-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, CxBEejGNfPd8b6xJCKx+OJBJjDA1s+G9YYX+OindxfDdyVnmR075rt4FkJLTcR3Y NldnDAYdLoVaDek5pgyHzQ== 0000950124-99-001271.txt : 19990219 0000950124-99-001271.hdr.sgml : 19990219 ACCESSION NUMBER: 0000950124-99-001271 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 19990203 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19990218 FILER: COMPANY DATA: COMPANY CONFORMED NAME: HAYES LEMMERZ INTERNATIONAL INC CENTRAL INDEX KEY: 0000893670 STANDARD INDUSTRIAL CLASSIFICATION: MOTOR VEHICLE PARTS & ACCESSORIES [3714] IRS NUMBER: 133384636 STATE OF INCORPORATION: DE FISCAL YEAR END: 0131 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 001-11592 FILM NUMBER: 99544859 BUSINESS ADDRESS: STREET 1: 38481 HURON RIVER DR CITY: ROMULUS STATE: MI ZIP: 48174 BUSINESS PHONE: 3139412000 MAIL ADDRESS: STREET 1: 38481 HURON RIVER DR CITY: RONULUS STATE: MI ZIP: 48174 FORMER COMPANY: FORMER CONFORMED NAME: HAYES WHEELS INTERNATIONAL INC DATE OF NAME CHANGE: 19951214 8-K 1 FORM 8-K 1 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ------------------------ FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES AND EXCHANGE ACT OF 1934 DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): FEBRUARY 3, 1999 HAYES LEMMERZ INTERNATIONAL, INC. DELAWARE 1-11592 13-3384636 State or Other Jurisdiction (Commission File Number) of Incorporation) (IRS Employer Identification Number)
38481 HURON RIVER DRIVE, ROMULUS, MICHIGAN 48174 (Address of principal executive offices) (Zip Code)
Registrant's Telephone number, including area code (734) 941-2000 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 2 ITEM 2. ACQUISITION AND DISPOSITION OF ASSETS THE ACQUISITION On February 3, 1999, Hayes Lemmerz International, Inc. (the "Company") consummated its previously announced acquisition (the "CMI Acquisition") of CMI International, Inc., a Michigan corporation ("CMI"), pursuant to an Agreement and Plan of Merger (the "Merger Agreement") among the Company, CMI, HL-CMI Holding Co. and Ray H. Witt, as Trustee of the Ray H. Witt Living Trust Agreement dated December 2, 1981, as amended and restated. CMI designs and manufactures a select group of products, including wheel-end attachments and assemblies, undercarriage components and powertrain and engine components, principally for sale to original equipment manufacturers of passenger cars and light trucks. Pursuant to the Merger Agreement, the Company acquired the capital stock of CMI for $605 million in cash, of which approximately $135 million was used to repay CMI's indebtedness existing at the time of the CMI Acquisition and the balance of which was paid to the then existing shareholders of CMI. The cash portion of the consideration, the refinancing of existing CMI debt and the fees and expenses of the CMI Acquisition were financed with proceeds (i) under the Company's Third Amended and Restated Credit Agreement dated as of February 3, 1999 among the Company, the Managing Agents (as defined therein) and the Lenders thereto (the "Amended Credit Agreement") and (ii) from the sale of $250 million aggregate principal amount of 8 1/4% Senior Subordinated Notes of Hayes due 2008 (the "New Notes"). The Merger Agreement has been filed as an exhibit to the Company's Quarterly Report on Form 10-Q dated December 15, 1998 and such document is incorporated herein by reference. The foregoing description is qualified in its entirety by reference to such exhibit. THE FINANCING AMENDED CREDIT AGREEMENT In connection with the CMI Acquisition, the Company entered into the Amended Credit Agreement pursuant to which a syndicate of lenders has agreed to lend to the Company up to $1.1 billion in the form of a $450 million senior secured term loan facility (the "Term Loan Facility"), a portion of which Term Loan Facility is permitted to be denominated in Deutschemarks or euro units, and a $650 million senior secured revolving credit facility (the "Revolving Credit Facility," and, together with the Term Loan Facility, the "Loans"). Use of Proceeds Maturities. The Term Loan Facility was made available to the Company and its subsidiaries upon the consummation of the CMI Acquisition (the "Effective Time") to finance the payment of the purchase price. The Revolving Credit Facility was also made available at the Effective Time (including through the making of revolving loans and the issuance of letters of credit) for general corporate purposes of the Company and its subsidiaries. The Term Loan Facility will mature on February 15, 2005, and will amortize in quarterly installments. The Revolving Credit Facility will mature on February 15, 2005. The Amended Credit Agreement requires the Company to reduce the amount outstanding under the Revolving Credit Facility to $300 million during a thirty (30) day period each year. Prepayments; Reduction of Commitments. Loans under the Term Loan Facility are required to be prepaid with (i) 75% of excess cash flow (reducing to 50% in the event the Company's leverage ratio is less than 3.0 to 1), (ii) 100% of the net cash proceeds of all non-ordinary-course asset sales or other dispositions of property by the Company and its subsidiaries (including insurance and condemnation proceeds), subject to limited exceptions, and (iii) 100% of the net proceeds of issuances of debt obligations of the Company and its subsidiaries, subject to limited exceptions. Such mandatory prepayments and commitment reductions are first allocated to the Term Loan Facility and second to commitments under the Revolving Credit Facility. Within the Term Loan Facility, such prepayments are applied pro rata to the remaining amortization payments under such facility, provided, however, that in the event Term Loans denominated in Deutschemarks or euro units are outstanding at the time of any prepayment, mandatory prepayments shall be applied first to prepay the Term Loans denominated in dollars. 2 3 Voluntary prepayments are permitted, in whole or in part, at the option of the Company, without premium or penalty, subject to reimbursement of the Lenders' redeployment costs in the case of prepayment of eurocurrency borrowings ("Eurocurrency Loans") other than on the last day of the relevant interest period. All voluntary prepayments under the Term Loan Facility are applied pro rata to the remaining amortization payments under the Term Loan Facility. Interest. The interest rates under the Loans are, at the option of the Company, based upon either an adjusted eurocurrency rate (the "Eurocurrency Rate") or the rate which is equal to the highest of CIBC's prime rate, the federal funds rate plus 1/2 of 1% and the base certificate of deposit rate plus 1 % ("ABR"), in each case plus an applicable margin based on the leverage ratio of the Company from time to time in effect. The applicable margin for ABR Loans ranges from 0% to 1.0%. The applicable margin for Loans at the Eurocurrency Rate ("Eurocurrency Loans") is from 1.25% to 2.50%. The Company may elect interest periods of 1, 2, 3 or 6 months for Eurocurrency Loans. Calculation of interest is computed on the basis of actual number of days elapsed in a year of 360 days (or 365 or 366 days, as the case may be, in the case of ABR loans based on the Prime Rate) and interest is payable at the end of each interest period and, in any event, at least every three months. Collateral and Guarantees. The Loans are guaranteed by the Company and all of its existing and future domestic subsidiaries. The Loans are secured by a first priority lien in substantially all of the properties and assets of the Company and its domestic subsidiaries, now owned or acquired later, including a pledge of all of the shares of the Company's respective existing and future domestic subsidiaries and 65% of the shares of certain of the Company's existing and future foreign subsidiaries. Covenants. The Amended Credit Agreement contains covenants restricting the ability of the Company and its subsidiaries to, among others (i) declare dividends or redeem or repurchase capital stock, (ii) prepay, redeem or purchase debt, (iii) incur liens and engage in sale-leaseback transactions, (iv) make loans and investments, (v) issue more debt, (vi) amend or otherwise alter debt and other material agreements, (vii) make capital expenditures, (viii) engage in mergers, acquisitions and asset sales, (ix) engage in transactions with affiliates and (x) alter the business it conducts. The Company must also make certain customary indemnifications of the Managing Agents and the Lenders and will also be required to comply with financial covenants with respect to (i) a maximum leverage ratio, (ii) a minimum interest coverage ratio and (iii) a minimum fixed charge coverage ratio. The Company is also required to satisfy certain customary affirmative covenants. Events of Default. Events of default under the Amended Credit Agreement include but are not limited to (i) the Company's failure to pay principal or interest when due, (ii) the Company's material breach of any covenant, representation or warranty contained in the loan documents, (iii) customary cross-default provisions, (iv) events of bankruptcy, insolvency or dissolution of the Company or its subsidiaries, (v) the existence of certain judgments against the Company, its subsidiaries or their assets, (vi) certain adverse events under ERISA plans of the Company or its subsidiaries, (vii) the actual or asserted invalidity of security documents or guarantees of the Company or its subsidiaries and (viii) a change of control of the Company. NEW NOTES In connection with the CMI Acquisition, on December 14, 1998, the Company issued the New Notes, comprising $250 million aggregate principal amount of 8 1/4% Senior Subordinated Notes due 2008, in a transaction which was exempt from registration under the Securities Act of 1933 in reliance on Rule 144A promulgated thereunder. The New Notes are general unsecured obligations of the Company, subordinated in right of payment to senior indebtedness of the Company, pari passu with an aggregate of $250 million of the Company's 11% Senior Subordinated Indebtedness due 2006 and $400 million of the Company's 9 1/8% Senior Subordinated Indebtedness due 2007, and senior in right of payment to any current or future subordinated indebtedness of the Company. The New Notes are unconditionally guaranteed, on a senior subordinated basis, as to the payment of principal, premium, if any, and interest, jointly and severally by the Company's material domestic subsidiaries. Interest on the New Notes is payable in arrears on June 15 and December 15 commencing June 15, 1999. 3 4 The Indenture governing the New Notes (the "New Notes Indenture") limits or restricts, among other things: (i) the incurrence of additional domestic and foreign indebtedness, with certain exceptions; (ii) the making of any Restricted Payment (as defined in the New Notes Indenture); (iii) the incurrence of debt that is junior to the senior secured indebtedness of the Company and senior to the New Notes; (iv) the creation of certain liens; (v) entering into certain transactions with affiliates; (vi) the sale of assets; (vii) the issuance of common stock of subsidiaries; and (viii) the merger, consolidation or sale of substantially all of the assets of the Company. The New Notes Indenture also provides that a holder of the New Notes may, under certain circumstances, have the right to require that the Company repurchase such holder's New Notes upon a change of control of the Company. The New Notes mature on December 15, 2008 and may not be redeemed prior to December 15, 2003; provided, however, that the Company may, at any time and from time to time prior to December 15, 2001, redeem up to 35% of the aggregate principal amount of the New Notes at a price equal to 108.25% of the aggregate principal amount so redeemed, plus accrued and unpaid interest to the date of redemption, with the Net Cash Proceeds (as defined in the New Notes Indenture) of one or more Equity Offerings (as defined in the New Notes Indenture), provided that at least $162.5 million aggregate principal amount of the New Notes remain outstanding. On or after December 15, 2003, the Company may, at its option, redeem the New Notes in whole or in part, on at least 30 days' notice but not more than 60 days' notice to each holder of the New Notes, at the prices during the twelve-month periods set forth below, together with accrued and unpaid interest to the redemption date:
TWELVE-MONTH PERIOD COMMENCING DECEMBER 15 OF PERCENTAGE ------------------------- ---------- 2003........................................................ 104.125% 2004........................................................ 102.750 2005........................................................ 101.375 2006 and thereafter......................................... 100.000
Pursuant to an Exchange Offer Registration Rights Agreement (the "Registration Rights Agreement"), the Company has agreed to use its best efforts to file and have declared effective an Exchange Offer Registration Statement with respect to an offer to exchange the New Notes for notes of the Company with terms substantially identical to the New Notes. The Company is also obligated to consummate such exchange offer on or prior to August 16, 1999. Copies of the Amended Credit Agreement, the New Notes Indenture and the Registration Rights Agreement are being filed as exhibits to this Report. The foregoing descriptions are qualified in their entirety by reference to such exhibits. ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS. (a) Financial Statements of Business to be Acquired: CMI Consolidated Balance Sheets as of May 31, 1998 and 1997 and Consolidated Income Statements and Statement of Cash Flows for the years ended May 31, 1998, 1997 and 1996 and CMI Consolidated Balance Sheet as of August 31, 1998 and Consolidated Income Statements and Statement of Cash Flows for the quarters ended August 31, 1998 and 1997 (incorporated by reference from the Company's Current Report on Form 8-K dated December 7, 1998) 4 5 (b) Pro Forma Financial Information: Unaudited Pro Forma Combined Financial Statements for the year ended January 31, 1998 and the six months ended July 31, 1998 and the notes thereto (incorporated by reference from the Company's Current Report on Form 8-K dated December 7, 1998) (c) Exhibits 4.11 Indenture, dated as of December 14, 1998, among the Company, as Issuer, certain subsidiaries of the Company, as Guarantors, and The Bank of New York, a New York banking corporation, as Trustee. 4.12 Registration Rights Agreement, dated as of December 14, 1998, among the Company, as Issuer, certain subsidiaries of the Company, as Guarantors, and CIBC Oppenheimer Corp., Credit Suisse First Boston Corporation, Merrill Lynch, Pierce, Fenner & Smith Incorporated, as the Initial Purchasers. 10.29 Third Amended and Restated Credit Agreement, dated as of February 3, 1999, among the Company, as Borrower, the several banks and other financial institutions from time to time Parties thereto, as Lenders, Canadian Imperial Bank of Commerce, as Administrative Agent and Co-Lead Arranger, Credit Suisse First Boston, as Syndication Agent and Co-Lead Arranger, Merrill Lynch Capital Corporation, as Co-Documentation Agent, and Dresdner Bank AG, as Co-Documentation Agent and European Swing Line Administrator.
5 6 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. HAYES LEMMERZ INTERNATIONAL, Inc. By: /s/ WILLIAM D. SHOVERS ------------------------------- William D. Shovers Vice President- Finance Date: February 18, 1999 6 7 EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION - ------- ----------- 4.11 Indenture, dated as of December 14, 1998, among the Company, as Issuer, certain subsidiaries of the Company, as Guarantors, and The Bank Of New York, a New York banking corporation, as Trustee. 4.12 Registration Rights Agreement, dated as of December 14, 1998, among the Company, as Issuer, certain subsidiaries of the Company, as Guarantors, and CIBC Oppenheimer Corp., Credit Suisse First Boston Corporation, Merrill Lynch, Pierce, Fenner & Smith Incorporated, as the Initial Purchasers. 10.29 Third Amended and Restated Credit Agreement, dated as of February 3, 1999, among the Company, as Borrower, the several banks and other financial institutions from time to time Parties thereto, as Lenders, Canadian Imperial Bank of Commerce, as Administrative Agent and Co-Lead Arranger, Credit Suisse First Boston, as Syndication Agent and Co-Lead Arranger, Merrill Lynch Capital Corporation, as Co-Documentation Agent, and Dresdner Bank AG, as Co-Documentation Agent and European Swing Line Administrator.
EX-4.11 2 INDENTURE 1 EXHIBIT 4.11 ================================================================================ HAYES LEMMERZ INTERNATIONAL, INC. THE GUARANTORS NAMED HEREIN, and The Bank of New York, as Trustee -------------------- INDENTURE Dated as of December 14, 1998 -------------------- $250,000,000 8-1/4% Senior Subordinated Notes due 2008 ================================================================================ 2 CROSS-REFERENCE TABLE TIA Indenture Section Section - ------- --------- 310(a)(1).................................................. 7.10 (a)(2).................................................. 7.10 (a)(3).................................................. N.A. (a)(4).................................................. N.A. (a)(5).................................................. 7.10 (b)..................................................... 7.08; 7.10; 12.02 (b)(1).................................................. 7.10 (c)..................................................... N.A. 311(a)..................................................... 7.11 (b)..................................................... 7.11 (c)..................................................... N.A. 312(a)..................................................... 2.05 (b)..................................................... 12.03 (c)..................................................... 12.03 313(a)..................................................... 7.06 (b)(1).................................................. 7.06 (b)(2).................................................. 7.06 (c)..................................................... 7.06; 12.02 (d)..................................................... 7.06 314(a)..................................................... 4.02; 4.04 12.02 (b)..................................................... N.A. (c)(1).................................................. 12.04; 12.05 (c)(2).................................................. 12.04; 12.05 (c)(3).................................................. N.A. (d)..................................................... N.A. (e)..................................................... 12.05 (f)..................................................... N.A. 315(a)..................................................... 7.01; 7.02 (b)..................................................... 7.05; 12.02 (c)..................................................... 7.01 (d)..................................................... 6.05; 7.01; 7.02 (e)..................................................... 6.11 316(a) (last sentence)..................................... 12.06 (a)(1)(A)............................................... 6.05 (a)(1)(B)............................................... 6.04 (a)(2).................................................. 8.02; 12.06 (b)..................................................... 6.07 (c)..................................................... 8.04 317(a)(1).................................................. 6.08 (a)(2).................................................. 6.09 (b)..................................................... 7.12 318(a)..................................................... 12.01 - -------------------- N.A. means Not Applicable NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a part of the Indenture. 3 TABLE OF CONTENTS
Page ---- ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE Section 1.01. Definitions.......................................... 1 Section 1.02. Other Definitions.................................... 24 Section 1.03. Incorporation by Reference of Trust Indenture Act............................... 25 Section 1.04. Rules of Construction................................ 25 ARTICLE 2 THE NOTES Section 2.01. Amount of Notes and Form and Dating............................................ 26 Section 2.02. Execution and Authentication......................... 27 Section 2.03. Registrar and Paying Agent........................... 28 Section 2.04. Paying Agent To Hold Assets in Trust................. 28 Section 2.05. Noteholder Lists..................................... 29 Section 2.06. Transfer and Exchange................................ 29 Section 2.07. Replacement Notes.................................... 30 Section 2.08. Outstanding Notes.................................... 30 Section 2.09. Temporary Notes...................................... 31 Section 2.10. Cancellation......................................... 31 Section 2.11. Defaulted Interest................................... 32 Section 2.12. Deposit of Moneys.................................... 32 Section 2.13. CUSIP Number......................................... 32 Section 2.14. Book-Entry Provisions for Global Notes............................................. 32 Section 2.15. Special Transfer Provisions.......................... 35 Section 2.16. Computation of Interest.............................. 37 ARTICLE 3 REDEMPTION Section 3.01. Notices to Trustee................................... 37 Section 3.02. Selection by Trustee of Notes To Be Redeemed....................................... 38 Section 3.03. Notice of Redemption................................. 38 Section 3.04. Effect of Notice of Redemption....................... 39 Section 3.05. Deposit of Redemption Price.......................... 39 Section 3.06. Notes Redeemed in Part............................... 40
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Page ---- ARTICLE 4 COVENANTS Section 4.01. Payment of Notes................................. 40 Section 4.02. SEC Reports...................................... 41 Section 4.03. Waiver of Stay, Extension or Usury Laws.......................................... 41 Section 4.04. Compliance Certificate........................... 42 Section 4.05. Payment of Taxes and Other Claims................ 43 Section 4.06. Maintenance of Properties and Insurance..................................... 43 Section 4.07. Compliance with Laws............................. 44 Section 4.08. Corporate Existence.............................. 44 Section 4.09. Maintenance of Office or Agency.................. 45 Section 4.10. Limitation on Additional Indebtedness.................................. 45 Section 4.11. Limitation on Foreign Indebtedness............... 46 Section 4.12. Limitation on Common Stock of Subsidiaries.................................. 47 Section 4.13. Limitation on Restricted Payments................ 47 Section 4.14. Limitation on Other Senior Subordinated Debt..... 49 Section 4.15. Limitation on Certain Asset Sales................ 49 Section 4.16. Limitation on Transactions with Affiliates.................................... 53 Section 4.17. Limitations on Liens............................. 53 Section 4.18. Limitation on Creation of Subsidiaries.................................. 54 Section 4.19. Payments for Consent............................. 54 Section 4.20. Change of Control................................ 55 ARTICLE 5 SUCCESSOR CORPORATION Section 5.01. Limitation on Consolidation, Merger and Sale of Assets................... 57 Section 5.02. Successor Person Substituted................... 58 ARTICLE 6 DEFAULTS AND REMEDIES Section 6.01. Events of Default.............................. 59 Section 6.02. Acceleration................................... 60 Section 6.03. Other Remedies................................. 61 Section 6.04. Waiver of Past Defaults and Events of Default.................................. 62 Section 6.05. Control by Majority............................ 62
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Page ---- Section 6.06. Limitation on Suits............................. 62 Section 6.07. Rights of Holders To Receive Payment...................................... 63 Section 6.08. Collection Suit by Trustee...................... 63 Section 6.09. Trustee May File Proofs of Claim................ 63 Section 6.10. Priorities...................................... 64 Section 6.11. Undertaking for Costs........................... 64 ARTICLE 7 TRUSTEE Section 7.01. Duties of Trustee............................... 65 Section 7.02. Rights of Trustee............................... 66 Section 7.03. Individual Rights of Trustee.................... 67 Section 7.04. Trustee's Disclaimer............................ 67 Section 7.05. Notice of Default............................... 68 Section 7.06. Reports by Trustee to Holders................... 68 Section 7.07. Compensation and Indemnity...................... 68 Section 7.08. Replacement of Trustee.......................... 69 Section 7.09. Successor Trustee by Consolidation, Merger or Conversion................................... 70 Section 7.10. Eligibility; Disqualification................... 71 Section 7.11. Preferential Collection of Claims Against Company.............................. 71 Section 7.12. Paying Agents................................... 71 ARTICLE 8 AMENDMENTS, SUPPLEMENTS AND WAIVERS Section 8.01. Without Consent of Holders...................... 72 Section 8.02. With Consent of Holders......................... 72 Section 8.03. Compliance with Trust Indenture Act.......................................... 74 Section 8.04. Revocation and Effect of Consents............... 74 Section 8.05. Notation on or Exchange of Notes................ 75 Section 8.06. Trustee To Sign Amendments, etc................. 75 ARTICLE 9 DISCHARGE OF INDENTURE; DEFEASANCE Section 9.01. Discharge of Indenture.......................... 75 Section 9.02. Legal Defeasance................................ 76 Section 9.03. Covenant Defeasance............................. 76 Section 9.04. Conditions to Defeasance or Covenant Defeasance................................... 77
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Page ---- Section 9.05. Deposited Money and U.S. Government Obligations To Be Held in Trust; Other Miscellaneous Provisions............................................... 79 Section 9.06. Reinstatement............................................................. 80 Section 9.07. Moneys Held by Paying Agent............................................... 80 Section 9.08. Moneys Held by Trustee.................................................... 80 ARTICLE 10 GUARANTEE OF NOTES Section 10.01. Guarantee................................................................. 81 Section 10.02. Execution and Delivery of Guarantees............................................................. 82 Section 10.03. Limitation of Guarantee................................................... 83 Section 10.04. Additional Guarantors..................................................... 83 Section 10.05. Release of Guarantor...................................................... 83 Section 10.06. Guarantee Obligations Subordinated to Guarantor Senior Indebtedness....................................... 84 Section 10.07. Payment Over of Proceeds upon Dissolution, etc., of a Guarantor.............................................................. 84 Section 10.08. Suspension of Guarantee Obligations When Guarantor Senior Indebtedness in Default......................................... 86 Section 10.09. Subrogation to Rights of Holders of Guarantor Senior Indebtedness....................................... 88 Section 10.10. Guarantee Subordination Provisions Solely To Define Relative Rights....................................... 89 Section 10.11. Application of Certain Article 11 Provisions............................................................. 90 ARTICLE 11 SUBORDINATION OF NOTES Section 11.01. Notes Subordinate to Senior Indebtedness........................................................... 90 Section 11.02. Payment Over of Proceeds upon Dissolution, etc. ..................................................... 90 Section 11.03. Suspension of Payment When Senior Indebtedness in Default................................................ 92 Section 11.04. Trustee's Relation to Senior Indebtedness........................................................... 94 Section 11.05. Subrogation to Rights of Holders of Senior Indebtedness................................................. 94 Section 11.06. Provisions Solely To Define Relative Rights........................................................ 95
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Page ---- Section 11.07. Trustee To Effectuate Subordination.......................................................... 96 Section 11.08. No Waiver of Subordination Provisions............................................................. 96 Section 11.09. Notice to Trustee......................................................... 97 Section 11.10. Reliance on Judicial Order or Certificate of Liquidating Agent.................................................................. 98 Section 11.11. Rights of Trustee as a Holder of Senior Indebtedness; Preservation of Trustee's Rights....................................... 98 Section 11.12. Article Applicable to Paying Agents.......................................................... 98 Section 11.13. No Suspension of Remedies................................................. 99 ARTICLE 12 MISCELLANEOUS Section 12.01. Trust Indenture Act Controls.............................................. 99 Section 12.02. Notices................................................................... 99 Section 12.03. Communications by Holders with Other Holders.......................................................... 100 Section 12.04. Certificate and Opinion as to Conditions Precedent................................................... 100 Section 12.05. Statements Required in Certificate and Opinion............................................................ 101 Section 12.06. When Treasury Notes Disregarded........................................... 101 Section 12.07. Rules by Trustee and Agents............................................... 102 Section 12.08. Business Days; Legal Holidays............................................. 102 Section 12.09. Governing Law............................................................. 102 Section 12.10. No Adverse Interpretation of Other Agreements............................................................. 102 Section 12.11. No Recourse Against Others................................................ 102 Section 12.12. Successors................................................................ 103 Section 12.13. Multiple Counterparts..................................................... 103 Section 12.14. Table of Contents, Headings, etc.......................................... 103 Section 12.15. Separability.............................................................. 103 EXHIBITS - -------- Exhibit A. Form of Note.............................................................. A-1 Exhibit B. Form of Legend for 144A Note.............................................. B-1 Exhibit C. Form of Legend for Regulation S Note................................................................... C-1 Exhibit D. Form of Legend for Global Note............................................ D-1 Exhibit E. Form of Certificate for Non-QIB Transfers.............................................................. E-1 Exhibit F. Form of Certificate for Regulation S Transfers............................ F-1
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Page ---- Exhibit G. Form of Guarantee......................................................... G-1
-vi- 9 INDENTURE, dated as of December 14, 1998, among HAYES LEMMERZ INTERNATIONAL, INC., a Delaware corporation, as Issuer (the "Company"), the GUARANTORS (as hereinafter defined) and THE BANK OF NEW YORK, a New York banking corporation, as Trustee (the "Trustee"). Each party agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the Holders of the Company's 8-1/4% Senior Subordinated Notes due 2008 (the "Notes"): ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE Section 1.01. Definitions. "9 1/8% Notes" means the 9 1/8% Senior Subordinated Notes due 2007 of the Company issued June 30, 1997 and July 15, 1997. "9 1/8% Notes Indentures" means the Indentures, dated as of June 30, 1997 and July 15, 1997, among the Company, the Guarantors and The Bank of New York, as Trustee, as such indentures may be amended, modified or supplemented from time to time. "11% Notes" means the 11% Senior Subordinated Notes due 2006 of the Company. "11% Notes Indenture" means the Indenture, dated as of July 2, 1996, among the Company, the Guarantors and Comerica Bank, as Trustee, as such indenture may be amended, modified or supplemented from time to time. "Acquired Indebtedness" means Indebtedness of a Person (including an Unrestricted Subsidiary) existing at the time such Person becomes a Restricted Subsidiary or is merged or consolidated with or into the Company or a Restricted Subsidiary or assumed in connection with the acquisition of assets from such Person. "Adjusted EBITDA" means, for any Person, for any period, the EBITDA of such Person, plus any amounts excluded from the calculation of the Consolidated Net Income of such Person pursuant to clause (b) of the definition thereof. "Additional Interest" means additional interest on the Notes which the Company and the Guarantors, jointly and 10 -2- severally, agree to pay to the Holders pursuant to Section 4(a) of the Registration Rights Agreement. "Adjusted Net Assets" of a Guarantor at any date shall mean the lesser of the amount by which (x) the fair value of the property of such Guarantor exceeds the total amount of liabilities, including, without limitation, contingent liabilities (after giving effect to all other fixed and contingent liabilities (including, without limitation, any guarantees of Senior Indebtedness)), but excluding liabilities under the Guarantee, of such Guarantor at such date and (y) the present fair salable value of the assets of such Guarantor at such date exceeds the amount that will be required to pay the probable liability of such Guarantor on its debts (after giving effect to all other fixed and contingent liabilities (including, without limitation, any guarantees of Senior Indebtedness) and after giving effect to any collection from any Subsidiary of such Guarantor in respect of the obligations of such Subsidiary under the Guarantee), excluding Indebtedness in respect of the Guarantee, as they become absolute and matured. "Affiliate" of any specified Person means any other Person which directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, such specified Person. For the purposes of this definition, "control" (including, with correlative meanings, the terms "controlling," "controlled by," and "under common control with"), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise. "Agent" means any Registrar, Paying Agent, co-registrar or agent for service of notices and demands. "Amended Credit Agreement" means the Second Amended and Restated Credit Agreement, dated as of June 12, 1998, among the Company, CIBC, as administrative agent, Merrill Lynch Capital Corporation, as documentation agent, and the lenders from time to time parties thereto as such agreement may be amended, modified or supplemented from time to time, including the proposed amendment to the Amended Credit Agreement pursuant to a certain commitment letter dated November 19, 1998 from Credit Suisse First Boston Corporation and Canadian Imperial Bank of Commerce, or deferred, renewed, extended, refunded, refinanced, restructured or replaced from time to time in whole or in part (whether with the original administrative agent and lenders or other agents and lenders or otherwise, and whether provided un- 11 -3- der the Second Amended and Restated Credit Agreement or other amended credit agreements or otherwise). "Argosy" means CIBC WG Argosy Merchant Fund 2, L.L.C. "Asset Sale" means the sale, transfer or other disposition in any single transaction or series of related transactions of (a) any Capital Stock of or other equity interest in any Restricted Subsidiary of the Company, (b) all or substantially all of the assets of the Company or of any Restricted Subsidiary thereof, (c) real property or (d) all or substantially all of the assets of any business owned by the Company or any Restricted Subsidiary thereof, or a division, line of business or comparable business segment of the Company or any Restricted Subsidiary thereof; provided that Asset Sales shall not include (i) sales, leases, conveyances, transfers or other dispositions to the Company or to a Restricted Subsidiary or to any other Person if after giving effect to such sale, lease, conveyance, transfer or other disposition such other Person becomes a Restricted Subsidiary, or (ii) leases, conveyances or other transfers by the Company or a Restricted Subsidiary of Property to any Person as an Investment in such Person provided that the Company or such Restricted Subsidiary receives consideration at the time of such lease, conveyance or other transfer at least equal to the fair market value of such Property and such Investment is included in clause (v) of the second paragraph of Section 4.13. "Asset Sale Proceeds" means, with respect to any Asset Sale, (i) cash received by the Company or any Restricted Subsidiary from such Asset Sale (including cash received as consideration for the assumption of liabilities incurred in connection with or in anticipation of such Asset Sale), after (a) provision for all income or other taxes measured by or resulting from such Asset Sale, (b) payment of all brokerage commissions, underwriting and other fees and expenses related to such Asset Sale, (c) provision for minority interest holders in any Restricted Subsidiary as a result of such Asset Sale and (d) deduction of appropriate amounts to be provided by the Company or a Restricted Subsidiary as a reserve, in accordance with GAAP, against any liabilities associated with the assets sold or disposed of in such Asset Sale and retained by the Company or a Restricted Subsidiary after such Asset Sale, including, without limitation, pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations associated with the assets sold or disposed of in such Asset Sale, and (ii) promissory notes and other non-cash consideration received by the Company or any Restricted Subsidiary from such Asset 12 -4- Sale or other disposition upon the liquidation or conversion of such notes or non-cash consideration into cash. "Attributable Indebtedness" in respect of a Sale and Lease-Back Transaction means, as at the time of determination, the present value of the Notes (discounted according to GAAP at the cost of indebtedness implied in the lease) of the total obligations of the lessee for rental payments during the remaining term of the lease included in such Sale and Lease-Back Transaction (including any period for which such lease has been extended). "Available Asset Sale Proceeds" means, with respect to any Asset Sale, the aggregate Asset Sale Proceeds from such Asset Sale that have not been applied in accordance with clause (iii)(A), (iii)(B) or (iii)(C) of Section 4.15(a) and that have not been the basis for an Excess Proceeds Offer in accordance with clause (iii)(D) of such Section 4.15(a). "Board of Directors" means the board of directors of the Company or a Guarantor, as appropriate, or any committee authorized to act therefor. "Board Resolution" means a copy of a resolution certified pursuant to an Officers' Certificate to have been duly adopted by the Board of Directors of the Company or a Guarantor, as appropriate, and to be in full force and effect, and delivered to the Trustee. "Capital Stock" means, with respect to any Person, any and all shares or other equivalents (however designated) of capital stock, partnership interests or any other participation, right or other interest in the nature of an equity interest in such Person or any option, warrant or other security convertible into any of the foregoing. "Capitalized Lease Obligations" means Indebtedness represented by obligations under a lease that is required to be capitalized for financial reporting purposes in accordance with GAAP, and the amount of such Indebtedness shall be the capitalized amount of such obligations determined in accordance with GAAP. "Cash Equivalents" means (i) direct obligations of the United States of America or any agency thereof, or obligations guaranteed or insured by the United States of America, provided that in each case such obligations mature within one year from the date of acquisition thereof, (ii) certificates of deposit maturing within one year from the date of creation thereof issued by any U.S. national or state banking institu- 13 -5- tion having capital, surplus and undivided profits aggregating at least $500,000,000 and rated at least A-1 by S&P and P-1 by Moody's, (iii) commercial paper with a maturity of 180 days or less issued by a corporation (except an Affiliate of the Company) organized under the laws of any state of the United States or the District of Columbia and rated at least A-1 by S&P or at least P-1 by Moody's and (iv) repurchase agreements and reverse repurchase agreements relating to marketable direct obligations issued or unconditionally guaranteed by the United States of America or issued by an agency thereof and backed by the full faith and credit of the United States of America, in each case maturing within one year from the date of acquisition; provided that the terms of such agreements comply with the guidelines set forth in the Federal Financial Agreements of Depository Institutions with Securities Dealers and Others, as adopted by the Comptroller of the Currency and (v) tax-exempt auction rate securities and municipal preferred stock, in each case, subject to reset no more than 35 days after the date of acquisition and having a rating of at least AA by S&P or AA by Moody's. A "Change of Control" of the Company will be deemed to have occurred at such time as (i) any Person (including a Person's Affiliates and associates), other than a Permitted Holder, becomes the beneficial owner (as defined under Rule 13d-3 or any successor rule or regulation promulgated under the Exchange Act) of 50% or more of the total voting power of the Company's Common Stock, (ii) any Person (including a Person's Affiliates and associates), other than a Permitted Holder, becomes the beneficial owner of more than 30% of the total voting power of the Company's