Exhibit 10.2
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VISHAY INTERTECHNOLOGY, INC.
SECOND AMENDED AND RESTATED
LONG TERM REVOLVING CREDIT AGREEMENT
DATED AS OF JULY 31, 2003
COMERICA BANK,
AS CO-LEAD
ARRANGER, CO-BOOK RUNNING MANAGER AND ADMINISTRATIVE AGENT,
FLEET SECURITIES,
INC., AS CO-LEAD ARRANGER, CO-BOOK RUNNING MANAGER AND
SYNDICATION AGENT,
WACHOVIA BANK, NATIONAL ASSOCIATION, J.P. MORGAN AND
BANK OF AMERICA, N.A.,
AS DOCUMENTATION AGENTS
AND
BANK LEUMI USA, AS MANAGING AGENT
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TABLE OF CONTENTS
Page
----
1.
DEFINITIONS............................................................1
1.1
Certain Defined
Terms............................................1
1.2
Euro............................................................26
2. REVOLVING
CREDIT......................................................27
2.1
Commitment......................................................27
2.2
Accrual of
Interest and Maturity; Evidence of Indebtedness......28
2.3
Requests for and
Refundings and Conversions of Advances.........29
2.4
Disbursement of
Advances........................................32
2.5
(a) Swing Line
Advances.........................................34
2.6
Prime-based
Interest Payments...................................41
2.7
Eurocurrency-based Interest Payments and Quoted Rate
Interest
Payments...............................................41
2.8
Interest
Payments on Conversions................................42
2.9
Interest on
Default.............................................42
2.10
Prepayment......................................................43
2.11
Determination,
Denomination and Redenomination of
Alternative Currency
Advances...................................43
2.12
Prime-based Advance in
Absence of Election or Upon Default......44
2.13
Revolving Credit
Facility Fee...................................45
2.14
Currency Appreciation;
Mandatory Reduction of Indebtedness......45
2.15
Optional Reduction or
Termination of Revolving Credit
Aggregate
Commitment............................................47
2.16
Extensions of
Revolving Credit Maturity Date....................48
2.17
Application of
Advances.........................................49
3. LETTERS OF
CREDIT.....................................................50
3.1
Letters of
Credit...............................................50
3.2
Conditions to
Issuance..........................................50
3.3
Notice..........................................................52
3.4
Letter of Credit
Fees...........................................52
3.5
Other
Fees......................................................53
3.6
Drawings and
Demands for Payment Under Letters of Credit........53
3.7
Obligations
Irrevocable.........................................56
3.8
Risk Under
Letters of Credit....................................57
3.9
Indemnification.................................................58
3.10
Right of
Reimbursement..........................................59
3.11
Existing Letters of
Credit......................................59
4. MARGIN
ADJUSTMENTS....................................................59
4.1
Margin
Adjustments..............................................59
4.2
Margins.........................................................60
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5.
CONDITIONS............................................................60
5.1
Execution of
this Agreement and the other Loan Documents........60
5.2
Corporate
Authority.............................................60
5.3
Collateral
Documents and Guaranties.............................60
5.4
Representations
and Warranties-- All Parties....................61
5.5
Compliance with
Certain Documents and Agreements................61
5.6
Opinion of
Counsel..............................................62
5.7
Company's
Certificate...........................................62
5.8
Payment of
Agent's and Other Fees...............................62
5.9
New Convertible
Subordinated Debt...............................62
5.10
Other Documents and
Instruments.................................62
5.11
Continuing
Conditions...........................................62
6. REPRESENTATIONS AND
WARRANTIES........................................63
6.1
Corporate
Existence.............................................63
6.2
Due
Authorization-- Company.....................................63
6.3
Due
Authorization-- Significant Subsidiaries....................64
6.4
Title to
Material Property......................................64
6.5
Encumbrances....................................................64
6.6
Subsidiaries....................................................64
6.7
Taxes...........................................................64
6.8
No
Defaults.....................................................64
6.9
Compliance with
Laws............................................65
6.10
Enforceability of
Agreement and Loan Documents..................65
6.11
Non-contravention--
Company.....................................65
6.12
Non-contravention--
Other Parties...............................65
6.13
No Litigation--
Company.........................................66
6.14
No Litigation-- Other
Parties...................................66
6.15
Consents, Approvals
and Filings, Etc............................67
6.16
Agreements Affecting
Financial Condition........................67
6.17
No Investment Company;
No Margin Stock..........................67
6.18
ERISA...........................................................67
6.19
Environmental Matters
and Safety Matters........................68
6.20
Accuracy of
Information.........................................69
7. AFFIRMATIVE
COVENANTS.................................................70
7.1
Preservation of
Existence, Etc..................................70
7.2
Keeping of
Books................................................70
7.3
Reporting
Requirements..........................................70
7.4
Tangible Net
Worth..............................................72
7.5
Leverage
Ratio..................................................72
7.6
Fixed Charge
Coverage Ratio.....................................72
7.7
Inspections.....................................................72
7.8
Taxes...........................................................73
7.9
Further
Assurances..............................................73
7.10
Insurance.......................................................73
7.11
Indemnification.................................................73
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7.12
Governmental and Other
Approvals................................74
7.13
Compliance with
Contractual Obligations and Laws................74
7.14
ERISA...........................................................74
7.15
Environmental
Matters...........................................75
7.16
Significant
Subsidiaries........................................76
7.17
Foreign Subsidiaries
Security...................................78
7.18
Siliconix.......................................................79
7.19
Security and Defense
of Collateral..............................79
7.20
Vishay
Israel...................................................79
7.21
Prepayment of General
Semiconductor Notes.......................79
7.22
Use of
Proceeds.................................................80
8. NEGATIVE
COVENANTS....................................................80
8.1
Capital
Structure, Business Objects or Purpose..................80
8.2
Limitations on
Fundamental Changes..............................80
8.3
Guaranties......................................................82
8.4
Debt............................................................82
8.5
Liens...........................................................83
8.6
Dividends.......................................................84
8.7
Investments.....................................................84
8.8
Accounts
Receivable.............................................86
8.9
Transactions
with Affiliates....................................86
8.10
Operations of Vishay
Israel.....................................87
8.11
Prohibition Against
Certain Restrictions........................87
8.12
Amendment of the BCc
Acquisition Documents......................87
8.13
Amendment of
Subordinated Debt and Other Debt Documents and
Permitted
Securitizations.......................................87
8.14
Payment or Prepayment
of Other Debts............................88
9.
DEFAULTS..............................................................88
9.1
Events of
Default...............................................88
9.2
Exercise of
Remedies............................................91
9.3
Rights
Cumulative...............................................91
9.4
Waiver by
Company and Permitted Borrowers of Certain Laws;
JURY
WAIVER.....................................................91
9.5
Waiver of
Defaults..............................................92
10. PAYMENTS, RECOVERIES AND
COLLECTIONS..................................92
10.1
Payment
Procedure...............................................92
10.2
Application of
Proceeds.........................................94
10.3
Pro-rata
Recovery...............................................94
10.4
Set
Off.........................................................94
11. CHANGES IN LAW OR
CIRCUMSTANCES; INCREASED COSTS......................95
11.1
Reimbursement of
Prepayment Costs...............................95
11.2
Eurocurrency Lending
Office.....................................96
11.3
Availability of
Alternative Currency............................96
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11.4
Refunding Advances in
Same Currency.............................96
11.5
Circumstances
Affecting Eurocurrency-based Rate Availability....96
11.6
Laws Affecting
Eurocurrency-based Advance Availability..........97
11.7
Increased Cost of
Eurocurrency-based Advances...................97
11.8
Indemnity.......................................................99
11.9
Judgment
Currency...............................................99
11.10
Capital Adequacy and Other Increased
Costs......................99
11.11
Substitution of
Lenders........................................100
12.
AGENTS...............................................................101
12.1
Appointment of
Agent...........................................101
12.2
Deposit Account with
Agent.....................................101
12.3
Exculpatory
Provisions.........................................101
12.4
Successor
Agent................................................102
12.5
Loans by
Agent.................................................102
12.6
Credit
Decisions...............................................102
12.7
Notices by
Agent...............................................102
12.8
Agent's
Fees...................................................103
12.9
Nature of
Agency...............................................103
12.10
Authority of Agent to Enforce This
Agreement...................103
12.11
Indemnification................................................103
12.12
Knowledge of
Default...........................................104
12.13
Agent's Authorization; Action by
Lenders.......................104
12.14
Enforcement Actions by the
Agent...............................104
12.15
Collateral
Matters.............................................105
12.16
Syndication Agent and Documentation
Agents.....................105
13.
MISCELLANEOUS........................................................106
13.1
Accounting
Principles..........................................106
13.2
Consent to
Jurisdiction........................................106
13.3
Law of
Michigan................................................106
13.4
Interest.......................................................106
13.5
Closing Costs; Other
Costs.....................................107
13.6
Notices........................................................107
13.7
Further
Action.................................................108
13.8
Successors and
Assigns; Assignments and Participations.........108
13.9
Indulgence.....................................................112
13.10
Counterparts...................................................112
13.11
Amendment and
Waiver...........................................112
13.12
Taxes and
Fees.................................................113
13.13
Confidentiality................................................113
13.14
Withholding
Taxes..............................................114
13.15
ERISA
Restrictions.............................................115
13.16
Effective
Date.................................................116
13.17
Severability...................................................116
13.18
Table of Contents and Headings; Construction of Certain
Provisions.....................................................116
13.19
Independence of
Covenants......................................116
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13.20
Reliance on and Survival of Various
Provisions.................117
13.21 Lien
Release and Revival.......................................117
13.22
Complete Agreement; Amendment and
Restatements.................118
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SCHEDULES
Schedule
1.1 -
Percentages and Allowances
Schedule
1.4 -
Existing Letters of Credit
Schedule
1.6 -
Permitted Borrower Sublimit
Schedule
1.7
Syndication Agent Letters of Credit
Schedule
4.1 -
Pricing Matrix
Schedule
5.3 -
Jurisdictions to File Initial Financing Statements
Schedule
5.6
Legal Opinions
Schedule
6.6 -
Subsidiaries
Schedule
6.6A
-
Significant Subsidiaries: Guarantors
Schedule
6.13
-
Litigation - Company
Schedule
6.14
-
Litigation - Other Parties
Schedule
6.19
Environmental Matters
Schedule
8.3 -
Guaranties of Indebtedness
Schedule
8.4
Existing Debt
Schedule
8.5 -
Existing Liens
Schedule
8.7 -
Existing Investments
Schedule
8.13
Subordinated Debt
EXHIBITS
FORM OF REQUEST FOR REVOLVING CREDIT
ADVANCE............................A-1
FORM OF REQUEST FOR SWING LINE
ADVANCE..................................A-2
FORM OF REVOLVING CREDIT NOTE --
COMPANY................................B-1
FORM OF REVOLVING CREDIT NOTE -- PERMITTED
BORROWERS....................B-2
FORM OF SWING LINE NOTE --
COMPANY......................................C-1
FORM OF SWING LINE NOTE -- PERMITTED
BORROWERS..........................C-2
FORM OF COMPLIANCE
CERTIFICATE..........................................D
FORM OF ASSIGNMENT
AGREEMENT............................................E
FORM OF NOTICE OF LETTER OF
CREDIT......................................F
FORM OF PERMITTED BORROWER
ADDENDUM.....................................H
FORM OF SECURITY
AGREEMENT..............................................I
FORM OF REAFFIRMATION OF LOAN
DOCUMENTS.................................J
FORM OF REAFFIRMATION OF SECURITY
AGREEMENT.............................K
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SECOND AMENDED AND RESTATED LONG TERM
REVOLVING CREDIT AGREEMENT
--------------------------
THIS
SECOND AMENDED AND RESTATED LONG TERM REVOLVING CREDIT
AGREEMENT
("Agreement") is made as of the 31st day of
July, 2003 by and among the Lenders
(as defined below), Comerica Bank, as
Co-Lead Arranger, Co-Book Running Manager
and Administrative Agent for the Lenders
(in its capacity as Administrative
Agent, "Agent"), Fleet Securities, Inc., as
Co-Lead Arranger, Co-Book Running
Manager and Syndication Agent (in its
capacity as Syndication Agent,
"Syndication Agent"), Vishay
Intertechnology, Inc., a Delaware corporation
("Company") and the Permitted Borrowers (as
defined below and collectively with
the Company, the "Borrowers") from time to
time signatory hereto.
RECITALS
A. Company
has requested that the Lenders amend, renew and/or extend to it
and the Permitted Borrowers revolving
credit and letters of credit as previously
extended to Company and the Permitted
Borrowers under that certain Amended and
Restated Long Term Revolving Credit
Agreement dated as of June 1, 1999, by and
among Company, Agent and the Lenders, as
amended (the "Prior Credit Agreement")
on the terms and conditions set forth
herein.
B. The
Lenders are prepared to extend such credit, as aforesaid, by
amendment, restatement and renewal (but not
in novation) of the Prior Credit
Agreement, but only upon the terms and
conditions set forth in this Agreement.
NOW
THEREFORE, COMPANY, PERMITTED BORROWERS, AGENT, AND THE LENDERS
AGREE:
1.
DEFINITIONS
1.1
Certain Defined
Terms.
For the
purposes of this Agreement the following terms will have the
following meanings:
"Account
Party(ies)" shall mean, with respect to any Letter of Credit,
the
account party or parties (which shall be
Company and/or any Permitted Borrower
and/or any Significant Subsidiary which is
not a Permitted Borrower hereunder
jointly and severally with the Company) as
named in an application to the Agent
for the issuance of such Letter of
Credit.
"Additional Debt Issuance Date" shall mean the date upon which the
Company
issues the New Convertible Subordinated
Debt.
"Advance(s)" shall mean, as the context may indicate, a
borrowing
requested by Company or by a Permitted
Borrower, and made by Lenders under
Section 2.1 of this Agreement, as the case
may be, or requested by the Company
or by a Permitted Borrower and made by the
Swing Line Bank under Section 2.5
hereof (including without limitation
any
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readvance, refunding or conversion of such
borrowing pursuant to Section 2.3 or
2.5(c) hereof) and any advance in respect
of a Letter of Credit under Section
3.6 hereof (including without limitation
the unreimbursed amount of any draws
under Letters of Credit) and shall include,
as applicable, a Eurocurrency-based
Advance, a Quoted Rate Advance, a
Prime-based Advance and a Swing Line Advance.
"Affiliate" shall mean, with respect to any Person, any other
Person or
group acting in concert in respect of the
first Person that, directly or
indirectly, through one or more
intermediaries, controls, or is controlled by,
or is under common control with such first
Person. For purposes of this
definition, "control" (including, with
correlative meanings, the terms
"controlled by" and "under common control
with"), as used with respect to any
Person or group of Persons, shall mean the
possession, directly or indirectly,
of the power to direct or cause the
direction of management and policies of such
Person, whether through the ownership of
voting securities or by contract or
otherwise.
"Agent"
shall mean Comerica Bank, a Michigan banking corporation,
acting
as administrative agent hereunder or any
successor administrative agent
appointed in accordance with Section 12.4
hereof.
"Agents"
shall mean Agent and Syndication Agent.
"Agent's
Correspondent" shall mean for Advances in eurodollars, Agent's
Grand Cayman Branch (or for the account of
said branch office, at Agent's main
office in Detroit, Michigan, United
States); for Advances in other Alternative
Currencies, at such bank or banks as Agent
may from time to time designate by
written notice to Company, the Permitted
Borrowers and the Lenders.
"Agent's
Fees" shall mean those fees and expenses required to be paid by
Company to Agent under Section 12.8
hereof.
"Alternate
Base Rate" shall mean, for any day, an interest rate per annum
equal to the Federal Funds Effective Rate
in effect on such day, plus one
percent (1%).
"Alternative Currency" shall mean each of the following currencies,
as
applicable hereunder: the Euro, Japanese
Yen ("(Y)") and British Pounds Sterling
("Sterling") and, subject to availability
and to the terms and conditions of
this Agreement, such other freely
convertible foreign currencies, as requested
by the Company or the Permitted Borrowers
and acceptable to Agent and the
Lenders, in their reasonable
discretion.
"Applicable Fee Percentage" shall mean, as of any date of
determination
thereof, the applicable percentage used to
calculate certain of the fees due and
payable hereunder, determined by reference
to the appropriate columns in the
Pricing Matrix attached to this Agreement
as Schedule 4.1.
"Applicable Interest Rate" shall mean the Eurocurrency-based Rate,
the
Prime-based Rate or, with respect to Swing
Line Advances, the Quoted Rate, as
selected by Company or a Permitted Borrower
from time to time subject to the
terms and conditions of this Agreement.
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"Applicable Margin" shall mean, as of any date of determination
thereof,
the applicable interest rate margin,
determined by reference to the appropriate
columns in the Pricing Matrix attached to
this Agreement as Schedule 4.1.
"Arrangers' Fee" shall mean those certain fees payable to the
Agents in
the amount set forth in the Fee Letter or
such other fee letter as may be in
effect from time to time.
"Assignment Agreement" shall have the meaning ascribed to such term
in
Section 13.8(c) hereof.
