FIRST AMENDMENT AND CONSENT TO CREDIT AGREEMENT
FIRST AMENDMENT AND CONSENT TO CREDIT AGREEMENT (this "Amendment"),
dated as of February 1, 2006, among XXXXXX-STANDARD HOLDINGS INC., a Delaware
corporation (f/k/a CSA Acquisition Corp.) ("Holdings"), XXXXXX-STANDARD
AUTOMOTIVE INC., an Ohio corporation (the "U.S. Borrower"), XXXXXX-STANDARD
AUTOMOTIVE CANADA LIMITED, a corporation organized under the laws of Ontario
(the "Canadian Borrower" and, together with the U.S. Borrower, the "Borrowers"),
various Lenders party to the Credit Agreement referred to below, and DEUTSCHE
BANK TRUST COMPANY AMERICAS, as Administrative Agent (in such capacity, the
"Administrative Agent"). Unless otherwise defined herein, all capitalized terms
used herein and defined in the Credit Agreement referred to below are used
herein as therein defined.
W I T N E S S E T H :
WHEREAS, Holdings, the Borrowers, various Lenders, the
Administrative Agent and certain other Agents have entered into a Credit
Agreement, dated as of December 23, 2004 (the "Credit Agreement");
WHEREAS, the U.S. Borrower desires to acquire (the "ITT Fluid
Business Acquisition") all or substantially all of the fluid handling business
of ITT Industries, Inc. and its Subsidiaries (collectively, "ITT Fluid
Business") pursuant to, and in accordance with the terms of, that certain Stock
and Asset Purchase Agreement (the "ITT Fluid Business Acquisition Agreement"),
dated as of December 4, 2005, between ITT Industries, Inc. (together with
certain of its affiliates, collectively, the "ITT Seller") and the U.S.
Borrower, which acquisition, after giving effect to this Amendment, will
constitute a Permitted Acquisition effected in accordance with the requirements
of the Credit Agreement as amended by this Amendment;
WHEREAS, in connection with the ITT Fluid Business Acquisition, the
U.S. Borrower desires to incur U.S. Borrower Incremental Term Loans denominated
in U.S. Dollars and Euros under two separate tranches pursuant to Section
2.01(d) of the Credit Agreement, as amended by this Amendment;
WHEREAS, Holdings and the Borrowers have requested certain
amendments and consents to the Credit Agreement in connection with the ITT Fluid
Business Acquisition and the financing thereof as described below; and
WHEREAS, subject to the terms and conditions of this Amendment, the
Lenders wish to grant certain consents to the Credit Agreement and the parties
hereto wish to amend the Credit Agreement, in each case as herein provided;
NOW, THEREFORE, it is agreed;
A. Amendments and Consents to Credit Agreement.
1. Notwithstanding anything to the contrary contained in the Credit
Agreement, the Lenders hereby acknowledge and agree that the ITT Fluid Business
Acquisition may be effected as a Domestic Permitted Acquisition under the Credit
Agreement (and thereupon constitute a "Permitted Acquisition" and a "Domestic
Permitted Acquisition" for all purposes of the Credit Agreement), so long as:
(i) the sole consideration payable in respect of the ITT Fluid
Business Acquisition (exclusive of transaction fees and expenses) shall
consist of (x) cash in an amount equal to U.S.$205,000,000 (as such amount
may be adjusted as provided in Article III of the ITT Fluid Business
Acquisition Agreement) and (y) the assumption of the Assumed Liabilities
(as defined in the ITT Fluid Business Acquisition Agreement);
(ii) except for the deviation from the requirements set forth in
the definition of "Domestic Permitted Acquisition" contained in Section 1
of the Credit Agreement that (x) any acquired or newly-formed Subsidiary
pursuant to a "Domestic Permitted Acquisition" be a Domestic Subsidiary or
(y) the assets so acquired be acquired by a Domestic Subsidiary and be
located in the United States or any State or territory thereof, and
subject to Section 98 of this Amendment, the ITT Fluid Business
Acquisition shall otherwise be effected as a "Domestic Permitted
Acquisition" and a "Permitted Acquisition" in accordance with all
applicable terms of (and meet all applicable requirements for a Permitted
Acquisition under) the Credit Agreement (including, without limitation,
Sections 9.12 and 9.13 thereof and the delivery of the officer's
certificate required by clause (i) of the first sentence of the definition
of "Permitted Acquisition" contained in Section 1 of the Credit Agreement
(as amended hereby));
(iii) on or prior to the First Amendment Effective Date, there shall
have been delivered to the Administrative Agent true and correct copies of
the ITT Fluid Business Acquisition Agreement and all other material
documents entered into in connection with the ITT Fluid Business
Acquisition (the "ITT Fluid Business Acquisition Documents"), certified as
such by an officer of the U.S. Borrower;
(iv) on the First Amendment Effective Date, (x) all ITT Fluid
Business Acquisition Documents shall have been duly executed and delivered
by the parties thereto and shall be in full force and effect, (y) each of
the conditions precedent to the consummation of the ITT Fluid Business
Acquisition as set forth in the ITT Fluid Business Acquisition Documents
shall have been satisfied in all material respects, and not waived in any
manner that is materially adverse to the Agents and the Required Lenders,
and (z) the ITT Fluid Business Acquisition shall have been consummated in
accordance with the ITT Fluid Business Acquisition Agreement; and
(v) no condition or circumstance shall have occurred or become
known to any Agent which the Agents shall determine has had, or could
reasonably be expected to have, a material adverse effect on the business,
results of operations, assets or financial condition of the ITT Fluid
Business, taken as a whole, other than as a result of (i) the execution
and delivery of the ITT Fluid Business Acquisition Agreement (or the
announcement thereof), (ii) the ITT Sellers' compliance with the terms of
the ITT Fluid Business Acquisition Agreement, (iii) changes in general
economic conditions (including changes in interest rates) to the extent
such changes do not have a disproportionate impact on the ITT Fluid
Business, in the industry in which the ITT Fluid Business operates to the
extent such changes do not have a disproportionate impact on the ITT Fluid
Business, in law or applicable regulations or the official interpretations
thereof or in GAAP (as defined in the ITT Fluid Business Acquisition
Agreement) or (iv) any outbreak or substantial worsening of hostilities,
terrorist activities or war (whether declared or not declared) or armed
conflicts.
2. Notwithstanding anything to the contrary contained in the Credit
Agreement or in Section 1 of Part A of this Amendment, the parties hereto hereby
acknowledge and agree that the ITT Fluid Business Acquisition shall not
constitute a "Domestic Permitted Acquisition" for purposes of determining
compliance with the aggregate consideration requirements for future Domestic
Permitted Acquisitions set forth in Section 10.04(a) of the Credit Agreement.
3. The Credit Agreement Parties and the Lenders hereby agree that (i)
on the First Amendment Effective Date (as defined below) and immediately after
giving effect thereto, the Convertible Portion (as defined below) of the Dollar
Facility Revolving Loan Commitment of each Lender whose name is set forth on
Annex I hereto shall automatically (and without further action) be converted
into, and thereupon constitute, a "U.S. Borrower Dual Currency Revolving Loan
Commitment" of such Lender for all purposes of the Credit Agreement and the
other Credit Documents and (ii) in connection with the foregoing, the Dollar
Facility RL Percentages (and related L/C Participation Percentages) of the
remaining Dollar Facility RL Lenders (after giving effect to the reduction to
the Total Dollar Facility Revolving Loan Commitment and the Dollar Facility
Revolving Loan Commitments of certain Lenders as contemplated hereby) shall be
automatically adjusted at such time to give effect to such reductions. As used
herein, the term "Convertible Portion" shall mean, as to any Lender, the amount
set forth opposite the name of such Lender on Annex I hereto.
4. The definition of "Applicable Currency" appearing in Section 1 of
the Credit Agreement is hereby amended by inserting the text "or Euros"
immediately following the text "Canadian Dollars" appearing in the proviso of
said definition.
5. The definition of "Applicable Margin" appearing in Section 1 of the
Credit Agreement is hereby amended by (i) deleting the text "Eurodollar"
appearing in clause (ii)(B) of the first sentence of said definition and
inserting the text "Euro Rate" in lieu thereof and (ii) deleting the text
"Multicurrency Facility Revolving Loan, Dollar Facility Revolving Loan
Eurodollar Margin and Drawing Fee" appearing in the table in said definition and
inserting the following new text in lieu thereof:
"Multicurrency Facility Revolving Loan, U.S. Borrower Dual Currency
Facility Revolving Loan and Dollar Facility Revolving Loan Euro Rate
Margin and/or Drawing Fee".
6. The definition of "Available Currency" appearing in Section 1 of the
Credit Agreement is hereby amended by (i) deleting the text "U.S. Borrower
Incremental Term
Loans," appearing in clause (ii) of said definition, (ii) deleting the text
"and" appearing immediately prior to clause (iii) of said definition and (iii)
inserting the text ", and (iv) with respect to U.S. Borrower Dual Currency
Revolving Loans and U.S. Borrower Incremental Term Loans, U.S. Dollars and
Euros" immediately prior to the period (".") appearing at the end of said
definition.
7. The definition of "Base Rate Loan" appearing in Section 1 of the
Credit Agreement is hereby amended by (i) inserting the text "and" immediately
prior to clause (iii) of said definition and (ii) inserting the text ", U.S.
Borrower Dual Currency Facility Revolving Loan, U.S. Borrower Incremental Term
Loan" immediately following the text "Multicurrency Facility Revolving Loan"
appearing in clause (iii) of said definition.
8. The definition of "Borrowing" appearing in Section 1 of the Credit
Agreement is hereby amended by deleting the text "in the case of Eurodollar
Loans" appearing in said definition and inserting the text "in the case of Euro
Rate Loans" in lieu thereof.
9. The definition of "Business Day" appearing in Section 1 of the
Credit Agreement is hereby amended by deleting clause (ii) in said definition in
its entirety and inserting the following new clause (ii) in lieu thereof:
"(ii) with respect to all notices and determinations in connection
with, and payments of principal and interest on or with respect to,
Euro Denominated Loans or Eurodollar Loans, any day which is a
Business Day described in clause (i) and which is also (A) a day for
trading by and between banks in U.S. dollar or Euro, as the case may
be, deposits in the London interbank market and which shall not be a
legal holiday or a day on which banking institutions are authorized
or required by law or other government action to close in London or
New York City and (B) in relation to any payment in Euros, a day on
which the Trans-European Automated Real-Time Gross Settlement
Express Transfer (TARGET) System is open and".
10. The definition of "CAM Exchange Percentage" appearing in Section 1
of the Credit Agreement is hereby amended by inserting the text "or Euros"
immediately following the text "Canadian Dollars" appearing in each of clauses
(a)(i)(x), (a)(ii), (b)(i)(x) and (b)(ii) of said definition.
11. The definition of "Commitment" appearing in Section 1 of the Credit
Agreement is hereby amended by inserting the text ", U.S. Borrower Dual Currency
Facility Revolving Loan Commitment" immediately following the text
"Multicurrency Facility Revolving Loan Commitment" appearing in said definition.
12. The definition of "Consolidated EBITDA" appearing in Section 1 of
the Credit Agreement is hereby amended by (i) deleting the text "and" appearing
immediately prior to the text "(x) any losses of the U.S. Borrower and its
Subsidiaries" in the first sentence of said definition and inserting a comma in
lieu thereof and (ii) inserting the following text immediately prior to the text
"minus (b)" appearing in the first sentence of said definition:
"and (xi) any non-recurring Restructuring Charges actually incurred by the
U.S. Borrower and its Subsidiaries in connection with the integration of
the ITT Fluid Business during such period, so long as (w) such
Restructuring Charges were (I) incurred after the First Amendment
Effective Date and on or prior to December 31, 2008 and (II) deducted in
the determination of Consolidated EBITDA for such period (directly or
through reduction to Consolidated Net Income), (x) the aggregate amount of
all such Restructuring Charges incurred and added to "Consolidated EBITDA"
in reliance on this clause (xi) after the First Amendment Effective Date
does not exceed $20,000,000, (y) the aggregate amount of all such
Restructuring Charges added to "Consolidated EBITDA" in reliance on this
clause (xi) for such period does not exceed $10,000,000 and (z) the U.S.
Borrower shall have complied at all times with the requirements of Section
9.01(c)(iii), requiring it to certify as to the amount and type of such
Restructuring Costs so incurred in any Fiscal Quarter included in such
period and added back to Consolidated EBITDA for such period".
13. The definition of "Dollar Denominated Revolving Loan" appearing in
Section 1 of the Credit Agreement is hereby amended by inserting the text ", all
U.S. Borrower Dual Currency Facility Revolving Loans denominated in U.S.
Dollars" immediately following the text "all Multicurrency Facility Revolving
Loans denominated in U.S. Dollars" appearing in said definition.
14. The definition of "Dollar Facility Revolving Loan Commitment"
appearing in Section 1 of the Credit Agreement is hereby amended by inserting
the text "and/or Section 3 of Part A of the First Amendment" immediately after
the text "and/or 11" appearing in said definition.
15. The definition of "Individual RL Facility Exposures" appearing in
Section 1 of the Credit Agreement is hereby amended by inserting the text ", the
Individual U.S. Borrower Dual Currency Facility RL Exposure" immediately prior
to the text "and" appearing in said definition.
16. The definition of "Interest Determination Date" appearing in Section
1 of the Credit Agreement is hereby amended by replacing the text "Eurodollar"
with the text "Euro Rate" each time it appears in said definition.
17. The definition of "Interest Period" appearing in Section 1 of the
Credit Agreement is hereby amended by deleting the text "Eurodollar" appearing
in said definition and inserting the text "Euro Rate" in lieu thereof.
18. The definition of "Minimum Borrowing Amount" appearing in Section 1
of the Credit Agreement is hereby amended by (i) redesignating clause (v) of
said definition as clause (vi) thereof and (ii) inserting the following new
clause (v) after clause (iv) of said definition:
"(v) in the case of Euro Denominated Loans, (euro)1,000,000,".
19. The definition of "Note" appearing in Section 1 of the Credit
Agreement is hereby amended by inserting the text "each U.S. Borrower Dual
Currency Facility Revolving Note,"
immediately following the text "each Multicurrency Facility Revolving Note,"
appearing in said definition.
20. The definition of "Permitted Acquisition" appearing in Section 1 of
the Credit Agreement is hereby amended by (i) deleting the text "the principal
amount of Indebtedness that is assumed in connection with such Permitted
Acquisition and (ii)" appearing at the beginning of clause (i) (i.e., letter
(i)) at the end of the first sentence of said definition, (ii) inserting the
text "the principal amount of Indebtedness that is assumed in connection with
such Permitted Acquisition and (ii)" immediately after the text "(i)" in the
second sentence of said definition and (iii) inserting the text ", the Aggregate
U.S. Borrower Dual Currency Facility RL Exposure" immediately prior to the text
"and Aggregate Multicurrency Facility RL Exposure" appearing in said definition.
21. The definition of "Required Lenders" appearing in Section 1 of the
Credit Agreement is hereby amended by inserting the text "or Euros" immediately
following the text "denominated in Canadian Dollars" appearing in the final
sentence of said definition.
22. The definition of "Revolving Loan Commitment" appearing in Section 1
of the Credit Agreement is hereby amended by inserting the text ", its U.S.
Borrower Dual Currency Facility Revolving Loan Commitment (if any)" immediately
following the first parenthetical in said definition.
23. The definition of "RL Lender" appearing in Section 1 of the Credit
Agreement is hereby amended by inserting the text ", each U.S. Borrower Dual
Currency Facility RL Lender" immediately following the text "Multicurrency
Facility RL Lender" appearing in said definition.
24. The definition of "TL Repayment Percentage" appearing in Section 1
of the Credit Agreement is hereby amended by inserting the text ", Euro
Denominated Incremental Term Loans" immediately following the text "Tranche A
Term Loans" appearing in the second sentence of said definition.
25. The definition "Total Revolving Loan Commitment" appearing in
Section 1 of the Credit Agreement is hereby amended by inserting the text ", the
Total U.S. Borrower Dual Currency Revolving Loan Commitment" immediately prior
to the text "and" appearing in said definition.
26. The definition of "Total Unutilized Revolving Loan Commitment"
appearing in Section 1 of the Credit Agreement is hereby amended by inserting
the text ", the Aggregate U.S. Borrower Dual Currency Facility RL Exposure at
such time" immediately prior to the text "and" appearing in said definition.
27. The definition of "Tranche" appearing in Section 1 of the Credit
Agreement is hereby amended by (i) inserting the text "U.S. Borrower Dual
Currency Facility Revolving Loans," immediately following the text
"Multicurrency Facility Revolving Loans," appearing in said definition, (ii)
deleting the text "and (y)" in the proviso in said definition and inserting the
text ", (y)" in lieu thereof, and (iii) inserting the text "and (z) for the
purposes of the definitions of "Supermajority Lenders" and "Majority Lenders"
and Section 13.12(a), all U.S. Borrower
Incremental Term Loans incurred on the First Amendment Effective Date (whether
denominated in U.S. Dollars or Euros) shall collectively be deemed to represent
a single "Tranche"" immediately prior to the period (".") appearing at the end
of said definition.
28. The definition of "Type" appearing in Section 1 of the Credit
Agreement is hereby amended by inserting the text "a Euro Denominated Loan,"
immediately following the text "a Eurodollar Loan," appearing in said
definition.
29. The definition of "U.S. Dollar Equivalent" appearing in Section 1
of the Credit Agreement is hereby amended by (i) inserting the text "(i)"
immediately following the text "during a calendar month" appearing in the third
proviso of the first sentence of said definition and (ii) inserting the
following new text immediately after the text "Multicurrency Facility Revolving
Loan Commitment," in said proviso:
"or (ii) if the Aggregate U.S. Borrower Dual Currency Facility RL
Exposure (for the purposes of the determination thereof, using the
U.S. Dollar Equivalent as recalculated based on the spot exchange
rate therefor as quoted in Reuters ECB Page 37 (or, if same does not
provide such exchange rates, on such other basis as is reasonably
satisfactory to the Administrative Agent) on the respective date of
determination pursuant to this exception) would exceed 85% of the
Total U.S. Borrower Dual Currency Facility Revolving Loan
Commitment,".
30. Section 1 of the Credit Agreement is hereby further amended by (i)
deleting the definitions of "Dollar Denominated Loan" and "Domestic Permitted
Acquisition" appearing in said Section and (ii) inserting the following new
definitions in the appropriate alphabetical order:
"Aggregate U.S. Borrower Dual Currency Facility RL Exposure" shall
mean, at any time, the aggregate principal amount of all U.S. Borrower
Dual Currency Facility Revolving Loans outstanding at such time (for this
purpose, using the U.S. Dollar Equivalent of the principal amount of any
outstanding Euro Denominated Revolving Loans).
"Dollar Denominated Loan" shall mean all Loans denominated in U.S.
Dollars, which shall include each Tranche B Term Loan, each Tranche C Term
Loan, each Incremental Term Loan made in U.S. Dollars, each Dollar
Facility Revolving Loan, each Swingline Loan, each U.S. Borrower Dual
Currency Facility Revolving Loan made in U.S. Dollars and each
Multicurrency Facility Revolving Loan made in U.S. Dollars, as well as
each Tranche A Term Loan, each Multicurrency Facility Revolving Loan made
in Canadian Dollars, each U.S. Borrower Incremental Term Loan made in
Euros and each U.S. Borrower Dual Currency Facility Revolving Loan made in
Euros (in any such case) converted into U.S. Dollars in accordance with
the provisions of Section 2.14.
