capital Lease
Obligations,
Indebtedness for borrowed money and Indebtedness in respect of the
deferred
purchase price of property or services of the U.S. Borrower and the
Subsidiaries
determined on a consolidated basis on such date plus (b) the
"Aggregate
Principal Balance" (as defined in the Receivables Loan Agreement)
or any
analogous term in any replacement or amendment of the Receivables
Loan Agreement
plus, (c) without duplication, the aggregate principal amount of
any financing
of, or Net Investment in, accounts receivable that constitutes a
Permitted
Receivables Financing.
"Control" shall mean 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 ownership of voting securities, by
contract or
otherwise, and "Controlling" and "Controlled" shall have meanings
correlative
thereto.
"Co-Syndication Agent" shall have the meaning assigned to such
term
in the introductory paragraph of this Agreement.
"Credit Event" shall have the meaning assigned to such term in
Article IV.
"Cumulative Net Income Amount" shall mean, at any time, an
amount
equal to (a) the product of (i) Consolidated Net Income for the
period (taken as
one accounting period) commencing January 1, 2005 to the end of the
most
recently completed fiscal quarter for which financial statements
are delivered
pursuant to Section 5.04 and (ii) 0.50, minus (b) the aggregate
amount of such
Consolidated Net Income that has been utilized, or committed to be
utilized,
prior to such time to purchase or redeem, or pay dividends or make
other
distributions in respect of, Equity Interests of Holdings pursuant
to Section
6.06(e)(ii), minus (c) the aggregate amount of such Consolidated
Net Income that
has been utilized, or committed to be utilized, prior to such time
to purchase,
redeem, retire or otherwise acquire Senior Notes, Senior
Subordinated Notes or
Permitted Notes Refinancing Indebtedness pursuant to clause (E)(2)
of Section
6.09(b)(i).
"Cure Amount" shall have the meaning provided in Section 7.03.
<PAGE>
25
"Cure Right" shall have the meaning provided in Section 7.03.
"Current Assets" shall mean, with respect to the U.S. Borrower
and
the Subsidiaries on a consolidated basis at any date of
determination, the sum
of (a) all assets (other than cash and Permitted Investments or
other cash
equivalents) that would, in accordance with GAAP, be classified on
a
consolidated balance sheet of the U.S. Borrower and the
Subsidiaries as current
assets at such date of determination, other than amounts related to
current or
deferred Taxes based on income or profits (including the Michigan
Single
Business Tax and similar Taxes) and (b) in the event that the
Permitted
Receivables Financing is accounted for off-balance sheet, (x) gross
accounts
receivable sold by the U.S. Borrower or any Subsidiary pursuant to
a Permitted
Receivables Financing less (y) collections against the amounts sold
pursuant to
clause (x).
"Current Liabilities" shall mean, with respect to the U.S.
Borrower
and the Subsidiaries on a consolidated basis at any date of
determination, all
liabilities that would, in accordance with GAAP, be classified on a
consolidated
balance sheet of the U.S. Borrower and the Subsidiaries as current
liabilities
at such date of determination, other than (a) the current portion
of any debt or
Capital Lease Obligations, (b) accruals of Interest Expense
(excluding Interest
Expense that is due and unpaid), (c) accruals for current or
deferred Taxes
based on income or profits (including the Michigan Single Business
Tax and
similar Taxes), (d) accruals, if any, of transaction costs
resulting from the
Transactions, (e) accruals of any costs or expenses related to (i)
severance or
termination of employees prior to the Closing Date or (ii) bonuses,
pension and
other post-retirement benefit obligations, (f) the current portion
of the
obligations of the U.S. Borrower and the Subsidiaries under the
Trust Agreement
between Lucas and Fidelity Management Trust dated as of October 1,
1995, with
respect to the Varity Automotive Inc. Deferred Compensation Plan
and the Varity
Automotive Inc. Deferred Compensation Trust Agreement dated as of
November 1,
1997, with respect to the Varity Automotive Supplemental
Compensation and
Deferred Compensation Plan and (g) accruals for add-backs to EBITDA
included in
clauses (a)(v) through (a)(ix) of paragraph (B) of the definition
of such term.
"Debt Service" shall mean, with respect to the U.S. Borrower and
the
Subsidiaries on a consolidated basis for any period, Cash Interest
Expense for
such period plus scheduled principal amortization of Consolidated
Total Debt for
such period (whether or not such payments are made).
<PAGE>
26
"Default" shall mean any event or condition that upon notice,
lapse
of time or both would constitute an Event of Default.
"Defaulting Lender" shall mean any Lender or Ancillary Lender
with
respect to which a Lender Default is in effect.
"Designated Non-Cash Consideration" shall mean all non-cash
consideration received by the U.S. Borrower or any Subsidiary in
respect of any
sale, transfer or other disposition of assets pursuant to Section
6.05(h) that
is designated as Designated Non-Cash Consideration pursuant to a
certificate of
a Responsible Officer, which certificate shall set forth the fair
market value
of such Designated Non-Cash Consideration and the basis of such
valuation.
"Dividend Payment Amount" shall mean (a) at any time during the
fiscal year ending December 31, 2005, an amount equal to (i)
$50,000,000, minus
(ii) the aggregate amount of payments made during such fiscal year
and prior to
such time pursuant to Section 6.06(e)(i) and (b) at any time during
each fiscal
year thereafter, an amount equal to (i) $25,000,000, plus (ii) any
portion of
the Dividend Payment Amount for prior fiscal years not utilized to
make payments
pursuant to Section 6.06(e)(i) during such prior fiscal years,
minus (iii) the
aggregate amount of payments made during the current fiscal year
and prior to
such time pursuant to Section 6.06(e)(i).
"Dollars" or "$" shall mean lawful money of the United States
of
America.
"Dollar Equivalent" shall mean, on any date of determination
(a)
with respect to any amount in Dollars, such amount, and (b) with
respect to any
amount in any Foreign Currency, the equivalent in Dollars of such
amount,
determined by the Administrative Agent pursuant to Section 1.03(b)
using the
Exchange Rate with respect to such Foreign Currency at the time in
effect under
the provisions of such Section.
"Dollar Letter of Credit" shall mean a Letter of Credit
denominated
in Dollars.
"Domestic Subsidiary Loan Party" shall mean each Wholly Owned
Subsidiary that is not (a) a Foreign Subsidiary, (b) the
Receivables Subsidiary,
(c) the Transferor or (d) listed on Schedule 1.01(h).
"EBITDA" shall mean, with respect to the U.S. Borrower and the
Subsidiaries on a consolidated basis for any period:
<PAGE>
27
(A) for
purposes only of calculating the Leverage Ratio in connection
with
the determination of the Applicable Margin in respect of the
Existing Revolving
Loans, the Consolidated Net Income of the U.S. Borrower and the
Subsidiaries for
such period
PLUS (a) the sum of (in each case without duplication and to
the
extent the respective amounts described in subclauses (i)
through
(x) of this clause (a) reduced such Consolidated Net Income for
the
respective period for which EBITDA is being determined) (i)
provision for Taxes based on income or profits of the U.S.
Borrower
and the Subsidiaries (including the Michigan Single Business Tax
and
similar Taxes) for such period and provision for Taxes based on
income or profits of Holdings and Intermediate Holdings during
such
period to the extent paid using the proceeds of dividends made
by
the U.S. Borrower in accordance with Section 6.06(b), (ii)
Interest
Expense of the U.S. Borrower and the Subsidiaries for such
period,
(iii) depreciation and amortization expense of the U.S. Borrower
and
the Subsidiaries for such period, (iv) any fees, expenses or
charges
related to any equity offering, any investment or acquisition
permitted hereunder or occurring prior to the Closing Date, any
recapitalization permitted hereunder or any Indebtedness
permitted
to be incurred hereunder (whether or not successful) and fees,
expenses, charges or change of control payments related to the
Transactions (including fees to the Fund and Fund Affiliates) or
the
acquisition by Northrop Grumman Corporation of TRW Inc., (v)
the
amount of any cash restructuring or other nonrecurring charges
incurred not in excess of (A) $30,000,000 in fiscal year 2004 or
(B)
$50,000,000 in any fiscal year thereafter, (vi) any other
noncash
charges, including increases in costs of sales resulting from
purchase accounting in relation to the Transactions or any
acquisition (but excluding any such charge which requires an
accrual
of a cash reserve for anticipated cash charges for any future
period), (vii) the amount of any minority interest expense,
(viii)
noncash exchange, translation or performance losses relating to
any
foreign currency hedging transactions or currency fluctuations,
(ix)
the amount of management, consulting, monitoring and
<PAGE>
28
advisory fees paid to the Fund and/or Fund Affiliates (or any
accruals related to such fees) during such period not to exceed
$7,500,000 during any four quarter period and (x) any expense
relating to defined benefits pension or post-retirement benefit
plans (provided that, for purposes of subclauses (vi) and (viii)
of
this clause (a), any noncash charges or losses shall be treated
as
cash charges or losses in any subsequent period during which
cash
disbursements attributable thereto are made),
MINUS (b) the sum of (in each case without duplication and to
the
extent the respective amounts described in subclauses (i)
through
(iii) and (v) of this clause (b) increased such Consolidated
Net
Income for the respective period for which EBITDA is being
determined) (i) the amount of any minority interest income,
(ii)
noncash exchange, translation or performance gains relating to
any
foreign currency hedging transactions or currency fluctuations,
(iii) any income relating to defined benefits pension or
post-retirement benefit plans, (iv) any cash payment relating
to
defined benefits pension or post-retirement benefit plans net of
any
amounts receivable from Northrop Grumman Corporation pursuant to
the
Purchase Agreement for post-retirement benefits plans (provided
that
any such amounts calculated pursuant to this clause (iv) shall
be
reduced by $35,000,000 with respect to fiscal year 2004, and
$20,000,000 with respect to fiscal year 2005) and (v) noncash
items
increasing
Consolidated Net Income of the U.S. Borrower and the
Subsidiaries for such period (but excluding any such items (A)
in
respect of which cash was received in a prior period or will be
received in a future period or (B) which represent the reversal
of
any accrual of, or cash reserve for, anticipated cash charges in
any
prior period); and
(B) for
all other purposes under this Agreement, the Consolidated Net
Income of the U.S. Borrower and the Subsidiaries for such
period:
PLUS (a) the sum of (in each case without duplication and to
the
extent the respective amounts described in subclauses (i)
through
(ix) of this clause (a) reduced such Consolidated Net
<PAGE>
29
Income for the respective period for which EBITDA is being
determined) (i) provision for Taxes based on income or profits
of
the U.S.
Borrower and the Subsidiaries (including the Michigan
Single Business Tax and similar Taxes) for such period and
provision
for Taxes based on income or profits of Holdings and
Intermediate
Holdings during such period to the extent paid using the proceeds
of
dividends made by the U.S. Borrower in accordance with Section
6.06(b), (ii) Interest Expense of the U.S. Borrower and the
Subsidiaries for such period, (iii) depreciation and
amortization
expense of the U.S. Borrower and the Subsidiaries for such
period,
(iv) any fees, expenses or charges related to any equity
offering,
any investment or acquisition permitted hereunder or occurring
prior
to the Closing Date, any recapitalization permitted hereunder or
any
Indebtedness permitted to be incurred hereunder (whether or not
successful) and fees, expenses, charges or change of control
payments related to the Transactions (including fees to the Fund
and
Fund Affiliates) or the acquisition by Northrop Grumman
Corporation
of TRW Inc., (v) the amount of any cash restructuring or other
nonrecurring charges incurred not in excess of (A) $30,000,000
in
fiscal year 2004 or (B) $50,000,000 in any fiscal year
thereafter,
(vi) any other noncash charges, including increases in costs of
sales resulting from purchase accounting in relation to the
Transactions or any acquisition (but excluding any such charge
which
requires an accrual of a cash reserve for anticipated cash
charges
for any future period and any noncash expense relating to
defined
benefits pension or
post-retirement benefit plans), (vii) the amount
of any minority interest expense, (viii) noncash exchange,
translation or performance losses relating to any foreign
currency
hedging transactions or currency fluctuations and (ix) the amount
of
management, consulting, monitoring and advisory fees paid to
the
Fund and/or Fund Affiliates (or any accruals related to such
fees)
during such period not to exceed $7,500,000 during any four
quarter
period (provided that, for purposes of subclauses (vi) and (viii)
of
this clause (a), any noncash charges or losses shall be treated
as
cash charges or losses in any subsequent period during
<PAGE>
30
which cash disbursements attributable thereto are made),
MINUS (b) the sum of (in each case without duplication and to
the
extent the respective amounts described in subclauses (i)
through
(iii) of this clause (b) increased such Consolidated Net Income
for
the respective period for which EBITDA is being determined) (i)
the
amount of any minority interest income, (ii) noncash exchange,
translation or performance gains relating to any foreign
currency
hedging transactions or currency fluctuations and (iii) noncash
items increasing Consolidated Net Income of the U.S. Borrower
and
the Subsidiaries for such period (but excluding any such items
(A)
in respect of which cash was received in a prior period or will
be
received in a future period, (B) which represent the reversal of
any
accrual of, or cash reserve for, anticipated cash charges in
any
prior period) or (C) which constitute noncash gains or income
relating to defined benefits pension or post-retirement benefit
plans).
"Effective
Funding Date" shall mean the date on which (a) the Tranche A
Term Borrowings, Tranche B Term Borrowings and New Revolving
Borrowings are
converted or made pursuant to Section 2.01 and (b) all Tranche A-1
Term
Borrowings, Tranche D Term Borrowings and Existing Revolving
Borrowings are
converted or repaid in full.
"Effective
Funding Time" shall mean the time on the Effective Funding Date
at which all Tranche A-1 Term Loans, Tranche D Term Loans and
Existing Revolving
Loans are repaid with the proceeds of, or (in the case of Tranche
A-1 Term Loans
and Tranche D-1 Term Loans) are converted into, Tranche A Loans,
Tranche B Loans
and New Revolving Loans, respectively, pursuant to Section
2.01.
"Eligible
Borrower" shall mean the U.S. Borrower or any Foreign
Subsidiary
Borrower that has been designated under Section 2.20 to make
Borrowings under
the Global Revolving Facilities.
"EMU
Legislation" shall mean the legislative measures of the
European
Union for the introduction of, changeover to or operation of the
Euro in one or
more member states of the European Union.
<PAGE>
31
"environment" shall mean ambient air, surface water and
groundwater
(including potable water, navigable water and wetlands), the land
surface or
subsurface strata, the workplace or as otherwise defined in any
Environmental
Law.
"Environmental Laws" shall mean all applicable laws (including
common law), rules, regulations, codes, ordinances, orders,
decrees, judgments,
injunctions, notices or binding agreements issued, promulgated or
entered into
by any Governmental Authority, relating in any way to the
environment,
preservation or reclamation of natural resources, the management,
release or
threatened release of, or exposure to, any Hazardous Material or to
health and
safety matters (to the extent relating to the environment or
Hazardous
Materials).
"Environmental Liability" shall mean any liability, contingent
or
otherwise (including any liability for damages, costs of
environmental
investigation or remediation, fines, penalties or indemnities), of
Holdings,
Intermediate Holdings, the U.S. Borrower or any of the Subsidiaries
directly or
indirectly resulting from or based upon (a) a violation of any
Environmental
Law, (b) the generation, use, handling, transportation, storage,
treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials,
(d) the release or threatened release of any Hazardous Materials
into the
environment, or (e) any contract, agreement or other consensual
arrangement
pursuant to which liability is assumed or imposed with respect to
any of the
foregoing.
"Equity Contributions" shall have the meaning assigned to such
term
in the preamble to this Agreement.
"Equity Interests" of any person shall mean any and all shares,
interests, rights to purchase, warrants, options, participation or
other
equivalents of or interests in (however designated) equity of such
person,
including any preferred stock, any limited or general partnership
interest and
any limited liability company membership interest.
"ERISA" shall mean the Employee Retirement Income Security Act
of
1974, as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or
not
incorporated) that, together with Holdings, Intermediate Holdings,
the U.S.
Borrower or a Subsidiary is treated as a single employer under
Section 414(b) or
(c) of the Code, or, solely for purposes of Section 302 of ERISA
and Section 412
of the Code, is treated as a single employer under Section 414 of
the Code.
<PAGE>
32
"ERISA Event" shall mean (a) any Reportable Event; (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 Holdings, Intermediate Holdings, the
U.S. Borrower,
a Subsidiary or any ERISA Affiliate of any liability under Title IV
of ERISA
with respect to the termination of any Plan; (e) the receipt by
Holdings,
Intermediate Holdings, the U.S. Borrower, a Subsidiary or any ERISA
Affiliate
from the PBGC or a plan administrator of any notice relating to an
intention to
terminate any Plan or to appoint a trustee to administer any Plan
under Section
4042 of ERISA; (f) the incurrence by Holdings, Intermediate
Holdings, the U.S.
Borrower, a Subsidiary or any ERISA Affiliate of any liability with
respect to
the withdrawal or partial withdrawal from any Plan or Multiemployer
Plan; or (g)
the receipt by Holdings, Intermediate Holdings, the U.S. Borrower,
a Subsidiary
or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan
from Holdings, Intermediate Holdings, the U.S. Borrower, a
Subsidiary or any
ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to
be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"Euro" or "(euro)" shall mean the single currency of the
European
Union as constituted by the treaty establishing the European
Community being the
Treaty of Rome, as amended from time to time and as referred to in
the EMU
Legislation.