"Authorized Officer" shall mean the Chairman, any Vice
Chairman,
President, Treasurer, CFO, or the Corporate
Controller of the Company or any
applicable Subsidiary, as the case may be,
or any person otherwise designated by
the Company or such Subsidiary, as the case
may be, as having the authority to
act for the Company or such Subsidiary in
the particular instance.
"BCc
Acquisition" shall mean the acquisition by the Company, directly
or
through its subsidiaries, of BCcomponents
and its subsidiaries (and related
property and interests) pursuant, subject
to the terms hereof, to the BCc
Acquisition Documents.
"BCc
Acquisition Documents" shall mean the BCc Share Purchase
Agreement,
together with all other related documents
and instruments (including
conveyances) executed and delivered in
connection with the BCc Acquisition, as
amended (subject to the terms hereof) from
time to time.
"BCcomponents" shall mean BCcomponents Holdings B.V., a Dutch
private
limited liability company.
"BCc
Replacement Financing" shall mean the debt issued by the Company
to
refinance the mezzanine debt issued by
BCcomponents prior to the BCc
Acquisition.
"BCc Share
Purchase Agreement" shall mean that certain Share Sale and
Purchase Agreement dated November 10, 2002
by and among the BCc Shareholders,
the Foundation, BCcomponents International
BV (each such term being defined
therein), the Company and Vishay Europe, as
amended (subject to the terms
hereof) from time to time.
"Borrowers" is defined in the preamble.
"Business
Day" shall mean any day on which commercial banks are open for
domestic and international business
(including dealings in foreign exchange) in
Detroit, London and New York, and if funds
are to be paid or made available in
any Alternative Currency, on such day in
the place where such funds are to be
paid or made available and, if the
applicable Business Day relates to the
borrowing or payment of a
Eurocurrency-based Advance denominated in Euros, on
which banks and foreign exchange markets
are open for business in the city where
disbursements of or payments on such
Advance are to be made which is a
Trans-European Business Day.
"Call
Notices" shall have the meaning specified in Section 7.21
hereof.
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"Capital
Expenditures" shall mean, without duplication, any amounts paid
or accrued for a period in respect of any
purchase or other acquisition for
value of fixed or capital assets net of the
cash proceeds of any grant received
during such period by the Company or any of
its Subsidiaries from the government
of Israel (or any agency or political
subdivision thereof) under the Israeli
Capital Investment Act, up to the aggregate
amount of capital additions in
Israel during such period; provided that,
in no event shall Capital Expenditures
include amounts expended in respect of
normal repair and maintenance of plant
facilities, machinery, fixtures and other
like capital assets utilized in the
ordinary conduct of business (to the extent
such amounts would not be
capitalized in preparing a balance sheet
determined in accordance with GAAP).
"Collateral" shall mean all property or rights in which a
security
interest, mortgage, lien or other
encumbrance for the benefit of the Lenders is
or has been granted or arises or has
arisen, under or in connection with this
Agreement, the other Loan Documents, or
otherwise.
"Collateral Documents" shall mean the Security Agreements and the
Pledge
Agreements, in each case as may be amended
or otherwise modified from time to
time.
"Company"
is defined in the Preamble.
"Consolidated" or "Consolidating" shall, when used with reference
to any
financial information pertaining to (or
when used as a part of any defined term
or statement pertaining to the financial
condition of) Company and its
Subsidiaries mean the accounts of Company
and its Subsidiaries determined on a
consolidated or consolidating basis, as the
case may be, all determined as to
principles of consolidation and, except as
otherwise specifically required by
the definition of such term or by such
statements, as to such accounts, in
accordance with GAAP, applied on a
consistent basis and consistent with the
financial statements, if any, as at and for
the fiscal year ended December 31,
2002.
"Consolidated EBITDA" shall mean the EBITDA of the Company and
its
Subsidiaries on a Consolidated basis.
"Contractual Obligation" shall mean, as to any Person, any
provision of
any security issued by such Person or of
any agreement, instrument or
undertaking to which such Person is a party
or by which it or any of its
property is bound.
"Covenant
Compliance Report" shall mean the report to be furnished by the
Company to the Agent, substantially in the
form attached hereto as Exhibit D, as
such exhibit may be amended or otherwise
modified from time to time by the
Required Lenders, and certified by the
chief financial officer of the Company
pursuant to Section 7.3(c), hereof, for the
purpose of monitoring the Company's
and each Permitted Borrower's compliance
herewith and to notify the Lenders of
the acquisition or creation of new
Subsidiaries.
"Current
Dollar Equivalent" shall mean, as of any applicable date of
determination, with respect to any Advance
or Letter of Credit made, issued or
carried in an Alternative Currency, the
amount of Dollars which is equivalent to
the then outstanding principal amount of
such Advance or Letter of Credit at the
most favorable spot exchange rate
determined by the Agent to be available to it
for the sale of Dollars for such
Alternative Currency for delivery at
approximately 11:00 A.M. (Detroit time) two
(2) Business Days after such date.
Alternative
4
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Currency equivalents of Advances in Dollars
(to the extent used herein) shall be
determined by Agent in a manner consistent
herewith.
"Debt"
shall mean, as of any applicable date of determination, all
items
of indebtedness, obligation or liability of
a Person, whether matured or
unmatured, liquidated or unliquidated,
direct or indirect, absolute or
contingent, joint or several, that should
be classified as liabilities on a
balance sheet and/or in accompanying
footnotes in accordance with GAAP.
"Default"
shall mean any event which, with the giving of notice or the
passage of time, or both, would constitute
an Event of Default.
"Dollar
Amount" shall mean (i) with respect to each Advance or Letter
of
Credit made, issued or carried (or to be
made, issued or carried) in Dollars,
the principal amount thereof and (ii) with
respect to each Advance or Letter of
Credit made, issued or carried (or to be
made or carried) in an Alternative
Currency, the amount of Dollars which is
equivalent to the principal amount of
such Advance or Letter of Credit at the
most favorable spot exchange rate
determined by the Agent to be available to
it for the sale of Dollars for such
Alternative Currency at approximately 11:00
A.M. (Detroit time) two (2) Business
Days before such Advance or Letter of
Credit is made or issued (or to be made or
issued), as such Dollar Amount may be
adjusted from time to time pursuant to
Section 2.11 hereof. When used with respect
to any Alternative Currency portion
of an Advance or Letter of Credit being
repaid or remaining outstanding at any
time or with respect to any other sum
expressed in an Alternative Currency,
"Dollar Amount" shall mean the amount of
Dollars which is equivalent to the
principal amount of such Advance or Letter
of Credit, or the amount so expressed
in such Alternative Currency, at the most
favorable spot exchange rate
determined by the Agent to be available to
it for the sale of Dollars for such
Alternative Currency at the relevant time.
Alternative Currency amounts of
Advances made, carried or expressed in
Dollars (to the extent used herein) shall
be determined by Agent in a manner
consistent herewith.
"Dollars"
and the sign "$" shall mean lawful money of the United States
of
America.
"Domestic
Advance" shall mean any Advance other than a Eurocurrency-based
Advance or any other Advance denominated in
an Alternative Currency.
"Domestic
Guaranty" shall mean that certain Amended and Restated Domestic
Guaranty delivered to Agent covering all
Indebtedness outstanding from the
Company and the Permitted Borrowers
executed and delivered as of the date hereof
(or to be executed and delivered by
joinder) by the Company and each of the
Significant Domestic Subsidiaries, as
amended or otherwise modified from time to
time.
"Domestic
Permitted Borrower" shall mean any Permitted Borrower which is
not a Foreign Permitted Borrower.
"Domestic
Subsidiary" shall mean any Subsidiary of the Company
incorporated or organized under the laws of
the United States of America, or any
state or other political subdivision
thereof or which is considered to be a
"disregarded entity" for purposes of
Section 956 of the Internal Revenue Code,
in each case provided such Subsidiary is
owned by the Company or a Domestic
Subsidiary; and "Domestic Subsidiaries"
shall mean any or all of them.
5
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"EBITDA"
shall mean, of any Person, for any period, the Net Income of
such
Person for such period adjusted (A) to
include, if applicable, the Net Income of
any Person accrued during such period but
prior to the date it became a
Subsidiary of the Company or was merged
into or consolidated with the Company
(based on financial information reasonably
satisfactory to the Agent), and (B)
to exclude, without duplication, the
following items of income or expense to the
extent that such items are included in the
calculation of such Net Income: (a)
Interest Expense, (b) any non-cash expenses
and charges, (c) total income tax
expense, (d) depreciation expense, (e) the
expense associated with amortization
of intangible and other assets, (f)
non-cash provisions for reserves for
discontinued operations, (g) any
extraordinary, unusual or non-recurring gains
or losses or charges or credits, (h) any
gain or loss associated with the sale
or write-down of assets, (i) any gain or
loss from or attributable to minority
interests and (j) any gain or loss
accounted for by the equity method of
accounting (except in the case of income to
the extent of the amount of cash
dividends or cash distributions paid to
such Person or any Subsidiary of such
Person by the entity accounted for by the
equity method of accounting).
"Effective
Date" shall mean August 5, 2003, or such later date (but not
later than September 30, 2003) on which all
of the conditions precedent set
forth in Sections 5.1 through 5.10 hereof
have been satisfied, as confirmed in
writing by the Agent.
"EMU"
shall mean Economic and Monetary Union as contemplated in the
Treaty
on European Union.
"EMU
Legislation" shall mean legislative measures of the European
Council
(including European Council regulations)
for the introduction of, changeover to
or operation of a single or unified
European currency (whether known as the Euro
or otherwise), being in part the
implementation of the third stage of EMU.
"Environmental Auditors" shall mean, when selected or retained by
the
Company or the Agents, as the case may be
hereunder, such counsel, engineering
or testing firms or other experienced,
reputable environmental consultants
reasonably acceptable to the Required
Lenders.
"Equity
Offering" shall mean the issuance and sale for cash, on or
after
the date hereof, by Company or any of its
Subsidiaries of additional capital
stock or other equity interests.
"Equity
Offering Adjustment" shall mean that amount to be added to the
minimum Tangible Net Worth required to be
maintained under Section 7.4 hereof
consisting of an amount equal to
seventy-five percent (75%) of each Equity
Offering conducted by the Company or any of
its Subsidiaries, net of costs of
issuance, on and after July 1, 2003, on a
cumulative basis; provided, however,
that in the case of each Equity Offering by
a Subsidiary, the amount of the
Equity Offering Adjustment shall not exceed
75% of the amount, if any, by which
such Equity Offering increases Tangible Net
Worth.
"ERISA"
shall mean the Employee Retirement Income Security Act of 1974,
as
amended, or any successor act or code, and
the regulations in effect from time
to time thereunder.
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<PAGE>
"ERISA
Affiliate" shall mean any trade or business (whether or not
incorporated) which is under common control
with the Company within the meaning
of Section 4001 of ERISA or is part of a
group which includes the Company and
would be treated as a single employer under
Section 414 of the Internal Revenue
Code.
"Euro" or
"Euro Unit" shall mean the currency unit of the Euro as defined
in the EMU Legislation.
"Eurocurrency Rate" shall mean with respect to each
Eurocurrency-based
Advance carried in any Alternative Currency
(and each Eurocurrency-Interest
Period pertaining thereto) the per annum
interest rate determined by the Agent
(or, in case of Swing Line Advances, the
Swing Line Bank) to be the offered rate
for deposits in such currency with a term
comparable to such Interest Period
that appears on the applicable Telerate
Page or the applicable British Bankers'
Association rate as reported by any
generally recognized financial information
service, in each case as reported at
approximately 11:00 a.m., London time, two
Business Days (or, in the case of a
Eurocurrency-based Advance in Euros, on such
other date as is customary in the relevant
offshore interbank market) prior to
the beginning of such Interest Period;
provided, however, that if at any time
for any reason such offered rate for any
such currency does not appear on a
Telerate Page or is not reported by any
generally recognized financial
information service, "Eurocurrency Rate"
shall mean, with respect to each such
Advance denominated in such currency, the
per annum interest rate at which
deposits in the relevant currency are
offered to Agent's Eurocurrency Lending
Office (or, in the case of Swing Line
Advances, the Swing Line Bank's
Eurocurrency Lending Office) by other prime
banks in the relevant offshore
interbank market in an amount comparable to
the relevant Eurocurrency-based
Advance and for a period equal to the
relevant Eurocurrency-Interest Period at
approximately 11:00 a.m. Detroit time two
(2) Business Days prior to the first
day of such Eurocurrency-Interest
Period.
"Eurocurrency-based Advance" shall mean any Advance (including a
Swing
Line Advance) which bears interest at the
Eurocurrency-based Rate.
"Eurocurrency-based Rate" shall mean a per annum interest rate
which is
equal to the sum of the Applicable Margin
(subject, if applicable, to adjustment
under Section 4.1 hereof), plus the
quotient of:
(A) (a) in the
case of Eurocurrency-based Advances carried
in Dollars, the Eurodollar Rate, or
(b) in the case of Eurocurrency-based Advances carried
in an Alternative Currency, the Eurocurrency Rate,
divided by
(B) a percentage
equal to 100% minus the maximum rate on such
date at which Agent is required to maintain reserves on
`Eurocurrency Liabilities' as defined in and pursuant to
Regulation D of the Board of Governors of the Federal
Reserve System or, if such regulation or definition is
modified, and as long as Agent is required to maintain
reserves against a category of liabilities which
7
<PAGE>
includes eurocurrency deposits or includes a category of
assets which includes eurocurrency loans, the rate at
which such reserves are required to be maintained on such
category,
all as conclusively determined by the Agent
(absent manifest error), such sum to
be rounded upward, if necessary, to the
nearest whole multiple of 1/100th of 1%.
"Eurocurrency-Interest Period" shall mean, (a) for Swing Line
Advances
carried at the Eurocurrency-based Rate, an
interest period of fourteen (14) days
or one month (or any lesser number of days
agreed to in advance by Company or a
Permitted Borrower, Agent and the Swing
Line Bank) and (b) for all other
Eurocurrency-based Advances, an interest
period of one, two, three or six months
(or any lesser or greater number of days
agreed to in advance by Company or a
Permitted Borrower, Agent and the Lenders)
as selected by Company or such
Permitted Borrower, as applicable, for a
Eurocurrency-based Advance pursuant to
Section 2.3 or 2.5 hereof, as the case may
be.
"Eurocurrency Lending Office" shall mean, (a) with respect to the
Agent,
Agent's office located at its Grand Caymans
Branch or such other branch of
Agent, domestic or foreign, as it may
hereafter designate as its Eurocurrency
Lending Office by written notice to
Company, the Permitted Borrowers and the
Lenders and (b) as to each of the Lenders,
its office, branch or affiliate
located at its address set forth on the
signature pages hereof (or identified
thereon as its Eurocurrency Lending
Office), or at such other office, branch or
affiliate of such Lender as it may
hereafter designate as its Eurocurrency
Lending Office by written notice to Company
and Agent.
"Eurodollar Rate" shall mean with respect to each
Eurocurrency-based
Advance carried in Dollars (and each
Eurocurrency-Interest Period pertaining
thereto) the per annum interest rate at
which deposits in dollars are offered to
Agent's Eurocurrency Lending Office (or, in
the case of Swing Line Advances, the
Swing Line Bank's Eurocurrency Lending
Office) by other prime banks in the
eurocurrency market in an amount comparable
to the relevant Eurocurrency-based
Advance and for a period equal to the
relevant Eurocurrency-Interest Period at
approximately 11:00 a.m. Detroit time two
(2) Business Days prior to the first
day of such Eurocurrency-Interest
Period.
"Event of
Default" shall mean any of the events specified in Section 9.1
hereof.
"Existing
Letter of Credit" shall mean each letter of credit issued under
the Prior Credit Agreement, if any, which
is outstanding on the Effective Date,
as set forth on Schedule 1.4 hereto.
"Federal
Funds Effective Rate" shall mean, for any day, a fluctuating
interest rate per annum equal to the
weighted average of the rates on overnight
Federal funds transactions with members of
the Federal Reserve System arranged
by Federal funds brokers, as published for
such day (or, if such day is not a
Business Day, for the next preceding
Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so
published for any day which is a
Business Day, the average of the quotations
for such day on such transactions
received by Agent from three Federal funds
brokers of recognized standing
selected by it.
8
<PAGE>
"Fee
Letter" shall mean the fee letter dated July 1, 2003 between
the
Company and the Agent hereunder, as amended
from time to time.
"Fees"
shall mean the Agent's Fees, the Revolving Credit Facility Fee,
the
Letter of Credit Fees, the Arrangers' Fee,
and the other fees and charges
payable hereunder.
"Fixed
Charge Coverage Ratio" shall mean, with respect to the Company
and
its Consolidated Subsidiaries, as of any
date of determination, a ratio, (i) the
numerator of which shall be equal to
Consolidated EBITDA for the preceding four
fiscal quarters ending on the date of
determination, minus Capital Expenditures
during such period and (ii) the denominator
of which shall be the Interest
Expense of the Company and its Consolidated
Subsidiaries for such period, in
each case determined in accordance with
GAAP.