"Domestic Permitted Acquisition" shall mean any Permitted
Acquisition pursuant to which (a) any acquired or newly formed Subsidiary
of the U.S. Borrower is a Domestic Subsidiary of the U.S. Borrower and/or
(b) the assets that are the subject of such Permitted Acquisition are
acquired by a Domestic Subsidiary of the U.S. Borrower
and are located in the United States or any State or territory thereof;
provided, however, that, notwithstanding the foregoing, if a Permitted
Acquisition involves (x) the acquisition or new formation of a Foreign
Subsidiary of the U.S. Borrower and/or (y) the acquisition of assets by a
Foreign Subsidiary of the U.S. Borrower or of assets located outside the
United States or any State or territory thereof (collectively, "Foreign
Assets"), such Permitted Acquisition shall be deemed to be a "Domestic
Permitted Acquisition" for purposes of this Agreement, so long as (and
only so long as) the aggregate fair market value of all Foreign
Subsidiaries and all other Foreign Assets created and/or acquired in
connection with such Permitted Acquisition (as reasonably determined by
senior management of the U.S. Borrower) does not exceed 40% of the fair
market value of all of the Subsidiaries and other assets created and/or
acquired in connection with such Permitted Acquisition (as reasonably
determined by senior management of the U.S. Borrower).
"Euro Denominated Incremental Term Loans" shall mean U.S. Borrower
Incremental Term Loans denominated in Euros at the time of the incurrence
thereof.
"Euro Denominated Loans" shall mean Euro Denominated Revolving Loans
and Euro Denominated Incremental Term Loans.
"Euro Denominated Revolving Loan" shall mean each U.S. Borrower Dual
Currency Facility Revolving Loan denominated in Euros at the time of the
incurrence thereof.
"Euro Equivalent" shall mean, at any time for the determination
thereof, the amount of Euros which could be purchased with the amount of
U.S. Dollars involved in such computation at the spot rate of exchange
therefor as quoted by the Administrative Agent as of 11:00 A.M. (New York
time) on the date two Business Days prior to the date of any determination
thereof for purchase on such date (or, in the case of any determination
pursuant to Section 2.14 or 13.22 or Section 21 of the U.S. Subsidiaries
Guaranty (or any equivalent provision in any other Subsidiaries Guaranty),
on the date of determination).
"Euro LIBOR" shall mean, with respect to each Borrowing of Euro
Denominated Loans, (i) the rate per annum for deposits in Euros as
determined by the Administrative Agent for a period corresponding to the
duration of the relevant Interest Period which appears on Reuters Page
EURIBOR-01 (or any successor page) at approximately 11:00 A.M. (Brussels
time) on the date which is two Business Days prior to the commencement of
such Interest Period or (ii) if such rate is not shown on Reuters Page
EURIBOR-01 (or any successor page), the average offered quotation to prime
banks in the Euro-zone interbank market by the Administrative Agent for
Euro deposits of amounts comparable to the principal amount of the Euro
Denominated Loan to be made by the Administrative Agent as part of such
Borrowing (or, if the Administrative Agent is not a Lender with respect
thereto, taking the average principal amount of Euro Denominated Loans
then being made by the various Lenders pursuant thereto) with maturities
comparable to the Interest Period to be applicable to such Loan (rounded
upward to the next whole multiple of 1/16 of 1%), determined as of 11:00
A.M. (Brussels time) on the date which is two
Business Days prior to the commencement of such Interest Period; provided
that in the event the Administrative Agent has made any determination
pursuant to Section 2.10(a)(i) in respect of Euro Denominated Loans, or in
the circumstances described in clause (i) to the proviso to Section
2.10(b) in respect of Euro Denominated Loans, Euro LIBOR determined
pursuant to this definition shall instead be the rate determined by the
Administrative Agent as the all-in-cost of funds for the Administrative
Agent (or such other Lenders) to fund a Borrowing of Euro Denominated
Loans with maturities comparable to the Interest Period applicable
thereto.
"Euro Rate" shall mean and include each of the Eurodollar Rate and
Euro LIBOR.
"Euro Rate Loan" shall mean each Eurodollar Loan and each Euro
Denominated Loan.
"Euros" and the designation "(euro)" shall mean the currency
introduced on January 1, 1999 at the start of the third stage of European
economic and monetary union pursuant to the Treaty.
"First Amendment" shall mean the First Amendment and Consent to this
Agreement, dated as of February 1, 2006.
"First Amendment Effective Date" shall have the meaning provided in
the First Amendment.
"Individual U.S. Borrower Dual Currency Facility RL Exposure" of any
U.S. Borrower Dual Currency Facility RL Lender shall mean, at any time,
the aggregate principal amount of all U.S. Borrower Dual Currency
Revolving Loans made by such U.S. Borrower Dual Currency Facility RL
Lender and then outstanding (for this purpose, using the U.S. Dollar
Equivalent of the principal amount of any outstanding Euro Denominated
Revolving Loans).
"ITT Fluid Business Acquisition" shall have the meaning provided in
the First Amendment.
"ITT Fluid Business" shall have the meaning provided in the First
Amendment.
"Mandatory Cost" shall mean the cost imputed to each Lender of
compliance with any reserve asset requirements of the European Central
Bank.
"New Information Memorandum" shall mean the Confidential Information
Memorandum, dated January 19, 2006, relating to Holdings, the Borrowers,
the ITT Fluid Business Acquisition and the related financing thereof.
"Non-Dollar Currencies" shall mean and include Euros and Canadian
Dollars.
"Non-Dollar Denominated Loans" shall mean and include Euro
Denominated Loans and Canadian Dollar Denominated Loans.
"Repricing Transaction" shall mean, as to Term Loans of any Tranche,
(1) the incurrence by the U.S. Borrower or any of its Subsidiaries of any
indebtedness (including, without limitation, any new or additional term
loans under this Agreement, whether incurred directly or by way of the
conversion of outstanding Term Loans of such Tranche into a new tranche of
replacement term loans under this Agreement) that is broadly marketed or
syndicated to banks and other institutional investors in financings
similar to the facilities provided for in this Agreement (i) having an
"effective" interest rate margin or weighted average yield for the
respective Type of such indebtedness that is less than the applicable rate
for or weighted average yield for Term Loans of the respective Tranche and
Type (with the comparative determinations to be made by the Administrative
Agent consistent with generally accepted financial practices, after giving
effect to, among other factors, margin, upfront or similar fees or
"original issue discount" shared with all lenders or holders of such
indebtedness or Term Loans, as the case may be, but excluding the effect
of any arrangement, structuring, syndication or other fees payable in
connection therewith that are not shared with all lenders or holders of
such indebtedness or Term Loans, as the case may be, and without taking
into account any fluctuations in the relevant Euro Rate) and (ii) the
proceeds of which are used to prepay (or, in the case of a conversion,
deemed to prepay or replace), in whole or in part, principal of
outstanding Term Loans of such Tranche and/or (2) any reduction in the
Applicable Margins for Term Loans of such Tranche by way of the amendment,
waiver or other modification of this Agreement. Any such determination by
the Administrative Agent as contemplated by preceding clause (1) shall be
conclusive and binding on all Lenders holding Term Loans.
"Total U.S. Borrower Dual Currency Facility Revolving Loan
Commitment" shall mean, at any time, the sum of the U.S. Borrower Dual
Currency Facility Revolving Loan Commitments of each of the Lenders with
such a Commitment at such time.
"Treaty" means the Treaty establishing the European Community being
the Treaty of Rome of March 25, 1957, as amended by the Single Xxxxxxxx
Xxx 0000, the Maastricht Treaty (which was signed at Maastricht on
February 7, 1992) and the Treaty of Amsterdam (which was signed in
Amsterdam on October 2, 1997).
"Unutilized U.S. Borrower Dual Currency Facility Revolving Loan
Commitment" with respect to any U.S. Borrower Dual Currency Facility RL
Lender, at any time, shall mean such U.S. Borrower Dual Currency Facility
RL Lender's U.S. Borrower Dual Currency Facility Revolving Loan Commitment
at such time, if any, less the aggregate outstanding principal amount of
all U.S. Borrower Dual Currency Facility Revolving Loans (taking the U.S.
Dollar Equivalent of any such Loans denominated in Euros) made by such
U.S. Borrower Dual Currency Facility RL Lender and then outstanding.
"Updated Projections" shall have the meaning provided in Section
8.04(g).
"Updated Third Party Scheduled Existing Indebtedness" shall mean all
Indebtedness of Holdings and its Subsidiaries set forth on Part C of
Schedule V, which Part C shows, in certain instances, the aggregate
principal amount thereof (and the aggregate amount of any undrawn
commitments with respect thereto) and the name of the
respective borrower and any other entity which directly or indirectly
guarantees such Indebtedness.
"U.S. Borrower Dual Currency Facility Revolving Loan" shall have the
meaning provided in Section 2.01(i).
"U.S. Borrower Dual Currency Facility Revolving Loan Commitment"
shall mean, for each Lender, the amount set forth opposite such Lender's
name on Schedule I hereto directly below the column entitled "U.S.
Borrower Dual Currency Facility Revolving Loan Commitment", as same may be
(x) reduced from time to time and/or terminated pursuant to Sections 4.02,
4.03 and/or 11 or (y) adjusted from time to time as a result of
assignments to or from such Lender pursuant to Sections 2.13 or 13.04(b).
The amount of the "U.S. Borrower Dual Currency Facility Revolving Loan
Commitment" of each Lender on the First Amendment Effective Date equals
the amount set forth opposite the name of such Lender on Annex I to the
First Amendment and represents a conversion of all or a portion of the
Dollar Facility Revolving Loan Commitment of such Lender as contemplated
by Section 3 of Part A of the First Amendment.
"U.S. Borrower Dual Currency Facility Revolving Note" shall have the
meaning provided in Section 2.05(a).
"U.S. Borrower Dual Currency Facility RL Lender" shall mean each
Lender which has a U.S. Borrower Dual Currency Facility Revolving Loan
Commitment or which has any outstanding U.S. Borrower Dual Currency
Facility Revolving Loans.
"U.S. Borrower Dual Currency Facility RL Percentage" of any U.S.
Borrower Dual Currency Facility RL Lender at any time shall mean that
percentage which is equal to a fraction (expressed as a percentage) the
numerator of which is the U.S. Borrower Dual Currency Facility Revolving
Loan Commitment of such U.S. Borrower Dual Currency Facility RL Lender at
such time and the denominator of which is the Total U.S. Borrower Dual
Currency Facility Revolving Loan Commitment at such time, provided that if
any such determination is to be made after the Total U.S. Borrower Dual
Currency Facility Revolving Loan Commitment (and the related U.S. Borrower
Dual Currency Facility Revolving Loan Commitments of the Lenders) has (or
have) terminated, the determination of such percentages shall be made
immediately before giving effect to such termination.
31. Section 2.01(d) of the Credit Agreement is hereby amended by (i)
inserting the text "or Euros" immediately following the text "U.S. Dollars"
appearing in clause (ii) of said Section, (ii) redesignating clauses (v) and
(vi) of said Section as clauses (vi) and (vii), respectively, of said Section
and (iii) inserting the following new clause (v) immediately following clause
(iv) of said Section:
"(v) in the case of Incremental Term Loans denominated in Euros,
shall be incurred by the U.S. Borrower and, except as hereinafter
provided, at the option of the U.S. Borrower, be incurred and maintained
as one or more Borrowings of Euro Denominated Incremental Term Loans;".
32. Section 2.01 of the Credit Agreement is hereby further amended by
inserting the following new clause (i) at the end of said Section:
"(i) U.S. Borrower Dual Currency Facility Revolving Loans. Subject
to and upon the terms and conditions set forth herein, each U.S. Borrower
Dual Currency Facility RL Lender severally agrees to make, at any time and
from time to time on or after the First Amendment Effective Date and prior
to the Revolving Loan Maturity Date, a revolving loan or revolving loans
to the U.S. Borrower (each, a "U.S. Borrower Dual Currency Facility
Revolving Loan" and, collectively, the "U.S. Borrower Dual Currency
Facility Revolving Loans"), which U.S. Borrower Dual Currency Facility
Revolving Loans:
(i) shall (subject to Section 2.14) be made and maintained
in the respective Available Currency elected by the U.S. Borrower;
(ii) except as hereafter provided, shall, at the option of
the U.S. Borrower, be incurred and maintained as, and/or converted
into, one or more Borrowings of Base Rate Loans, Eurodollar Loans or
Euro Denominated Revolving Loans, provided that except as otherwise
specifically provided in Section 2.10(b), all U.S. Borrower Dual
Currency Facility Revolving Loans made as part of the same Borrowing
shall at all times consist of U.S. Borrower Dual Currency Facility
Revolving Loans of the same Type;
(iii) may be repaid and reborrowed in accordance with the
provisions hereof;
(iv) shall not be made (and shall not be required to be made)
by any U.S. Borrower Dual Currency Facility RL Lender in any
instance where the incurrence thereof (after giving effect to the
use of the proceeds thereof on the date of the incurrence thereof to
repay any amounts theretofore outstanding pursuant to this
Agreement) would cause the Individual U.S. Borrower Dual Currency
Facility RL Exposure of such U.S. Borrower Dual Currency Facility RL
Lender to exceed the amount of its U.S. Borrower Dual Currency
Facility Revolving Loan Commitment at such time; and
(v) shall not be made (and shall not be required to be made)
by any U.S. Borrower Dual Currency Facility RL Lender if the making
of same would cause the Aggregate U.S. Borrower Dual Currency
Facility RL Exposure (after giving effect to the use of the proceeds
thereof on the date of the incurrence thereof to repay any amounts
theretofore outstanding pursuant to this Agreement) to exceed the
Total U.S. Borrower Dual Currency Facility Revolving Loan Commitment
as then in effect.".
33. Section 2.01(e) of the Credit Agreement is hereby amended by
deleting the text "denominated in U.S. Dollars" appearing in clause (ii) of said
Section.
34. Section 2.01(f) of the Credit Agreement is hereby amended by
inserting the text "and U.S. Borrower Dual Currency Facility Revolving Loans"
immediately following the text "Multicurrency Facility Revolving Loans"
appearing in the first parenthetical of said Section.
35. Section 2.02 of the Credit Agreement is hereby amended by deleting
the text "Eurodollar" appearing in clause (x) of the second sentence of said
Section and inserting the text "Euro Rate" in lieu thereof.
36. Section 2.03(a) of the Credit Agreement is hereby amended by (i)
deleting the text "Eurodollar Loans or Bankers' Acceptance Loans to be made
hereunder," appearing immediately prior to the proviso appearing in the first
sentence of said Section and inserting the text "Euro Rate Loan or Bankers'
Acceptance Loan to be made hereunder" in lieu thereof, (ii) inserting the text
", U.S. Borrower Dual Currency Facility Revolving Loans" immediately prior to
the text "or" in clause (iii) of the second sentence of said Section, (iii)
redesignating clause (v) of the second sentence of said Section as clause (vi)
thereof and (iv) inserting the following new clause (v) immediately prior to the
text "and" appearing at the end of clause (iv) of the second sentence of said
Section:
"(v) in the case of Euro Denominated Incremental Term Loans, the Interest
Period to be initially applicable thereto,".
37. Section 2.04 of the Credit Agreement is hereby amended by (i)
inserting the text ", in Euros (in the case of Euro Denominated Loans)"
immediately following the first parenthetical appearing in the second sentence
of said Section and (ii) by deleting the parenthetical in clause (i) of the
penultimate sentence of said Section and inserting the following new
parenthetical in lieu thereof:
"(or, (x) in the case of Canadian Dollar Denominated Loans, the cost to
the Administrative Agent of acquiring overnight funds in Canadian Dollars
or (y) in the case of Euro Denominated Loans, the cost to the
Administrative Agent of acquiring overnight funds in Euros)".
38. Section 2.05(a) of the Credit Agreement is hereby amended by (i)
inserting the text ", U.S. Borrower Dual Currency Facility Revolving Loans"
immediately prior to the text "and" appearing in the second parenthetical of
said Section, (ii) deleting the text "and" appearing immediately prior to clause
(vii) of said Section and (iii) inserting the following new clause (viii) at the
end of said Section:
"and (viii) if U.S. Borrower Dual Currency Facility Revolving Loans, by a
promissory note duly executed and delivered by the U.S. Borrower
substantially in the form of Exhibit B-9, with blanks appropriately
completed in conformity herewith (each, a "U.S. Borrower Dual Currency
Facility Revolving Note" and, collectively, the "U.S. Borrower Dual
Currency Facility Revolving Notes")".
39. Section 2.05(e) of the Credit Agreement is hereby amended by (i)
inserting the text ", Euros" immediately following the text "U.S. Dollars" each
time it appears in said Section and (ii) deleting the text "or Eurodollar Loans"
appearing in clause (v) of said Section and inserting the text ", Eurodollar
Loans or Euro Denominated Loans" in lieu thereof.
40. Section 2.05 of the Credit Agreement is hereby further amended by
inserting the following new clause (k) at the end of said Section:
"(k) The U.S. Borrower Dual Currency Facility Revolving Note issued
to each U.S. Borrower Dual Currency Facility RL Lender shall (i) be
executed by the U.S. Borrower, (ii) be payable to the order of such U.S.
Borrower Dual Currency Facility RL Lender (or an affiliate designated by
such U.S. Borrower Dual Currency Facility RL Lender) or its registered
assigns and be dated the First Amendment Effective Date (or, if issued
thereafter, the date of issuance thereof), (iii) be in a stated principal
amount (expressed in U.S. Dollars) equal to the U.S. Borrower Dual
Currency Facility Revolving Loan Commitment of such U.S. Borrower Dual
Currency Facility RL Lender on the date of issuance thereof (or, if issued
after the termination of such U.S. Borrower Dual Currency Facility
Revolving Loan Commitment, in an amount equal to the Individual U.S.
Borrower Dual Currency Facility RL Exposure of the respective U.S.
Borrower Dual Currency Facility RL Lender), provided that if, because of
fluctuations in exchange rates after the date of issuance thereof, the
U.S. Borrower Dual Currency Facility Revolving Note of any U.S. Borrower
Dual Currency Facility RL Lender would not be at least as great as the
outstanding principal amount (taking the U.S. Dollar Equivalent of all
Euro Denominated Revolving Loans evidenced thereby) of the U.S. Borrower
Dual Currency Facility Revolving Loans made by such U.S. Borrower Dual
Currency Facility RL Lender at any time outstanding, the respective U.S.
Borrower Dual Currency Facility RL Lender may request (and in such case
the U.S. Borrower shall promptly execute and deliver) a new U.S. Borrower
Dual Currency Facility Revolving Note in an amount equal to the aggregate
principal amount (taking the U.S. Dollar Equivalent of all Euro
Denominated Revolving Loans evidenced thereby) of the U.S. Borrower Dual
Currency Facility Revolving Loans of such U.S. Borrower Dual Currency
Facility RL Lender outstanding on the date of the issuance of such new
U.S. Borrower Dual Currency Facility Revolving Note, (iv) with respect to
each U.S. Borrower Dual Currency Facility Revolving Loan evidenced
thereby, be payable (subject to Section 2.14) in the respective Available
Currency in which such U.S. Borrower Dual Currency Facility Revolving Loan
was made, provided that the obligations with respect to each Euro
Denominated Revolving Loan evidenced thereby shall be subject to
conversion into Dollar Denominated Loans as provided in (and in the
circumstances contemplated by) Section 2.14, (v) mature on the Revolving
Loan Maturity Date, (vi) bear interest as provided in the appropriate
clause of Section 2.08 in respect of the Base Rate Loans, Eurodollar Loans
or Euro Denominated Revolving Loans, as applicable, evidenced thereby,
(vii) be subject to voluntary prepayment as provided in Section 5.01 and
mandatory repayment as provided in Section 5.02 and (viii) be entitled to
the benefits of this Agreement and the other Credit Documents.".
