VISHAY INTERTECHNOLOGY, INC. SECOND AMENDED AND RESTATED LONG TERM REVOLVING CREDIT AGREEMENTRetailer Agreement |
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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
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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
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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.
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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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"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
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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.
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"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
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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 perso