Common Stock, and the Permitted Holders beneficially own, in the aggregate, a lesser percentage of the total voting power of the Common Stock of the Company than such other Person and do not have the right or ability by voting power, contract or otherwise to elect or designate for election a majority of the Board of Directors of the Company, (iii) there shall be consummated any consolidation or merger of the Company in which the Company is not the continuing or surviving corporation or pursuant to which the Common Stock of the Company would be converted into cash, securities or other property, other than a merger or consolidation of the Company in which the holders of the Common Stock of the Company outstanding immediately prior to the consolidation or merger hold, directly or indirectly, at least a majority of the Common Stock of the surviving corporation immediately after such consolidation or merger, or (iv) during any period of two consecutive years, individuals who at the beginning of such period constituted the Board of Directors of the Company (together with any new directors whose election by such Board of Directors or whose nomination for election by the shareholders of the Com- 14 -6- pany has been approved by 66 2/3% of the directors then still in office who either were directors at the beginning of such period or whose election or recommendation for election was previously so approved) cease to constitute a majority of the Board of Directors of the Company. "Chase" means Chase Equity Associates, L.P. "CIBC" means Canadian Imperial Bank of Commerce. "Common Stock" of any Person means all Capital Stock of such Person that is generally entitled to (i) vote in the election of directors of such Person or (ii) if such Person is not a corporation, vote or otherwise participate in the selection of the governing body, partners, managers or others that will control the management and policies of such Person. "Company" means the party named as such in the first paragraph of this Indenture until a successor replaces such party pursuant to Article 5 of this Indenture and thereafter means the successor and any other obligor on the Notes. "Company Request" means any written request signed in the name of the Company by the Chief Executive Officer, the President, any Vice President, the Chief Financial Officer or the Treasurer and attested to by the Secretary or any Assistant Secretary of the Company. "Consolidated Fixed Charges" means, with respect to any Person, the sum of a Person's (i) Consolidated Interest Expense, plus (ii) the product of (x) the aggregate amount of all dividends paid on Disqualified Capital Stock of the Company or on each series of preferred stock of each Subsidiary of such Person (other than dividends paid or payable in additional shares of preferred stock or to the Company or any of its Wholly-Owned Subsidiaries) times (y) a fraction, the numerator of which is one and the denominator of which is one minus the then current effective combined federal, state and local tax rate of such Person (expressed as a decimal), in each case, for such four-quarter period. "Consolidated Interest Expense" means, with respect to any Person, for any period, the aggregate amount of interest which, in conformity with GAAP, would be set forth opposite the caption "interest expense" or any like caption on an income statement for such Person and its Subsidiaries on a consolidated basis (including, but not limited to, (i) imputed interest included in Capitalized Lease Obligations, (ii) all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers' acceptance financing, (iii) 15 -7- net payments made in connection with Interest Rate Agreements, (iv) the interest portion of any deferred payment obligation, (v) amortization of discount or premium, if any, and (vi) all other non-cash interest expense (other than interest amortized to cost of sales)) plus, without duplication, all net capitalized interest for such period and all interest paid under any guarantee of Indebtedness (including a guarantee of principal, interest or any combination thereof) of any Person, and minus (i) net payments received in connection with Interest Rate Agreements and (ii) amortization of deferred financing costs and expenses. "Consolidated Net Income" means, with respect to any Person, for any period, the aggregate of the net income (before preferred stock dividends, if any) of such Person and its Subsidiaries for such period, on a consolidated basis, determined in accordance with GAAP; provided, however, that there shall be excluded from Consolidated Net Income (a) the net income of any Person which under GAAP is not consolidated with the Person in question other than the amount of dividends or distributions paid to the Person in question or the Subsidiary, (b) the net income of any Subsidiary of the Person in question, other than a Domestic Subsidiary, that is subject to any restriction or limitation on the payment of dividends or the making of other distributions (other than pursuant to the Notes or this Indenture) to the extent of such restriction or limitation (provided that if any such restriction or limitation by its terms takes effect upon the occurrence of a default or an event of default, such exclusion shall become effective only upon the occurrence and during the continuance of such default or event of default), (c) the net income of any Person acquired in a pooling of interests transaction for any period prior to the date of such acquisition, (d) any net gain or loss resulting from a sale of Property by the Person in question or any of its Subsidiaries other than in the ordinary course of business, (e) extraordinary gains and losses, (f) non-recurring gains, non-cash non-recurring losses and charges (including restructuring charges and costs) and, in the case of the Company, cash restructuring charges for any period prior to July 31, 1998, (g) any amounts received by the Company or a Restricted Subsidiary which are used to offset Investments pursuant to the terms of clause (ii) of the definition of "Net Investments," and (h) in the case of clauses (d), (e) and (f), the associated tax effects during such period. "Corporate Trust Office" means the office of the Trustee at which at any particular time its corporate trust business shall be principally administered, which office at the date of execution of this Indenture is located at 101 Barclay Street, Floor 21 West, New York, New York 10286. 16 -8- "Default" means any event that is, or with the passing of time or giving of notice or both would be, an Event of Default. "Depositary" means, with respect to the notes issued in the form of one or more Global Notes, The Depository Trust Company or another Person designated as Depositary by the Company, which Person must be a clearing agency registered under the Exchange Act. "Designated Senior Indebtedness," as to the Company or any Guarantor, as the case may be, means any Senior Indebtedness (a) under or in respect of the Amended Credit Agreement, or (b) which at the time of determination exceeds $25,000,000 in aggregate principal amount (or accreted value in the case of Indebtedness issued at a discount) outstanding or available under a committed facility, and (i) which is specifically designated in the instrument evidencing such Senior Indebtedness as "Designated Senior Indebtedness" by such Person and (ii) as to which the Trustee has been given written notice of such designation. "Disqualified Capital Stock" means any Capital Stock of the Company or a Restricted Subsidiary thereof which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable at the option of the holder), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, on or prior to the maturity date of the Notes, for cash or securities constituting Indebtedness. Without limitation of the foregoing, Disqualified Capital Stock shall be deemed to include any Preferred Stock of a Restricted Subsidiary of the Company or the Company, under which, by agreement or otherwise, such Restricted Subsidiary or the Company is obligated to pay current dividends or distributions in cash during the period prior to the maturity date of the Notes; provided, however, that Preferred Stock of the Company or any Restricted Subsidiary thereof that is issued with the benefit of provisions requiring a change of control offer to be made for such Preferred Stock in the event of a change of control of the Company or Restricted Subsidiary, which provisions have substantially the same effect as the provisions described in Section 4.20, shall not be deemed to be Disqualified Capital Stock solely by virtue of such provisions and, provided, further, that Capital Stock owned by the Company or any Restricted Subsidiary shall not constitute Disqualified Capital Stock. 17 -9- "Domestic" with respect to any Person shall mean a Person whose jurisdiction of incorporation or formation is the United States, any state thereof or the District of Columbia. "Domestic Restricted Subsidiary" means any Restricted Subsidiary whose jurisdiction of incorporation or formation is the United States, any state thereof or the District of Columbia. "EBITDA" means, for any Person, for any period, an amount equal to (a) the sum of (i) Consolidated Net Income for such period, plus (ii) the provision for taxes for such period based on income or profits to the extent such income or profits were included in computing Consolidated Net Income and any provision for taxes utilized in computing net loss under clause (i) hereof, plus (iii) Consolidated Interest Expense for such period, plus (iv) depreciation for such period, plus (v) amortization for such period (including the amortization of deferred financing costs and expenses), plus (vi) any other non-cash items (including minority interests) reducing Consolidated Net Income for such period, plus (vii) non-recurring losses and charges (including restructuring charges and costs) whether cash or non-cash for such period to the extent not included in the calculation of Consolidated Net Income, minus (viii) all non-cash items increasing Consolidated Net Income for such period, all for such Person and its Subsidiaries determined on a consolidated basis in accordance with GAAP, except that with respect to the Company each of the foregoing items shall be determined on a consolidated basis with respect to the Company and its Restricted Subsidiaries only. "Equity Offering" means an offering by the Company of shares of its common stock (however designated and whether voting or non-voting) and any and all rights, warrants or options to acquire such common stock. "Exchange Act" means the Securities Exchange Act of 1934, as amended. "Exchange Notes" has the meaning provided in the Registration Rights Agreement. "Existing Indentures" means the 9-1/8 Notes Indentures and the 11% Notes Indenture, or any such indenture. "Existing Notes" means the 9-1/8% Notes and the 11% Notes, or any such notes. "Fixed Charge Coverage Ratio" of any Person means, with respect to any determination date, the ratio of (i) EBITDA 18 -10- for such Person's prior four full fiscal quarters for which financial results have been reported immediately preceding the determination date to (ii) Consolidated Fixed Charges of such Person. "Foreign EBITDA" means, for any period, the aggregate of the EBITDA of each of the Company's Restricted Subsidiaries which are not Guarantors. "Foreign Interest Expense" means, for any period, the aggregate of the Consolidated Interest Expense of each of the Company's Restricted Subsidiaries which are not Guarantors. "GAAP" means generally accepted accounting principles consistently applied as in effect in the United States from time to time. "Guarantee" means the guarantee of the Obligations of the Company with respect to the Notes by each Guarantor pursuant to the terms of Article 10 hereof. "Guarantor" means each of Hayes Lemmerz International-California, Inc., Hayes Lemmerz International-Georgia, Inc., Hayes Lemmerz International-Indiana, Inc., Hayes Lemmerz International-Mexico, Inc., Hayes Lemmerz International-Michigan, Inc., Hayes Lemmerz International-Ohio, Inc. and HL Ohio Sub, Inc. "Guarantor Senior Indebtedness" means the principal of and premium, if any, and interest (including, without limitation, interest accruing or that would have accrued but for the filing of a bankruptcy, reorganization or other insolvency proceeding whether or not such interest constitutes an allowed claim in such proceeding) on, and any and all other fees, charges, expense reimbursement obligations, indemnities and other amounts due pursuant to the terms of all agreements, documents and instruments providing for, creating, securing, guaranteeing or evidencing or otherwise entered into in connection with, (a) Guarantor's direct incurrence of any Indebtedness or its guarantee of all Indebtedness of the Company, in each case, owed to lenders under or in respect of the Amended Credit Agreement, (b) all obligations of such Guarantor with respect to any Interest Rate Agreement, (c) all obligations of such Guarantor to reimburse any bank or other person in respect of amounts paid under letters of credit, acceptances or other similar instruments, (d) all other Indebtedness of such Guarantor which does not provide that it is to rank pari passu with or subordinate to the Guarantees and (e) all deferrals, renewals, extensions, refundings, refinancings and restructurings of, and amendments, modifications and supplements to, any of 19 -11- the Guarantor Senior Indebtedness described above. Notwithstanding anything to the contrary in the foregoing, Guarantor Senior Indebtedness will not include (i) Indebtedness of such Guarantor to any of its Subsidiaries, (ii) Indebtedness represented by the Notes, the Existing Notes, the Guarantees and the Guarantees of the Existing Notes, (iii) any Indebtedness which by the express terms of the agreement or instrument creating, evidencing or governing the same is junior or subordinate in right of payment to any item of Guarantor Senior Indebtedness, (iv) any trade payable arising from the purchase of goods or materials or for services obtained in the ordinary course of business or (v) Indebtedness incurred in violation of this Indenture. "Holder" or "Noteholder" means the Person in whose name a Note is registered on the Registrar's books. "Incur" means, with respect to any Indebtedness or other obligation of any Person, to create, issue, incur (by conversion, exchange or otherwise), assume, guarantee or otherwise become liable in respect of such Indebtedness or other obligation or the recording, as required pursuant to GAAP or otherwise, of any such Indebtedness or other obligation on the balance sheet of such Person (and "incurrence," "incurred," "incurrable," and "incurring" shall have meanings correlative to the foregoing); provided that a change in GAAP that results in an obligation of such Person that exists at such time becoming Indebtedness shall not be deemed an incurrence of such Indebtedness. "Indebtedness" means (without duplication), with respect to any Person, any indebtedness at any time outstanding, secured or unsecured, contingent or otherwise, which is for borrowed money (whether or not the recourse of the lender is to the whole of the assets of such Person or only to a portion thereof), or evidenced by bonds, notes, debentures or similar instruments or representing the balance deferred and unpaid of the purchase price of any Property (excluding, without limitation, any balances that constitute accounts payable or trade payables, and other accrued liabilities arising in the ordinary course of business) if and to the extent any of the foregoing indebtedness would appear as a liability upon a balance sheet of such Person prepared in accordance with GAAP, and shall also include, to the extent not otherwise included, (i) any Capitalized Lease Obligations, (ii) obligations of others secured by a lien to which the property or assets owned or held by such Person is subject, whether or not the obligation or obligations secured thereby shall have been assumed, (iii) guarantees of obligations of other Persons which would be included within this definition for such other Persons (whether or not such 20 -12- items would appear upon the balance sheet of the guarantor), excluding guarantees of Indebtedness incurred by a Person to acquire or finance real estate assets which are then leased to the Company or a Restricted Subsidiary on an operating lease basis in a "synthetic lease" transaction, (iv) all obligations for the reimbursement of any obligor on any letter of credit, banker's acceptance or similar credit transaction, (v) in the case of the Company, Disqualified Capital Stock and, in the case of any Restricted Subsidiary, Preferred Stock, (vi) obligations of any such Person under any Interest Rate Agreement (if and to the extent such Interest Rate Agreement obligations would appear as a liability upon a balance sheet of such Person prepared in accordance with GAAP) and (vii) Attributable Indebtedness. The amount of Indebtedness of any Person at any date shall be the outstanding balance at such date of all unconditional obligations as described above and, with respect to contingent obligations, the maximum liability upon the occurrence of the contingency giving rise to the obligation, provided (i) that the amount outstanding at any time of any Indebtedness issued with original issue discount is the principal amount of such Indebtedness less the remaining unamortized portion of the original issue discount of such Indebtedness at such time as determined in conformity with GAAP and (ii) that Indebtedness shall not include any liability for federal, state, local or other taxes. Notwithstanding any other provision of the foregoing definition, any trade payable arising from the purchase of goods or materials or for services obtained in the ordinary course of business shall not be deemed to be "Indebtedness" of the Company or any Restricted Subsidiaries for purposes of this definition. Furthermore, guarantees of (or obligations with respect to letters of credit supporting) Indebtedness and Liens securing Indebtedness otherwise included in the determination of such amount shall not also be included. "Indenture" means this Indenture as amended, restated or supplemented from time to time. "Initial Global Securities" means the Regulation S Global Security and the 144A Global Security, each of which contains a Securities Act Legend. "Initial Purchasers" means CIBC Oppenheimer Corp., Credit Suisse First Boston Corporation and Merrill Lynch, Pierce, Fenner & Smith Incorporated. "Institutional Accredited Investor" means an institution that is an "accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7) promulgated under the Securities Act. 21 -13- "Interest Payment Date" means the stated maturity of an installment of interest on the Notes. "Interest Rate Agreement" means, for any Person, any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement or other similar agreement designed to protect the party indicated therein against fluctuations in interest rates. "Investments" means, directly or indirectly, any advance, account receivable, loan or capital contribution to (by means of transfers of property to others, payments for property or services for the account or use of others or otherwise), the purchase of any stock, bonds, notes, debentures, partnership or joint venture interests or other securities of, the acquisition, by purchase or otherwise, of all or substantially all of the business or assets or stock or other evidence of beneficial ownership of, any Person. Investments shall exclude extensions of trade credit on commercially reasonable terms in accordance with normal trade practices. "Issue Date" means the date the Notes are first issued by the Company and authenticated by the Trustee under this Indenture. "JLL" means Joseph Littlejohn & Levy. "Lien" means, with respect to any Property of any Person, any mortgage or deed of trust, pledge, hypothecation, deposit arrangement, security interest, lien, charge, encumbrance, preference, priority, or other security agreement or preferential arrangement of any kind or nature whatsoever on or with respect to such Property or assets (including, without limitation, any Capitalized Lease Obligation, conditional sales, or other title retention agreement having substantially the same economic effect as any of the foregoing). "Maturity Date" means December 15, 2008. "Merrill Lynch" means Merrill Lynch Capital Corporation. "Moody's" means Moody's Investors Service, Inc. and its successors. "Net Cash Proceeds" means (a) in the case of any sale of Capital Stock by the Company, the aggregate net cash proceeds received by the Company, after payment of expenses, commissions, underwriting discounts and the like incurred in connection therewith, (b) in the case of any exchange, exercise, 22 -14- conversion or surrender of outstanding securities of any kind for or into shares of Capital Stock of the Company which is not Disqualified Capital Stock, the net cash proceeds received from the sale of such outstanding securities so exchanged, exercised, converted or surrendered (plus any additional amount required to be paid in cash by the holder to the Company upon such exchange, exercise, conversion or surrender, less any and all payments made to the holders, e.g., on account of fractional shares and less all expenses incurred by the Company in connection therewith) and (c) in the case of any issuance of any Indebtedness by the Company or any Restricted Subsidiary, the aggregate net cash proceeds received by such Person after payment of expenses, commissions, underwriting discounts and the like incurred in connection therewith. "Net Investment" means the excess of (i) the aggregate amount of all Investments in Unrestricted Subsidiaries or joint ventures made by the Company or any Restricted Subsidiary on or after the Original Issue Date (in the case of an Investment made other than in cash, the amount shall be the fair market value of such Investment as determined in good faith by the Board of Directors of the Company or such Restricted Subsidiary) over (ii) the sum of (A) the aggregate amount returned in cash on or with respect to such Investments whether through interest payments, principal payments, dividends or other distributions or payments and (B) the Net Cash Proceeds received by the Company or any Restricted Subsidiary or joint venture from the disposition of all or any portion of such Investments (other than to a Subsidiary of the Company); provided, however, that with respect to all Investments made in any Unrestricted Subsidiary or joint ventures the sum of clauses (A) and (B) above with respect to such Investments shall not exceed the aggregate amount of all such Investments made in such Unrestricted Subsidiary. "Nomura" means Nomura Holding America, Inc. "Non-Payment Event of Default" means any event (other than a Payment Default) the occurrence of which entitles one or more Persons to accelerate the maturity of any Designated Senior Indebtedness. "Non-U.S. Person" means a Person who is not a U.S. person, as defined in Regulation S. "Notes" means the 8-1/4% Senior Subordinated Notes due 2008 issued by the Company, including, without limitation, the Private Exchange Notes, if any, and the Exchange Notes, treated as a single class of securities, as amended or supple- 23 -15- mented from time to time in accordance with the terms hereof, that are issued pursuant to this Indenture. "Obligations" means, with respect to any Indebtedness, any principal, premium, interest, penalties, fees, indemnifications, reimbursements, damages and other expenses payable under the documentation governing such Indebtedness. "Offering" means the offering of the Notes as described in the Offering Memorandum. "Offering Memorandum" means the Offering Memorandum dated December 7, 1998 pursuant to which the Notes issued on the Issue Date were offered. "Officer" means the Chief Executive Officer, the President, any Vice President, the Chief Financial Officer, the Treasurer or the Secretary of the Company or a Guarantor, or any other officer designated by the Board of Directors, as the case may be. "Officers' Certificate" means, with respect to any Person, a certificate signed by the Chief Executive Officer, the President or any Vice President, and the Chief Financial Officer or any Treasurer of such Person that shall comply with applicable provisions of this Indenture. "Opinion of Counsel" means a written opinion from legal counsel which counsel is reasonably acceptable to the Trustee. "Original Issue Date" means December 14, 1998. "Payment Default" means any default, whether or not any requirement for the giving of notice, the lapse of time or both, or any other condition to such default becoming an Event of Default has occurred, in the payment of principal of (or premium, if any) or interest on or any other amount payable in connection with Designated Senior Indebtedness. "Permitted Holders" means (i) JLL or any other fund controlled by Joseph Littlejohn & Levy, (ii) TSG, (iii) Argosy, (iv) Nomura and (v) Chase. "Permitted Indebtedness" means: (i) Indebtedness of the Company or any Domestic Restricted Subsidiary arising under or in respect of the Amended Credit Agreement in an aggregate amount (the "Permitted Credit Agreement Amount") not to exceed (A) 24 -16- $550,000,000 (after giving effect to the concurrent repayment of amounts outstanding under the Amended Credit Agreement on the Issue Date), less (B) any mandatory prepayments actually made thereunder (to the extent, in the case of payments of revolving credit Indebtedness, that the corresponding commitments have been permanently reduced) or scheduled payments actually made thereunder; (ii) Indebtedness under the Notes and the Guarantees; (iii) Indebtedness not covered by any other clause of this definition which is outstanding on the Issue Date; (iv) Indebtedness incurred to finance the working capital requirements of the Western European operations of the Company's Restricted Subsidiaries pursuant to commitments outstanding on the Issue Date in an aggregate amount not to exceed $10,000,000 (or, to the extent non-U.S. dollar denominated, the U.S. dollar equivalent thereof); (v) Indebtedness of Autokola not to exceed $35,000,000 in principal amount in the aggregate; (vi) Indebtedness of the Company to any Domestic Restricted Subsidiary which is a Wholly-Owned Subsidiary and Indebtedness of any Restricted Subsidiary to the Company or another Restricted Subsidiary provided that in the case of Indebtedness of a Domestic Restricted Subsidiary such Indebtedness is owed to another Domestic Restricted Subsidiary; (vii) Purchase Money Indebtedness and Capitalized Lease Obligations incurred to acquire property in the ordinary course of business which Indebtedness and Capitalized Lease Obligations do not in the aggregate exceed 5% of the Company's consolidated total assets as of the Company's most recent quarterly balance sheet; (viii) Interest Rate Agreements; (ix) additional Indebtedness of the Company and its Restricted Subsidiaries not to exceed $50,000,000 in aggregate principal amount outstanding at any time; (x) Refinancing Indebtedness; (xi) Indebtedness incurred in accordance with Section 4.11; and 25 -17- (xii) Indebtedness of the Company or its Subsidiaries which is denominated in a currency other than U.S. dollars, provided that (a) the U.S. dollar equivalent thereof on the date of incurrence (together with the U.S. dollar equivalent on such date of all other Indebtedness incurred under this clause (xii)) shall not exceed $80,000,000, and (b) on the last Business Day of each month, the sum of (1) the U.S. dollar equivalent of all Indebtedness outstanding under this clause (xii), and (2) the outstanding principal amount of Indebtedness under the Amended Credit Agreement, including reimbursement obligations in respect of letters of credit (in each case after giving effect to any currency hedging arrangements applicable thereto to which the Company or a Subsidiary of the Company is a party), shall not exceed the Permitted Credit Agreement Amount. "Permitted Investments" means, for any Person, Investments made on or after the date of this Indenture consisting of: (i) Investments by the Company, or by a Restricted Subsidiary thereof, in the Company or a Restricted Subsidiary; (ii) Temporary Cash Investments; (iii) Investments by the Company, or by a Restricted Subsidiary thereof, in a Person, if as a result of such Investment (a) such Person becomes a Restricted Subsidiary of the Company or (b) such Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, the Company or a Restricted Subsidiary; (iv) reasonable and customary loans made to employees not to exceed $1,000,000 in the aggregate at any one time outstanding; (v) an Investment that is made by the Company or a Restricted Subsidiary thereof in the form of any stock, bonds, notes, debentures, partnership or joint venture interests or other securities that are issued by a third party to the Company or Restricted Subsidiary solely as partial consideration for the consummation of an Asset Sale; (vi) Investments in Unrestricted Subsidiaries and joint ventures permitted under subclause (v) of the second paragraph of Section 4.13; 26 -18- (vii) Investments received in connection with the bankruptcy or reorganization of Persons having obligations in favor of the Company or its Subsidiaries (which obligations were incurred in the ordinary course), in settlement of such obligations; and (viii) Investments paid for in Common Stock of the Company. "Person" means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government (including any agency or political subdivision thereof). "Physical Notes" means certificated Notes in registered form in substantially the form set forth in Exhibit A. "Preferred Stock" means any Capital Stock of a Person, however designated, which entitles the holder thereof to a preference with respect to dividends, distributions or liquidation proceeds of such Person over the holders of other Capital Stock issued by such Person. "Private Exchange" has the meaning set forth in the Registration Rights Agreement. "Private Exchange Notes" has the meaning set forth in the Registration Rights Agreement. "Private Placement Legend" means the legend initially set forth on the Rule 144A Notes in the form set forth in Exhibit B. "Property" of any Person means all types of real, personal, tangible, intangible or mixed property owned by such Person whether or not included in the most recent consolidated balance sheet of such Person and its Subsidiaries under GAAP. "Purchase Agreement" means the Purchase Agreement dated as of December 7, 1998 by and among the Company, the Guarantors and the Initial Purchasers. "Purchase Money Indebtedness" means any Indebtedness incurred in the ordinary course of business by a Person to finance the cost (including the cost of construction) of an item of Property, the principal amount of which Indebtedness does not exceed the sum of (i) 100% of such cost and (ii) reasonable fees and expenses of such Person incurred in connection therewith. 27 -19- "Qualified Institutional Buyer" or "QIB" shall have the meaning specified in Rule 144A promulgated under the Securities Act. "Redemption Date" when used with respect to any Note to be redeemed means the date fixed for such redemption pursuant to this Indenture. "Refinancing Indebtedness" means Indebtedness that refunds, refinances or extends any Indebtedness of the Company or its Subsidiaries outstanding on the Issue Date or other Indebtedness permitted to be incurred by the Company or its Restricted Subsidiaries pursuant to the terms of this Indenture, but only to the extent that (i) the Refinancing Indebtedness is subordinated to the Notes to at least the same extent as the Indebtedness being refunded, refinanced or extended, if at all, (ii) the Refinancing Indebtedness is scheduled to mature either (a) no earlier than the Indebtedness being refunded, refinanced or extended, or (b) after the maturity date of the Notes, (iii) the portion, if any, of the Refinancing Indebtedness that is scheduled to mature on or prior to the maturity date of the Notes has a weighted average life to maturity at the time such Refinancing Indebtedness is incurred that is equal to or greater than the weighted average life to maturity of the portion of the Indebtedness being refunded, refinanced or extended that is scheduled to mature on or prior to the maturity date of the Notes, (iv) such Refinancing Indebtedness is in an aggregate principal amount that is equal to or less than the sum of (a) the aggregate principal amount then outstanding under the Indebtedness being refunded, refinanced or extended, (b) the amount of accrued and unpaid interest, if any, and any necessary premiums (including the amount of any premium reasonably determined by the Company or the applicable Restricted Subsidiary as necessary to accomplish such refunding, refinancing or extension) on such Indebtedness being refunded, refinanced or extended and (c) the amount of customary fees, expenses and costs related to the incurrence of such Refinancing Indebtedness, (v) such Refinancing Indebtedness is incurred by the same Person that initially incurred the Indebtedness being refunded, refinanced or extended, except that the Company may incur Refinancing Indebtedness to refund, refinance or extend Indebtedness of any Wholly-Owned Subsidiary of the Company; provided, however, that any non-Domestic Restricted Subsidiary may incur Refinancing Indebtedness to refund, refinance or extend Indebtedness of the Company arising under or in respect of the Amended Credit Agreement in an aggregate amount not to exceed $20,000,000 outstanding at any time; and provided, further, that with respect to such Refinancing Indebtedness referred to in the previous provision, clauses (ii) and (iii) shall not apply, and (vi) if such Indebtedness was incurred pursuant to 28 -20- Section 4.11(a) and does not contain any restriction or limitation on the payment of dividends or the making of other distributions then the Refinancing Indebtedness shall not contain any such limitation or restriction. "Registration Rights Agreement" means the Registration Rights Agreement dated as of the Issue Date among the Company, the Guarantors and the Initial Purchasers, as amended from time to time. "Regulation S" means Regulation S promulgated under the Securities Act. "Responsible Officer" when used with respect to the Trustee, means any officer within the corporate trust department of the Trustee (or any successor group of the Trustee) or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject. "Restricted Note" has the same meaning as "Restricted Security" set forth in Rule 144(a)(3) promulgated under the Securities Act; provided, that the Trustee shall be entitled to request and conclusively rely upon an Opinion of Counsel with respect to whether any Note is a Restricted Note. "Restricted Payment" means any of the following: (i) the declaration or payment of any dividend or any other distribution or payment on Capital Stock of the Company or any Restricted Subsidiary of the Company or any payment made to the direct or indirect holders (in their capacities as such) of Capital Stock of the Company or any Restricted Subsidiary of the Company other than (x) dividends or distributions payable solely in Capital Stock (other than Disqualified Capital Stock) or in options, warrants or other rights to purchase Capital Stock (other than Disqualified Capital Stock), and (y) in the case of Restricted Subsidiaries of the Company, dividends or distributions payable to the Company or to a Wholly-Owned Subsidiary of the Company), (ii) the purchase, redemption or other acquisition or retirement for value of any Capital Stock of the Company or any of its Restricted Subsidiaries (other than Capital Stock owned by the Company or a Wholly-Owned Subsidiary of the Company, excluding Disqualified Capital Stock), (iii) the purchase, defeasance, repurchase, redemption or other acquisition or retirement for value, prior to any scheduled maturity, scheduled repayment or scheduled sinking fund payment of, or the making of any principal payment on, any Indebtedness which 29 -21- is subordinated in right of payment to the Notes other than subordinated Indebtedness acquired in anticipation of satisfying a scheduled sinking fund obligation, principal installment or final maturity (in each case due within one year of the date of acquisition), (iv) the making of any Investment or guarantee of any Investment in any Person other than a Permitted Investment, (v) any designation of a Restricted Subsidiary as an Unrestricted Subsidiary on the basis of the Net Investment by the Company therein and (vi) forgiveness of any Indebtedness of an Affiliate of the Company to the Company or a Restricted Subsidiary. For purposes of determining the amount expended for Restricted Payments, cash distributed or invested shall be valued at the face amount thereof and property other than cash shall be valued at its fair market value determined in good faith by the Board of Directors of the Company. "Restricted Subsidiary" means a Subsidiary of the Company other than an Unrestricted Subsidiary. The Board of Directors of the Company may designate any Unrestricted Subsidiary or any Person that is to become a Subsidiary as a Restricted Subsidiary if immediately after giving effect to such action (and treating any Acquired Indebtedness as having been incurred at the time of such action), the Company could have incurred at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 4.10. "Rule 144" means Rule 144 promulgated under the Securities Act. "Rule 144A" means Rule 144A promulgated under the Securities Act. "Sale and Lease-Back Transaction" means any arrangement with any Person providing for the leasing by the Company or any Restricted Subsidiary of the Company of any real or tangible personal Property, which Property has been or is to be sold or transferred by the Company or such Restricted Subsidiary to such Person in contemplation of such leasing. "S&P" means Standard & Poor's Corporation and its successors. "SEC" means the United States Securities and Exchange Commission as constituted from time to time or any successor performing substantially the same functions. "Securities Act" means the Securities Act of 1933, as amended. 30 -22- "Senior Indebtedness" means the principal of and premium, if any, and interest (including, without limitation, interest accruing or that would have accrued but for the filing of a bankruptcy, reorganization or other insolvency proceeding whether or not such interest constitutes an allowed claim in such proceeding) on, and any and all other fees, charges, expense reimbursement obligations, indemnities and other amounts due pursuant to the terms of all agreements, documents and instruments providing for, creating, securing, guaranteeing or evidencing or otherwise entered into in connection with (a) all obligations, whether outstanding on the Issue Date or thereafter incurred, of the Company owed to lenders under or in respect of the Amended Credit Agreement, (b) all obligations of the Company with respect to any Interest Rate Agreement, (c) all obligations of the Company to reimburse any bank or other person in respect of amounts paid under letters of credit, acceptances or other similar instruments, (d) all other Indebtedness of the Company which does not provide that it is to rank pari passu with or subordinate to the Notes and (e) all deferrals, renewals, extensions, refundings, refinancings and restructurings of, and amendments, modifications and supplements to, any of the Senior Indebtedness described above. Notwithstanding anything to the contrary in the foregoing, Senior Indebtedness will not include (i) Indebtedness of the Company to any of its Subsidiaries, (ii) Indebtedness represented by the Notes, the 11% Notes, the 9 1/8% Notes, and, in each case, the guarantees thereof, (iii) any Indebtedness which by the express terms of the agreement or instrument creating, evidencing or governing the same is junior or subordinate in right of payment to any item of Senior Indebtedness, (iv) any trade payable arising from the purchase of goods or materials or for services obtained in the ordinary course of business, or (v) Indebtedness incurred in violation of this Indenture. "Subsidiary" of any specified Person means any corporation, partnership, joint venture, association or other business entity, whether now existing or hereafter organized or acquired, (i) in the case of a corporation, of which more than 50% of the total voting power of the Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, officers or trustees thereof is held by such first-named Person or any of its Subsidiaries; or (ii) in the case of a partnership, joint venture, association or other business entity, with respect to which such first-named Person or any of its Subsidiaries has the power to direct or cause the direction of the management and policies of such entity by contract or otherwise or if in accordance with GAAP such entity is consolidated with the first-named Person for financial statement purposes. 31 -23- "Temporary Cash Investments" means (i) Investments in marketable, direct obligations issued or guaranteed by the United States of America, or of any governmental agency or political subdivision thereof, maturing within 365 days of the date of purchase; (ii) Investments in demand deposits or certificates of deposit issued by a bank organized under the laws of the United States of America or any state thereof or the District of Columbia, in each case having capital, surplus and undivided profits totaling more than $500,000,000 and rated at least A by S&P and A-2 by Moody's, maturing within 365 days of purchase; (iii) Investments in commercial paper, maturing not more than 180 days after the date of acquisition, issued by a corporation (other than an Affiliate of the Company) organized and in existence under the laws of the United States of America or any foreign country recognized by the United States of America with a rating at the time as of which any Investment therein is made of P-1 (or higher) according to Moody's or A-1 (or higher) according to S&P; (iv) in the case of any non-Domestic Restricted Subsidiary, Investments: (a) in direct obligations of the sovereign nation (or any agency thereof) in which such non-Domestic Restricted Subsidiary is organized and is conducting business or in obligations fully and unconditionally guaranteed by such sovereign nation (or any agency thereof) or (b) of the type and maturity described in clauses (i) through (iii) above of foreign obligors, which Investments or obligors (of the parents of such obligors) have ratings described in such clauses or equivalent ratings from comparable foreign rating agencies; or (v) Investments not exceeding 365 days in duration in money market funds that invest substantially all of such funds' assets in the Investments described in the preceding clauses (i) and (iv). "TIA" means the Trust Indenture Act of 1939 (15 U.S. Code ss.ss. 77aaa-77bbbb) as in effect on the date of this Indenture (except as provided in Section 8.03 hereof). "Trust Officer" means any officer or assistant officer of the Trustee assigned by the Trustee to administer trust accounts. "Trustee" means the party named as such in this Indenture until a successor replaces it pursuant to this Indenture and thereafter means the successor. "TSG" means TSG Capital Fund II, L.P. "Unrestricted Subsidiary" means (a) any Subsidiary of an Unrestricted Subsidiary and (b) any Subsidiary of the Company which is classified after the Issue Date as an Unrestricted Subsidiary by a resolution adopted by the Board of Di- 32 -24- rectors of the Company; provided that a Subsidiary organized or acquired after the Issue Date may be so classified as an Unrestricted Subsidiary only if such classification is in compliance with Section 4.13 hereof. The Trustee shall be given prompt notice by the Company of each resolution adopted by the Board of Directors of the Company under this provision, together with a copy of each such resolution adopted. "U.S. Government Obligations" means direct non-callable obligations of, or non-callable obligations guaranteed by, the United States of America for the payment of which obligation or guarantee the full faith and credit of the United States of America is pledged. "Western Europe" means, with respect to any jurisdictional matter, any of the twelve current member states of the European Community and Switzerland, Norway, Sweden, Finland, Austria and the Czech Republic (and "Western European" shall have a meaning correlative to the foregoing). "Wholly-Owned Subsidiary" means any Restricted Subsidiary all of the outstanding voting securities (other than directors' qualifying shares or similar requirements of law in respect of non-Domestic Subsidiaries and other than shares of Lemmerz representing not more than .01% of the voting securities thereof) of which are owned, directly or indirectly, by the Company. Section 1.02. Other Definitions. The definitions of the following terms may be found in the sections indicated as follows:
Term Defined in Section - ---- ------------------ "Acquisition".......................................................... 4.10 "Affiliate Transaction"................................................ 4.16 "Bankruptcy Law"....................................................... 6.01 "Business Day"......................................................... 12.08 "Change of Control Offer".............................................. 4.20 "Change of Control Payment Date"....................................... 4.20 "Change of Control Purchase Price"..................................... 4.20 "Covenant Defeasance".................................................. 9.03 "Custodian"............................................................ 6.01 "Event of Default"..................................................... 6.01 "Excess Proceeds Offer"................................................ 4.15 "Guarantee Payment Blockage Period".................................... 10.08 "Guarantor Representative"............................................. 10.08 "Initial Blockage Period".............................................. 11.03 "Initial Guarantee Blockage Period".................................... 10.08
33 -25- "Legal Defeasance"..................................................... 9.02 "Legal Holiday"........................................................ 12.08 "Offer Period"......................................................... 4.15 "Other Notes".......................................................... 2.01 "Paying Agent"......................................................... 2.03 "Payment Blockage Period".............................................. 11.03 "Purchase Date"........................................................ 4.15 "Registrar"............................................................ 2.03 "Regulation S Notes"................................................... 2.01 "Reinvestment Date".................................................... 4.15 "Representative"....................................................... 11.03 "Restricted Global Notes".............................................. 2.42 "Rule 144A Notes"...................................................... 2.01
Section 1.03. Incorporation by Reference of Trust Indenture Act. Whenever this Indenture refers to a provision of the TIA, the portion of such provision required to be incorporated herein in order for this Indenture to be qualified under the TIA is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings: "Commission" means the SEC. "indenture securities" means the Notes. "indenture securityholder" means a Noteholder. "indenture to be qualified" means this Indenture. "indenture trustee" or "institutional trustee" means the Trustee. "obligor on the indenture securities" means the Company, the Guarantors or any other obligor on the Notes or the Guarantees. All other terms used in this Indenture that are defined by the TIA, defined in the TIA by reference to another statute or defined by SEC rule have the meanings therein assigned to them. Section 1.04. Rules of Construction. Unless the context otherwise requires: (1) a term has the meaning assigned to it herein, whether defined expressly or by reference; 34 -26- (2) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP; (3) "or" is not exclusive; (4) words in the singular include the plural, and in the plural include the singular; and (5) words used herein implying any gender shall apply to every gender. ARTICLE 2 THE NOTES Section 2.01. Amount of Notes and Form and Dating. The Trustee shall, upon receipt of a Company Request, authenticate Notes for original issue on the Issue Date in the aggregate principal amount of $250,000,000. Each such written order shall specify the amount of Notes to be authenticated and the date on which the Notes are to be authenticated and the title of the Notes of the series (which shall distinguish the Notes of the series from Notes of any other series). All Notes issued on the Issue Date shall be identical in all respects. The aggregate principal amount of Notes outstanding at any time may not exceed $250,000,000 except as provided in Section 2.08. Upon receipt of a Company Request and an Officers' Certificate certifying that a registration statement relating to an exchange offer specified in the Registration Rights Agreement is effective and that, if necessary, the conditions precedent to a Private Exchange thereunder have been met, the Trustee shall authenticate an additional series of Notes in an aggregate principal amount not to exceed $250,000,000 for issuance in exchange for the Notes tendered for exchange pursuant to such exchange offer registered under the Securities Act and, if necessary, pursuant to a Private Exchange. Exchange Notes or Private Exchange Notes may have such distinctive series designations and such changes in the form thereof as are specified in the Company Request. The Notes and the Trustee's certificate of authentication shall be substantially in the form of Exhibit A which is incorporated in and made part of this Indenture. The Notes may have notations, legends or endorsements required by law, rule or usage. The Company may use "CUSIP" numbers in issuing the Notes. The Company shall approve the form of the Notes. 35 -27- Without limiting the generality of the foregoing, Notes offered and sold to Qualified Institutional Buyers in reliance on Rule 144A ("Rule 144A Notes") shall bear the Private Placement Legend and include the form of assignment set forth in Exhibit C-1, Notes subsequently offered and sold in offshore transactions in reliance on Regulation S ("Regulation S Notes") shall bear the Private Placement Legend and include the form of assignment set forth in Exhibit C-2, and Notes subsequently offered and sold to Institutional Accredited Investors in transactions exempt from registration under the Securities Act not made in reliance on Rule 144A or Regulation S ("Other Notes") may be represented by the Restricted Global Note or, if such an investor may not hold an interest in the Restricted Global Note, a Physical Note in each case bearing the Private Placement Legend. Each Note shall be dated the date of its authentication. The terms and provisions contained in the Notes and the Guarantee shall constitute, and are hereby expressly made, a part of this Indenture and, to the extent applicable, the Company, the Subsidiary Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. Section 2.02. Execution and Authentication. The Notes shall be executed on behalf of the Company by two Officers of the Company or an Officer and an Assistant Secretary of the Company. Such signature may be either manual or facsimile. The Company's seal shall be impressed, affixed, imprinted or reproduced on the Notes and may be in facsimile form. If an Officer whose signature is on a Note no longer holds that office at the time the Trustee authenticates the Note, the Note shall be valid nevertheless. A Note shall not be valid until the Trustee manually signs the certificate of authentication on the Note. Such signature shall be conclusive evidence that the Note has been authenticated under this Indenture. The Trustee or an authenticating agent shall authenticate Notes for original issue in the aggregate principal amount of $250,000,000 upon a Company Request. The aggregate principal amount of Notes outstanding at any time may not exceed such amount except as provided in Section 2.07 hereof. The Notes shall be issuable only in registered form without coupons and only in denominations of $1,000 and integral multiples thereof. 36 -28- The Trustee may appoint an authenticating agent reasonably acceptable to the Company to authenticate Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same right as an Agent to deal with the Company or an Affiliate. Section 2.03. Registrar and Paying Agent. The Company shall maintain an office or agency where Notes may be presented for registration of transfer or for exchange ("Registrar"), an office or agency located in the Borough of Manhattan, City of New York, State of New York where Notes may be presented for payment ("Paying Agent") and an office or agency where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served. The Registrar shall keep a register of the Notes and of their transfer and exchange. The Company may have one or more co-registrars and one or more additional paying agents. Neither the Company nor any Affiliate may act as Paying Agent. The Company may change any Paying Agent, Registrar or co-registrar without notice to any Noteholder. The Company shall enter into an appropriate agency agreement with any Registrar or Paying Agent not a party to this Indenture. The agreement shall implement the provisions of this Indenture that relate to such Agent. The Company shall notify the Trustee in writing of the name and address of any such Agent. If the Company fails to maintain a Registrar or Paying Agent, or agent for service of notices and demands, or fails to give the foregoing notice, the Trustee shall act as such. The Company initially appoints the Trustee as Registrar, Paying Agent and agent for service of notices and demands in connection with the Notes. Section 2.04. Paying Agent To Hold Assets in Trust. The Company shall require each Paying Agent other than the Trustee to agree in writing that, subject to Articles 10 and 11, each Paying Agent shall hold in trust for the benefit of the Holders or the Trustee all assets held by the Paying Agent for the payment of principal of, or interest on, the Notes (whether such assets have been distributed to it by the Company or any other obligor on the Notes), and the Company and the Paying Agent shall notify the Trustee in writing of any Default by the Company (or any other obligor on the Notes) in making any such payment. The Company at any time may require a Paying Agent to distribute all assets held by it to the Trustee and account for any assets disbursed and the Trustee may at any 37 -29- time during the continuance of any Payment Default, upon written request to a Paying Agent, require such Paying Agent to distribute all assets held by it to the Trustee and to account for any assets distributed. Upon distribution to the Trustee of all assets that shall have been delivered by the Company to the Paying Agent, the Paying Agent shall have no further liability for such assets. Section 2.05. Noteholder Lists. The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Noteholders and shall otherwise comply with TIA Section 312(a). If the Trustee is not the Registrar, the Company shall furnish to the Trustee as of each Record Date and at least seven Business Days before each related Interest Payment Date, and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of Noteholders. Section 2.06. Transfer and Exchange. Subject to Sections 2.14 and 2.15, when a Note is presented to the Registrar with a request to register the transfer thereof, the Registrar shall register the transfer as requested if the requirements of applicable law are met and, when Notes are presented to the Registrar with a request to exchange them for an equal principal amount of Notes of other authorized denominations, the Registrar shall make the exchange as requested provided that every Note presented or surrendered for registration of transfer or exchange shall be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Registrar duly executed by the Holder thereof or his attorney duly authorized in writing. To permit transfers and exchanges, upon surrender of any Note for registration of transfer at the office or agency maintained pursuant to Section 2.03 hereof, the Company shall execute and the Trustee shall authenticate Notes (and the Subsidiary Guarantors shall execute the guarantee thereon) at the Registrar's written request. Any exchange or transfer shall be without charge, except that the Company may require payment by the Holder of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation to a transfer or exchange, but this provision shall not apply to any exchange pursuant to Sections 2.09, 3.06 or 8.05 hereof. The Trustee shall not be required to register transfers of Notes or to exchange Notes for a period of 15 days before selection of any Notes to be redeemed. The Trustee shall not be required to exchange or register transfers of any Notes called or being 38 -30- called for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part. Any Holder of the Global Note shall, by acceptance of such Global Note, agree that transfers of the beneficial interests in such Global Note may be effected only through a book entry system maintained by the Holder of such Global Note (or its agent), and that ownership of a beneficial interest in the Global Note shall be required to be reflected in a book entry. Each Holder of a Note agrees to indemnify the Company and the Trustee against any liability that may result from the transfer, exchange or assignment of such Holder's Note in violation of any provision of this Indenture and/or applicable United States federal or state securities law. The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Depository Participants or beneficial owners of interests in any Global Security) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof. Section 2.07. Replacement Notes. If a mutilated Note is surrendered to the Trustee or if the Holder of a Note presents evidence to the satisfaction of the Company and the Trustee that the Note has been lost, destroyed or wrongfully taken, the Company shall issue and the Trustee shall authenticate a replacement Note (and the Guarantors shall execute a guarantee thereon) if the Trustee's requirements are met. An indemnity bond must be supplied by such Holder that is sufficient in the judgment of the Company and the Trustee to protect the Company, the Trustee or any Agent from any loss which any of them may suffer if a Note is replaced. The Company may charge such Holder for its reasonable, out-of-pocket expenses in replacing a Note, including reasonable fees and expenses of counsel. Every replacement Note is an additional obligation of the Company. Section 2.08. Outstanding Notes. Notes outstanding at any time are all Notes authenticated by the Trustee except for those cancelled by it, those 39 -31- delivered to it for cancellation, and those described in this Section 2.08 as not outstanding. If a Note is replaced pursuant to Section 2.07 (other than a mutilated Note surrendered for replacement), it ceases to be outstanding until the Company and the Trustee receive proof satisfactory to each of them that the replaced Note is held by a bona fide purchaser. A mutilated Note ceases to be outstanding upon surrender of such Note and replacement thereof pursuant to Section 2.07. If a Paying Agent holds on a Redemption Date or Maturity Date money sufficient to pay the principal of, premium, if any, and accrued interest on Notes payable on that date and is not prohibited from paying such money to the Holders thereof pursuant to the terms of this Indenture, then on and after that date such Notes cease to be outstanding and interest on them ceases to accrue. Subject to Section 12.06, a Note does not cease to be outstanding solely because the Company or an Affiliate holds the Note. Section 2.09. Temporary Notes. Until definitive Notes are ready for delivery, the Company may prepare and the Trustee shall, upon receipt of a Company Request, authenticate temporary Notes. Temporary Notes shall be substantially in the form, and shall carry all rights, of definitive Notes but may have variations that the Company considers appropriate for temporary Notes. Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate definitive Notes in exchange for temporary Notes presented to it. Section 2.10. Cancellation. The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Notes surrendered to them for transfer, exchange or payment. The Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent, and no one else, shall cancel and at the written request of the Company, shall dispose of all Notes surrendered for transfer, exchange, payment or cancellation, provided, however, that in no event shall the Trustee be required to destroy any such Notes. If the Company or any Guarantor shall acquire any of the Notes, such acquisition shall not operate as a redemption or satisfaction of the Indebtedness represented by such Notes unless and 40 -32- until the same are surrendered to the Trustee for cancellation or pursuant to this Section 2.10. Section 2.11. Defaulted Interest. If the Company defaults in a payment of interest on the Notes, it shall pay the defaulted amounts, plus any interest payable on defaulted amounts pursuant to Section 4.01 hereof, to the persons who are Noteholders on a subsequent special record date, which date shall be the fifteenth day next preceding the date fixed by the Company for the payment of defaulted interest or the next succeeding Business Day if such date is not a Business Day. At least 15 days before the special record date, the Company shall mail or cause to be mailed to each Noteholder, with a copy to the Trustee, a notice that states the special record date, the payment date, and the amount of defaulted interest, and interest payable on such defaulted interest, if any, to be paid. Section 2.12. Deposit of Moneys. Prior to 10:00 a.m., New York City time, on each Interest Payment Date and on the Maturity Date, the Company shall have deposited with the Paying Agent in immediately available funds money sufficient to make cash payments, if any, due on such Interest Payment Date or on the Maturity Date, as the case may be, in a timely manner which permits the Trustee to remit payment to the Holders on such Interest Payment Date or on the Maturity Date, as the case may be. Section 2.13. CUSIP Number. The Company in issuing the Notes may use one or more "CUSIP" numbers, and if so, the Trustee shall use the CUSIP number(s) in notices of redemption or exchange as a convenience to Holders, provided that any such notice may state that no representation is made as to the correctness or accuracy of the CUSIP number(s) printed in the notice or on the Notes, and that reliance may be placed only on the other identification numbers printed on the Notes. Section 2.14. Book-Entry Provisions for Global Notes. (a) Rule 144A Notes and Other Notes which may be held in global form, other than Regulation S Notes, initially shall be represented by one or more notes in registered, global form without interest coupons (collectively, the "Restricted Global Note"). Regulation S Notes initially shall be represented by one or more notes in registered, global form without 41 -33- interest coupons (collectively, the "Regulation S Global Note," and, together with the Restricted Global Note, the "Global Notes"). The Global Notes initially shall (i) be registered in the name of The Depository Trust Company ("DTC") or the nominee of DTC, in each case for credit to an account of an Agent Member (as defined below) (or, in the case of the Regulation S Global Notes, of Morgan Guaranty Trust Company, as operator of the Euroclear System ("Euroclear") and Cedel Bank, Societe Anonyme ("CEDEL")), (ii) be delivered to the Trustee as custodian for DTC and (iii) bear legends as set forth in Exhibit D. Members of, or direct or indirect participants in, DTC ("Agent Members") shall have no rights under this Indenture with respect to any Global Note held by DTC, or the Trustee as its custodian, or under the Global Notes, and DTC may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of the Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by DTC or impair, as between DTC and its Agent Members, the operation of customary practices governing the exercise of the rights of a Holder of any Note. (b) Transfers of Global Notes shall be limited to transfer in whole, but not in part, to DTC, its successors or their respective nominees. Interests of beneficial owners in the Global Notes may be transferred or exchanged for Physical Notes upon receipt by the Trustee of written instructions from DTC or its nominee on behalf of any beneficial owner and in accordance with the rules and procedures of DTC and the provisions of Section 2.15. In addition, a Global Note shall be exchangeable for Physical Notes if (i) DTC (x) notifies the Company that it is unwilling or unable to continue as depository for such Global Note and the Company thereupon fails to appoint a successor depository or (y) has ceased to be a clearing agency registered under the Exchange Act, (ii) the Company, at its option, notifies the Trustee in writing that it elects to cause the issuance of such Physical Notes or (iii) there shall have occurred and be continuing a Default or an Event of Default with respect to the Notes. In all cases, Physical Notes delivered in exchange for any Global Note or beneficial interests therein shall be registered in the names, and issued in any approved denominations, requested by or on behalf of DTC (in accordance with its customary procedures). (c) In connection with any transfer or exchange of a portion of the beneficial interest in any Global Note to beneficial owners pursuant to paragraph (b), the Registrar shall 42 -34- (if one or more Physical Notes are to be issued) reflect on its books and records the date and a decrease in the principal amount of the Global Note in an amount equal to the principal amount of the beneficial interest in the Global Note to be transferred, and the Company shall execute, and the Trustee shall upon receipt of a written order from the Company authenticate and make available for delivery, one or more Physical Notes of like tenor and amount. (d) In connection with the transfer of Global Notes as an entirety to beneficial owners pursuant to paragraph (b), the Global Notes shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee shall authenticate and deliver or make available for delivery, to each beneficial owner identified by the Depository in writing in exchange for its beneficial interest in the Global Notes, an equal aggregate principal amount of Physical Notes of authorized denominations. (e) Any Physical Note constituting a Restricted Note delivered in exchange for an interest in a Global Note pursuant to paragraph (b) shall, except as otherwise provided by paragraphs (a)(i)(x) and (c) of Section 2.15, bear the Private Placement Legend or, in the case of the Regulation S Global Note, the legend set forth in Exhibit C, in each case, unless the Company determines otherwise in compliance with applicable law. (f) On or prior to the 40th-day after the later of the commencement of the offering of the Notes represented by the Regulation S Global Note and the issue date of such Notes (such period through and including such 40th day, the "Restricted Period"), a beneficial interest in a Regulation S Global Note may be transferred to a Person who takes delivery in the form of an interest in the corresponding Restricted Global Note only upon receipt by the Trustee of a written certification from the transferor to the effect that such transfer is being made (i)(a) to a Person whom the transferor reasonably believes is a Qualified Institutional Buyer in a transaction meeting the requirements of Rule 144A or (b) pursuant to another exemption from the registration requirements under the Securities Act which is accompanied by an opinion of counsel regarding the availability of such exemption and (ii) in accordance with all applicable securities laws of any state of the United States or any other jurisdiction. (g) Beneficial interests in the Restricted Global Note may be transferred to a Person who takes delivery in the form of an interest in the Regulation S Global Note, whether before or after the expiration of the Restricted Period, only 43 -35- if the transferor first delivers to the Trustee a written certificate to the effect that such transfer is being made in accordance with Rule 903 or 904 of Regulation S or Rule 144 (if available) and that, if such transfer occurs prior to the expiration of the Restricted Period, the interest transferred will be held immediately thereafter through Euroclear or CEDEL. (h) Any beneficial interest in one of the Global Notes that is transferred to a Person who takes delivery in the form of an interest in another Global Note shall, upon transfer, cease to be an interest in such Global Note and become an interest in such other Global Note and, accordingly, shall thereafter be subject to all transfer restrictions and other procedures applicable to beneficial interests in such other Global Note for as long as it remains such an interest. (i) The Holder of any Global Note may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Notes. Section 2.15. Special Transfer Provisions. (a) Transfers to Non-QIB Institutional Accredited Investors and Non-U.S. Persons. The following provisions shall apply with respect to the registration of any proposed transfer of a Note constituting a Restricted Note to any Institutional Accredited Investor which is not a QIB or to any Non-U.S. Person: (i) the Registrar shall register the transfer of any Note constituting a Restricted Note, whether or not such Note bears the Private Placement Legend, if (x) the requested transfer is after the Issue Date plus two years or such other date as such Note shall be freely transferable under Rule 144 as certified in an Officers' Certificate or (y)(1) in the case of a transfer to an Institutional Accredited Investor which is not a QIB (excluding Non-U.S. Persons), the proposed transferee has delivered to the Registrar a certificate substantially in the form of Exhibit E hereto or (2) in the case of a transfer to a Non-U.S. Person (including a QIB), the proposed transferor has delivered to the Registrar a certificate substantially in the form of Exhibit F hereto; provided that in the case of a transfer of a Note bearing the Private Placement Legend for a Note not bearing the Private Placement Legend, the Registrar has received an Officers' Certificate authorizing such transfer; and 44 -35- (ii) if the proposed transferor is an Agent Member holding a beneficial interest in a Global Note, upon receipt by the Registrar of (x) the certificate, if any, required by paragraph (i) above and (y) instructions given in accordance with the Depositary's and the Registrar's procedures, whereupon the Registrar shall reflect on its books and records the date and (if the transfer does not involve a transfer of outstanding Physical Notes) a decrease or increase, as the case may be, in the principal amount of a Global Note in an amount equal to the principal amount of the beneficial interest in a Global Note to be transferred. (b) Transfers to QIBs. The following provisions shall apply with respect to the registration of any proposed registration of transfer of a Note constituting a Restricted Note to a QIB (excluding transfers to Non-U.S. Persons): (i) the Registrar shall register the transfer if such transfer is being made by a proposed transferor who has checked the box provided for on such Holder's Note stating, or has otherwise advised the Company and the Registrar in writing, that the sale has been made in compliance with the provisions of Rule 144A to a transferee who has signed the certification provided for on such Holder's Note stating, or has otherwise advised the Company and the Registrar in writing, that it is purchasing the Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a QIB within the meaning of Rule 144A, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as it has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon its foregoing representations in order to claim the exemption from registration provided by Rule 144A; and (ii) if the proposed transferee is an Agent Member, and the Notes to be transferred consist of Physical Notes which after transfer are to be evidenced by an interest in the Global Note, upon receipt by the Registrar of instructions given in accordance with the Depositary's and the Registrar's procedures, the Registrar shall reflect on its books and records the date and an increase in the principal amount of the Global Note in an amount equal to the principal amount of the Physical Notes to be transferred, and the Trustee shall cancel the Physical Notes so transferred. 45 -37- (c) Private Placement Legend. Upon the registration of transfer, exchange or replacement of Notes not bearing the Private Placement Legend, the Registrar shall deliver Notes that do not bear the Private Placement Legend. Upon the registration of transfer, exchange or replacement of Notes bearing the Private Placement Legend, the Registrar shall deliver only Notes that bear the Private Placement Legend unless (i) it has received the Officers' Certificate required by paragraph (a)(i)(y) of this Section 2.15, (ii) there is delivered to the Registrar an Opinion of Counsel reasonably satisfactory to the Company and the Trustee to the effect that neither such legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act or (iii) such Note has been sold pursuant to an effective registration statement under the Securities Act and the Registrar has received an Officers' Certificate from the Company to such effect. (d) General. By its acceptance of any Note bearing the Private Placement Legend, each Holder of such Note acknowledges the restrictions on transfer of such Note set forth in this Indenture and in the Private Placement Legend and agrees that it will transfer such Note only as provided in this Indenture. The Registrar shall retain for a period of two years copies of all letters, notices and other written communications received pursuant to Section 2.14 or this Section 2.15. The Company shall have the right to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable notice to the Registrar. Section 2.16. Computation of Interest. Interest on the Notes shall be computed on the basis of a 360-day year of twelve 30-day months. ARTICLE 3 REDEMPTION Section 3.01. Notices to Trustee. If the Company elects to redeem Notes pursuant to, and at the redemption prices set forth in, Paragraph 5 of the Notes, it shall notify the Trustee of the Redemption Date and the principal amount of Notes to be redeemed at least 30 days (unless a shorter notice shall be satisfactory to the Trustee) 46 -38- but not more than 60 days before the Redemption Date. Any such notice may be cancelled at any time prior to notice of such redemption being mailed to any Holder and shall thereby be void and of no effect. Section 3.02. Selection by Trustee of Notes To Be Redeemed. If fewer than all of the Notes are to be redeemed, the Trustee shall select the Notes to be redeemed pro rata, by lot or by any other method that the Trustee considers fair and appropriate and, if such Notes are listed on any securities exchange, by a method that complies with the requirements of such exchange. The Trustee shall make the selection from the Notes outstanding and not previously called for redemption and shall promptly notify the Company in writing of the Notes selected for redemption and, in the case of any Note selected for partial redemption, the principal amount thereof to be redeemed. Notes in denominations of $1,000 may be redeemed only in whole. The Trustee may select for redemption portions (equal to $1,000 or integral multiples thereof) of the principal amount of Notes that have denominations larger than $1,000. Provisions of this Indenture that apply to Notes called for redemption also apply to portions of Notes called for redemption. Section 3.03. Notice of Redemption. At least 30 days, and no more than 60 days, before a Redemption Date, the Company shall mail, or cause to be mailed, a notice of redemption by first-class mail to each Holder of Notes to be redeemed at his or her last address as the same appears on the registry books maintained by the Registrar pursuant to Section 2.03 hereof. The notice shall identify the Notes to be redeemed (including the CUSIP number(s) thereof) and shall state: (1) the Redemption Date; (2) the redemption price; (3) if any Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed and that, after the Redemption Date and upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion will be issued; (4) the name and address of the Paying Agent; 47 -39- (5) that Notes called for redemption must be surrendered to the Paying Agent to collect the redemption price; (6) that, unless (a) the Company defaults in making the redemption payment or (b) such redemption payment is prohibited pursuant to Article 10 or 11 hereof or otherwise, interest on the Notes called for redemption ceases to accrue on and after the Redemption Date, and the only remaining right of the Holders of such Notes is to receive payment of the redemption price upon surrender to the Paying Agent of the Notes redeemed; (7) the paragraph of the Notes pursuant to which the Notes called for redemption are being redeemed; and (8) if fewer than all the Notes are to be redeemed, the identification of the particular Notes (or portion thereof) to be redeemed, as well as the aggregate principal amount of Notes to be redeemed and the aggregate principal amount of Notes to be outstanding after such partial redemption. At the Company's written request delivered at least 45 days prior to the Redemption Date, the Trustee shall give the notice of redemption in the Company's name and at the Company's sole expense; provided, however, that the Company shall have delivered to the Trustee, at least 30 days prior to the Redemption Date, a Company Request requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the preceding paragraph. Section 3.04. Effect of Notice of Redemption. Once the notice of redemption described in Section 3.03 is mailed, Notes called for redemption become due and payable on the Redemption Date and at the redemption price, plus interest, if any, accrued to the Redemption Date. Upon surrender to the Trustee or Paying Agent, such Notes shall be paid at the redemption price, plus accrued interest, if any, to the Redemption Date unless prohibited by Article 10 or 11, provided that if the Redemption Date is after a regular interest payment record date and on or prior to the Interest Payment Date, the accrued interest shall be payable to the Holder of the redeemed Notes registered on the relevant record date. Section 3.05. Deposit of Redemption Price. On or prior to 10:00 A.M., New York City time, on each Redemption Date, the Company shall deposit with the Paying Agent in immediately available funds money sufficient to pay 48 -40- the redemption price of and accrued interest, if any, on all Notes to be redeemed on that date other than Notes or portions thereof called for redemption on that date which have been delivered by the Company to the Trustee for cancellation. On and after any Redemption Date, if money sufficient to pay the redemption price of and accrued interest on Notes called for redemption shall have been made available in accordance with the preceding paragraph, the Notes called for redemption will cease to accrue interest and the only right of the Holders of such Notes will be to receive payment of the redemption price of and, subject to the first proviso in Section 3.04, accrued and unpaid interest on such Notes to the Redemption Date. If any Note called for redemption shall not be so paid, interest will be paid, from the Redemption Date until such redemption payment is made, on the unpaid principal of the Note and any interest not paid on such unpaid principal, in each case, at the rate and in the manner provided in the Notes. Section 3.06. Notes Redeemed in Part. Upon surrender of a Note that is redeemed in part, upon the Company's written request, the Trustee shall authenticate for a Holder, at the expense of the Company, a new Note equal in principal amount to the unredeemed portion of the Note surrendered. ARTICLE 4 COVENANTS Section 4.01. Payment of Notes. The Company shall pay the principal of and interest on the Notes on the dates and in the manner provided in the Notes and this Indenture. An installment of principal or interest shall be considered paid on the date it is due if the Trustee or Paying Agent holds, as of 10:00 A.M., New York City time on that date money designated for and sufficient to pay such installment and is not prohibited from paying such money to the Holders pursuant to the terms of this Indenture. The Company shall pay interest on overdue principal, and overdue interest, to the extent lawful, at the rate specified in the Notes. 49 -41- Section 4.02. SEC Reports. The Company will deliver to the Trustee within 15 days after the filing of the same with the SEC, copies of the quarterly and annual reports and of the information documents and other reports, if any, which the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Securities Exchange Act. The Company will also comply with the other provisions of TIA Section 314(a). Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company will file with the SEC, to the extent permitted, and provide the Trustee and Holders of Notes with such quarterly and annual reports and such information, documents and other reports specified in Section 13 and 15(d) of the Exchange Act. In such event, the Company shall also, upon request, provide to any Holder of Notes or any prospective transferee of any such Holder any information concerning the Company (including financial statements) necessary in order to permit such Holder to sell or transfer Notes in compliance with Rule 144A under the Securities Act; provided, however, that the Company shall not be required to furnish such information in connection with any request made on or after the date which is two years from the later of (i) the date such Note (or any predecessor Note) was acquired from the Company or (ii) the date such Note (or any predecessor Note) was last acquired from an "affiliate" of the Company within the meaning of Rule 144 under the Securities Act. Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee's receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer's compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers' Certificates). Section 4.03. Waiver of Stay, Extension or Usury Laws. The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead (as a defense or otherwise) or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury law or other law which would prohibit or forgive the Company from paying all or any portion of the principal of, premium, if any, and/or interest on the Notes as contemplated herein, wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the performance of 50 -42- this Indenture; and (to the extent that it may lawfully do so) the Company hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted. Section 4.04. Compliance Certificate. (a) The Company shall deliver to the Trustee, within 100 days after the end of each fiscal year and on or before 50 days after the end of the first, second and third quarters of each fiscal year, an Officers' Certificate which complies with TIA Section 314(a)(4) stating that a review of the activities of the Company and its Subsidiaries during such fiscal year or fiscal quarter, as the case may be, has been made under the supervision of the signing Officers with a view to determining whether each has kept, observed, performed and fulfilled its obligations under this Indenture, and further stating, as to each such Officer signing such certificate, that to the best of his or her knowledge each has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions and conditions hereof (or, if a Default or Event of Default shall have occurred, describing all or such Defaults or Events of Default of which he or she may have knowledge and what action each is taking or proposes to take with respect thereto) and that to the best of his or her knowledge no event has occurred and remains in existence by reason of which payments on account of the principal of or interest, if any, on the Notes is prohibited or if such event has occurred, a description of the event and what action each is taking or proposes to take with respect thereto. (b) So long as not contrary to the then current recommendations of the American Institute of Certified Public Accountants, the year-end financial statements delivered pursuant to Section 4.02 above shall be accompanied by a written statement of the Company's independent public accountants (who shall be a firm of established national reputation) that in making the examination necessary for certification of such financial statements nothing has come to their attention which would lead them to believe that the Company has violated any provisions of this Article 4 or Article 5 hereof of this Indenture or, if any such violation has occurred, specifying the nature and period of existence thereof, it being understood that such accountants shall not be liable directly or indirectly for any failure to obtain knowledge of any such violation. 