41. Section 2.07 of the Credit Agreement is hereby amended by (i)
inserting the text ", U.S. Borrower Dual Currency Facility Revolving Loans"
immediately following the text "Multicurrency Facility Revolving Loans"
appearing in the first sentence of said Section and (ii) inserting the text ",
U.S. Borrower Dual Currency Facility RL Percentages" immediately following the
text "Multicurrency Facility RL Percentages" appearing in the first sentence of
said Section.
42. Section 2.08(a) of the Credit Agreement is hereby amended by (i)
inserting the text ", U.S Borrower Dual Currency Facility Revolving Loans"
immediately following the text "U.S. Borrower Incremental Term Loans" appearing
in said Section and (ii) inserting the text "or Euro Denominated Loan"
immediately following the text "conversion of any Canadian Dollar Denominated
Loan" appearing in said Section.
43. Section 2.08(b) of the Credit Agreement is hereby amended by
inserting the text ", U.S Borrower Dual Currency Facility Revolving Loans"
immediately following the text "U.S. Borrower Incremental Term Loans" appearing
in said Section.
44. Section 2.08(d) of the Credit Agreement is hereby amended by (i)
redesignating clause (2) of said Section as clause (3) thereof and (ii)
inserting the following new clause (2) immediately after to the text "Prime
Rate, each as in effect from time to time," appearing in said Section:
"(2) in the case of overdue principal of, and interest or other overdue
amounts owing with respect to, Euro Denominated Loans, equal to 2% per
annum in excess of the Applicable Margin for Euro Rate Loans as in effect
from time to time plus Euro LIBOR for such successive periods not
exceeding one month as the Administrative Agent may determine from time to
time in respect of amounts comparable to the amount not paid plus any
Mandatory Costs,".
45. Section 2.08(e) of the Credit Agreement is hereby amended by
deleting the text "Eurodollar Loan" appearing in said Section and inserting the
text "Euro Rate Loan" in lieu thereof.
46. Section 2.08(g) of the Credit Agreement is hereby amended by
deleting the text "Eurodollar Rate" appearing in said Section and inserting the
text "relevant Euro Rate" in lieu thereof.
47. Section 2.08 of the Credit Agreement is hereby further amended by
inserting the following new clause (h) at the end of said Section:
"(h) The U.S. Borrower hereby agrees to pay interest in respect of
the unpaid principal amount of each Euro Denominated Loan made to it from
the date of the Borrowing thereof until the maturity thereof (whether by
acceleration, prepayment or otherwise) at a rate per annum which shall,
during each Interest Period applicable thereto, be equal to the sum of the
relevant Applicable Margin as in effect from time to time plus Euro LIBOR
for such Interest Period plus any Mandatory Costs.".
48. Section 2.09 of the Credit Agreement is hereby amended by (i)
deleting the text "Eurodollar" in each place it appears in said Section and
inserting the text "Euro Rate" in lieu thereof and (ii) deleting the final two
sentences appearing at the end of said Section and inserting the following new
text in lieu thereof:
"With respect to any Euro Rate Loan, at the end of any Interest Period
applicable to a Borrowing thereof, the U.S. Borrower or the Canadian
Borrower, as applicable, may elect to split the respective Borrowing under
a single Tranche into two or more Borrowings of
the same Type under such Tranche or combine two or more Borrowings of the
same Type under a single Tranche into a single Borrowing under such
Tranche, in each case, by having an Authorized Officer of the relevant
Borrower give notice thereof together with its election of one or more
Interest Periods, in each case so long as each resulting Borrowing (x) has
an Interest Period which complies with the foregoing requirements of this
Section 2.09, (y) has a principal amount which is not less than the
Minimum Borrowing Amount applicable to Borrowings of the respective Type
and Tranche, and (z) does not cause a violation of the requirements of
Section 2.02. If upon the expiration of any Interest Period applicable to
a Borrowing of Euro Rate Loans, the U.S. Borrower or the Canadian
Borrower, as applicable, has failed to elect, or is not permitted to
elect, a new Interest Period to be applicable to such Euro Rate Loans as
provided above, the relevant Borrower shall be deemed to have elected, (x)
if Eurodollar Loans, to convert such Eurodollar Loans into Base Rate Loans
and (y) if Euro Denominated Loans, to select a one-month Interest Period
for such Euro Denominated Loans, in any such case effective as of the
expiration date of such current Interest Period.".
49. Section 2.10(a) of the Credit Agreement is hereby amended by (i)
deleting the text "interbank Eurodollar market" each time it appears in said
Section and inserting the text "applicable interbank market" in lieu thereof,
(ii) deleting the text "Eurodollar Loans" from clause (ii) of said Section and
"Eurodollar Loan" from clause (iii) of said Section and inserting the text "Euro
Rate Loans" and "Euro Rate Loan", respectively, in lieu thereof, (iii) deleting
the text "Eurodollar Rate" appearing in clause (i) of said Section and inserting
the text "Euro Rate" in lieu thereof, (iv) deleting clause (iv) of said Section
in its entirety and inserting the following new clause (iv) in lieu thereof:
"(iv) at any time that Bankers' Acceptance Loans are not available
or Euros are not available in sufficient amounts, as determined in good
faith by the Administrative Agent, acting reasonably, to fund any
Borrowing of Bankers' Acceptance Loans or Euro Denominated Loans, as the
case may be, requested pursuant to Section 2.01;",
(v) inserting the text "(A)" immediately following the text "above,"
appearing in clause (w) of the second sentence of said Section, (vi)
inserting the text "and (B) in the event that any Euro Denominated Loan is
so affected, Euro LIBOR shall be determined on the basis provided in the
proviso to the definition of Euro LIBOR" at the end of clause (w) of said
Section, and (vii) deleting clause (z) of said Section in its entirety and
inserting the following new clause (z) in lieu thereof:
"(z) in the case of clause (iv) above, Non-Dollar Denominated Loans
denominated in the affected Non-Dollar Currency (exclusive of any such
Non-Dollar Denominated Loans which have theretofore been funded) shall no
longer be available until such time as the Administrative Agent notifies
the respective Borrower or Borrowers and the Lenders that the
circumstances giving rise to such notice by the Administrative Agent no
longer exist, and any Notice of Borrowing or notice pursuant to Section
2.03(b)(i) given by the respective Borrower or Borrowers with respect to
such Non-Dollar Denominated Loans which have not been incurred shall be
deemed rescinded by such Borrower or Borrowers".
50. Section 2.10(b) of the Credit Agreement is hereby amended by (i)
deleting the text "Eurodollar Loan" the first four times it appears in said
Section and inserting the text "Euro Rate Loan" in lieu thereof, (ii) inserting
the text "(A) in the case of a Eurodollar Loan," immediately following the text
"Administrative Agent," appearing in clause (y) of said Section, (iii) inserting
the text "and (B) in the case of any Euro Denominated Loan, repay all
outstanding Borrowings which include such affected Euro Denominated Loan in full
in accordance with the applicable requirements of Section 5.01" immediately
prior to the proviso of said Section and (iv) deleting the proviso at the end of
said Section and inserting the following new proviso in lieu thereof:
"provided that, (i) if the circumstances described in Section 2.10(a)(iii)
apply to any Euro Denominated Loan, the U.S. Borrower may, in lieu of
taking the actions described above, maintain such Euro Denominated Loan
outstanding, in which case, the Euro LIBOR shall be determined on the
basis provided in the proviso to the definition of Euro LIBOR unless the
maintenance of such Euro Denominated Loan outstanding on such basis would
not stop the conditions described in Section 2.10(a)(iii) from existing
(in which case the actions described above, without giving effect to this
proviso, shall be required to be taken) and (ii) if more than one Lender
is affected at any time, then all affected Lenders must be treated the
same pursuant to this Section 2.10(b)".
51. Section 2.10 of the Credit Agreement is hereby further amended by
inserting the following new clause (d) at the end of said Section:
"(d) For the avoidance of doubt, nothing in this Section 2.10 shall
require any Credit Agreement Party to pay any Lender any amount for which
such Lender is compensated by way of the payment of Mandatory Costs.".
52. Section 2.11 of the Credit Agreement is hereby amended by (i)
deleting the text "Eurodollar Loans" each place it appears in said Section and
inserting the text "Euro Rate Loans" in lieu thereof and (ii) inserting the text
"or realignment" immediately after the text "or conversion" appearing in clause
(ii) of the first sentence of said Section.
53. Section 2.12(a) of the Credit Agreement is hereby amended by
deleting the text "Canadian Dollar Denominated Loans" appearing in the first
sentence of said Section and inserting the text "Non-Dollar Denominated Loans"
in lieu thereof.
54. Section 2.13 of the Credit Agreement is hereby amended by (i)
deleting the text "and" appearing at the end of clause (ii) of the proviso
appearing in the first sentence of said Section, (ii) deleting the period (".")
at the end of clause (iii) of the proviso appearing in the first sentence of
said Section and inserting the text "; and" in lieu thereof, (iii) inserting the
following new clause (iv) immediately following clause (iii) of the proviso
appearing in the first sentence of said Section:
"(iv) if the respective Replaced Lender has a related U.S. Borrower
Dual Currency Facility RL Lender, or if the Replaced Lender is a U.S.
Borrower Dual Currency Facility RL Lender which has a related Lender, all
of the actions specified above in this Section 2.13 shall be taken with
respect to both the respective Lender and
U.S. Borrower Dual Currency Facility RL Lender (who shall be treated
collectively as a Replaced Lender).",
(iv) inserting the text ", U.S. Borrower Dual Currency Facility Revolving Loan
Commitment" immediately following the text "Multicurrency Facility Revolving
Loan Commitment" appearing in the penultimate sentence of said Section and (v)
inserting the text ", the U.S. Borrower Dual Currency Facility RL Percentages"
immediately following the text "Multicurrency Facility RL Percentages" appearing
in the penultimate sentence of said Section.
55. Section 2.14(a) of the Credit Agreement is hereby amended by (i)
deleting the text "Canadian Dollar Denominated" each time it appears in said
Section and inserting the text "Non-Dollar Denominated" in lieu thereof and (ii)
deleting the text "Canadian Borrower" appearing at the end of clause (i) of the
first sentence of said Section and inserting the text "respective Borrower" in
lieu thereof.
56. Section 2.14(j) of the Credit Agreement is hereby amended by
deleting the text "Canadian Dollar" appearing in clause (ii) of the first
sentence of said Section and inserting the text "Non-Dollar" in lieu thereof.
57. Section 2.15(a) of the Credit Agreement is hereby amended by (i)
inserting the text "or Euros" immediately following the text "denominated in
U.S. Dollars" appearing in clause (iii) of said Section, (ii) inserting the text
"or, (euro)20,000,000, in the case of Incremental Term Loan Commitments
denominated in Euros" immediately following the text "Canadian Dollars"
appearing in clause (iv) of said Section, (iii) deleting clause (v) of said
Section in its entirety and inserting the following new clause (v) in lieu
thereof:
"(v) the aggregate amount of all Incremental Term Loan Commitments
provided pursuant to this Section 2.15 on and after the First Amendment
Effective Date (exclusive of U.S.$215,000,000 of Incremental Term Loan
Commitments made available on such date and taking the U.S. Dollar
Equivalent of any Incremental Term Loan Commitments denominated in
Canadian Dollars or Euros) shall not exceed U.S.$150,000,000 (provided
that at no time may the sum of (x) the aggregate amount of all Incremental
Term Loan Commitments provided pursuant to this Section 2.15 on and after
the First Amendment Effective Date (exclusive of U.S.$215,000,000 of
Incremental Term Loan Commitments made available on such date and taking
the U.S. Dollar Equivalent of any Incremental Term Loan Commitments
denominated in Canadian Dollars or Euros) and (y) the aggregate principal
amount of Additional Senior Subordinated Notes issued pursuant to Section
10.01(a)(xiii) and outstanding at such time, exceed U.S.$300,000,000)".
and (iv) inserting the text "or Euros" immediately after the text "U.S. Dollars"
in each place such text appears in sub-clause (II) of the proviso appearing in
clause (viii) of said Section.
58. Section 2.15(c) of the Credit Agreement is hereby amended by
deleting the text "Eurodollar Loans" in each place it appears in the second and
third sentences of said Section and inserting the text "Euro Rate Loans" in lieu
thereof.
59. Section 4.01(a) of the Credit Agreement is hereby amended by
deleting said Section in its entirety and inserting the following new Section
4.01(a) in lieu thereof:
"(a) (x) The Canadian Borrower agrees to pay to the Administrative
Agent for distribution to each Non-Defaulting Lender with a Multicurrency
Facility Revolving Loan Commitment a commitment commission, in U.S.
Dollars, for the period from the Effective Date to but excluding the
Revolving Loan Maturity Date (or such earlier date as the Total
Multicurrency Facility Revolving Loan Commitment shall have been
terminated), computed at a rate equal to 0.50% per annum on the daily
average Unutilized Multicurrency Facility Revolving Loan Commitment of
such Non-Defaulting Lender as in effect from time to time, (y) the U.S.
Borrower agrees to pay to the Administrative Agent for distribution to
each Non-Defaulting Lender with a Dollar Facility Revolving Loan
Commitment a commitment commission, in U.S. Dollars, for the period from
the Effective Date to but excluding the Revolving Loan Maturity Date (or
such earlier date as the Total Dollar Facility Revolving Loan Commitment
shall have been terminated), computed at a rate equal to 0.50% per annum
on the daily average Unutilized Dollar Facility Revolving Loan Commitment
of such Non-Defaulting Lender as in effect from time to time and (z) the
U.S. Borrower agrees to pay to the Administrative Agent for distribution
to each Non-Defaulting Lender with a U.S. Borrower Dual Currency Facility
Revolving Loan Commitment a commitment commission, in U.S. Dollars, for
the period from the First Amendment Effective Date to but excluding the
Revolving Loan Maturity Date (or such earlier date as the Total U.S.
Borrower Dual Currency Facility Revolving Loan Commitment shall have been
terminated), computed at a rate equal to 0.50% per annum on the daily
average Unutilized U.S. Borrower Dual Currency Facility Revolving Loan
Commitment of such Non-Defaulting Lender as in effect from time to time
(with all commitment commissions payable as described in this clause (a)
being herein referred to as "RL Commitment Commission"). Accrued RL
Commitment Commission shall be due and payable, in U.S. Dollars, quarterly
in arrears on each Quarterly Payment Date and on the Revolving Loan
Maturity Date or (i) in the case of RL Commitment Commission payable
pursuant to preceding clause (x), such earlier date upon which the Total
Multicurrency Facility Revolving Loan Commitment is terminated, (ii) in
the case of RL Commitment Commission payable pursuant to preceding clause
(y), such earlier date upon which the Total Dollar Facility Revolving Loan
Commitment is terminated and (iii) in the case of RL Commitment Commission
payable pursuant to preceding clause (z), such earlier date upon which the
Total U.S. Borrower Dual Currency Facility Revolving Loan Commitment is
terminated.".
60. Section 4.01 of the Credit Agreement is hereby further amended by
inserting the following new clause (i) at the end of said Section:
"(i) At the time of the consummation of a Repricing Transaction that
is consummated prior to the first anniversary of the First Amendment
Effective Date, the U.S. Borrower agrees to pay to the Administrative
Agent, for the ratable account of each Lender with outstanding Term Loans
of any Tranche subject to such Repricing Transaction (including each
Lender that withholds its consent to such Repricing Transaction and is
replaced or is removed as a Lender under Section 2.13 or 5.01(vii), as the
case may be), a fee equal to 1.0% (x) in the case of a Repricing
Transaction of the type described in clause (1) of the definition thereof,
the aggregate principal amount of all Term Loans prepaid (or converted) in
connection with such Repricing Transaction and
(y) in the case of a Repricing Transaction of the type described in clause
(2) of the definition thereof, the aggregate principal amount of all Term
Loans outstanding on such date that are subject to an effective pricing
reduction pursuant to such Repricing Transaction. The fees described above
in this Section 4.01(i) shall be due and payable upon the date of the
effectiveness of such Repricing Transaction.".
61. Section 4.02 of the Credit Agreement is hereby amended by deleting
clauses (a), (b) and (c) of said Section in their entirety and inserting the
following new clauses (a), (b) and (c) in lieu thereof:
"(a) Upon at least three Business Days' prior notice from an
Authorized Officer of Holdings to the Administrative Agent at its Notice
Office (which notice the Administrative Agent shall promptly transmit to
each of the Lenders), Holdings shall have the right, at any time or from
time to time, without premium or penalty, to terminate the Total
Unutilized Revolving Loan Commitment at such time, in whole or in part, in
aggregate minimum amounts of at least U.S.$1,000,000 in the case of
partial reductions, with the amount of each reduction pursuant to this
Section 4.02(a) to apply to reduce, on a pro rata basis (based upon the
relative amounts of the Total Multicurrency Facility Revolving Loan
Commitment, the Total U.S. Borrower Dual Currency Facility Revolving Loan
Commitment and the Total Dollar Facility Revolving Loan Commitment, in
each case as in effect before giving effect to the respective reduction),
the Total Multicurrency Facility Revolving Loan Commitment, the Total U.S.
Borrower Dual Currency Revolving Loan Commitment and the Total Dollar
Facility Revolving Loan Commitment, provided that no such reduction shall
be permitted to be made pursuant to this Section 4.02(a) if the effect
thereof is to cause either (x) the Aggregate Multicurrency Facility RL
Exposure to exceed the Total Multicurrency Facility Revolving Loan
Commitment after giving effect to the reduction thereto pursuant to this
Section 4.02(a), (y) the Aggregate Dollar Facility RL Exposure to exceed
the Total Dollar Facility Revolving Loan Commitment after giving effect to
the reduction thereto pursuant to this Section 4.02(a) or (z) the
Aggregate U.S. Borrower Dual Currency Facility RL Exposure to exceed the
Total U.S. Borrower Dual Currency Facility Revolving Loan Commitment after
giving effect to the reduction thereto pursuant to this Section 4.02(a).
Each reduction to (x) the Total Multicurrency Facility Revolving Loan
Commitment pursuant to this Section 4.02(a) shall apply to proportionately
and permanently reduce the Multicurrency Facility Revolving Loan
Commitment of each Multicurrency Facility RL Lender (based on their
respective Multicurrency Facility RL Percentages), (y) the Total Dollar
Facility Revolving Loan Commitment pursuant to this Section 4.02(a) shall
apply to proportionally and permanently reduce the Dollar Facility
Revolving Loan Commitment of each Dollar Facility RL Lender (based on
their respective Dollar Facility RL Percentages) and (z) the Total U.S.
Borrower Dual Currency Facility Revolving Loan Commitment pursuant to this
Section 4.02(a) shall apply to proportionally and permanently reduce the
U.S. Borrower Dual Currency Facility Revolving Loan Commitment of each
U.S. Borrower Dual Currency Facility RL Lender (based on their respective
U.S. Borrower Dual Currency Facility RL Percentages).