"Euro Equivalent" shall mean, on any date of determination, (a)
with
respect to any amount in Euros, such amount and (b) with respect to
any amount
in Dollars or any Foreign Currency other than Euros, the equivalent
in Euros of
such amount or determined by the Administrative Agent pursuant to
Section
1.03(b) using the Exchange Rate with respect to such currency of
the time in
effect under the provisions of such Section.
"Eurocurrency Borrowing" shall mean a Borrowing comprised of
Eurocurrency Loans.
"Eurocurrency Loan" shall mean any Eurocurrency Term Loan or
Eurocurrency Revolving Loan.
"Eurocurrency Revolving Borrowing" shall mean a Borrowing
comprised
of Eurocurrency Revolving Loans.
<PAGE>
33
"Eurocurrency Revolving Loan" shall mean any Revolving Loan
bearing
interest at a rate determined by reference to the Adjusted LIBO
Rate in
accordance with the provisions of Article II.
"Eurocurrency Term Loan" shall mean any Term Loan bearing
interest
at a rate determined by reference to the Adjusted LIBO Rate in
accordance with
the provisions of Article II.
"Event of Default" shall have the meaning given such term in
Section
7.01.
"Excess Cash Flow" shall mean, with respect to the U.S. Borrower
and
the Subsidiaries on a consolidated basis for any Excess Cash Flow
Period, EBITDA
of the U.S. Borrower and the Subsidiaries on a consolidated basis
for such
Excess Cash Flow Period,
MINUS, without duplication, (a) Debt Service for such Excess
Cash
Flow
Period, (b) (i) any voluntary prepayments of Term Loans during
such
Excess
Cash Flow Period, (ii) any permanent voluntary reductions
during
such
Excess Cash Flow Period of Revolving Credit Commitments to the
extent
that an
equal amount of Revolving Loans was simultaneously repaid and
(iii) any
voluntary prepayment permitted hereunder of term Indebtedness
during
such Excess Cash Flow Period to the extent not financed, or
intended
to be financed, using the proceeds of the incurrence of
Indebtedness, so long as the amount of such prepayment is not
already
reflected
in Debt Service, (c) (i) Capital Expenditures by the U.S.
Borrower
and the Subsidiaries on a consolidated basis during such Excess
Cash Flow
Period (excluding Capital Expenditures made in such Excess Cash
Flow
Period where a certificate in the form contemplated by the
following
clause (d)
was previously delivered) that are paid in cash and (ii) the
aggregate
consideration paid in cash during such Excess Cash Flow Period
in respect
of Permitted Business Acquisitions and other investments
permitted
hereunder (less any amounts received in respect thereof as a
return of
capital), (d) Capital Expenditures that the U.S. Borrower or
any
Subsidiary
shall, during such Excess Cash Flow Period, become obligated to
make but
that are not made during such Excess Cash Flow Period, provided
that the
U.S. Borrower shall deliver a certificate to the Administrative
Agent not
later than 90 days after the end of such Excess Cash Flow
Period,
signed by a Responsible Officer of the U.S. Borrower and
certifying
that such Capital Expenditures and the delivery of the related
equipment
will be made in the following Excess Cash Flow
<PAGE>
34
Period,
(e) Taxes paid in cash by the U.S. Borrower and the
Subsidiaries
on a
consolidated basis during such Excess Cash Flow Period or that
will
be paid
within six months after the close of such Excess Cash Flow
Period
(provided
that any amount so deducted that will be paid after the close
of
such
Excess Cash Flow Period shall not be deducted again in a
subsequent
Excess
Cash Flow Period) and for which reserves have been established,
including
income tax expense and withholding tax expense incurred in
connection
with cross-border transactions involving the Foreign
Subsidiaries, (f) an amount equal to any increase in Working
Capital of
the U.S.
Borrower and the Subsidiaries for such Excess Cash Flow Period,
(g) to the
extent not deducted in determining EBITDA, consulting,
monitoring
and advisory fees paid to the Fund and Fund Affiliates during
such
Excess Cash Flow Period, (h) cash expenditures made in respect
of
Swap
Agreements during such Excess Cash Flow Period, to the extent
not
reflected
in the computation of EBITDA or Interest Expense, (i) permitted
dividends
or distributions or repurchases of its Equity Interests paid in
cash by
Holdings during such Excess Cash Flow Period and permitted
dividends
paid by the U.S. Borrower or by any Subsidiary to any person
other than
the U.S. Borrower or any of the other Subsidiaries during such
Excess
Cash Flow Period, in each case in accordance with Section 6.06,
(j)
amounts
paid in cash during such Excess Cash Flow Period on account of
(x)
items that
were accounted for as noncash reductions of the Consolidated
Net Income
of the U.S. Borrower and the Subsidiaries in a prior Excess
Cash Flow
Period and (y) reserves or accruals established in purchase
accounting, (k) extraordinary special charges or any nonrecurring
loss
paid in
cash during such Excess Cash Flow Period, (l) to the extent not
deducted in the
computation of Net Proceeds in respect of any asset
disposition or condemnation giving rise thereto, the amount of
any
mandatory
prepayment of Indebtedness (other than Indebtedness created
hereunder
or under any other Loan Document), together with any interest,
premium or
penalties required to be paid (and actually paid) in connection
therewith,
(m) the amount, if any, by which consolidated deferred revenues
of the
U.S. Borrower and the Subsidiaries decreased during such Excess
Cash Flow
Period, (n) the amount related to items that were added to
Consolidated Net Income in calculating EBITDA to the extent such
items
represented a cash payment, or an accrual for a cash payment, by
the U.S.
Borrower
and the Subsidiaries on a consolidated basis during such Excess
Cash Flow
Period, (o) the amount of minority interest expense added to
Consolidated Net Income in calculating EBITDA for such
<PAGE>
35
Excess
Cash Flow Period and (p) any income relating to defined
benefits
pension or
post-retirement benefit plans and any cash payment relating to
defined
benefits pension or post-retirement benefit plans net of any
amounts
received by Holdings, Intermediate Holdings, the U.S. Borrower
or
any
Subsidiary from Northrop Grumman Corporation pursuant to the
Purchase
Agreement
for post-retirement benefit plans,
PLUS, without
duplication, (q) an amount equal to any decrease in
Working
Capital for such Excess Cash Flow Period, (r) all proceeds
received
during such Excess Cash Flow Period of Capital Lease
Obligations,
purchase
money Indebtedness, Sale and Lease-Back Transactions pursuant
to
Section
6.03 and any other Indebtedness, in each case to the extent
used
to finance
any Capital Expenditure (other than Indebtedness under this
Agreement
to the extent there is no corresponding deduction to Excess
Cash
Flow above
in respect of the use of such Borrowings), (s) all amounts
referred
to in clause (c) above to the extent funded with the proceeds
of
the
issuance of Equity Interests of, or capital contributions to,
Holdings
after the
Closing Date (to the extent not previously used to prepay
Indebtedness (other than Revolving Loans or Swingline Loans), make
any
investment
or capital expenditure or otherwise for any purpose resulting
in a
deduction to Excess Cash Flow in any prior Excess Cash Flow
Period)
or any
amount that would have constituted Net Proceeds under clause (a)
of
the
definition of the term "Net Proceeds" if not so spent, in each case
to
the extent
there is a corresponding deduction from Excess Cash Flow above,
(t) to the
extent any Capital Expenditures and the corresponding delivery
of
equipment referred to in clause (d) above do not occur in the
Excess
Cash Flow
Period of the U.S. Borrower specified in the certificate of the
U.S.
Borrower provided pursuant to clause (d) above, the amount of
such
Capital
Expenditures that were not so made in the Excess Cash Flow
Period
of the
U.S. Borrower specified in such certificates, (u) cash payments
received
in respect of Swap Agreements during such Excess Cash Flow
Period
to the
extent (i) not included in the computation of EBITDA or (ii)
such
payments
do not reduce Cash Interest Expense, (v) any extraordinary or
nonrecurring gain realized in cash during such Excess Cash Flow
Period
(except to
the extent such gain consists of Net Proceeds subject to
Section
2.11(c)), (w) to the extent deducted in the computation of
EBITDA,
interest
income, (x) the amount, if any, by which consolidated deferred
revenues
of the U.S. Borrower and the Subsidiaries increased during such
Excess
Cash Flow Period, (y) the
<PAGE>
36
amount related
to items that were deducted from Consolidated Net Income in
calculating EBITDA to the extent such items represented cash
received by
the U.S.
Borrower and the Subsidiaries on a consolidated basis during
such
Excess
Cash Flow Period, (z) the amount of minority interest income
deducted
from Consolidated Net Income in calculating EBITDA for such
Excess
Cash Flow Period and (aa) any expense relating to defined
benefits
pension or
post-retirement benefit plans.
"Excess Cash Flow Period" shall mean (i) the period taken as
one
accounting period beginning on January 1, 2005 and ending on
December 31, 2005,
and (ii) each fiscal year of the U.S. Borrower ended
thereafter.
"Exchange Rate" shall mean on any day, for purposes of
determining
the Dollar Equivalent or Euro Equivalent of any other currency, the
rate at
which such other currency may be exchanged into Dollars or Euros
(as
applicable), as set forth at approximately 11:00 a.m., London time,
on such day
on the Reuters World Currency Page for such currency. In the event
that such
rate does not appear on any Reuters World Currency Page, the
Exchange Rate shall
be determined by reference to such other publicly available service
for
displaying exchange rates as may be agreed upon by the
Administrative Agent and
the U.S. Borrower, or, in the absence of such an agreement, such
Exchange Rate
shall instead be the arithmetic average of the spot rates of
exchange of the
Administrative Agent in the market where its foreign currency
exchange
operations in respect of such currency are then being conducted, at
or about
10:00 a.m., Local Time, on such date for the purchase of Dollars or
Euros (as
applicable) for delivery two Business Days later; provided that if
at the time
of any such determination, for any reason, no such spot rate is
being quoted,
the Administrative Agent may use any reasonable method it deems
appropriate to
determine such rate, and such determination shall be conclusive
absent manifest
error.
"Excluded Taxes" shall mean, with respect to the Agents, any
Lender,
any Issuing Bank or any other recipient of any payment to be made
by or on
account of any obligation of a 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 and (c) in the case of a
Foreign
Lender (other than an assignee pursuant to a request by a Borrower
under Section
2.19(b)), any withholding tax (other
<PAGE>
37
than a withholding tax levied upon any amounts payable to such
Foreign Lender in
respect of any interest in any Loan or Ancillary Credit Extension
acquired by
such Foreign Lender pursuant to Section 11.01) that is in effect
and would apply
to amounts payable hereunder to such Foreign Lender at the time
such Foreign
Lender becomes a party to this Agreement (or designates a new
lending office) or
is attributable to such Foreign Lender's failure to comply with
Section 2.17(e),
except to the extent that such Foreign Lender (or its assignor, if
any) was
entitled, at the time of designation of a new lending office (or
assignment), to
receive additional amounts from a Borrower with respect to any
withholding tax
pursuant to Section 2.17(a).
"Exempted Intercompany Investment" shall mean (a)(i) any
investment
or series of related investments (valued at the time of the making
thereof) by
any Borrower or Subsidiary Loan Party in any Subsidiary that is not
a Loan
Party, (ii) any intercompany loan or series of related intercompany
loans by any
Borrower or Subsidiary Loan Party to any Subsidiary that is not a
Loan Party or
(iii) any Guarantee or series of related Guarantees provided by any
Borrower or
Subsidiary Loan Party of Indebtedness of any Subsidiary that is not
a Loan
Party, in each case in an amount not in excess of $10,000,000 and
(b) any
keep-well or similar contingent arrangement provided to Automotive
Holdings
(France), S.A.S. by a Loan Party (provided that amounts paid in
respect of any
such keep-well or similar arrangement shall not constitute an
Exempted
Intercompany Investment).
"Existing Available Unused Commitment" shall mean, with respect
to
any Global Revolving Facility Lender at any time prior to the
Effective Funding
Time, an amount equal to the amount by which (a) the Existing
Global Revolving
Facility Commitment of such Global Revolving Facility Lender at
such time
exceeds (b) the sum of (x) the Existing Global Revolving Facility
Credit
Exposure of such Global Revolving Facility Lender at such time and
(y) the
Ancillary Commitment (if any) of such Global Revolving Facility
Lender at such
time. For purposes of calculating any Global Revolving Facility
Lender's
Existing Available Unused Commitment in connection with an
Ancillary Replacement
Borrowing, the amount of the Ancillary Commitment of such Global
Revolving
Facility Lender shall be reduced by the amount of the Ancillary
Commitment being
terminated.
"Existing Credit Agreement" shall have the meaning assigned to
such
term in the preamble to this Agreement.
"Existing Global Revolving Facility" shall mean the Existing
Global
Revolving Facility Commitments and the extensions of credit made
thereunder by
the applicable Global Revolving Facility Lenders.
<PAGE>
38
"Existing Global Revolving Facility Commitment" shall mean,
with
respect to each Global Revolving Facility Lender, the commitment of
such Global
Revolving Facility Lender to make Existing Global Revolving
Facility Loans
pursuant to Section 2.01, expressed as an amount representing the
maximum
aggregate permitted amount of such Global Revolving Facility
Lender's Existing
Global Revolving Facility Credit 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 under
Section 9.04. The amount of each Global Revolving Facility Lender's
Existing
Global Revolving Facility Commitment is set forth on Schedule 2.01,
or in the
Assignment and Acceptance pursuant to which such Global Revolving
Facility
Lender shall have assumed its Existing Global Revolving Facility
Commitment, as
applicable. The aggregate amount of the Existing Global Revolving
Facility
Commitments on the date hereof is $325,000,000.
"Existing Global Revolving Facility Credit Exposure" shall mean,
at
any time prior to the Effective Funding Time, the sum of (a) the
aggregate
principal amount of the Existing Global Revolving Facility Loans
denominated in
Dollars outstanding at such time, (b) the Dollar Equivalent of the
aggregate
principal amount of the Existing Global Revolving Facility Loans
denominated in
a Foreign Currency outstanding at such time and (c) the Swingline
Foreign
Currency Exposure at such time. The Existing Global Revolving
Facility Credit
Exposure of any Global Revolving Facility Lender at any time prior
to the
Effective Funding Time shall be the sum of (a) the aggregate
principal amount of
such Global Revolving Facility Lender's Existing Global Revolving
Facility Loans
denominated in Dollars outstanding at such time, (b) the Dollar
Equivalent of
the aggregate principal amount of such Global Revolving Facility
Lender's
Existing Global Revolving Facility Loans denominated in a Foreign
Currency
outstanding at such time and (c) such Global Revolving Facility
Lender's ratable
share (based on Existing Available Unused Commitments) of the
Swingline Foreign
Currency Exposure at such time.
"Existing Global Revolving Facility Lender" shall mean a Lender
with
an Existing Global Revolving Facility Commitment or with
outstanding Existing
Global Revolving Facility Loans.
"Existing Global Revolving Facility Loan" shall mean a Loan made
by
a Global Revolving Facility Lender in respect of an Existing Global
Revolving
Facility Commitment pursuant to Section 2.01. Each Existing Global
Revolving
Facility Loan denominated in Dollars shall be a Eurocurrency Loan
or an ABR
<PAGE>
39
Loan, and each Existing Global Revolving Facility Loan denominated
in a Foreign
Currency shall be a Eurocurrency Loan.
"Existing Revolving Loans" shall mean the Existing Global
Revolving
Facility Loans and the Existing U.S. Revolving Facility Loans.
"Existing U.S. Revolving Facility" shall mean the Existing U.S.
Revolving Facility Commitments and the extensions of credit made
hereunder in
respect thereof by the U.S. Revolving Facility Lenders.
"Existing U.S. Revolving Facility Commitment" shall mean, with
respect to each U.S. Revolving Facility Lender, the commitment of
such U.S.
Revolving Facility Lender to make Existing U.S. Revolving Facility
Loans
pursuant to Section 2.01, expressed as an amount representing the
maximum
aggregate permitted amount of such Lender's Existing U.S. Revolving
Facility
Credit 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
amount of each Existing U.S. Revolving Facility Lender's Existing
U.S. Revolving
Facility Commitment is set forth on Schedule 2.01, or in the
Assignment and
Acceptance pursuant to which such U.S. Revolving Facility Lender
shall have
assumed its Existing U.S. Revolving Facility Commitment, as
applicable. The
aggregate amount of the Existing U.S. Revolving Facility
Commitments on the date
hereof is $175,000,000.
"Existing U.S. Revolving Facility Credit Exposure" shall mean,
at
any time prior to the Effective Funding Time, the sum of (a) the
aggregate
principal amount of the Existing U.S. Revolving Facility Loans
outstanding at
such time, (b) the Swingline Dollar Exposure at such time and (c)
the Revolving
L/C Exposure at such time. The Existing U.S. Revolving Facility
Credit Exposure
of any Lender at any time prior to the Effective Funding Time shall
be such
Lender's Existing U.S. Revolving Facility Percentage of the
Existing U.S.
Revolving Facility Credit Exposure at such time.
"Existing U.S. Revolving Facility Lender" shall mean a Lender
with
an Existing U.S. Revolving Facility Commitment or with outstanding
Existing U.S.
Revolving Facility Loans.