"Foreign
Guaranty" shall mean that certain Foreign Guaranty dated March
2,
1998 covering all Indebtedness of the
Foreign Permitted Borrowers hereunder (but
expressly excluding any Hedging
Obligations) previously executed and delivered
(or to be executed and delivered by
joinder) by the Significant Foreign
Subsidiaries as amended or otherwise
modified from time to time.
"Foreign
Permitted Borrower" shall mean any Permitted Borrower hereunder
which is a Foreign Subsidiary.
"Foreign
Subsidiary" shall mean any of the Company's Subsidiaries, other
than a Domestic Subsidiary; and "Foreign
Subsidiaries" shall mean any or all of
them.
"FPB
Advance Notice" shall mean notice from the Company or the
applicable
Foreign Permitted Borrower that such
Foreign Permitted Borrower intends to
submit a Request for Advance (or for the
issuance of a Letter of Credit) under
this Agreement.
"GAAP"
shall mean generally accepted accounting principles in the
United
States of America, as in effect from time
to time, consistently applied.
"Governmental Obligations" means noncallable direct general
obligations of
the United States of America or obligations
the payment of principal of and
interest on which is unconditionally
guaranteed by the United States of America.
"Granting
Lender" shall mean a Lender which elects to grant to an SPFV
the
option to fund all or any part of any
Advance that such Lender would otherwise
be obligated to fund pursuant to this
Agreement, in each case in accordance with
Section 13.8(c) hereof; provided, however,
that notwithstanding the funding by
an SPFV of an Advance (or a portion
thereof) hereunder, the Granting Lender
shall retain all of its rights and
obligations under this Agreement with respect
to such Advance or otherwise.
"Guarantee
Obligation" shall mean as to any Person (the "guaranteeing
person") any obligation of the guaranteeing
person in respect of any obligation
of another Person (including, without
limitation, any bank under any letter of
credit), the creation of which was induced
by a reimbursement agreement,
guaranty agreement, keepwell agreement,
purchase agreement, counterindemnity or
similar obligation issued by the
guaranteeing person, in either case
9
<PAGE>
guaranteeing or in effect guaranteeing any
Debt, leases, dividends or other
obligations (the "primary obligations") of
any other third Person (the "primary
obligor") in any manner, whether directly
or indirectly, including, without
limitation, any obligation of the
guaranteeing person, whether or not
contingent, (i) to purchase any such
primary obligation or any property
constituting direct or indirect security
therefor, (ii) to advance or supply
funds (1) for the purchase or payment of
any such primary obligation or (2) to
maintain working capital or equity capital
of the primary obligor or otherwise
to maintain the net worth or solvency of
the primary obligor, (iii) to purchase
property, securities or services primarily
for the purpose of assuring the owner
of any such primary obligation of the
ability of the primary obligor to make
payment of such primary obligation or (iv)
otherwise to assure or hold harmless
the owner of any such primary obligation
against loss in respect thereof;
provided, however, that the term Guarantee
Obligation shall not include
endorsements of instruments for deposit or
collection in the ordinary course of
business. The amount of any Guarantee
Obligation of any guaranteeing person
shall be deemed to be the lower of (a) an
amount equal to the stated or
determinable amount of the primary
obligation in respect of which such Guarantee
Obligation is made and (b) the maximum
amount for which such guaranteeing person
may be liable pursuant to the terms of the
instrument embodying such Guarantee
Obligation, unless such primary obligation
and the maximum amount for which such
guaranteeing person may be liable are not
stated or determinable, in which case
the amount of such Guarantee Obligation
shall be such guaranteeing person's
maximum reasonably anticipated liability in
respect thereof as determined by the
Company or Subsidiary, as applicable, in
good faith.
"Guaranties" shall mean the Domestic Guaranty and the Foreign
Guaranty,
and "Guaranty" shall mean any or all of
them.
"Guarantor(s)" shall mean each Significant Subsidiary which is
required by
the Lenders to guarantee the obligations of
the Company and/or the Permitted
Borrowers hereunder and under the other
Loan Documents.
"Hazardous
Material" shall mean and include any hazardous, toxic or
dangerous waste, substance or material
defined as such in (or for purposes of)
the Hazardous Material Laws.
"Hazardous
Material Law(s)" shall mean all laws, codes, ordinances, rules,
regulations, orders, decrees and directives
issued by any federal, state,
provincial, local, foreign or other
governmental or quasi-governmental authority
or body (or any agency, instrumentality or
political subdivision thereof)
pertaining to Hazardous Material on or
about any facilities owned, leased or
operated by Company or any of its
Subsidiaries, or any portion thereof
including, without limitation, those
relating to soil, surface, subsurface
ground water conditions and the condition
of the ambient air; and any state and
local laws and regulations pertaining to
Hazardous Material and/or asbestos; any
so-called "superfund" or "superlien" law;
and any other federal, state,
provincial, foreign or local statute, law,
ordinance, code, rule, regulation,
order or decree regulating, relating to, or
imposing liability or standards of
conduct concerning, any hazardous, toxic or
dangerous waste, substance or
material, as now or at any time hereafter
in effect.
"Hedging
Obligation(s)" shall mean Interest Rate Protection Agreements
and
any foreign currency exchange agreements
(including without limitation foreign
currency hedges and swaps)
10
<PAGE>
or other foreign exchange transactions, or
any combination of such transactions
or agreements or any option with respect to
any such transactions or agreements
entered into between Company and/or any of
its Subsidiaries and a Lender or an
Affiliate of a Lender to manage existing or
anticipated foreign exchange risk
and not for speculative purposes.
"Hereof",
"hereto", "hereunder" and similar terms shall refer to this
Agreement in its entirety and not to any
particular paragraph or provision of
this Agreement.
"Indebtedness" shall mean all indebtedness and liabilities whether
direct
or indirect, absolute or contingent, owing
by Company or any of the Permitted
Borrowers to the Lenders (or any of them)
or to the Agent, in any manner and at
any time, under this Agreement or the Loan
Documents, due or hereafter to become
due, now owing or that may hereafter be
incurred by the Company, any of the
Permitted Borrowers or any of the
Subsidiaries to, or acquired by, the Lenders
(or any of them) or by Agent, and all net
obligations with respect to Hedging
Obligations entered into between Company
and/or any of its Subsidiaries and a
Lender or an Affiliate of a Lender, any
Special Letters of Credit, and any
judgments that may hereafter be rendered on
such indebtedness or any part
thereof, with interest according to the
rates and terms specified, or as
provided by law, and any and all
consolidations, amendments, renewals,
replacements or extensions of any of the
foregoing. For the purposes of Section
9.2(b), "Indebtedness" shall exclude any
Hedging Obligations.
"Intercompany Loan" shall mean any loan (or advance in the nature
of a
loan) by the Company or any Subsidiary to
the Company or any Subsidiary,
provided that each such loan or advance to
the Company or to a Subsidiary that
is an obligor on the Indebtedness shall be
subordinated in right of payment and
priority to the Indebtedness of the Company
or such Subsidiary, as applicable,
on terms and conditions satisfactory to
Agent and the Required Lenders.
"Intercompany Loans, Advances or Investments" shall mean any
Intercompany
Loan, and any advance or investment by the
Company or any Subsidiary (including
without limitation any guaranty of
obligations or indebtedness to third parties)
to or in the Company or any Subsidiary.
"Intercompany Notes" shall mean the promissory notes issued or to
be
issued by any Subsidiary to Company or to
any Significant Domestic Subsidiary to
evidence an Intercompany Loan.
"Interest
Expense" shall mean, for any Person and with respect to any
period, the sum of the amount of interest
paid or accrued in respect of such
period, determined in accordance with
GAAP.
"Interest
Period" shall mean (a) with respect to a Eurocurrency-based
Advance, a Eurocurrency-Interest Period
commencing on the day a
Eurocurrency-based Advance is made, or on
the effective date of an election of
the Eurocurrency-based Rate made under
Section 2.3 hereof, as the case may be,
and (b) with respect to a Swing Line
Advance carried at the Quoted Rate, an
interest period of one month (or any lesser
number of days agreed to in advance
by Company or a Permitted Borrower, Agent
and the Swing Line Bank); provided,
however that (i)
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<PAGE>
any Interest Period which would otherwise
end on a day which is not a Business
Day shall end on the next succeeding
Business Day, except that as to a
Eurocurrency-Interest Period, if the next
succeeding Business Day falls in
another calendar month, such
Eurocurrency-Interest Period shall end on the next
preceding Business Day, and (ii) when a
Eurocurrency-Interest Period begins on a
day which has no numerically corresponding
day in the calendar month during
which such Eurocurrency-Interest Period is
to end, it shall end on the last
Business Day of such calendar month, and
(iii) no Interest Period shall extend
beyond the Revolving Credit Maturity
Date.
"Interest
Rate Protection Agreement(s)" shall mean any interest rate,
swap, cap, floor, collar, forward rate
agreement or other rate protection
transaction, or any combination of such
transactions or agreements or any option
with respect to any such transactions or
agreements now existing or hereafter
entered into by Company or any of its
Subsidiaries to manage existing or
anticipated interest rate risk and not for
speculative purposes.
"Internal
Revenue Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and the
regulations promulgated thereunder.
"Investment" shall mean any loan or advance by Company or any of
its
Subsidiaries to, or any other loan, advance
or investment by Company or any of
its Subsidiaries in, any Person (including
without limitation, the Company or
any Subsidiary), without offset, reduction
or other adjustment, whether such
loan, advance or investment shall be in the
nature of an investment in shares of
stock or other capital or securities,
general or limited partnership, limited
liability company or joint venture
interests, evidences of indebtedness or
otherwise.
"Issuing
Office" shall mean Agent's office located at One Detroit
Center,
500 Woodward Avenue, Detroit, Michigan
48275 or such other office as Agent shall
designate in writing as its Issuing
Office.
"Joinder
Agreement" shall mean a joinder agreement in the form attached
as
Exhibit A to the form of the Domestic
Guaranty or to the form of the Foreign
Guaranty, to be executed and delivered by
any Person required to be a Guarantor
pursuant to Section 7.16 of this
Agreement.
"Joint
Venture" shall mean any corporation, partnership, association,
joint stock company, limited liability
company, partnership, business trust or
other combined enterprise, other than a
Subsidiary, in which (or to which) the
Company or any of its Subsidiaries has made
a loan, investment or advance or has
an ownership stake or interest, whether in
the nature of Share Capital or
otherwise (but expressly excluding
Permitted Investments) to fund a business
enterprise.
"Lender(s)" shall mean each of the Lenders signatory to this
Agreement and
any assignee which becomes a Lender
pursuant to Section 13.8(c) hereof, and
shall include, as applicable, the Swing
Line Bank.
"Letter(s)
of Credit" shall mean any standby letters of credit issued by
Agent at the request of or for the account
of an Account Party or Account
Parties pursuant to Article 3 hereof,
including without limitation any Existing
Letters of Credit.
12
<PAGE>
"Letter of
Credit Agreement" shall mean, in respect of each Letter of
Credit, the application and related
documentation satisfactory to the Agent of
an Account Party or Account Parties
requesting Agent to issue such Letter of
Credit, as amended from time to time.
"Letter of
Credit Fees" shall mean the fees payable to Agent for the
accounts of the Lenders in connection with
Letters of Credit pursuant to Section
3.4 hereof.
"Letter of
Credit Maximum Amount" shall mean, as of any date of
determination, the lesser of: (a) One
Hundred Million Dollars ($100,000,000) and
(b) the Revolving Credit Aggregate
Commitment as of such date, minus the
aggregate principal amount of Advances
outstanding as of such date under the
Revolving Credit and under the Swing Line,
minus, in each case the Letter of
Credit Reserve in effect on such date.
"Letter of
Credit Obligation(s)" shall mean the obligation of an Account
Party or Account Parties under this
Agreement and each Letter of Credit
Agreement to reimburse the Agent for each
payment made by the Agent under the
Letter of Credit issued pursuant to such
Letter of Credit Agreement, together
with all other sums, fees, charges and
amounts which may be owing to the Agent
under such Letter of Credit Agreement.
"Letter of
Credit Payment" shall mean any amount paid or required to be
paid by the Agent in its capacity hereunder
as issuer of a Letter of Credit as a
result of a draft or other demand for
payment under any Letter of Credit.
"Letter of
Credit Reserve" shall mean Five Million Dollars ($5,000,000),
as decreased by the Company with the
Agent's approval.
"Leverage
Ratio" shall mean, as of any date of determination, with
respect
to the Company and its Consolidated
Subsidiaries, the ratio of (a) Total Debt as
of such date to (b) Consolidated EBITDA for
the four consecutive fiscal quarters
then ending.
"Lien"
shall mean any pledge, assignment, hypothecation, mortgage,
security interest, deposit arrangement,
option, trust receipt, conditional sale
or title retaining contract, sale and
leaseback transaction, or any other type
of lien, charge or encumbrance, whether
based on common law, statute or
contract.
"Loan
Documents" shall mean collectively, this Agreement, the Letter
of
Credit Agreements, the Guaranties, the
Collateral Documents, Hedging Obligations
entered into between Company and/or any of
its Subsidiaries and a Lender or an
Affiliate of a Lender, and any other
documents, instruments or agreements
executed pursuant to or in connection with
any such document, the Indebtedness
or this Agreement as such documents may be
amended or otherwise modified from
time to time. For the purposes of Section
13.11, "Loan Documents" shall exclude
any Hedging Obligations.
"LYONs"
shall mean the Liquid Yield Option Notes (LYONs)TM issued under
and pursuant to that certain Indenture
dated as of June 4, 2001 between The Bank
of New York, as trustee, and the Company,
as issuer.
13
<PAGE>
"LYONs
Reserve" shall mean zero, until the Additional Debt Issuance
Date,
whereupon the LYONs Reserve shall mean One
Hundred Sixty Million Dollars
($160,000,000), such reserve being reduced
from time to time (but not below
zero) by twice the accreted amount of the
LYONs that the Company prepays,
purchases, redeems or defeases from and
after the Agent's consent to the
issuance of the New Convertible
Subordinated Debt dated July 29, 2003 issued
under the Prior Credit Agreement, or that
is converted into shares of the
Company's common stock, any such reductions
of the LYONs Reserve becoming
effective on the date the Agent receives
written evidence, satisfactory in form
and substance to the Agent, of such
prepayment, purchase, redemption, defeasance
or conversion of the LYONs.
"Moody's"
means Moody's Investors Service, Inc., its successors and
assigns, and, if such organization shall be
dissolved or liquidated or shall no
longer perform the functions of a
securities rating agency, "Moody's" shall be
deemed to refer to any other nationally
recognized securities rating agency
designated by the Agent.
"Multiemployer Plan" shall mean any multiemployer plan within the
meaning
of Section 4001(a)(3) of ERISA.
"National
Currency Unit" shall mean a fraction or multiple of one Euro
Unit expressed in units of the former
national currency of a Participating
Member State.
"Net
Income" shall mean the net income (or loss) of a Person for any
period determined in accordance with
GAAP.
"Net
Income Adjustment" shall mean that amount to be added to the
minimum
Tangible Net Worth required to be
maintained under Section 7.4 hereof consisting
of fifty percent (50%) of Company's
Consolidated Net Income for each of the
Company's fiscal quarters ending on or
after September 30, 2003 (in each case,
only if a positive number), on a cumulative
basis.
"New
Convertible Subordinated Debt" means that certain new
convertible
subordinated Debt of the Company in the
amount of up to $500,000,000 to be
issued by the Company under an Indenture to
be dated as of August 6, 2003
between the Company and Wachovia Bank,
National Association, as Trustee on
substantially the terms and conditions
contained in the Company's Offering
Memorandum relating to such debt dated July
31, 2003 (as determined in the
reasonable discretion of the Agent and
confirmed by the Agent to the Company).
"Notes"
shall mean the Revolving Credit Notes or the Swing Line Notes,
or
any or all of the Revolving Credit Notes
and the Swing Line Notes as the context
indicates, and in the absence of such
indication, all such notes.
"Participating Member State" shall mean such country so described
in any
EMU Legislation.
"PBGC"
shall mean the Pension Benefit Guaranty Corporation under ERISA,
or
any successor corporation.
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<PAGE>
"PDD
Restructuring" shall mean that certain reorganization and
restructuring of the Company's power diodes
division, to the extent consummated
on substantially the terms described in
documentation delivered by the Company
to the Agent on July 30, 2003.
"Pension
Plan" shall mean each employee pension benefit plan, as defined
in Section 3(2) of ERISA, of the Company or
an ERISA Affiliate but only to the
extent such Pension Plan is subject to
ERISA, as provided in Section 4 of ERISA,
and is subject to Section 412 of the
Internal Revenue Code and Section 302 of
ERISA other than a Multiemployer Plan.
"Percentage" shall mean, with respect to any Lender, its percentage
share,
as set forth on Schedule 1.1 hereto, of the
Letters of Credit or the Revolving
Credit, as the context indicates, as such
Schedule may be revised from time to
time by Agent in accordance with Section
13.8(d) hereof.