(b) In the event of certain refusals by a Lender as provided in
Sections 5.01 and 13.12(b) to consent to certain proposed changes,
waivers, discharges or terminations with respect to this Agreement which
have been approved by the Required Lenders, Holdings may, subject to the
applicable requirements of said Sections 5.01 and 13.12(b), upon five
Business Days' prior written notice to the Administrative Agent at its
Notice Office (which notice the Administrative Agent shall promptly
transmit to each of the Lenders) terminate the Multicurrency Facility
Revolving Loan Commitment, if any, the U.S. Borrower Dual Currency
Facility Revolving Loan Commitment, if any, and/or the Dollar Facility
Revolving Loan Commitment, if any, of such Lender, so long as (x) all
Loans, together with accrued and unpaid interest, Fees and all other
amounts, owing to such Lender (excluding amounts owing in respect of Loans
of any Tranche maintained by such Lender which are not being repaid
pursuant to Section 13.12(b)) are repaid concurrently with the
effectiveness of such termination (at which time Schedule I shall be
deemed modified to reflect such changed amounts) and (y) after giving
effect to such termination (and the adjustments to the Multicurrency
Facility RL Percentages, U.S. Borrower Dual Currency Facility RL
Percentages, Dollar Facility RL Percentages and/or related L/C
Participation Percentages of the remaining Lenders as contemplated below),
none of the Individual Multicurrency Facility RL Exposure, the Individual
U.S. Borrower Dual Currency Facility RL Exposure or the Individual Dollar
Facility RL Exposure of any remaining Lender shall exceed its
Multicurrency Facility Revolving Loan Commitment, U.S. Borrower Dual
Currency Facility Revolving Loan Commitment or Dollar Facility Revolving
Loan Commitment, as the case may be. After giving effect to the
termination of the Commitments of any Lender pursuant to the provisions of
this Section 4.02(b), unless the respective Lender continues to have
outstanding Term Loans or other Commitments (if any) hereunder, such
Lender shall no longer constitute a "Lender" for purposes of this
Agreement, except with respect to indemnifications under this Agreement
(including, without limitation, Sections 2.10, 2.11, 3.06, 5.04, 13.01 and
13.06), which shall survive as to such repaid Lender. In cases where the
Multicurrency Facility Revolving Loan Commitment, the U.S. Borrower Dual
Currency Facility Revolving Loan Commitment and/or the Dollar Facility
Revolving Loan Commitment of any Lender is terminated pursuant to this
Section 4.02(b), except in cases where the respective Commitments are
replaced in full, after giving effect to the termination of any such
Commitments of a given Lender pursuant to this Section 4.02(b), there
shall occur automatic adjustments (as determined by the Administrative
Agent) in the Multicurrency Facility RL Percentages, the U.S. Borrower
Dual Currency Facility RL Percentages and/or Dollar Facility RL
Percentages, as the case may be (and as a result thereof in the related
L/C Participation Percentages) of the remaining Multicurrency Facility RL
Lenders, U.S. Borrower Dual Currency Facility RL Lenders and/or Dollar
Facility RL Lenders, as the case may be, after giving effect to the
modifications to the Multicurrency Facility RL Percentages, U.S. Borrower
Dual Currency Facility RL Percentages and Dollar Facility RL Percentages
of the various remaining Lenders as a result of the termination of the
Multicurrency Facility Revolving Loan Commitment, the U.S. Borrower Dual
Currency Facility Revolving Loan Commitment and/or Dollar Facility
Revolving Loan Commitment, as the case may be, of the respective Replaced
Lender.
(c) In connection with any reduction or termination of the Total
Unutilized Revolving Loan
Commitment and/or the Multicurrency Facility Revolving Loan Commitment
and/or the U.S. Borrower Dual Currency Facility Revolving Loan Commitment
and/or the Dollar Facility Revolving Loan Commitment of any Lender
pursuant to this Section 4.02 and Section 4.03, as the case may be, each
of the U.S. Borrower and the Canadian Borrower hereby irrevocably
authorizes Holdings to take all necessary action, in the name of the U.S.
Borrower or the Canadian Borrower, as the case may be, as described in
this Section 4.02 or Section 4.03 in order to effect the reduction or
termination of the Total Unutilized Revolving Loan Commitment and/or the
Multicurrency Facility Revolving Loan Commitment and/or the U.S. Borrower
Dual Currency Facility Revolving Loan Commitment and/or the Dollar
Facility Revolving Loan Commitment of such Lender in accordance with the
provisions of this Section 4.02 or Section 4.03, as the case may be.".
62. Section 4.03(e) of the Credit Agreement is hereby amended by
inserting the text ", the U.S. Borrower Dual Currency Facility Revolving Loan
Commitment" immediately following the text "Multicurrency Facility Revolving
Loan Commitment" appearing in said Section.
63. Section 4.03(g) of the Credit Agreement is hereby amended by (i)
inserting the text ", the Total U.S. Borrower Dual Currency Facility Revolving
Loan Commitment" immediately following the text "Total Multicurrency Facility
Revolving Loan Commitment" appearing in said Section and (ii) inserting the text
", the U.S. Borrower Dual Currency Facility Revolving Loan Commitment"
immediately following the text "the Multicurrency Facility Revolving Loan
Commitment" appearing in said Section.
64. The introductory sentence of Section 5.01 of the Credit Agreement is
hereby amended by inserting the text ", U.S. Borrower Dual Currency Facility
Revolving Loans" immediately following the text "Multicurrency Facility
Revolving Loans" appearing therein.
65. Section 5.01(i) of the Credit Agreement is hereby amended by (i)
inserting the text "U.S. Borrower Dual Currency Facility Revolving Loans,"
immediately following the text "Multicurrency Facility Revolving Loans,"
appearing in said Section and (ii) deleting the text "Eurodollar Loans" each
time it appears in said Section and inserting the text "Euro Rate Loans" in lieu
thereof.
66. Section 5.01(ii) of the Credit Agreement is hereby amended by (i)
inserting the text "or Euros" immediately following the text "Canadian Dollars"
appearing in said Section, (ii) inserting the text "(x)" immediately following
the text "provided that" appearing in said Section and (iii) inserting the
following text immediately prior to the semicolon (";") at the end of said
Section:
"and (y) in the case of partial prepayments of any Borrowing of Euro
Denominated Loans, the U.S. Borrower shall use reasonable efforts to
allocate such prepayments in a manner so that Borrowings do not remain
outstanding in amounts less than the Minimum Borrowing Amount applicable
thereto (and, to the extent such Borrowings would remain outstanding in
amounts which are less than the Minimum Borrowing Amount applicable
thereto, in the case of Euro Denominated Revolving Loans, the U.S.
Borrower shall repay
any Borrowings which are less than the Minimum Borrowing Amount applicable
thereto at the end of the then current Interest Period)".
67. Section 5.01(iii) of the Credit Agreement is hereby amended by
deleting the text "Eurodollar" appearing in said Section and inserting the text
"Euro Rate" in lieu thereof.
68. Section 5.01(iv) of the Credit Agreement is hereby amended by
inserting the text ", U.S. Borrower Dual Currency Facility Revolving Loans"
immediately following the text "Multicurrency Facility Revolving Loans"
appearing in said Section.
69. Section 5.01(vi) of the Credit Agreement is hereby amended by
deleting the word "and" appearing at the end of said Section.
70. Section 5.01(vii) of the Credit Agreement is hereby amended by (i)
inserting the following text immediately prior to the text "and (C)" appearing
in said Section:
", (C) in the case of the repayment of U.S. Borrower Dual Currency
Facility Revolving Loans of any Lender pursuant to this clause (vii), the
U.S. Borrower Dual Currency Facility Revolving Loan Commitment of such
Lender is terminated concurrently with such repayment (at which time
Schedule I shall be deemed modified to reflect the changed U.S. Borrower
Dual Currency Facility Revolving Loan Commitments)"
, (ii) redesignating clause (C) of said Section as clause (D) of said Section
and (iii) deleting the period at the end of said Section and inserting the text
"; and" in lieu thereof.
71. Section 5.01 of the Credit Agreement is hereby further amended by
inserting the following new clause (viii) at the end of said Section:
"(viii) each prepayment of Term Loans of any Tranche pursuant to
this Section 5.01 made prior to the first anniversary of the First
Amendment Effective Date in connection with a Repricing Transaction shall
be subject to the payment of the fee described in Section 4.01(i).".
72. Section 5.02(a) of the Credit Agreement is hereby amended by
inserting the following new clause (iii) at the end of said Section:
"(iii) If on any date the Aggregate U.S Borrower Dual Currency
Facility RL Exposure exceeds the Total U.S Borrower Dual Currency Facility
Revolving Loan Commitment as then in effect, the U.S. Borrower shall
prepay on such date the principal of outstanding U.S Borrower Dual
Currency Facility Revolving Loans, in an amount (in the case of payments
made with respect to Euro Denominated Revolving Loans, taking the U.S.
Dollar Equivalent of the amounts paid in Euros in which payments on such
Loans are owing) equal to such excess.".
73. Section 5.02(h) of the Credit Agreement is hereby amended by
deleting said Section in its entirety and inserting the following new Section
5.02(h) in lieu thereof:
"(h) With respect to each repayment of Loans required by this
Section 5.02, the respective Borrower may (subject to the requirements of
preceding clause (g)) designate the Types of Loans of the respective
Tranche which are to be repaid and, in the case of Euro Rate Loans (other
than Swingline Loans), the specific Borrowing or Borrowings of the
respective Tranche pursuant to which made, provided that: (i) in the case
of repayments of Euro Rate Loans, repayments of such Loans pursuant to
this Section 5.02 on any day other than the last day of an Interest Period
applicable thereto shall be accompanied by payment by the respective
Borrower of all amounts owing in connection therewith pursuant to Section
2.11; (ii) if any repayment of Euro Rate Loans made pursuant to a single
Borrowing shall reduce the outstanding Euro Rate Loans made pursuant to
such Borrowing to an amount less than the Minimum Borrowing Amount
applicable to the respective Euro Rate Loans, such Borrowing (x) in the
case of Eurodollar Loans, shall be converted at the end of the then
current Interest Period into a Borrowing of Base Rate Loans, (y) in the
case of Euro Denominated Revolving Loans, shall be repaid in full at the
end of the then current Interest Period and (z) in the case of Euro
Denominated Incremental Term Loans, shall be realigned as promptly as
practicable with the Interest Period applicable to one or more other
Borrowings of Euro Denominated Incremental Term Loans (such realignment to
be coordinated by the Administrative Agent with the cooperation of the
U.S. Borrower); and (iii) each repayment of any Tranche of Loans made
pursuant to a Borrowing shall be applied pro rata among such Tranche of
Loans. In the absence of a designation by the respective Borrower as
described in the preceding sentence, the Administrative Agent shall,
subject to the above, make such designation in its sole discretion with a
view, but no obligation, to minimize breakage costs owing under Section
2.11.".
74. Section 5.02(j) of the Credit Agreement is hereby amended by
inserting the text ", Euro Equivalent" immediately following the text "U.S.
Dollar Equivalent" appearing in said Section.
75. Section 5.03 of the Credit Agreement is hereby amended by (i)
deleting the text "clause (y) and" appearing in clause (x) of the first sentence
of said Section and inserting the text "clauses (y) and (z)," in lieu thereof
and (ii) inserting the following text immediately prior to the period (".") at
the end of the first sentence of said Section:
"and (z) subject to Section 2.14, Euros in immediately available
funds at the Payment Office of the Administrative Agent, if such
payment is made in respect of (i) principal of or interest on Euro
Denominated Loans or (ii) any increased costs, indemnities or other
amounts owing with respect to Euro Denominated Loans (or Commitments
relating thereto) at any time prior to the occurrence of a Sharing
Event".
76. Section 8.04 of the Credit Agreement is hereby amended by inserting
the following new clauses (f), (g) and (h) at the end of said Section:
"(f) The U.S. Borrower has furnished prior to the First Amendment
Effective Date to the Agents and to the Lenders its pro forma consolidated
balance sheet as of December 31, 2005, prepared giving effect to the ITT
Fluid Business Acquisition and the
financing thereof as if the same had occurred on such date. Such pro forma
consolidated balance sheet (i) has been prepared in good faith based on
the same assumptions used to prepare the pro forma financial statements
included in the New Information Memorandum (which assumptions are believed
by the U.S. Borrower to be reasonable at the time made available to the
Lenders and as of the First Amendment Effective Date), (ii) subject to the
assumptions and qualifications described in the New Information
Memorandum, accurately reflects all adjustments necessary to give effect
to the ITT Fluid Business Acquisition and the financing thereof and (iii)
presents fairly, in all material respects, the pro forma financial
position of the U.S. Borrower and the Subsidiaries as of December 31, 2005
as if the ITT Fluid Business Acquisition and the financing thereof had
occurred on such date.
(g) The U.S. Borrower has furnished prior to the First Amendment
Effective Date to the Agents and to the Lenders in the New Information
Memorandum financial projections of the U.S. Borrower and its Subsidiaries
(after giving effect to the ITT Fluid Business Acquisition and the related
financing thereof) for the six Fiscal Years ended after the First
Amendment Effective Date (the "Updated Projections"). The Updated
Projections have been prepared on a basis consistent with the financial
statements referred to in Section 8.04(a) and are based on good faith
estimates and assumptions made by the management of the U.S. Borrower.
(h) Except as disclosed in the New Information Memorandum and the
financial statements included therein (and the notes thereto), after
giving effect to the ITT Fluid Business Acquisition and the financing
thereof, to the knowledge of any Credit Agreement Party, the ITT Fluid
Business does not have, as of the First Amendment Effective Date, any
material direct or contingent liabilities."
77. Section 9.01(c) of the Credit Agreement is hereby amended by
inserting the text "and (iii) setting forth (in reasonable detail) the type and
amount of Restructuring Charges incurred during each Fiscal Quarter included in
the period of four consecutive Fiscal Quarters then last ended and added back to
Consolidated EBITDA for such period pursuant to clause (xi) of the first
sentence of the definition of "Consolidated EBITDA" immediately prior to the
semi-colon at the end of said Section.
78. Section 9 of the Credit Agreement is hereby further amended by
inserting the following new Section 9.15 after Section 9.14 appearing in said
Section:
"9.15 Mortgages; Title Insurance; etc.. (a) Within 60 days following
the First Amendment Effective Date, the U.S. Borrower shall have
delivered, or caused to be delivered, to the Collateral Agent:
(i) fully executed counterparts of Mortgages in form and
substance reasonably satisfactory to the Collateral Agent (with such
changes thereto as shall be advisable under the law of the
jurisdiction in which such Mortgage is being recorded), which
Mortgages shall cover such of the Real Property owned by the ITT Fluid
Business (after giving effect to the Transaction) as are designated on
Part A of Schedule IV as an "Additional Mortgaged Property", together
with evidence that
counterparts of the Mortgages have been delivered to the title
insurance company insuring the lien of such Mortgage for recording in
all places to the extent necessary or, in the reasonable opinion of
the Collateral Agent, advisable to effectively create a valid and
enforceable first priority mortgage lien on each Mortgaged Property in
favor of the Collateral Agent (or such other trustee as may be
required or desired under local law) for the benefit of the Secured
Creditors, subject to Permitted Encumbrances of the type described in
clauses (a), (b) and (f) of the definition thereof and other matters
of title shown on the title report prepared by, or provided to, the
applicable title company and reasonably acceptable to the
Administrative Agent;
(ii) UCC-1 Fixture Filings (or the equivalent under applicable
laws) covering each Mortgaged Property;
(iii) Mortgage Policies on the Mortgaged Properties issued by
such title insurers reasonably satisfactory to the Collateral Agent in
amounts reasonably satisfactory to the Agents and the Required Lenders
insuring the Collateral Agent that the Mortgages on such Mortgaged
Properties are valid and enforceable first priority mortgage liens on
the respective Mortgaged Properties, free and clear of all defects and
encumbrances except the Permitted Encumbrances of the type described
in clauses (a), (b) and (f) of the definition thereof and other
matters of title shown on the title report prepared by, or provided
to, the applicable title company and reasonably acceptable to the
Administrative Agent and such Mortgage Policies shall otherwise be in
form and substance reasonably satisfactory to the Agents and the
Required Lenders and shall include, if available, an endorsement for
future advances or revolving credit (to the extent available in the
jurisdiction) under this Agreement and the Notes, and, if available,
shall not include an exception for mechanics' liens or creditors'
rights, and shall provide for affirmative insurance and such
reinsurance at ordinary rates as the Collateral Agent may reasonably
request;
(iv) flood certificates covering each Mortgaged Property
located in the United States or any State thereof in form and
substance acceptable to the Administrative Agent, certified to the
Collateral Agent in its capacity as such and certifying whether or not
each such Mortgaged Property is located in a special flood hazard zone
by reference to the applicable FEMA map; and
(v) fully executed counterparts of amendments, in form and
substance satisfactory to the Administrative Agent, to each of the
Mortgages covering a Mortgaged Property located in the United States
or any State thereof, together with evidence that counterparts of each
such amendment have been delivered to the title company insuring the
Lien on such Mortgages for recording in all places to the extent
necessary or desirable, in the judgment of the Collateral Agent,
effectively to maintain a valid and enforceable first priority
mortgage lien on such Mortgaged Properties in favor of the Collateral
Agent for the benefit of the Secured Creditors securing all of the
Obligations (including the full principal amount of all U.S. Borrower
Incremental Term Loans incurred on the First Amendment Effective
Date).".
79. Section 10.01 of the Credit Agreement is hereby amended by deleting
clause (iv) of said Section in its entirety and inserting the following new
clause (iv) in lieu thereof
"(iv) Updated Third Party Scheduled Existing Indebtedness existing
on the First Amendment Effective Date and set forth in Part C of Schedule
V (for purposes of this clause (iv), treating unutilized amounts of
overdraft facilities and lines of credit specifically identified on said
Part C as outstanding Indebtedness of a like principal amount, even though
same remain undrawn on such date) and extensions, renewals and
replacements of any such Indebtedness, provided that such extending,
renewal or replacement Indebtedness (A) shall not add guarantors, obligors
or security from that which applied to the Indebtedness being extended,
renewed or replaced, (B) shall not be in a principal amount that exceeds
the principal amount of the Indebtedness being extended, renewed or
replaced (plus accrued interest and premium thereon), (C) shall not have
an earlier maturity date or a decreased Weighted Average Life to Maturity
than the Indebtedness being extended, renewed or replaced and (D) shall be
subordinated to the Obligations on the same terms (or, from the
perspective of the Lenders, better terms), if any, as the Indebtedness
being extended, renewed or replaced;".
80. Section 10.01(xiii) of the Credit Agreement is hereby amended by
deleting clause (A) of the proviso appearing in said Section and inserting the
following new clause (A) in lieu thereof:
"(A) at no time shall the sum of (x) the aggregate principal amount of
Additional Senior Subordinated Notes issued pursuant this Section
10.01(a)(xiii) and outstanding at such time and (y) the aggregate amount
of all Incremental Term Loan Commitments provided pursuant to Section 2.15
on and after the First Amendment Effective Date (exclusive of
U.S.$215,000,000 of Incremental Term Loan Commitments made available on
such date and taking the U.S. Dollar Equivalent of any Incremental Term
Loan Commitments denominated in Canadian Dollars or Euros), exceed
U.S.$300,000,000".
81. Section 10.03(c) of the Credit Agreement is hereby amended by
inserting the text ", Updated Third-Party Scheduled Existing Indebtedness in the
form of guaranties identified on Part C of Schedule V" immediately after the
text "other than liabilities under the Credit Documents" appearing in said
Section.
82. Section 10.04(a) of the Credit Agreement is hereby amended by (i)
deleting the text "Initial Borrowing Date" appearing in said Section and
inserting the text "First Amendment Effective Date" in lieu thereof and (ii)
deleting the amount "U.S.$400,000,000" appearing in said Section and inserting
the amount "U.S.$300,000,000 in lieu thereof.