"Existing U.S. Revolving Facility Loan" shall mean a Loan made by
a
U.S. Revolving Facility Lender in respect of an Existing U.S.
Revolving Facility
Commitment pursuant to Section 2.01. Each Existing U.S. Revolving
Facility Loan
shall be a Eurocurrency Loan or an ABR Loan.
<PAGE>
40
"Existing U.S. Revolving Facility Percentage" shall mean, with
respect to any Existing U.S. Revolving Facility Lender, the
percentage of the
total Existing U.S. Revolving Facility Commitments represented by
such Lender's
Existing U.S. Revolving Facility Commitment. If the Existing U.S.
Revolving
Facility Commitments have terminated or expired, the Existing U.S.
Revolving
Facility Percentages shall be determined based upon the Existing
U.S. Revolving
Facility Commitments most recently in effect, giving effect to any
assignments
pursuant to Section 9.04.
"Facility" shall mean the respective facility and commitments
utilized in making Loans and credit extensions hereunder, it being
understood
that (a) prior to the Effective Funding Time, there are six
Facilities, i.e.,
the Tranche A-1 Facility, the Tranche D-1 Facility, the Tranche D-2
Facility,
the Tranche E Facility, the Existing Global Revolving Facility and
the Existing
U.S. Revolving Facility and (b) at and after the Effective Funding
Time, there
will be five Facilities, i.e., the Tranche A Facility, the Tranche
B Facility,
the Tranche E Facility, the New Global Revolving Facility and the
New U.S.
Revolving Facility.
"Federal Funds Effective Rate" shall mean, for any day, the
weighted
average (rounded upward, if necessary, to the next 1/100 of 1%) of
the rates on
overnight Federal funds transactions with members of the Federal
Reserve System
arranged by Federal funds brokers, as published on the next
succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is
not so
published for any day which is a Business Day, the average (rounded
upward, if
necessary, to the next 1/100 of 1%) of the quotations for the day
of such
transactions received by the Administrative Agent from three
Federal funds
brokers of recognized standing selected by it.
"Fees" shall mean the Commitment Fees, the L/C Participation
Fees,
the Issuing Bank Fees and the Administrative Agent Fees.
"Financial Officer" of any person shall mean the Chief
Financial
Officer, principal accounting officer, Treasurer, Assistant
Treasurer or
Controller of such person.
"Financial Performance Covenants" shall mean the covenants of
the
U.S. Borrower set forth in Sections 6.11 and 6.12.
"Finco" shall mean TRW Automotive Finance (Luxembourg) S.A R.L.,
a
company organized under the laws of Luxembourg and a Wholly Owned
Subsidiary.
<PAGE>
41
"Finco Equity Contribution" shall have the meaning assigned to
such
term in the preamble to this Agreement.
"Finco Guarantee" shall mean the Finco Guarantee Agreement, in
the
form of Exhibit G, between Finco and the Collateral Agent, as
amended,
supplemented or otherwise modified from time to time.
"Finco Loan" shall mean the loan from the U.S. Borrower to Finco
on
the Closing Date in an aggregate principal amount equal to
approximately
$681,501,000 out of the proceeds of Loans made to the U.S. Borrower
on the
Closing Date, which loan has been evidenced by a note and pledged
pursuant to
the Collateral and Guarantee Requirement.
"First Amended and Restated Credit Agreement" shall have the
meaning
assigned to such term in the preamble to this Agreement.
"First Amendment and Restatement Agreement" shall have the
meaning
assigned to such term in the preamble to this Agreement.
"First-Tier Subsidiary Pledge Agreement" shall mean the
First-Tier
Subsidiary Pledge Agreement among the Subsidiaries party thereto
and the
Collateral Agent.
"Foreign Acquiror Equity Contributions" shall mean direct or
indirect equity contributions from the U.S. Borrower to each
Foreign Acquiror on
the Closing Date in the respective amount set forth on Schedule
1.01(b) in
exchange for all the issued and outstanding Equity Interests of
such Foreign
Acquiror.
"Foreign Acquiror Loans" shall mean loans from Finco to the
Foreign
Acquirors on the Closing Date in the respective principal amounts
set forth on
Schedule 1.01(b) out of the proceeds of the Finco Loan, which loans
are
evidenced by notes or other instruments reasonably satisfactory to
the
Collateral Agent.
"Foreign Acquirors" shall mean the Wholly Owned Subsidiaries
set
forth on Schedule 1.01(b).
"Foreign Currency" shall mean (a) with respect to an Ancillary
Facility, any currency reasonably acceptable to the Administrative
Agent that is
freely available, freely transferable and freely convertible into
Dollars and
(b) otherwise, Euros and Sterling.
"Foreign Currency Letter of Credit" shall mean a Letter of
Credit
denominated in a Foreign Currency.
<PAGE>
42
"Foreign Guarantee" shall mean the Foreign Guarantee Agreement,
in
the form of Exhibit F, among the Foreign Subsidiary Loan Parties
and the
Collateral Agent, as amended, supplemented or otherwise modified
from time to
time.
"Foreign Lender" shall mean any Lender that is organized under
the
laws of a jurisdiction other than that in which the U.S. 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 Mortgages" shall mean the mortgages, deeds of trust,
charges, assignments of leases and rents and other security
documents delivered
on or prior to the Restatement Effective Date with respect to
Mortgaged
Properties located outside the United States of America or pursuant
to Section
5.10, each in form and substance reasonably satisfactory to the
Collateral
Agent.
"Foreign Perfection Certificate" shall mean a certificate with
respect to a Foreign Subsidiary Loan Party in the form approved by
the
Collateral Agent.
"Foreign Pledge Agreement" shall mean (a) each pledge agreement
listed on Schedule 1.01(d) and (b) each other pledge agreement with
respect to
the Pledged Collateral delivered pursuant to Section 5.10 with
respect to a
Foreign Subsidiary Loan Party or Foreign Subsidiary, in form and
substance
reasonably satisfactory to the Collateral Agent, in each case, as
amended,
supplemented or otherwise modified from time to time.
"Foreign Security Agreement" shall mean one or more security
agreements, charges, mortgages or pledges with respect to the
Collateral (other
than Pledged Collateral or Collateral that is subject to a Foreign
Mortgage) of
a Foreign Subsidiary Loan Party, each in form and substance
reasonably
satisfactory to the Collateral Agent, as amended, supplemented or
otherwise
modified from time to time.
"Foreign Subsidiary" shall mean any Subsidiary that is
incorporated
or organized under the laws of any jurisdiction other than the
United States of
America, any State thereof or the District of Columbia.
"Foreign Subsidiary Borrower" shall mean, at any time, each
Foreign
Subsidiary Loan Party that (a) has entered into a Restatement
Effective Date
Foreign Subsidiary Borrower Agreement or (b) has been designated as
a Foreign
Subsidiary Borrower by the U.S. Borrower pursuant to Section 2.20,
other than a
Foreign
<PAGE>
43
Subsidiary Borrower that has ceased to be a Foreign Subsidiary
Borrower
as provided in Section 2.20.
"Foreign Subsidiary Borrower Agreement" shall mean a Foreign
Subsidiary Borrower Agreement substantially in the form of Exhibit
K-1.
"Foreign Subsidiary Borrower Termination" shall mean a Foreign
Subsidiary Borrower Termination substantially in the form of
Exhibit J-2.
"Foreign Subsidiary Loan Party" shall mean (a) each Foreign
Subsidiary that is set forth on Schedule 1.01(e) and (b) each
Wholly Owned
Foreign Subsidiary that has met the requirements of Section 5.10(f)
after the
Restatement Effective Date.
"Fortuna" means Fortuna Assurance Company, a captive insurance
company that provides insurance coverage solely for the benefit of
the U.S.
Borrower and the Subsidiaries.
"Fund" shall mean Blackstone Capital Partners IV Merchant
Banking
Fund L.P., a Delaware limited partnership.
"Fund Affiliate" shall mean (i) each Affiliate of the Fund that
is
neither an operating company nor a company controlled by an
operating company
and (ii) each general partner of the Fund or any Fund Affiliate who
is a partner
or employee of the Blackstone Group L.P.
"Funded Ancillary Credit Extension" shall mean, at any time, an
extension of credit under an Ancillary Facility in respect of which
the
applicable Ancillary Lender has advanced funds to, or on behalf of,
the Foreign
Subsidiary Borrower thereunder.
"GAAP" shall mean generally accepted accounting principles in
effect
from time to time in the United States, applied on a consistent
basis.
"Global Lending Office" shall mean, as to any Global Revolving
Facility Lender, the applicable branch, office or Affiliate of such
Global
Revolving Facility Lender designated by such Global Revolving
Facility Lender to
make Loans denominated in a Foreign Currency.
"Global Revolving Facilities" shall mean (a) prior to the
Effective
Funding Time, the Existing Global Revolving Facility and (b) at or
after the
Effective Funding Time, the New Global Revolving Facility.
<PAGE>
44
"Global Revolving Facility Borrowing" shall mean a Borrowing
comprised of Global Revolving Facility Loans.
"Global Revolving Facility Commitment" shall mean (a) prior to
the
Effective Funding Time, an Existing Global Revolving Facility
Commitment and (b)
at or after the Effective Funding Time, a New Global Revolving
Facility
Commitment.
"Global Revolving Facility Credit Exposure" shall mean (a) prior
to
the Effective Funding Time, the Existing Global Revolving Facility
Credit
Exposure and (b) at and after the Effective Funding Time, the New
Global
Revolving Facility Credit Exposure.
"Global Revolving Facility Lender" shall mean an Existing
Global
Revolving Facility Lender or a New Global Revolving Facility
Lender, as
applicable.
"Global Revolving Facility Loans" shall mean (a) prior to the
Effective Funding Time, the Existing Global Revolving Facility
Loans and (b) at
or after the Effective Funding Time, the New Global Revolving
Facility Loans.
"Governmental Authority" shall mean any federal, state, local
or
foreign court or governmental agency, authority, instrumentality or
regulatory
body.
"Guarantee" of or by any person (the "guarantor") shall mean (a)
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,
(i) to purchase or pay (or advance or supply funds for the purchase
or payment
of) such Indebtedness or other obligation (whether arising by
virtue of
partnership arrangements, by agreement to keep well, to purchase
assets, goods,
securities or services, to take-or-pay or otherwise) or to purchase
(or to
advance or supply funds for the purchase of) any security for the
payment of
such Indebtedness or other obligation, (ii) to purchase or lease
property,
securities or services for the purpose of assuring the owner of
such
Indebtedness or other obligation of the payment thereof, (iii) 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, (iv) entered into for the purpose
of assuring
in any other manner the holders of such Indebtedness or other
obligation of the
payment thereof or to protect such holders against loss in respect
thereof (in
whole or in part) or (v) as an account party
<PAGE>
45
in respect of any letter of credit or letter of guaranty issued to
support such
Indebtedness or other obligation, or (b) any Lien on any assets of
the guarantor
securing any Indebtedness (or any existing right, contingent or
otherwise, of
the holder of Indebtedness to be secured by such a Lien) of any
other person,
whether or not such Indebtedness or other obligation is assumed by
the
guarantor; provided, however, that the term "Guarantee" shall not
include
endorsements for collection or deposit, in either case in the
ordinary course of
business, or customary and reasonable indemnity obligations in
effect on the
Closing Date or entered into in connection with any acquisition or
disposition
of assets permitted under this Agreement.
"Hazardous Materials" shall mean all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes
or other
pollutants, including petroleum or petroleum distillates, asbestos
or asbestos
containing materials, polychlorinated biphenyls, radon gas,
infectious or
medical wastes and all other substances or wastes of any nature
regulated
pursuant to any Environmental Law.
"Holdings" shall have the meaning assigned to such term in the
introductory paragraph of this Agreement.
"Holdings Common Stock" shall mean common stock issued by
Holdings.
"Holdings Equity Contribution" shall have the meaning assigned
to
such term in the preamble to this Agreement.
"Incremental Extensions of Credit" shall have the meaning
assigned
to such term in Section 2.23.
"Incremental Facility Amendment" shall have the meaning assigned
to
such term in Section 2.23.
"Incremental Facility Closing Date" shall have the meaning
assigned
to such term in Section 2.23.
"Indebtedness" of any person shall mean, without duplication,
(a)
all obligations of such person for borrowed money, (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 or assets purchased by such person,
(e) all
obligations of such person issued or assumed as the deferred
purchase price of
property or services (other than current trade liabilities and
current
intercompany liabilities (but not any refinancings, extensions,
<PAGE>
46
renewals or replacements thereof) incurred in the ordinary course
of business
and maturing within 365 days after the incurrence thereof), (f) all
Guarantees
by such person of Indebtedness of others, (g) all Capital Lease
Obligations of
such person, (h) all payments that such person would have to make
in the event
of an early termination, on the date Indebtedness of such person is
being
determined, in respect of outstanding Swap Agreements, (i) all
obligations,
contingent or otherwise, of such person as an account party in
respect of
letters of credit and (j) all obligations of such person in respect
of bankers'
acceptances. The Indebtedness of any person shall include the
Indebtedness of
any partnership in which such person is a general partner, other
than to the
extent that the instrument or agreement evidencing such
Indebtedness expressly
limits the liability of such person in respect thereof.
"Indemnified Taxes" shall mean Taxes other than Excluded Taxes.
"Indemnitee" shall have the meaning assigned to such term in
Section
9.05(b).
"Installment Date" shall mean a Tranche A Installment Date, a
Tranche A-1 Installment Date, a Tranche B Installment Date, a
Tranche D
Installment Date or a Tranche E Installment Date, as
applicable.
"Intercreditor Agreement" shall mean the Intercreditor
Agreement
dated as of February 28, 2003, among JPMorgan Chase Bank, as
Administrative
Agent, the Receivables Subsidiary, the U.S. Borrower and the
Collateral Agent.
"Interest Coverage Ratio" shall have the meaning given such term
in
Section 6.11.
"Interest Election Request" shall mean a request by a Borrower
to
convert or continue a Term Borrowing or Revolving Borrowing in
accordance with
Section 2.07.
"Interest Expense" shall mean, with respect to any person for
any
period, the sum of (a) gross interest expense of such person for
such period on
a consolidated basis, including (i) the amortization of debt
discounts, (ii) the
amortization of all fees (including fees with respect to Swap
Agreements)
payable in connection with the incurrence of Indebtedness to the
extent included
in interest expense, (iii) the portion of any payments or accruals
with respect
to Capital Lease Obligations allocable to interest expense and (iv)
commissions,
discounts, yield and other fees and charges incurred in connection
with the
Permitted Receivables Financing which are payable to any person
other than
<PAGE>
47
the U.S. Borrower or a Subsidiary Loan Party and (b) capitalized
interest of
such person. For purposes of the foregoing, gross interest expense
shall be
determined after giving effect to any net payments made or received
by the U.S.
Borrower and the Subsidiaries with respect to Swap Agreements.
"Interest Payment Date" shall mean, (a) with respect to any
Eurocurrency 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
Eurocurrency
Borrowing with an Interest Period of more than three months'
duration, each day
that would have been an Interest Payment Date had successive
Interest Periods of
three months' duration been applicable to such Borrowing and, in
addition, the
date of any refinancing or conversion of such Borrowing with or to
a Borrowing
of a different Type, (b) with respect to any ABR Loan, the last day
of each
calendar quarter, (c) with respect to any Swingline Dollar Loan,
the day that
such Swingline Dollar Loan is required to be repaid pursuant to
Section 2.09(a)
and (d) with respect to any Swingline Foreign Currency Loan, the
last day of the
Interest Period applicable to such Swingline Foreign Currency Loan
or any day
otherwise agreed to by the Swingline Foreign Currency Lenders.
"Interest Period" shall mean, (a) as to any Eurocurrency
Borrowing,
the period commencing on the date of such Borrowing or on the last
day of the
immediately preceding Interest Period applicable to such Borrowing,
as
applicable, and ending on the numerically corresponding day (or, if
there is no
numerically corresponding day, on the last day) in the calendar
month that is 1,
2, 3 or 6 months thereafter (or 9 or 12 months, if at the time of
the relevant
Borrowing, all Lenders make interest periods of such length
available), as the
applicable Borrower may elect, or the date any Eurocurrency
Borrowing is
converted to an ABR Borrowing in accordance with Section 2.07 or
repaid or
prepaid in accordance with Section 2.09, 2.10 or 2.11 and (b) as to
any
Swingline Foreign Currency Borrowing, the period commencing on the
date of such
Borrowing and ending on the day that is designated in the notice
delivered
pursuant to Section 2.04 with respect to such Swingline Foreign
Currency
Borrowing, which shall not be later than the seventh day
thereafter; provided,
however, that 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.
Interest shall accrue from and including the first day of an
Interest Period to
but excluding the last day of such Interest Period.
<PAGE>
48
"Intermediate Holdings" shall have the meaning assigned to such
term
in the introductory paragraph of this Agreement.
"Intermediate Holdings Equity Contribution" shall have the
meaning
assigned to such term in the preamble to this Agreement.
"Investment Grade Ratings" shall mean a rating of both (a) BBB-
or
better from S&P and (b) Baa3 or better from Moody's.
"IPO" shall have the meaning assigned to such term in the
preamble
to this Agreement.
"IPO Repurchase Transaction" shall have the meaning assigned to
such
term in the preamble to this Agreement.