"Permitted
Acquisition" shall mean any acquisition by the Company or any
of its Subsidiaries of assets, businesses
or business interests or shares of
stock or other ownership interests of or in
any Person, conducted while no
Default or Event of Default has occurred
and is continuing hereunder (both
before and after giving effect thereto) in
accordance with the following
requirements:
(a)
Such acquisition
is of a business or Person primarily engaged in a
line of business in which the Company or any Subsidiary is
permitted
to engage under Section 8.1(b) hereof;
(b)
The board of
directors (or other Person(s) exercising similar
functions) of the seller of the assets or issuer of the shares
of
stock or other ownership interests being acquired shall have
approved such transaction or recommended that such transaction
be
approved;
(c)
in the event
that the value of such proposed new acquisition,
computed on the basis of total acquisition consideration paid
or
incurred, or to be paid or incurred, by the Company or its
Subsidiaries with respect thereto, including all indebtedness
which
is assumed or to which such assets, businesses or business or
ownership interests or shares, or any Person so acquired, is
subject, but excluding the value of any common shares transferred
as
a
part of such acquisition, shall be
(i) greater than
or equal to Fifty Million Dollars ($50,000,000),
determined as of the date of such acquisition, then not less
than fifteen (15) nor more than ninety (90) days prior to the
date each such proposed acquisition is scheduled to be
consummated, the Company provides written notice thereof to
Agent, accompanied by (A) the term sheet, purchase agreement
and, when available, drafts of all material documents
pertaining to such proposed acquisition, (B) historical
financial information (including, but not limited to, income
statements, balance sheets and cash flows) covering either the
three most recent complete fiscal years of the acquisition
target prior to the effective date of the acquisition or the
entire credit history of the acquisition target, whichever
period is shorter, and the quarterly
15
<PAGE>
financial statements of the acquisition target for the most
recent eight consecutive fiscal quarters (provided however
that, if the financial information referred to in this
subparagraph (B) is not available, Company shall furnish Agent
with financial information otherwise reasonably satisfactory
to the Required Lenders) and (C) Pro Forma Projected Financial
Information, or
(ii) less than Fifty
Million Dollars ($50,000,000) but greater than
or equal to Ten Million Dollars ($10,000,000), then not less
than ten (10) Business Days after date each such proposed
acquisition has been consummated, the Company provides written
notice thereof to Agent (with certified copies of all material
documents pertaining to such acquisition);
whereupon Agent shall promptly upon its
receipt thereof distribute copies of all
notices and other materials received from
Company under this clause (c) to each
Lender; and
(d)
within thirty
(30) days after any such acquisition has been
completed, the Company, its Subsidiaries and any of the other
business entities involved in such acquisition shall execute or
cause to be executed, and provide or cause to be provided to
Agent,
any Loan Documents required under Section 7.16 hereof.
"Permitted
Borrower Addendum" shall mean an addendum substantially in the
form attached hereto as Exhibit H, to be
executed and delivered by each
Permitted Borrower which becomes a party to
this Agreement after the date
hereof, as such Exhibit may be amended from
time to time.
"Permitted
Borrower Sublimit" shall mean the maximum aggregate amount of
Advances and Letters of Credit (including
Letter of Credit Obligations)
available at any time to each of the
Permitted Borrowers hereunder, as set forth
on Schedule 1.6 hereof.
"Permitted
Borrower(s)" shall mean Vishay Europe and Vishay Electronic,
together with each of Vishay Asia and
Siliconix (but solely upon each of Vishay
Asia's and Siliconix's compliance with the
requirements set forth in Section 2.1
hereof), and any 100% Subsidiary which,
after the Effective Date and with the
prior written approval of the Lenders,
becomes a party hereto pursuant to the
requirements of Section 2.1 hereof.
"Permitted
Company Encumbrances" shall mean, in addition to Permitted
Encumbrances, those liens and encumbrances
of the Company identified in Schedule
8.5, hereto.
"Permitted
Currencies" shall mean Dollars or any Alternative Currency.
"Permitted
Encumbrances" shall mean, with respect to any Person:
(e)
liens for taxes
not yet due and payable or which are being contested
in good faith by appropriate proceedings diligently pursued,
provided that such provision for the payment of all such taxes
known
to such Person has been made on the books of such Person as may
be
required by GAAP;
16
<PAGE>
(b)
mechanics',
materialmen's, bankers', carriers', warehousemen's and
similar liens and encumbrances arising in the ordinary course
of
business and securing obligations of such Person that are not
overdue for a period of more than 60 days or are being contested
in
good faith by appropriate proceedings diligently pursued,
provided
that in the case of any such contest (i) any proceedings
commenced
for the enforcement of such liens and encumbrances shall have
been
duly suspended; and (ii) such provision for the payment of such
liens and encumbrances has been made on the books of such Person
as
may be required by GAAP;
(c)
liens arising in
connection with worker's compensation, unemployment
insurance, old age pensions (subject to the applicable provisions
of
this Agreement) and social security benefits which are not
overdue
or are being contested in good faith by appropriate proceedings
diligently pursued, provided that in the case of any such
contest
(i) any proceedings commenced for the enforcement of such liens
shall have been duly suspended; and (ii) such provision for the
payment of such liens has been made on the books of such Person
as
may be required by GAAP;
(d)
(i) liens
incurred in the ordinary course of business to secure the
performance of statutory obligations arising in connection with
progress payments or advance payments due under contracts with
the
United States or any foreign government or any agency thereof
entered into in the ordinary course of business and (ii) liens
incurred or deposits made in the ordinary course of business to
secure the performance of statutory obligations, bids, leases,
fee
and expense arrangements with trustees and fiscal agents and
other
similar obligations (exclusive of obligations incurred in
connection
with the borrowing of money, any lease-purchase arrangements or
the
payment of the deferred purchase price of property), provided
that
full provision for the payment of all such obligations set forth
in
clauses (i) and (ii) has been made on the books of such Person
as
may be required by GAAP; and
(e)
any minor
imperfections of title, including but not limited to
easements, covenants, rights-of-way or other similar
restrictions,
which, either individually or in the aggregate do not
materially
adversely affect the present or future use of the property to
which
they relate, which would have a material adverse effect on the
sale
or lease of such property, or which would render title thereto
unmarketable.
"Permitted
Encumbrances of the Subsidiaries" shall mean, in addition to
Permitted Encumbrances, those liens and
encumbrances of the Subsidiaries
identified in Schedule 8.5, hereto.
"Permitted
Investments" shall mean:
(a)
Governmental
Obligations;
(b)
Obligations of a
state of the United States, the District of
Columbia or any possession of the United States, or any
political
subdivision thereof, which are
17
<PAGE>
described in Section 103(a) of the Internal Revenue Code and
are
rated in any of the highest 3 major rating categories as
determined
by at least one nationally recognized Rating Agency; or secured,
as
to payments of principal and interest, by a letter of credit
provided by a financial institution or insurance provided by a
bond
insurance company which itself or its debt is rated in the highest
3
major rating categories as determined by at least one Rating
Agency;
(c)
Banker's
acceptances, commercial accounts, certificates of deposit,
or depository receipts issued by a bank, trust company, savings
and
loan association, savings bank or other financial institution
whose
deposits are insured by the Federal Deposit Insurance
Corporation
and whose reported capital and surplus equal at least
$500,000,000;
(d)
commercial paper
with a minimum rating of "A-1" (or better) by S&P
or "P-1" (or better) by Moody's, full faith and credit direct
obligations of the United States of America or, with respect to
the
Foreign Subsidiaries, of the central government of the
applicable
jurisdiction, or any agency thereof, certificates of deposit,
and
other short term investments (each of a duration of one year or
less), maintained by the Company or any of its Subsidiaries
consistent with the present investment practices of such parties
(as
classified in the current financial statements of such
parties);
(e)
Secured
repurchase agreements against obligations itemized in
paragraph (a) above, and executed by a bank or trust company or
by
members of the association of primary dealers or other
recognized
dealers in United States government securities, the market value
of
which must be maintained at levels at least equal to the
amounts
advanced and repurchase agreements entered into with
counterparties
having ratings in either of the highest two rating categories
by
Moody's or S&P, or the highest rating category by Fitch
Investor
Services, Duff & Phelps or Thompson Bank Watch and providing
for
underlying securities to be held by a third party;
(f) Any fund or other pooling
arrangement which exclusively purchases
and holds the investments itemized in (a) through (e) above;
and
(g)
other short term
investments (excluding investments in Subsidiaries,
Affiliates or Joint Ventures) made or maintained by any Foreign
Subsidiary outside of the United States of America in the
ordinary
course of its business, consistent with the present investment
practices of the Company and its Subsidiaries as of the date
hereof
(generally, and as to the individual and aggregate amounts and
other
terms thereof).
"Permitted
Securitization" shall mean the transfer or encumbrance of
certain foreign accounts receivable by any
of the Foreign Subsidiaries to a
Special Purpose Subsidiary conducted in
accordance with the following
requirements:
18
<PAGE>
(a)
The disposition
of foreign accounts receivable will not result in
the aggregate principal amount of Debt at any time issued and
outstanding in respect of Permitted Securitizations being in
excess
of Two Hundred Million Dollars ($200,000,000) in aggregate while
the
Indebtedness remains outstanding;
(b)
The Foreign
Subsidiary disposing of foreign accounts receivable to a
Special Purpose Subsidiary pursuant to such Permitted
Securitization
shall itself actually receive (substantially contemporaneously
with
such disposition) cash in connection with any such
Securitization
Transaction in an amount based on normal and customary advance
rates
(and taking into account typical deductions for market-based,
arms-length Securitization Transactions);
(c)
Each such
disposition shall be without recourse to the Company or
its Domestic Subsidiaries and otherwise on normal and customary
terms and conditions for comparable asset-based Securitization
Transactions;
(d)
Each such
Securitization Transaction shall be structured on the
basis of the issuance of non-recourse (to the Company or its
Domestic Subsidiaries) Debt or other similar securities by a
Special
Purpose Subsidiary;
(e)
Both immediately
before and immediately after each such disposition,
no Default or Event of Default (whether or not related to such
disposition) shall have occurred and be continuing; and
(f)
Immediately
prior to and immediately after conducting each such
Securitization Transaction, Company must have on its rated
Senior
Debt a BB+ or better rating from S&P and a Ba1 rating or better
from
Moody's.
"Permitted
Transfer" shall mean (i) any disposition of inventory or worn
out or obsolete machinery, equipment or
other such personal property in the
ordinary course of business, (ii) the
transfer by Company or its Subsidiaries to
Vishay Israel or its wholly-owned direct
subsidiaries existing under the laws of
Israel of machinery and equipment in an
aggregate amount (valued on the basis of
the book value of such property on the date
of transfer thereof) of up to Fifty
Million Dollars ($50,000,000) from and
after the Effective Date (provided that
no Default or Event of Default has occurred
and is continuing at the time of any
such transfer), and (iii) any transfers of
intangible assets and share capital
pursuant to the PDD Restructuring
(substantially as described in the materials
previously delivered to the Agent),
provided that the Company comply with the
delivery of any required Collateral
Documents under Section 7.16 hereof,
following such transfers.
"Permitted
Transferee" shall mean a "Permitted Transferee" as defined in
the Company's current Certificate of
Incorporation, and any subsequent amendment
of the definition of such term approved by
the Required Lenders.
"Person"
shall mean an individual, corporation, partnership, limited
liability company, trust, incorporated or
unincorporated organization, joint
venture, joint stock company, or a
government or any agency or political
subdivision thereof or other entity of any
kind.
19
<PAGE>
"Pledge
Agreement(s)" shall mean the various stock pledge agreements,
including any nantissements, notarial
deeds, pledges of financial instrument
accounts, or other local law pledges (and
any of them) previously executed and
delivered, executed and delivered as of the
Effective Date or to be executed or
delivered pursuant to Sections 7.16 and/or
7.18 hereof all, in favor of the
Agent, for and on behalf of the Lenders
under this Agreement and, except with
respect to those Pledge Agreements executed
by or covering the share capital of
a Significant Foreign Subsidiary, on behalf
of any Lenders or their Affiliates
(or any of them) under any Hedging
Obligations, in each case as amended or
otherwise modified from time to time.
"Prime
Rate" shall mean the per annum interest rate established by
Agent,
or in the case of Swing Line Advances
carried at the Prime-based Rate, by the
Swing Line Bank, as its prime rate for its
borrowers, as such rate may vary from
time to time, which rate is not necessarily
the lowest rate on loans made by
Agent or the Swing Line Bank at any such
time.
"Prime-based Advance" shall mean an Advance (including a Swing
Line
Advance) which bears interest at the
Prime-based Rate.
"Prime-based Rate" shall mean that rate of interest which is the
greater
of (i) the Prime Rate or (ii) the Alternate
Base Rate.
"Prior
Credit Agreement" is defined in the Preamble.
"Pro Forma
Projected Financial Information" shall mean, as to any proposed
acquisition, a statement executed by an
Authorized Officer of the Company
(supported by reasonable detail) setting
forth the total consideration to be
paid or incurred in connection with the
proposed acquisition and, pro forma
combined projected financial information
for the Company and its Consolidated
Subsidiaries and the acquisition target (if
applicable), consisting of projected
opening balance sheets and covenant
calculations as of the proposed effective
date of the acquisition or the closing date
and as of the end of at least the
next succeeding three (3) fiscal years of
Company following the acquisition and
projected statements of income, balance
sheets and cash flow statements for each
of those years based on historical
financial information prepared in accordance
with GAAP, including sufficient detail to
permit calculation of the amounts and
the financial covenants described in
Sections 7.4 through 7.6 hereof and
evidencing projected compliance therewith,
as projected as of the effective date
of the acquisition and for those fiscal
years and accompanied by (i) a statement
setting forth a calculation of the ratios
and amounts so described and (ii) a
statement in reasonable detail specifying
all material assumptions underlying
the projections.
"Prohibited Transaction" shall mean any transaction involving a
Pension
Plan which constitutes a "prohibited
transaction" under Section 406 of ERISA or
Section 4975 of the Internal Revenue
Code.
"Quoted
Rate" shall mean the rate of interest per annum offered by the
Swing Line Bank in its sole discretion with
respect to a Swing Line Advance.
"Quoted
Rate Advance" means any Swing Line Advance which bears interest
at
the Quoted Rate.
20
<PAGE>
"Rating
Agency" shall mean Fitch Investor Services, Inc., S&P, or
Moody's,
or any of their respective successors, or
any other nationally recognized rating
agency, and "Rating Agencies" shall be the
collective reference to any or all of
the foregoing.
"Reaffirmation(s) of Certain Loan Documents" shall mean the
Reaffirmation(s) of Certain Loan Documents,
executed and delivered pursuant to
Section 5.3 by the Company, the Permitted
Borrowers and certain Significant
Subsidiaries, substantially in the form of
Exhibit J attached hereto.
"Refunded
Swing Line Advance" is defined in Section 2.5(e) hereof.
"Register"
is defined in Section 13.8(f) hereof.
"Remaining
Siliconix Acquisition" shall mean the purchase or other
acquisition by Company or any of its
Domestic Subsidiaries of all or any portion
of the shares of stock of Siliconix.
"Reportable Event" shall mean a "reportable event" within the
meaning of
Section 4043 of ERISA and the regulations
promulgated thereunder, which is
material to the Company and its
Subsidiaries, taken as a whole.
"Request
for Advance" shall mean a Request for Revolving Credit Advance
or
a Request for Swing Line Advance, or either
of them, as the context may indicate
or otherwise require.
"Request
for Revolving Credit Advance" shall mean a request for
Revolving
Credit Advance issued by the Company or by
a Permitted Borrower and
countersigned by the Company under Section
2.3(c) hereof, as the case may be, in
the form attached annexed hereto as Exhibit
A-1, as such form may be amended or
otherwise modified from time to time.
"Request
for Swing Line Advance" shall mean a request for Swing Line
Advance issued by the Company or by a
Permitted Borrower and countersigned by
the Company under Section 2.5(c) hereof, in
the form attached annexed hereto as
Exhibit A-2, as such form may be amended or
otherwise modified from time to
time.
"Required
Lenders" shall mean at any time Lenders holding 51% of the
aggregate principal amount of the
Indebtedness then outstanding hereunder
(provided that, for purposes of determining
Required Lenders hereunder,
Indebtedness outstanding under the Swing
Line shall be allocated among the
Lenders based on their respective
Percentages of the Revolving Credit) or, if no
Indebtedness is then outstanding, Lenders
holding 51% of the Percentages.
"Revolving
Credit" shall mean the revolving credit loans to be advanced to
the Company or a Permitted Borrower by the
Lenders pursuant to Section 2 hereof,
in an aggregate amount (subject to the
terms hereof), not to exceed, at any one
time outstanding, the Revolving Credit
Aggregate Commitment.
"Revolving
Credit Aggregate Commitment" shall mean Four Hundred Million
Dollars ($400,000,000) less the LYONs
Reserve, and subject to any reduction or
termination of the Revolving Credit
Aggregate Commitment under Section 2.15 or
9.2 hereof.