83. Section 10.04 of the Credit Agreement is hereby amended by deleting
clause (p) of said Section in its entirety and inserting the following new
clause (p) in lieu thereof:
"(p) Investments by the U.S. Borrower or any of its Subsidiaries
(i) in Subsidiaries that are not Credit Parties (to the extent not
otherwise permitted under clauses (c), (d) or (e) of this Section 10.04),
(ii) in Permitted Joint Ventures and (iii) in respect of Foreign Permitted
Acquisitions (the purchase price with respect to which shall
be calculated as described in the definition of the term "Permitted
Acquisition"), in an amount, as valued at cost at the time each such
Investment is made (including all commitments for future Investments), not
exceeding, when aggregated with the aggregate amount of Capital
Expenditures incurred in reliance on Section 10.14(d), U.S.$60,000,000 in
the aggregate for all such Investments made from and after the First
Amendment Effective Date plus an amount equal to any returns of capital
actually received in cash in respect of any such Investments made after
the First Amendment Effective Date (which amount shall not exceed the
amount of such Investment at the time such Investment was made);".
84. Section 10.08(b) of the Credit Agreement is hereby amended by (i)
deleting the word "and" at the end of clause (ii) of said Section, (ii) deleting
the period (".") at the end of clause (iii) of said Section and inserting the
text "; and" in lieu thereof and (ii) inserting the following new clause (iv) at
the end of said Section:
"(iv) The U.S. Borrower may from time to time repurchase outstanding
Senior Notes and/or Senior Subordinated Notes on the open market for cash,
so long as (1) no Default or Event of Default then exists or would exist
immediately after giving effect to the respective repurchase, (2) the
aggregate amount of cash used to repurchase Senior Notes and Senior
Subordinated Notes (and pay other amounts owing in connection therewith)
pursuant to this clause (iv) does not exceed $15.0 million and (3) any
Senior Notes or Senior Subordinated Notes so purchased are cancelled
promptly following the repurchase thereof.".
85. Section 10.14 of the Credit Agreement is hereby amended by deleting
clause (d) of said Section in its entirety and inserting the following new
clause (d) in lieu thereof:
"(d) In addition to the Capital Expenditures permitted pursuant to
the preceding paragraphs (a) through (c), Foreign Subsidiaries may make
additional Capital Expenditures as part of a strategic acquisition or
strategic development of assets which, together with Investments made
under Section 10.04(p), do not exceed U.S.$60,000,000 in the aggregate for
all such Capital Expenditures made since the First Amendment Effective
Date plus an amount equal to any returns of capital actually received in
cash in respect of any Investments made under Section 10.04(p) after the
First Amendment Effective Date (which amount shall not exceed the amount
of such investment at the time such investment was made).".
86. Section 13.04(b) of the Credit Agreement is hereby amended by
inserting the text "or, in the case of Commitments and Term Loans denominated in
Euros, (euro)1,000,000" immediately following the text "Cdn. $1,000,000"
appearing in the first sentence of said Section.
87. Section 13.22(a) of the Credit Agreement is hereby amended by
inserting the text ", Euro Equivalent" immediately following the text "Canadian
Dollar Equivalent" appearing in the second sentence of said Section.
88. Section 13.22(c) of the Credit Agreement is hereby amended by
inserting the text ", Euro Equivalent" immediately following the text "U.S.
Dollar Equivalent" appearing in said Section.
89. The Credit Agreement is hereby further modified by supplementing
Schedule I to the Credit Agreement with the additional information set forth on
Annex I hereto.
90. The Credit Agreement is hereby further modified by supplementing
Part A of Schedule IV to the Credit Agreement with the additional information
set forth on Annex II hereto.
91. The Credit Agreement is hereby further modified by adding new Part C
to Schedule V to the Credit Agreement in the form of new Part C attached hereto.
92. Exhibit A-1 to the Credit Agreement is hereby amended by deleting
same in its entirety and inserting in lieu thereof a new Exhibit A-1 in the form
of Exhibit A-1 attached hereto.
93. Exhibit A-2 to the Credit Agreement is hereby amended by deleting
same in its entirety and inserting in lieu thereof a new Exhibit A-2 in the form
of Exhibit A-2 attached hereto.
94. Exhibit B-4 to the Credit Agreement is hereby amended by deleting
same in its entirety and inserting in lieu thereof a new Exhibit B-4 in the form
of Exhibit B-4 attached hereto.
95. The Credit Agreement is hereby further amended by adding Exhibit B-9
thereto in the form of Exhibit B-9 attached hereto.
96. Exhibit K to the Credit Agreement is hereby amended by deleting same
in its entirety and inserting in lieu thereof a new Exhibit K in the form of
Exhibit K attached hereto.
97. Exhibit O to the Credit Agreement is hereby amended by deleting same
in its entirety and inserting in lieu thereof a new Exhibit O in the form of
Exhibit O attached hereto.
98. Notwithstanding anything to the contrary in the Credit Agreement,
the Intercompany Subordination Agreement, the U.S. Pledge Agreement or this
Amendment:
(i) none of the following Foreign Subsidiaries of Holdings shall
be required to become a party to the Intercompany Subordination Agreement
until the date occurring 30 days after the First Amendment Effective Date
(the "Specified Delivery Date"):
A. ITT Fluid Handling Systems Czech Republic s.r.o;
B. ITT Automotive Fluid Handling Systems, S.A. de C.V.;
C. ITT Fluid Handling Systems Australia, Pty, Ltd.; and
D. ITT Automotive-Fluid Handling Systems (Suzhou) Co., Ltd.; and
(ii) none of the New Domestic Subsidiaries shall be required to
pledge and deliver (endorsed to the Pledgee or endorsed in blank) stock
certificates of the following Foreign Subsidiaries of Holdings until the
Specified Delivery Date:
A. ITT Fluid Handling Systems Czech Republic s.r.o;
B. ITT Automotive Fluid Handling Systems, S.A. de C.V.;
C. Fluid Handling Systems Management GmbH;
D. ITT Fluid Handling Systems Australia, Pty, Ltd.;
E. ITT Automotive-Fluid Handling Systems (Suzhou) Co., Ltd.; and
All conditions precedent and representations contained in the Credit Agreement
and the other Credit Documents shall be deemed modified to the extent necessary
to effect the foregoing (and to permit the taking of the actions described above
within the time periods required above, rather than as elsewhere provided in the
Credit Documents), provided that (x) to the extent any representation and
warranty would not be true because the foregoing actions were not taken on the
First Amendment Effective Date, the respective representation and warranty shall
be required to be true and correct in all material respects at the time the
respective action is taken (or was required to be taken) in accordance with the
foregoing provisions of this Section 98 and (y) all representations and
warranties relating to the U.S. Pledge Agreement shall be required to be true
immediately after the actions required to be taken by Section 98 have been taken
(or were required to be taken). The occurrence of each Credit Event shall
constitute a representation, warranty and covenant by the Credit Agreement
Parties to each of the Lenders that the actions required pursuant to this
Section 98 will be, or have been, taken within the relevant time periods
referred to in this Section 98 and that, at such time, all representations and
warranties contained in this Agreement and the other Credit Documents shall then
be true and correct in all material respects without any modification pursuant
to this Section 98, and the parties hereto acknowledge and agree that the
failure to take any of the actions required above, within the relevant time
periods required above, shall give rise to an immediate Event of Default
pursuant to the Credit Agreement..
B. Miscellaneous Provisions.
1. In order to induce the Lenders to enter into this Amendment, each of
Holdings and the Borrowers hereby represents and warrants to each of the Lenders
that:
(i) all of the representations and warranties contained in the
Credit Agreement are true and correct in all material respects on and as
of the First Amendment Effective Date, both before and after giving effect
to this Amendment, with the same effect as though such representations and
warranties had been made on and as of the First Amendment Effective Date
(unless such representations and warranties relate to a specific earlier
date, in which case such representations and warranties shall be true and
correct as of such earlier date); and
(ii) there exists no Default or Event of Default on the First
Amendment Effective Date, both before and after giving effect to this
Amendment.
2. This Amendment is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Credit
Agreement.
3. This Amendment may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts executed by all the parties hereto shall be lodged with the U.S.
Borrower and the Administrative Agent.
4. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE
STATE OF NEW YORK.
5. This Amendment shall become effective on the date (the "First
Amendment Effective Date") when each of the following conditions shall have been
satisfied:
(i) the Administrative Agent shall have received from each of the
U.S. Borrower and each Domestic Subsidiary acquired in connection with the
ITT Fluid Business Acquisition (the "New Domestic Subsidiaries"),
certified copies of resolutions of the Board of Directors of each such
Person with respect to the matters set forth in this Amendment and such
resolutions shall be satisfactory to the Administrative Agent;
(ii) the Administrative Agent shall have received from each New
Domestic Subsidiary a certificate, dated the First Amendment Effective
Date, signed by the president or any vice president of such person, and
attested to by the secretary or any assistant secretary of such Person,
substantially in the form of Exhibit F to the Credit Agreement with
appropriate insertions, together with copies of the certificate of
incorporation, by-laws, operating agreement or other equivalent
organizational documents of such Person and the resolutions of such Person
referred to in such certificate, and the foregoing shall be reasonably
satisfactory to the Agents;
(iii) all Company and legal proceedings and all material
instruments and agreements in connection with the transactions
contemplated by this Amendment and the other ITT Fluid Business
Acquisition Documents shall be reasonably satisfactory in form and
substance to the Agents, and the Administrative Agent shall have received
all information and copies of all documents and papers, including records
of Company proceedings, governmental approvals, good standing certificates
and bring-down telegrams or facsimiles, if any, which the Administrative
Agent may have reasonably requested in connection therewith, such
documents and papers where appropriate to be certified by proper Company
or governmental authorities;
(iv) the Administrative Agent shall have received from each of (i)
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, special counsel to the Credit Parties, and
(ii) Xxxxxxxx, Loop & Xxxxxxxx, LLP, special Ohio counsel to the U.S.
Borrower, an opinion addressed to the Administrative Agent, the Collateral
Agent and each of the Lenders and dated the First Amendment Effective Date
in form and substance reasonably satisfactory to the Agents, and covering
such matters incident to this Amendment and the transactions contemplated
herein as the Agents may reasonably request (including an opinion as to no
conflict with the Senior Subordinated Notes Indenture and the Senior Notes
Indenture and the perfection of security interests in the assets of the
ITT Fluid Business granted pursuant to the Security Documents);
(v) the Administrative Agent shall have received a solvency
certificate from the Chief Financial Officer of the U.S. Borrower, dated
the First Amendment Effective Date, in form and substance satisfactory to
the Administrative Agent;
(vi) concurrently with the consummation of the ITT Fluid Business
Acquisition, (x) the U.S. Borrower shall have incurred U.S. Borrower
Incremental Term Loans pursuant to Section 2.01(d) of the Credit Agreement
(as amended hereby) in an aggregate principal amount of (x) in the case of
Loans denominated in U.S. Dollars, $190,000,000 and (y) in the case of
such Loans denominated in Euros, (euro)20,725,000, (y) all of the
requirements contained in Section 2.15 of the Credit Agreement (as amended
hereby) and the definition of "Incremental Term Loan Requirements"
applicable to the provision, and incurrence of, U.S. Borrower Incremental
Term Loans shall have been satisfied (including, without limitation, the
delivery by the U.S. Borrower of the officer's certificate and required
financial calculations referred to in clause (x) of the definition of
"Incremental Term Loan Requirements") and (z) all of the conditions to a
borrowing of U.S. Borrower Incremental Term Loans in Section 7 of the
Credit Agreement shall have been satisfied;
(vii) the Administrative Agent shall have received reasonably
satisfactory evidence that the sum of (x) Total Indebtedness of the U.S.
Borrower and its Subsidiaries minus (y) the aggregate amount of cash and
Cash Equivalents held by the Borrowers and the Guarantors (as shown on the
consolidated balance sheet of the U.S. Borrower) over which no Person
(other than the Collateral Agent) shall have a Lien, in each case,
determined on a pro forma basis after giving effect to the Transaction)
does not exceed 4.30 multiplied by Consolidated EBITDA of the U.S.
Borrower and its Subsidiaries (including the ITT Fluid Businesses),
determined on a Pro Forma Basis (but as if the Reference Period were the
period hereinafter described), for the twelve month period ending on the
last day of the month ending no more than 60 days prior to the First
Amendment Effective Date;
(viii) the Administrative Agent shall have received for the
account of each relevant Lender the appropriate Incremental Term Note(s)
for such Lender, in the amount, maturity and as otherwise provided in
Section 2.05 of the Credit Agreement (as amended hereby);
(ix) the Administrative Agent shall have received for the account
of each relevant Lender the appropriate U.S. Borrower Dual Currency
Revolving Loan Note for such Lender, in the amount, maturity and as
otherwise provided in Section 2.05 of the Credit Agreement (as amended
hereby);
(x) the Borrower shall have paid to the Agents and the Lenders
all fees, costs and expenses (including, without limitation, legal fees
and expenses) payable to the
Agents and the Lenders to the extent then due and for which invoices have
been submitted;
(xi) the Administrative Agent shall have received a certificate,
dated the First Amendment Effective Date and signed on behalf of the U.S.
Borrower by an appropriate officer of the U.S. Borrower, stating all of
the conditions in clauses (i) through (x), inclusive, above, clauses (i)
through (v), inclusive of Section 1 of Part A of this Amendment and
Section 7 of the Credit Agreement have been satisfied on such date; and
(xii) each U.S. Credit Party, the Canadian Borrower, the Lenders
constituting the Required Lenders, each U.S. Borrower Dual Currency
Facility RL Lender (as defined in the Credit Agreement as amended hereby)
and each Lender making Incremental Term Loans on the First Amendment
Effective Date shall have signed a counterpart hereof (whether the same or
different counterparts) and shall have delivered (including by way of
facsimile transmission) the same to White & Case LLP, 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, XX 00000 Attention: Xxxxxxxx Mon (facsimile number
212-354-8113).
Unless the Administrative Agent has received actual notice from any Lender that
the conditions contained above have not been met, upon the satisfaction of the
condition described in clause (xii) of the immediately preceding sentence and
upon the Administrative Agent's good faith determination that the other
conditions described above have been met, the First Amendment Effective Date
shall be deemed to have occurred, regardless of any subsequent determination
that one or more of the conditions thereto had not been met (although the
occurrence of the First Amendment Effective Date shall not release any Credit
Party from any liability for failure to satisfy one or more of the applicable
conditions specified above).
6. So long as the First Amendment Effective Date occurs, the U.S.
Borrower and/or the Canadian Borrower shall pay to each Lender which has
executed and delivered in accordance herewith a counterpart hereof on or prior
to 12:00 Noon (New York time) on February 2, 2006, a consent fee equal to 0.125%
of the sum of (x) its Revolving Loan Commitment as in effect on the First
Amendment Effective Date and immediately prior to giving effect to this
Amendment and (y) the aggregate principal amount of Term Loans outstanding on
the First Amendment Effective Date (prior to giving effect to any incurrence of
Incremental Term Loans on such date and immediately prior to giving effect to
this Amendment). All fees payable pursuant to the immediately preceding sentence
shall be paid to the Administrative Agent within one Business Day after the
First Amendment Effective Date, which fees shall be distributed by the
Administrative Agent to the relevant Lenders in the amounts specified in the
immediately preceding sentence.
7. By executing and delivering a copy hereof, each U.S. Credit Party
hereby agrees that all Loans (including, without limitation, the Incremental
Term Loans incurred on the First Amendment Effective Date and all U.S. Borrower
Dual Currency Facility Revolving Loans incurred from time to time on or after
the First Amendment Effective Date) shall be fully guaranteed pursuant to the
various Guaranties (other than the Canadian Subsidiaries Guaranty) in accordance
with the terms and provisions thereof and shall be fully secured pursuant to the
U.S. Security Documents.
8. From and after the First Amendment Effective Date, all references
in the Credit Agreement and each of the other Credit Documents to the Credit
Agreement shall be deemed to be references to the Credit Agreement, as modified
hereby on the First Amendment Effective Date.
* * *
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly
executed and delivered as of the date first above written.
XXXXXX-STANDARD HOLDINGS, INC.
(f/k/a CSA Acquisition Corp.)
By:_____________________________________
Name:
Title:
XXXXXX-STANDARD AUTOMOTIVE INC.
By:_____________________________________
Name:
Title:
XXXXXX-STANDARD AUTOMOTIVE
CANADA LIMITED
By:_____________________________________
Name:
Title:
Each of the undersigned, each being a U.S. Subsidiary Guarantor under, and
as defined in, the Credit Agreement referenced in the foregoing First Amendment,
hereby consents to the entering into of the First Amendment and agrees to the
provisions thereof (including, without limitation, Sections 6 and 7 of Part B
thereof).
XXXXXX-STANDARD AUTOMOTIVE FLUID
SYSTEMS MEXICO HOLDING LLC
By: XXXXXX-STANDARD AUTOMOTIVE INC.
as Sole Member
By:_____________________________________
Name:
Title:
XXXXXX-STANDARD AUTOMOTIVE NC L.L.C.
By: XXXXXX-STANDARD AUTOMOTIVE INC.,
as Sole Member
By:_____________________________________
Name:
Title:
XXXXXX-STANDARD AUTOMOTIVE OH, LLC
By: XXXXXX-STANDARD AUTOMOTIVE INC.
as Sole Member
By:_____________________________________
Name:
Title:
CSA SERVICES INC.,
By:_____________________________________
Name:
Title:
XXXXX HOLDING COMPANY
By:_____________________________________
Name:
Title:
NORTH AMERICAN RUBBER, INCORPORATED
By:_____________________________________
Name:
Title:
STANTECH, INC.
By:_____________________________________
Name:
Title:
STERLING INVESTMENTS COMPANY
By:_____________________________________
Name:
Title:
WESTBORN SERVICE CENTER, INC.
By:_____________________________________
Name:
Title:
DEUTSCHE BANK TRUST COMPANY AMERICAS,
Individually and as Administrative Agent
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
DEUTSCHE BANK SECURITIES INC.,
as Joint Lead Arranger
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Lender
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
XXXXXX COMMERCIAL PAPER INC.,
Individually and as Syndication Agent
By:_____________________________________
Name:
Title:
XXXXXX BROTHERS INC.,
Individually and as and Joint Lead Arranger
By:_____________________________________
Name:
Title:
XXXXXXX SACHS CREDIT PARTNERS, L.P.,
Individually and as Co-Documentation Agent
By:_____________________________________
Name:
Title:
UBS SECURITIES LLC,
as Co-Documentation Agent
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
UBS LOAN FINANCE LLC,
as a Lender
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA,
Individually and as Co-Documentation Agent
By:_____________________________________
Name:
Title:
DEUTSCHE BANK AG, CANADA BRANCH,
as Lender
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
SIGNATURE PAGE TO THE FIRST AMENDMENT,
DATED AS OF FEBRUARY 1, 2006, TO THE CREDIT
AGREEMENT, DATED AS OF DECEMBER 23, 2004,
AMONG XXXXXX-STANDARD AUTOMOTIVE INC.,
XXXXXX-STANDARD AUTOMOTIVE CANADA LIMITED,
THE LENDERS FROM TIME TO TIME PARTY THERETO
AND DEUTSCHE BANK TRUST COMPANY AMERICAS AS
ADMINISTRATIVE AGENT
NAME OF INSTITUTION
________________________________________
By:_____________________________________
Name:
Title:
ANNEX I
Lender Convertible Portion
------ -------------------
Deutsche Bank AG New York Branch U.S.$6,000,000
Xxxxxx Commercial Paper Inc. U.S.$5,000,000
UBS Loan Finance LLC U.S.$5,000,000
PNC Bank, National Association U.S.$3,000,000
The Bank of Nova Scotia U.S.$3,000,000
LaSalle Bank Midwest National Association U.S.$3,000,000
Total: U.S.$25,000,000
ANNEX II
Schedule V
SCHEDULED EXISTING INDEBTEDNESS
(Section 10.01(a)(iv))*
(1) PART C -- UPDATED THIRD PARTY SCHEDULED EXISTING
INDEBTEDNESS
I. Debt Obligations of Foreign Subsidiaries
1. Multi-Option Facility, Bank Guarantee Facility, Leasing Facility and
Purchasecard Business Card Facility, dated as of June 28, 2004, by and
between Xxxxxx-Standard Automotive (Australia) Pty. Ltd. and National
Australia Bank Limited in an aggregate principal amount of A$6,400,000.