"Intermediate Holdings Loan" shall mean the loan from the U.S.
Borrower to Intermediate Holdings in an aggregate principal amount
of
$499,000,000 made with the proceeds of the Tranche E Term Loans
and
approximately $200,000,000 of cash of the U.S. Borrower, which loan
has been
evidenced by a note and pledged pursuant to the Collateral and
Guarantee
Requirement.
"Issuing Bank" shall mean JPMorgan Chase Bank, N.A., each other
Issuing Bank designated pursuant to Section 2.05(l), in each case
in its
capacity as an issuer of Letters of Credit hereunder, and its
successors in such
capacity as provided in Section 2.05(i). An Issuing Bank may, in
its discretion,
arrange for one or more Letters of Credit to be issued by
Affiliates of such
Issuing Bank, in which case the term "Issuing Bank" shall include
any such
Affiliate with respect to Letters of Credit issued by such
Affiliate.
"Issuing Bank Fees" shall have the meaning assigned to such term
in
Section 2.12(b).
"Judgment
Currency" shall have the meaning assigned to such term in
Section 9.17(b).
"L/C Disbursement" shall mean a payment or disbursement made by
an
Issuing Bank pursuant to a Letter of Credit.
"L/C Participation Fee" shall have the meaning assigned such term
in
Section 2.12(b).
"Lender" shall mean each financial institution listed on
Schedule
2.01, as well as any person that becomes a "Lender" hereunder
pursuant to
Section 9.04 or pursuant to an Incremental Facility Amendment.
<PAGE>
49
"Lender Default" shall mean (i) the refusal (which has not been
retracted) of a Lender to make available its portion of any
Borrowing, to
acquire participations in a Swingline Loan pursuant to Section 2.04
or to fund
its portion of any unreimbursed payment under Section 2.05(e), (ii)
a Lender
having notified in writing the applicable Borrower and/or the
Applicable Agent
that it does not intend to comply with its obligations under
Section 2.04, 2.05
or 2.06 or (iii) the refusal of an Ancillary Lender to extend
credit under an
Ancillary Facility other than a refusal in accordance with the
terms of the
applicable Ancillary Facility Document and the terms hereof.
"Lenders' Presentation" shall mean the Lenders' Presentation
dated
November 17, 2004, as modified or supplemented prior to the
Restatement
Effective Date.
"Letter of Credit" shall mean any letter of credit issued
pursuant
to Section 2.05 (including each letter of credit issued under the
Existing
Credit Agreement and outstanding at the Effective Funding
Time).
"Leverage Ratio" shall mean, on any date, the ratio of (a)
Consolidated Total Debt as of such date to (b) EBITDA for the
period of four
consecutive fiscal quarters of the U.S. Borrower most recently
ended as of such
date, all determined on a consolidated basis in accordance with
GAAP; provided
that to the extent any Asset Disposition or any Permitted Business
Acquisition
(or any similar transaction or transactions that require a waiver
or a consent
of the Required Lenders pursuant to Section 6.04 or Section 6.05)
has occurred
during the relevant Test Period, EBITDA shall be determined for the
respective
Test Period on a Pro Forma Basis for such occurrences.
"LIBO Rate" shall mean, with respect to any Eurocurrency
Borrowing
for any Interest Period, the rate per annum determined by the
Applicable Agent
at approximately 11:00 a.m., London time, on the Quotation Day for
such Interest
Period by reference to the British Bankers' Association Interest
Settlement
Rates for deposits in the currency of such Borrowing (as reflected
on the
applicable Telerate screen page), for a period equal to such
Interest Period;
provided that, to the extent that an interest rate is not
ascertainable pursuant
to the foregoing provisions of this definition, the "LIBO Rate"
shall be the
average (rounded upward, if necessary, to the next 1/100 of 1%) of
the
respective interest rates per annum at which deposits in the
currency of such
Borrowing are offered for such Interest Period to major banks in
the London
interbank market by JPMorgan Chase Bank, N.A., at approximately
11:00 a.m.,
London time, on the Quotation Day for such Interest Period.
<PAGE>
50
"Lien" shall mean, with respect to any asset, (a) any mortgage,
deed
of trust, lien, hypothecation, pledge, encumbrance, charge or
security interest
in or on 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" shall mean this Agreement, the Letters of
Credit,
the Security Documents, the Ancillary Facility Documents, the
Intercreditor
Agreement, any promissory note issued under Section 2.09(e) and any
Incremental
Facility Amendment.
"Loan Parties" shall mean Holdings, Intermediate Holdings, the
Borrowers and the Subsidiary Loan Parties.
"Loans" shall mean the Term Loans, the Revolving Loans, the
Swingline Loans and any loans made in respect of any Incremental
Extension of
Credit.
"Local Time" shall mean (a) with respect to a Loan or Borrowing
denominated in Dollars, New York City time and (b) with respect to
a Loan or
Borrowing denominated in any Foreign Currency, London time.
"London Administrative Office" shall mean the office of the
Administrative Agent at 125 London Wall, London EC2Y 5AJ, England,
Attention of
Loans Agency Division, Nichola Hall (Telecopy No.
011-44-207-777-2360).
"Lucas" shall mean Lucas Industries Limited, a company
organized
under the Laws of England and Wales.
"Lucas Notes" shall mean the 10-7/8% Bonds due 2020 of Lucas
issued
under the Trust Deed between Lucas and The Law Debenture Trust
Corporation
p.l.c. dated January 10, 1989.
"LucasVarity" shall mean Lucas-Varity Unlimited, a company
organized
under the laws of England and Wales.
"LucasVarity Holdings" shall mean LucasVarity Automotive
Holding
Co., a Delaware corporation.
"Majority Lenders" of any Facility shall mean, at any time,
Lenders
under such Facility having Loans, Ancillary Commitments and unused
Commitments
representing more than 50% of the sum of all Loans outstanding
under such
Facility, Ancillary
<PAGE>
51
Commitments and unused Commitments under such Facility at such
time.
"Management Equity Loan" shall mean (a) the loan on the Closing
Date
by the U.S. Borrower or Holdings to the Management Equity Vehicle
in an
aggregate principal amount not in excess of $12,000,000 and (b) if
applicable,
the loan on the Closing Date by the U.S. Borrower to Holdings in an
aggregate
principal amount equal to the loan, if any, by Holdings to the
Management Equity
Vehicle on the Closing Date.
"Management Equity Vehicle" shall mean trust accounts pursuant
to
escrow agreements dated as of February 21, 2003, and as of the
Closing Date.
"Management Group" shall mean the group consisting of the
directors,
executive officers and other management personnel of the U.S.
Borrower, Holdings
and Intermediate Holdings on the Closing Date together with (1) any
new
directors whose election by such boards of directors or whose
nomination for
election by the stockholders of the U.S. Borrower, Holdings, or
Intermediate
Holdings, as applicable, was approved by a vote of a majority of
the directors
of the U.S. Borrower, Holdings or Intermediate Holdings, as
applicable, then
still in office who were either directors on the Closing Date or
whose election
or nomination was previously so approved and (2) executive officers
and other
management personnel of the U.S. Borrower, Holdings or Intermediate
Holdings, as
applicable, hired at a time when the directors on the Closing Date
together with
the directors so approved constituted a majority of the directors
of the U.S.
Borrower, Holdings or Intermediate Holdings, as applicable.
"Margin Stock" shall have the meaning given such term in
Regulation
U.
"Material Adverse Effect" shall mean the existence of events,
conditions and/or contingencies that have had or are reasonably
likely to have
(a) a materially adverse effect on the business, operations,
properties, assets
or financial condition of the U.S. Borrower and the Subsidiaries,
taken as a
whole, (b) a material impairment of the ability of Holdings,
Intermediate
Holdings, the U.S. Borrower or any of the Subsidiaries to perform
any of its
material obligations under any Loan Document to which it is or will
be a party
or to consummate the Restatement Transactions or (c) an impairment
of the
validity or enforceability of, or a material impairment of the
material rights,
remedies or benefits available to the Lenders, any Issuing Bank,
the
Administrative Agent or the Collateral Agent under, any Loan
Document.
<PAGE>
52
"Material Indebtedness" shall mean Indebtedness (other than
Loans,
Ancillary Credit Extensions and Letters of Credit) of any one or
more of the
Loan Parties in an aggregate principal amount exceeding
$50,000,000.
"Maximum Rate" shall have the meaning provided in Section 9.09.
"Moody's" shall mean Moody's Investors Service, Inc.
"Mortgaged Properties" shall mean the owned real properties of
the
Loan Parties set forth on Schedule 3.18.
"Mortgages" shall mean the U.S. Mortgages and the Foreign
Mortgages.
"Multiemployer Plan" shall mean a multiemployer plan as defined
in
Section 4001(a)(3) of ERISA to which a Borrower, Holdings,
Intermediate Holdings
or any ERISA Affiliate (other than one considered an ERISA
Affiliate only
pursuant to subsection (m) or (o) of Code Section 414) is making or
accruing an
obligation to make contributions, or has within any of the
preceding five plan
years made or accrued an obligation to make contributions.
"Net Income" means, with respect to any person, the net income
(loss) of such person, determined in accordance with GAAP and
before any
reduction in respect of preferred stock dividends.
"Net
Proceeds" shall mean (a) 100% of the cash proceeds actually
received by Holdings, Intermediate Holdings, the U.S. Borrower or
any of the
Subsidiaries (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 and including casualty insurance
settlements
and condemnation awards, but only as and when received) from any
loss, damage,
destruction or condemnation of, or any sale, transfer or other
disposition
(including any sale and leaseback of assets and any mortgage or
lease of real
property) to any person of any asset or assets of the U.S. Borrower
or any of
the Subsidiaries (other than those pursuant to Section 6.05(a),
(b), (c), (e),
(f), (g), (i) or (j)), net of (i) attorneys' fees, accountants'
fees, investment
banking fees, survey costs, title insurance premiums, and related
search and
recording charges, transfer Taxes, deed or mortgage recording
Taxes, required
debt payments and required payments of other obligations relating
to the
applicable asset (other than pursuant hereto or pursuant to the
Senior Notes or
Senior Subordinated Notes), other customary expenses and brokerage,
consultant
and
<PAGE>
53
other customary fees actually incurred in connection therewith and
(ii) Taxes
paid or payable as a result thereof, provided that, if no Event of
Default
exists and the U.S. Borrower shall deliver a certificate of a
Responsible
Officer of the U.S. Borrower to the Administrative Agent promptly
following
receipt of any such proceeds setting forth the U.S. Borrower's
intention to use
any portion of such proceeds, to acquire, maintain, develop,
construct, improve,
upgrade or repair assets (including inventory) useful in the
business of the
U.S. Borrower and the Subsidiaries, or make investments pursuant to
Section
6.04(j), in each case within 12 months of such receipt, such
portion of such
proceeds shall not constitute Net Proceeds except to the extent not
so used
within such 12-month period, and provided, further, that (x) no
proceeds
realized in a single transaction or series of related transactions
shall
constitute Net Proceeds unless such proceeds shall exceed
$10,000,000 and (y) no
proceeds shall constitute Net Proceeds in any fiscal year until the
aggregate
amount of all such proceeds in such fiscal year (excluding any
proceeds that do
not constitute Net Proceeds during such fiscal year pursuant to
clause (x) of
this proviso) shall exceed $50,000,000, and (b) 100% of the cash
proceeds from
the incurrence, issuance or sale by the U.S. Borrower or any of the
Subsidiaries
of any Indebtedness (other than Indebtedness permitted pursuant to
Section 6.01
(other than 6.01(m)), net of all Taxes and fees (including
investment banking
fees), commissions, costs and other expenses, in each case incurred
in
connection with such issuance or sale. For purposes of calculating
the amount of
Net Proceeds, fees, commissions and other costs and expenses
payable to
Holdings, Intermediate Holdings or the U.S. Borrower or any
Affiliate of either
of them shall be disregarded, except for financial advisory fees
customary in
type and amount paid to Affiliates of the Fund.
"New Available Unused Commitment" shall mean, with respect to
any
Global Revolving Facility Lender at any time, an amount equal to
the amount by
which (a) the New Global Revolving Facility Commitment of such
Global Revolving
Facility Lender at such time exceeds (b) the sum of (x) the New
Global Revolving
Facility Credit Exposure of such Global Revolving Facility Lender
at such time
and (y) the Ancillary Commitment (if any) of such Global Revolving
Facility
Lender at such time. For purposes of calculating any Global
Revolving Facility
Lender's New Available Unused Commitment in connection with an
Ancillary
Replacement Borrowing, the amount of the Ancillary Commitment of
such New Global
Revolving Facility Lender shall be reduced by the amount of the
Ancillary
Commitment being terminated.
"New Global Revolving Facility" shall mean the New Global
Revolving
Facility Commitments and the extensions of credit made thereunder
by the Global
Revolving Facility Lenders.
<PAGE>
54
"New Global Revolving Facility Commitment" shall mean, with
respect
to each Global Revolving Facility Lender, the commitment of such
Global
Revolving Facility Lender to make New Global Revolving Facility
Loans at or
after the Effective Funding Time pursuant to Section 2.01,
expressed as an
amount representing the maximum aggregate permitted amount of such
Lender's New
Global Revolving Facility Credit 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 under
Section 9.04. The amount of each Global Revolving Facility Lender's
New Global
Revolving Facility Commitment is set forth on Schedule 2.01, or in
the
Assignment and Acceptance pursuant to which such Global Revolving
Facility
Lender shall have assumed its New Global Revolving Facility
Commitment, as
applicable. The aggregate amount of the New Global Revolving
Facility
Commitments on the date hereof is $500,000,000.
"New Global Revolving Facility Credit Exposure" shall mean, at
any
time at and after the Effective Funding Time, the sum of (a) the
aggregate
principal amount of the New Global Revolving Facility Loans
denominated in
Dollars outstanding at such time, (b) the Dollar Equivalent of the
aggregate
principal amount of the New Global Revolving Facility Loans
denominated in a
Foreign Currency outstanding at such time and (c) the Swingline
Foreign Currency
Exposure at such time. The New Global Revolving Facility Credit
Exposure of any
Global Revolving Facility Lender at any time at and after the
Effective Funding
Time shall be the sum of (a) the aggregate principal amount of such
Global
Revolving Facility Lender's New Global Revolving Facility Loans
denominated in
Dollars outstanding at such time, (b) the Dollar Equivalent of the
aggregate
principal amount of such Global Revolving Facility Lender's New
Global Revolving
Facility Loans denominated in a Foreign Currency outstanding at
such time and
(c) such Global Revolving Facility Lender's ratable share (based on
New
Available Unused Commitments) of the Swingline Foreign Currency
Exposure at such
time.
"New Global Revolving Facility Lender" shall mean a Lender with
a
New Global Revolving Facility Commitment or with outstanding New
Global
Revolving Facility Loans.
"New Global Revolving Facility Loan" shall mean a Loan made by
a
Global Revolving Facility Lender in respect of a New Global
Revolving Facility
Commitment pursuant to Section 2.01. Each New Global Revolving
Facility Loan
denominated in Dollars shall be a Eurocurrency Loan or an ABR Loan,
and each New
Global Revolving Facility Loan denominated in a Foreign Currency
shall be a
Eurocurrency Loan.
<PAGE>
55
"New Revolving Facility Lenders" shall mean the New Global
Revolving
Facility Lenders and the New U.S. Revolving Facility Lenders.
"New Revolving Borrowing" shall mean a Borrowing of New
Revolving
Loans.
"New Revolving Loans" shall mean the New Global Revolving
Facility
Loans and the New U.S. Revolving Facility Loans.
"New U.S. Revolving Facility" shall mean the New U.S. Revolving
Facility Commitments and the extensions of credit made hereunder by
the New U.S.
Revolving Facility Lenders.
"New U.S. Revolving Facility Commitment" shall mean, with respect
to
each U.S. Revolving Facility Lender, the commitment of such U.S.
Revolving
Facility Lender to make New U.S. Revolving Facility Loans at or
after the
Effective Funding Time pursuant to Section 2.01, expressed as an
amount
representing the maximum aggregate permitted amount of such
Lender's New U.S.
Revolving Facility Credit 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 amount of each U.S. Revolving Facility Lender's
New U.S.
Revolving Facility Commitment on the date hereof is set forth on
Schedule 2.01,
or in the Assignment and Acceptance pursuant to which such U.S.
Revolving
Facility Lender shall have assumed its New U.S. Revolving Facility
Commitment,
as applicable. The aggregate amount of the New U.S. Revolving
Facility
Commitments on the date hereof is $400,000,000.
"New U.S. Revolving Facility Credit Exposure" shall mean, at
any
time at and after the Effective Funding Time, the sum of (a) the
aggregate
principal amount of the New U.S. Revolving Facility Loans
outstanding at such
time, (b) the Swingline Dollar Exposure at such time and (c) the
Revolving L/C
Exposure at such time. The New U.S. Revolving Facility Credit
Exposure of any
Lender at any time at and after the Effective Funding Time shall be
such
Lender's New U.S. Revolving Facility Percentage of the New U.S.
Revolving
Facility Credit Exposure at such time.
"New U.S. Revolving Facility Lender" shall mean a Lender with a
New
U.S. Revolving Facility Commitment or with outstanding New U.S.
Revolving
Facility Loans.
"New U.S. Revolving Facility Loan" shall mean a Loan made by a
U.S.