21
<PAGE>
"Revolving
Credit Facility Fee" shall mean the facility fee payable to
Agent for distribution to the Lenders
pursuant to Section 2.13, hereof.
"Revolving
Credit Maturity Date" shall mean the earlier to occur of (i)
May 1, 2007, as such date may be extended
from time to time pursuant to Section
2.16 hereof, and (ii) the date on which the
Revolving Credit Aggregate
Commitment shall be terminated pursuant to
Section 2.15 or 9.2 hereof.
"Revolving
Credit Notes" shall mean the revolving credit notes which may
be issued by Company or a Permitted
Borrower at the request of a Lender pursuant
to Section 2.2(e) hereof in the form
annexed to this Agreement as Exhibit B-1 or
Exhibit B-2, as the case may be, as such
Notes may be amended, renewed, replaced
or extended from time to time.
"Securitization Transaction(s)" shall mean a transfer of, or grant
of a
Lien on, foreign accounts receivable by any
Foreign Subsidiary to a Special
Purpose Subsidiary or other special purpose
or limited purpose entity and the
issuance (whether by such Special Purpose
Subsidiary or other special purpose or
limited purpose entity or any other Person)
of Debt or of any securities secured
directly or indirectly by interests in, or
of trust or a comparable certificates
or other securities directly or indirectly
evidencing interests in, such foreign
accounts receivable.
"Security
Agreement(s)" shall mean the security agreements executed and
delivered by the Company and each
Significant Domestic Subsidiary and any
security agreements executed by certain
Significant Foreign Subsidiaries
incorporated under the laws of the United
States of America, or a state,
territory, possession or other political
subdivision thereof after Agent's
receipt of a FPB Advance Notice pursuant to
the requirements of Section 7.16
hereof (whether by execution thereof or by
execution of a joinder agreement
attached to the form of such security
agreement) in favor of the Agent
substantially in the form of the security
agreements previously delivered under
this Agreement, as amended or otherwise
modified from time to time.
"Senior
Debt" shall mean, with respect to the Company and its
Consolidated
Subsidiaries, Total Debt, excluding
Subordinated Debt.
"Shares",
"share capital", "capital stock", "stock" and words of similar
import shall mean and refer to the equity
capital interest under applicable law
of any Person in a corporation or other
business entity, howsoever such interest
is created or arises, whether such capital
consists of common stock, preferred
stock or preference shares, or other stock,
and whether such capital is
evidenced by a certificate, share register
entry or otherwise.
"Significant Domestic Subsidiary(ies)" shall mean, on the Effective
Date,
the domestic Permitted Borrowers, those
Domestic Subsidiaries identified as
Significant Domestic Subsidiaries on
Schedule 6.6A hereto and thereafter shall
mean the Significant Domestic Subsidiaries
as of the Effective Date and all
other Domestic Subsidiaries, whether
existing as of the Effective Date or
created or acquired by the Company
thereafter, except any Subsidiary:
(a)
the total assets
of which, on an individual basis, on any date of
determination, are less than $5,000,000; and
22
<PAGE>
(b)
which has, as of
the most recent fiscal quarter then ending, for the
four preceding fiscal quarters, an EBITDA of less than
$1,000,000;
provided however that, notwithstanding the
foregoing, neither Siliconix nor any
of its Subsidiaries shall be considered a
Significant Domestic Subsidiary
hereunder unless and until Siliconix
becomes a 100% Subsidiary or until
Siliconix complies with Section 2.1 and/or
Section 7.16 hereof.
"Significant Foreign Subsidiary(ies)" shall mean, on the Effective
Date,
the foreign Permitted Borrowers, those
Foreign Subsidiaries which have executed
and delivered a Foreign Guaranty on or
prior to the Effective Date, as
identified on Schedule 6.6A hereto, and
thereafter shall mean the Significant
Foreign Subsidiaries as of the Effective
Date and all other Foreign
Subsidiaries, whether existing as of the
Effective Date or created or acquired
by the Company thereafter, except any
Subsidiary:
(a)
the total assets
of which, on an individual basis, on any date of
determination, are, excluding goodwill, less than $30,000,000;
and
(b)
which has, as of
the most recent fiscal quarter then ending, for the
four preceding fiscal quarters, an EBITDA of less than
$2,500,000;
provided however that, notwithstanding the
foregoing, neither Vishay Israel nor
any of its Subsidiaries organized under the
laws of Israel shall be considered a
Significant Foreign Subsidiary hereunder
and no Subsidiary of Siliconix shall be
a Significant Foreign Subsidiary unless and
until Siliconix becomes a
Significant Domestic Subsidiary.
"Significant Subsidiary(ies)" shall mean the Significant
Domestic
Subsidiaries and the Significant Foreign
Subsidiaries.
"Siliconix" shall mean Siliconix Incorporated, a Delaware
corporation.
"SPFV"
shall mean a special purpose funding vehicle utilized by a
Granting
Lender pursuant to Section 13.8 hereof to
fund all or any part of any Advance
that such Lender would otherwise be
obligated to fund under this Agreement.
"Special
Letters of Credit" shall mean letters of credit issued by Agent
(or, with respect to the letter of credit
issued by Syndication Agent, or its
affiliates, described on Schedule 1.7
hereto, and any extensions or renewals
thereof) as an administrative convenience
for the account of the Company or its
Subsidiaries on its own behalf and not on
behalf (by risk participation or
otherwise) of the other Lenders, in an
aggregate amount at any time outstanding
not to exceed the Letter of Credit Reserve
in effect at such time, each such
letter of credit being in an undrawn amount
of less than $750,000.
"Special
Purpose Subsidiary" shall mean any wholly-owned direct or
indirect Subsidiary of the Company
established for the sole purpose of
conducting a Permitted Securitization and
otherwise established and operated in
accordance with customary industry
practices.
23
<PAGE>
"S&P"
means Standard & Poor's Rating Services, a division of The
McGraw-Hill Companies, Inc., its successors
and assigns, and, if such
organization shall be dissolved or
liquidated or shall no longer perform the
functions of a securities rating agency,
"S&P" shall be deemed to refer to any
other nationally recognized securities
rating agency designated by the Agent.
"Stockholder's Equity" shall mean (i) legal capital consisting of
common
or preferred stock, (ii) paid-in capital to
the extent of the excess over par or
stated value paid for capital stock and
that created by a corporate readjustment
and (iii) retained earnings consisting of
cumulative Net Income reduced by
dividends declared or paid.
"Subordinated Debt" shall mean all Debt of the Company and its
Subsidiaries which has been subordinated in
right of payment and priority to the
Indebtedness, in each case on terms and
conditions reasonably satisfactory to
the Agent and the Required Lenders,
including, without limitation, the
Subordinated Debt existing on the Effective
Date and identified (as such) on
Schedule 8.13 hereto.
"Subsidiary(ies)" shall mean any corporation, association, joint
stock
company, limited liability company,
partnership or business trust of which more
than fifty percent (50%) of the outstanding
voting stock or other ownership
interests is owned either directly or
indirectly by Company or one or more of
its Subsidiaries or by Company and one or
more of its Subsidiaries, or the
management of which is otherwise
controlled, directly, or indirectly through one
or more intermediaries, or both, by Company
and/or its Subsidiaries. "100%
Subsidiary(ies)" shall mean any of the
Company's Subsidiaries whose stock (other
than directors' or qualifying shares to the
extent required under applicable
law) or other ownership interests is owned
100% by any other 100% Subsidiary
and/or the Company, and shall also include
Vishay Israel.
"Swing
Line" shall mean the revolving credit loan to be advanced to
the
Company or a Permitted Borrower by the
Swing Line Bank pursuant to Section 2.5
hereof, in an aggregate amount (subject to
the terms hereof) not to exceed, at
any one time outstanding, the Swing Line
Maximum Amount.
"Swing
Line Advance" shall mean an Advance made by Swing Line Bank to
Company or a Permitted Borrower pursuant to
Section 2.5 hereof.
"Swing
Line Bank" shall mean Comerica Bank, and its successors and
assigns.
"Swing
Line Maximum Amount" shall mean Forty Million Dollars
($40,000,000).
"Swing
Line Notes" shall mean the swing line notes which may be issued
by
Company or a Permitted Borrower at the
request of Swing Line Bank pursuant to
Section 2.5(a) hereof in the form annexed
hereto as Exhibit C-1 or C?2, as the
case may be, as such Notes may be amended
or supplemented from time to time, and
any notes issued in substitution,
replacement or renewal thereof from time to
time.
"Syndication Agent" shall
mean Fleet Securities,
Inc., or its permitted
successors and/or assigns.
24
<PAGE>
"Tangible
Net Worth" shall mean, as of any date of determination, the
total common shareholders' equity of the
Company and its Subsidiaries on a
Consolidated basis, together with the
amount, if any, of preferred stock which
is classified as part of shareholders'
equity, as reflected on the most recent
regularly prepared quarterly balance sheet
of the Company and such Subsidiaries,
which balance sheet shall be prepared in
accordance with GAAP, minus the book
amount of intangible assets including,
without limitation, such items as
goodwill, trademarks, trade names,
copyrights, patents, licenses and rights in
any intangible assets, and unamortized debt
discount and expense, as of such
date determined in accordance with GAAP,
but excluding the effects of the
currency translation adjustment and of the
pension adjustment under the
additional minimum liability section of
FASB 87.
"Total
Debt" shall mean, with respect to the Company and its
Consolidated
Subsidiaries, as of any date of
determination, the sum, without duplication, of
(a) the aggregate outstanding principal
amounts of (i) Advances of the Revolving
Credit and Swing Line outstanding as of
such date and any Letter of Credit
Obligations outstanding as of such date,
(ii) all other Debt of the Company and
its Subsidiaries as of such date for
borrowed money or which is evidenced by
debentures, notes or other similar
instruments, (iii) all other obligations of
the Company and its Subsidiaries as of such
date to reimburse the issuers of
letters of credit issued for their account
for each payment made by such issuers
under such letters of credit (iv) all
capitalized lease obligations of the
Company and its Subsidiaries as of such
date (v) all obligations of Company and
its Subsidiaries under conditional sale or
other title retention agreements
relating to property or assets purchased
and (vi) any Debt or off balance sheet
obligations issued pursuant to a
Securitization Transaction (whether by a
Special Purpose Subsidiary or otherwise),
all determined on a Consolidated
basis.
"Trans-European Business Day" shall mean a day when the
Trans-European
Settlement System is open for business.
"Trans-European Settlement System" shall mean the Trans-European
Automated
Real-time Gross Settlement Express Transfer
System or any successor.
"Treaty on
European Union" shall mean the Treaty of Maastricht (which was
signed at Maastricht on February 7, 1992
and came into force on November 1,
1993), as amended by the Treaty of
Amsterdam (which was signed on October 2,
1997 and came into force on May 1, 1999)
and the Treaty of Nice (which was
signed on February 26, 2001 and came into
force on February 1, 2003).
"Vishay
Asia" shall mean Vishay Intertechnology Asia Limited Pte., a
company organized under the laws of
Singapore.
"Vishay
Europe" shall mean Vishay Europe GmbH, a company organized
under
the laws of the Federal Republic of
Germany, formerly known as Vishay
Beteiligungs GmbH.
"Vishay
Electronic" shall mean Vishay Electronic GmbH, a company
organized
under the laws of the Federal Republic of
Germany.
"Vishay
Israel" shall mean Vishay Israel Limited, a corporation
organized
under the laws of Israel and a Subsidiary
of the Company.
25
<PAGE>
1.2
Euro.
(a)
Redenomination
of Eurocurrency-based Advances and other Advances
into Euro Units.
(i) Each
obligation under this Agreement of a party hereto which
(A) was originally denominated in the former national currency
of a Participating Member State, or (B) would otherwise have
been denominated in such former national currency prior to
such date shall be denominated in, or redenominated into, as
applicable, the Euro Unit in accordance with EMU Legislation
and applicable state law, provided that, if and to the extent
that any EMU Legislation provides that amounts denominated in
the euro unit or the National Currency Unit of a Participating
Member State, that are payable by crediting an account of the
creditor within that country, may be made in either Euro or
National Currency Units, each party to this Agreement shall be
entitled to pay or repay any such amounts in either the Euro
Unit or such National Currency Unit.
(ii) Subject to any
EMU Legislation, references in this Agreement
to a minimum amount (or an integral multiple thereof) in a
National Currency Unit to be paid to or by a party hereto
shall be deemed to be a reference to such reasonably
comparable and convenient amount (or an integral multiple
thereof) in the Euro Unit as the Agent may from time to time
specify.
(b)
Payments.
(i) All payments
by any Borrower or any Lender of amounts
denominated in the Euro or a National Currency Unit of a
Participating Member State, shall be made in immediately
available, freely transferable, cleared funds to the account
of the Agent in the principal financial center in such
Participating Member State, as from time to time designated by
the Agent for such purpose.
(ii) All amounts
payable by the Agent to any party under this
Agreement in the National Currency Unit of a Participating
Member State shall instead be paid in the Euro Unit.
(iii) Subject in the case of any Lender to Section 12.3 hereof,
the
Agent shall not be liable to any party to this Agreement in
any way whatsoever for any delay, or the consequences of any
delay, in the crediting to any account of any amount
denominated in the Euro or a National Currency Unit of a
Participating Member State.
(iv) All references
herein to the London interbank or other
national market with respect to any National Currency Unit of
a Participating Member State shall be deemed a reference to
the applicable markets and locations referred to in the
definition of "Business Day" in Section 1.1.
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<PAGE>
(c)
Increased Costs.
The Borrowers shall, from time to time upon demand
of any Lender (with a copy to the Agent), pay to such Lender
the
amount of any cost or increased cost incurred by, or of any
reduction in any amount payable to or in the effective return on
its
capital to, or of interest or other return foregone by, such
Lender
or any holding company of such Lender as a result of the
introduction of, changeover to or operation of the Euro in a
Participating Member State, other than any such cost or reduction
or
amount foregone reflected in any interest rate hereunder.
(d)
Inconsistent
Practice. If the basis of accrual of interest or fees
expressed in this Agreement with respect to the currency of any
state that becomes a Euro Member shall be inconsistent with any
convention or practice in the London interbank market for the
basis
of accrual of interest or fees in respect of Euros, such
convention
or practice shall replace such expressed basis effective as of
and
from the date on which such state becomes a Euro Member;
provided,
that if any Advance in the currency of such state is
outstanding
immediately prior to such date, such replacement shall take
effect,
with respect to such Advance, at the end of the then current
Interest Period.
(e)
Unavailability
of Euro. If the Agent at any time determines that:
(i) the Euro has ceased to be utilized as the basic accounting
unit
of the European Community; (ii) for reasons affecting the market
in
Euros generally, Euros are not freely traded between banks
internationally; or (iii) it is illegal, impossible or
impracticable
for payments to be made hereunder in Euro, then the Agent may,
in
its discretion declare (such declaration to be binding on all
the
parties hereto) that any payment made or to be made thereafter
which, but for this provision, would have been payable in the
Euro
shall be made in a component currency of the Euro or Dollars
(as
selected by the Agent (the "Selected ---------- Currency") and
the
amount to be so paid shall be calculated on the basis of the
equivalent
of the Euro in the Selected Currency).
(f)
Additional
Changes at Agent's Discretion. This section and other
provisions of this Agreement relating to Euros and the National
Currency Units of Participating Member States shall be subject
to
such further changes (including changes in interpretation or
construction) as the Agent may from time to time in its
reasonable
discretion notify to the Borrowers and the Lenders to be
necessary
or appropriate to reflect the changeover to the Euro in
Participating Member States.
2.
REVOLVING
CREDIT
2.1
Commitment. Subject to the terms and conditions of this
Agreement
(including without limitation Section 2.3
hereof), each Lender severally and for
itself alone agrees to make Advances of the
Revolving Credit in any one or more
of the Permitted Currencies to the Company
or to any of the Permitted Borrowers
from time to time on any Business Day
during the period from the Effective Date
until (but excluding) the Revolving Credit
Maturity Date in an aggregate amount,
based on the Dollar Amount of any Advances
outstanding in Dollars and the
Current Dollar Equivalent of any Advances
outstanding in Alternative Currencies,
not to exceed
27
<PAGE>
at any one time outstanding such Lender's
Percentage of the Revolving Credit
Aggregate Commitment. Except as provided in
Section 2.12 hereof, for purposes of
this Agreement, Advances in Alternative
Currencies shall be determined,
denominated and redenominated as set forth
in Section 2.11 hereof. Subject to
the terms and conditions set forth herein,
advances, repayments and readvances
may be made under the Revolving Credit.