2. Loan Agreement, dated as of November 28, 1997, by and between Xxx Xxxxx
Standard, Inc. (n.k.a. Xxxxxx-Standard Automotive Korea, Inc.) and
Industrial Bank of Korea in an aggregate principal amount of approximately
KRW 185 million outstanding on November 30, 2004.
3. Loan Agreement, dated as of April 27, 1999, by and between Xxx Xxxxx
Standard, Inc. (n.k.a. Xxxxxx-Standard Automotive Korea, Inc.) and
Development Bank of Korea in an aggregate principal amount of
approximately KRW 905 million outstanding on November 30, 2004.
4. Demand Operating Credit Facility, dated as of June 6, 2003, by and between
Xxxxxx-Standard Automotive (Canada) Limited and The Bank of Nova Scotia in
an aggregate principal amount of up to $2,000,000.
5. Line of credit commitment of EUR 500,000 by and between Xxxxxx-Standard
Automotive France S.A.S. and Natexis Banques Populaires (oral agreement).
6. Line of credit commitments of up to $10,000,000 by and among
Xxxxxx-Standard Brazil Industria e Comercio Ltda., Itatiaia Standard
Industrial Ltda., Xxxxx Fluid Systems Ltda. and BankBoston, N.A. (oral
agreement).
7. Loan Agreement, dated as of September 22, 2003, by and between KDB and
Xxxxxx-Standard Automotive Korea, Inc. in an aggregate principal amount of
approximately KRW 850 million outstanding on November 30, 2004.
8. Credit Transaction Agreement for bank overdraft facility, dated as of June
25, 2001, by and between Xxxxxx-Standard Automotive Korea, Inc. and
Industrial Bank of Korea, as amended by that certain Amendment and
Supplemental Agreement to Transaction.
________________
* Certain items marked below are not scheduled for purposes of Section
10.01(a)(iv).
ANNEX II
Page 2
Conditions dated as of July 5, 2004 in an aggregate principal amount of up
to KRW 100 million.
9. Credit Transaction Agreement for note receivables facility, dated as of
September 2, 2002, by and between Industrial Bank of Korea and Xxx Xxxxx
Standard Inc. (n.k.a. Xxxxxx-Standard Automotive Korea, Inc.) in an
aggregate principal amount of up to KRW 1 billion.
10. Credit Transaction Agreement for bank overdraft and note receivables
facilities, dated as of November 24, 2003, by and between Xxxxxx-Standard
Automotive Korea, Inc. and Korea Exchange Bank in an aggregate principal
amount of up to KRW 2.8 billion.
11. Credit Transaction Agreement for note receivables facility, dated as of
August 30, 2002, by and between Woori Bank and Xxxxxx-Standard Automotive
Korea, Inc., as amended by that certain Supplemental Agreement for Credit
Transaction dated as of August 30, 2004 in an aggregate principal amount
of up to KRW 2 billion.
12. Credit Transaction Agreement for note receivables facility, dated as of
September 2, 2004, by and between Woori Bank and Xxxxxx-Standard
Automotive Korea, Inc. in an aggregate principal amount of up to KRW 3
billion.
13. Deed of Indemnity and Guarantee, dated as of September 27, 2001, among
Xxxxxx-Standard Automotive (Australia) Pty. Ltd., Xxxxxx-Standard
Automotive Canada Limited and American Re-Insurance Company.
14. Credit Agreement, dated July 1, 2003, between Nishkawa Standard Company
and the Bank of Tokyo-Mitsubishi, LTD in an aggregate principal amount of
$10,000,000.
15. Multi-Option Credit Commitment, dated August 1, 2003, by and between
Xxxxxx-Standard Automotive (Australia) Pty. Ltd. and National Australia
Bank Limited in an aggregate principal amount of A$6,400,000.
16. Letter Agreement, dated December 18, 2005, regarding uncommitted Overdraft
Facility in an aggregate amount of GBP500,000, between Xxxxxx-Standard
Automotive UK Fluid Systems Limited ("Fluid Systems") and ABN AMRO Bank
N.V. ("ABN").
17. Letter Agreement, dated December 18, 2005, regarding uncommitted Overdraft
Facility in an aggregate amount of GBP1,000,000 ,between Xxxxxx-Standard
Automotive UK Sealing Limited ("Sealing") and ABN.
18. Letter Agreement, dated December 18, 2005, regarding an uncommitted
Guarantee Issuance Facility to provide guarantees to BACS in the aggregate
amount of GBP800,000, between Fluid Systems and ABN.
19. Letter Agreement, dated December 18, 2005, regarding Guarantee Issuance
Facility to provide guarantees to BACS in an aggregate amount of
GBP2,550,000, between Sealing and ABN.
ANNEX II
Page 3
20. Letter Agreement, dated December 18, 2005, regarding an uncommitted Multi
Guarantee Issuance Facility to provide guarantees, bid bonds, performance
bonds and standby LCs in an aggregate amount of USD 4,5000,000, among
Fluid Systems, Xxxxxx-Standard Automotive (Australia ) Pty Ltd and ABN.
II. Guarantees
1. Guarantees by CSA Acquisition Corp of Unfunded Participation Agreements or
Allocation Agreements of LaSalle Bank Corporation supporting the
obligations of Fluid Systems, Sealing and CSA Australia under the
uncommitted overdraft and guarantee facilities described in A.I. 18
through 22 above.
2. Guarantee by Xxxxxx-Standard Automotive Canada Limited of the obligations
of Xxxxxx-Standard Automotive (Australia) Pty. Ltd. under the Deed of
Indemnity and Guarantee, dated as of September 27, 2001, among
Xxxxxx-Standard Automotive (Australia) Pty. Ltd., Xxxxxx-Standard
Automotive Canada Limited and American Re-Insurance Company.
3. Guarantee by Xxxxxx-Standard Automotive Inc. of the obligations of
Xxxxxx-Standard Automotive Canada Limited, Xxxxxx-Standard Automotive
France S.A.S., Xxxxxx-Standard Automotive (Deutschland) GmbH,
Xxxxxx-Standard Automotive (Australia) Pty. Ltd., Xxxxxx-Standard
Autmotive Polska z. Ograniczona, Xxxxxx-Standard Automotive Espana, S.A.,
Xxxxxx-Standard Automotive Ceska Republika s.r.o., Xxxxxx-Standard
Automotive UK Fluid Systems Ltd., Xxxxxx-Standard Automotive UL Sealing
Ltd., Xxxxxx-Standard Automotive Sealing of Mexico S.A. de C.V.,
Xxxxxx-Standard Automotive Korea, Inc., CSA (Barbados) Investment Co. Ltd.
under the Cash Pooling Agreement, dated as of October 14, 2004, with Bank
Mendes Xxxx nv.*
4. Guarantee by Xxxxxx-Standard Automotive Inc. of the obligations of
Xxxxxx-Standard Automotive (Australia) Pty. Ltd. under the Multi-Option
Facility, Bank Guarantee Facility, Leasing Facility and Purchasecard
Business Card Facility, dated as of June 28, 2004, by and between
Xxxxxx-Standard Automotive (Australia) Pty. Ltd. and National Australia
Bank Limited in the maximum amount of A$6,400,000.
5. Indemnity under Section 8.12(a) of the Acquisition Agreement with respect
to the Guarantee by Xxxxxx Tire & Rubber Company of Nishkawa Standard
Company under the obligations of Credit Agreement, dated July 1, 2003,
between Nishkawa Standard Company and the Bank of Tokyo-Mitsubishi, LTD.
6. Indemnity under Section 8.12(a) of the Acquisition Agreement with respect
to the Guarantee by Xxxxxx Tire & Rubber Company of Xxxxxx-Standard
Automotive (Australia) Pty. Ltd. Multi-Option Credit Commitment, dated
August 1, 2003, by and between Xxxxxx-Standard Automotive (Australia) Pty.
Ltd. and National Australia Bank Limited.
__________________
* Not scheduled for purposes of Section 10.01(a)(iv).
ANNEX II
Page 4
7. Indemnity under Section 8.12(a) of the Acquisition Agreement with respect
to the Guarantee by Xxxxxx Tire & Rubber Company of Xxxxxx-Standard
Automotive (Australia) Pty. Ltd. Multi-Option Credit Commitment, dated
August 1, 2003, by and between Xxxxxx-Standard Automotive (Australia) Pty.
Ltd. and National Australia Bank Limited.
8. Indemnity under Section 8.12(a) of the Acquisition Agreement with respect
to the Guarantee in favor of Barclays Bank plc.
III. Capital Leases
1. 12-year lease agreement, dated as of December 22, 1997, between Xxxxxx
Products Industriels (now Xxxxxx-Standard Automotive France S.A.S.) and
Natexis Banques Populaires for building facility with a total outstanding
amount of approximately $3,000,000.
2. Lease agreement, dated as of January 28, 2002, between Xxxxxx-Standard
Automotive France S.A.S. and Legoupil Industrie for building facility with
a total outstanding amount of approximately (euro)123,000.
3. 5-year lease agreement, dated as of October 18, 2001, between
Xxxxxx-Standard Automotive (Australia) Pty. Ltd. and Westpac Banking
Corporation for equipment with a monthly rent of $2761.47 (cost of total
goods: $149,800).
4. Finance lease/leaseback between Xxxxxx-Standard Automotive (Australia)
Pty. Ltd. and National Australia Bank Limited for 2001 Robotic gas metal
arc welder with a monthly rent of $4,163.90.
5. Finance lease facility, dated as of July 6, 2001, between Xxxxxx-Standard
Automotive (Australia) Pty. Ltd. and National Australia Bank Limited for
2000 Addison databend tube bending machine with a monthly rent of
$2392.14.
6. Sale and leaseback, dated as of April 27, 2001, between Xxxxxx-Standard
Automotive (Australia) Pty. Ltd. and National Australia Bank Limited for
Addison tube bending machine with a monthly rent of $3,299.02.
7. Telecom equipment and software leases between Xxxxxx-Standard Automotive
(Deutschland) GmbH and Siemens Finance & Lease GmbH & Co. KG.
8. Real property lease, dated as of March 30, 2003, between Diorama
Grundstucksverwaltungsgesellschaft mbH & Co. KG and Deutsche Tecalemit
GmbH (now Xxxxxx-Standard Automotive (Deutschland) GmbH).
EXHIBIT A-1
FORM OF NOTICE OF BORROWING
[Date]
Deutsche Bank Trust Company Americas, as
Administrative Agent (the "Administrative
Agent") for the Lenders party to the Credit
Agreement referred to below
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxx
[with a copy to:
Deutsche Bank AG, Canada Branch, as Canadian
Sub-Agent for the Lenders party to the Credit
Agreement referred to below
000 Xxx Xxxxxx
Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
Attention: Xxxxxxxxx Xxxxx](1)
Ladies and Gentlemen:
The undersigned, [Xxxxxx-Standard Automotive Inc.](2)
[Xxxxxx-Standard Automotive Canada Limited](3) (the "[U.S.] [Canadian]
Borrower"), refers to the Credit Agreement, dated as of December 23, 2004 (as
amended, restated, modified and/or supplemented from time to time, the "Credit
Agreement", the terms defined therein being used herein as therein defined),
among CSA Acquisition Corp., the [U.S.] [Canadian] Borrower, [Xxxxxx-Standard
Automotive Inc.] [Xxxxxx-Standard Automotive Canada Limited], the lenders from
time to time party thereto (each, a "Lender" and collectively, the "Lenders"),
Xxxxxx Commercial Paper Inc., as Syndication Agent, Xxxxxxx Sachs Credit
Partners L.P., UBS Securities LLC and The Bank of Nova Scotia, as
Co-Documentation Agents, Deutsche Bank Securities Inc. and Xxxxxx Brothers Inc,
as Joint Lead Arrangers and Joint Bookrunners, and you, as Administrative Agent
for such Lenders, and hereby gives you notice, irrevocably, pursuant to Section
2.03(a) of the Credit Agreement, that the undersigned hereby requests a
Borrowing under the Credit Agreement, and in that connection sets forth below
the information relating to such Borrowing
________________
(1) To be included for a Proposed Borrowing of Tranche A Term Loans,
Multicurrency Facility Revolving Loans or Canadian Dollar Denominated
Incremental Term Loans.
(2) To be included for a Proposed Borrowing by the U.S. Borrower.
(3) To be included for a Proposed Borrowing by the Canadian Borrower.
EXHIBIT A-1
Page 2
(the "Proposed Borrowing") as required by Section [2.03(a)] [2.03(b)(i)] of the
Credit Agreement:
(i) The Business Day of the Proposed Borrowing is____, ___.(4)
(ii) The aggregate [principal amount][Face Amount] of the
Proposed Borrowing is [U.S.$_________][Cdn.$________][(euro)_________](5).
(iii) The Loans to be made pursuant to the Proposed Borrowing
shall consist of [Tranche A Term Loans] [Tranche B Term Loans] [Tranche C
Term Loans] [U.S. Borrower Incremental Term Loans] [Canadian Borrower
Incremental Term Loans] [Multicurrency Facility Revolving Loans] [U.S.
Borrower Dual Currency Revolving Loans] [Dollar Facility Revolving Loans]
[Swingline Loans].
(iv) The Loans to be made pursuant to the Proposed Borrowing
shall be initially maintained as [Base Rate Loans] [Canadian Prime Rate
Loans] [Eurodollar Loans] [Euro Denominated Revolving Loans] [Euro
Denominated Incremental Term Loans] [Bankers' Acceptance Loans].(6)
__________________
(4) Shall be a Business Day at least one Business Day in the case of Base Rate
Loans and Canadian Prime Rate Loans (or same day notice in the case of
Swingline Loans) and three Business Days in the case of Euro Rate Loans
and Bankers` Acceptance Loans, in each case, after the date hereof,
provided that any such notice shall be deemed to have been given on a
certain day only if given in writing (or with telephonic notice promptly
confirmed in writing) before 12:00 Noon (New York time) (or 1:00 P.M. (New
York time) in the case of Swingline Loans) on such day.
(5) Stated in the relevant Available Currency.
(6) To be included for each Proposed Borrowing; provided that (i) Canadian
Prime Rate Loans and/or Bankers' Acceptance Loans may only be selected for
Proposed Borrowings of Tranche A Term Loans, Multicurrency Facility
Revolving Loans or Canadian Dollar Denominated Incremental Term Loans,
(ii) Euro Denominated Incremental Term Loans and Euro Denominated
Revolving Loans may only be selected for Proposed Borrowings of U.S.
Borrower Incremental Term Loans and U.S. Borrower Dual Currency Revolving
Loans, respectively, denominated in Euros and (iii) each Proposed
Borrowing of Swingline Loans may only be maintained as Base Rate Loans.
Unless the Syndication Date has theretofore occurred, prior to the 35th
day after the Initial Borrowing Date (or, if later, the last day of the
Interest Period applicable to the fourth Borrowing of Eurodollar Loans
referred to below), Loans to be maintained as Eurodollar Loans may only be
incurred on a Business Day occurring no earlier than the fifth Business
Day, after the Initial Borrowing Date, the second of which Borrowings may
only be made on the last day of the Interest Period of the first such
Borrowing, the third of which Borrowings may only be made on the last day
of the Interest Period of the second such Borrowing and the fourth of
which Borrowings may only be made on the last day of the Interest Period
of the third such Borrowing.
EXHIBIT A-1
Page 3
[(v) The initial Interest Period for the Proposed Borrowing is [one
week] [one month] [two months] [three months] [six months] [, subject to
availability to all Lenders, [nine] [twelve] months and, if such Interest
Period is unavailable [specify alternative desired]].(7)
[(v) The term of the Proposed Borrowing of Bankers' Acceptance
Loans is [__], with the maturity date for the related Drafts being
[_________]].(8)
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed
Borrowing:
(A) the representations and warranties contained in the Credit
Agreement and the other Credit Documents are and will be true and correct
in all material respects, before and after giving effect to the Proposed
Borrowing and to the application of the proceeds thereof, as though made
on such date, unless stated to relate to a specific earlier date, in which
case such representations and warranties shall be true and correct in all
material respects as of such earlier date; and
(B) no Default or Event of Default has occurred and is continuing,
or would result from such Proposed Borrowing or from the application of
the proceeds thereof.]
Very truly yours,
[XXXXXX-STANDARD AUTOMOTIVE INC.]
[XXXXXX-STANDARD AUTOMOTIVE
CANADA LIMITED]
By:_________________________
Name:
Title:
____________
(7) To be included for a Proposed Borrowing of Euro Rate Loans. Unless the
Syndication Date has theretofore occurred, prior to the 35th day after the
Initial Borrowing Date (or, if later, the last day of the fourth Borrowing
of Eurodollar Loans referred to in footnote 6 above), Loans to be
maintained as Eurodollar Loans may not have an Interest Period in excess
of one week. Interest Periods of nine and twelve months may only be
selected if such Interest Period is agreed to by all the Lenders required
to make Loans under the respective Tranche.
(8) To be included for a Proposed Borrowing of Bankers' Acceptance Loans. The
term of a Proposed Borrowing of Bankers' Acceptance Loans shall comply
with the relevant requirements of Schedule III to the Credit Agreement.
EXHIBIT A-2
FORM OF NOTICE OF CONVERSION/CONTINUATION
[Date]
Deutsche Bank Trust Company Americas, as
Administrative Agent for the Lenders party
to the Credit Agreement referred to below
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxx
[with a copy to:
Deustche Bank AG, Canada Branch, as
Canadian Sub-Agent for the Lenders party to
the Credit Agreement referred to below
000 Xxx Xxxxxx
Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
Attention: Xxxxxxxxx Xxxxx](1)
Ladies and Gentlemen:
The undersigned, [Xxxxxx-Standard Automotive Inc.] [Xxxxxx-Standard
Automotive Canada Limited] (the "[Canadian] [U.S.] Borrower"), refers to the
Credit Agreement, dated as of December 23, 2004 (as amended, restated, modified
and/or supplemented from time to time, the "Credit Agreement", the terms defined
therein being used herein as therein defined), among CSA Acquisition Corp., the
[Canadian] [U.S.] Borrower, [Xxxxxx-Standard Automotive Inc.,] [Xxxxxx-Standard
Automotive Canada Limited,] the lenders from time to time party thereto (the
"Lenders"), Xxxxxx Commercial Paper Inc., as Syndication Agent, Xxxxxxx Xxxxx
Credit Partners L.P., UBS Securities LLC and The Bank of Nova Scotia, as
Co-Documentation Agents, and Deutsche Bank Securities Inc., Xxxxxx Brothers
Inc., as Joint Lead Arrangers and Joint Bookrunners, and you, as Administrative
Agent for such Lenders, and hereby give you notice, irrevocably, pursuant to
Section [2.06][2.09] of the Credit Agreement, that the undersigned hereby
requests to [convert] [continue] the Borrowing of [Tranche A Term Loans]
[Tranche B Term Loans] [Tranche C Term Loans] [U.S. Borrower Incremental Term
Loans] [Canadian Borrower Incremental Term Loans] [Multicurrency Facility
Revolving Loans] [U.S. Borrower Dual Currency Facility Revolving Loans] [Dollar
Facility Revolving Loans] referred to below, and in that connection sets forth
below the information relating to such
_______________
(1) To be included for a Proposed Conversion or Continuation relating to a
Borrowing of Tranche A Term Loans, Multicurrency Facility Revolving Loans
or Canadian Dollar Denominated Incremental Term Loans.