51 -43- (c) (i) If any Default or Event of Default has occurred and is continuing or (ii) if any Holder seeks to exercise any remedy hereunder with respect to a claimed Default under this Indenture or the Notes, the Company shall deliver to the Trustee an Officers' Certificate specifying such event, notice or other action within five Business Days of its becoming aware of such occurrence. Section 4.05. Payment of Taxes and Other Claims. The Company shall pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (i) all taxes, assessments and governmental charges (including withholding taxes and any penalties, interest and additions to taxes) levied or imposed upon it or any of its Subsidiaries or properties of it or any of its Subsidiaries and (ii) all lawful claims for labor, materials and supplies that, if unpaid, might by law become a Lien upon the property of it or any of its Subsidiaries; provided, however, that the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim if the amount, applicability or validity thereof is being contested in good faith by appropriate proceedings and an adequate reserve has been established therefor to the extent required by GAAP. Section 4.06. Maintenance of Properties and Insurance. (a) The Company shall cause all properties used or useful to the conduct of its business or the business of any of its Subsidiaries to be maintained and kept in good condition, repair and working order and supplied with all necessary equipment and shall cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in its judgment may be necessary, so that the business carried on in connection therewith may be properly and advantageously conducted at all times unless the failure to so maintain such properties (together with all other such failures) would not have a material adverse effect on the financial condition or results of operations of the Company and its Subsidiaries, taken as a whole; provided, however, that nothing in this Section 4.06 shall prevent the Company or any Subsidiary from discontinuing the operation or maintenance of any of such properties, or disposing of any of them, if such discontinuance or disposal is in the good faith judgment of the Board of Directors of the Company or the Subsidiary concerned, as the case may be, desirable in the conduct of the business of the Company or such Subsidiary, as the case may be, and is not disadvantageous in any material respect to the Holders. 52 -44- (b) The Company shall provide or cause to be provided, for itself and each of its Subsidiaries, insurance (including appropriate self-insurance) against loss or damage of the kinds that, in the reasonable, good faith opinion of the Company are adequate and appropriate for the conduct of the business of the Company and such Subsidiaries in a prudent manner, with reputable insurers or with the government of the United States of America or an agency or instrumentality thereof, in such amounts, with such deductibles, and by such methods as shall be customary, in the good faith judgment of the Company, for corporations similarly situated in the industry, unless the failure to provide such insurance (together with all other such failures) would not have a material adverse effect on the financial condition or results of operations of the Company and its Subsidiaries, taken as a whole. Section 4.07. Compliance with Laws. The Company shall, and shall cause each of its Subsidiaries to, comply with all applicable statutes, rules, regulations, orders and restrictions of the United States of America, all states and municipalities thereof, and of any governmental department, commission, board, regulatory authority, bureau, agency and instrumentality of the foregoing, in respect of the conduct of its businesses and the ownership of its properties, except for such noncompliances as would not in the aggregate have a material adverse effect on the business or financial condition of the Company and its Subsidiaries, taken as a whole. Section 4.08. Corporate Existence. Subject to Article 5 hereof, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect (i) its corporate existence, and the corporate, partnership or other existence of each Restricted Subsidiary, in accordance with the respective organizational documents (as the same may be amended from time to time) of each Restricted Subsidiary and the rights (charter and statutory), licenses and franchises of the Company and its Restricted Subsidiaries; provided, however, that the Company shall not be required to preserve any such right, license or franchise, or the corporate, partnership or other existence of any of its Restricted Subsidiaries, if the Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and its Restricted Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any material respect to the Holders. 53 -45- Section 4.09. Maintenance of Office or Agency. The Company shall maintain an office or agency where Notes may be surrendered for registration of transfer or exchange or for presentation for payment and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served. The Company shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the address of the Trustee as set forth in Section 12.02. The Company may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations. The Company shall give prompt written notice to the Trustee of such designation or rescission and of any change in the location of any such other office or agency. The Company hereby initially designates the Corporate Trust Office of the Trustee set forth in Section 12.02 as such office of the Company. Section 4.10. Limitation on Additional Indebtedness. (a) The Company shall not, and shall not permit any Restricted Subsidiary of the Company to, directly or indirectly, incur any Indebtedness (including Acquired Indebtedness) other than Permitted Indebtedness. (b) Notwithstanding the foregoing, the Company and its Restricted Subsidiaries may incur Indebtedness (including Acquired Indebtedness), if (i) after giving effect to the incurrence of such Indebtedness and the receipt and application of the proceeds thereof, the Company's Fixed Charge Coverage Ratio (determined on a pro forma basis for the last four fiscal quarters of the Company for which financial statements are available at the date of determination in accordance with the further provisions of this clause (b)) is greater than 2.0 to 1 and (ii) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the incurrence of such Indebtedness. For purposes of computing the Fixed Charge Coverage Ratio, (A) if the Indebtedness which is the subject of a determination under this provision is Acquired Indebtedness, or Indebtedness incurred in connection with the si- 54 -46- multaneous acquisition (by way of merger, consolidation or otherwise) of any Person, business, property or assets (an "Acquisition"), then such ratio shall be determined by giving effect to (on a pro forma basis, as if the transaction had occurred at the beginning of the four-quarter period used to make such calculation) both the incurrence or assumption of such Acquired Indebtedness or such other Indebtedness and the inclusion in the Company's EBITDA of the EBITDA of the acquired Person, business, property or assets, (B) if any Indebtedness outstanding or to be incurred (x) bears a floating rate of interest, the interest expense on such Indebtedness shall be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account on a pro forma basis any Interest Rate Agreement applicable to such Indebtedness if such Interest Rate Agreement has a remaining term as at the date of determination in excess of 12 months), (y) bears, at the option of the Company or a Restricted Subsidiary, a fixed or floating rate of interest, the interest expense on such Indebtedness shall be computed by applying, at the option of the Company or such Restricted Subsidiary, either a fixed or floating rate and (z) was incurred under a revolving credit facility, the interest expense on such Indebtedness shall be computed based upon the average daily balance of such Indebtedness during the applicable period, (C) for any quarter included in the calculation of such ratio prior to the date that any Asset Sale was consummated, or that any Indebtedness was incurred, or that any Acquisition was effected, by the Company or any of its Subsidiaries, such calculation shall be made on a pro forma basis, giving effect to each Asset Sale, incurrence of Indebtedness or Acquisition, as the case may be, and the use of any proceeds therefrom, as if the same had occurred at the beginning of the four quarter period used to make such calculation, and (D) the Fixed Charge Coverage Ratio shall not take into account Permitted Indebtedness that is incurred at the same time as Indebtedness under this paragraph. Section 4.11. Limitation on Foreign Indebtedness. (a) The Company shall not permit any Restricted Subsidiary of the Company which is not a Guarantor to, directly or indirectly, incur any Indebtedness (including Acquired Indebtedness) other than Permitted Indebtedness set forth in clauses (i) through (x) and (xii) of the definition thereof unless after giving effect to the incurrence of such Indebtedness and the receipt of the application of the proceeds thereof, (A) if, as a result of the incurrence of such Indebtedness such Restricted Subsidiary will become subject to any restriction or limitation on the payment of dividends or the making of other distributions, (I) the ratio of Foreign EBITDA to Foreign In- 55 -47- terest Expense (determined on a pro forma basis for the last four fiscal quarters for which financial statements are available at the date of determination) is greater than 2.5 to 1 and (II) the ratio of the Company's Adjusted EBITDA to Consolidated Fixed Charges (determined on a pro forma basis for the last four fiscal quarters of the Company for which financial statements are available at the date of determination) is greater than 2.0 to 1 and (B) in any other case, the Company's Fixed Charge Coverage Ratio (determined on a pro forma basis for the last four fiscal quarters of the Company for which financial statements are available at the date of determination) is greater than 2.0 to 1 and (iii) no Default or Event of Default shall have occurred and be continuing at the time or as a consequence of the incurrence of such Indebtedness. (b) In the event that any Indebtedness incurred pursuant to clause (B) of the foregoing paragraph (a) is proposed to be amended, modified or otherwise supplemented such that the payment of dividends or the making of other distributions becomes subject in any manner to any restriction or limitation, the Company will not permit the Restricted Subsidiary to so amend, modify or supplement such Indebtedness unless such Indebtedness could be incurred pursuant to the terms of clause (A) of the foregoing paragraph (a). (c) All calculations required under paragraphs (a) and (b) hereof shall be made in a manner consistent with the calculations required under paragraph (b) of Section 4.10. Section 4.12. Limitation on Common Stock of Subsidiaries. The Company shall not (i) sell, pledge, hypothecate or otherwise convey or dispose of any Common Stock of a Restricted Subsidiary (other than under or in respect of the Amended Credit Agreement or under the terms of any Designated Senior Indebtedness and other than pledges of the Capital Stock of Restricted Subsidiaries that are not Guarantors securing Indebtedness of such Restricted Subsidiaries that are not Guarantors) or (ii) permit any of its Subsidiaries to issue any Common Stock, other than to the Company or a Wholly-Owned Subsidiary of the Company. The foregoing restrictions shall not apply to an Asset Sale made in compliance with Section 4.15. Section 4.13. Limitation on Restricted Payments. The Company shall not make, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, make, any Restricted Payment, unless: 56 -48- (a) no Default or Event of Default shall have occurred and be continuing at the time of or immediately after giving effect to such Restricted Payment; (b) immediately after giving pro forma effect to such Restricted Payment, the Company could incur $1.00 of additional Indebtedness (other than Permitted Indebtedness) under Section 4.10; and (c) immediately after giving effect to such Restricted Payment, the aggregate of all Restricted Payments declared or made after July 2, 1996 does not exceed the sum of (1) $5,000,000, plus (2) 50% of the Company's Consolidated Net Income (or in the event that such Consolidated Net Income shall be a deficit, minus 100% of such deficit) after July 2, 1996, plus (3) 100% of the aggregate Net Cash Proceeds from the issue or sale, after July 2, 1996, of Capital Stock (other than Disqualified Capital Stock or Capital Stock of the Company issued to any Subsidiary of the Company) of the Company or any Indebtedness or other securities of the Company convertible into or exercisable or exchangeable for Capital Stock (other than Disqualified Capital Stock) of the Company which has been so converted or exercised or exchanged, as the case may be. For purposes of determining under this clause (c) the amount expended for Restricted Payments, cash distributed shall be valued at the face amount thereof and property other than cash shall be valued at its fair market value. The provisions of this Section 4.13 shall not prohibit (i) the payment of any distribution within 60 days after the date of declaration thereof, if at such date of declaration such payment would comply with the provisions of this Indenture, (ii) the retirement of any shares of Capital Stock of the Company or Indebtedness which is subordinated in right of payment to the Notes by conversion into, or by or in exchange for, shares of Capital Stock (other than Disqualified Capital Stock), or out of, the Net Cash Proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of other shares of Capital Stock of the Company (other than Disqualified Capital Stock), (iii) the redemption, repayment or retirement of Indebtedness of the Company subordinated in right of payment to the Notes in exchange for, by conversion into, or out of the Net Cash Proceeds of, a substantially concurrent sale or incurrence of Indebtedness (other than any Indebtedness owed to a Subsidiary) of the Company that is contractually subordinated in right of payment to the Notes to at least the same extent as the Indebtedness being redeemed, repaid or retired, (iv) the retirement of any shares of Disqualified Capital Stock by conversion into, or by exchange for, shares of Disqualified 57 -49- Capital Stock, or out of the Net Cash Proceeds of the substantially concurrent issuance or sale (other than to a Subsidiary of the Company) of other shares of Disqualified Capital Stock, or (v) the making of Investments in Unrestricted Subsidiaries and joint ventures, provided that the Net Investment therein made since July 2, 1996 shall not exceed an aggregate of $60,000,000 or (vi) the making of Investments funded with the transfer of excess fixed assets no longer necessary in the conduct of the business of the Company and its Subsidiaries in an aggregate amount not to exceed $40,000,000; provided, however, that in calculating the aggregate amount of Restricted Payments made subsequent to July 2, 1996, the amount of Net Investments made pursuant to clauses (v) and (vi) shall be included in the calculation. Not later than the date of making any Restricted Payment, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this Section 4.13 were computed, which calculations may be based upon the Company's latest available financial statements, and that no Default or Event of Default exists and is continuing and no Default or Event of Default will occur immediately after giving effect to any Restricted Payments. Section 4.14. Limitation on Other Senior Subordinated Debt. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, incur, contingently or otherwise, any Indebtedness (other than the Notes and the Guarantees, as the case may be) that is both (i) subordinate in right of payment to any Senior Indebtedness of the Company or its Restricted Subsidiaries, as the case may be, and (ii) senior in right of payment to the Notes and the Guarantees, as the case may be. For purposes of this Section 4.14, Indebtedness is deemed to be senior in right of payment to the Notes and the Guarantees, as the case may be, if it is not explicitly subordinate in right of payment to Senior Indebtedness at least to the same extent as the Notes and the Guarantees, as the case may be, are subordinate to Senior Indebtedness. Section 4.15. Limitation on Certain Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company or its Restricted Subsidiaries, as the case may be, receives consideration at the time of such sale or other disposition at least equal to the fair market value thereof (as determined in good faith by the Company's Board of 58 -50- Directors, and evidenced by a Board Resolution); (ii) not less than 75% of the consideration received by the Company or its Subsidiaries, as the case may be, is in the form of cash or Temporary Cash Investments other than in the case where the Company or a Restricted Subsidiary is exchanging assets held by the Company or such Restricted Subsidiary for assets held by another Person; provided that any Investment received in such exchange would be permitted under clause (B) below; and (iii) the Asset Sale Proceeds received by the Company or such Restricted Subsidiary are applied (A) first, to the extent the Company elects, or is required, to prepay, repay or purchase any then existing Senior Indebtedness of the Company or any Restricted Subsidiary within 180 days following the receipt of the Asset Sale Proceeds from any Asset Sale, provided that any such repayment shall result in a permanent reduction of the commitments, if any, thereunder in an amount equal to the principal amount so repaid; (B) second, to repurchase the Existing Notes within 270 days following the receipt of the Asset Sale Proceeds from any Asset Sale, tendered pursuant to the offer to repurchase required under the terms of the Existing Indentures, to the extent such repurchase is required prior to the Notes under the terms of the Existing Indentures; (C) third, to the extent of the balance of Asset Sale Proceeds after application as described in clauses (A) and (B) above, to the extent the Company elects, to an investment in assets used or useful in businesses similar or reasonably related to the business of the Company or Restricted Subsidiary as conducted on the Issue Date (either directly or indirectly through the purchase of Capital Stock or other securities of a Person holding such assets), provided that such investment occurs or the Company or a Restricted Subsidiary enters into contractual commitments to make such investment, subject only to customary conditions (other than the obtaining of financing), on or prior to the 181st day following receipt of such Asset Sale Proceeds (the "Reinvestment Date") and Asset Sale Proceeds contractually committed are so applied within 270 days following the receipt of such Asset Sale Proceeds; and (D) fourth, if on the Reinvestment Date with respect to any Asset Sale, the Available Asset Sale Proceeds exceed $25,000,000, the Company shall apply an amount equal to such Available Asset Sale Proceeds to an offer to repurchase the Notes and any other senior subordinated securities of the Company then outstanding (other than the Existing Notes that were the subject of an offer to purchase pursuant to clause (B) above), pro rata, at a purchase price in cash equal to 100% of the principal amount thereof plus accrued and unpaid interest, if any, to the date of repurchase (an "Excess Proceeds Offer"). If an Excess Proceeds Offer is not fully subscribed, the Company may retain the portion of the Available Asset Sale Proceeds not required to repurchase Notes. 59 -51- (b) If the Company is required to make an Excess Proceeds Offer, the Company shall mail, within 30 days following the Reinvestment Date, a notice to the Holders with a copy to the Trustee which shall include, among other things, the instructions, determined by the Company, that each Holder must follow in order to have such Notes repurchased and the calculations used in determining the amount of Available Asset Sale Proceeds to be applied to the repurchase of such Notes. The notice, which shall govern the terms of the Excess Proceeds Offer, shall also state: (1) that the Excess Proceeds Offer is being made pursuant to this Section 4.15 and that the Excess Proceeds Offer shall remain open for a period of 20 Business Days following its commencement or such longer period as may be required by law (the "Offer Period"); (2) that such Holders have the right to require the Company to apply the Available Asset Sale Proceeds to repurchase such Notes and any other senior subordinated securities of the Company then outstanding (other than the Existing Notes that were the subject of an offer to purchase pursuant to clause (B) above), pro rata, at a purchase price in cash equal to 100% of the principal amount thereof plus accrued and unpaid interest, if any, to the date of purchase; (3) the purchase date, which shall be no earlier than 30 days and not later than 60 days from the date such notice is mailed (the "Purchase Date"); (4) that any Note not tendered or accepted for payment will continue to accrue interest; (5) that any Note accepted for payment pursuant to the Excess Proceeds Offer shall cease to accrue interest on and after the Purchase Date; (6) that Holders electing to have a Note purchased pursuant to any Excess Proceeds Offer will be required to surrender the Note, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Note completed, to the Company, a depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least three Business Days before the Purchase Date; (7) that Holders will be entitled to withdraw their election if the Company, Depositary or Paying Agent, as the case may be, receives, not later than the expiration 60 -52- of the Offer Period, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have the Note purchased; (8) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Available Asset Sale Proceeds, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased); and (9) that Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered. On or before the Purchase Date, the Company shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, Notes and any other senior subordinated securities of the Company (except for the Existing Notes), or portions thereof, tendered pursuant to the Excess Proceeds Offer, deposit with the Paying Agent U.S. legal tender sufficient to pay the purchase price plus accrued interest, if any, on the Notes and securities to be purchased and deliver to the Trustee an Officers' Certificate stating that such Notes, securities or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.15. The Paying Agent shall promptly (but in any case not later than three days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Note tendered by such Holder and accepted by the Company for purchase, and the Company shall promptly issue a new Note, and the Trustee, upon the receipt of a written request from the Company, shall authenticate and mail or make available for delivery such new Note to such Holder equal in principal amount to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Excess Proceeds Offer on the Purchase Date. If an Excess Proceeds Offer is not fully subscribed, the Company may retain that portion of the Available Asset Sale Proceeds not required to repurchase Notes or other senior subordinated securities. 61 -53- Section 4.16. Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or suffer to exist any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with any Affiliate (including entities in which the Company or any of its Restricted Subsidiaries own a minority interest) or holder of 10% or more of the Company's Common Stock (an "Affiliate Transaction") or extend, renew, waive or otherwise modify the terms of any Affiliate Transaction entered into prior to the Issue Date unless (i) such Affiliate Transaction is between or among the Company and its Wholly-Owned Subsidiaries; or (ii) the terms of such Affiliate Transaction are fair and reasonable to the Company or such Restricted Subsidiary, as the case may be, and the terms of such Affiliate Transaction are at least as favorable as the terms which could be obtained by the Company or such Restricted Subsidiary, as the case may be, in a comparable transaction made on an arm's-length basis between unaffiliated parties. In any Affiliate Transaction involving an amount or having a value in excess of $2,000,000 which is not permitted under clause (i) above, the Company must obtain a resolution of the Board of Directors certifying that such Affiliate Transaction complies with clause (ii) above. In transactions with a value in excess of $25,000,000 which are not permitted under clause (i) above, the Company or such Restricted Subsidiary must obtain a written opinion as to the fairness of such a transaction from an independent investment banking firm. (b) The foregoing provisions of this Section 4.16 will not apply to (i) any Restricted Payment that is not prohibited by Section 4.13, (ii) reasonable and customary fees paid by the Company or its Restricted Subsidiaries to their respective directors or (iii) customary investment banking, underwriting, placement agent or financial advisor fees paid in connection with services rendered to the Company or its Subsidiaries. Section 4.17. Limitations on Liens. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, create, incur or otherwise cause or suffer to exist or become effective any Liens of any kind upon any Property of the Company or any Restricted Subsidiary, now owned or hereafter acquired which secures Indebtedness pari passu with or subordinated to the Notes unless (i) if such Lien secures Indebtedness which is pari passu with the 62 -54- Notes, then the Notes are secured on an equal and ratable basis with the obligations so secured until such time as such obligation is no longer secured by a Lien or (ii) if such Lien secures Indebtedness which is subordinated to the Notes, any such Lien shall be subordinated to a Lien granted to the Holders of the Notes in the same collateral as that securing such Lien to the same extent as such subordinated Indebtedness is subordinated to the Notes. Section 4.18. Limitation on Creation of Subsidiaries. The Company shall not create or acquire, nor permit any of its Restricted Subsidiaries to create or acquire, any Subsidiary other than (i) a Restricted Subsidiary existing as of the date of this Indenture, (ii) a Restricted Subsidiary conducting a business similar or reasonably related to the business of the Company and its Subsidiaries as conducted on the Issue Date, or (iii) an Unrestricted Subsidiary; provided, however, that each Restricted Subsidiary which is a Domestic Subsidiary acquired or created pursuant to clause (ii) shall have executed a Guarantee, satisfactory in form and substance to the Trustee (and with such documentation relating thereto as the Trustee shall require, including, without limitation, a supplement or amendment to this Indenture and opinions of counsel as to the enforceability of such Guarantee), pursuant to which such Restricted Subsidiary shall become a Guarantor. Neither the Company nor any of the Guarantors will transfer any assets to a Domestic Restricted Subsidiary which is not a Guarantor unless such Restricted Subsidiary simultaneously with such transfer executes a Guarantee satisfactory in form and substance to the Trustee (together with the documentation referred to in the preceding sentence) pursuant to which such Restricted Subsidiary shall become a Guarantor. Section 4.19. Payments for Consent. Neither the Company nor any of its Subsidiaries shall, directly or indirectly, pay or cause to be paid any consideration, whether by way of interest, fee or otherwise, to any Holder of any Notes for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Indenture or the Notes unless such consideration is offered to be paid or agreed to be paid to all Holders of the Notes which so consent, waive or agree to amend in the time frame set forth in solicitation documents relating to such consent, waiver or agreement. 63 -55- Section 4.20. Change of Control. (a) Within 20 days of the occurrence of a Change of Control, the Company shall notify the Trustee in writing of such occurrence and shall make an offer to purchase (the "Change of Control Offer") the outstanding Notes at a purchase price equal to 101% of the principal amount thereof plus any accrued and unpaid interest thereon to the Change of Control Payment Date (such purchase price being hereinafter referred to as the "Change of Control Purchase Price") in accordance with the procedures set forth in this Section 4.20. (b) Within 20 days of the occurrence of a Change of Control, the Company also shall (i) cause a notice of the Change of Control Offer to be sent at least once to the Dow Jones News Service or similar business news service in the United States and (ii) send by first-class mail, postage prepaid, to the Trustee and to each Holder of the Notes, at the address appearing in the register maintained by the Registrar of the Notes, a notice stating: (i) that the Change of Control Offer is being made pursuant to this Section 4.20 and that all Notes tendered will be accepted for payment, and otherwise subject to the terms and conditions set forth herein; (ii) the Change of Control Purchase Price and the purchase date (which shall be a Business Day no earlier than 20 business days from the date such notice is mailed (the "Change of Control Payment Date")); (iii) that any Note not tendered will continue to accrue interest; (iv) that, unless the Company defaults in the payment of the Change of Control Purchase Price, any Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest after the Change of Control Payment Date; (v) that Holders accepting the offer to have their Notes purchased pursuant to a Change of Control Offer will be required to surrender the Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Note completed, to the Paying Agent at the address specified in the notice prior to the close of business on the Business Day preceding the Change of Control Payment Date; (vi) that Holders will be entitled to withdraw their acceptance if the Paying Agent receives, not later than 64 -56- the close of business on the third Business Day preceding the Change of Control Payment Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes delivered for purchase, and a statement that such Holder is withdrawing his election to have such Notes purchased; (vii) that Holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered, provided that each Note purchased and each such new Note issued shall be in an original principal amount in denominations of $1,000 and integral multiples thereof; (viii) any other procedures that a Holder must follow to accept a Change of Control Offer or effect withdrawal of such acceptance; and (ix) the name and address of the Paying Agent. On the Change of Control Payment Date, the Company shall, to the extent lawful, (i) accept for payment Notes or portions thereof tendered pursuant to the Change of Control Offer, (ii) deposit with the Paying Agent money sufficient to pay the purchase price of all Notes or portions thereof so tendered and (iii) deliver or cause to be delivered to the Trustee Notes so accepted together with an Officers' Certificate stating the Notes or portions thereof tendered to the Company. The Paying Agent shall promptly mail to each Holder of Notes so accepted payment in an amount equal to the purchase price for such Notes, and the Company shall execute and issue, and the Trustee shall, upon the receipt of a written request from the Company, promptly authenticate and mail to such Holder, a new Note equal in principal amount to any unpurchased portion of the Notes surrendered; provided that each such new Note shall be issued in an original principal amount in denominations of $1,000 and integral multiples thereof. (c) If the Amended Credit Agreement is in effect, or any amounts are owing thereunder or in respect thereof, at the time of the occurrence of a Change of Control, prior to the mailing of the notice to Holders described in the preceding paragraph (b), but in any event within 30 days following any Change of Control, the Company covenants to (A) repay in full all obligations under or in respect of the Amended Credit Agreement or offer to repay in full all obligations under or in respect of the Amended Credit Agreement and repay the obligations under or in respect of the Amended Credit Agreement of each lender who has accepted such offer or (B) obtain the requisite consent under the Amended Credit Agreement to permit the 65 -57- repurchase of the Notes as described above. The Company must first comply with the covenant described in the preceding sentence before it shall be required to purchase Notes in the event of a Change of Control; provided that the Company's failure to comply with the covenant described in the preceding sentence constitutes an Event of Default described in Section 6.01(3) if not cured within 60 days after the notice required by that section. (d) (i) If the Company or any Subsidiary thereof has issued any outstanding (A) Indebtedness that is subordinated in right of payment to the Notes or (B) Preferred Stock, and the Company or such Subsidiary is required to make a Change of Control Offer or to make a distribution with respect to such subordinated Indebtedness or Preferred Stock in the event of a Change of Control, the Company shall not consummate any such offer or distribution with respect to such subordinated Indebtedness or Preferred Stock until such time as the Company shall have paid the Change of Control Purchase Price in full to the Holders of Notes that have accepted the Company's Change of Control Offer and shall otherwise have consummated the Change of Control Offer made to Holders of the Notes and (ii) the Company will not issue Indebtedness that is subordinated in right of payment to the Notes or Preferred Stock with change of control provisions requiring the payment of such Indebtedness or Preferred Stock prior to the payment of the Notes in the event of a Change of Control under this Indenture. In the event that a Change of Control occurs and the Holders of Notes exercise their right to require the Company to purchase Notes, if such purchase constitutes a "tender offer" for purposes of Rule 14e-1 under the Exchange Act at that time, the Company will comply with the requirements of Rule 14e-1 as then in effect with respect to such repurchase. ARTICLE 5 SUCCESSOR CORPORATION Section 5.01. Limitation on Consolidation, Merger and Sale of Assets. (a) The Company shall not and shall not permit any Guarantor to consolidate with, merge with or into, or transfer all or substantially all of its assets (as an entirety or substantially as an entirety in one transaction or a series of related transactions), to any Person unless: (i) the Company or the Guarantor, as the case may be, shall be the continuing Person, or the Person (if other than the Company or the Guarantor) 66 -58- formed by such consolidation or into which the Company or the Guarantor, as the case may be, is merged or to which the properties and assets of the Company or the Guarantor, as the case may be, are transferred shall be a corporation organized and existing under the laws of the United States or any State thereof or the District of Columbia and shall expressly assume, by a supplemental indenture, executed and delivered to the Trustee, in form satisfactory to the Trustee, all of the obligations of the Company or the Guarantor, as the case may be, under the Notes and this Indenture, and the obligations under this Indenture shall remain in full force and effect; (ii) immediately before and immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; and (iii) immediately after giving effect to such transaction on a pro forma basis the Company or such Person could incur at least $1.00 additional Indebtedness (other than Permitted Indebtedness) pursuant to Section 4.10 hereof, provided that a Person that is a Guarantor may merge into the Company or another Person that is a Guarantor without complying with this clause (iii). (b) In connection with any consolidation, merger or transfer of assets contemplated by this Section 5.01, the Company shall deliver, or cause to be delivered, to the Trustee, in form and substance reasonably satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and the supplemental indenture in respect thereto comply with this Section 5.01 and that all conditions precedent herein provided for relating to such transaction or transactions have been complied with. Section 5.02. Successor Person Substituted. Upon any consolidation or merger, or any transfer of all or substantially all of the assets of the Company or any Guarantor in accordance with Section 5.01 above, the successor corporation formed by such consolidation or into which the Company is merged or to which such transfer is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company or such Guarantor under this Indenture with the same effect as if such successor corporation had been named as the Company or such Guarantor herein, and thereafter the predecessor corporation shall be relieved of all obligations and covenants under this Indenture and the Notes. 67 -59- ARTICLE 6 DEFAULTS AND REMEDIES Section 6.01. Events of Default. An "Event of Default" occurs if (1) there is a default in the payment of any principal of, or premium, if any, on the Notes when the same becomes due and payable at maturity, upon acceleration, redemption or otherwise, whether or not such payment is prohibited by the provisions of Article 11 hereof; (2) there is a default in the payment of any interest on any Note when the same becomes due and payable and the Default continues for a period of 30 days, whether or not such payment is prohibited by the provisions of Article 11 hereof; (3) the Company or any Guarantor defaults in the observance or performance of any other covenant in the Notes or this Indenture for 60 days after written notice from the Trustee or the Holders of not less than 25% in the aggregate principal amount of the Notes then outstanding; (4) there is a default in the payment at final maturity of principal in an aggregate amount of $10,000,000 or more with respect to any Indebtedness of the Company or any Restricted Subsidiary thereof which default shall not be cured, waived or postponed pursuant to an agreement with the holders of such Indebtedness within 60 days after written notice, or the acceleration of any such Indebtedness aggregating $10,000,000 or more which acceleration shall not be rescinded or annulled within 20 days after written notice to the Company of such Default by the Trustee or any Holder; (5) a court of competent jurisdiction enters a final judgment or judgments which can no longer be appealed for the payment of money in excess of $10,000,000 against the Company or any Restricted Subsidiary thereof and such judgment remains undischarged, for a period of 60 consecutive days during which a stay of enforcement of such judgment shall not be in effect; (6) the Company or any Restricted Subsidiary pursuant to or within the meaning of any Bankruptcy Law: 68 -60- (A) commences a voluntary case, (B) consents to the entry of an order for relief against it in an involuntary case, (C) consents to the appointment of a Custodian of it or for all or substantially all of its property, (D) makes a general assignment for the benefit of its creditors, or (E) generally is not paying its debts as they become due; or (7) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: (A) is for relief against the Company or any Restricted Subsidiary in an involuntary case, (B) appoints a Custodian of the Company or any Restricted Subsidiary or for all or substantially all of the property of the Company or any Restricted Subsidiary, or (C) orders the liquidation of the Company or any Restricted Subsidiary, and the order or decree remains unstayed and in effect for 60 days. The term "Bankruptcy Law" means Title 11, U.S. Code or any similar Federal or state law for the relief of debtors. The term "Custodian" means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law. The Trustee may withhold notice to the Holders of the Notes of any Default (except in payment of principal or premium, if any, or interest on the Notes) if the Trustee considers it to be in the best interest of the Holders of the Notes to do so. Section 6.02. Acceleration. If an Event of Default (other than an Event of Default arising under Section 6.01(6) or (7) with respect to the Company) occurs and is continuing, the Trustee by notice to the Company, or the Holders of not less than 25% in aggregate principal amount of the Notes then outstanding may by written no- 69 -61- tice to the Company and the Trustee declare to be immediately due and payable the entire principal amount of all the Notes then outstanding plus accrued but unpaid interest to the date of acceleration and (i) such amounts shall become immediately due and payable or (ii) if there are any amounts outstanding under or in respect of the Amended Credit Agreement, such amounts shall become due and payable upon the first to occur of an acceleration under or in respect of the Amended Credit Agreement or five Business Days after receipt by the Company and the Representative of notice of the acceleration of the Notes; provided, however, that after such acceleration but before a judgment or decree based on such acceleration is obtained by the Trustee, the Holders of a majority in aggregate principal amount of the outstanding Notes may rescind and annul such acceleration and its consequences if (i) all existing Events of Default, other than the nonpayment of accelerated principal, premium, if any, or interest that has become due solely because of the acceleration, have been cured or waived, (ii) to the extent the payment of such interest is lawful, interest on overdue installments of interest and overdue principal, which has become due otherwise than by such declaration of acceleration, has been paid and (iii) if the rescission would not conflict with any judgment or decree. No such rescission shall affect any subsequent Default or impair any right consequent thereto. In case an Event of Default specified in Section 6.01(6) or (7) with respect to the Company occurs, such principal, premium, if any, and interest amount with respect to all of the Notes shall be due and payable immediately without any declaration or other act on the part of the Trustee or the Holders of the Notes. Section 6.03. Other Remedies. If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy by proceeding at law or in equity to collect the payment of principal of, or premium, if any, and interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture. The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Noteholder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive of any other remedy. All available remedies are cumulative to the extent permitted by law. 70 -62- Section 6.04. Waiver of Past Defaults and Events of Default. Subject to Sections 6.02, 6.07 and 8.02 hereof, the Holders of a majority in principal amount of the Notes then outstanding have the right to waive any existing Default or Event of Default or compliance with any provision of this Indenture or the Notes. Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereto. Section 6.05. Control by Majority. The Holders of a majority in principal amount of the Notes then outstanding may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee by this Indenture. The Trustee, however, may refuse to follow any direction that conflicts with law or this Indenture or that the Trustee determines may be unduly prejudicial to the rights of another Noteholder or that may involve the Trustee in personal liability; provided that the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction. Section 6.06. Limitation on Suits. Subject to Section 6.07 below, a Noteholder may not institute any proceeding or pursue any remedy with respect to this Indenture or the Notes unless: (1) the Holder gives to the Trustee written notice of a continuing Event of Default; (2) the Holders of at least 25% in aggregate principal amount of the Notes then outstanding make a written request to the Trustee to pursue the remedy; (3) such Holder or Holders offer to the Trustee indemnity reasonably satisfactory to the Trustee against any loss, liability or expense to be incurred in compliance with such request; (4) the Trustee does not comply with the request within 60 days after receipt of the request and the offer of indemnity; and 71 -63- (5) no direction inconsistent with such written request has been given to the Trustee during such 60 day period by the Holders of a majority in aggregate principal amount of the Notes then outstanding. A Noteholder may not use this Indenture to prejudice the rights of another Noteholder or to obtain a preference or priority over another Noteholder. Section 6.07. Rights of Holders To Receive Payment. Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to receive payment of principal of, or premium, if any, and interest of the Note on or after the respective due dates expressed in the Note, or to bring suit for the enforcement of any such payment on or after such respective dates, is absolute and unconditional and shall not be impaired or affected without the consent of the Holder. Section 6.08. Collection Suit by Trustee. If an Event of Default in payment of principal, premium or interest specified in Section 6.01(1) or (2) hereof occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Company or the Guarantors (or any other obligor on the Notes) for the whole amount of unpaid principal and accrued interest remaining unpaid, together with interest on overdue principal and, to the extent that payment of such interest is lawful, interest on overdue installments of interest, in each case at the rate then borne by the Notes, and such further amounts as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel. Section 6.09. Trustee May File Proofs of Claim. The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Noteholders allowed in any judicial proceedings relative to the Company or the Guarantors (or any other obligor upon the Notes), any of their respective creditors or any of their respective property and shall be entitled and empowered to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same after deduction of its charges and expenses to the extent that any such charges and expenses are not paid out of the estate in any such proceedings 72 -64- and any custodian in any such judicial proceeding is hereby authorized by each Noteholder to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Noteholders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Noteholder any plan or reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Noteholder in any such proceedings. Section 6.10. Priorities. If the Trustee collects any money pursuant to this Article 6, it shall pay out the money in the following order: FIRST: to the Trustee for amounts due under Section 7.07 hereof, including payment of all compensation, expenses and liabilities incurred and all advances made, by the Trustee and the costs and expense of collection; SECOND: to Noteholders for amounts due and unpaid on the Notes for principal, premium, if any, and interest as to each, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes; and THIRD: to the Company or, to the extent the Trustee collects any amount from any Guarantor, to such Guarantor. The Trustee may fix a record date and payment date for any payment to Noteholders pursuant to this Section 6.10. Section 6.11. Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys' fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. 73 -65- This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07 hereof or a suit by Holders of more than 10% in principal amount of the Notes then outstanding. ARTICLE 7 TRUSTEE Section 7.01. Duties of Trustee. (a) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in its exercise as a prudent person would exercise or use under the same circumstances in the conduct of his own affairs. (b) Except during the continuance of an Event of Default: (1) The duties of the Trustee shall be determined solely by the express provisions of this Indenture and the TIA and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no covenants or obligations shall be implied in this Indenture against the Trustee. (2) In the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture but, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein). (c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that: (1) This paragraph does not limit the effect of paragraph (b) of this Section 7.01. 74 -66- (2) The Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts. (3) The Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Sections 6.02 and 6.05 hereof. (d) No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any liability. The Trustee shall be under no obligation to exercise any of its rights or powers under the Indenture unless adequate indemnity satisfactory to it against such risk or liability has been assured to it. (e) Whether or not therein expressly so provided, paragraphs (a), (b), (c) and (d) of this Section 7.01 shall govern every provision of this Indenture that in any way relates to the Trustee. (f) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company or any Guarantor. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by the law. Section 7.02. Rights of Trustee. Subject to Section 7.01 hereof: (1) The Trustee may conclusively rely on and shall be protected in acting or refraining from acting upon any document reasonably believed by it to be genuine and to have been signed or presented by the proper person. The Trustee need not investigate any fact or matter stated in the document. (2) Before the Trustee acts or refrains from acting, it may require an Officers' Certificate or an Opinion of Counsel, or both, which shall conform to the provisions of Section 12.05 hereof. The Trustee shall be protected and shall not be liable for any action it takes or omits to take in good faith in reliance on such certificate or opinion. (3) The Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent appointed by it with due care. 75 -67- (4) The Trustee shall not be liable for any action it takes or omits to take in good faith which it reasonably believes to be authorized or within its rights or powers. (5) The Trustee may consult with counsel of its selection, and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by it hereunder in good faith and in accordance with the advice or opinion of such counsel. (6) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Holders pursuant to the provisions of this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby. (7) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture. Section 7.03. Individual Rights of Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may make loans to, accept deposits from, perform services for or otherwise deal with the Company or any Guarantor, or any Affiliates thereof, with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights. The Trustee, however, shall be subject to Sections 7.10 and 7.11 hereof. Section 7.04. Trustee's Disclaimer. The Trustee makes no representation as to the validity or adequacy of this Indenture or the Notes, it shall not be accountable for the Company's use of the proceeds from the sale of Notes or any money paid to the Company or upon the Company's direction pursuant to the terms of this Indenture, it shall not be responsible for the use or application of money received by any Paying Agent other than the Trustee, and it shall not be responsible for any statement in the Notes other than its certificate of authentication. 76 -68- Section 7.05. Notice of Default. If a Default or an Event of Default occurs and is continuing and if it is actually known to the Trustee, the Trustee shall mail to each Noteholder notice of the Default or the Event of Default, as the case may be, within 90 days after it occurs. Except in the case of a Default or an Event of Default in payment of the principal of, or premium, if any, or interest on any Note the Trustee may withhold the notice if and so long as the board of directors of the Trustee, the executive committee or any trust committee of such board and/or its Trust Officers in good faith determine(s) that withholding the notice is in the interests of the Noteholders. Section 7.06. Reports by Trustee to Holders. Within 60 days after May 15 of any year, commencing the May 15 following the date of this Indenture, the Trustee shall mail to each Noteholder a brief report dated as of such May 15 that complies with TIA Section 313(a) (but if no event described in TIA Section 313(a) has occurred within the twelve months preceding the report date, no report need be transmitted). The Trustee also shall comply with TIA Sections 313(b) and 313(c). A copy of each report at the time of its mailing to Noteholders shall be filed with the SEC and each stock exchange, if any, on which the Notes are listed. The Company shall promptly notify the Trustee when the Notes are listed on any stock exchange and the Trustee shall comply with TIA Section 313(d). Section 7.07. Compensation and Indemnity. The Company shall pay to the Trustee from time to time such compensation for its services as the Trustee and the Company shall from time to time agree in writing. The Trustee's compensation shall not be limited by any provision of law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee promptly upon request for all reasonable disbursements, expenses and advances incurred or made by it in connection with its duties under this Indenture, including the reasonable compensation, disbursements and expenses of the Trustee's agents and counsel. The Company shall indemnify each of the Trustee and any predecessor Trustee for, and hold it harmless against, any and all damages, claims, loss or liability incurred by it in connection with the acceptance or performance of its duties under this Indenture including the reasonable costs and expenses of enforcing this Indenture against the Company and the Guaran- 77 -69- tors and defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. The Trustee shall notify the Company promptly of any claim asserted against the Trustee for which it may seek indemnity. However, the failure by the Trustee to so notify the Company shall not relieve the Company of its obligations. Notwithstanding the foregoing, the Company and the Guarantors need not reimburse the Trustee for any expense or indemnify it against any loss or liability incurred by the Trustee through its negligence or bad faith. To secure the payment obligations of the Company and the Guarantors in this Section 7.07, the Trustee shall have a lien prior to the Notes on all money or property held or collected by the Trustee except such money or property held in trust to pay principal of and interest on particular Notes. Such lien shall survive the satisfaction and discharge of this Indenture. When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(6) or (7) hereof occurs, the expenses and the compensation for the services are intended to constitute expenses of administration under any Bankruptcy Law. For purposes of this Section 7.07, the term "Trustee" shall include any trustee appointed pursuant to Article 9. The obligation of the Company and the Guarantors under this Section 7.07 shall survive the satisfaction and discharge of this Indenture. Section 7.08. Replacement of Trustee. The Trustee may resign by so notifying the Company in writing. The Holders of a majority in principal amount of the outstanding Notes may remove the Trustee by notifying the removed Trustee in writing and may appoint a successor Trustee with the Company's written consent which consent shall not be unreasonably withheld. The Company may remove the Trustee at its election if: (1) the Trustee fails to comply with Section 7.10 hereof; (2) the Trustee is adjudged a bankrupt or an insolvent; (3) a receiver or other public officer takes charge of the Trustee or its property; or 78 -70- (4) the Trustee otherwise becomes incapable of acting. If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly notify each Holder of such event and shall promptly appoint a successor Trustee. If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of at least 10% in principal amount of the outstanding Notes may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Trustee. If the Trustee fails to comply with Section 7.10 hereof, any Noteholder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee. A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Immediately following such delivery, the retiring Trustee shall, subject to its rights under Section 7.07 hereof, transfer all property held by it as Trustee to the successor Trustee (provided all sums owing to the Trustee hereunder have been paid and subject to the lien provided for in Section 7.07 hereof), the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. A successor Trustee shall mail notice of its succession to each Noteholder. Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the obligations of the Company and the Guarantors under Section 7.07 hereof shall continue for the benefit of the retiring Trustee. Section 7.09. Successor Trustee by Consolidation, Merger or Conversion. If the Trustee consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust assets to, another corporation, subject to Section 7.10 hereof, the successor corporation without any further act shall be the successor Trustee. 79 -71- Section 7.10. Eligibility; Disqualification. This Indenture shall always have a Trustee who satisfies the requirements of TIA Section 310(a)(1), (2) and (5) in every respect. The Trustee shall have a combined capital and surplus of at least $100,000,000 as set forth in its most recent published annual report of condition. The Trustee shall comply with TIA Section 310(b), including the provision in Section 310(b)(1). Section 7.11. Preferential Collection of Claims Against Company. The Trustee shall comply with TIA Section 311(a), excluding any creditor relationship listed in TIA Section 311 (b). A Trustee who has resigned or been removed shall be subject to TIA Section 311(a) to the extent indicated therein. Section 7.12. Paying Agents. The Company shall cause each Paying Agent other than the Trustee to execute and deliver to it and the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section 7.12: (A) that it will hold all sums held by it as agent for the payment of principal of, or premium, if any, or interest on, the Notes (whether such sums have been paid to it by the Company or by any obligor on the Notes) in trust for the benefit of Holders of the Notes or the Trustee; (B) that it will at any time during the continuance of any Event of Default, upon written request from the Trustee, deliver to the Trustee all sums so held in trust by it together with a full accounting thereof; and (C) that it will give the Trustee written notice within three (3) Business Days of any failure of the Company (or by any obligor on the Notes) in the payment of any installment of the principal of, premium, if any, or interest on, the Notes when the same shall be due and payable. 80 -72- ARTICLE 8 AMENDMENTS, SUPPLEMENTS AND WAIVERS Section 8.01. Without Consent of Holders. The Company and the Guarantors, when authorized by a Board Resolution of each of them, and the Trustee may amend or supplement this Indenture or the Notes without notice to or consent of any Noteholder: (1) to comply with Section 5.01 hereof; (2) to provide for uncertificated Notes in addition to or in place of certificated Notes; (3) to comply with any requirements of the SEC under the TIA; (4) to cure any ambiguity, defect or inconsistency, or to make any other change that does not materially and adversely affect the rights of any Noteholder; or (5) to make any other change that does not, in the opinion of the Trustee, adversely affect in any material respect the rights of any Noteholders hereunder. The Trustee is hereby authorized to join with the Company and the Guarantors in the execution of any supplemental indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations which may be therein contained, but the Trustee shall not be obligated to enter into any such supplemental indenture which adversely affects its own rights, duties or immunities under this Indenture. Section 8.02. With Consent of Holders. The Company, the Guarantors, when authorized by a Board Resolution of each of them, and the Trustee may amend or supplement this Indenture or the Notes with the written consent of the Holders of not less than a majority in aggregate principal amount of the outstanding Notes without notice to any Noteholder. The Holders of not less than a majority in aggregate principal amount of the outstanding Notes may waive compliance in a particular instance by the Company with any provision of this Indenture or the Notes without notice to any Noteholder. Subject to Section 8.04, without the consent of each Noteholder 81 -73- affected, however, an amendment, supplement or waiver, including a waiver pursuant to Section 6.04, may not: (1) reduce the amount of Notes whose Holders must consent to an amendment, supplement or waiver to this Indenture or the Notes; (2) reduce the rate of or change the time for payment of interest on any Note; (3) reduce the principal of or premium on or change the stated maturity of any Note; (4) make any Note payable in money other than that stated in the Note or change the place of payment from New York, New York; (5) change the amount or time of any payment required by the Notes or reduce the premium payable upon any redemption of the Notes in accordance with Paragraph 6 of the Notes, or change the time before which no such redemption may be made; (6) waive a default in the payment of the principal of, or interest on, or redemption payment with respect to, any Note; (7) make any changes in Sections 6.04 or 6.07 hereof or this sentence of Section 8.02; or (8) affect the ranking of the Notes or the Guarantees in a manner adverse to the Holders. After an amendment, supplement or waiver under this Section 8.02 becomes effective, the Company shall mail to the Holders a notice briefly describing the amendment, supplement or waiver. Upon the request of the Company, accompanied by a Board Resolution authorizing the execution of any such supplemental indenture, and upon the receipt by the Trustee of evidence reasonably satisfactory to the Trustee of the consent of the Noteholders as aforesaid and upon receipt by the Trustee of the documents described in Section 8.06 hereof, the Trustee shall join with the Company and the Guarantors in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee's own rights, duties or immunities under this Indenture, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture. 82 -74- It shall not be necessary for the consent of the Holders under this Section to approve the particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if such consent approves the substance thereof. Section 8.03. Compliance with Trust Indenture Act. Every amendment to or supplement of this Indenture or the Notes shall comply with the TIA as then in effect. Section 8.04. Revocation and Effect of Consents. Until an amendment, supplement, waiver or other action becomes effective, a consent to it by a Holder of a Note is a continuing consent conclusive and binding upon such Holder and every subsequent Holder of the same Note or portion thereof, and of any Note issued upon the transfer thereof or in exchange therefor or in place thereof, even if notation of the consent is not made on any such Note. Any such Holder or subsequent Holder, however, may revoke the consent as to his Note or portion of a Note, if the Trustee receives the notice of revocation before the date the amendment, supplement, waiver or other action becomes effective. The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to consent to any amendment, supplement, or waiver which record date shall be at least 30 days prior to the first solicitation of such consent. If a record date is fixed, then, notwithstanding the preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only such Persons, shall be entitled to consent to such amendment, supplement, or waiver or to revoke any consent previously given, whether or not such Persons continue to be Holders after such record date. No such consent shall be valid or effective for more than 90 days after such record date. After an amendment, supplement, waiver or other action becomes effective, it shall bind every Noteholder, unless it makes a change described in any of clauses (1) through (8) of Section 8.02 hereof. In that case the amendment, supplement, waiver or other action shall bind each Holder of a Note who has consented to it and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder's Note; provided that any such waiver shall not impair or affect the right of any Holder to receive payment of principal of and interest on a Note, on or after the respective due dates expressed in such Note, or to bring suit for the enforcement of any such payment on or after such respective dates without the consent of such Holder. 83 -75- Section 8.05. Notation on or Exchange of Notes. If an amendment, supplement, or waiver changes the terms of a Note, the Trustee may request the Holder of the Note to deliver it to the Trustee. In such case, the Trustee shall place an appropriate notation on the Note about the changed terms and return it to the Holder. Alternatively, if the Company or the Trustee so determines, the Company in exchange for the Note shall issue and the Trustee shall authenticate a new security that reflects the changed terms. Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment supplement or waiver. Section 8.06. Trustee To Sign Amendments, etc. The Trustee shall sign any amendment, supplement or waiver authorized pursuant to this Article 8 if the amendment, supplement or waiver does not adversely affect the rights, duties, liabilities or immunities of the Trustee. If it does, the Trustee may, but need not, sign it. In signing or refusing to sign such amendment, supplement or waiver the Trustee shall be entitled to receive and, subject to Section 7.01 hereof, shall be fully protected in relying upon an Officers' Certificate and an Opinion of Counsel stating that such amendment, supplement or waiver is authorized or permitted by this Indenture, that it is not inconsistent herewith, and that it will be valid and binding upon the Company and the Guarantors in accordance with its terms. The Company or any Guarantor may not sign an amendment or supplement until the Board of Directors of the Company or such Guarantor, as appropriate, approves it. ARTICLE 9 DISCHARGE OF INDENTURE; DEFEASANCE Section 9.01. Discharge of Indenture. The Company and the Guarantors may terminate their obligations under the Notes, the Guarantees and this Indenture, except the obligations referred to in the last paragraph of this Section 9.01, if there shall have been cancelled by the Trustee or delivered to the Trustee for cancellation all Notes theretofore authenticated and delivered (other than any Notes that are asserted to have been destroyed, lost or stolen and that shall have been replaced as provided in Section 2.07 hereof) and the Company has paid all sums payable by it hereunder or deposited all required sums with the Trustee. 84 -76- After such delivery the Trustee upon request shall acknowledge in writing the discharge of the Company's and the Guarantors' obligations under the Notes, the Guarantees and this Indenture except for those surviving obligations specified below. Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company in Sections 7.07, 9.05 and 9.06 hereof shall survive. Section 9.02. Legal Defeasance. The Company may at its option, by Board Resolution, be discharged from its obligations with respect to the Notes and the Guarantors discharged from their obligations under the Guarantees on the date the conditions set forth in Section 9.04 below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the Notes and to have satisfied all its other obligations under such Notes and this Indenture insofar as such Notes are concerned (and the Trustee, at the expense of the Company, shall, subject to Section 9.06 hereof, execute proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder: (A) the rights of Holders of outstanding Notes to receive solely from the trust funds described in Section 9.04 hereof and as more fully set forth in such Section, payments in respect of the principal of, premium, if any, and interest on such Notes when such payments are due, (B) the Company's obligations with respect to such Notes under Sections 2.03, 2.04, 2.05, 2.06, 2.07, 2.08 and 4.09 hereof, (C) the rights, powers, trusts, duties, and immunities of the Trustee hereunder (including claims of, or payments to, the Trustee under or pursuant to Section 7.07 hereof) and (D) this Article 9. Subject to compliance with this Article 9, the Company may exercise its option under this Section 9.02 with respect to the Notes notwithstanding the prior exercise of its option under Section 9.03 below with respect to the Notes. Section 9.03. Covenant Defeasance. At the option of the Company, pursuant to a Board Resolution, the Company and the Guarantors shall be released from their respective obligations under Sections 4.02 through 4.08 and Sections 4.10 through 4.20 hereof, inclusive, and clause (a)(iii) of Section 5.01 hereof with respect to the outstanding Notes on and after the date the conditions set forth in Section 9.04 hereof are satisfied (hereinafter, "Covenant Defeasance"). For this purpose, such Covenant Defeasance means 85 -77- that the Company and the Guarantors may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such specified Section or portion thereof, whether directly or indirectly by reason of any reference elsewhere herein to any such specified Section or portion thereof or by reason of any reference in any such specified Section or portion thereof to any other provision herein or in any other document, but the remainder of this Indenture and the Notes shall be unaffected thereby. Section 9.04. Conditions to Defeasance or Covenant Defeasance. The following shall be the conditions to application of Section 9.02 or Section 9.03 hereof to the outstanding Notes: (1) the Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 7.10 hereof who shall agree to comply with the provisions of this Article 9 applicable to it) as funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Notes, (A) money in an amount, or (B) U.S. Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount, or (C) a combination thereof, sufficient, in the opinion of a nationally-recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of, premium, if any, and accrued interest on the outstanding Notes at the maturity date of such principal, premium, if any, or interest, or on dates for payment and redemption of such principal, premium, if any, and interest selected in accordance with the terms of this Indenture and of the Notes; (2) no Event of Default or Default with respect to the Notes shall have occurred and be continuing on the date of such deposit, or shall have occurred and be continuing at any time during the period ending on the 91st day after the date of such deposit or, if longer, ending on the day following the expiration of the longest preference period under any Bankruptcy Law applicable to the Company in respect of such deposit (it being understood 86 -78- that this condition shall not be deemed satisfied until the expiration of such period); (3) such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest for purposes of the TIA with respect to any securities of the Company; (4) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute default under any other agreement or instrument to which the Company is a party or by which it is bound; (5) the Company shall have delivered to the Trustee an Opinion of Counsel stating that, as a result of such Legal Defeasance or Covenant Defeasance, neither the trust nor the Trustee will be required to register as an investment company under the Investment Company Act of 1940, as amended; (6) in the case of an election under Section 9.02 above, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling to the effect that or (ii) there has been a change in any applicable Federal income tax law with the effect that, and such opinion shall confirm that, the Holders of the outstanding Notes or persons in their positions will not recognize income, gain or loss for Federal income tax purposes solely as a result of such Legal Defeasance and will be subject to Federal income tax on the same amounts, in the same manner, including as a result of prepayment, and at the same times as would have been the case if such Legal Defeasance had not occurred; (7) in the case of an election under Section 9.03 hereof, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the outstanding Notes will not recognize income, gain or loss for Federal income tax purposes as a result of such Covenant Defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred; (8) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to either the Legal Defeasance under Section 9.02 87 -79- above or the Covenant Defeasance under Section 9.03 hereof (as the case may be) have been complied with; (9) the Company shall have delivered to the Trustee an Officers' Certificate stating that the deposit under clause (1) was not made by the Company with the intent of defeating, hindering, delaying or defrauding any creditors of the Company or others; and (10) the Company shall have paid or duly provided for payment under terms mutually satisfactory to the Company and the Trustee all amounts then due to the Trustee pursuant to Section 7.07 hereof. Section 9.05. Deposited Money and U.S. Government Obligations To Be Held in Trust; Other Miscellaneous Provisions. All money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee pursuant to Section 9.04 hereof in respect of the outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent as the Trustee may determine, to the Holders of such Notes, of all sums due and to become due thereon in respect of principal, premium, if any, and accrued interest, but such money need not be segregated from other funds except to the extent required by law. The Company and the Guarantors shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 9.04 hereof or the principal, premium, if any, and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes. Anything in this Article 9 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or U.S. Government Obligations held by it as provided in Section 9.04 hereof which, in the opinion of a nationally-recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, is or are in excess of the amount thereof which would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance. 88 -80- Section 9.06. Reinstatement. If the Trustee or Paying Agent is unable to apply any money or U.S. Government Obligations in accordance with Section 9.01, 9.02 or 9.03 hereof by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company's and each Guarantor's obligations under this Indenture, the Notes and the Guarantees shall be revived and reinstated as though no deposit had occurred pursuant to this Article 9 until such time as the Trustee or Paying Agent is permitted to apply all such money or U.S. Government Obligations in accordance with Section 9.01 hereof; provided, however, that if the Company or the Guarantors have made any payment of principal of, premium, if any, or accrued interest on any Notes because of the reinstatement of their obligations, the Company or the Guarantors, as the case may be, shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or U.S. Government Obligations held by the Trustee or Paying Agent. Section 9.07. Moneys Held by Paying Agent. In connection with the satisfaction and discharge of this Indenture, all moneys then held by any Paying Agent under the provisions of this Indenture shall, upon demand of the Company, be paid to the Trustee, or if sufficient moneys have been deposited pursuant to Section 9.01 hereof, to the Company (or, if such moneys had been deposited by the Guarantors, to such Guarantors), and thereupon such Paying Agent shall be released from all further liability with respect to such moneys. Section 9.08. Moneys Held by Trustee. Any moneys deposited with the Trustee or any Paying Agent or then held by the Company or the Guarantors in trust for the payment of the principal of, or premium, if any, or interest on any Note that are not applied but remain unclaimed by the Holder of such Note for two years after the date upon which the principal of, or premium, if any, or interest on such Note shall have respectively become due and payable shall be repaid to the Company (or, if appropriate, the Guarantors) upon Company Request, or if such moneys are then held by the Company or the Guarantors in trust, such moneys shall be released from such trust; and the Holder of such Note entitled to receive such payment shall thereafter, as an unsecured general creditor, look only to the Company and the Guarantors for the payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money shall thereupon cease; provided, however, that the Trustee or any such Paying Agent, 89 -81- before being required to make any such repayment, may, at the expense of the Company and the Guarantors, either mail to each Noteholder affected, at the address shown in the register of the Notes maintained by the Registrar pursuant to Section 2.03 hereof, or cause to be published once a week for two successive weeks, in a newspaper published in the English language, customarily published each Business Day and of general circulation in the City of New York, New York, a notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such mailing or publication, any unclaimed balance of such moneys then remaining will be repaid to the Company. After payment to the Company or the Guarantors or the release of any money held in trust by the Company or any Guarantors, as the case may be, Noteholders entitled to the money must look only to the Company and the Guarantors for payment as general creditors unless applicable abandoned property law designates another person. ARTICLE 10 GUARANTEE OF NOTES Section 10.01. Guarantee. Subject to the provisions of this Article 10, each Guarantor hereby jointly and severally unconditionally guarantees to each Holder and to the Trustee, on behalf of the Holders, (i) the due and punctual payment of the principal of, and premium, if any, and interest on each Note, when and as the same shall become due and payable, whether at maturity, by acceleration or otherwise, the due and punctual payment of interest on the overdue principal of, and premium, if any, and interest on the Notes, to the extent lawful, and the due and punctual performance of all other Obligations of the Company to the Holders or the Trustee all in accordance with the terms of such Note and this Indenture, and (ii) in the case of any extension of time of payment or renewal of any Notes or any of such other Obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, at stated maturity, by acceleration or otherwise. Each Guarantor hereby agrees that its obligations hereunder shall be absolute and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of any such Note or this Indenture, any failure to enforce the provisions of any such Note or this Indenture, any waiver, modification or indulgence granted to the Company with respect thereto by the Holder of such Note or the Trustee, or any other circumstances which may otherwise constitute a legal or equitable discharge of a surety or such Guarantor. 90 -82- Each Guarantor hereby waives diligence, presentment, filing of claims with a court in the event of merger or bankruptcy of the Company, any right to require a proceeding first against the Company, protest or notice with respect to any such Note or the Indebtedness evidenced thereby and all demands whatsoever, and covenants that this Guarantee will not be discharged as to any such Note except by payment in full of the principal thereof, premium if any, and interest thereon and as provided in Section 9.01 hereof. Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (i) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Obligations as provided in Article 6 hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by each Guarantor for the purpose of this Guarantee. In addition, without limiting the foregoing provisions, upon the effectiveness of an acceleration under Article 6 hereof, the Trustee shall promptly make a demand for payment on the Notes under the Guarantee provided for in this Article 10 and not discharged. The Guarantee set forth in this Section 10.01 shall not be valid or become obligatory for any purpose with respect to a Note until the certificate of authentication on such Note shall have been signed by or on behalf of the Trustee. Section 10.02. Execution and Delivery of Guarantees. To evidence the Guarantee set forth in this Article 10, each Guarantor hereby agrees that a notation of such Guarantee shall be placed on each Note authenticated and made available for delivery by the Trustee and that this Guarantee shall be executed on behalf of each Guarantor by the manual or facsimile signature of an Officer of each Guarantor. Each Guarantor hereby agrees that the Guarantee set forth in Section 10.01 shall remain in full force and effect notwithstanding any failure to endorse on each Note a notation of such Guarantee. If an Officer of a Guarantor whose signature is on the Guarantee no longer holds that office at the time the Trustee authenticates the Note on which the Guarantee is endorsed, the Guarantee shall be valid nevertheless. 91 -83- The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Guarantee set forth in this Indenture on behalf of each Guarantor. Section 10.03. Limitation of Guarantee. The obligations of each Guarantor are limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Guarantor (including, without limitation, any guarantees of Senior Indebtedness) and after giving effect to any collections from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under its Guarantee or pursuant to its contribution obligations under this Indenture, result in the obligations of such Guarantor under the Guarantee not constituting a fraudulent conveyance or fraudulent transfer under federal or state law. Each Guarantor that makes a payment or distribution under a Guarantee shall be entitled to a contribution from each other Guarantor in a pro rata amount based on the Adjusted Net Assets of each Subsidiary Guarantor. Section 10.04. Additional Guarantors. The Company covenants and agrees that it will cause any Person which becomes obligated to guarantee the Notes, pursuant to the terms of Section 4.18 hereof, to execute a guarantee satisfactory in form and substance to the Trustee pursuant to which such Restricted Subsidiary shall guarantee the obligations of the Company under the Notes and this Indenture in accordance with this Article 10 with the same effect and to the same extent as if such Person had been named herein as a Guarantor. Section 10.05. Release of Guarantor. A Guarantor shall be released from all of its obligations under its Guarantee if: (i) the Guarantor has sold all or substantially all of its assets or the Company and its Restricted Subsidiaries have sold all of the Capital Stock of the Guarantor owned by them, in each case in a transaction in compliance with Sections 4.15 and 5.01 hereof; or (ii) the Guarantor merges with or into or consolidates with, or transfers all or substantially all of its assets to, the Company or another Guarantor in a transaction in compliance with Section 5.01 hereof; 92 -84- and in each such case, the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to such transactions have been complied with. Section 10.06. Guarantee Obligations Subordinated to Guarantor Senior Indebtedness. Each Guarantor covenants and agrees, and each Holder of Notes, by its acceptance thereof, likewise covenants and agrees, that to the extent and in the manner hereinafter set forth in this Article 10, the Indebtedness represented by the Guarantee and the payment of the principal of, premium, if any, and interest on the Notes pursuant to the Guarantee by such Guarantor are hereby expressly made subordinate and subject in right of payment as provided in this Article 10 to the prior payment in full in cash or Cash Equivalents or, as acceptable to the holders of Guarantor Senior Indebtedness of such Guarantor, in any other manner, of all Guarantor Senior Indebtedness of such Guarantor. This Section 10.06 and the following Sections 10.07 through 10.11 shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of or continue to hold Guarantor Senior Indebtedness of any Guarantor; and such provisions are made for the benefit of the holders of Guarantor Senior Indebtedness of each Guarantor; and such holders are made obligees hereunder and they or each of them may enforce such provisions. Section 10.07. Payment Over of Proceeds upon Dissolution, etc., of a Guarantor. Section 10.07. Payment Over of Proceeds Upon Dissolution, etc., of a Guarantor. In the event of (a) any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relative to any Guarantor or to its creditors, as such, or to its assets, whether voluntary or involuntary, or (b) any liquidation, dissolution or other winding-up of any Guarantor, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy or (c) any general assignment for the benefit of creditors or any other marshaling of assets or liabilities of any Guarantor, then and in any such event: (1) the holders of all Guarantor Senior Indebtedness of such Guarantor shall be entitled to receive payment in full in cash or Cash Equivalents or, as acceptable to the holders of such Guarantor Senior Indebtedness, in any other manner, of all amounts due on or in respect of all such Guarantor Senior Indebtedness, or provision shall be 93 -85- made for such payment, before the Holders of the Notes are entitled to receive, pursuant to the Guarantee of such Guarantor, any payment or distribution of any kind or character by such Guarantor on account of any of its Obligations on its Guarantee; and (2) any payment or distribution of assets of such Guarantor of any kind or character, whether in cash, property or securities, by set-off or otherwise, to which the Holders or the Trustee would be entitled but for the subordination provisions of this Article 10 shall be paid by the liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Guarantor Senior Indebtedness of such Guarantor or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Guarantor Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of such Guarantor Senior Indebtedness held or represented by each, to the extent necessary to make payment in full in cash, Cash Equivalents or, as acceptable to the Holders of such Guarantor Senior Indebtedness of such Guarantor, in any other manner, of all such Guarantor Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of such Guarantor Senior Indebtedness; and (3) in the event that, notwithstanding the foregoing provisions of this Section 10.07, the Trustee or the Holder of any Note shall have received any payment or distribution of assets of such Guarantor of any kind or character, whether in cash, property or securities, including, without limitation, by way of set-off or otherwise, in respect of any of its Obligations on its Guarantee before all Guarantor Senior Indebtedness of such Guarantor is paid in full or payment thereof provided for, then and in such event such payment or distribution shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of such Guarantor for application to the payment of all such Guarantor Senior Indebtedness remaining unpaid, to the extent necessary to pay all of such Guarantor Senior Indebtedness in full in cash, Cash Equivalents or, as acceptable to the holders of such Guarantor Senior Indebtedness, any other manner, after giving effect to any concurrent payment or distribution to or for the holders of such Guarantor Senior Indebtedness. 