Advances of the Revolving Credit shall
be subject to the following additional
conditions and limitations:
(a)
No Permitted
Borrower shall be entitled to request an Advance of the
Revolving Credit or the Swing Line or the issuance of a Letter
of
Credit hereunder until (i) it has become a party to this
Agreement,
either by execution and delivery of this Agreement, or by
execution
and delivery of a Permitted Borrower Addendum to this
Agreement,
(ii) it has become a party to the applicable Guaranty either by
execution and delivery of such Guaranty or by execution and
delivery
of a Joinder Agreement to such Guaranty, (iii) in the case of
each
Domestic Permitted Borrower, it has become a party to the
applicable
Security Agreement, (iv) in the case of the first Advance to a
Foreign Permitted Borrower after the Effective Date, the Company,
or
such Foreign Permitted Borrower, has submitted to the Agent,
not
less than 90 days prior to date of such Advance, a FPB Advance
Notice and (v) in the case of each Permitted Borrower, the
Company
has encumbered and/or delivered (or caused to be encumbered
and/or
delivered), as the case may be, pursuant to a Pledge Agreement
those
shares of stock issued by such Permitted Borrower and owned
(directly or indirectly) by the Company which are required to
be
encumbered and/or delivered under the Prior Credit Agreement or
Section 7.16 or 7.18 hereof, as applicable, and accompanied in
each
case by authority documents, legal opinions and other
supporting
documents as reasonably required by Agent and the Required
Lenders
hereunder;
(b)
No Subsidiary
which is a Permitted Borrower as of the Effective Date
nor any Foreign Subsidiary which becomes a Permitted Borrower
after
the Effective Date shall be entitled to request or maintain (or,
in
the case of any Eurocurrency-based Advance, maintain beyond any
applicable Interest Period then in effect) an Advance of the
Revolving Credit or the Swing Line or the issuance of a Letter
of
Credit hereunder if it ceases to be a 100% Subsidiary of the
Company. Notwithstanding the foregoing, however, Siliconix (if
it
shall become a Permitted Borrower) shall be entitled to request
(or
maintain) Advances of the Revolving Credit and the Swing Line
and
the issuance of Letters of Credit hereunder so long as at least
80%
of its common shares are owned directly or indirectly by the
Company.
2.2
Accrual of Interest and Maturity; Evidence of Indebtedness. (a)
The
Company hereby unconditionally promises to
pay to the Agent for the account of
each Lender the then unpaid principal
amount of each Revolving Credit Advance of
such Lender made to the Company and each
Permitted Borrower, and each Permitted
Borrower hereby unconditionally promises to
pay to the Agent for the account of
each Lender the then unpaid principal
amount of each Revolving Credit Advance of
such Lender made to such Permitted
Borrower, on the Revolving Credit Maturity
Date and on such other dates and in such
other amounts as may be required from
time to time pursuant to this
Agreement.
28
<PAGE>
(b)
Each Lender
shall maintain in accordance with its usual practice an
account or accounts evidencing indebtedness of the Company and
each
Permitted Borrower to the appropriate lending office of such
Lender
resulting from each Revolving Credit Advance made by such
lending
office of such Lender from time to time, including the amounts
of
principal and interest payable thereon and paid to such Lender
from
time to time under this Agreement.
(c)
The Agent shall
maintain the Register pursuant to Section 13.8(f),
and a subaccount therein for each Lender, in which Register and
subaccounts (taken together) shall be recorded (i) the amount
and
applicable Permitted Currency of each Revolving Credit Advance
made
hereunder, the type thereof and each Interest Period applicable
to
any Eurocurrency-based Advance, (ii) the amount of any principal
or
interest due and payable or to become due and payable from the
Company or the applicable Permitted Borrower, as the case may be,
to
each Lender hereunder in respect of the Revolving Credit
Advances
and (iii) both the amount of any sum received by the Agent
hereunder
from the Company or the applicable Permitted Borrower in respect
of
the Revolving Credit Advances and each Lender's share thereof.
(d)
The entries made
in the Register and the accounts of each Lender
maintained pursuant to paragraphs (b) and (c) of this Section
2.1
shall absent manifest error, to the extent permitted by
applicable
law, be conclusive evidence of the existence and amounts of the
obligations of the Company and the Permitted Borrowers therein
recorded; provided, however, that the failure of any Lender or
the
Agent to maintain the Register or any such account, as
applicable,
or any error therein, shall not in any manner affect the
obligation
of each of the Company and each Permitted Borrower to repay the
Revolving Credit Advances (and all other amounts owing with
respect
thereto) made to the Company or such Permitted Borrower by such
Lender in accordance with the terms of this Agreement.
(e)
The Company
agrees that, upon written request to the Administrative
Agent (with a copy to the Company) by any Lender, the Company
and
each of the Permitted Borrowers will execute and deliver, to
such
Lender, at the Company's (or such Permitted Borrower's) own
expense,
a Revolving Credit Note of each of the Company and each of the
Permitted Borrowers evidencing the outstanding Revolving Credit
Advances owing to such Lender; provided, that the delivery of
such
Revolving Credit Notes shall not be a condition precedent to
the
Effective Date.
2.3
Requests for and Refundings and Conversions of Advances. Company or
a
Permitted Borrower (with the
countersignature of Company hereunder) may request
an Advance of the Revolving Credit, refund
any such Advance in the same type of
Advance or convert any such Advance to any
other type of Advance of the
Revolving Credit only after delivery to
Agent of a Request for Revolving Credit
Advance executed by an Authorized Officer
of Company or of such Permitted
Borrower (with the countersignature of an
Authorized Officer of the Company),
subject to the following and to the
remaining provisions hereof:
29
<PAGE>
(a)
each such
Request for Revolving Credit Advance shall set forth the
information required on the Request for Advance form annexed
hereto
as Exhibit A-1, including without limitation:
(i) the proposed
date of such Advance, which must be a Business
Day;
(ii) whether such
Advance is a refunding or conversion of an
outstanding Advance;
(iii) whether such Advance is to be a Prime-based Advance or a
Eurocurrency-based Advance, and, except in the case of a
Prime-based Advance, the first Interest Period applicable
thereto; and
(iv) in the case of a
Eurocurrency-based Advance, the Permitted
Currency in which such Advance is to be made.
(b)
each such
Request for Revolving Credit Advance shall be delivered to
Agent by 12:00 noon (Detroit time) three (3) Business Days prior
to
the proposed date of Advance, except in the case of a
Prime-based
Advance, for which the Request for Advance must be delivered by
12:00 noon (Detroit time) on such proposed date;
(c)
on the proposed
date of such Advance, the Dollar Amount of the
principal amount of such requested Advance, plus the Dollar
Amount
of the principal amount of any other Advances of the Revolving
Credit and of the Swing Line being requested on such date, plus
the
principal amount of all other Advances of the Revolving Credit
and
of the Swing Line then outstanding hereunder, in each case
whether
to Company or the Permitted Borrowers (using the Current Dollar
Equivalent of any such Advances outstanding in any Alternative
Currency, determined pursuant to the terms hereof as of the date
of
such requested Advance), plus the aggregate undrawn portion of
any
Letters of Credit which shall be outstanding as of the date of
the
requested Advance (based on the Dollar Amount of the undrawn
portion
of any Letters of Credit denominated in Dollars and the Current
Dollar Equivalent of the undrawn portion of any Letters of
Credit
denominated in any Alternative Currency), the aggregate face
amount
of Letters of Credit requested but not yet issued (determined
as
aforesaid) and the aggregate amount of all drawings made under
any
Letter of Credit for which the Agent has not received full
reimbursement from the applicable Account Party (using the
Current
Dollar Equivalent thereof for any Letters of Credit denominated
in
any Alternative Currency), shall not exceed the Revolving
Credit
Aggregate Commitment; provided however, that, in the case of
any
Advance of the Revolving Credit being applied to refund an
outstanding Swing Line Advance, the aggregate principal amount
of
Swing Line Advances to be refunded shall not be included for
purposes of calculating the limitation under this Section
2.3(c);
(d)
in the case of a
Permitted Borrower, on the proposed date of such
Advance, the principal amount of the Advance of the Revolving
Credit
being requested by such Permitted Borrower (determined and tested
as
aforesaid), plus the principal
30
<PAGE>
amount of any other Advances of the Revolving Credit and of the
Swing Line being requested by such Permitted Borrower on such
date,
plus the principal amount of any other Advances of the
Revolving
Credit and all Advances of the Swing Line then outstanding to
such
Permitted Borrower hereunder (determined as aforesaid), plus
the
undrawn portion of any Letter of Credit which shall be
outstanding
as of the date of the requested Advance for the account of such
Permitted Borrower, plus the aggregate face amount of Letters
of
Credit requested but not yet issued for the account of such
Permitted Borrower (in each case determined as aforesaid), plus
the
unreimbursed amount of any drawings under any Letters of Credit
(using the Current Dollar Equivalent thereof for any Letters of
Credit denominated in any Alternative Currency) issued for the
account of such Permitted Borrower, shall not exceed the
applicable
Permitted Borrower Sublimit;
(e)
in the case of a
Prime-based Advance, the principal amount of the
initial funding of such Advance, as opposed to any refunding or
conversion thereof, shall be at least $10,000,000;
(f)
in the case of a
Eurocurrency-based Advance, the principal amount of
such Advance, plus the amount of any other outstanding Advance
of
the
Revolving Credit to be then combined therewith having the same
Applicable Interest Rate and Interest Period, if any, shall be
at
least Fifteen Million Dollars ($15,000,000) or the equivalent
thereof in an Alternative Currency (or a larger integral multiple
of
One Hundred Thousand Dollars ($100,000), or the equivalent
thereof
in the applicable Alternative Currency) and at any one time
there
shall not be in effect more than (x) for Advances to Company,
ten
(10) Applicable Interest Rates and Interest Periods, and (y)
for
Advances to each Permitted Borrower five (5) Applicable
Interest
Rates and Interest Periods for each such currency;
(g)
a Request for
Revolving Credit Advance, once delivered to Agent,
shall not be revocable by Company or the Permitted Borrowers;
(h)
each Request for
Revolving Credit Advance shall constitute a
certification by the Company and the applicable Permitted
Borrower,
if any, as of the date thereof that:
(i) both before
and after such Advance, the obligations of the
Company and the Permitted Borrowers set forth in this
Agreement and the other Loan Documents to which such Persons
are parties are valid, binding and enforceable obligations of
the Company and the Permitted Borrowers, as the case may be;
(ii) all conditions to
Advances of the Revolving Credit have been
satisfied, and shall remain satisfied to the date of such
Advance (both before and after giving effect to such Advance);
31
<PAGE>
(iii) there is no Default or Event of Default in existence, and
none
will exist upon the making of such Advance (both before and
after giving effect to such Advance);
(iv) the
representations and warranties contained in this Agreement
and the other Loan Documents are true and correct in all
material respects and shall be true and correct in all
material respects as of the making of such Advance (both
before and after giving effect to such Advance); and
(v) the
execution of such Request for Advance will not violate the
material terms and conditions of any material contract,
agreement or other borrowing of Company or the Permitted
Borrowers.
Agent, acting on behalf of the Lenders, may, at its option,
lend
under this Section 2 upon the telephone request of an
Authorized
Officer of Company or a Permitted Borrower and, in the event
Agent,
acting on behalf of the Lenders, makes any such Advance upon a
telephone request, the requesting officer shall fax to Agent, on
the
same day as such telephone request, a Request for Advance.
Company
and Permitted Borrowers hereby authorize Agent to disburse
Advances
under this Section 2.3 pursuant to the telephone instructions of
any
person purporting to be a person identified by name on a
written
list of persons authorized by the Company and delivered to
Agent
prior to the date of such request to make Requests for Advance
on
behalf of the Company and the Permitted Borrowers.
Notwithstanding
the foregoing, the Company and each Permitted Borrower
acknowledge
that Company and each such Permitted Borrower shall bear all risk
of
loss resulting from disbursements made upon any telephone
request.
Each telephone request for an Advance shall constitute a
certification of the matters set forth in the Request for
Revolving
Credit Advance form as of the date of such requested Advance.
2.4
Disbursement of
Advances.
(a)
Upon receiving
any Request for Revolving Credit Advance from Company
or a Permitted Borrower under Section 2.3 hereof, Agent shall
promptly notify each Lender by wire, telex or telephone
(confirmed
by wire, telecopy or telex) of the amount and currency of such
Advance to be made and the date such Advance is to be made by
said
Lender pursuant to its Percentage of such Advance. Unless such
Lender's commitment to make Advances of the Revolving Credit
hereunder shall have been suspended or terminated in accordance
with
this Agreement, each such Lender shall make available the amount
of
its Percentage of each Advance in immediately available funds in
the
currency of such Advance to Agent, as follows:
(i) for Domestic
Advances, at the office of Agent located at One
Detroit Center, Detroit, Michigan 48226, not later than 3:00
p.m. (Detroit time) on the date of such Advance; and
32
<PAGE>
(ii) for
Eurocurrency-based Advances, at the Agent's Correspondent
for the account of the Eurocurrency Lending Office of the
Agent, not later than 12 noon (the time of the Agent's
Correspondent) on the date of such Advance.
(b)
Subject to
submission of an executed Request for Revolving Credit
Advance by Company or a Permitted Borrower (with the
countersignature of the Company as aforesaid) without
exceptions
noted in the compliance certification therein, Agent shall make
available to Company or to the applicable Permitted Borrower, as
the
case may be, the aggregate of the amounts so received by it from
the
Lenders in like funds and currencies:
(i) for Domestic
Advances, not later than 4:00 p.m. (Detroit time)
on the date of such Advance by credit to an account of Company
or such Permitted Borrower maintained with Agent or to such
other account or third party as Company or such Permitted
Borrower may reasonably direct; and
(ii) for
Eurocurrency-based Advances, not later than 4:00 p.m. (the
time of the Agent's Correspondent) on the date of such
Advance, by credit to an account of Company or such Permitted
Borrower maintained with Agent's Correspondent or to such
other account or third party as Company or such Permitted
Borrower may reasonably direct.
(c)
Agent shall
deliver the documents and papers received by it for the
account of each Lender to such Lender or upon its order. Unless
Agent shall have been notified by any Lender prior to the date
of
any proposed Advance that such Lender does not intend to make
available to Agent such Lender's Percentage of such Advance,
Agent
may assume that such Lender has made such amount available to
Agent
on such date and in such currency, as aforesaid and may, in
reliance
upon such assumption, make available to Company or to the
applicable
Permitted Borrower, as the case may be, a corresponding amount.
If
such amount is not in fact made available to Agent by such
Lender,
as aforesaid, Agent shall be entitled to recover such amount on
demand
from such Lender. If such Lender does not pay such amount
forthwith upon Agent's demand therefor, the Agent shall
promptly
notify Company, and Company or the applicable Permitted
Borrower
shall pay such amount to Agent. Agent shall also be entitled to
recover from such Lender or Company or the applicable Permitted
Borrower, as the case may be, but without duplication, interest
on
such amount in respect of each day from the date such amount
was
made available by Agent to Company or such Permitted Borrower,
as
the case may be, to the date such amount is recovered by Agent, at
a
rate per annum equal to:
(i) in the case
of such Lender, for the first two (2) Business
Days such amount remains unpaid, with respect to Domestic
Advances, the Federal Funds Effective Rate, and with respect
to Eurocurrency-based Advances, Agent's aggregate marginal
cost (including the cost of maintaining any required reserves
or deposit insurance and of any fees, penalties, overdraft
33
<PAGE>
charges or other costs or expenses incurred by Agent as a
result of such failure to deliver funds hereunder) of carrying
such amount and thereafter, at the rate of interest then
applicable to such Revolving Credit Advances; and
(ii) in the case of
Company or such Permitted Borrower, the rate of
interest then applicable to such Advance of the Revolving
Credit.
The obligation of any Lender to make any Advance of the
Revolving
Credit hereunder shall not be affected by the failure of any
other
Lender to make any Advance hereunder, and no Lender shall have
any
liability to the Company or any of its Subsidiaries, the Agent,
any
other Lender, or any other party for another Lender's failure
to
make any loan or Advance hereunder.
2.5 (a)
Swing Line Advances. The Swing Line Bank shall, on the terms
and
subject to the conditions hereinafter set
forth (including without limitation
Section 2.5(c) hereof), make one or more
advances in Dollars or in any
Alternative Currency (each such advance
being a "Swing Line Advance") to Company
or any of the Permitted Borrowers (provided
that any such Permitted Borrower has
become a party to this Agreement, either by
execution and delivery of this
Agreement, or by complying with the terms
and conditions set forth in Section
2.1(a) hereof), from time to time on any
Business Day during the period from the
date hereof to (but excluding) the
Revolving Credit Maturity Date in an
aggregate amount, based on the Dollar
Amount of any such Advances outstanding in
Dollars and the Current Dollar Equivalent
of any such Advances outstanding in
Alternative Currencies, not to exceed at
any time outstanding the Swing Line
Maximum Amount. Swing Line Bank shall
maintain in accordance with its usual
practice an account or accounts evidencing
indebtedness of the Company and each
of the Permitted Borrowers to Swing Line
Bank resulting from each Swing Line
Advance of such Lender from time to time,
including the amounts of principal and
interest payable thereon and paid to such
Lender from time to time. The entries
made in such account or accounts of Swing
Line Bank shall, to the extent
permitted by applicable law, be conclusive
evidence, absent manifest error, of
the existence and amounts of the
obligations of the Company and the Permitted
Borrower therein recorded; provided,
however, that the failure of Swing Line
Bank to maintain such account, as
applicable, or any error therein, shall not in
any manner affect the obligation of each of
the Company and each Permitted
Borrower to repay the Swing Line Advances
(and all other amounts owing with
respect thereto) made to the Company or
such Permitted Borrower by Swing Line
Bank in accordance with the terms of this
Agreement. Advances, repayments and
readvances under the Swing Line may be
made, subject to the terms and conditions
of this Agreement. Each Swing Line Advance
shall mature and the principal amount
thereof shall be due and payable by Company
or the applicable Permitted Borrower
on the last day of the Interest Period
applicable thereto (if any) and in the
case of any Prime-based Advance, on the
Revolving Credit Maturity Date.