Revolving Facility Lender in respect of a New U.S.
<PAGE>
56
Revolving Facility Commitment pursuant to Section 2.01. Each New
U.S. Revolving
Facility Loan shall be a Eurocurrency Loan or an ABR Loan.
"New U.S. Revolving Facility Percentage" shall mean, with respect
to
any U.S. Revolving Facility Lender, the percentage of the total New
U.S.
Revolving Facility Commitments represented by such Lender's New
U.S. Revolving
Facility Commitment. If the New U.S. Revolving Facility Commitments
have
terminated or expired, the New U.S. Revolving Facility Percentages
shall be
determined based upon the New U.S. Revolving Facility Commitments
most recently
in effect, giving effect to any assignments pursuant to Section
9.04.
"Newco UK" shall have the meaning assigned to such term in the
preamble to this Agreement.
"Newco UK Equity Contribution" shall have the meaning assigned
to
such term in the preamble to this Agreement.
"Newco UK Loan" shall
mean the loan from the U.S. Borrower to Newco
UK on the Closing Date in an aggregate principal amount equal to
$725,740,000
out of the proceeds of Loans made to the U.S. Borrower on the
Closing Date,
which loan is evidenced by a note and pledged pursuant to a Foreign
Pledge
Agreement.
"Northrop Space and Mission" shall mean Northrop Grumman Space
&
Mission Systems Corp., an Ohio corporation.
"Notice of Termination" shall have the meaning assigned to such
term
in Section 2.22(e)(ii).
"Obligations" shall mean the "Obligations", as such term is
defined
in the U.S. Collateral Agreement, and the "Foreign Obligations", as
such term is
defined in the Foreign Guarantee.
"Original Credit Agreement" shall mean the Credit Agreement dated
as
of February 27, 2003 among Holdings, Intermediate Holdings, the
U.S. Borrower,
the Foreign Subsidiary Borrowers party thereto, the lenders party
thereto from
time to time and JPMorgan Chase Bank, as administrative agent,
Credit Suisse
First Boston, acting through its Cayman Islands Branch, Lehman
Commercial Paper
Inc., and Deutsche Bank Securities Inc., each as co-syndication
agent, and Bank
of America, N.A., as documentation agent.
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property
<PAGE>
57
taxes, charges or similar levies arising from any payment made
hereunder or from
the execution, delivery or enforcement of, or otherwise with
respect to, the
Loan Documents.
"Participant" shall have the meaning assigned to such term in
Section 9.04(c).
"PBGC" shall mean the Pension Benefit Guaranty Corporation
referred
to and defined in ERISA.
"Perfection Certificates" shall mean the U.S. Perfection
Certificate
and the Foreign Perfection Certificates.
"Permitted Business Acquisition" shall mean any acquisition of
all
or substantially all the assets of, or all the Equity Interests
(other than
directors' qualifying shares) in, a person or division or line of
business of a
person (or any subsequent investment made in a person, division or
line of
business previously acquired in a Permitted Business Acquisition)
if (a) such
person or division is engaged in the same or a similar line of
business as the
U.S. Borrower and the Subsidiaries or a reasonable extension,
development or
expansion of such line of business or a business ancillary to such
line of
business, (b) such acquisition was not preceded by, or effected
pursuant to, an
unsolicited or hostile offer and (c) immediately after giving
effect thereto:
(i) no Default or Event of Default shall have occurred and be
continuing or
would result therefrom; (ii) all transactions related thereto shall
be
consummated in accordance with applicable laws; (iii) the Equity
Interests of
any acquired or newly formed corporation, partnership, association
or other
business entity are held directly by (A) the U.S. Borrower, (B) a
Wholly Owned
Subsidiary that is a Domestic Subsidiary Loan Party or (C) if such
corporation,
partnership, association or other business entity is incorporated
or organized
under the laws of any jurisdiction other than the United States of
America, any
State thereof or the District of Columbia, a Foreign Subsidiary
Loan Party and,
in each case, such acquired or newly formed Subsidiary shall become
a Subsidiary
Loan Party and all actions required to be taken with respect to
such acquired or
newly formed Subsidiary Loan Party under Section 5.10 shall have
been taken and
(iv)(A) the U.S. Borrower and the Subsidiaries shall be in
compliance, on a Pro
Forma Basis after giving effect to such acquisition or formation,
with the
covenants contained in Sections 6.11 and 6.12 recomputed as at the
last day of
the most recently ended fiscal quarter of the U.S. Borrower and
the
Subsidiaries, and the U.S. Borrower shall have delivered to the
Administrative
Agent a certificate of a Responsible Officer of the U.S. Borrower
to such
effect, together with all relevant financial information for such
Subsidiary or
assets, and (B) any
<PAGE>
58
acquired or newly formed Subsidiary shall not be liable for any
Indebtedness
(except for Indebtedness permitted by Section 6.01).
"Permitted Cure Security" means an equity security of Holdings
(or
the surviving entity in any merger of Holdings permitted under
Section 6.05(b))
having no mandatory redemption, repurchase or similar requirements
prior to
December 31, 2012, and upon which all dividends or distributions
(if any) shall
be payable solely in additional shares of such equity security.
"Permitted Holder" shall mean the Fund, the Fund Affiliates and
the
Management Group.
"Permitted Investments" shall mean: (a) direct obligations of
the
United States of America or any agency thereof or obligations
guaranteed by the
United States of America or any agency thereof; (b) time deposit
accounts,
certificates of deposit and money market deposits maturing within
365 days of
the date of acquisition thereof issued by a bank or trust company
that is
organized under the laws of the United States of America, any state
thereof or
any foreign country recognized by the United States of America
having capital,
surplus and undivided profits having a Dollar Equivalent that is in
excess of
$500,000,000 and whose long-term debt, or whose parent holding
company's
long-term debt, is rated A (or such similar equivalent rating or
higher by at
least one nationally recognized statistical rating organization (as
defined in
Rule 436 under the Securities Act); (c) repurchase obligations with
a term of
not more than 365 days for underlying securities of the types
described in
clause (a) above entered into with a bank meeting the
qualifications described
in clause (b) above; (d) commercial paper, maturing not more than
365 days after
the date of acquisition, issued by a corporation (other than an
Affiliate of any
Borrower) organized and in existence under the laws of the United
States of
America or any foreign country recognized by the United States of
America with a
rating at the time as of which any investment therein is made of
P-1 (or higher)
according to Moody's, or A-1 (or higher) according to S&P; (e)
securities with
maturities of twelve months or less from the date of acquisition
issued or fully
guaranteed by any State, commonwealth or territory of the United
States of
America, or by any political subdivision or taxing authority
thereof, and rated
at least A by S&P or A by Moody's; (f) in the case of any
Foreign Subsidiary:
(i) direct obligations of the sovereign nation (or any agency
thereof) in which
such Foreign Subsidiary is organized and is conducting business or
in
obligations fully and unconditionally guaranteed by such sovereign
nation (or
any agency thereof), (ii) investments of the type and maturity
described in
clauses (a) through (e) above of foreign obligors, which
investments or obligors
(or the parents of such obligors) have ratings described in such
clauses or
<PAGE>
59
equivalent ratings from comparable foreign rating agencies or (iii)
investments
of the type and maturity described in clauses (a) through (e) above
of foreign
obligors (or the parents of such obligors), which investments or
obligors (or
the parents of such obligors) are not rated as provided in such
clauses or in
clause (ii) above but which are, in the reasonable judgment of the
U.S.
Borrower, comparable in investment quality to such investments and
obligors (or
the parents of such obligors); (g) shares of mutual funds whose
investment
guidelines restrict 95% of such funds' investments to those
satisfying the
provisions of clauses (a) through (e) above; (h) money market funds
that (i)
comply with the criteria set forth in Rule 2a-7 under the
Investment Company Act
of 1940, (ii) are rated AAA by S&P and Aaa by Moody's and (iii)
have portfolio
assets of at least $5,000,000,000; and (i) time deposit accounts,
certificates
of deposit and money market deposits in an aggregate face amount
not in excess
of 5% of the total assets of the U.S. Borrower and the
Subsidiaries, on a
consolidated basis, as of the end of the U.S. Borrower's most
recently completed
fiscal year.
"Permitted Lucas Refinancing Indebtedness" shall mean any
Indebtedness of (a) the U.S. Borrower, Lucas or any Subsidiary
issued in
exchange for, or the net proceeds of which are used to extend,
refinance, renew,
replace, defease or refund (collectively, to "Refinance") the Lucas
Notes (it
being understood that the assumption by any Subsidiary of the
obligations in
respect of the Lucas Notes shall constitute such a Refinancing) or
(b) Lucas
issued to Northrop Space and Mission upon the drawing of an
Acceptable Letter of
Credit pursuant to the Letter Agreement dated as of February 5,
2003, between
Northrop Grumman Corporation and BCP Acquisition Company LLC;
provided that the
proceeds of such Acceptable Letter of Credit are applied to repay
the Lucas
Notes or are held in an escrow account reasonably satisfactory to
the
Administrative Agent until such proceeds are so applied; provided,
further,
that, in either case, (v) the principal amount of such Permitted
Lucas
Refinancing Indebtedness does not exceed the principal amount of
Lucas Notes
being Refinanced (plus unpaid accrued interest and premium
thereon), unless such
excess could be incurred under any provision of Section 6.01 (other
than clause
(a) thereof), (w) the stated maturity of such Permitted Lucas
Refinancing
Indebtedness is no earlier than 180 days after the Tranche B
Maturity Date or
the maturity date for any outstanding Incremental Extension of
Credit, (x) such
Permitted Lucas Refinancing Indebtedness does not require any
scheduled
amortization, principal or sinking fund payments earlier than 180
days after the
Tranche B Maturity Date or the maturity date for any outstanding
Incremental
Extension of Credit, (y) such Permitted Lucas Refinancing
Indebtedness is not
secured by any
<PAGE>
60
collateral and (z) all other terms (excluding interest rates and
redemption
premiums) of such Permitted Lucas Refinancing Indebtedness are not
less
favorable to the Lenders in any material respect than those
contained in the
Senior Notes (or, if such Permitted Lucas Refinancing Indebtedness
is
subordinated to the Obligations, the Senior Subordinated Notes);
provided that
(i) in the event of any Refinancing resulting from the assumption
of the Lucas
Notes by a Subsidiary, such Permitted Lucas Refinancing
Indebtedness may have
the same terms as the Lucas Notes and (ii) such Permitted Lucas
Refinancing
Indebtedness may be guaranteed by the U.S. Borrower and the
Subsidiaries.
"Permitted Notes Refinancing Indebtedness" means any Indebtedness
of
the U.S. Borrower issued to Refinance all or any portion of the
Senior Notes or
Senior Subordinated Notes (or previous refinancings thereof
constituting
Permitted Notes Refinancing Indebtedness); provided that (a) the
principal
amount of such Permitted Notes Refinancing Indebtedness does not
exceed the
principal amount of the Senior Notes or Senior Subordinated Notes
being
Refinanced (plus unpaid accrued interest and premium thereon), (b)
the stated
maturity of such Permitted Notes Refinancing Indebtedness is no
earlier than 180
days after the Tranche B Maturity Date or the maturity date for any
outstanding
Incremental Extension of Credit, (c) such Permitted Notes
Refinancing
Indebtedness does not require any scheduled amortization, principal
or sinking
fund payments earlier than 180 days after the Tranche B Maturity
Date or the
maturity date for any outstanding Incremental Extension of Credit,
(d) with
respect to any Refinancing of Senior Subordinated Notes, such
Permitted Notes
Refinancing Indebtedness is subordinated in right of payment to the
Obligations
on terms no less favorable to the Lenders than those contained in
the Senior
Subordinated Notes Documents, (e) such Permitted Notes Refinancing
Indebtedness
does not have different obligors or guarantors than those with
respect to the
Senior Notes or Senior Subordinated Notes, (f) such Permitted Notes
Refinancing
Indebtedness is not secured by any collateral and (g) all other
terms (excluding
interest rates and redemption premiums) of such Permitted
Refinancing
Indebtedness are not less favorable to the Lenders in any material
respect than
those contained in the Senior Notes or Senior Subordinated Notes,
as applicable.
"Permitted Receivables Documents" means the U.S. Receivables
Purchase Agreement, the Receivables Transfer Agreement and the
Receivables Loan
Agreement and all other documents and agreements relating to the
Permitted
Receivables Financing.
"Permitted Receivables Financing" shall mean (a)(i) the sale by
the
U.S. Borrower and certain Subsidiaries of
<PAGE>
61
accounts receivable to the Transferor pursuant to the U.S.
Receivables Purchase
Agreement and (ii) the sale of such accounts receivable by the
Transferor to the
Receivables Subsidiary pursuant to the Receivables Transfer
Agreement, (b) the
loans made by the lenders under the Receivables Loan Agreement to
the
Receivables Subsidiary to finance the purchase of such accounts
receivables and
loans or (c) any sale or financing by a Foreign Subsidiary of its
accounts
receivable (including any bills of exchange) or by the U.S.
Borrower or any
Subsidiary of accounts receivable (including any bills of exchange)
owing by an
obligor domiciled outside the United States, provided that (A) any
such sale or
financing shall provide for recourse to such Foreign Subsidiary or
the U.S.
Borrower (as applicable) only to the extent customary for similar
sales or
financings in the jurisdiction relevant to such sale or financing
and (B) the
sum of, without duplication, (x) the aggregate principal amounts
financed
pursuant to clauses (a) and (b) of this definition, (y) the
aggregate principal
amounts financed pursuant to clause (c) of this definition and (z)
the aggregate
Net Investment in accounts receivable pursuant to clause (c) shall
not exceed
$600,000,000 at any time. For the purpose of this definition, "Net
Investment"
means the cash purchase price paid by the buyer in connection with
its purchase
of accounts receivable (including any bills of exchange) less the
amount of
collections received in respect of such accounts receivable and
paid to such
buyer, excluding any amounts applied to purchase fees or discount
or in the
nature of interest, in each case as determined in good faith and in
a consistent
and commercially reasonable manner by the U.S. Borrower.
"person" shall mean any natural person, corporation, business
trust,
joint venture, association, company, partnership, limited liability
company or
government, individual or family trusts, or any agency or political
subdivision
thereof.
"Plan" shall mean any employee pension benefit plan (other than
a
Multiemployer Plan) subject to the provisions of Title IV of ERISA
or Section
412 of the Code and in respect of which Holdings, Intermediate
Holdings, the
U.S. Borrower, any Subsidiary 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.
"Pledged Collateral" shall have the meaning assigned to such term
in
the U.S. Collateral Agreement or a Foreign Pledge Agreement, as
applicable.
"primary obligor" shall have the meaning given such term in the
definition of the term Guarantee.
<PAGE>
62
"Prime Rate" shall mean the rate of interest per annum publicly
announced from time to time by the Administrative Agent as its
prime rate in
effect at its principal office in New York City; each change in the
Prime Rate
shall be effective on the date such change is publicly announced as
being
effective.
"Pro Forma Basis" shall mean, as to any person, for any events
as
described in clauses (i) and (ii) below that occur subsequent to
the
commencement of a period for which the financial effect of such
events is being
calculated, and giving effect to the events for which such
calculation is being
made, such calculation as will give pro forma effect to such events
as if such
events occurred on the first day of the four consecutive fiscal
quarter period
last ended on or before the occurrence of such event (the
"Reference Period"):
(i) in making any determination of EBITDA, pro forma effect shall
be
given to
any Asset Disposition and to any Permitted Business Acquisition
(or any
similar transaction or transactions that require a waiver or
consent of
the Required Lenders pursuant to Section 6.04 or 6.05), in each
case that
occurred during the Reference Period (or, in the case of
determinations made
pursuant to the definition of the term "Permitted
Business
Acquisition" and Section 2.23, occurring during the Reference
Period or
thereafter and through and including the date upon which the
respective
Permitted Business Acquisition is consummated or the date of
the
applicable Incremental Extension of Credit as the case may be);
and
(ii) in making any determination on a Pro Forma Basis, (x) all
Indebtedness (including Indebtedness incurred or assumed and for
which the
financial
effect is being calculated, whether incurred under this
Agreement
or otherwise, but excluding normal fluctuations in revolving
Indebtedness incurred for working capital purposes and amounts
outstanding
under any
Permitted Receivables Financing, in each case not to finance
any
acquisition) incurred or permanently repaid during the Reference
Period
(or, in
the case of determinations made pursuant to the definition of
the
term
"Permitted Business Acquisition" and Section 2.23 occurring
during
the
Reference Period or thereafter and through and including the date
upon
which the
respective Permitted Business Acquisition is consummated or the
date of
the applicable Incremental Extension of Credit, as the case may
be) shall
be deemed to have been incurred or repaid at the beginning of
such
period and (y) Interest Expense of such person attributable to
interest
on any Indebtedness, for which pro forma effect is being given
as
provided
in preceding clause (x), bearing
<PAGE>
63
floating
interest rates shall be computed on a pro forma basis as if the
rates that
would have been in effect during the period for which pro forma
effect is
being given had been actually in effect during such periods.