EXHIBIT A-2
Page 2
[conversion] [continuation] (the "Proposed [Conversion] [Continuation]") as
required by Section [2.06][2.09] of the Credit Agreement:
(i) The Proposed [Conversion] [Continuation] relates to the
Borrowing of [Tranche A Term Loans] [Tranche B Term Loans] [Tranche C Term
Loans] [U.S. Borrower Incremental Term Loans] [Canadian Borrower Incremental
Term Loans] [Multicurrency Facility Revolving Loans] [U.S. Borrower Dual
Currency Facility Revolving Loans] [Dollar Facility Revolving Loans] [Canadian
Dollar Denominated Revolving Loans] originally made on _____ __, 20__ (the
"Outstanding Borrowing") in the [principal amount] [Face Amount] of
[[U.S.][Cdn.]$][(euro)]________ and currently maintained as a Borrowing of [Base
Rate Loans] [Eurodollar Loans with an Interest Period ending on _____ __, ____]
[Canadian Prime Rate Loans](2) [Banker's Acceptance Loans with a term of
__________, with the maturity date for the related Drafts being ______].
(ii) The Business Day of the Proposed [Conversion] [Continuation]
is ____________.(3)
(iii) The Outstanding Borrowing shall be [continued as a Borrowing
of [Eurodollar Loans with an Interest Period of _____] [Euro Denominated
[Revolving] [Incremental Term] Loans with an Interest Period of _____] [Banker's
Acceptance Loans with a term of __________, with the maturity date for the
related Drafts being ______]] [converted into a Borrowing of [Base Rate Loans]
[Eurodollar Loans with an Interest Period of ____] [Euro Denominated Loans with
an Interest Period of ____] [Bankers' Acceptance Loans with a term of
__________, with the maturity date for the related Drafts being ______](4)].(5)
_________________
(2) Borrowings maintained as Canadian Prime Rate Loans may only be converted
into Bankers` Acceptance Loans.
(3) Shall be a Business Day at least three Business Days after the date
hereof; provided that such notice shall be deemed to have been given on a
certain day only if given before 12:00 Noon (New York City time) on such
day.
(4) To be inserted only if the Proposed Conversion is from Canadian Prime Rate
Loans to Bankers` Acceptance Loans.
(5) In the event that either (x) only a portion of the Outstanding Borrowing
is to be so converted or continued or (y) the Outstanding Borrowing is to
be divided into separate Borrowings with different Interest Periods or
"terms", the applicable Borrower should make appropriate modifications to
this clause to reflect same. The duration of Interest Periods is subject
to Section 2.09 of the Credit Agreement. The term of a Proposed Borrowing
of Bankers' Acceptance Loans shall comply with the relevant requirements
of Schedule III to the Credit Agreement.
EXHIBIT A-2
Page 3
[The undersigned hereby certifies that no Default or Event of
Default has occurred and will be continuing on the date of the Proposed
[Conversion] [Continuation] or will have occurred and be continuing on the date
of the Proposed [Conversion] [Continuation]].(6)
Very truly yours,
[XXXXXX-STANDARD AUTOMOTIVE INC.]
[XXXXXX-STANDARD AUTOMOTIVE
CANADA LIMITED]
By: ______________________________
Name:
Title:
____________________
(6) In the case of a Proposed Conversion or Continuation, insert this sentence
only (i) in the event that the conversion is from a Base Rate Loan to a
Eurodollar Loan or a Canadian Prime Rate Loan to a Bankers` Acceptance
Loan or (ii) in the case of a continuation of a Euro Rate Loan or a
Bankers` Acceptance Loan. Until the Administrative Agent has determined
that the Syndication Date has occurred, outstanding Eurodollar Loans may
be only be maintained with a one-week Interest Period.
EXHIBIT B-4
FORM OF INCREMENTAL TERM NOTE
[[U.S.] [Cdn.] $][(euro)]____________________ New York, New York
________, __, ____
FOR VALUE RECEIVED, [NAME OF INCREMENTAL TERM LOAN BORROWER], a
___________ ___________ (the "[U.S.][Canadian] Borrower"), hereby promises to
pay to the order of __________ or its registered assigns (the "Lender"), in
[Euros] [lawful money of [the United States of America][Canada]] (except to the
extent payments are otherwise required to be made in U.S. Dollars in accordance
with the provisions of Section 2.14 of the Agreement referred to below) in
immediately available funds, at the Payment Office (as defined in the Agreement
referred to below) initially located at [_____________________] on the
Incremental Term Loan Maturity Date (as defined in the Agreement) the principal
sum of ______________________ [[U.S.] [Cdn.] DOLLARS][EUROS] ([[U.S.] [Cdn.]$]
[(euro)]__________) or, if less, the unpaid principal amount of all
_______________ [Insert the applicable description of the respective Tranche of
Incremental Term Loans] (as defined in the Agreement) made by the Lender
pursuant to the Agreement].
The [U.S.][Canadian] Borrower promises also to pay interest on the
unpaid principal amount of each made by the Lender in like money at said office
from the date hereof until paid at the rates and at the times provided in
Section 2.08 of the Agreement. All payments pursuant to this Note shall be made
in accordance with the requirements of Sections 5.03 and 5.04 of the Agreement.
This Note is one of the Incremental Term Notes referred to in the
Credit Agreement, dated as of December 23, 2004, among CSA Acquisition Corp.,
the [U.S.][Canadian] Borrower, [Xxxxxx-Standard Automotive Canada
Limited][Xxxxxx-Standard Automotive Inc.], the lenders from time to time party
thereto (including the Lender), Xxxxxx Commercial Paper Inc., as Syndication
Agent, Xxxxxxx Sachs Credit Partners L.P., UBS Securities LLC and The Bank of
Nova Scotia, as Co-Documentation Agents, Deutsche Bank Securities Inc. and
Xxxxxx Brothers Inc, as Joint Lead Arrangers and Joint Bookrunners, and Deutsche
Bank Trust Company Americas, as Administrative Agent (as amended, restated,
modified and/or supplemented from time to time, the "Agreement") and is entitled
to the benefits thereof and of the other Credit Documents (as defined in the
Agreement). This Note is secured by the [U.S.] Security Documents (as such term
is defined in the Agreement) and is entitled to the benefits of each Guaranty
(as defined in the Agreement) [(other than the Canadian Subsidiaries Guaranty
and the U.S. Borrower's Guaranty (as each such term is defined in the
Agreement))]. As provided in the Agreement, this Note is subject to voluntary
prepayment and mandatory repayment prior to the relevant Incremental Term Loan
Maturity Date, in whole or in part, and Incremental Term Loans evidenced hereby
may be converted from one Type (as defined in the Agreement) into another Type
to the extent provided in the Agreement.
In case an Event of Default (as defined in the Agreement) shall
occur and be continuing, the principal of and accrued interest on this Note may
be declared to be due and
EXHIBIT B-4
Page 2
payable in the manner and with the effect provided in the Agreement.
The [U.S.][Canadian] Borrower hereby waives presentment, demand,
protest or notice of any kind in connection with this Note.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY
THE LAW OF THE STATE OF NEW YORK.
[XXXXXX-STANDARD AUTOMOTIVE CANADA
LIMITED]
[XXXXXX-STANDARD AUTOMOTIVE INC.]
By:____________________________
Name:
Title:
Exhibit B-9
FORM OF U.S. BORROWER DUAL CURRENCY FACILITY REVOLVING NOTE
U.S. $___________ New York, New York
_____________, ____
FOR VALUE RECEIVED, XXXXXX-STANDARD AUTOMOTIVE INC., an Ohio
corporation (the "U.S. Borrower"), hereby promises to pay to the order of
________ or its registered assigns (the "Lender"), in lawful money of the United
States of America (or, in the case of Euro Denominated Revolving Loans (as
defined in the Agreement referred to below) evidenced hereby, Euros (except to
the extent payments are otherwise required to be made in U.S. Dollars in
accordance with the provisions of Section 2.14 of the Agreement)) in immediately
available funds, at the Payment Office (as defined in the Agreement) initially
located at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 on the Revolving Loan
Maturity Date (as defined in the Agreement) the principal sum of __________ U.S.
DOLLARS (U.S. $_____) or, if less, the unpaid principal amount of all U.S.
Borrower Dual Currency Facility Revolving Loans (as defined in the Agreement)
made by the Lender pursuant to the Agreement, provided that, notwithstanding the
fact that the principal amount of this Note is denominated in U.S. Dollars, to
the extent provided in the Agreement, all payments hereunder with respect to
Euro Denominated Revolving Loans evidenced hereby shall be made in Euros (except
to the extent otherwise provided by Section 2.14 of the Agreement), whether or
not the U.S. Dollar Equivalent (as defined in the Agreement) of such amounts,
when added to the outstanding principal amount of the Dollar Denominated
Revolving Loans (as defined in the Agreement) evidenced hereby, would exceed the
stated principal amount of this Note.
The U.S. Borrower also promises to pay interest on the unpaid
principal amount of each U.S. Borrower Dual Currency Facility Revolving Loan
made by the Lender in like money at said office from the date hereof until paid
at the rates and at the times provided in Section 2.08 of the Agreement. All
payments pursuant to this Note shall be made in accordance with the requirements
of Sections 5.03 and 5.04 of the Agreement.
This Note is one of the U.S. Dual Currency Facility Revolving Notes
referred to in the Credit Agreement, dated as of December 23, 2004, among CSA
Acquisition Corp., the U.S. Borrower, Xxxxxx-Standard Automotive Canada Limited,
the lenders from time to time party thereto (including the Lender), Xxxxxx
Commercial Paper Inc., as Syndication Agent, Xxxxxxx Xxxxx Credit Partners L.P.,
UBS Securities LLC and The Bank of Nova Scotia, as Co-Documentation Agents,
Deutsche Bank Securities Inc. and Xxxxxx Brothers Inc, as Joint Lead Arrangers
and Joint Bookrunners, and Deutsche Bank Trust Company Americas, as
Administrative Agent (as amended, restated, modified and/or supplemented from
time to time, the "Agreement") and is entitled to the benefits thereof and of
the other Credit Documents (as defined in the Agreement). This Note is secured
by the U.S. Security Documents (as defined in the Agreement) and is entitled to
the benefits of the Holdings Guaranty and the U.S. Subsidiaries Guaranty (as
defined in the Agreement). As provided in the Agreement, this Note is subject to
Exhibit B-9
Page 2
voluntary prepayment and mandatory repayment prior to the Revolving Loan
Maturity Date, in whole or in part, and U.S. Borrower Dual Currency Facility
Revolving Loans may be converted from one Type (as defined in the Agreement)
into another Type on the terms provided in the Agreement.
In case an Event of Default (as defined in the Agreement) shall
occur and be continuing, the principal of and accrued interest on this Note may
be declared to be due and payable in the manner and with the effect provided in
the Agreement.
The U.S. Borrower hereby waives presentment, demand, protest or
notice of any kind in connection with this Note.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY
THE LAW OF THE STATE OF NEW YORK.
XXXXXX-STANDARD AUTOMOTIVE INC.
By________________________________
Name:
Title:
EXHIBIT K
FORM OF ASSIGNMENT
AND
ASSUMPTION AGREEMENT(1)
This Assignment and Assumption Agreement (this "Assignment"), is
dated as of the Effective Date set forth below and is entered into by and
between [the][each] Assignor identified in item [1][2] below ([the] [each, an]
"Assignor") and [the] [each] Assignee identified in item 2 below ([the] [each,
an] "Assignee"). [It is understood and agreed that the rights and obligations of
such [Assignees][and Assignors] hereunder are several and not joint.]
Capitalized terms used herein but not defined herein shall have the meanings
given to them in the Credit Agreement identified below (as amended, restated,
supplemented and/or otherwise modified from time to time, the "Credit
Agreement"). The Standard Terms and Conditions for Assignment and Assumption
Agreement set forth in Annex 1 hereto (the "Standard Terms and Conditions") are
hereby agreed to and incorporated herein by reference and made a part of this
Assignment as if set forth herein in full.
For an agreed consideration, [the][each] Assignor hereby irrevocably
sells and assigns to [the] [each] Assignee, and [the] [each] Assignee hereby
irrevocably purchases and assumes from [the][each] Assignor, subject to and in
accordance with the Standard Terms and Conditions and the Credit Agreement, as
of the Effective Date inserted by the Administrative Agent as contemplated
below, the interest in and to all of [the][each] Assignor's rights and
obligations under the Credit Agreement and any other documents or instruments
delivered pursuant thereto that represents the amount and percentage interest
identified below of all of the [respective] Assignor's outstanding rights and
obligations under the respective Tranches identified below (including, to the
extent included in any such Tranches, Letters of Credit and Swingline Loans)
([the] [each, an] "Assigned Interest"). [Each] [Such] sale and assignment is
without recourse to [the][any] Assignor and, except as expressly provided in
this Assignment, without representation or warranty by [the][any] Assignor.
[1. Assignor: __________________________
2. Assignee: __________________________](2)
_____________________
(1) This Form of Assignment and Assumption Agreement should be used by Lenders
for an assignment to a single Assignee or to funds managed by the same or
related investment managers.
(2) If the form is used for a single Assignor and Assignee, items 1 and 2
should list the Assignor and the Assignee, respectively. In the case of an
assignment to funds managed by the same or related investment managers, or
an assignment by multiple Assignors, the Assignors and the Assignee(s)
should be listed in the table under bracketed item 2 below.
(continued...)
Exhibit K
Page 2
[1][3]. Credit Agreement: Credit Agreement, dated as of December 23, 2004,
among CSA Acquisition Corp., the Xxxxxx-Standard
Automotive Inc., Xxxxxx-Standard Automotive Canada
Limited, the lenders from time to time party
thereto, Xxxxxx Commercial Paper Inc., as
Syndication Agent, Xxxxxxx Xxxxx Credit Partners
L.P., UBS Securities LLC and The Bank of Nova
Scotia, as Co-Documentation Agents, and Deutsche
Bank Securities Inc. and Xxxxxx Brothers Inc, as
Joint Lead Arrangers and Joint Bookrunners, and
Deutsche Bank Trust Company Americas, as
Administrative Agent (as amended, supplemented
and/or modified from time to time).
[2. Assigned Interest:(3)
Aggregate Amount
of
Commitment/Loans Amount of
under Relevant Commitment/Loans
Tranche Tranche for under Relevant
Assignor Assignee Assigned(4) all Lenders Tranche Assigned
--------------------------------------------------------------------------------
[Name of [Name of
Assignor] Assignee] __________ __________
[Name of [Name of
Assignor] Assignee] __________ __________
_______________
(...continued)
(3) Insert this chart if this Form of Assignment and Assumption Agreement is
being used for assignments to funds managed by the same or related
investment managers or for an assignment by multiple Assignors. Insert
additional rows as needed.
(4) For complex multi-tranche assignments a separate chart for each tranche
should be used for ease of reference
Exhibit K
Page 3
[4. Assigned Interest:(5)
Aggregate Amount of
Commitment/Loans under Relevant Amount of Commitment/Loans
Tranche Assigned Tranche for all Lenders under Relevant Tranche Assigned
-----------------------------------------------------------------------------------------------------
[__] Term Loans(6) [U.S.] [(Cnd.]$] [(euro)]______________ [U.S.] [(Cnd.]$][(euro)]____________
-----------------------------------------------------------------------------------------------------
Revolving Loan
Commitment/
Revolving Loans [[U.S.] [Cnd.]$][(euro)]______________ [[U.S.] [(Cnd.]$][(euro)]___________
Effective Date ___________, ____, 200__.
ASSIGNOR[S] INFORMATION ASSIGNEE[S] INFORMATION
----------------------- -----------------------
Payment Instructions: _________________ Payment Instructions: ___________________
_________________ ___________________
_________________ ___________________
_________________ ___________________
Reference:_______ Reference:_________
Notice Instructions: _________________ Notice Instructions: ___________________
_________________ ___________________
_________________ ___________________
_________________ ___________________
Reference:_______ Reference:_________
The terms set forth in this Assignment are hereby agreed to:
____________
(5) Insert this chart if this Form of Assignment and Assumption Agreement is
being used by a single Assignor for an assignment to a single Assignee.
(6) Insert rows for additional Tranches of Term Loans as needed.
Exhibit K
Page 4
ASSIGNOR ASSIGNEE
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE](7)
By:______________________________ By:______________________________
Name: Name:
Title: Title:
__________________
(7) Add additional signature blocks, as needed, if this Form of Assignment and
Assumption Agreement is being used by funds managed by the same or related
investment managers.
Exhibit K
Page 5
[Consented to and](8) Accepted:
[DEUTSCHE BANK TRUST COMPANY AMERICAS],
as Administrative Agent
By:_________________________
Name:
Title:
[XXXXXX-STANDARD AUTOMOTIVE INC.]
By:_________________________
Name:
Title:](9)
[NAME OF EACH LETTER OF CREDIT ISSUER],
as Issuing Lender
By:_________________________
Name:
Title:](10)
____________
(8) Insert only if assignment is being made to an Eligible Transferee pursuant
to Section 13.04(b)(y) of the Credit Agreement and, in any event,
excluding assignments by the Agents as part of the primary syndication of
the Loans and Commitments. Consent of the Administrative Agent shall not
be unreasonably withheld or delayed.
(9) Insert only if (i) no Default or Event of Default is then in existence,
(ii) the assignment is being made to an Eligible Transferee pursuant to
13.04(b)(y) of the Credit Agreement and (iii) assignment is not being made
as part of the primary syndication of the Loans and Commitments. Consent
of the U.S. Borrower shall not be unreasonably withheld or delayed.
(10) Insert for any assignment of a Revolving Loan Commitment (other than a
U.S. Borrower Dual Currency Revolving Loan Commitment) pursuant to clause
(x) or (y) of Section 13.04(b) of the Credit Agreement.
Exhibit K
Page 6
[[DEUTSCHE BANK TRUST COMPANY AMERICAS],
as Swingline Lender
By:_________________________
Name:
Title:
By:_________________________
Name:
Title:](11)
____________
(11) Insert for any assignment of a Dollar Facility Revolving Loan Commitment
pursuant to clause (x) or (y) of Section 13.04(b) of the Credit Agreement.
ANNEX I
TO
EXHIBIT K
XXXXXX-STANDARD AUTOMOTIVE INC.
XXXXXX-STANDARD AUTOMOTIVE CANADA LIMITED
CREDIT AGREEMENT
STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT
AND ASSUMPTION AGREEMENT
1. Representations and Warranties.
1.1. Assignor. [The] [Each] Assignor (a) represents and warrants
that (i) it is the legal and beneficial owner of [the] [its] Assigned Interest,
(ii) [the] [its] Assigned Interest is free and clear of any lien, encumbrance or
other adverse claim and (iii) it has full power and authority, and has taken all
action necessary, to execute and deliver this Assignment and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect
to (i) any statements, warranties or representations made in or in connection
with any Credit Document, (ii) the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement, any
other Credit Document or any other instrument or document delivered pursuant
thereto (other than this Assignment) or any collateral thereunder, (iii) the
financial condition of Holding or any of its Subsidiaries or affiliates or any
other Person obligated in respect of any Credit Document or (iv) the performance
or observance by Holdings or any of its Subsidiaries or affiliates or any other
Person of any of their respective obligations under any Credit Document.