The
Company agrees that, upon the written request of Swing Line Bank
(with
a copy concurrently delivered to the
Agent), the Company and each of the
Permitted Borrowers will execute and
deliver to Swing Line Bank Swing Line Notes
of each of the Company and each of the
Permitted Borrowers; provided, that the
delivery of such Swing Line Notes shall not
be a condition precedent to the
Effective Date.
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<PAGE>
(b)
Accrual of
Interest. Each Swing Line Advance shall, from time to
time after the date of such Advance, bear interest at its
Applicable
Interest Rate. The amount and date of each Swing Line Advance,
its
Applicable Interest Rate, its Interest Period, if any, and the
amount and date of any repayment shall be noted on Swing Line
Bank's
account maintained pursuant to Section 2.5(a), which records will
be
conclusive evidence thereof, absent manifest error; provided,
however, that any failure by the Swing Line Bank to record any
such
information shall not relieve Company or the applicable
Permitted
Borrower of its obligation to repay the outstanding principal
amount
of such Advance, all interest accrued thereon and any amount
payable
with respect thereto in accordance with the terms of this
Agreement
and the other Loan Documents.
(c)
Requests for
Swing Line Advances. Company or a Permitted Borrower
(with the countersignature of the Company) may request a Swing
Line
Advance only after delivery to Swing Line Bank (with a copy
concurrently delivered to Agent) of a Request for Swing Line
Advance
executed by an Authorized Officer of Company or such Permitted
Borrower, subject to the following and to the remaining
provisions
hereof:
(i) each such
Request for Swing Line Advance shall set forth the
information required on the Request for Advance form annexed
hereto as Exhibit A-2, including without limitation:
(A) the proposed
date of such Swing Line Advance, which must
be a Business Day;
(B) whether such
Swing Line Advance is to be a Prime-based
Advance, a Eurocurrency-based Advance or a Quoted Rate
Advance;
(C) the duration
of the Interest Period applicable thereto;
and
(D) in the case
of a Eurocurrency-based Advance, the
Permitted Currency in which such Advance is to be made.
(ii) the Dollar Amount
of the principal amount of such requested
Swing Line
Advance, plus the aggregate principal amount of all
other Swing Line Advances then outstanding hereunder
(including any other Swing Line Advances requested to be made
on such date) whether to Company or to any of the Permitted
Borrowers (using the Current Dollar Equivalent of any such
Advances outstanding in any Alternative Currency, determined
pursuant to the terms hereof as of the date of such requested
Advance) shall not exceed the Swing Line Maximum Amount;
(iii) as of the proposed date of such Swing Line Advance, the
Dollar
Amount of the principal amount of such requested Swing Line
Advance, plus the aggregate principal amount of all other
Swing Line Advances and all Advances of the Revolving Credit
then outstanding hereunder (including
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any Revolving Credit Advances or other Swing Line Advances
requested to be made on such date) whether to Company or to
any of the Permitted Borrowers (using the Current Dollar
Equivalent of any such Advances outstanding in any Alternative
Currency, determined pursuant to the terms hereof as of the
date of such requested Advance), and the aggregate undrawn
portion of any Letters of Credit which shall be outstanding as
of the date of the requested Swing Line Advance (based on the
Dollar Amount of the undrawn portion of any Letters of Credit
denominated in Dollars and the Current Dollar Equivalent of
the undrawn portion of any Letters of Credit denominated in
any Alternative Currency), plus the aggregate face amount of
Letters of Credit requested but not yet issued (determined as
aforesaid), plus the unreimbursed amount of any draws under
Letters of Credit (using the Current Dollar Equivalent thereof
for any Letters of Credit denominated in any Alternative
Currency) shall not exceed the Revolving Credit Aggregate
Commitment;
(iv) in the case of
any Permitted Borrower, as of the proposed date
of such Swing Line Advance, the principal amount of the
requested
Swing Line Advance to such Permitted Borrower
(determined as aforesaid), plus the aggregate principal amount
of any other Swing Line Advances and all other Advances then
outstanding to such Permitted Borrower hereunder (including,
without duplication, Revolving Credit Advances or Swing Line
Advances requested to be made on such date) determined as
aforesaid, plus the aggregate undrawn portion of any Letters
of Credit which shall be outstanding as of the date of the
requested Swing Line Advance for the account of such Permitted
Borrower, plus the aggregate face amount of any Letters of
Credit requested but not yet issued for the account of such
Permitted Borrower hereunder (in each case determined as
aforesaid), plus the unreimbursed amount of any drawings under
any Letters of Credit (using the Current Dollar Equivalent
thereof for any Letters of Credit denominated in any
Alternative Currency) issued for the account of such Permitted
Borrower, shall not exceed the applicable Permitted Borrower
Sublimit;
(v) in the case
of a Prime-based Advance, the principal amount of
the initial funding of such Advance, as opposed to any
refunding or conversion thereof, shall be at least One Hundred
Thousand Dollars ($100,000);
(vi) in the case of a
Eurocurrency-based Advance or a Quoted Rate
Advance, the principal amount of such Advance, the principal
amount of such Swing Line Advance plus the amount of any other
outstanding Advance of the Swing Line to be then combined
therewith having the same Applicable Interest Rate and
Interest Period, if any, shall be, at least Two Hundred Fifty
Thousand Dollars ($250,000), or the equivalent thereof in an
Alternative Currency (or a larger integral multiple of One
Hundred Thousand Dollars ($100,000), or the equivalent thereof
in the applicable Alternative Currency), and at any one time
there shall not be in effect
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<PAGE>
more than (x) for Advances in Dollars, Five (5) Applicable
Interest Rates and Interest Periods, and (y) for Advances in
any Alternative Currency (other than eurodollars), two (2)
Applicable Interest Rates and Interest Periods for each such
currency;
(vii) each such Request for Swing Line Advance shall be delivered
to
the Swing Line Bank (with a copy concurrently delivered to
Agent) (x) for each Advance in Dollars, by 2:00 p.m. (eastern
time) (or such other time as Swing Line Bank shall specify to
Company or the applicable Permitted Borrower) on the proposed
date of the Advance and (y) for each Advance in any
Alternative Currency,
by 10:00 a.m. (eastern time) two (2)
Business Days prior to the proposed date of Advance;
(viii) each Request for Swing Line Advance, once delivered to
Swing
Line Bank, shall be irrevocable by Company, and shall
constitute and include a certification by the Company as of
the date thereof that:
(A) both
before and after such Swing Line Advance, the
obligations of the Company set forth in this Agreement
and the Loan Documents, are valid, binding and
enforceable obligations of the Company;
(B) all
conditions to the making of Swing Line Advances
have been satisfied (both before and after giving
effect to such Advance);
(C) both
before and after the making of such Swing Line
Advance, there is no Default or Event of Default in
existence; and
(D) both
before and after such Swing Line Advance, the
representations and warranties contained in this
Agreement and the other Loan Documents are true and
correct in all material respects.
(ix) At the option of
the Swing Line Bank, subject to revocation by
Swing Line Bank at any time and from time to time, the Company
may utilize the Swing Line Bank's "Sweep to Loan" automated
system for obtaining Swing Line Advances. Each time a Swing
Line Advance is made using the "Sweep to Loan" system, the
Company shall be deemed to have certified to the Swing Line
Bank and the Lenders each of the matters set forth in clause
(viii) of this Section. Swing Line Bank may revoke the
Company's privilege to use the "Sweep to Loan" system at any
time and from time to time for any reason, and, immediately
upon any such revocation, the "Sweep to Loan" system shall no
longer be available to the Company for the funding of Swing
Line Advances hereunder (or otherwise) and regular procedures
set forth for the making of Swing Line Advances shall be
deemed immediately to apply. If the Swing Line Bank makes any
Swing Line Advances such that (i) the total amount of the
Advances and outstanding Letters of Credit exceeds the
Revolving Credit Aggregate Commitment or (ii) the total of
Swing Line
Advances exceeds
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the Swing Line Maximum Amount as a result, in either case, of
the Company's use of the "Sweep to Loan" system, no Lender
shall be required to
participate in any such excess Swing Line
Advances.
(d)
Disbursement of
Swing Line Advances. Unless otherwise notified in
writing by Agent promptly following each receipt of Request for
Swing Line
Advance hereunder, Swing Line Bank may assume that all
conditions precedent to the disbursement of such requested
Swing
Line Advance have been satisfied, including without limitation
that
no Default or Event of Default has occurred and is continuing
and
that the entirety of the Swing Line Maximum Amount less any
outstanding Swing Line Advances is available hereunder
(provided
that Agent shall have no responsibility whatsoever to Swing
Line
Bank or to any other Lender to give any notice hereunder, except
as
set forth in Section 12.12 of this Agreement), and subject to
the
proper submission of an executed Request for Swing Line Advance
by
Company or a Permitted Borrower without exceptions noted in the
compliance certification therein and to the other terms and
conditions hereof, Swing Line Bank shall make available to
Company
or the applicable Permitted Borrower the amount so requested,
in
like funds and currencies, not later than:
(i) for
Prime-based Advances or Quoted Rate Advances, not later
than 5:00 p.m. (eastern time) on the date of such Advance by
credit to an account of Company or the applicable Permitted
Borrower maintained with the Swing Line Bank or with Agent or
to such other account or third party as Company or the
Permitted Borrower may reasonably direct in writing; and
(ii) for
Eurocurrency-based Advances, not later than 4:00 p.m. (the
time of the office of Swing Line Bank funding such Advance) on
the date of such Advance, by credit to an account of Company
or the Permitted Borrower maintained with the Swing Line
Bank's or the Agent's Correspondent or to such other account
or third party as Company or the applicable Permitted Borrower
may reasonably direct.
Swing Line Bank shall promptly notify Agent of any Swing Line
Advance by telephone, telex or telecopier.
(e)
Refunding of or
Participation Interest in Swing Line Advances.
(i) Acting
through Agent (which shall, subject to the terms
hereof, comply with the Swing Line Bank's request), the Swing
Line Bank, at any time in its sole and absolute discretion,
may on
behalf of the Company or the applicable Permitted
Borrower (each of which hereby irrevocably directs the Swing
Line Bank and the Agent to act on its behalf) request each of
the Lenders (including the Swing Line Bank in its capacity as
a Lender) to make an Advance of the Revolving Credit to each
of Company and the applicable Permitted Borrowers, for each
Permitted Currency in which Swing Line Advances are
outstanding to such party, in an amount (in the
38
<PAGE>
applicable Permitted Currency, determined in accordance with
Section 2.11(b) hereof) equal to such Lender's Percentage of
the principal amount of the aggregate Swing Line Advances
outstanding in each Permitted Currency to each such party on
the date such notice is given (the "Refunded Swing Line
Advances"); provided however that Swing Line Advances which
are carried at the Quoted Rate or the Eurocurrency-based Rate
which are converted to Revolving Credit Advances at the
request of the
Swing Line Bank at a time when no Default or
Event of Default has occurred and is continuing, shall not be
subject to Section 11.1 and no losses, costs or expenses may
be assessed by the Swing Line Bank against the Company, a
Permitted Borrower or the other Banks as a consequence of such
conversion. In the case of each Refunded Swing Line Advance
outstanding in Dollars, the applicable Advance of the
Revolving Credit used to refund such Swing Line Advance shall
be a Prime-based Advance. In the case of each Refunded Swing
Line Advance outstanding in any Alternative Currency, the
applicable Advance of the Revolving Credit used to refund such
Swing Line Advance shall be an Advance in the applicable
Alternative Currency, with an Interest Period of one month (or
any lesser number of days selected by Agent in consultation
with the Lenders). In connection with the making of any such
Refunded Swing Line Advances or the purchase of a
participation interest in Swing Line Advances under Section
2.5(e)(ii) hereof, the Swing Line Bank shall retain its claim
against the Company or the applicable Permitted Borrower for
any unpaid interest or fees in respect thereof. Unless any of
the events described in Section 9.1(j) hereof shall have
occurred (in which event the procedures of subparagraph (ii)
of this Section 2.5(e) shall apply) and regardless of whether
the conditions
precedent set forth in this Agreement to the
making of an Advance of the Revolving Credit are then
satisfied, but subject to Section 2.5(e)(iii), each Lender
shall make the proceeds of its Advance of the Revolving Credit
available to the Agent for the benefit of the Swing Line Bank
at the office of the Agent specified in Section 2.4(a) hereof
prior to 11:00 a.m. Detroit time (for Domestic Advances) on
the Business Day next succeeding the date such notice is
given, and, in the case of any Eurocurrency-based Advance,
prior to 2:00 p.m. Detroit time on the third Business Day
following the date such notice is given, in each case in
immediately available funds in the applicable Permitted
Currency. The proceeds of such Advances of the Revolving
Credit shall be promptly delivered by Agent to the Swing Line
Bank for application to repay the Refunded Swing Line Advances
in accordance with the terms and conditions of this Agreement.
(ii) If, prior to the
making of an Advance of the Revolving Credit
pursuant to subparagraph (i) of this Section 2.5(e), one of
the events described in Section 9.1(j) hereof shall have
occurred, each Lender will, on the date such Advance of the
Revolving Credit was to have been made, purchase from the
Swing Line Bank an undivided participating interest in each
Refunded Swing Line Advance in an amount equal to its
Percentage of
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<PAGE>
such Refunded Swing Line Advance. Each Lender within the time
periods specified in Section 2.5(e)(i) hereof, as applicable,
shall immediately transfer to the Swing Line Bank, in
immediately available funds in the applicable Permitted
Currency of such Swing Line Advance, the amount of its
participation and upon receipt thereof the Swing Line Bank
will deliver to such Lender a participation certificate
evidencing such participation.
(iii) Each Lender's obligation to make Advances of the
Revolving
Credit and to purchase participation interests in accordance
with clauses (i) and (ii) of this Section 2.5(e) shall be
absolute and unconditional and shall not be affected by any
circumstance, including, without limitation, (i) any set-off,
counterclaim, recoupment, defense or other right which such
Lender may have against Swing Line Bank, the Company, the
Permitted Borrowers or any other Person for any reason
whatsoever; (ii) the occurrence or continuance of any Default
or Event of Default; (iii) any adverse change in the condition
(financial or otherwise) of the Company, any Permitted
Borrower or any other Person; (iv) any breach of this
Agreement by the Company, any Permitted Borrower or any other
Person; (v) any inability of the Company or the Permitted
Borrowers to satisfy the conditions precedent to borrowing set
forth in this Agreement on the date upon which such Advance is
to be made or such participating interest is to be purchased;
(vi) the termination of the Revolving Credit Aggregate
Commitment hereunder; or (vii) any other circumstance,
happening or event whatsoever, whether or not similar to any
of the foregoing. If any Lender does not make available to the
Agent or the Swing Line Bank, as applicable the amount
required pursuant to clause (i) or (ii) above, as the case may
be, the Agent or the Swing Line Bank, as the case may be,
shall be entitled to recover such amount on demand from such
Lender, together with interest thereon for each day from the
date of non-payment until such amount is paid in full (x) for
the first two (2) Business Days such amount remains unpaid, at
the Federal Funds Effective Rate for Advances in Dollars
(other than eurodollars) and for Eurocurrency-based Advances,
the Agent's marginal cost (including the cost of maintaining
any required reserves or deposit insurance and of any fees,
penalties, overdraft charges or other costs or expenses
incurred by Agent as a result of such failure to deliver funds
hereunder) of carrying such amount and (y) thereafter, at the
rate of interest then applicable to such Swing Line Advances.
The obligation of any Lender to make available its pro rata
portion of the amounts required pursuant to clause (i) or (ii)
above shall not be affected by the failure of any other Lender
to make such amounts available, and no Lender shall have any
liability to the Company or any Permitted Borrower, the Agent,
the Swing Line Bank, or any other Lender or any other Person
for another Lender's failure to make the amounts required
under clause (i) or (ii) available.
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<PAGE>
Notwithstanding the foregoing, however, no Lender shall be
required to make any Revolving Credit Advance to refund a
Swing Line Advance or to purchase a participation in a Swing
Line Advance (including without limitation any Swing Line
Advance funded under the "Sweep to Loan" system) if, prior to
the making of the Swing Line Advance, the Swing Line Bank had
received written notice that an Event of Default had occurred
and was continuing, or that the conditions to the making of
such Swing Line Advances had not been satisfied; provided,
however that the obligation of the Lenders to make such
Revolving Credit Advances or to purchase participations in
Swing Line Advances shall be reinstated upon the date which
such Event of Default has been waived by the Required Lenders
or
all Lenders, as applicable.