Pro forma calculations made pursuant to the definition of "Pro
Forma Basis"
shall be determined in good faith by a Responsible Officer of the
U.S. Borrower
and, for any fiscal period ending on or prior to the first
anniversary of a
Permitted Business Acquisition or Asset Disposition (or any similar
transaction
or transactions that require a waiver or consent of the Required
Lenders
pursuant to Section 6.04 or 6.05), may include adjustments to
reflect operating
expense reductions reasonably expected to result from such
Permitted Business
Acquisition, Asset Disposition or other similar transaction, less
the amount of
costs reasonably expected to be incurred by the U.S. Borrower and
the
Subsidiaries to achieve such cost savings, to the extent that the
U.S. Borrower
delivers to the Administrative Agent (i) a certificate of a
Financial Officer of
the U.S. Borrower setting forth such operating expense reductions
and the costs
to achieve such reductions and (ii) information and calculations
supporting in
reasonable detail such estimated operating expense reductions and
the costs to
achieve such reductions.
"Projections" shall mean the projections of the U.S. Borrower
and
the Subsidiaries included in the Lenders' Presentation and any
other projections
and any forward-looking statements (including statements with
respect to booked
business) of such entities furnished to the Lenders or the
Administrative Agent
by or on behalf of Holdings, Intermediate Holdings, the U.S.
Borrower or a
Subsidiary prior to the Restatement Effective Date in connection
with the
Restatement Transactions.
"Public Offering" shall mean any public sale of common stock of
Holdings, other than public offerings with respect to the common
stock of
Holdings registered on Form S-8 under the Securities Act (or any
successor form
thereto).
"Public Offering Net Proceeds" shall mean the cash proceeds from
any
Public Offering, net of all fees (including investment banking
fees), discounts,
commissions, costs and other expenses, in each case incurred in
connection with
such Public Offering. In connection with the calculation of the
Public Offering
Net Proceeds with respect to any Public Offering, all fees,
discounts,
commissions, costs and expenses shall be allocated among the shares
sold in such
Public Offering on a pro rata basis.
"Purchase Agreement" shall mean the Master Purchase Agreement
between BCP Acquisition Company L.L.C. and Northrop
<PAGE>
64
Grumman Corporation dated as of November 18, 2002, as amended,
restated,
supplemented or otherwise modified from time to time in accordance
with the
requirements thereof and of this Agreement.
"Quotation Day" shall mean, with respect to any Eurocurrency
Borrowing or Swingline Foreign Currency Borrowing and any Interest
Period, the
day on which it is market practice in the relevant interbank market
for prime
banks to give quotations for deposits in the currency of such
Borrowing for
delivery on the first day of such Interest Period. If such
quotations would
normally be given by prime banks on more than one day, the
Quotation Day will be
the last of such days.
"Reaffirmation Agreement" shall mean the Reaffirmation
Agreement,
attached hereto as Exhibit P, among Holdings, Intermediate
Holdings, the U.S.
Borrower and the other Reaffirming Parties (as defined therein), as
amended,
supplemented or otherwise modified from time to time.
"Receivables Loan Agreement" shall mean the Receivables Loan
Agreement dated as of February 28, 2003, by and among the
Receivables
Subsidiary, the conduit lenders and committed lenders from time to
time party
thereto, JPMorgan Chase Bank, Credit Suisse First Boston, Lehman
Commercial
Paper Inc. and Deutsche Bank A.G., New York Branch, as funding
agents, and
JPMorgan Chase Bank, as administrative agent, as it may be amended,
supplemented
or otherwise modified to the extent permitted by Section 6.09 and
(b) any
agreement replacing the Receivables Loan Agreement, provided that
such replacing
agreement contains terms that are substantially similar to such
Receivables Loan
Agreement and that are otherwise no more adverse in any material
respect to the
Lenders than the applicable terms of such Receivables Loan
Agreement.
"Receivables Subsidiary" shall mean TRW Auto Global
Receivables,
LLC, a Delaware limited liability company.
"Receivables Transfer Agreement" shall mean (a) the Transfer
Agreement dated as of February 28, 2003, between the Transferor and
the
Receivables Subsidiary, relating to the Permitted Receivables
Financing, as it
may be amended, supplemented or otherwise modified to the extent
permitted by
Section 6.09 and (b) any agreement replacing such Receivables
Transfer
Agreement, provided that such replacing agreement contains terms
that are
substantially similar to such Receivables Transfer Agreement and
that are
otherwise no more adverse in any material respect to the Lenders
than the
applicable terms of such Receivables Transfer Agreement.
<PAGE>
65
"Reference Period" shall have the meaning assigned to such term
in
the definition of the term "Pro Forma Basis".
"Refinance" shall have the meaning assigned to such term in the
definition of "Permitted Lucas Refinancing Indebtedness", and
"Refinanced" and
"Refinancing" shall have the meanings correlative thereto.
"Register" shall have the meaning assigned to such term in
Section
9.04(b).
"Regulation U" shall mean Regulation U of the Board as from time
to
time in effect and all official rulings and interpretations
thereunder or
thereof.
"Regulation X" shall mean Regulation X of the Board as from time
to
time in effect and all official rulings and interpretations
thereunder or
thereof.
"Related Parties" means, with respect to any specified person,
such
person's Affiliates and the respective directors, officers,
employees, agents
and advisors of such person and such person's Affiliates.
"Remaining Present Value" shall mean, as of any date with respect
to
any lease, the present value as of such date of the scheduled
future lease
payments with 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.
"Reportable Event" shall mean any reportable event as defined
in
Section 4043(c) of ERISA or the regulations issued thereunder,
other than those
events as to which the 30-day notice period referred to in Section
4043(c) of
ERISA has been waived, with respect to a Plan (other than a Plan
maintained by
an ERISA Affiliate that is considered an ERISA Affiliate only
pursuant to
subsection (m) or (o) of Section 414 of the Code).
"Required Issuance Date" shall mean, with respect to any
claimed
breach of the terms of, or default under, the Lucas Notes, (a) the
date that is
no later than the second Business Day prior to the expiration of
any grace
period applicable to such claimed breach or default (unless the
trustee under
the Lucas Notes has theretofore been enjoined from declaring the
Lucas Notes to
be immediately due and payable, in which event such date shall be
deferred until
the earliest of (i) the 90th day after the date of issuance of such
injunction,
(ii) the second Business Day prior to the date on which Lucas
reasonably
determines that such injunction is likely to be lifted or to expire
and (iii)
two
<PAGE>
66
Business Days after such injunction is lifted or expires) or (b)
the date that
is no later than the second Business Day after the date on which
the trustee
with respect to the Lucas Notes delivers written notice declaring
the Lucas
Bonds to be immediately due and payable without having provided
Lucas an
opportunity to remedy such claimed breach or default.
"Required Lenders" shall mean, at any time, Lenders having (a)
Loans
(other than Swingline Loans) outstanding, (b) Revolving L/C
Exposures, (c)
Swingline Exposures, (d) unused U.S. Revolving Facility Commitments
(excluding
Commitments to make Swingline Loans), (e) Available Unused
Commitments, (f)
Ancillary Commitments, (g) unfunded Tranche A Term Loan Commitments
and (h)
unfunded Tranche B Term Loan Commitments, that taken together,
represent more
than 50% of the sum of (i) all Loans (other than Swingline Loans)
outstanding,
(ii) Revolving L/C Exposures, (iii) Swingline Exposures, (iv)
unused U.S.
Revolving Facility Commitments (excluding commitments to make
Swingline Loans),
(v) the total Available Unused Commitments, (vi) Ancillary
Commitments, (vii)
all unfunded Tranche A Term Loan Commitments and (viii) all
unfunded Tranche B
Term Loan Commitments at such time. For purposes of the foregoing,
the (i)
Loans, Revolving L/C Exposures, Swingline Exposures, unused U.S.
Revolving
Facility Commitment, Available Unused Commitment, Ancillary
Commitment, unfunded
Tranche A Term Loan Commitment and unfunded Tranche B Term Loan
Commitment of
any Defaulting Lender shall be disregarded in determining the
Required Lenders
at any time and (ii) in determining the Required Lenders at any
time prior to
the Effective Funding Time, the Available Unused Commitments shall
include both
the Existing Available Unused Commitments and the New Available
Unused
Commitments.
"Required Percentage" shall mean, with respect to an Excess
Cash
Flow Period, (i) 50%, if the Leverage Ratio at the end of such
Excess Cash Flow
Period is greater than or equal to 3.25 to 1.00, (ii) 25%, if the
Leverage Ratio
at the end of such Excess Cash Flow Period is greater than or equal
to 2.50 to
1.00 but less than 3.25 to 1.00 and (iii) 0%, if the Leverage Ratio
at the end
of such Excess Cash Flow Period is less than 2.50 to 1.00.
"Required Restatement Lenders" shall mean (a) the Required
Lenders
(as defined in the Existing Credit Agreement), (b) each of the New
Revolving
Facility Lenders, (c) each of the Tranche A Term Loan Lenders and
(d) each of
the Tranche B Term Loan Lenders.
"Reserve Account" shall have the meaning assigned to such term
in
Section 11.02(a).
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67
"Reset Date" shall have the meaning assigned to such term in
Section
1.03(a).
"Responsible Officer" of any person shall mean any executive
officer
or Financial Officer of such person and any other officer or
similar official
thereof responsible for the administration of the obligations of
such person in
respect of this Agreement.
"Restatement Effective Date" shall mean the date on which the
conditions specified in Section 4.01 are satisfied (or waived by
the Required
Restatement Lenders).
"Restatement Effective Date Ancillary Facility" shall mean each
Ancillary Facility made available on the Restatement Effective Date
and set
forth on Schedule 1.01(c).
"Restatement Effective Date Foreign Subsidiary Borrower
Agreement"
shall mean a Foreign Subsidiary Borrower Agreement listed on
Schedule 1.01(i)
entered into by Foreign Subsidiary Borrowers listed on such
schedule on the
Restatement Effective Date.
"Restatement Transactions" shall mean the execution and delivery
of
this Agreement by each Person party thereto, the satisfaction of
the conditions
to the effectiveness thereof and the consummation of the
transactions
contemplated thereby.
"Revolving Borrowing" shall mean a Borrowing comprised of
Revolving
Loans.
"Revolving
Credit Commitment" shall mean a Global Revolving Facility
Commitment or a U.S. Revolving Facility Commitment.
"Revolving Credit Exposure" shall mean, with respect to any
Lender
at any time, the sum at such time, without duplication, of (a) such
Lender's
Global Revolving Facility Credit Exposure and (b) such Lender's
U.S. Revolving
Facility Credit Exposure.
"Revolving Credit Lender" shall mean a Lender with a Revolving
Credit Commitment.
"Revolving Credit Maturity Date" shall mean February 28, 2009 or,
if
the Effective Funding Time occurs, January 10, 2010.
"Revolving L/C Exposure" shall mean at any time the sum of (a)
the
aggregate undrawn amount of all Letters of Credit denominated in
Dollars
outstanding at such time, (b) the Dollar
<PAGE>
68
Equivalent of the aggregate undrawn amount of all Letters of Credit
denominated
in a Foreign Currency outstanding at such time, (c) the aggregate
principal
amount of all L/C Disbursements (i) made in Dollars that have not
yet been
reimbursed at such time or (ii) made in a Foreign Currency and
converted into
Dollars pursuant to Section 2.05(e) or 2.05(k) and (d) the Dollar
Equivalent of
the aggregate principal amount of all L/C Disbursements made in a
Foreign
Currency that have not yet been reimbursed or converted into
Dollars pursuant to
Section 2.05(e) or 2.05(k). The Revolving L/C Exposure of any U.S.
Revolving
Facility Lender at any time shall mean its U.S. Revolving Facility
Percentage of
the aggregate Revolving L/C Exposure at such time.
"Revolving Loans" shall mean Global Revolving Facility Loans
and
U.S. Revolving Facility Loans.
"Sale and Lease-Back Transaction" shall have the meaning assigned
to
such term in Section 6.03.
"S&P" shall mean Standard & Poor's Ratings Group, Inc.
"SEC" shall mean the Securities and Exchange Commission or any
successor thereto.
"Second Amendment and Restatement Agreement" shall have the
meaning
assigned to such term in the preamble to this Agreement.
"Second Restatement Effective Date" shall mean January 9, 2004.
"Secured Parties" shall mean the "Secured Parties" as defined in
the
U.S. Collateral Agreement.
"Securities Act" shall have the meaning assigned to such term in
the
preamble to this Agreement.
"Security Documents" shall mean the Mortgages, the U.S.
Collateral
Agreement, the Foreign Pledge Agreements, the Foreign Security
Agreements, the
Foreign Guarantee, the Finco Guarantee, the Reaffirmation Agreement
and each of
the security agreements, mortgages and other instruments and
documents executed
and delivered pursuant to any of the foregoing or pursuant to
Section 5.10.
"Seller Note" shall mean the subordinated Indebtedness in an
aggregate principal amount of $600,000,000 issued on the Closing
Date by
Intermediate Holdings and evidenced by a note,
<PAGE>
69
which Indebtedness was repaid in full on November 12, 2004 with the
proceeds of
the Intermediate Holdings Loan.
"Senior Note Documents" shall mean the Senior Notes and the
Senior
Note Indentures.
"Senior Note Indentures" shall mean the Indentures dated as of
February 18, 2003, among the U.S. Borrower, the Subsidiaries party
thereto and
the trustee named therein from time to time, as in effect on the
Closing Date
and as amended, restated, supplemented or otherwise modified from
time to time
in accordance with the requirements thereof and of this
Agreement.
"Senior Notes" shall mean the U.S. Borrower's 9.375% Senior
Notes
due 2013 and 10.125% Senior Notes due 2013, in each case issued
pursuant to the
Senior Note Indentures and any notes issued by the U.S. Borrower in
exchange
for, and as contemplated by, the Senior Notes with substantially
identical terms
as the Senior Notes.
"Senior Subordinated Note Documents" shall mean the Senior
Subordinated Notes and the Senior Subordinated Note Indentures.
"Senior Subordinated Note Indentures" shall mean the Indentures
dated as of February 18, 2003, among the U.S. Borrower, the
Subsidiaries party
thereto and the trustee named therein from time to time, as in
effect on the
Closing Date and as amended, restated, supplemented or otherwise
modified from
time to time in accordance with the requirements thereof and of
this Agreement.
"Senior Subordinated Notes" shall mean the U.S. Borrower's 11%
Senior Subordinated Notes due 2013 and 11.75% Senior Subordinated
Notes due
2013, in each case issued pursuant to the Senior Subordinated Note
Indentures
and any notes issued by the U.S. Borrower in exchange for, and as
contemplated
by, the Senior Subordinated Notes with substantially identical
terms as the
Senior Subordinated Notes.
"Statutory Reserves" shall mean, with respect to any currency,
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, liquid asset or other similar percentages (expressed as a
decimal)
established by any Governmental Authority of the United States of
America or of
the jurisdiction of such currency or any jurisdiction in which
Loans in such
currency are made to which banks in such jurisdiction are subject
for any
category of deposits or liabilities customarily used to fund loans
in such
<PAGE>
70
currency or by reference to which interest rates applicable to
Loans in such
currency are determined.
"Sterling" or "(pound)" shall mean the lawful money of the
United
Kingdom.
"Stock Consideration" shall have the meaning assigned to such
term
in the preamble to this Agreement.
"Stockholders Agreement" shall mean the Stockholders Agreement
dated
as of February 28, 2003, among the Fund and Northrop Grumman
Corporation, as
amended, restated, supplemented or otherwise modified from time to
time in
accordance with the requirements thereof and of this Agreement.
"Stock Purchases" shall have the meaning assigned to such term
in
the preamble to this Agreement.
"Subordinated Intercompany Debt" shall have the meaning assigned
to
such term in Section 6.01(d).
"subsidiary" shall mean, with respect to any person (herein
referred
to as the "parent"), any corporation, partnership, association or
other business
entity (a) of which securities or other ownership interests
representing more
than 50% of the equity or more than 50% of the ordinary voting
power or more
than 50% of the general partnership interests are, at the time any
determination
is being made, directly or indirectly, owned, Controlled or held,
or (b) that
is, at the time any determination is made, otherwise Controlled, by
the parent
or one or more subsidiaries of the parent or by the parent and one
or more
subsidiaries of the parent.
"Subsidiary" shall mean a subsidiary of the U.S. Borrower.
"Subsidiary Loan Party" shall mean each Subsidiary that is (a)
a
Domestic Subsidiary Loan Party or (b) a Foreign Subsidiary Loan
Party.
"Swap Agreement" shall mean 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
<PAGE>
71
current or former directors, officers, employees or consultants of
the U.S.
Borrower or a Subsidiary shall be a Swap Agreement.
"Swingline Borrowing Request" shall mean a request by a
Borrower
substantially in the form of Exhibit C-2.
"Swingline Dollar Borrowing" shall mean a Borrowing comprised
of
Swingline Dollar Loans.
"Swingline Dollar Commitment" shall mean, with respect to each
Swingline Dollar Lender, the commitment of such Swingline Dollar
Lender to make
Swingline Dollar Loans pursuant to Section 2.04. The amount of each
Swingline
Dollar Lender's Swingline Dollar Commitment on the Restatement
Effective Date is
set forth on Schedule 2.04(a). The aggregate amount of the
Swingline Dollar
Commitments on the Restatement Effective Date is $75,000,000.
"Swingline Dollar Exposure" shall mean at any time the
aggregate
principal amount of all outstanding Swingline Dollar Borrowings at
such time.
The Swingline Dollar Exposure of any U.S. Revolving Facility Lender
at any time
shall mean its U.S. Revolving Facility Percentage of the aggregate
Swingline
Dollar Exposure at such time.