1.2. Assignee. [The] [Each] Assignee (a) represents and warrants
that (i) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and to consummate the transactions
contemplated hereby and to become a Lender under the Credit Agreement, (ii)
confirms that it is (A) a Lender, (B) a parent company and/or an affiliate of
[the][each] Assignor which is at least 50% owned by [the][each] Assignor or its
parent company, (C) a fund that invests in bank loans and is managed by the same
investment advisor as a Lender, by an affiliate of such investment advisor or by
a Lender or (D) an Eligible Transferee under Section 13.04(b) of the Credit
Agreement; (iii) from and after the Effective Date, it shall be bound by the
provisions of the Credit Agreement and, to the extent of [the][its] Assigned
Interest, shall have the obligations of a Lender thereunder, (iv) it has
received a copy of the Credit Agreement, together with copies of the most recent
financial statements delivered pursuant to Section 9.01 thereof, as applicable,
and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Assignment and to
purchase [the][its] Assigned Interest on the basis of which it has made such
analysis and decision and (v) if it is organized under the laws of a
jurisdiction outside the United States, it has attached to this Assignment any
tax documentation required to be delivered by it pursuant to the terms of the
Credit Agreement, duly completed and executed by it; (b) agrees that it will,
independently and without reliance upon the Administrative Agent, [the][each]
Assignor,
Annex I
To Exhibit K
Page 2
or any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement; (c) appoints and authorizes each
of the Administrative Agent, the Syndication Agent, the Co-Documentation Agents,
the Collateral Agent and each other Agent to take such action as agent on its
behalf and to exercise such powers under the Credit Agreement and the other
Credit Documents as are delegated to or otherwise conferred upon the
Administrative Agent, the Syndication Agent, the Co-Documentation Agents, the
Collateral Agent and such other Agent, as the case may be, by the terms thereof,
together with such powers as are reasonably incidental thereto; and (d) agrees
that it will perform in accordance with their terms all of the obligations which
by the terms of the Credit Documents are required to be performed by it as a
Lender.
2. Payment. From and after the Effective Date, the Administrative
Agent shall make all payments in respect of [the] [each] Assigned Interest
(including payments of principal, interest, fees, commissions and other amounts)
to [the][each] Assignor for amounts which have accrued to but excluding the
Effective Date and to [the] [each] Assignee for amounts which have accrued from
and after the Effective Date.
3. Effect of Assignment. Upon the delivery of a fully executed
original hereof to the Administrative Agent, as of the Effective Date, (i)
[the][each] Assignee shall be a party to the Credit Agreement and, to the extent
provided in this Assignment, have the rights and obligations of a Lender
thereunder and under the other Credit Documents and (ii) [the][each] Assignor
shall, to the extent provided in this Assignment, relinquish its rights and be
released from its obligations under the Credit Agreement and the other Credit
Documents.
4. General Provisions. This Assignment shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and
assigns. This Assignment may be executed in any number of counterparts, which
together shall constitute one instrument. Delivery of an executed counterpart of
a signature page of this Assignment by telecopy shall be effective as delivery
of a manually executed counterpart of the Assignment. THIS ASSIGNMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE
OF NEW YORK (INCLUDING, WITHOUT LIMITATION, SECTION 5.1401 OF THE GENERAL
OBLIGATIONS LAW).
* * *
EXHIBIT O
FORM OF INCREMENTAL TERM LOAN COMMITMENT AGREEMENT
[Name(s) of Lender(s)]
Xxxxxx-Standard Holdings Inc. (f/k/a CSA Acquisition Corp.)
[address]
[Xxxxxx-Standard Automotive Inc.][Xxxxxx-Standard Automotive Canada Limited]
[address]
Re: Incremental Term Loan Commitments
Ladies and Gentlemen:
Reference is hereby made to the Credit Agreement, dated as of
December 23, 2004, among Xxxxxx-Standard Holdings Inc. (f/k/a CSA Acquisition
Corp.) ("Holdings"), Xxxxxx-Standard Automotive Inc. (the "U.S. Borrower"),
Xxxxxx-Standard Automotive Canada Limited (the "Canadian Borrower" and, together
with the U.S. Borrower, the "Borrowers"), the Lenders from time to time party
thereto, Deutsche Bank Trust Company Americas, as Administrative Agent (the
"Administrative Agent"), Xxxxxx Commercial Paper Inc., as Syndication Agent (the
"Syndication Agent"), Xxxxxxx Sachs Credit Partners L.P., UBS Securities LLC and
The Bank of Nova Scotia, as Co-Documentation Agents (collectively, the
"Co-Documentation Agents"), and Deutsche Bank Securities Inc. and Xxxxxx
Brothers Inc., as Joint Lead Arrangers and Book Runners (collectively, the
"Joint Lead Arrangers") (as amended, modified or supplemented from time to time,
the "Credit Agreement"). Unless otherwise defined herein, capitalized terms used
herein shall have the respective meanings set forth in the Credit Agreement.
Each Lender (each, an "Incremental Term Loan Lender") party to this
letter agreement (this "Agreement") hereby severally agrees to provide the
Incremental Term Loan Commitment set forth opposite its name on Annex I attached
hereto (for each such Incremental Term Loan Lender, its "Incremental Term Loan
Commitment"). Each Incremental Term Loan Commitment provided pursuant to this
Agreement shall be subject to all of the terms and conditions set forth in the
Credit Agreement, including, without limitation, Sections 2.01(d) and 2.15
thereof.
Each Incremental Term Loan Lender, Holdings, [the U.S. Borrower][the
Canadian Borrower] (the "Incremental Term Loan Borrower") and the Administrative
Agent acknowledge and agree that the Incremental Term Loan Commitments provided
pursuant to this Agreement shall constitute Incremental Term Loan Commitments of
the respective Tranche specified in Annex I attached hereto and, upon the
incurrence of Incremental Term Loans pursuant to such Incremental Term Loan
Commitments, shall constitute Incremental Term Loans under such specified
Tranche for all purposes of the Credit Agreement and the other applicable Credit
Documents. Each Incremental Term Loan Lender, Holdings, the Incremental Term
Loan Borrower and the Administrative Agent further agree that, with respect to
the Incremental Term Loan Commitment provided by each Incremental Term Loan
Lender pursuant to this Agreement, such Incremental Term Loan Lender shall
receive from Holdings and/or the Incremental Term Loan Borrower such upfront
fees, unutilized commitment fees and/or other fees, if any, as may
Exhibit O
Page 2
be separately agreed to in writing with Holdings and/or the Incremental Term
Loan Borrower and acknowledged by the Administrative Agent, all of which fees
shall be due and payable to such Incremental Term Loan Lender on the terms and
conditions set forth in each such separate agreement.
Furthermore, each of the parties to this Agreement hereby agree to
the terms and conditions set forth on Annex I hereto in respect of each
Incremental Term Loan Commitment provided pursuant to this Agreement.
Each Incremental Term Loan Lender party to this Agreement, to the
extent not already a party to the Credit Agreement as a Lender thereunder, (i)
confirms that it is an Eligible Transferee, (ii) confirms that it has received a
copy of the Credit Agreement and the other Credit Documents, together with
copies of the financial statements referred to therein and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Agreement and to become a Lender under the Credit
Agreement, (iii) agrees that it will, independently and without reliance upon
the Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement and
the other Credit Documents, (iv) appoints and authorizes the Administrative
Agent and the Collateral Agent to take such action as agent on its behalf and to
exercise such powers under the Credit Agreement and the other Credit Documents
as are delegated to the Administrative Agent and the Collateral Agent, as the
case may be, by the terms thereof, together with such powers as are reasonably
incidental thereto, [and] (iv) agrees that it will perform in accordance with
their terms all of the obligations which by the terms of the Credit Agreement
and the other Credit Documents are required to be performed by it as a Lender[,
and (v) in the case of each Incremental Term Loan Lender organized under the
laws of a jurisdiction outside the United States, attaches the forms and/or
Certificates referred to in Section 5.04(b) of the Credit Agreement, certifying
as to its entitlement as of the date hereof to a complete exemption from United
States withholding taxes with respect to all payments to be made to it by the
Incremental Term Loan Borrower under the Credit Agreement and the other Credit
Documents.](1) [Each Lender providing a Canadian Dollar Denominated Incremental
Term Loan represents and warrants to the Borrowers that such Lender is a
Canadian Resident.] (2)
Upon the date of (i) the execution of a counterpart of this
Agreement by each Incremental Term Loan Lender, the Administrative Agent,
Holdings, the Incremental Term Loan Borrower and [each Guarantor](3)[each U.S.
Subsidiary Guarantor](4), (ii) the delivery to the Administrative Agent of a
fully executed counterpart (including by way of facsimile) hereof, (iii) the
payment of any fees then due and payable in connection herewith and (iv) the
satisfaction of any other conditions precedent set forth in Section 10 of Annex
I hereto (such date, the
____________
(1) Insert if the U.S. Borrower is the Incremental Term Loan Borrower.
(2) Insert if the Canadian Borrower is the Incremental Term Loan Borrower.
(3) Insert if the Canadian Borrower is the Incremental Term Loan Borrower.
(4) Insert if the U.S. Borrower is the Incremental Term Loan Borrower.
Exhibit O
Page 3
"Agreement Effective Date"), each Incremental Term Loan Lender party hereto (i)
shall be obligated to make the Incremental Term Loans provided to be made by it
as provided in this Agreement on the terms, and subject to the conditions, set
forth in the Credit Agreement and in this Agreement and (ii) to the extent
provided in this Agreement, shall have the rights and obligations of a Lender
thereunder and under the other applicable Credit Documents.
The Incremental Term Loan Borrower acknowledges and agrees that (i)
it shall be liable for all Obligations with respect to the Incremental Term Loan
Commitments provided hereby including, without limitation, all Incremental Term
Loans made pursuant thereto, and (ii) all such Obligations (including all such
Incremental Term Loans) shall be entitled to the benefits of the [Security
Documents and each Guaranty](5)[U.S. Security Documents, the Holdings Guaranty
and the U.S. Subsidiaries Guaranty](6).
[Each Guarantor](7)[Each of Holdings and each U.S. Subsidiary
Guarantor](8) acknowledges and agrees that all Obligations with respect to the
Incremental Term Loan Commitments provided hereby and all Incremental Term Loans
made pursuant thereto shall (i) be fully guaranteed pursuant to the respective
Guaranties as, and to the extent, provided therein and in the Credit Agreement
and (ii) be entitled to the benefits of the respective Security Documents as,
and to the extent, provided therein and in the Credit Agreement.
Attached hereto as Annex II are true and correct copies of officer's
certificates, board of director resolutions and good standing certificates of
the Credit Parties required to be delivered pursuant to clause (z) of the
definition of "Incremental Term Loan Commitment Requirements" appearing in
Section 1 of the Credit Agreement.
[Attached hereto as Annex III [is an opinion] [are opinions] of
[insert name or names of counsel, including in-house counsel, who will be
delivering opinions], counsel to the respective Credit Parties, delivered as
required pursuant to clause (z) of the definition of "Incremental Loan
Commitment Requirements" appearing in Section 1 of the Credit Agreement.]
Attached hereto as Annex IV is the officer's certificate required to
be delivered pursuant to clause (x) of the definition of "Incremental Term Loan
Commitment Requirements" appearing in Section 1 of the Credit Agreement (i)
certifying that the conditions set forth in clauses (v) and (w) of the
definition of "Incremental Term Loan Commitment Requirements" appearing in
Section 1 of the Credit Agreement have been satisfied (together with
calculations demonstrating same (where applicable) in reasonable detail) and
(ii) setting forth which provisions of the Senior Notes Indenture and the Senior
Subordinated Notes Indenture the respective incurrence of Incremental Term Loans
will be justified under and demonstrating in
____________
(5) Insert if the Canadian Borrower is the Incremental Term Loan Borrower.
(6) Insert if the U.S. Borrower is the Incremental Term Loan Borrower.
(7) Insert if the Canadian Borrower is the Incremental Term Loan Borrower.
(8) Insert if the U.S. Borrower is the Incremental Term Loan Borrower.
Exhibit O
Page 4
reasonable detail that the full amount of such Incremental Term Loans may be
incurred in accordance with, and will not violate the provisions of the Senior
Notes Indenture and the Senior Subordinated Notes Indenture.
The Obligations to be incurred pursuant to the Incremental Term Loan
Commitments provided hereunder are in accordance with, will not violate the
provisions of, and will constitute "Senior Indebtedness" and "Designated Senior
Indebtedness" for the purpose of the Senior Subordinated Notes Indenture.
You may accept this Agreement by signing the enclosed copies in the
space provided below, and returning one copy of same to us before the close of
business on ____________, _____. If you do not so accept this Agreement by such
time, our Incremental Term Loan Commitments set forth in this Agreement shall be
deemed canceled.
After the execution and delivery to the Administrative Agent of a
fully executed copy of this Agreement (including by way of counterparts and by
facsimile transmission) by the parties hereto, this Agreement may only be
changed, modified or varied by written instrument in accordance with the
requirements for the modification of Credit Documents pursuant to Section 13.12
of the Credit Agreement.
In the event of any conflict between the terms of this Agreement and
those of the Credit Agreement, the terms of the Credit Agreement shall control.
*****
Exhibit O
Page 5
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAW OF THE STATE OF NEW YORK.
Very truly yours,
[NAME OF EACH INCREMENTAL TERM LOAN LENDER]
By__________________________
Name:
Title
Agreed and Accepted
this ___ day of __________, ____:
XXXXXX-STANDARD HOLDINGS INC.
(f/k/a CSA ACQUISITION CORP.)
By: ________________________
Name:
Title:
[NAME OF INCREMENTAL TERM LOAN BORROWER]
By: ________________________
Name:
Title:
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Administrative Agent
By: ________________________
Name:
Title:
By: ________________________
Name:
Title:
Exhibit O
Page 6
[Each Guarantor](9)[Each U.S. Subsidiary Guarantor](10) acknowledges and agrees
to each of the foregoing provisions of this Incremental Term Loan Commitment
Agreement and to the incurrence of the Incremental Term Loans to be made
pursuant thereto.
[EACH OTHER GUARANTOR], as a Guarantor
By: ________________________
Name:
Title:
____________
(9) Insert if the Canadian Borrower is the Incremental Term Loan Borrower.
(10) Insert if the U.S. Borrower is the Incremental Term Loan Borrower.
ANNEX I
to
EXHIBIT O
TERMS AND CONDITIONS FOR
INCREMENTAL TERM LOAN COMMITMENT AGREEMENT
Dated as of _____________, ____
1. Name of Incremental Term Loan Borrower:
2. Incremental Term Loan Commitment Amounts (as of the Agreement Effective
Date):
Amount of Incremental Term Loan
Names of Incremental Term Loan Lenders Commitment
-------------------------------------- -------------------------------
Total:(1)
3. Designation of Tranche of Incremental Term Loan Commitments (and
Incremental Term Loans to be funded thereunder)(2):
4. Indicate the Incremental Term Loan Borrowing Date:
5. Incremental Term Loan Maturity Date:(3)
____________
(1) Specify the relevant currency (i.e., U.S. Dollars, Euros or Canadian
Dollars) of the requested Tranche of Incremental Term Loans. The aggregate
amount of each Tranche of Incremental Term Loan Commitments must be at
least (x) U.S.$25,000,000 (or, (i) in the case of Incremental Term Loan
Commitments denominated in Euros, (euro)20,000,000 or (ii) Cdn.$5,000,000,
in the case of Incremental Term Loan Commitments denominated in Canadian
Dollars). Whether or not a U.S. Dollar Denominated Incremental Term Loan
will be subject to Canadian withholding tax will need to be determined at
the time that such loan is contemplated based upon the related proposed
terms and conditions.
(2) Designate the respective Tranche for such Incremental Term Loan
Commitments.
(3) Insert Maturity Date for the Incremental Term Loans to be incurred
pursuant to the Incremental Term Loan Commitments provided hereunder,
provided that (i) such Incremental Term Loan Maturity Date shall be no
earlier than the Tranche C Term Loan Maturity Date (or, in the case of
Incremental Term Loans denominated in Canadian Dollars, the Tranche A Term
Loan Maturity Date) and (ii) in the event the Incremental Term Loan
(continued...)
Annex I
Page 2
7. Dates for, and amounts of, Incremental Term Loan Scheduled Repayments:(4)
8. Applicable Margins:(5)
9. The proceeds of the Incremental Terms to be provided hereunder are to be
used for:(6)
10. Other Conditions Precedent:(7)
11. Notice Office:(8)
________________
(...continued)
Commitments to be provided pursuant to this Agreement are to be added to
(and form a part of) an existing Tranche of Term Loans, the Incremental
Term Loan Maturity Date for the Incremental Term Loans to be incurred
pursuant to such Incremental Term Loan Commitments shall be the same
Maturity Date as for such existing Tranche of Term Loans.
(4) Set forth the dates for Incremental Term Loan Scheduled Repayments and the
principal amount (expressed as a numerical amount or as a percentage of
the aggregate amount of Incremental Term Loans to be incurred pursuant to
the Incremental Term Loan Commitments provided hereunder), provided that
(i) to the extent the Incremental Term Loan Commitments being provided
hereunder constitute a new Tranche of Term Loans, the Weighted Average
Life to Maturity of such new Tranche shall be no less than the Weighted
Average Life to Maturity as then in effect for the Tranche C Term Loans
(or, in the case of Incremental Term Loans denominated in Canadian
Dollars, the Tranche A Term Loans) and (ii) in the event the Incremental
Term Loan Commitments to be provided hereunder are to be added to (and
form a part of) an existing Tranche of Term Loans, (x) the Incremental
Term Loan Scheduled Repayments for such Incremental Term Loans shall be
the same (on a proportionate basis) as is theretofore applicable to the
existing Tranche of Term Loans to which such new Incremental Term Loans
are being added and (y) such Incremental Term Loans shall have the same
Incremental Term Loan Scheduled Repayment Dates.
(5) Insert the Applicable Margins that shall apply to the Incremental Term
Loans being provided hereunder, provided in the event the Incremental Term
Loan Commitments to be provided hereunder are to be made under (and form a
part of) an existing Tranche of Term Loans, the Incremental Term Loans to
be incurred pursuant to such Incremental Term Loan Commitments shall have
the same Applicable Margins applicable to such existing Tranche of Term
Loans.
(6) Designate the specific use of the proceeds of the applicable Incremental
Term Loans as provided in Section 9.11(a)(ii) of the Credit Agreement.
(7) Insert any additional conditions precedent which may be required to be
satisfied prior to the Agreement Effective Date.
Annex I
Page 3
12. Payment Office:(9)
13. Minimum Borrowing Amount:(10)
14. Minimum Voluntary Prepayment Amount under Section 5.01(ii) of the Credit
Agreement:(11)
[15. The U.S. Borrower agrees to pay compensation as, and to the extent,
provided in the last paragraph of Section 2.15(c) of the Credit
Agreement.](12)
_______________
(...continued)
(8) The Notice Office for Incremental Term Loans incurred by the Incremental
Term Loan Borrower shall be as set forth in the definition of "Notice
Office" in Section 1 of the Credit Agreement.
(9) The Payment Office for Incremental Term Loans incurred by the Incremental
Term Loan Borrower shall be as set forth in the definition of "Payment
Office" in Section 1 of the Credit Agreement.
(10) The Administrative Agent shall designate the Minimum Borrowing Amount for
the respective Tranche of Incremental Term Loans, pursuant to the
definition of "Minimum Borrowing Amount" in Section 1 of the Credit
Agreement.
(11) The Administrative Agent shall designate the minimum amount for partial
voluntary prepayments pursuant to Section 5.01(ii) of the Credit Agreement
for the respective Tranche of Incremental Term Loans.
(12) Insert if the respective Incremental Term Loan Commitments are to be added
to (and form a part of) an existing Tranche of Term Loans.