2.6
Prime-based Interest Payments. Interest on the unpaid balance of
all
Prime-based Advances of the Revolving
Credit and all Swing Line Advances carried
at the Prime-based Rate from time to time
outstanding shall accrue from the date
of such Advance to the Revolving Credit
Maturity Date (and until paid), at a per
annum interest rate equal to the
Prime-based Rate, and shall be payable in
immediately available funds (a) with
respect to Swing Line Advances, quarterly
commencing on the first day of the calendar
quarter next succeeding the calendar
quarter during which the initial Swing Line
Advance is made and on the first day
of each calendar quarter thereafter, and
(b) with respect to Advances of the
Revolving Credit, quarterly commencing on
the first day of the calendar quarter
next succeeding the calendar month during
which the initial Advance of the
Revolving Credit is made and on the first
day of each calendar quarter
thereafter. Interest accruing at the
Prime-based Rate shall be computed on the
basis of a 360 day year and assessed for
the actual number of days elapsed, and
in such computation effect shall be given
to any change in the interest rate
resulting from a change in the Prime-based
Rate on the date of such change in
the Prime-based Rate.
2.7
Eurocurrency-based Interest Payments and Quoted Rate Interest
Payments.
(a)
Interest on each
Eurocurrency-based Advance of the Revolving Credit
and all Swing Line Advances carried at the Eurocurrency-based
Rate
shall accrue at its Applicable Interest Rate and shall be payable
in
immediately available funds on the last day of the Interest
Period
applicable thereto (and, if any Interest Period shall exceed
three
months, then on the last Business Day of the third month of
such
Interest Period, and at three month intervals thereafter).
Interest
accruing at the Eurocurrency-based Rate shall be computed on
the
basis of a 360 day year (except that any such Advances made in
Sterling or any other Alternative Currency with respect to
which
applicable law or market custom so requires shall be calculated
based on a 365 day year, or as otherwise required under
applicable
law or market custom) and assessed for the actual number of
days
elapsed from the first day of the Interest Period applicable
thereto
to but not including the last day thereof. Interest due on a
Eurocurrency-based Advance made in an Alternative Currency shall
be
paid in such Alternative Currency.
(b)
Interest on each
Quoted Rate Advance of the Swing Line shall accrue
at its Quoted Rate and shall be payable in immediately
available
funds on the last day
41
<PAGE>
of the Interest Period applicable thereto. Interest accruing at
the
Quoted Rate shall be computed on the basis of a 360 day year
(except
that any such Advances made in any Alternative Currency with
respect
to which applicable law or market custom so requires shall be
calculated based on a 365 day year, or as otherwise required
under
applicable law or market custom) and assessed for the actual
number
of days elapsed from the first day of the Interest Period
applicable
thereto to, but not including the last day thereof.
(c)
If the basis of
accrual of interest or fees expressed in this
Agreement with respect to the National Currency Unit of a
Participating Member State shall be inconsistent with any
convention
or practice in the London interbank market or other applicable
interbank market, as the case may be, for the basis of accrual
of
interest or fees with respect to the Euro, such convention or
practice shall replace such expressed basis, effective as of
and
from the
date on which such country becomes a Participating Member
State; provided that if any Eurocurrency-based Advance in the
currency of such country is outstanding immediately prior to
such
date, such replacement shall take effect, with respect to such
Advance, at the end of the then current Interest Period.
2.8
Interest Payments on Conversions. Notwithstanding anything to
the
contrary in the preceding sections, all
accrued and unpaid interest on any
Advance converted pursuant to Section 2.3
hereof shall be due and payable in
full on the date such Advance is
converted.
2.9
Interest on Default. In the event and so long as any Event of
Default
under Section 9.1(a) or 9.1(b) shall exist,
interest shall be payable daily on
all Eurocurrency-based Advances of the
Revolving Credit, Swing Line Advances
carried at the Eurocurrency-based Rate and
Quoted Rate Advances from time to
time outstanding at a per annum rate equal
to the Applicable Interest Rate plus
three percent (3%) for the remainder of the
then existing Interest Period, if
any, and at all other such times, with
respect to Prime-based Advances from time
to time outstanding, at a per annum rate
equal to the Prime-based Rate plus
three percent (3%), and, with respect to
Eurocurrency-based Advances thereof in
any Alternative Currency from time to time
outstanding, (i) at a per annum rate
calculated by the Agent, whose
determination shall be conclusive absent manifest
error, on a daily basis, equal to three
percent (3%) above the interest rate per
annum at which one (1) day deposits (or, if
such amount due remains unpaid for
more than three (3) Business Days, then for
such other period of time as the
Agent may elect which shall in no event be
longer than six (6) months) in the
relevant eurocurrency in the amount of such
overdue payment due to the Agent are
offered by the Agent's Eurocurrency Lending
Office for the applicable period
determined as provided above, or (ii) if at
any such time such deposits are not
offered by Eurocurrency Lending Office,
then at a rate per annum equal to three
percent (3%) above the rate determined by
the Agent to be its aggregate marginal
cost (including the cost of maintaining any
required reserves or deposit
insurance) of carrying the amount of such
Eurocurrency-based Advance.
2.10
Prepayment. (a) Company or the Permitted Borrowers may prepay all
or
part of the outstanding balance of any
Prime-based Advance(s) of the Revolving
Credit at any time, provided that the
amount of any partial prepayment shall be
at least One Million Dollars ($1,000,000)
and, after giving effect to any such
partial prepayment, the aggregate balance
of
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Prime-based Advance(s) of the Revolving
Credit remaining outstanding, if any,
shall be at least Five Million Dollars
($5,000,000). Subject to Section 11.1
hereof, Company or the Permitted Borrowers
may prepay all or part of any
Eurocurrency-based Advance (subject to not
less than two (2) Business Days'
notice to Agent) provided that the amount
of any such partial prepayment shall
be at least One Million Dollars
($1,000,000), or the Current Dollar Equivalent
thereof in an Alternative Currency, and,
after giving effect to any such partial
prepayment, the unpaid portion of such
Advance which is refunded or converted
under Section 2.3 hereof shall be at least
Fifteen Million Dollars ($15,000,000)
or the Current Dollar Equivalent thereof in
an Alternative Currency.
(b)
Company may
prepay all or part of the outstanding balance of any
Swing Line Advance carried at the Prime-based Rate at any time,
provided that, unless the "Sweep to Loan" system shall be in
effect
hereunder, the amount of any partial prepayment shall be at
least
Twenty Five Thousand Dollars ($25,000) and, after giving effect
to
any such partial prepayment, the aggregate balance of such
Swing
Line Advances remaining outstanding, if any, shall be at least
One
Hundred Thousand Dollars ($100,000). Subject to Section 11.1
hereof,
Company may prepay all or part of any Swing Line Advances carried
at
the Eurocurrency-based Rate or Quoted Rate (subject to not less
than
two
(2) Business Days' notice to Swing Line Bank and Agent) only on
the last day of the Interest Period therefor, provided that the
amount of any such partial payment shall be at least Twenty
Five
Thousand Dollars ($25,000) and, after giving effect to any such
partial prepayment, the unpaid portion of such Advance which is
refunded or converted under Section 2.5(c) hereof shall be at
least
Two Hundred Fifty Thousand Dollars ($250,000).
(c)
Any prepayment
made in accordance with this Section shall be subject
to Section 11.1 hereof, but otherwise without premium, penalty
or
prejudice to the right to readvance under the terms of this
Agreement.
2.11
Determination, Denomination and Redenomination of Alternative
Currency Advances. Whenever, pursuant to
any provision of this Agreement:
(a)
an Advance of
the Revolving Credit or a Swing Line Advance is
initially funded, as opposed to any refunding or conversion
thereof,
in an Alternative Currency, the amount to be advanced hereunder
will
be the equivalent in such Alternative Currency of the Dollar
Amount
of such Advance;
(b)
an existing
Advance of the Revolving Credit or a Swing Line Advance
denominated in an Alternative Currency is to be refunded, in
whole
or in part, with an Advance denominated in the same Alternative
Currency, the amount of the new Advance shall be continued in
the
amount of the Alternative Currency so refunded;
(c)
an existing
Advance of the Revolving Credit denominated in an
Alternative Currency is to be converted, in whole or in part, to
an
Advance denominated in another Alternative Currency, the amount
of
the new Advance shall be that
43
<PAGE>
amount of the Alternative Currency of the new Advance which may
be
purchased, using the most favorable spot exchange rate determined
by
Agent to be available to it for the sale of Dollars for such
other
Alternative Currency at approximately 11:00 a.m. (Detroit time)
two
(2) Business Days prior to the last day of the Eurocurrency
Interest
Period applicable to the existing Advance, with the Dollar Amount
of
the existing Advance, or portion thereof being converted; and
(d)
an existing
Advance of the Revolving Credit denominated in an
Alternative Currency is to be converted, in whole or in part, to
an
Advance denominated in Dollars, the amount of the new Advance
shall
be the Dollar Amount of the existing Advance, or portion
thereof
being converted (determined as aforesaid).
2.12
Prime-based Advance in Absence of Election or Upon Default. If,
(a)
as to any outstanding Eurocurrency-based
Advance of the Revolving Credit, or any
Swing Line Advance carried at the
Eurocurrency-based Rate, Agent has not
received payment of all outstanding
principal and accrued interest on the last
day of the Interest Period applicable
thereto, or does not receive a timely
Request for Advance meeting the
requirements of Section 2.3 or 2.5(c) hereof
with respect to the refunding or conversion
of such Advance, or (b) if any
Advance denominated in an Alternative
Currency or any deemed Advance under
Section 3.6 hereof in respect of a Letter
of Credit denominated in an
Alternative Currency cannot be refunded or
made, as the case may be, in such
Alternative Currency by virtue of Section
11.3 hereof, or (c) subject to Section
2.9 hereof, if on such day a Default or an
Event of Default shall have occurred
and be continuing, then the principal
amount thereof which is not then prepaid
in the case of a Eurocurrency-based Advance
shall, absent a contrary election of
the Required Lenders, be converted
automatically to a Prime-based Advance and
the Agent shall thereafter promptly notify
Company of said action. If a
Eurocurrency-based Advance converted
hereunder is payable in an Alternative
Currency, the Prime-based Advance shall be
in an amount equal to the Dollar
Amount of such Eurocurrency-based Advance
at such time and the Agent and the
Lenders shall use said Prime-based Advance
to fund payment of the Alternative
Currency obligation, all subject to the
provisions of Section 2.14 hereof. The
Company and the Permitted Borrowers, if
applicable, shall reimburse the Agent
and the Lenders on demand for any costs
incurred by the Agent or any of the
Lenders, as applicable, resulting from the
conversion pursuant to this Section
2.12 of Eurocurrency-based Advances payable
in an Alternative Currency to
Prime-based Advances.
2.13
Revolving Credit Facility Fee. From the Effective Date to the
Revolving Credit Maturity Date, the Company
shall pay to the Agent, for
distribution to the Lenders (as set forth
below), a Revolving Credit Facility
Fee determined by multiplying the
Applicable Fee Percentage per annum times the
Revolving Credit Aggregate Commitment then
applicable under Section 2.15 hereof
(whether used or unused) then in effect
without giving effect to any reductions
therein based on the amount of the LYONs
Reserve, computed on a daily basis. The
Revolving Credit Facility Fee shall be
payable quarterly in arrears commencing
October 1, 2003 (in respect of the prior
calendar quarter or portion thereof),
and on the first day of each calendar
quarter thereafter and on the Revolving
Credit Maturity Date, and shall be computed
on the basis of a year of three
hundred sixty (360) days and assessed for
the actual number of days elapsed.
Whenever any payment of the Revolving
Credit Facility Fee shall be due on a day
which is not a Business Day, the date for
payment thereof shall be extended to
the next Business Day. Upon
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receipt of such payment Agent shall make
prompt payment to each Lender of its
share of the Revolving Credit Facility Fee
based upon its respective Percentage.
2.14
Currency Appreciation; Mandatory Reduction of Indebtedness.
(a)
Revolving Credit
Aggregate Commitment. If at any time and for any
reason, the aggregate principal amount of all Advances of the
Revolving
Credit hereunder to the Company and to the Permitted
Borrowers made in Dollars and the aggregate Current Dollar
Equivalent of all Advances of the Revolving Credit outstanding
hereunder to the Company and to the Permitted Borrowers in any
Alternative Currency as of such time, plus the aggregate
principal
amount of Swing Line Advances outstanding hereunder as of such
time
(determined as aforesaid), plus the aggregate undrawn portion of
any
Letters of Credit which shall be outstanding (based on the
Dollar
Amount of the undrawn portion of any Letters of Credit
denominated
in Dollars and the Current Dollar Equivalent of the undrawn
portion
of any Letters of Credit denominated in any Alternative
Currency),
plus the face amount of all Letters of Credit requested but not
yet
issued (determined as aforesaid), plus the unreimbursed amount
of
any draws under any Letters of Credit (using the Current Dollar
Equivalent thereof for any Letters of Credit denominated in any
Alternative Currency), as of such time exceeds the Revolving
Credit
Aggregate Commitment (as used in this clause (a), the "Excess"),
the
Company and the Permitted Borrowers shall:
(i) immediately
repay that portion of such Indebtedness then
carried as a Prime-based Advance, if any, by the Dollar Amount
of such Excess, and/or reduce any pending request for an
Advance in Dollars on such day by the Dollar Amount of the
Excess, to the extent thereof; and
(ii) on the last day
of each Interest Period of any
Eurocurrency-based Advance outstanding as of such time, until
the necessary reductions of Indebtedness under this Section
2.14(a) have been fully made, repay the Indebtedness carried
in
such Advances and/or reduce any requests for refunding or
conversion of such Advances submitted (or to be submitted) by
the Company or the applicable Permitted Borrower in respect of
such Advances, by the amount in Dollars or the applicable
Alternative Currency, as the case may be, of the Excess, to
the extent thereof.
Compliance with this Section 2.14(a) shall be tested on a daily
or
other basis satisfactory to Agent in its sole discretion,
provided
that, so long as no Default or Event of Default has occurred and
is
continuing, at any time while the aggregate Advances of the
Revolving Credit available to be borrowed hereunder (based on
the
Revolving Credit Aggregate Commitment then in effect) equal or
exceed Fifty Million Dollars ($50,000,000), compliance with
this
Section 2.14(a) shall be tested as of the last day of each
calendar
quarter. Notwithstanding the foregoing, upon the occurrence and
during the continuance of any Default or Event of Default, or if
any
Excess remains after recalculating said Excess based on
ninety-five
percent (95%) of the Current Dollar Equivalent of any Advances
or
Letters of
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Credit denominated in Alternative Currencies (and one hundred
percent (100%) of any Advances or Letters of Credit denominated
in
Dollars), Company and the Permitted Borrowers shall be
obligated
immediately to reduce the foregoing Indebtedness hereunder by
an
amount sufficient to eliminate such Excess.
(b)
Permitted
Borrower Sublimit. If at any time and for any reason with
respect to any Permitted Borrower, the aggregate principal
amount
(tested in the manner set forth in clause (a) above) of all
Advances
of the Revolving Credit and of the Swing Line outstanding
hereunder
to such Permitted Borrower, plus the aggregate undrawn portion
of
any Letters of Credit, plus the face amount of any Letters of
Credit
requested but not yet issued, plus the unreimbursed amount of
any
drawings under any Letters of Credit to or for the account of
such
Permitted Borrower (tested in the manner set forth in clause
(a)
above), which Advances and Letters of Credit are made or issued,
or
to be made or issued, in Dollars and ninety percent (90%) of
the
aggregate Current Dollar Equivalent of all such Advances and
Letters
of Credit (including unreimbursed draws) hereunder for the
account
of such Permitted Borrower in any Alternative Currency as of
such
time, exceeds the applicable Permitted Borrower Sublimit (as used
in
this clause (b), the "Excess"), then in each case, such
Permitted
Borrower shall
(i) immediately
repay that portion of the Indebtedness outstanding
to such Permitted Borrower then carried as a Prime-based
Advance, if any, by the Dollar Amount of such Excess, and/or
reduce on such day any pending request for an Advance in
Dollars submitted by such Permitted Borrower by the Dollar
Amount of such Excess, to the extent thereof; and
(ii) on the last day
of each Interest Period of any
Eurocurrency-based Advance outstanding to such Permitted
Borrower as of such time, until the necessary reductions of
Indebtedness under this Section 2.14(b) have been fully made,
repay such Indebtedness carried in such Advances and/or reduce
any requests for refunding or conversion of such Advances
submitted (or to be submitted) by such Permitted Borrower in
respect of such Advances, by the amount in Dollars or the
applicable Alternative Currency, as the case may be, of such
Excess, to the extent thereof.
Provided that no Default or Event of
Default has occurred and is continuing,
each Permitted Borrower's compliance with
this Section 2.14(b) shall be tested
as of the last day of each calendar quarter
or, upon the written request of the
Company from time to time, as of the last
day of each calendar month, provided
the Company furnishes Agent with current
monthly financial statements complying
with the requirements set forth in
subparagraphs (i) and (ii) of Section 7.3(c)
hereof. Upon the occurrence an