"Swingline Dollar Lender" shall mean a Lender with a Swingline
Dollar Commitment or outstanding Swingline Dollar Loans.
"Swingline Dollar Loans" shall mean the swingline loans
denominated
in Dollars and made to the U.S. Borrower pursuant to Section
2.04.
"Swingline Exposure" shall mean at any time the sum of the
Swingline
Dollar Exposure and the Swingline Foreign Currency Exposure.
"Swingline Foreign Currency Borrowing" shall mean a Borrowing
comprised of Swingline Foreign Currency Loans.
"Swingline Foreign Currency Commitment" shall mean, with respect
to
each Swingline Foreign Currency Lender, the commitment of such
Swingline Foreign
Currency Lender to make Swingline Foreign Currency Loans pursuant
to Section
2.04. The amount of each Swingline Foreign Currency Lender's
Swingline Foreign
Currency Commitment on the Restatement Effective Date is set forth
on Schedule
2.04(b). The aggregate amount of the Swingline Foreign Currency
Commitments on
the Restatement Effective Date is $50,000,000.
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72
"Swingline Foreign Currency Exposure" shall mean at any time
the
Dollar Equivalent of the aggregate principal amount of all
outstanding Swingline
Foreign Currency Loans at such time. The Swingline Foreign Currency
Exposure of
any Global Revolving Facility Lender at any time shall mean its
ratable share
(based on Available Unused Commitments) of the aggregate Swingline
Foreign
Currency Exposure at such time.
"Swingline Foreign Currency Lender" shall mean a Lender with a
Swingline Foreign Currency Commitment or outstanding Swingline
Foreign Currency
Loans.
"Swingline Foreign Currency Loans" shall mean the swingline
loans
denominated in a Foreign Currency and made to a Foreign Subsidiary
Borrower
pursuant to Section 2.04.
"Swingline Foreign Currency Rate" shall mean with respect to
any
Swingline Foreign Currency Borrowing, (a) for an Interest Period of
1 day or 7
days, the rate per annum determined by the Applicable Agent on the
Quotation Day
for such Interest Period by reference to the British Bankers'
Association
Interest Settlement Rates for deposits in the currency of such
Borrowing (as
reflected on the applicable Telerate screen page), for a period
equal to such
Interest Period or (b) for any other Interest Period, the average
(rounded
upward, if necessary, to the next 1/100 of 1%) of the respective
interest rates
per annum at which deposits in the currency of such Swingline
Foreign Currency
Borrowing are offered for such Interest Period to major banks in
the London
interbank market by JPMorgan Chase Bank, N.A., Deutsche Bank A.G.
and Bank of
America, N.A. on the Quotation Day.
"Swingline Lender" shall mean (i) the Swingline Dollar Lenders,
in
their respective capacities as Lenders of Swingline Dollar Loans,
and (ii) the
Swingline Foreign Currency Lenders, in their respective capacities
as Lenders of
Swingline Foreign Currency Loans.
"Swingline Loans" shall mean the Swingline Dollar Loans and the
Swingline Foreign Currency Loans.
"Taxes" shall mean any and all present or future taxes, levies,
imposts, duties (including stamp duties), deductions, charges
(including ad
valorem charges) or withholdings imposed by any Governmental
Authority.
"Term Borrowing" shall mean a Borrowing comprised of Term
Loans.
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73
"Term Loans" shall mean the Tranche A Term Loans, the Tranche
A-1
Term Loans, the Tranche B Term Loans, the Tranche D-1 Term Loans,
the Tranche
D-2 Term Loans and the Tranche E Term Loans. Each Tranche A Term
Loan, each
Tranche A-1 Term Loan, each Tranche B Term Loan, each Tranche D-1
Term Loan and
each Tranche E Term Loan shall be a Eurocurrency Term Loan or an
ABR Term Loan.
Each Tranche D-2 Term Loan shall be a Eurocurrency Term Loan.
"Test Period" shall mean, on any date of determination, the
period
of four consecutive fiscal quarters of the U.S. Borrower then last
ended (taken
as one accounting period).
"Third Amendment and Restatement Agreement" shall have the
meaning
assigned to such term in the preamble to this Agreement.
"Total Revolving Credit Commitment" shall mean, (a) at any time
prior to the Effective Funding Time, the total Existing Global
Revolving
Facility Commitments and the total Existing U.S. Revolving Facility
Commitments,
as in effect at such time, and (b) at any time at and after the
Effective
Funding Time, the total New Global Revolving Facility Commitments
and the total
New U.S. Revolving Facility Commitments, as in effect at such
time.
"Tranche A Facility" shall mean the Tranche A Term Loan
Commitments
and the Tranche A Term Loans converted or made hereunder.
"Tranche A Installment Date" shall have the meaning assigned to
such
term in Section 2.10(a).
"Tranche A Maturity Date" shall mean January 10, 2010.
"Tranche A Term Borrowing" shall mean a Borrowing comprised of
Tranche A Term Loans.
"Tranche A Term Loan Commitment" shall mean, with respect to
each
Lender, the agreement of such Lender to convert Tranche A-1 Term
Loans to
Tranche A Terms Loans, or the commitment of such Lender to make
Tranche A Term
Loans, in each case as set forth in Section 2.01. The aggregate
amount of the
Tranche A Term Loan Commitments on the date hereof is
$400,000,000.
"Tranche A Term Loans" shall mean the Tranche A Term Loans
converted
from Tranche A-1 Term Loans or made by the Lenders to the U.S.
Borrower pursuant
to Section 2.01.
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74
"Tranche A-1 Facility" shall mean the Tranche A-1 Term Loans made
or
converted pursuant to the Second Amendment and Restatement
Agreement.
"Tranche A-1 Installment Date" shall have the meaning assigned
to
such term in Section 2.10(b).
"Tranche A-1 Maturity Date" shall mean February 28, 2009.
"Tranche A-1 Term Borrowing" shall mean a Borrowing comprised
of
Tranche A-1 Term Loans.
"Tranche A-1 Term Loans" shall mean the Tranche A-1 Term Loans
made
by the Lenders to the U.S. Borrower or converted from Existing
Tranche A Term
Loans pursuant to the Second Amendment and Restatement
Agreement.
"Tranche B Facility" shall mean the Tranche B Term Loan
Commitments
and the Tranche B Term Loans converted or made hereunder.
"Tranche B Installment Date" shall have the meaning assigned to
such
term in Section 2.10(c).
"Tranche B Maturity Date" shall mean June 30, 2012.
"Tranche B Term Borrowing" shall mean a Borrowing comprised of
Tranche B Term Loans.
"Tranche B Term Loan Commitment" shall mean, with respect to
each
Lender, the agreement of such Lender to convert Tranche D-1 Term
Loans to
Tranche B Term Loans, or the commitment of such Lender to make
Tranche B Term
Loans, in each case as set forth in Section 2.01. The aggregate
amount of the
Tranche B Term Loan Commitments on the date hereof is
$600,000,000.
"Tranche B Term Loans" shall mean the Tranche B Term Loans
converted
from Tranche D-1 Term Loans or made by the Lenders to the U.S.
Borrower pursuant
to Section 2.01.
"Tranche D Installment Date" shall have the meaning assigned to
such
term in Section 2.10(d).
"Tranche D Maturity Date" shall mean February 28, 2011.
"Tranche D Term Borrowing" shall mean a Tranche D-1 Term
Borrowing
or a Tranche D-2 Term Borrowing.
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75
"Tranche D Term Loans" shall mean the Tranche D-1 Term Loans and
the
Tranche D-2 Term Loans.
"Tranche D-1 Facility" shall mean the Tranche D-1 Term Loans made
or
converted pursuant to the Second Amendment and Restatement
Agreement.
"Tranche D-1 Term Borrowing" shall mean a Borrowing comprised
of
Tranche D-1 Term Loans.
"Tranche D-1 Term Loans" shall mean the Tranche D-1 Term Loans
made
by the Lenders to the U.S. Borrower or converted from Existing
Tranche C-1 Term
Loans pursuant to the Second Amendment and Restatement
Agreement.
"Tranche D-2 Facility" shall mean the Tranche D-2 Term Loans made
or
converted pursuant to the Second Amendment and Restatement
Agreement.
"Tranche D-2 Term Borrowing" shall mean a Borrowing comprised
of
Tranche D-2 Term Loans.
"Tranche D-2 Term Loans" shall mean the Tranche D-2 Term Loans
made
by the Lenders to the U.S. Borrower or converted from Existing
Tranche C-2 Term
Loans pursuant to the Second Amendment and Restatement
Agreement.
"Tranche E Facility" shall mean the Tranche E Term Loans made
pursuant to the Third Amendment and Restatement Agreement.
"Tranche E Installment Date" shall mean the meaning assigned to
such
term in Section 2.10(e).
"Tranche E Maturity Date" shall mean October 31, 2010.
"Tranche E Term Borrowing" shall mean a Borrowing comprised of
Tranche E Term Loans.
"Tranche E Term Loans" shall mean the Tranche E Term Loans made
by
the Lenders to the U.S. Borrower pursuant to the Third Amendment
and Restatement
Agreement.
"Transaction Costs" shall have the meaning given such term in
the
preamble to this Agreement.
"Transactions" shall mean all the transactions described in the
preamble to, or otherwise contemplated by, this Agreement or the
Purchase
Agreement.
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76
"Transferor" shall mean TRW Automotive Receivables, LLC, a
Delaware
limited liability company.
"Type", when used in respect of any Loan or Borrowing, shall
refer
to the Rate by reference to which interest on such Loan or on the
Loans
comprising such Borrowing is determined. For purposes hereof, the
term "Rate"
shall include the Adjusted LIBO Rate, the Alternate Base Rate and
the Swingline
Foreign Currency Rate.
"Unfunded Ancillary Credit Extension" shall mean, at any time,
an
extension of credit under an Ancillary Facility in respect of which
the
applicable Ancillary Lender has not previously advanced funds to,
or on behalf
of, the Foreign Subsidiary Borrower but in respect of which such
Ancillary
Lender remains obligated so to advance funds.
"U.S. Borrower" shall have the meaning assigned to such term in
the
introductory paragraph of this Agreement, provided that unless the
context
requires otherwise, if the U.S. Borrower merges with Intermediate
Holdings (or
the surviving entity of any merger of Holdings or Intermediate
Holdings)
pursuant to Section 6.05(b), the surviving entity in such merger
shall be deemed
to be the U.S. Borrower for all purposes under this Agreement and
all terms and
conditions applicable to Intermediate Holdings or Holdings, as
applicable, shall
cease to be in force and effect.
"U.S. Collateral Agreement" shall mean the U.S. Guarantee and
Collateral Agreement, as amended, supplemented or otherwise
modified from time
to time, in the form of Exhibit E, among Holdings, Intermediate
Holdings, the
U.S. Borrower, each Domestic Subsidiary Loan Party and the
Collateral Agent.
"U.S. Lending Office" shall mean, as to any Lender, the
applicable
branch, office or Affiliate of such Lender designated by such
Lender to make
Loans in Dollars.
"U.S.
Mortgages" shall mean the mortgages, deeds of trust,
assignments of leases and rents and other security documents
delivered on the
Closing Date, as amended, supplemented or otherwise modified from
time to time,
with respect to Mortgaged Properties located in the United States
of America or
pursuant to Section 5.10, each substantially in the form of Exhibit
D.
"U.S. Perfection Certificate" shall mean a certificate in the
form
of Annex I to the U.S. Collateral Agreement or any other form
approved by the
Collateral Agent.
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77
"U.S. Receivables Purchase Agreement" shall mean (a) the
Receivables
Purchase Agreement dated as of February 28, 2003, among the
Receivables
Subsidiary, Transferor, the U.S. Borrower and the Subsidiaries
party thereto,
related to the Permitted Receivables Financing, as it may be
amended,
supplemented or otherwise modified to the extent permitted by
Section 6.09 and
(b) any agreement replacing such agreement, provided that such
replacing
agreement contains terms that are substantially similar to the
agreement being
replaced and that are otherwise no more adverse in any material
respect to the
Lenders than the applicable terms of the agreement being
replaced.
"U.S. Revolving Facilities" shall mean (a) prior to the
Effective
Funding Time, the Existing U.S. Revolving Facility and (b) at or
after the
Effective Funding Time, the New U.S. Revolving Facility.
"U.S. Revolving Facility Borrowing" shall mean a Borrowing
comprised
of U.S. Revolving Facility Loans.
"U.S. Revolving Facility Commitment" shall mean (a) prior to
the
Effective Funding Time, an Existing U.S. Revolving Facility
Commitment and (b)
at or after the Effective Funding Time, a New U.S. Revolving
Facility
Commitment.
"U.S. Revolving Facility Credit Exposure" shall mean (a) prior
to
the Effective Funding Time, the Existing U.S. Revolving Facility
Credit Exposure
and (b) at and after the Effective Funding Time, the New U.S.
Revolving Facility
Credit Exposure.
"U.S. Revolving Facility Lender" shall mean an Existing U.S.
Revolving Facility Lender or a New U.S. Revolving Facility Lender,
as
applicable.
"U.S.
Revolving Facility Loans" shall mean the Existing U.S.
Revolving Facility Loans and the New U.S. Revolving Facility
Loans.
"U.S. Revolving Facility Percentage" shall mean, (a) with respect
to
an U.S. Revolving Facility Lender prior to the Effective Funding
Time, the
Existing U.S. Revolving Facility Percentage of such U.S. Revolving
Facility
Lender and (b) with respect to a U.S. Revolving Facility Lender at
and after the
Effective Funding Time, the New U.S. Revolving Facility Percentage
of such U.S.
Revolving Facility Lender.
"Wholly Owned Subsidiary" of any person means a subsidiary of
such
person, all of the Equity Interests of which
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78
(other than directors' qualifying shares or nominee or other
similar shares
required pursuant to applicable law) are owned by such person or
another Wholly
Owned Subsidiary of such person. Unless the context otherwise
indicates, all
references herein to a "Wholly Owned Subsidiary" are references to
a Wholly
Owned Subsidiary of the U.S. Borrower.
"Withdrawal Liability" shall mean liability to a Multiemployer
Plan
as a result of a complete or partial withdrawal from such
Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of
ERISA.
"Working Capital" shall mean, with respect to the U.S. Borrower
and
the Subsidiaries on a consolidated basis at any date of
determination, Current
Assets at such date of determination minus Current Liabilities at
such date of
determination; provided that, for purposes of calculating Excess
Cash Flow,
increases or decreases in Working Capital shall be calculated
without regard to
any changes in Current Assets or Current Liabilities as a result of
(a) any
reclassification in accordance with GAAP of assets or liabilities,
as
applicable, between current and noncurrent or (b) the effects of
purchase
accounting.
SECTION 1.02. Terms Generally. The definitions set forth or
referred
to in Section 1.01 shall apply equally to both 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". All references herein to Articles, Sections, Exhibits
and Schedules
shall be deemed references to Articles and Sections of, and
Exhibits and
Schedules to, this Agreement unless the context shall otherwise
require. Except
as otherwise expressly provided herein, any reference in this
Agreement to any
Loan Document shall mean such document as amended, restated,
supplemented or
otherwise modified from time to time. 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 U.S.
Borrower notifies the Administrative Agent that the U.S. Borrower
requests an
amendment to any provision hereof to eliminate the effect of any
change
occurring after the Closing Date in GAAP or in the application
thereof on the
operation of such provision (or if the Administrative Agent
notifies the U.S.
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
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79
such change shall have become effective until such notice shall
have been
withdrawn or such provision amended in accordance herewith. For the
purposes of
determining compliance with Section 6.01 through Section 6.10 with
respect to
any amount in a currency other than Dollars, amounts shall be
deemed to equal
the Dollar Equivalent thereof determined using the Exchange Rate
calculated as
of the Business Day on which such amounts were incurred or
expended, as
applicable.
SECTION 1.03. Exchange Rates. (a) Not later than 1:00 p.m., New
York
City time, on each Calculation Date, the Administrative Agent shall
(i)
determine the Exchange Rate as of such Calculation Date and (ii)
give notice
thereof to the Borrowers. The Exchange Rates so determined shall
become
effective on the first Business Day immediately following the
relevant
Calculation Date (a "Reset Date") or other date of determination,
shall remain
effective until the next succeeding Reset Date, and shall for all
purposes of
this Agreement (other than any other provision expressly requiring
the use of an
Exchange Rate calculated as of a specified date) be the Exchange
Rates employed
in converting any amounts between Dollars and each of the Foreign
Currencies.
(b) Not later than 5:00 p.m., New York City time, on each
Reset
Date, the Administrative Agent shall (i) determine the
aggregate
amount of
the Dollar Equivalents of the principal amounts of the Loans
denominated in Foreign Currencies then outstanding (after giving
effect to
any Loans
denominated in Foreign Currencies made or repaid on such date)
and the
Revolving L/C Exposure and (ii) notify the Lenders, each
Issuing
Bank and
the Borrowers of the results of such determination.
SECTION 1.04. Redenomination of Certain Foreign Currencies. (a)
Each
obligation of any party to this Agreement to make a payment
denominated in the
national currency unit of any member state of the European Union
that adopts the
Euro as its lawful currency after the Closing Date shall be
redenominated into
Euro at the time of such adoption (in accordance with the EMU
Legislation). If,
in relation to the currency of any such member state, the basis of
accrual of
interest expressed in this Agreement in respect of that currency
shall be
inconsistent with any convention or practice in the London
Interbank Market for
the basis of accrual of interest in respect of the Euro, such
expressed basis
shall be replaced by such convention or practice with effect from
the date on
which such member state adopts the Euro as its lawful currency;
provided that if
any Borrowing in the currency of such member state is outstanding
immediately
prior to such date, such replacement shall take effect, with
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80
respect to such Borrowing, at the end of the then current Interest
Period.
(b) Without prejudice and in addition to any method of
conversion
or rounding prescribed by any EMU Legislation and (i) without
limiting
the liability of any Borrower for any amount due under this
Agreement
and (ii) without increasing any Commitment of any Lender, all
references
in this Agreement to minimum amounts (or integral multiples
thereof)
denominated in the national currency unit of any member state
of
the
European Union that adopts the Euro as its lawful currency after
the
Closing
Date shall, immediately upon such adoption, be replaced by
references
to such minimum amounts (or integral multiples thereof) as
shall be
specified herein with respect to Borrowings denominated in
Euros.
(c) Each provision of this Agreement shall be subject to such
reasonable
changes of construction as the Administrative Agent may from
time to
time specify to be appropriate to reflect the adoption of the
Euro
by any
member state of the European Union and any relevant market
conventions or practices relating to the Euro.
SECTION 1.05. Effectuation of Transfers. Each of the
representations
and warranties of Holdings, Intermediate Holdings and the Borrowers
contained in
this Agreement (and all corresponding definitions) are made after
giving effect
to the Restatement Transactions, unless the context otherwise
requires.
ARTICLE II
The Credits
SECTION 2.01. Commitments. (a) Subject to the terms and
conditions
set forth herein, each Lender agrees (i) to make (A) Global
Revolving Facility
Loans denominated in Dollars to the U.S. Borrower from its U.S.
Lending Office
and (B) Global Revolving Facility Loans denominated in Dollars or
Foreign
Currencies to Foreign Subsidiary Borrowers from its Global Lending
Office, in
the case of clauses (A) and (B) from time to time during the
Availability Period
in an aggregate principal amount that will not result in (1) such
Lender's
Global Revolving Facility Credit Exposure exceeding (x) such
Lender's Global
Revolving Facility Commitment minus (y) such Lender's Ancillary
Commitment or
(2) the Global Revolving Facility Credit Exposure exceeding (x) the
total Global
Revolving Facility Commitments minus (y) the total Ancillary
Commitments, and
(ii) to make U.S. Revolving Facility Loans denominated in Dollars
to the U.S.
<PAGE>
81
Borrower from its U.S. Lending Office from time to time during the
Availability
Period in an aggregate principal amount that will not result in (A)
such
Lender's U.S. Revolving Facility Credit Exposure exceeding such
Lender's U.S.
Revolving Facility Commitment or (B) the U.S. Revolving Facility
Credit Exposure
exceeding the total U.S. Revolving Facility Commitments. Within the
foregoing
limits and subject to the terms and conditions set forth herein,
the Borrowers
may borrow, prepay and reborrow Revolving Loans.
(b) (i) Subject to the terms and conditions set forth herein,
at the Effective Funding Time (A) each Lender agrees to convert all
or a portion
of its Tranche A-1 Term Loans into a principal amount of Tranche A
Term Loans
equal to the principal amount of Tranche A-1 Term Loans so
converted (or,
pursuant to clause (ii) below, to make Tranche A Term Loans to the
U.S.
Borrower) in a principal amount equal to the Tranche A Term Loan
Commitment of
such Lender and (B) each Lender agrees to convert all or a portion
of its
Tranche D-1 Term Loans into a principal amount of Tranche B Term
Loans equal to
the principal amount of Tranche D-1 Term Loans so converted (or,
pursuant to
clause (ii) below, to make Tranche B Term Loans to the U.S.
Borrower) in a
principal amount equal to the Tranche B Term Loan Commitment of
such Lender.
(ii) It is understood and agreed that (A) any Lender that holds
any
Tranche A-1 Term Loans may elect, by delivering notice to the
Administrative
Agent, to make Tranche A Term Loans to the U.S. Borrower at the
Effective
Funding Time in a principal amount equal to (x) the Tranche A Term
Loan
Commitment of such Lender minus (y) the aggregate principal amount
of Tranche
A-1 Term Loans of such Lender being converted into Tranche A Term
Loans
hereunder and (B) any Lender that holds any Tranche D-1 Term Loans
may elect, by
delivering notice to the Administrative Agent, to make Tranche B
Term Loans to
the U.S. Borrower at the Effective Funding Time in a principal
amount equal to
(x) the Tranche B Term Loan Commitment of such Lender minus (y) the
aggregate
principal amount of Tranche D-1 Term Loans of such Lender being
converted into
Tranche B Term Loans hereunder. Any notice to the Administrative
Agent delivered
by a Lender pursuant to this clause (ii) shall specify (1) the
amount of the
Tranche A Term Loan Commitment and/or Tranche B Term Loan
Commitment of such
Lender, as applicable, (2) the principal amount of Tranche A Term
Loans and/or
Tranche B Term Loans to be made by such Lender at the Effective
Funding Time, as
the case may be, and (3) the principal amount of Tranche A-1 Term
Loans and/or
Tranche D-1 Term Loans held by such Lender, if any, that are to be
converted
into Tranche A Term Loans and/or Tranche B Term Loans hereunder
pursuant to
paragraph (a)(i) above.
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82
(iii) Subject to the terms and conditions set forth herein, (A)
each
Lender that does not hold any Tranche A-1 Term Loans agrees to make
a Tranche A
Term Loan to the U.S. Borrower at the Effective Funding Time in a
principal
amount equal to the Tranche A Term Loan Commitment of such Lender
and (B) each
Lender that does not hold any Tranche D-1 Term Loans agrees to make
a Tranche B
Term Loan to the U.S. Borrower in a principal amount equal to the
Tranche B Term
Loan Commitment of such Lender.
(iv) Each reference in this Agreement to the "making" of any
Tranche
A Term Loan or Tranche B Term Loan, or words of similar import,
shall, in the
case of such Lender, be deemed to include each conversion of
Tranche A-1 Term
Loans and Tranche D-1 Term Loans pursuant to paragraph (a)(i)
above. Without
limiting the generality of the foregoing, it is understood that the
Tranche A
Term Loans and Tranche B Term Loans into which the Tranche A-1 Term
Loans and
Tranche D-1 Term Loans are so converted shall be treated
identically to the
Tranche A Term Loans and Tranche B Term Loans being funded (and not
being
converted) at the Effective Funding Time and shall have identical
Interest
Periods in identical proportions and durations as all other Tranche
A Term Loans
or Tranche B Term Loans, as applicable (and, for these purposes,
any Interest
Periods for Tranche A-1 Term Loans or Tranche D-1 Term Loans that
are
Eurocurrency Term Loans in effect at the Effective Funding Time
shall be
terminated at the Effective Funding Time, and any such converting
Lender shall
be paid accrued interest on its Tranche A-1 Term Loans and Tranche
D-1 Term
Loans being so converted, together with any amounts payable under
Section 2.16,
as if the Tranche A-1 Term Loans or Tranche D-1 Term Loans, as the
case may be,
were being prepaid in full at the Effective Funding Time).
(c) All Tranche A-1 Term Loans, Tranche D Term Loans, Tranche
E Term
Loans and Existing Revolving Loans outstanding under the
Existing
Credit
Agreement on the Restatement Effective Date shall remain
outstanding hereunder on the terms set forth herein until the
Effective
Funding
Time. At the Effective Funding Time, (i) all Tranche A-1 Term
Loans,
Tranche D Term Loans and Existing Revolving Loans will be
converted
or repaid
as provided herein and (ii) all Tranche E Term Loans
outstanding
at such
time shall remain outstanding hereunder on the terms set forth
herein.
(d) Amounts repaid in respect of Term Loans may not be
reborrowed.
SECTION 2.02. Loans and Borrowings. (a) Each Loan shall be made
as
part of a Borrowing consisting of Loans under
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83
the same Facility and of the same Type made by the Lenders ratably
in accordance
with their respective Commitments under the applicable Facility
(or, in the case
of Swingline Loans, in accordance with their respective Swingline
Dollar
Commitments or Swingline Foreign Currency Commitments, as
applicable); provided,
however, that Global Revolving Facility Loans under the Global
Revolving
Facility shall be made by the Global Revolving Facility Lenders
ratably in
accordance with their respective Available Unused Commitments on
the date such
Loans are made hereunder. 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, (i) each Borrowing denominated in
Dollars
(other than a Swingline Dollar Borrowing) shall be comprised
entirely
of ABR Loans or Eurocurrency Loans as the applicable Borrower
may
request in
accordance herewith and (ii) each Borrowing denominated in a
Foreign
Currency (other than a Swingline Foreign Currency Borrowing)
shall
be
comprised entirely of Eurocurrency Loans. Each Swingline Dollar
Borrowing
shall be an ABR Borrowing. Each Swingline Foreign Currency
Borrowing
shall be comprised entirely of Swingline Foreign Currency
Loans.
Each
Lender at its option may make any ABR Loan or Eurocurrency Loan
by
causing
any domestic or 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 applicable Borrower to repay such Loan in accordance
with the
terms of this Agreement and such Lender shall not be entitled
to
any
amounts payable under Section 2.15, 2.17 or 2.21 solely in respect
of
increased
costs resulting from such exercise.
(c) At the commencement of each Interest Period for any
Eurocurrency Revolving Borrowing, such Borrowing shall be in an
aggregate
amount
that is an integral multiple of the Borrowing Multiple and not
less
than the
Borrowing Minimum; provided that a Eurocurrency Revolving
Borrowing
that is an Ancillary Replacement Borrowing shall be permitted
to
be in an
amount necessary to finance Ancillary Credit Extensions under
an
Ancillary
Facility being terminated pursuant to Section 2.22(e). At the
time that
each ABR Revolving Borrowing is made, such Borrowing shall be
in
an
aggregate amount that is an integral multiple of the Borrowing
Multiple
and not
less than the Borrowing Minimum; provided that an ABR Revolving
Borrowing
may be in an aggregate amount that is equal to the entire
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84
unused
balance of the U.S. Revolving Facility Commitments or that is
required
to finance the reimbursement of an L/C Disbursement as
contemplated by Section 2.05(e). Each Swingline Dollar Borrowing
and
Swingline
Foreign Currency Borrowing shall be in an amount that is an
integral
multiple of the Borrowing Multiple and not less than the
Borrowing
Minimum. Borrowings of more than one Type and under more than
one
Facility may be outstanding at the same time; provided that
there
shall not
at any time be more than a total of (i) 10 Eurocurrency
Borrowings
outstanding under each of the Tranche A Facility, the Tranche
A-1
Facility, the Tranche B Facility, the Tranche D-1 Facility,
Tranche
D-2
Facility and the Tranche E Facility and (ii) 35 Eurocurrency
Borrowings
outstanding under each of the Global Revolving Facility and the
U.S.
Revolving Facility (not including Ancillary Replacement
Borrowings).
(d) Notwithstanding any other provision of this Agreement, no
Borrower
shall 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 Credit Maturity Date, Tranche A Maturity Date,
Tranche
A-1 Maturity Date, Tranche B Maturity Date, Tranche D Maturity
Date or
Tranche E Maturity Date, as applicable.
SECTION 2.03. Requests for Borrowings. Except in the case of an
Ancillary Replacement Borrowing (which shall be governed by Section
2.22(e)), to
request a Revolving Borrowing, the applicable Borrower shall notify
the
Applicable Agent of such request by telephone (a) in the case of a
Eurocurrency
Borrowing, not later than 2:00 p.m., Local Time, three Business
Days before the
date of the proposed Borrowing or (b) in the case of an ABR
Borrowing, not later
than 2:00 p.m., Local 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 L/C Disbursement as contemplated by
Section
2.05(e) may be given not later than 10:00 a.m., Local 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
Applicable
Agent of a written Borrowing Request in a form approved by the
Applicable Agent
and signed by the applicable Borrower. Each such telephonic and
written
Borrowing Request shall specify the following information in
compliance with
Section 2.02:
(i) the Borrower requesting such Borrowing;
(ii) whether the requested Borrowing is to be a Global
Revolving Facility Borrowing, a U.S. Revolving
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85
Facility Borrowing, a Tranche A Term Borrowing or a Tranche B
Term
Borrowing;
(iii) in the case of a Global Revolving Facility Borrowing
requested by a Foreign Subsidiary Borrower, the Foreign Currency
in
which such Borrowing is to be denominated;
(iv) the aggregate amount of the requested Borrowing
(expressed in Dollars or the applicable Foreign Currency);
(v) the date of such Borrowing, which shall be a Business Day;
(vi) in the case of a Borrowing denominated in Dollars,
whether such Borrowing is to be an ABR Borrowing or a
Eurocurrency
Borrowing;
(vii) in the case of a Eurocurrency Borrowing, the initial
Interest Period to be applicable thereto, which shall be a
period
contemplated by clause (a) of the definition of the term
"Interest
Period"; and
(viii) the location and number of the applicable Borrower's
account to which funds are to be disbursed.
If no election as to the Type of Revolving Borrowing is specified,
then the
requested Revolving Borrowing shall be an ABR Borrowing, unless
such Global
Revolving Facility Borrowing (i) is denominated in a Foreign
Currency and (ii)
is being requested by a Foreign Subsidiary Borrower, in which case
such Global
Revolving Facility Borrowing shall be a Eurocurrency Borrowing. If
no Interest
Period is specified with respect to any requested Eurocurrency
Borrowing, then
the applicable 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 Applicable 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, (i) each Swingline Dollar Lender
agrees to make
Swingline Dollar Loans to the U.S. Borrower from time to time
during the
Availability Period, in an aggregate principal amount at any time
outstanding
that will not result in (x) the aggregate principal amount of
outstanding
Swingline Dollar Loans made by such Swingline Dollar Lender
exceeding such
Swingline Dollar Lender's Swingline Dollar Commitment or (y) the
U.S. Revolving
Facility Credit Exposure exceeding the U.S.
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86
Revolving Facility Commitments and (ii) each Swingline Foreign
Currency Lender
agrees to make Swingline Foreign Currency Loans to the Foreign
Subsidiary
Borrowers from time to time during the Availability Period, in an
aggregate
principal amount at any time outstanding that will not result in
(x) the Dollar
Equivalent of the aggregate principal amount of outstanding
Swingline Foreign
Currency Loans made by such Swingline Foreign Currency Lender
exceeding such
Swingline Foreign Currency Lender's Swingline Foreign Currency
Commitment or (y)
the sum of the Global Revolving Facility Credit Exposure and the
total Ancillary
Commitments exceeding the total Global Revolving Facility
Commitments; provided
that no Swingline Lender shall be required to make a Swingline Loan
to refinance
an outstanding Swingline Dollar Borrowing or Swingline Foreign
Currency
Borrowing. Within the foregoing limits and subject to the terms and
conditions
set forth herein, the Borrowers may borrow, prepay and reborrow
Swingline Loans.
(b) To request a Swingline Dollar Borrowing or Swingline
Foreign Currency Borrowing, the applicable Borrower shall notify
the
Applicable Agent of such request by telephone (confirmed by a
Swingline Borrowing Request by telecopy), not later than 1:00
p.m.,
Local Time, on the day of a proposed Swingline Dollar Borrowing
or
Swingline Foreign Currency Borrowing. Each such notice and
Swingline
Borrowing Request shall be irrevocable and shall specify (i) in
the
case of a Swingline Foreign Currency Borrowing, the Borrower
requesting such Borrowing, (ii) the requested date (which shall be
a
Business Day), (iii) in the case of a Swingline Foreign
Currency
Borrowing, the Foreign Currency in which such Swingline Foreign
Currency Borrowing is to be denominated, (iv) the amount of the
requested Swingline Dollar Borrowing (expressed in Dollars) or
Swingline Foreign Currency Borrowing (expressed in the
applicable
Foreign Currency), as applicable, and (v) in the case of a
Swingline
Foreign Currency Borrowing, the Interest Period to be
applicable
thereto, which shall be a period contemplated by clause (b) of
the
definition of the term "Interest Period". The Applicable Agent
shall
promptly advise each Swingline Dollar Lender (in the case of a
notice relating to a Swingline Dollar Borrowing) or each
Swingline
Foreign Currency Lender (in the case of a notice relating to a
Swingline Foreign Currency Borrowing) of any such notice
received
from a Borrower and the amount of such Swingline Lender's
Swingline
Loan to be made as part of the requested Swingline Dollar
Borrowing
or Swingline Foreign Currency Borrowing, as applicable. Each
Swingline Dollar Lender shall make each Swingline Dollar Loan to
be
made by it hereunder in accordance with
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87
Section 2.02(a) on the proposed date thereof by wire transfer
of
immediately available funds by 3:00 p.m., Local Time, to the
account
of the Applicable Agent most recently designated by it for such
purpose by notice to the Swingline Dollar Lenders. The
Applicable
Agent will make such Swingline Dollar Loans available to the
U.S.
Borrower by promptly crediting the amounts so received, in like
funds, to the general deposit account of the U.S. Borrower with
the
Applicable Agent (or, in the case of a Swingline Dollar
Borrowing
made to finance the rei