94 -86- The consolidation of a Guarantor with, or the merger of a Guarantor with or into, another Person or the liquidation or dissolution of a Guarantor following the conveyance, transfer or lease of its properties and assets substantially as an entirety to another Person upon the terms and conditions set forth in Article 5 hereof shall not be deemed a dissolution, winding-up, liquidation, reorganization, assignment for the benefit of creditors or marshaling of assets and liabilities of such Guarantor for the purposes of this Article 10 if the Person formed by such consolidation or the surviving entity of such merger or the Person which acquires by conveyance, transfer or lease such properties and assets substantially as an entirety, as the case may be, shall, as a part of such consolidation, merger, conveyance, transfer or lease, comply with the conditions set forth in such Article 5 hereof. Section 10.08. Suspension of Guarantee Obligations When Guarantor Senior Indebtedness in Default. (a) Unless Section 10.07 hereof shall be applicable, after the occurrence of a Payment Default with respect to any Designated Senior Indebtedness which constitutes Guarantor Senior Indebtedness, no payment or distribution of any assets or securities of a Guarantor (or any Restricted Subsidiary or Subsidiary of such Guarantor) of any kind or character (including, without limitation, cash, property and any payment or distribution which may be payable or deliverable by reason of the payment of any other Indebtedness of such Guarantor being subordinated to its Obligations on its Guarantee) may be made by or on behalf of such Guarantor (or any Restricted Subsidiary or Subsidiary of such Guarantor), including, without limitation, by way of set-off or otherwise, for or on account of its Obligations on its Guarantee, and neither the Trustee nor any holder or owner of any Notes shall take or receive from any Guarantor (or any Restricted Subsidiary or Subsidiary of such Guarantor), directly or indirectly in any manner, payment in respect of all or any portion of its Obligations on its Guarantee following the delivery by the representative of the holders of , for so long as there shall exist any Designated Senior Indebtedness under or in respect of the Amended Credit Agreement, the holders of Designated Senior Indebtedness under or in respect of the Amended Credit Agreement or, thereafter, the holders of Designated Senior Indebtedness which constitutes Guarantor Senior Indebtedness (in either such case, the "Guarantor Representative") to the Trustee of written notice of (i) the occurrence of a Payment Default on Designated Senior Indebtedness or (ii) the occurrence of a Non-Payment Event of Default on such Designated Senior Indebtedness and the acceleration of the maturity of Designated Senior Indebtedness in accordance with its 95 -87- terms, and in any such event, such prohibition shall continue until such Payment Default is cured, waived in writing or ceases to exist or such acceleration has been rescinded or otherwise cured. At such time as the prohibition set forth in the preceding sentence shall no longer be in effect, subject to the provisions of the following paragraph (b), such Guarantor shall resume making any and all required payments in respect of its Obligations under its Guarantee. (b) Unless Section 10.07 hereof shall be applicable, upon the occurrence of a Non-Payment Event of Default on Designated Senior Indebtedness guaranteed by a Guarantor (which guarantee constitutes Guarantor Senior Indebtedness of such Guarantor), no payment or distribution of any assets of such Guarantor of any kind or character (including, without limitation, cash, property and any payment or distribution which may be payable or deliverable by reason of the payment of any other Indebtedness of such Guarantor being subordinated to its Obligations on its Guarantee) shall be made by such Guarantor, including, without limitation, by way of set-off or otherwise, on account of any of its Obligations on its Guarantee, and neither the Trustee nor any holder or owner of any Notes shall take or receive from any Guarantor (or any Restricted Subsidiary or Subsidiary of such Guarantor), directly or indirectly in any manner, payment in respect of all or any portion of its Obligations on its Guarantee for a period (the "Guarantee Payment Blockage Period") commencing on the date of receipt by the Trustee of written notice from the Guarantor Representative of such Non-Payment Event of Default, unless and until (subject to any blockage of payments that may then be in effect under the preceding paragraph (a)) the earliest to occur of the following events: (x) more than 179 days shall have elapsed since the date of receipt of such written notice by the Trustee, (y) such Non-Payment Event of Default shall have been cured or waived in writing or shall have ceased to exist or such Designated Senior Indebtedness shall have been discharged or paid in full in cash or Cash Equivalents or (z) such Guarantee Payment Blockage Period shall have been terminated by written notice to such Guarantor or the Trustee from the Guarantor Representative initiating such Guarantee Payment Blockage Period, or the holders of at least a majority in principal amount of such issue of Designated Senior Indebtedness, after which, in the case of clause (x), (y) or (z), such Guarantor shall resume making any and all required payments in respect of its Obligations on its Guarantee. Notwithstanding any other provisions of this Indenture, no Non-Payment Event of Default with respect to Designated Senior Indebtedness which existed or was continuing on the date of the commencement of any Guarantee Payment Blockage Period initiated by the Guarantor Representative shall be, or be made, the basis for the commencement of a second Guarantee Payment 96 -88- Blockage Period initiated by the Guarantor Representative unless such event of default shall have been cured or waived for a period of not less than 90 consecutive days. In no event shall a Guarantee Payment Blockage Period extend beyond 179 days from the date of the receipt by the Trustee of the notice referred to in this Section 10.08(b) or, in the event of a Non-Payment Event of Default which formed the basis for a Payment Blockage Period under Section 11.03(b) hereof, 179 days from the date of the receipt by the Trustee of the notice referred to in Section 11.03(b) (the "Initial Guarantee Blockage Period"). Any number of additional Guarantee Payment Blockage Periods may be commenced during the Initial Guarantee Blockage Period; provided, however, that no such additional Guarantee Payment Blockage Period shall extend beyond the Initial Guarantee Blockage Period. After the expiration of the Initial Guarantee Blockage Period, no Guarantee Payment Blockage Period may be commenced under this Section 10.08(b) and no Payment Blockage Period may be commenced under Section 11.03(b) hereof until at least 180 consecutive days have elapsed from the last day of the Initial Guarantee Blockage Period. (c) In the event that, notwithstanding the foregoing, the Trustee or the Holder of any Note shall have received any payment from a Guarantor prohibited by the foregoing provisions of this Section 10.08, then and in such event such payment shall be paid over and delivered forthwith to the Guarantor Representative initiating the Guarantee Payment Blockage Period, in trust for distribution to the holders of Guarantor Senior Indebtedness or, if no amounts are then due in respect of Guarantor Senior Indebtedness, promptly returned to the Guarantor, or as a court of competent jurisdiction shall direct. Section 10.09. Subrogation to Rights of Holders of Guarantor Senior Indebtedness. Upon the payment in full of all amounts payable under or in respect of all Guarantor Senior Indebtedness of a Guarantor, the Holders shall be subrogated to the rights of the holders of such Guarantor Senior Indebtedness to receive payments and distributions of cash, property and securities of such Guarantor made on such Guarantor Senior Indebtedness until all amounts due to be paid under the Guarantee shall be paid in full. For the purposes of such subrogation, no payments or distributions to holders of Guarantor Senior Indebtedness of any cash, property or securities to which Holders of the Notes or the Trustee would be entitled except for the provisions of this Article 10, and no payments over pursuant to the provisions of this Article 10 to holders of Guarantor Senior Indebtedness by Holders of the Notes or the Trustee, shall, as among 97 -89- each Guarantor, its creditors other than holders of Guarantor Senior Indebtedness and the Holders of the Notes, be deemed to be a payment or distribution by such Guarantor to or on account of such Guarantor Senior Indebtedness. If any payment or distribution to which the Holders would otherwise have been entitled but for the provisions of this Article 10 shall have been applied, pursuant to the provisions of this Article 10, to the payment of all amounts payable under Guarantor Senior Indebtedness, then and in such case, the Holders shall be entitled to receive from the holders of such Guarantor Senior Indebtedness at the time outstanding any payments or distributions received by such holders of Guarantor Senior Indebtedness in excess of the amount sufficient to pay all amounts payable under or in respect of such Guarantor Senior Indebtedness in full in cash or Cash Equivalents. Section 10.10. Guarantee Subordination Provisions Solely To Define Relative Rights. The subordination provisions of this Article 10 are and are intended solely for the purpose of defining the relative rights of the Holders of the Notes on the one hand and the holders of Guarantor Senior Indebtedness on the other hand. Nothing contained in this Article 10 or elsewhere in this Indenture or in the Notes is intended to or shall (a) impair, as among each Guarantor, its creditors other than holders of its Guarantor Senior Indebtedness and the Holders of the Notes, the obligation of such Guarantor, which is absolute and unconditional, to make payments to the Holders in respect of its Obligations on its Guarantee in accordance with its terms; or (b) affect the relative rights against such Guarantor of the Holders of the Notes and creditors of such Guarantor other than the holders of the Guarantor Senior Indebtedness; or (c) prevent the Trustee or the Holder of any Note from exercising all remedies otherwise permitted by applicable law upon a Default or an Event of Default under this Indenture, subject to the rights, if any, under this Article 10 of the holders of Guarantor Senior Indebtedness (1) in any case, proceeding, dissolution, liquidation or other winding-up, assignment for the benefit of creditors or other marshaling of assets and liabilities of the Company referred to in Section 10.07 hereof, to receive, pursuant to and in accordance with such Section, cash, property and securities otherwise payable or deliverable to the Trustee or such Holder, or (2) under the conditions specified in Section 10.08 hereof, to prevent any payment prohibited by such Section or enforce their rights pursuant to Section 10.08(c) hereof. The failure by any Guarantor to make a payment in respect of its obligations on its Guarantee by reason of any pro- 98 -90- vision of this Article 10 shall not be construed as preventing the occurrence of a Default or an Event of Default hereunder. Section 10.11. Application of Certain Article 11 Provisions. The provisions of Sections 11.04, 11.07, 11.08, 11.09, 11.10, 11.12 and 11.13 hereof shall apply, mutatis mutandis, to each Guarantor and their respective holders of Guarantor Senior Indebtedness and the rights, duties and obligations set forth therein shall govern the rights, duties and obligations of each Guarantor, the holders of Guarantor Senior Indebtedness, the Holders and the Trustee with respect to the Guarantee and all references therein to Article 11 hereof shall mean this Article 10. ARTICLE 11 SUBORDINATION OF NOTES Section 11.01. Notes Subordinate to Senior Indebtedness. The Company covenants and agrees, and each Holder of Notes, by its acceptance thereof, likewise covenants and agrees, that, to the extent and in the manner hereinafter set forth in this Article 11, the Indebtedness represented by the Notes and the payment of the principal of, premium, if any, and interest on the Notes are hereby expressly made subordinate and subject in right of payment as provided in this Article 11 to the prior payment in full in cash or Cash Equivalents or, as acceptable to the holders of Senior Indebtedness, in any other manner, of all Senior Indebtedness. This Article 11 shall constitute a continuing offer to all Persons who, in reliance upon such provisions, become holders of or continue to hold Senior Indebtedness; and such provisions are made for the benefit of the holders of Senior Indebtedness; and such holders are made obligees hereunder and they or each of them may enforce such provisions. Section 11.02. Payment Over of Proceeds upon Dissolution, etc. In the event of (a) any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relative to the Company or to its creditors, as such, or to its assets, whether voluntary or involuntary or (b) any liquida- 99 -91- tion, dissolution or other winding-up of the Company, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy, or (c) any general assignment for the benefit of creditors or any other marshaling of assets or liabilities of the Company, then and in any such event: (1) the holders of Senior Indebtedness shall be entitled to receive payment in full in cash or Cash Equivalents or, as acceptable to the holders of Senior Indebtedness, in any other manner, of all amounts due on or in respect of all Senior Indebtedness, or provision shall be made for such payment, before the Holders of the Notes are entitled to receive any payment or distribution of any kind or character on account of principal of, premium, if any, or interest on the Notes; and (2) any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, by set-off or otherwise, to which the Holders or the Trustee would be entitled but for the provisions of this Article 11 shall be paid by the liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full in cash, Cash Equivalents or, as acceptable to the holders of Senior Indebtedness, in any other manner, of all Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment or distribution, or provision therefor, to the holders of such Senior Indebtedness; and (3) in the event that, notwithstanding the foregoing provisions of this Section 11.02, the Trustee or the Holder of any Note shall have received any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, including, without limitation, by way of set-off or otherwise, in respect of principal of, premium, if any, and interest on the Notes before all Senior Indebtedness is paid in full or payment thereof provided for, then and in such event such payment or distribution shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the 100 -92- Company for application to the payment of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior Indebtedness in full in cash, Cash Equivalents or, as acceptable to the holders of Senior Indebtedness, any other manner, after giving effect to any concurrent payment or distribution, or provision therefor, to or for the holders of Senior Indebtedness. The consolidation of the Company with, or the merger of the Company with or into, another Person or the liquidation or dissolution of the Company following the conveyance, transfer or lease of its properties and assets substantially as an entirety to another Person upon the terms and conditions set forth in Article 5 hereof shall not be deemed a dissolution, winding-up, liquidation, reorganization, assignment for the benefit of creditors or marshaling of assets and liabilities of the Company for the purposes of this Article 11 if the Person formed by such consolidation or the surviving entity of such merger or the Person which acquires by conveyance, transfer or lease such properties and assets substantially as an entirety, as the case may be, shall, as a part of such consolidation, merger, conveyance, transfer or lease, comply with the conditions set forth in such Article 5 hereof. Section 11.03. Suspension of Payment When Senior Indebtedness in Default. (a) Unless Section 11.02 hereof shall be applicable, after the occurrence of a Payment Default no payment or distribution of any assets or securities of the Company or any Restricted Subsidiary of any kind or character (including, without limitation, cash, property and any payment or distribution which may be payable or deliverable by reason of the payment of any other Indebtedness of the Company being subordinated to the payment of the Notes by the Company) may be made by or on behalf of the Company or any Restricted Subsidiary, including, without limitation, by way of set-off or otherwise, for or on account of principal of, premium, if any, or interest on the Notes, or for or on account of the purchase, redemption or other acquisition of the Notes, and neither the Trustee nor any holder or owner of any Notes shall take or receive from the Company or any Restricted Subsidiary, directly or indirectly in any manner, payment in respect of all or any portion of Notes following the delivery by the representative of , for so long as there shall exist any Designated Senior Indebtedness under or in respect of the Amended Credit Agreement, the holders of Designated Senior Indebtedness under or in respect of the Amended Credit Agreement or, thereafter, the holders of Designated Senior Indebtedness (in either such case, the "Representative") to the Trustee of written notice of (i) the occurrence 101 -93- of a Payment Default or Designated Senior Indebtedness or (ii) the occurrence of a Non-Payment Event of Default on Designated Senior Indebtedness and the acceleration of the maturity of Designated Senior Indebtedness in accordance with its terms, and in any such event, such prohibition shall continue until such Payment Default is cured, waived in writing or ceases to exist or such acceleration has been rescinded or otherwise cured. At such time as the prohibition set forth in the preceding sentence shall no longer be in effect, subject to the provisions of the following paragraph (b), the Company shall resume making any and all required payments in respect of the Notes, including any missed payments. (b) Unless Section 11.02 hereof shall be applicable, upon the occurrence of a Non-Payment Event of Default on Designated Senior Indebtedness, no payment or distribution of any assets or securities of the Company of any kind or character (including, without limitation, cash, property and any payment or distribution which may be payable or deliverable by reason of the payment of any other Indebtedness of the Company being subordinated to the payment of the Notes by the Company) shall be made by or on behalf of the Company, including, without limitation, by way of set-off or otherwise, on account of any principal of, premium, if any, or interest on the Notes or on account of the purchase, redemption, defeasance or other acquisition of Notes, and neither the Trustee nor any holder or owner of any Notes shall take or receive from the Company, directly or indirectly in any manner, payment in respect of all or any portion of the Notes, for a period ("Payment Blockage Period") commencing on the date of receipt by the Trustee of written notice from the Representative of such Non-Payment Event of Default unless and until (subject to any blockage of payments that may then be in effect under the preceding paragraph (a)) the earliest to occur of the following events: (x) more than 179 days shall have elapsed since the date of receipt of such written notice by the Trustee, (y) such Non-Payment Event of Default shall have been cured or waived in writing or shall have ceased to exist or such Designated Senior Indebtedness shall have been discharged or paid in full in cash or Cash Equivalents or (z) such Payment Blockage Period shall have been terminated by written notice to the Company or the Trustee from the Representative initiating such Payment Blockage Period, or the holders of at least a majority in principal amount of such issue of Designated Senior Indebtedness, after which, in the case of clause (x), (y) or (z), the Company shall resume making any and all required payments in respect of the Notes, including any missed payments. Notwithstanding any other provisions of this Indenture, no Non-Payment Event of Default with respect to Designated Senior Indebtedness which existed or was continuing on the date of the commencement of any 102 -94- Payment Blockage Period initiated by the Representative shall be, or be made, the basis for the commencement of a second Payment Blockage Period initiated by the Representative unless such event of default shall have been cured or waived for a period of not less than 90 consecutive days. In no event shall a Payment Blockage Period extend beyond 179 days from the date of the receipt by the Trustee of the notice referred to in this Section 11.03(b) (the "Initial Blockage Period"). Any number of additional Payment Blockage Periods may be commenced during the Initial Blockage Period; provided, however, that no such additional Payment Blockage Period shall extend beyond the Initial Blockage Period. After the expiration of the Initial Blockage Period, no Payment Blockage Period may be commenced under this Section 11.03(b) and no Guarantee Payment Blockage Period may be commenced under Section 10.08(b) hereof until at least 180 consecutive days have elapsed from the last day of the Initial Blockage Period. (c) In the event that, notwithstanding the foregoing, the Trustee or the Holder of any Note shall have received any payment prohibited by the foregoing provisions of this Section 11.03, then and in such event such payment shall be paid over and delivered forthwith to the Representative initiating the Payment Blockage Period, in trust for distribution to the holders of Senior Indebtedness or, if no amounts are then due in respect of Senior Indebtedness, promptly returned to the Company, or otherwise as a court of competent jurisdiction shall direct. Section 11.04. Trustee's Relation to Senior Indebtedness. With respect to the holders of Senior Indebtedness, the Trustee undertakes to perform or to observe only such of its covenants and obligations as are specifically set forth in this Article 11, and no implied covenants or obligations with respect to the holders of Senior Indebtedness shall be read into this Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness and the Trustee shall not be liable to any holder of Senior Indebtedness if it shall mistakenly pay over or deliver to Holders, the Company or any other Person moneys or assets to which any holder of Senior Indebtedness shall be entitled by virtue of this Article 11 or otherwise. Section 11.05. Subrogation to Rights of Holders of Senior Indebtedness. Upon the payment in full of all Senior Indebtedness, the Holders of the Notes shall be subrogated to the rights of 103 -95- the holders of such Senior Indebtedness to receive payments and distributions of cash, property and securities applicable to the Senior Indebtedness until the principal of, premium, if any and interest on the Notes shall be paid in full. For purposes of such subrogation, no payments or distributions to the holders of Senior Indebtedness of any cash, property or securities to which the Holders of the Notes or the Trustee would be entitled except for the provisions of this Article 11, and no payments over pursuant to the provisions of this Article 11 to the holders of Senior Indebtedness by Holders of the Notes or the Trustee, shall, as among the Company, its creditors other than holders of Senior Indebtedness and the Holders of the Notes, be deemed to be a payment or distribution by the Company to or on account of the Senior Indebtedness. If any payment or distribution to which the Holders would otherwise have been entitled but for the provisions of this Article 11 shall have been applied, pursuant to the provisions of this Article 11, to the payment of all amounts payable under the Senior Indebtedness of the Company, then and in such case the Holders shall be entitled to receive from the holders of such Senior Indebtedness at the time outstanding any payments or distributions received by such holders of such Senior Indebtedness in excess of the amount sufficient to pay all amounts payable under or in respect of such Senior Indebtedness in full in cash or Cash Equivalents. Section 11.06. Provisions Solely To Define Relative Rights. The provisions of this Article 11 are and are intended solely for the purpose of defining the relative rights of the Holders of the Notes on the one hand and the holders of Senior Indebtedness on the other hand. Nothing contained in this Article or elsewhere in this Indenture or in the Notes is intended to or shall (a) impair, as among the Company, its creditors other than holders of Senior Indebtedness and the Holders of the Notes, the obligation of the Company, which is absolute and unconditional, to pay to the Holders of the Notes the principal of, premium, if any, and interest on the Notes as and when the same shall become due and payable in accordance with their terms; or (b) affect the relative rights against the Company of the Holders of the Notes and creditors of the Company other than the holders of Senior Indebtedness; or (c) prevent the Trustee or the Holder of any Note from exercising all remedies otherwise permitted by applicable law upon a Default or an Event of Default under this Indenture, subject to the rights, if any, under this Article 11 of the holders of Senior Indebtedness (1) in any case, proceeding, dissolution, liquidation or other winding-up, assignment for the benefit of 104 -96- creditors or other marshaling of assets and liabilities of the Company referred to in Section 11.02 hereof, to receive, pursuant to and in accordance with such Section, cash, property and securities otherwise payable or deliverable to the Trustee or such Holder, or (2) under the conditions specified in Section 11.03, to prevent any payment prohibited by such Section or enforce their rights pursuant to Section 11.03(c) hereof. The failure to make a payment on account of principal of, premium, if any, or interest on the Notes by reason of any provision of this Article 11 shall not be construed as preventing the occurrence of a Default or an Event of Default hereunder. Section 11.07. Trustee To Effectuate Subordination. Each Holder of a Note by his acceptance thereof authorizes and directs the Trustee on his behalf to take, in the Trustee's sole discretion, such action as may be necessary or appropriate to effectuate the subordination provided in this Article and appoints the Trustee his attorney-in-fact for any and all such purposes, including, in the event of any dissolution, winding-up, liquidation or reorganization of the Company whether in bankruptcy, insolvency, receivership proceedings, or otherwise, the timely filing of a claim for the unpaid balance of the indebtedness of the Company owing to such Holder in the form required in such proceedings and the causing of such claim to be approved. If the Trustee does not file such a claim prior to 30 days before the expiration of the time to file such a claim, the holders of Senior Indebtedness, or any Representative, may file such a claim on behalf of Holders of the Notes. Section 11.08. No Waiver of Subordination Provisions. (a) No right of any present or future holder of any Senior Indebtedness to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any act or failure to act, in good faith, by any such holder, or by any non-compliance by the Company with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof any such holder may have or be otherwise charged with. (b) Without limiting the generality of subsection (a) of this Section 11.08, the holders of Senior Indebtedness may, at any time and from time to time, without the consent of or notice to the Trustee or the Holders of the Notes, without incurring responsibility to the Holders of the Notes and without impairing or releasing the subordination provided in this 105 -97- Article 11 or the obligations hereunder of the Holders of the Notes to the holders of Senior Indebtedness, do any one or more of the following: (1) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, Senior Indebtedness or any instrument evidencing the same or any agreement under which Senior Indebtedness is outstanding; (2) sell, exchange, release or otherwise deal with any property pledged, mortgaged or otherwise securing Senior Indebtedness; (3) release any Person liable in any manner for the collection or payment of Senior Indebtedness; and (4) exercise or refrain from exercising any rights against the Company and any other Person; provided, however, that in no event shall any such actions limit the right of the Trustee or the Holders of the Notes to take any action to accelerate the maturity of the Notes pursuant to Article 6 hereof or to pursue any rights or remedies hereunder or under applicable laws if the taking of such action does not otherwise violate the terms of this Indenture. Section 11.09. Notice to Trustee. (a) The Company shall give prompt written notice to the Trustee of any fact known to the Company which would prohibit the making of any payment to or by the Trustee at its Corporate Trust Office in respect of the Notes. Notwithstanding the provisions of this Article 11 or any other provision of this Indenture, the Trustee shall not be charged with knowledge of the existence of any facts which would prohibit the making of any payment to or by the Trustee in respect of the Notes, unless and until the Trustee shall have received written notice thereof from the Company or a holder of Senior Indebtedness or from any trustee, fiduciary or agent therefor; and, prior to the receipt of any such written notice, the Trustee, subject to the provisions of this Section 11.09, shall be entitled in all respects to assume that no such facts exist. (b) Subject to the provisions of Section 7.01 hereof, the Trustee shall be entitled to rely on the delivery to it of a written notice to the Trustee and the Company by a Person representing itself to be a holder of Senior Indebtedness (or a trustee, fiduciary or agent therefor) to establish that such notice has been given by a holder of Senior Indebtedness (or a trustee, fiduciary or agent therefor); provided, however, that failure to give such notice to the Company shall not affect in any way the right of the Trustee to rely on such notice. In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Article 11, the Trustee may request such Person to furnish evidence to the rea- 106 -98- sonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under this Article 11, and if such evidence is not furnished, the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment. Section 11.10. Reliance on Judicial Order or Certificate of Liquidating Agent. Upon any payment or distribution of assets of the Company referred to in this Article 11, the Trustee, subject to the provisions of Section 7.01 hereof, and the Holders shall be entitled to rely upon any order or decree entered by any court of competent jurisdiction in which such insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution, winding-up or similar case or proceeding is pending, or a certificate of the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit of creditors, agent or other Person making such payment or distribution, delivered to the Trustee or to the Holders, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of Senior Indebtedness and other Indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article 11. Section 11.11. Rights of Trustee as a Holder of Senior Indebtedness; Preservation of Trustee's Rights. The Trustee in its individual capacity shall be entitled to all the rights set forth in this Article 11 with respect to any Senior Indebtedness which may at any time be held by it, to the same extent as any other holder of Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of its rights as such holder. Nothing in this Article 11 shall apply to claims of, or payments to, the Trustee under or pursuant to Section 7.07 hereof. Section 11.12. Article Applicable to Paying Agents. In case at any time any Paying Agent other than the Trustee shall have been appointed by the Company and be then acting hereunder, the term "Trustee" as used in this Article 11 shall in such case (unless the context otherwise requires) be construed as extending to and including such Paying Agent within its meaning as fully for all intents and purposes as if 107 -99- such Paying Agent were named in this Article 11 in addition to or in place of the Trustee. Section 11.13. No Suspension of Remedies. Nothing contained in this Article 11 shall limit the right of the Trustee or the Holders of Notes to take any action to accelerate the maturity of the Notes pursuant to Article 6 or to pursue any rights or remedies hereunder or under applicable law, subject to the rights, if any, under this Article 11 of the holders, from time to time, of Senior Indebtedness. ARTICLE 12 MISCELLANEOUS Section 12.01. Trust Indenture Act Controls. If any provision of this Indenture limits, qualifies or conflicts with another provision which is required to be included in this Indenture by the TIA, the required provision shall control. Section 12.02. Notices. Any notice or communication shall be given in writing and delivered in person, sent by facsimile, delivered by commercial courier service or mailed by first-class mail, postage prepaid, addressed as follows: If to the Company or any Guarantor: Hayes Lemmerz International, Inc. 38481 Huron River Drive Romulus, Michigan 48174 Attention: Chief Financial Officer Copy to: Skadden, Arps, Slate, Meagher & Flom LLP One Rodney Square Wilmington, Delaware 19801 Attention: Robert B. Pincus, Esq. If to the Trustee: The Bank of New York 101 Barclay Street, Floor 21 West New York, New York 10286 108 -100- Attention: Van Brown Fax Number: (212) 815-5915 The Company, the Guarantors or the Trustee by written notice to the others may designate additional or different addresses for subsequent notices or communications. Any notice or communication to the Company, the Trustee, or the Guarantors shall be deemed to have been given or made as of the date so delivered if personally delivered; when receipt is acknowledged, if telecopied; and five (5) calendar days after mailing if sent by registered or certified mail, postage prepaid (except that a notice of change of address shall not be deemed to have been given until actually received by the addressee). Any notice or communication mailed to a Noteholder shall be mailed to him by first-class mail, postage prepaid, at his address shown on the register kept by the Registrar. Failure to mail a notice or communication to a Noteholder or any defect in it shall not affect its sufficiency with respect to other Noteholders. If a notice or communication to a Noteholder is mailed in the manner provided above, it shall be deemed duly given, whether or not the addressee receives it. In case by reason of the suspension of regular mail service, or by reason of any other cause, it shall be impossible to mail any notice as required by this Indenture, then such method of notification as shall be made with the approval of the Trustee shall constitute a sufficient mailing of such notice. Section 12.03. Communications by Holders with Other Holders. Noteholders may communicate pursuant to TIA Section 312(b) with other Noteholders with respect to their rights under this Indenture or the Notes. The Company, the Guarantors, the Trustee, the Registrar and anyone else shall have the protection of TIA Section 312(c). Section 12.04. Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Company or any Guarantor to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee: (1) an Officers' Certificate (which shall include the statements set forth in Section 12.05 below) stating 109 -101- that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been complied with; and (2) an Opinion of Counsel (which shall include the statements set forth in Section 12.05 below) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been complied with. Section 12.05. Statements Required in Certificate and Opinion. Each certificate and opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include: (1) a statement that the Person making such certificate or opinion has read such covenant or condition; (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (3) a statement that, in the opinion of such Person, it or he has made such examination or investigation as is necessary to enable it or him to express an informed opinion as to whether or not such covenant or condition has been complied with; and (4) a statement as to whether or not, in the opinion of such Person, such covenant or condition has been complied with. Section 12.06. When Treasury Notes Disregarded. In determining whether the Holders of the required aggregate principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Company, any Guarantor or any other obligor on the Notes or by any Affiliate of any of them shall be disregarded, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes which a Trust Officer of the Trustee actually knows are so owned shall be so disregarded. Notes so owned which have been pledged in good faith shall not be disregarded if the pledgee establishes to the satisfaction of the Trustee the pledgee's right so to act with respect to the Notes and that the pledgee 110 -102- is not the Company, a Guarantor or any other obligor upon the Notes or any Affiliate of any of them. Section 12.07. Rules by Trustee and Agents. The Trustee may make reasonable rules for action by or at meetings of Noteholders. The Registrar and Paying Agent may make reasonable rules for their functions. Section 12.08. Business Days; Legal Holidays. A "Business Day" is a day that is not a Legal Holiday. A "Legal Holiday" is a Saturday, a Sunday, a federally-recognized holiday or a day on which banking institutions are not required to be open in the State of New York. If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period. Section 12.09. Governing Law. THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE NOTES. Section 12.10. No Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret another indenture, loan, security or debt agreement of the Company or any Subsidiary thereof. No such indenture, loan, security or debt agreement may be used to interpret this Indenture. Section 12.11. No Recourse Against Others. A director, officer, employee, stockholder or incorporator, as such, of the Company shall not have any liability for any obligations of the Company under the Notes or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creations. Each Noteholder by accepting a Note waives and releases all such liability. Such waiver and release are part of the consideration for the issuance of the Notes. 111 -103- Section 12.12. Successors. All agreements of the Company and the Guarantors in this Indenture and the Notes shall bind their respective successors. All agreements of the Trustee, any additional trustee and any Paying Agents in this Indenture shall bind its successor. Section 12.13. Multiple Counterparts. The parties may sign multiple counterparts of this Indenture. Each signed counterpart shall be deemed an original, but all of them together represent one and the same agreement. Section 12.14. Table of Contents, Headings, etc. The table of contents, cross-reference sheet and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof. Section 12.15. Separability. Each provision of this Indenture shall be considered separable and if for any reason any provision which is not essential to the effectuation of the basic purpose of this Indenture or the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. 112 -104- IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed, and the Company's corporate seal to be hereunto affixed and attested, all as of the date and year first written above. HAYES LEMMERZ INTERNATIONAL, INC. By: ------------------------------------------ Name: Title: ATTEST: - ------------------------------- Name: Title: Guarantors: HAYES LEMMERZ INTERNATIONAL - CALIFORNIA, INC. HAYES LEMMERZ INTERNATIONAL - GEORGIA, INC. HAYES LEMMERZ INTERNATIONAL - INDIANA, INC. HAYES LEMMERZ INTERNATIONAL - MEXICO, INC. HAYES LEMMERZ INTERNATIONAL - MICHIGAN, INC. HAYES LEMMERZ INTERNATIONAL - OHIO, INC. HL OHIO SUB, INC. By: ------------------------------------------ Name: Title: ATTEST: - -------------------------- Name: Title: 113 -105- THE BANK OF NEW YORK as Trustee By: ------------------------------------------ Name: Title: 114 EXHIBIT A [FORM OF FACE OF NOTE] CUSIP HAYES LEMMERZ INTERNATIONAL, INC. No. [ ] $ 8-1/4% SENIOR SUBORDINATED NOTE DUE 2008 HAYES LEMMERZ INTERNATIONAL, INC., a Delaware corporation (the "Company", which term includes any successor corporation), for value received, promises to pay to or registered assigns the principal sum of $ dollars on December 15, 2008. Interest Payment Dates: June 15 and December 15, commencing June 15, 1999. Record Dates: June 1 and December 1. Reference is made to the further provisions of this Note contained herein, which will for all purposes have the same effect as if set forth at this place. A-1 115 IN WITNESS WHEREOF, the Company has caused this Note to be signed manually or by facsimile by its duly authorized officers. HAYES LEMMERZ INTERNATIONAL, INC. By: --------------------------------- Title: By: --------------------------------- Title: Certificate of Authentication This is one of the 8-1/4% Senior Subordinated Notes due 2008 referred to in the within-mentioned Indenture. Dated: The Bank of New York, as Trustee By: ----------------------------------- Authorized Signatory A-2 116 [FORM OF REVERSE OF NOTE] HAYES LEMMERZ INTERNATIONAL, INC. 8-1/4% SENIOR SUBORDINATED NOTE DUE 2008 1. Interest. Hayes Lemmerz International, Inc., a Delaware corporation (the "Company"), promises to pay, interest on the principal amount set forth on the face hereof at a rate of 8-1/4% per annum. Interest hereon will accrue from and including the most recent date to which interest has been paid or, if no interest has been paid, from and including December 14, 1998 to but excluding the date on which interest is paid. Interest shall be payable in arrears on each June 15 and December 15 commencing June 15, 1999. Interest will be computed on the basis of a 360-day year of twelve 30-day months. The Company shall pay interest on overdue principal and on overdue interest (to the full extent permitted by law) at a rate equal to the rate of interest otherwise payable on the Notes. 2. Method of Payment. The Company will pay interest hereon (except defaulted interest) to the Persons who are registered holders (the "Holders") at the close of business on June 1 or December 1 next preceding the interest payment date (whether or not a Business Day). Holders must surrender Notes to a Paying Agent to collect principal payments. The Company will pay principal and interest in money of the United States of America that at the time of payment is legal tender for payment of public and private debts. Interest may be paid by check mailed to the Holder entitled thereto at the address indicated on the register maintained by the Registrar for the Notes. 3. Paying Agent and Registrar. Initially, The Bank of New York (the "Trustee") will act as a Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to the Holders. Neither the Company nor any of its Affiliates may act as Paying Agent or Registrar. 4. Indenture. The Company issued the Notes under an Indenture dated as of December 14, 1998 (the "Indenture") among the Company, the Guarantors (as defined in the Indenture) and the Trustee. This is one of an issue of Notes of the Company issued, or to be issued, under the Indenture. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb), as amended from A-3 117 time to time. The Notes are subject to all such terms, and Holders are referred to the Indenture and such Act for a statement of them. Capitalized and certain other terms used herein and not otherwise defined have the meanings set forth in the Indenture. The Notes are obligations of the Company limited in aggregate principal amount to $250 million. 5. Optional Redemption. The Notes will be redeemable at the option of the Company, in whole or in part, at any time on or after December 15, 2003 upon not less than 30 nor more than 60 days' notice, at the redemption prices (expressed as percentages of principal amount), set forth below, together, in each case, with accrued and unpaid interest to the Redemption Date, if redeemed during the twelve month period beginning on December 15 of each year listed below:
Year Redemption Price ---- ---------------- 2003................................................. 104.125% 2004................................................. 102.750% 2005................................................. 101.375% 2006 and thereafter.................................. 100.000%
Notwithstanding the foregoing, the Company may redeem in the aggregate up to 35% of the original principal amount of Notes at any time and from time to time on or prior to December 15, 2001 at a redemption price equal to 108.25% of the aggregate principal amount so redeemed, plus accrued and unpaid interest thereon to the Redemption Date with the Net Proceeds of one or more Equity Offerings; provided, that at least $162.5 million of the principal amount of Notes originally issued remains outstanding immediately after the occurrence of any such redemption and that any such redemption occurs within 60 days following the closing of any such Equity Offering. 6. Notice of Redemption. Notice of redemption will be mailed at least 30 days but not more than 60 days before the Redemption Date to each Holder whose Notes are to be redeemed at his registered address. On and after the Redemption Date, unless the Company defaults in making the redemption payment, interest ceases to accrue on Notes or portions thereof called for redemption. 7. Offers to Purchase. The Indenture provides that upon the occurrence of a Change of Control or an Asset Sale and subject to further limitations contained therein, the Company shall make an offer to purchase outstanding Notes in accordance with the procedures set forth in the Indenture. A-4 118 8. Registration Rights. Pursuant to a Registration Rights Agreement among the Company, the Guarantors and the Initial Purchasers, the Company will be obligated to consummate an exchange offer pursuant to which the Holders shall have the right to exchange this Note for notes of a separate series issued under the Indenture (or a trust indenture substantially identical to the Indenture in accordance with the terms of the Registration Rights Agreement) which have been registered under the Securities Act, in like principal amount and having identical terms in all material respects as the Notes. The Holders shall be entitled to receive certain additional interest payments in the event such exchange offer is not consummated and upon certain other conditions, all pursuant to and in accordance with the terms of the Registration Rights Agreement. 9. Denominations, Transfer, Exchange. The Notes are in registered form without coupons in denominations of $1,000 and integral multiples of $1,000. A Holder may transfer or exchange Notes in accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay to it any taxes and fees required by law or permitted by the Indenture. The Registrar need not register the transfer of or exchange any Notes or portion of a Note selected for redemption, or register the transfer of or exchange any Notes for a period of 15 days before a mailing of notice of redemption. 10. Persons Deemed Owners. The registered Holder of this Note may be treated as the owner of this Note for all purposes. 11. Unclaimed Money. If money for the payment of principal or interest remains unclaimed for two years, the Trustee will pay the money back to the Company at its written request. After that, Holders entitled to the money must look to the Company for payment as general creditors unless an "abandoned property" law designates another Person. 12. Amendment, Supplement, Waiver, Etc. The Company, the Guarantors and the Trustee (if a party thereto) may, without the consent of the Holders of any outstanding Notes, amend, waive or supplement the Indenture or the Notes for certain specified purposes, including, among other things, curing ambiguities, defects or inconsistencies, maintaining the qualification of the Indenture under the Trust Indenture Act of 1939, as amended, and making any change that does not materially and adversely affect the rights of any Holder. Other amendments and modifications of the Indenture or the Notes may A-5 119 be made by the Company, the Guarantors and the Trustee with the consent of the Holders of not less than a majority of the aggregate principal amount of the outstanding Notes, subject to certain exceptions requiring the consent of the Holders of the particular Notes to be affected. 13. Restrictive Covenants. The Indenture imposes certain limitations on the ability of the Company and its Restricted Subsidiaries to, among other things: (i) incur additional Indebtedness; (ii) pay dividends and make distributions; (iii) issue stock of subsidiaries; (iv) make certain investments; (v) repurchase stock; (vi) create liens; (vii) enter into transactions with affiliates; (viii) merge or consolidate the Company or the Guarantors; and (ix) transfer or sell assets. Such limitations are subject to a number of important qualifications and exceptions. Pursuant to Section 4.04 of the Indenture, the Company must annually report to the Trustee on compliance with such limitations. 14. Successor Corporation. When a successor corporation assumes all the obligations of its predecessor under the Notes and the Indenture and the transaction complies with the terms of Article 5 of the Indenture, the predecessor corporation will, except as provided in Article 5, be released from those obligations. 15. Defaults and Remedies. Events of Default are set forth in the Indenture. Subject to certain limitations in the Indenture, if an Event of Default (other than an Event of Default specified in Section 6.01(6) or (7) of the Indenture with respect to the Company) occurs and is continuing, the Trustee or the Holders of not less than 25% in aggregate principal amount of the outstanding Notes may, by written notice to the Trustee and the Company, and the Trustee upon the request of the Holders of not less than 25% in aggregate principal amount of the outstanding Notes shall, declare all principal of and accrued interest on all Notes to be immediately due and payable and (i) such amounts shall become immediately due and payable or (ii) if there are any amounts outstanding under or in respect of the Amended Credit Agreement, such amounts shall become due and payable upon the first to occur of an acceleration of amounts outstanding under or in respect of the Amended Credit Agreement or five Business Days after receipt by the Company and the representative of the holders of Indebtedness under or in respect of the Amended Credit Agreement, of notice of the acceleration of the Notes. If an Event of Default specified in Section 6.01(6) or (7) of the Indenture occurs with respect to the Company, the principal amount of and inter- A-6 120 est on, all Notes shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder. Holders may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee may require indemnity satisfactory to it before it enforces the Indenture or the Notes. Subject to certain limitations, Holders of a majority in principal amount of the then outstanding Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders notice of any continuing default (except a default in payment of principal or interest) if it determines that withholding notice is in their interests. The Company and each Guarantor must furnish an annual compliance certificate to the Trustee. 16. Trustee Dealings with Company. The Trustee, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were not Trustee. 17. No Recourse Against Others. No director, officer, employee incorporator or stockholder, of the Company or any Guarantor shall have any liability for any obligations of the Company or the Guarantors under the Notes, the Indenture or the Guarantees or for a claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Notes. 18. Discharge. The Company's obligations pursuant to the Indenture will be discharged, except for obligations pursuant to certain sections thereof, subject to the terms of the Indenture, upon the payment of all the Notes or upon the irrevocable deposit with the Trustee of United States dollars sufficient to pay when due principal of and interest on the Notes to maturity or redemption, as the case may be. 19. Guarantees. The Note will be entitled to the benefits of certain Guarantees made for the benefit of the Holders. Reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and obligations thereunder of the Guarantors, the Trustee and the Holders. 20. Authentication. This Note shall not be valid until the Trustee signs the certificate of authentication on the other side of this Note. A-7 121 21. Governing Law. THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS NOTE WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS. The Trustee, the Company, the Guarantor and the Holders agree to submit to the jurisdiction of the courts of the State of New York in any action or proceeding arising out of or relating to the Indenture or the Notes. 22. Abbreviations. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TENANT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act). 23. CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Issuers has caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers in notices of redemption as a convenience to the Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon. The Company will furnish to any Holder upon written request and without charge a copy of the Indenture and Registration Rights Agreement. Requests may be made to: HAYES LEMMERZ INTERNATIONAL, INC. 38481 Huron River Drive Romulus, Michigan 48174 Attention: Chief Financial Officer A-8 122 ASSIGNMENT I or we assign and transfer this Note to: (Insert assignee's social security or tax I.D. number) - ------------------------------------------------------------------- - ------------------------------------------------------------------- - ------------------------------------------------------------------- - ------------------------------------------------------------------- (Print or type name, address and zip code of assignee) and irrevocably appoint: - ------------------------------------------------------------------- - ------------------------------------------------------------------- Agent to transfer this Note on the books of the Company. The Agent may substitute another to act for him. Date: ---------- Signature: ----------------------------------- (Sign exactly as your name appears on the face of this Note) Signature Guarantee: A-9 123 OPTION OF HOLDER TO ELECT PURCHASE If you want to elect to have all or any part of this Note purchased by the Company pursuant to Section 4.15 or Section 4.20 of the Indenture, check the appropriate box: - Section 4.15 - Section 4.20 If you want to have only part of the Note purchased by the Company pursuant to Section 4.15 or Section 4.20 of the Indenture, state the amount you elect to have purchased: $ -------------------- (multiple of $1,000) Date: -------------- Your Signature: ------------------------------ (Sign exactly as your name appears on the face of this Note) - ------------------------- Signature Guaranteed A-10 124 EXHIBIT B [FORM OF PRIVATE PLACEMENT LEGEND] THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE ACT) (AN "ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE ACT, (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS NOTE RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE ACT, (C) INSIDE THE UNITED STATES TO AN ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE ACT (IF AVAILABLE) OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN TWO YEARS AFTER ORIGINAL ISSUANCE OF THIS NOTE, IF THE PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM OR IN A TRANSACTION NOT SUBJECT TO THE REGISTRATION REQUIREMENTS OF THE ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANING GIVEN TO THEM BY REGULATION S UNDER THE ACT. B-1 125 EXHIBIT C-1 [FORM OF ASSIGNMENT FOR 144A NOTE] I or we assign and transfer this Note to: (Insert assignee's social security or tax I.D. number) - ----------------------------------------------------------------------- - ----------------------------------------------------------------------- - ----------------------------------------------------------------------- - ----------------------------------------------------------------------- (Print or type name, address and zip code of assignee) and irrevocably appoint: - ----------------------------------------------------------------------- - ----------------------------------------------------------------------- Agent to transfer this Note on the books of the Company. The Agent may substitute another to act for him. [Check One] [ ] (a) this Note is being transferred in compliance with the exemption from registration under the Securities Act provided by Rule 144A thereunder. or [ ] (b) this Note is being transferred other than in accordance with (a) above and documents are being furnished which comply with the conditions of transfer set forth in this Note and the Indenture. If none of the foregoing boxes is checked, the Trustee or Registrar shall not be obligated to register this Note in the name of any person other than the Holder hereof unless and until the conditions to any such transfer of registration set forth herein and in Section 2.15 of the Indenture shall have been satisfied. Date: Your Signature ------------------- ---------------------------- ----------------------------------------- (Sign exactly as your name appears on the other side of this Note) Signature Guarantee: ----------------------------------------- C-1-1 126 TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a "qualified institutional buyer" within the meaning of Rule 144A under the Securities Act and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned's foregoing representations in order to claim the exemption from registration provided by Rule 144A. Dated: ----------------------- ---------------------------------- NOTICE: To be executed by an executive officer C-1-2 127 EXHIBIT C-2 [FORM OF ASSIGNMENT FOR REGULATION S NOTE] I or we assign and transfer this Note to: (Insert assignee's social security or tax I.D. number) - ---------------------------------------------------------------------- - ---------------------------------------------------------------------- - ---------------------------------------------------------------------- - ---------------------------------------------------------------------- (Print or type name, address and zip code of assignee) and irrevocably appoint: - ---------------------------------------------------------------------- - ---------------------------------------------------------------------- Agent to transfer this Note on the books of the Company. The Agent may substitute another to act for him. [Check One] [ ] (a) this Note is being transferred in compliance with the exemption from registration under the Securities Act provided by Rule 144A thereunder. or [ ] (b) this Note is being transferred other than in accordance with (a) above and documents are being furnished which comply with the conditions of transfer set forth in this Note and the Indenture. If none of the foregoing boxes is checked, the Trustee or Registrar shall not be obligated to register this Note in the name of any person other than the Holder hereof unless and until the conditions to any such transfer of registration set forth herein and in Section 2.15 of the Indenture shall have been satisfied. Date: Your Signature: ------------------- --------------------------------- ------------------------------------------------- (Sign exactly as your name appears on the other side of this Note) Signature Guarantee: ---------------------------------------------------- C-2-1 128 TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a "qualified institutional buyer" within the meaning of Rule 144A under the Securities Act and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned's foregoing representations in order to claim the exemption from registration provided by Rule 144A. Dated: -------------------------- ------------------------------ NOTICE: To be executed by an executive officer C-2-2 129 EXHIBIT D [FORM OF LEGEND FOR GLOBAL NOTE] Any Global Note authenticated and delivered hereunder shall bear a legend (which would be in addition to any other legends required in the case of a Restricted Note) in substantially the following form: THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (A NEW YORK CORPORATION) ("DTC") TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. D-1 130 EXHIBIT E Form of Certificate to Be Delivered in Connection with Transfers to Non-QIB Accredited Investors -----------, ---- The Bank of New York 101 Barclay Street, Floor 21 West New York, New York 10286 Attention: Re: Hayes Lemmerz International, Inc. (the "Company") 8-1/4% Senior Subordinated Notes due 2008 (the "Notes") Dear Sirs: In connection with our proposed purchase of Notes, we confirm that: 1. We understand that any subsequent transfer of the Notes is subject to certain restrictions and conditions set forth in the Indenture dated as of December 14, 2008 relating to the Notes and we agree to be bound by, and not to resell, pledge or otherwise transfer the Notes except in compliance with, such restrictions and conditions and the Securities Act of 1933, as amended (the "Securities Act"). 2. We understand that the Notes have not been registered under the Securities Act or any other applicable securities laws, have not been and will not be qualified for sale under the securities laws of any non-U.S. jurisdiction, and that the Notes may not be offered, sold, pledged or otherwise transferred except as permitted in the following sentence. We agree, on our own behalf and on behalf of any accounts for which we are acting as hereinafter stated, that if we should sell any Notes, we will do so only (i) to the Company or any subsidiary thereof, (ii) in accordance with Rule 144A under the Securities Act to a "qualified institutional buyer" (as defined in Rule 144A), (iii) to an institutional "accredited investor" (as defined below) that, prior to such transfer, furnishes (or E-1 131 has furnished on its behalf by a U.S. broker-dealer) to you a signed letter containing certain representations and agreements relating to the restrictions on transfer of the Notes, (iv) outside the United States to foreign purchasers in offshore transactions meeting the requirements of Rule 904 of Regulation S under the Securities Act, (v) pursuant to the exemption from registration provided by Rule 144 under the Securities Act (if available), or (vi) pursuant to an effective registration statement under the Securities Act, and we further agree to provide to any person purchasing any of the Notes from us a notice advising such purchaser that resales of the Notes are restricted as stated herein. 3. We understand that, on any proposed resale of any Notes, we will be required to furnish to you and the Company such certifications, legal opinions and other information as you and the Company may reasonably require to confirm that the proposed sale complies with the foregoing restrictions. We further understand that the Notes purchased by us will bear a legend to the foregoing effect. 4. We are an institutional "accredited investor" (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act) and have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of our investment in the Notes, and we and any accounts for which we are acting each are able to bear the economic risk of our or their investment, as the case may be. 5. We are acquiring the Notes purchased by us for our account or for one or more accounts (each of which is an institutional "accredited investor") as to each of which we exercise sole investment discretion. You and the Company are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby. Very truly yours, [Name of Transferee] E-2 132 By: ---------------------------- Authorized Signature E-3 133 EXHIBIT F Form of Certificate to Be Delivered in Connection with Transfers Pursuant to Regulation S ----------, ---- The Bank of New York 101 Barclay Street, Floor 21 West New York, New York 10286 Attention: Re: Hayes Lemmerz International, Inc. (the "Company") 8-1/4% Senior Subordinated Notes due 2008 (the "Notes") Dear Sirs: In connection with our proposed sale of $__________ aggregate principal amount of the Notes, we confirm that such sale has been effected pursuant to and in accordance with Regulation S under the U.S. Securities Act of 1933, as amended (the "Securities Act"), and, accordingly, we represent that: (1) the offer of the Notes was not made to a U.S. person or to a person in the United States; (2) either (a) at the time the buy offer was originated, the transferee was outside the United States or we and any person acting on our behalf reasonably believed that the transferee was outside the United States, or (b) the transaction was executed in, on or through the facilities of a designated off-shore securities market and neither we nor any person acting on our behalf knows that the transaction has been pre-arranged with a buyer in the United States; (3) no directed selling efforts have been made in the United States in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as applicable; F-1 134 (4) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act; and (5) we have advised the transferee of the transfer restrictions applicable to the Notes. You and the Company are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby. Terms used in this certificate have the meanings set forth in Regulation S. Very truly yours, [Name of Transferor] By: ------------------------------- Authorized Signature F-2 135 EXHIBIT G [FORM OF GUARANTEE] Each of the undersigned (the "Guarantors") hereby jointly and severally unconditionally guarantees, to the extent set forth in the Indenture dated as of December 14, 1998 by and among Hayes Lemmerz International, Inc., as issuer, the Guarantors, as guarantors, and The Bank of New York, as Trustee (as amended, restated or supplemented from time to time, the "Indenture"), and subject to the provisions of the Indenture, (a) the due and punctual payment of the principal of, and premium, if any, and interest on the Notes, when and as the same shall become due and payable, whether at maturity, by acceleration or otherwise, the due and punctual payment of interest on overdue principal, premium and, to the extent permitted by law, interest, and the due and punctual performance of all other obligations of the Company to the Noteholders or the Trustee, all in accordance with the terms set forth in Article 10 of the Indenture, and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. The obligations of the Guarantors to the Noteholders and to the Trustee pursuant to this Guarantee and the Indenture are expressly set forth in Article 10 of the Indenture and reference is hereby made to the Indenture for the precise terms and limitations of this Guarantee. HAYES LEMMERZ INTERNATIONAL- CALIFORNIA, INC. HAYES LEMMERZ INTERNATIONAL- GEORGIA, INC. HAYES LEMMERZ INTERNATIONAL- INDIANA, INC. HAYES LEMMERZ INTERNATIONAL- MEXICO, INC. HAYES LEMMERZ INTERNATIONAL- MICHIGAN, INC. HAYES LEMMERZ INTERNATIONAL- OHIO, INC. HL OHIO SUB, INC. By: --------------------------- Name: Title: EX-4.12 3 REGISTRATION RIGHTS AGREEMENT 1 EXHIBIT 4.12 - -------------------------------------------------------------------------------- REGISTRATION RIGHTS AGREEMENT Dated as of December 14, 1998 by and among HAYES LEMMERZ INTERNATIONAL, INC., THE GUARANTORS named herein and THE INITIAL PURCHASERS named herein - -------------------------------------------------------------------------------- 2 TABLE OF CONTENTS ----------------- Page ---- 1. Definitions.........................................................1 2. Exchange Offer......................................................5 3. Shelf Registration..................................................9 4. Additional Interest................................................10 5. Registration Procedures............................................12 6. Registration Expenses..............................................23 7. Indemnification....................................................25 8. Rules 144 and 144A.................................................29 9. Underwritten Registrations.........................................29 10. Miscellaneous......................................................30 (a) Remedies..................................................30 (b) Enforcement...............................................30 (c) No Inconsistent Agreements................................30 (d) Adjustments Affecting Registrable Notes...................30 (e) Amendments and Waivers....................................30 (f) Notices...................................................31 (g) Successors and Assigns....................................32 (h) Counterparts..............................................32 (i) Headings..................................................32 (J) GOVERNING LAW.............................................32 (k) Severability..............................................32 (l) Entire Agreement..........................................33 (m) Joint and Several Obligations.............................33 (n) Notes Held by the Company or their Affiliates.............33 -i- 3 REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of December 14, 1998, by and among HAYES LEMMERZ INTERNATIONAL, INC., a Delaware corporation (the "Company"), the Guarantors as listed on the signature pages hereto (the "Guarantors"), and CIBC OPPENHEIMER CORP. ("CIBC"), CREDIT SUISSE FIRST BOSTON CORPORATION and MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, as initial purchasers (the "Initial Purchasers"). This Agreement is entered into in connection with the Purchase Agreement, dated as of December 7, 1998 among the Company, the Guarantors and the Initial Purchasers (the "Purchase Agreement") relating to the sale by the Company to the Initial Purchasers of $250,000,000 aggregate principal amount of the Company's 8-1/4% Senior Subordinated Notes due 2008 (the "Notes") and the guarantee of the Notes by the Guarantors (the "Guarantees"). In order to induce the Initial Purchasers to enter into the Purchase Agreement, the Company and the Guarantors have agreed to provide the registration rights set forth in this Agreement to the Initial Purchasers and their direct and indirect transferees and assigns. The execution and delivery of this Agreement is a condition to the Initial Purchasers' obligation to purchase the Notes under the Purchase Agreement. The parties hereby agree as follows: 1. Definitions As used in this Agreement, the following terms shall have the following meanings: Additional Interest: See Section 4(a). Advice: See Section 5. Applicable Period: See Section 2(b). Closing: See the Purchase Agreement. Company: See the introductory paragraph to this Agreement. Effectiveness Date: The 215th day after the Issue Date. Effectiveness Period: See Section 3(a). Event Date: See Section 4(c). 4 -2- Exchange Act: The Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder. Exchange Notes: See Section 2(a). Exchange Offer: See Section 2(a). Exchange Registration Statement: See Section 2(a). Filing Date: The 155th day after the Issue Date. Guarantees: See the introductory paragraph of this Agreement. Holder: Any holder of a Registrable Note or Registrable Notes. Indemnified Person: See Section 7(c). Indemnifying Person: See Section 7(c). Indenture: The Indenture, dated as of December 14, 1998, among the Company, the Guarantors and The Bank of New York, as trustee, pursuant to which the Notes are being issued, as amended or supplemented from time to time in accordance with the terms thereof. Initial Purchasers: See the introductory paragraph to this Agreement. Initial Shelf Registration: See Section 3(a). Inspectors: See Section 5(o). Issue Date: The date on which the original Notes are sold to the Initial Purchasers pursuant to the Purchase Agreement. NASD: See Section 5(t). Notes: See the introductory paragraph to this Agreement. Participant: See Section 7(a). Participating Broker-Dealer: See Section 2(b). 5 -3- Person: An individual, corporation, limited liability company, partnership, joint venture, association, joint stock company, trust, unincorporated organization or government (including any agency or political subdivision thereof). Private Exchange: See Section 2(b). Private Exchange Notes: See Section 2(b). Prospectus: The prospectus included in any Registration Statement (including, without limitation, any prospectus subject to completion and a prospectus that includes any information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A promulgated under the Securities Act), as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any portion of the Registrable Notes covered by such Registration Statement, and all other amendments and supplements to the Prospectus, including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference in such Prospectus. Purchase Agreement: See the introductory paragraphs to this Agreement. Records: See Section 5(o). Registrable Notes: The Notes upon original issuance of the Notes and at all times subsequent thereto and, if issued, the Private Exchange Notes, until in the case of any such Notes or any such Private Exchange Notes, as the case may be, (i) a Registration Statement covering such Notes or such Private Exchange Notes has been declared effective by the SEC and such Notes or such Private Exchange Notes, as the case may be, have been exchanged and/or disposed of in accordance with such effective Registration Statement, (ii) such Notes or such Private Exchange Notes, as the case may be, are sold in compliance with Rule 144, (iii) in the case of any Note, such Note has been exchanged for an Exchange Note or Exchange Notes pursuant to an Exchange Offer or (iv) such Notes or such Private Exchange Notes, as the case may be, cease to be outstanding. Registration Default: See Section 4(a). Registration Statement: Any registration statement of the Company or the Guarantors, including, but not limited to, the Exchange Registration Statement, which covers any of the Registrable Notes pursuant to the provisions of this Agree- 6 -4- ment, including the Prospectus, amendments and supplements to such registration statement, including post-effective amendments, all exhibits, and all material incorporated by reference or deemed to be incorporated by reference in such registration statement. Rule 144: Rule 144 promulgated under the Securities Act, as such Rule may be amended from time to time, or any similar rule (other than Rule 144A) or regulation hereafter adopted by the SEC providing for offers and sales of securities made in compliance therewith resulting in offers and sales by subsequent holders that are not affiliates of an issuer of such securities being free of the registration and prospectus delivery requirements of the Securities Act. Rule 144A: Rule 144A promulgated under the Securities Act, as such Rule may be amended from time to time, or any similar rule (other than Rule 144) or regulation hereafter adopted by the SEC providing for offers and sales of securities made in compliance therewith resulting in offers and sales by subsequent holders that are not affiliates of an issuer of such securities being free of the registration and prospectus delivery requirements of the Securities Act. Rule 415: Rule 415 promulgated under the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC. SEC: The Securities and Exchange Commission. Securities Act: The Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder. Shelf Notice: See Section 2(c). Shelf Registration: See Section 3(b). Subsequent Shelf Registration: See Section 3(b). TIA: The Trust Indenture Act of 1939, as amended. Trustee: The trustee under the Indenture and, if existent, the trustee under any indenture governing the Exchange Notes and Private Exchange Notes (if any). Underwritten registration or underwritten offering: A registration under the Securities Act in which securities of 7 -5- the Company are sold to an underwriter(s) for reoffering to the public. 2. Exchange Offer (a) Each of the Company and the Guarantors jointly and severally agrees to use its best efforts to file with the SEC as soon as practicable after the Closing, but in no event later than the Filing Date, documents pertaining to an offer to exchange (the "Exchange Offer") any and all of the Registrable Notes for a like aggregate principal amount of debt securities of the Company, guaranteed by the Guarantors, which are identical in all material respects to the Notes (the "Exchange Notes") (and which are entitled to the benefits of the Indenture or a trust indenture which is substantially identical to the Indenture (other than such changes to the Indenture or any such identical trust indenture as are necessary to comply with any requirements of the SEC to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA), except that the Exchange Notes shall have been registered pursuant to an effective registration statement under the Securities Act and will not contain terms with respect to transfer restrictions. The documents pertaining to the Exchange Offer will be filed under the Securities Act on the appropriate form (the "Exchange Registration Statement") and the Exchange Offer will comply with all applicable tender offer rules and regulations under the Exchange Act. Each of the Company and the Guarantors jointly and severally agrees to use its best efforts to (x) cause the Exchange Registration Statement to become effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 days (or longer if required by applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and (z) consummate the Exchange Offer on or prior to the 245th day (or, in the event of any extension of the Exchange Offer required by applicable law, the earliest day following any such extension) following the Issue Date. Each Holder who participates in the Exchange Offer will be required to represent that any Exchange Notes received by it will be acquired in the ordinary course of its business, that at the time of the consummation of the Exchange Offer such Holder will have no arrangement or understanding with any Person to participate in the distribution of the Exchange Notes in violation of the provisions of the Securities Act, that such Holder is not an affiliate of any of the Company or the Guarantors within the meaning of Rule 405 promulgated under the Securities Act or if it is such an affiliate, that it will comply with the registration and prospectus delivery requirements of the Securities 8 -6- Act, to the extent applicable and that is not acting on behalf of any Person who could not truthfully make the foregoing representations. Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable Notes that are Private Exchange Notes and Exchange Notes held by Participating Broker-Dealers, and the Company and the Guarantors shall have no further obligation to register Registrable Notes (other than Private Exchange Notes and Exchange Notes held by Participating Broker-Dealers) pursuant to Section 3 of this Agreement. (b) The Company and the Guarantors shall include within the Prospectus contained in the Exchange Registration Statement a section entitled "Plan of Distribution," reasonably acceptable to the Initial Purchasers, which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential "underwriter" status of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 promulgated under the Exchange Act) of Exchange Notes received by such broker-dealer in the Exchange Offer (a "Participating Broker-Dealer"), whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies, in the reasonable judgment of the Initial Purchasers, represent the prevailing views of the staff of the SEC. Such "Plan of Distribution" section shall also allow the use of the Prospectus by all Persons subject to the prospectus delivery requirements of the Securities Act, including all Participating Broker-Dealers, and include a statement describing the means by which Participating Broker-Dealers may resell the Exchange Notes. Each of the Company and the Guarantors shall use its best efforts to keep the Exchange Registration Statement effective and to amend and supplement the Prospectus contained therein in order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus delivery requirements of the Securities Act for such period of time as such Persons must comply with such requirements in order to resell the Exchange Notes, provided that such period shall not exceed 180 days (or such longer period if extended pursuant to the last paragraph of Section 5) (the "Applicable Period"). If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Notes acquired by them and having, or which are reasonably likely to be determined to have, the status as an unsold allotment in the initial distribution, the Company and the Guarantors upon the request of such Initial 9 -7- Purchasers shall, simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to such Initial Purchasers, in exchange (the "Private Exchange") for the Notes held by such Initial Purchasers, a like principal amount of debt securities of the Company guaranteed by the Guarantors, that are identical in all material respects to the Exchange Notes (the "Private Exchange Notes") (and which are issued pursuant to the same indenture as the Exchange Notes) except for the placement of a restrictive legend on the Private Exchange Notes. If possible, the Private Exchange Notes shall bear the same CUSIP number as the Exchange Notes. Interest on the Exchange Notes and Private Exchange Notes will accrue from (A) the later of (i) the last interest payment date on which interest was paid on the Notes surrendered in exchange therefor or (ii) if the Notes are surrendered for exchange on a date in a period which includes the record date for an interest payment date to occur on or after the date of such exchange and as to which interest will be paid, the date of such interest payment date or (B) if no interest has been paid on the Notes, from the Issue Date. In connection with the Exchange Offer, the Company and the Guarantors shall: (i) mail to each Holder a copy of the Prospectus forming part of the Exchange Registration Statement, together with an appropriate letter of transmittal and related documents; (ii) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York; and (iii) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York City time, on the last business day on which the Exchange Offer shall remain open. As soon as practicable after the close of the Exchange Offer or the Private Exchange, as the case may be, the Company and the Guarantors shall: (i) accept for exchange all Notes tendered and not validly withdrawn pursuant to the Exchange Offer or the Private Exchange; (ii) deliver to the Trustee for cancellation all Notes so accepted for exchange; and 10 -8- (iii) cause the Trustee to authenticate and deliver promptly to each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange. The Exchange Notes and the Private Exchange Notes may be issued under (i) the Indenture or (ii) an indenture substantially identical to the Indenture, which in either event will provide that (1) the Exchange Notes will not be subject to the transfer restrictions set forth in the Indenture and (2) the Private Exchange Notes will be subject to the transfer restrictions set forth in the Indenture. The Indenture or such indenture shall provide that the Exchange Notes, the Private Exchange Notes and the Notes will have the right to vote and give consents together on all matters presented to such holders for votes or consents as one class and that neither the Exchange Notes, the Private Exchange Notes nor the Notes will have the right to vote or consent as a separate class on any matter. (c) If (1) prior to the consummation of the Exchange Offer, the Company and the Guarantors or Holders of at least a majority in aggregate principal amount of the Registrable Notes reasonably determine in good faith that (i) the Exchange Notes would not, upon receipt, be freely transferable by such Holders which are not affiliates (within the meaning of the Securities Act) of the Company or the Guarantors without restriction under the Securities Act and without restrictions under applicable state securities laws, (ii) the interests of the Holders under this Agreement would be adversely affected by the consummation of the Exchange Offer or (iii) after conferring with counsel, the SEC is unlikely to permit the commencement of the Exchange Offer prior to the Effectiveness Date, (2) subsequent to the consummation of the Private Exchange, any holder of the Private Exchange Notes so requests or (3) the Exchange Offer is commenced and not consummated within 245 days of the Issue Date, then the Company and the Guarantors shall promptly deliver to the Holders and the Trustee written notice thereof (the "Shelf Notice") and shall file an Initial Shelf Registration pursuant to Section 3. Following the delivery of a Shelf Notice to the Holders of Registrable Notes (in the circumstances contemplated by clauses (1) and (3) of the preceding sentence), the Company and the Guarantors shall not have any further obligation to conduct the Exchange Offer or the Private Exchange under this Section 2. 11 -9- 3. Shelf Registration If a Shelf Notice is required to be delivered as contemplated by Section 2(c), then: (a) Initial Shelf Registration. The Company and the Guarantors shall prepare and file with the SEC a Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 covering all of the then existing Registrable Notes (the "Initial Shelf Registration"). If the Company and the Guarantors shall have not yet filed an Exchange Registration Statement, each of the Company and the Guarantors shall use its best efforts to file with the SEC the Initial Shelf Registration on or prior to the Filing Date. In any other instance, each of the Company and the Guarantors shall use its best efforts to file with the SEC the Initial Shelf Registration as promptly as practicable following delivery of the Shelf Notice. The Initial Shelf Registration shall be on Form S-3 or another appropriate form permitting registration of such Registrable Notes for resale by such Holders in the manner or manners designated by them (including, without limitation, one or more underwritten offerings). The Company and the Guarantors shall not permit any securities other than the Registrable Notes to be included in the Initial Shelf Registration or any Subsequent Shelf Registration. Each of the Company and the Guarantors shall use its best efforts to cause the Initial Shelf Registration to be declared effective under the Securities Act, if an Exchange Registration Statement has not yet been declared effective, on or prior to the Effectiveness Date, or, in any other instance, as soon as practicable after the filing thereof and in no event later than 90 days following delivery of the Shelf Notice, and to keep the Initial Shelf Registration continuously effective under the Securities Act until the date which is 24 months from the date on which such Initial Shelf Registration is declared effective (subject to extension pursuant to the last paragraph of Section 5 hereof), or such shorter period ending when all Registrable Notes covered by the Initial Shelf Registration have been sold in the manner set forth and as contemplated in the Initial Shelf Registration (the "Effectiveness Period"). (b) Subsequent Shelf Registrations. If the Initial Shelf Registration or any Subsequent Shelf Registration ceases to be effective for any reason at any time prior to the termination of the Effectiveness Period, each of the Company and the Guarantors shall use its best efforts to promptly restore the effectiveness thereof, and in any event shall, within 45 days of such cessation of effectiveness, amend the Shelf Registra- 12 -10- tion in a manner reasonably expected to restore the effectiveness thereof, or file an additional "shelf" Registration Statement pursuant to Rule 415 covering all of the then existing Registrable Notes (a "Subsequent Shelf Registration"). If a Subsequent Shelf Registration is filed, each of the Company and the Guarantors shall use its best efforts to cause the Subsequent Shelf Registration to be declared effective as soon as practicable after such filing and to keep such Registration Statement continuously effective during the Effectiveness Period. As used herein the term "Shelf Registration" means the Initial Shelf Registration and any Subsequent Shelf Registration. (c) Supplements and Amendments. The Company and the Guarantors shall promptly supplement and amend the Shelf Registration if required by the rules, regulations or instructions applicable to the registration form used for such Shelf Registration or if required by the Securities Act. The Company and the Guarantors shall promptly supplement and amend the Shelf Registration if any such supplement or amendment is reasonably requested by the Holders of a majority in aggregate principal amount of the Registrable Notes covered by such Registration Statement or by any underwriter(s) of such Registrable Notes. 4. Additional Interest (a) The Company and the Initial Purchasers agree that the Holders of Registrable Notes will suffer damages if the Company fails to fulfill its obligations under Section 2 or Section 3 hereof and that it would not be feasible to ascertain the extent of such damages with precision. Accordingly, the Company agrees to pay additional interest on the Notes ("Additional Interest") under the circumstances and to the extent set forth below: (i) if neither the Exchange Registration Statement nor the Initial Shelf Registration has been filed on or prior to the Filing Date; (ii) if neither the Exchange Registration Statement nor the Initial Shelf Registration has been declared effective on or prior to the Effectiveness Date; (iii) if an Initial Shelf Registration required by Section 2(c)(2) has not been filed on or prior to the date 45 days after delivery of the Shelf Notice; 13 -11- (iv) if an Initial Shelf Registration required by Section 2(c)(2) has not been declared effective on or prior to the date 90 days after the delivery of the Shelf Notice; and/or (v) if (A) the Company has not exchanged the Exchange Notes for all Notes validly tendered in accordance with the terms of the Exchange Offer on or prior to the date 245 days after the Issue Date or (B) the Exchange Registration Statement ceases to be effective at any time prior to the time that the Exchange Offer is consummated or (C) if applicable, the Shelf Registration has been declared effective and such Shelf Registration ceases to be effective at any time prior to the termination of the Effectiveness Period; (each such event referred to in clauses (i) through (v) above is a "Registration Default"). The sole remedy available to Holders of the Notes for a Registration Default will be the accrual of Additional Interest as follows: the per annum interest rate on the Notes will increase by .50% during the first 90-day period following the occurrence of a Registration Default and until it is waived or cured; and the per annum interest rate will increase by an additional .25% for each subsequent 90-day period during which the Registration Default remains uncured, up to a maximum additional interest rate of 2.0% per annum, provided, however, that only Holders of Private Exchange Notes shall be entitled to receive Additional Interest as a result of a Registration Default pursuant to clause (iii) or (iv), provided, further, that (1) upon the filing of the Exchange Registration Statement or the Initial Shelf Registration (in the case of (i) above), (2) upon the effectiveness of the Exchange Registration Statement or a Shelf Registration (in the case of (ii) above), (3) upon the filing of the Shelf Registration (in the case of (iii) above), (4) upon the effectiveness of the Shelf Registration (in the case of (iv) above), or (5) upon the exchange of Exchange Notes for all Notes tendered or the effectiveness of a Shelf Registration (in the case of (v)(A) above), or upon the subsequent effectiveness of the Exchange Registration Statement which had ceased to remain effective or the effectiveness of a Shelf Registration (in the case of (v)(B) above), or upon the subsequent effectiveness of the Shelf Registration which had ceased to remain effective (in the case of (v)(C) above), Additional Interest on the Notes as a result of such clause (i), (ii), (iii), (iv) or (v) (or the relevant subclause thereof), as the case may be, shall cease to accrue and the interest rate on the Notes will revert to the interest rate originally borne by the Notes. 14 -12- (b) Notwithstanding the foregoing, no Additional Interest will be payable with respect to a Registration Default described in clause (v)(C) above, if pending a material corporate transaction, the Company issues a notice that the Registration Statement, or the prospectus contained therein, is unusable, or such notice is required under applicable securities laws to be issued by the Company, and the aggregate number of days in any consecutive twelve month period for which the Registration Statement, or the Prospectus contained therein, is unusable pursuant to all such notices has not exceeded 75 days in the aggregate. (c) The Company and the Guarantors shall notify the Trustee within one business day after each and every date on which an event occurs in respect of which Additional Interest is required to be paid (an "Event Date"). Any amounts of Additional Interest due pursuant to (a)(i), (a)(ii) or (a)(iii) of this Section 4 will be payable in cash semi-annually on each June 15 and December 15 (to the Holders of record on the June 1 and December 1 immediately preceding such dates), commencing with the first such date occurring after any such Additional Interest commences to accrue and until such Registration Default is cured, by depositing with the Trustee, in trust for the benefit of such Holders, immediately available funds in sums sufficient to pay such Additional Interest. The amount of Additional Interest will be determined by multiplying the applicable Additional Interest rate by the principal amount of the Registrable Notes, multiplied by a fraction, the numerator of which is the number of days such Additional Interest rate was applicable during such period (determined on the basis of a 360-day year comprised of twelve 30-day months and, in the case of a partial month, the actual number of days elapsed), and the denominator of which is 360. 5. Registration Procedures In connection with the filing of any Registration Statement pursuant to Section 2 or 3 hereof, the Company and the Guarantors shall effect such registrations to permit the sale of the securities covered thereby in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company and the Guarantors shall: (a) Prepare and file with the SEC, as provided herein, a Registration Statement or Registration Statements as prescribed by Section 2 or 3, and use their respective best efforts to cause each such Registration Statement to become effective and remain effective as pro- 15 -13- vided herein, provided that, if (1) such filing is pursuant to Section 3, or (2) a Prospectus contained in an Exchange Registration Statement filed pursuant to Section 2 is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, before filing any Registration Statement or Prospectus or any amendments or supplements thereto, the Company and the Guarantors shall, if requested, furnish to and afford the Holders of the Registrable Notes covered by such Registration Statement and each such Participating Broker-Dealer, as the case may be, their counsel and the managing underwriter(s), if any, a reasonable opportunity to review copies of all such documents (including copies of any documents to be incorporated by reference therein and all exhibits thereto) proposed to be filed (to the extent practicable, at least 5 business days prior to such filing). The Company and the Guarantors shall not file any Registration Statement or Prospectus or any amendments or supplements thereto in respect of which the Holders must be afforded an opportunity to review prior to the filing of such document, if the Holders of a majority in aggregate principal amount of the Registrable Notes covered by such Registration Statement, or such Participating Broker-Dealer, as the case may be, their counsel, or the managing underwriter(s), if any, reasonably object to information concerning the Holders or such Participating Broker-Dealer contained therein. (b) Prepare and file with the SEC such amendments and post-effective amendments to each Shelf Registration or Exchange Registration Statement, as the case may be, as may be necessary to keep such Registration Statement continuously effective for the Effectiveness Period or the Applicable Period, as the case may be; cause the related Prospectus to be supplemented by any prospectus supplement required by applicable law, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act; and comply with the provisions of the Securities Act and the Exchange Act applicable to them with respect to the disposition of all securities covered by such Registration Statement as so amended or in such Prospectus as so supplemented and with respect to the subsequent resale of any securities being sold by a Participating Broker-Dealer covered by any such Prospectus; the Company and the Guarantors shall be deemed not to have used their best efforts to keep a Registration Statement effective during the Applicable Period if any of them voluntarily takes any action that would result in 16 -14- selling Holders of the Registrable Notes covered thereby or Participating Broker-Dealers seeking to sell Exchange Notes not being able to sell such Registrable Notes or such Exchange Notes during that period unless such action is required by applicable law or unless the Company and the Guarantors comply with this Agreement, including without limitation, the provisions of clauses 5(c)(v) and (vi) below. (c) If (1) a Shelf Registration is filed pursuant to Section 3, or (2) a Prospectus contained in an Exchange Registration Statement filed pursuant to Section 2 is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, notify the selling Holders of Registrable Notes, or each such Participating Broker-Dealer, as the case may be, their counsel and the managing underwriter(s), if any, promptly (but in any event within two business days), and confirm such notice in writing, (i) when a Prospectus or any prospectus supplement or post-effective amendment thereto has been filed, and, with respect to a Registration Statement or any post-effective amendment thereto, when the same has become effective under the Securities Act (including in such notice a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment thereto including financial statements and schedules, documents incorporated or deemed to be incorporated by reference and exhibits), (ii) of the issuance by the SEC of any stop order suspending the effectiveness of a Registration Statement or of any order preventing or suspending the use of any preliminary Prospectus or the initiation of any proceedings for that purpose, (iii) if at any time when a Prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Notes or resales of Exchange Notes by Participating Broker-Dealers the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 5(n) below cease to be true and correct, (iv) of the receipt by any of the Company or the Guarantors of any notification with respect to the suspension of the qualification or exemption from qualification of a Registration Statement or any of the Registrable Notes or the Exchange Notes to be sold by any Participating Broker-Dealer for offer or sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose, (v) of the happening of any 17 -15- event or any information becoming known that makes any statement made in such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in, or amendments or supplements to, such Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vi) of the Company's or any Guarantor's reasonable determination that a post-effective amendment to a Registration Statement would be necessary or appropriate. (d) If (1) a Shelf Registration is filed pursuant to Section 3, or (2) a Prospectus contained in an Exchange Registration Statement filed pursuant to Section 2 is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, use their best efforts to prevent the issuance of any order suspending the effectiveness of a Registration Statement or of any order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Notes or the Exchange Notes to be sold by any Participating Broker-Dealer, for sale in any jurisdiction, and, if any such order is issued, to use their best efforts to obtain the withdrawal of any such order as promptly as practicable. (e) If a Shelf Registration is filed pursuant to Section 3 and if requested by the managing underwriter(s), if any, or the Holders of a majority in aggregate principal amount of the Registrable Notes being sold in connection with an underwritten offering, (i) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriter(s), if any, or such Holders reasonably request to be included therein and (ii) make all required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notifi- 18 -16- cation of the matters to be incorporated in such Prospectus supplement or post-effective amendment. (f) If (1) a Shelf Registration is filed pursuant to Section 3, or (2) a Prospectus contained in an Exchange Registration Statement filed pursuant to Section 2 is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, furnish to each selling Holder of Registrable Notes who so requests and to each such Participating Broker-Dealer who so requests and to counsel and the managing underwriter(s), if any, without charge, one conformed copy of the Registration Statement or Registration Statements and each post-effective amendment thereto, including financial statements and schedules, and, if requested, all documents incorporated or deemed to be incorporated therein by reference and all exhibits. (g) If (1) a Shelf Registration is filed pursuant to Section 3, or (2) a Prospectus contained in an Exchange Registration Statement filed pursuant to Section 2 is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, deliver to each selling Holder of Registrable Notes, or each such Participating Broker-Dealer, as the case may be, their counsel, and the managing underwriter or underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of preliminary Prospectus) and each amendment or supplement thereto and any documents incorporated by reference therein as such Persons may reasonably request; and, subject to the last paragraph of this Section 5, each of the Company and the Guarantors hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Notes or each such Participating Broker-Dealer, as the case may be, and the managing underwriter or underwriters or agents, if any, and dealers (if any), in connection with the offering and sale of the Registrable Notes covered by, or the sale by Participating Broker-Dealers of the Exchange Notes pursuant to, such Prospectus and any amendment or supplement thereto. (h) Prior to any public offering of Registrable Notes or any delivery of a Prospectus contained in the Exchange Registration Statement by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Appli- 19 -17- cable Period, to use their best efforts to register or qualify, and to cooperate with the selling Holders of Registrable Notes or each such Participating Broker-Dealer, as the case may be, the managing underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification of (or exemption from such registration or qualification), such Registrable Notes for offer and sale under the securities or Blue Sky laws of such jurisdictions within the United States as any selling Holder, Participating Broker-Dealer, or the managing underwriter or underwriters, if any, reasonably request in writing, provided that where Exchange Notes held by Participating Broker-Dealers or Registrable Notes are offered other than through an underwritten offering, the Company and the Guarantors agree to cause their counsel to perform Blue Sky investigations and file registrations and qualifications required to be filed pursuant to this Section 5(h); keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the Exchange Notes held by Participating Broker-Dealers or the Registrable Notes covered by the applicable Registration Statement; provided that none of the Company or the Guarantors shall be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) subject itself to taxation in any such jurisdiction where it is not otherwise so subject. (i) If a Shelf Registration is filed pursuant to Section 3, cooperate with the selling Holders of Registrable Notes and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Notes to be sold, which certificates shall not bear any restrictive legends and shall be in a form eligible for deposit with The Depository Trust Company; and enable such Registrable Notes to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or Holders may reasonably request. (j) Use their best efforts to cause the Registrable Notes covered by the Registration Statement to be registered with or approved by such other governmental agencies 20 -18- or authorities as may be necessary to enable the seller or sellers thereof or the managing underwriter or underwriters, if any, to consummate the disposition of such Registrable Notes, except as may be required solely as a consequence of the nature of such selling Holder's business, in which case each of the Company and the Guarantors will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals. (k) If (1) a Shelf Registration is filed pursuant to Section 3, or (2) a Prospectus contained in an Exchange Registration Statement filed pursuant to Section 2 is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, upon the occurrence of any event contemplated by paragraph 5(c)(v) or 5(c)(vi), as promptly as reasonably practicable prepare and (subject to Section 5(a)) file with the SEC, at the joint and several expense of each of the Company and the Guarantors, a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Notes being sold thereunder or to the purchasers of the Exchange Notes to whom such Prospectus will be delivered by a Participating Broker-Dealer, any such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (l) Use their best efforts to cause the Registrable Notes covered by a Registration Statement or the Exchange Notes, as the case may be, to be rated with the appropriate rating agencies, if so requested by the Holders of a majority in aggregate principal amount of Registrable Notes covered by such Registration Statement or the Exchange Notes, as the case may be, or the managing underwriter or underwriters, if any. (m) Prior to the effective date of the first Registration Statement relating to the Registrable Notes, (i) provide the Trustee with certificates for the Registrable Notes or Exchange Notes, as the case may be, in a form eligible for deposit with The Depository Trust Com- 21 -19- pany and (ii) provide a CUSIP number for the Registrable Notes or Exchange Notes, as the case may be. (n) In connection with an underwritten offering of Registrable Notes pursuant to a Shelf Registration, enter into an underwriting agreement as is customary in underwritten offerings of debt securities similar to the Notes and take all such other actions as are reasonably requested by the managing underwriter(s), if any, in order to expedite or facilitate the registration or the disposition of such Registrable Notes, and in such connection, (i) make such representations and warranties to the managing underwriter or underwriters on behalf of any underwriters, with respect to the business of the Company and its subsidiaries and the Registration Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by reference therein, in each case, as are customarily made by issuers to underwriters in underwritten offerings of debt securities similar to the Notes, and confirm the same if and when requested; (ii) obtain opinions of counsel to the Company and the Guarantors and updates thereof in form and substance reasonably satisfactory to the managing underwriter or underwriters, addressed to the managing underwriter or underwriters covering the matters customarily covered in opinions requested in underwritten offerings of debt securities similar to the Notes and such other matters as may be reasonably requested by the managing underwriter(s); provided, that no such opinion of outside counsel to the Company or any Guarantor which shall have rendered an opinion in connection with the sale of the Notes to the Initial Purchasers (the "Original Opinion") need cover any matter other than matters covered in the Original Opinion and such other matters concerning the Registration Statement and the application of the Securities Act to the offer and sale of the Registration Notes as may be reasonably requested by the managing underwriter or underwriters; (iii) obtain "cold comfort" letters and updates thereof in form and substance reasonably satisfactory to the managing underwriter or underwriters from the independent certified public accountants of the Company and the Guarantors (and, if necessary, any other independent certified public accountants of any subsidiary of any of the Company or of any business acquired by any of the Company or the Guarantors for which financial statements and financial data are, or are required to be, included in the Registration Statement), addressed to the managing underwriter or underwriters on behalf of any underwriters, such letters to be in 22 -20- customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings of debt securities similar to the Notes and such other matters as may be reasonably requested by the managing underwriter or underwriters; and (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures no less favorable than those set forth in Section 7 hereof (or such other provisions and procedures acceptable to Holders of a majority in aggregate principal amount of Registrable Notes covered by such Registration Statement and the managing underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to said Section. The above shall be done at each closing under such underwriting agreement, or as and to the extent required thereunder. (o) If (1) a Shelf Registration is filed pursuant to Section 3, or (2) a Prospectus contained in an Exchange Registration Statement filed pursuant to Section 2 is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, make available for inspection by any selling Holder of such Registrable Notes being sold, or each such Participating Broker-Dealer, as the case may be, the managing underwriter or underwriters participating in any such disposition of Registrable Notes, if any, and any attorney, accountant or other agent retained by any such selling Holder or each such Participating Broker-Dealer, as the case may be (collectively, the "Inspectors"), at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and the Guarantors and their respective subsidiaries (collectively, the "Records") as shall be reasonably necessary to enable them to exercise any applicable due diligence responsibilities, and cause the officers, directors and employees of the Company and the Guarantors and their respective subsidiaries to supply all information in each case reasonably requested by any such Inspector in connection with such Registration Statement. Records which the Company and the Guarantors determine, in good faith, to be confidential and any Records which they notify the Inspectors are confidential shall not be disclosed by the Inspectors unless (i) the disclosure of such Records is necessary to avoid or correct a material misstatement or material omission in such Registration Statement, (ii) the release of such Records is ordered pursuant 23 -21- to a subpoena or other order from a court of competent jurisdiction or (iii) the information in such Records has been made generally available to the public. Each selling Holder of such Registrable Notes and each such Participating Broker-Dealer or underwriter will be required to agree that information obtained by it as a result of such inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Company or for any purpose other than in connection with such Registration Statement unless and until such is made generally available to the public. Each selling Holder of such Registrable Notes and each such Participating Broker-Dealer will be required to further agree that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give prompt notice to the Company and allow the Company to undertake appropriate action to prevent disclosure of the Records deemed confidential at their expense. (p) Provide an indenture trustee for the Registrable Notes or the Exchange Notes, as the case may be, and cause the Indenture or the trust indenture provided for in Section 2(a), as the case may be, to be qualified under the TIA not later than the effective date of the Exchange Registration Statement or the first Registration Statement relating to the Registrable Notes; and in connection therewith, cooperate with the trustee under any such indenture and the Holders of the Registrable Notes, to effect such changes to such indenture as may be required for such indenture to be so qualified in accordance with the terms of the TIA; and execute, and use its best efforts to cause such trustee to execute, all documents as may be required to effect such changes, and all other forms and documents required to be filed with the SEC to enable such indenture to be so qualified in a timely manner. (q) Comply with all applicable rules and regulations of the SEC and make generally available to its securityholders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than 45 days after the end of any 12-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) (i) commencing at the end of any fiscal quarter in which Registrable Notes are sold to underwriters in a firm commitment or best efforts underwritten offering and (ii) if not sold to underwriters in such an offering, commencing on the first day of the first 24 -22- fiscal quarter of the Company after the effective date of a Registration Statement, which statements shall cover said 12-month periods. (r) Upon consummation of an Exchange Offer or a Private Exchange, obtain an opinion of counsel to the Company and the Guarantors, in a form customary for underwritten offerings of debt securities similar to the Notes, addressed to the Trustee for the benefit of all Holders of Registrable Notes participating in the Exchange Offer or the Private Exchange, as the case may be, and which includes an opinion that (i) each of the Company and the Guarantors has duly authorized, executed and delivered the Exchange Notes and Private Exchange Notes and the related indenture and (ii) each of the Exchange Notes or the Private Exchange Notes, as the case may be, and related indenture constitute a legal, valid and binding obligation of each of the Company and the Guarantors, enforceable against each of the Company and the Guarantors in accordance with its respective terms (with customary exceptions). (s) If an Exchange Offer or a Private Exchange is to be consummated, upon delivery of the Registrable Notes by Holders to the Company and the Guarantors (or to such other Person as directed by the Company and the Guarantors) in exchange for the Exchange Notes or the Private Exchange Notes, as the case may be, the Company and the Guarantors shall mark, or cause to be marked, on such Registrable Notes that such Registrable Notes are being canceled in exchange for the Exchange Notes or the Private Exchange Notes, as the case may be; and, in no event shall such Registrable Notes be marked as paid or otherwise satisfied. (t) Cooperate with each seller of Registrable Notes covered by any Registration Statement and the managing underwriter(s), if any, participating in the disposition of such Registrable Notes and their respective counsel in connection with any filings required to be made with the National Association of Securities Dealers, Inc. (the "NASD"). (u) Use their respective best efforts to take all other reasonable steps necessary to effect the registration of the Registrable Notes covered by a Registration Statement contemplated hereby. 25 -23- The Company and the Guarantors may require each seller of Registrable Notes or Participating Broker-Dealer as to which any registration is being effected to furnish to the Company and the Guarantors such information regarding such seller or Participating Broker-Dealer and the distribution of such Registrable Notes or Exchange Notes to be sold by such Participating Broker-Dealer, as the case may be, as the Company and the Guarantors may, from time to time, reasonably request. The Company may exclude from such registration the Registrable Notes of any seller or Participating Broker-Dealer who fails to furnish such information within a reasonable time after receiving such request. Each seller as to which any Shelf Registration is being effected agrees to furnish promptly to the Company all information required to be disclosed in order to make the information previously furnished to the Company by such seller not materially misleading. Each Holder of Registrable Notes and each Participating Broker-Dealer agrees by acquisition of such Registrable Notes or Exchange Notes to be sold by such Participating Broker-Dealer, as the case may be, that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5(c)(ii), 5(c)(iv), 5(c)(v) or 5(c)(vi) hereof, such Holder will forthwith discontinue disposition of such Registrable Notes covered by such Registration Statement or Prospectus or Exchange Notes to be sold by such Holder or Participating Broker-Dealer, as the case may be, until such Holder's or Participating Broker-Dealer's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 5(k), or until it is advised in writing (the "Advice") by the Company that the use of the applicable Prospectus may be resumed, and has received copies of any amendments or supplements thereto. In the event the Company shall give any such notice, each of the Effectiveness Period and the Applicable Period shall be extended by the number of days during such periods from and including the date of the giving of such notice to and including the date when each seller of Registrable Notes covered by such Registration Statement or Exchange Notes to be sold by such Holder or Participating Broker-Dealer, as the case may be, shall have received (x) the copies of the supplemented or amended Prospectus contemplated by Section 5(k) or (y) the Advice. 6. Registration Expenses (a) All fees and expenses incident to the performance of or compliance with this Agreement by the Company and the Guarantors shall be borne by the Company and the Guaran- 26 -24- tors, jointly and severally, whether or not the Exchange Offer or a Shelf Registration is filed or becomes effective, including, without limitation, (i) all registration and filing fees (including, without limitation, (A) fees with respect to filings required to be made with the NASD in connection with an underwritten offering and (B) fees and expenses of compliance with state securities or Blue Sky laws (including, without limitation, reasonable fees and disbursements of counsel in connection with Blue Sky qualifications of the Registrable Notes or Exchange Notes and determination of the eligibility of the Registrable Notes or Exchange Notes for investment under the laws of such jurisdictions in the United States (x) where the Holders of Registrable Notes are located, in the case of the Exchange Notes, or (y) as provided in Section 5(h), in the case of Registrable Notes or Exchange Notes to be sold by a Participating Broker-Dealer during the Applicable Period)), (ii) printing expenses (including, without limitation, expenses of printing certificates for Registrable Notes or Exchange Notes in a form eligible for deposit with The Depository Trust Company and of printing Prospectuses if the printing of Prospectuses is reasonably requested by the managing underwriter or underwriters, if any, or, in respect of Registrable Notes or Exchange Notes to be sold by any Participating Broker-Dealer during the Applicable Period, if reasonably requested by the Holders of a majority in aggregate principal amount of the Registrable Notes included in any Registration Statement or of such Exchange Notes, as the case may be), (iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of counsel for the Company and fees and disbursements of special counsel for the sellers of Registrable Notes (subject to the provisions of Section 6(b)), (v) fees and disbursements of all independent certified public accountants referred to in Section 5(n)(iii) (including, without limitation, the expenses of any special audit and "cold comfort" letters required by or incident to such performance), (vi) rating agency fees, (vii) Securities Act liability insurance, if the Company and/or the Guarantors desire such insurance, (viii) fees and expenses of the Trustee, (ix) fees and expenses of all other Persons retained by the Company and/or the Guarantors, (x) internal expenses of the Company and the Guarantors (including, without limitation, all salaries and expenses of officers and employees of the Company and the Guarantors performing legal or accounting duties), (xi) the expense of any annual audit, (xii) the fees and expenses incurred in connection with any listing of the securities to be registered on any securities exchange and (xiii) the expenses relating to printing, word processing and distributing all Registration Statements, underwriting agree- 27 -25- ments, securities sales agreements, indentures and any other documents necessary in order to comply with this Agreement. (b) In connection with any Shelf Registration hereunder, the Company and the Guarantors, jointly and severally, shall reimburse the Holders of the Registrable Notes being registered in such registration for the reasonable fees and disbursements of not more than one counsel (in addition to appropriate local counsel) chosen by the Holders of a majority in aggregate principal amount of the Registrable Notes to be included in such Registration Statement and other reasonable and documented out-of-pocket expenses of the Holders of Registrable Notes incurred in connection with the registration of the Registrable Notes. The Company and the Guarantors shall not have any obligation to pay any underwriting fees, discounts or commissions attributable to the sale of Registrable Securities. 7. Indemnification (a) Each of the Company and the Guarantors, jointly and severally, agrees to indemnify and hold harmless each Holder of Registrable Notes and each Participating Broker-Dealer selling Exchange Notes during the Applicable Period, the officers and directors of each such Person, and each Person, if any, who controls any such Person within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act (each, a "Participant"), from and against any and all losses, claims, damages and liabilities (including, without limitation, the reasonable and documented legal fees and other expenses actually incurred in connection with any suit, action or proceeding or any claim asserted) caused by, arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto) or any preliminary Prospectus, or caused by, arising out of or based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except insofar as such losses, claims, damages or liabilities are caused by any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with information relating to any Participant furnished to the Company in writing by such Participant expressly for use therein; provided that the foregoing indemnity with respect to any preliminary Prospectus shall not inure to the benefit of any Participant (or to the benefit of an officer or director of such Participant or any 28 -26- Person controlling such Participant) from whom the Person asserting any such losses, claims, damages or liabilities purchased Registrable Notes or Exchange Notes if such untrue statement or omission or alleged untrue statement or omission made in such preliminary Prospectus is eliminated or remedied in the related Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto) and a copy of the related Prospectus (as so amended or supplemented) shall have been furnished to such Participant at or prior to the sale of such Registrable or Exchange Notes, as the case may be, to such Person. (b) Each Participant will be required to agree, severally and not jointly, to indemnify and hold harmless the Company and the Guarantors, their respective directors and officers and each Person who controls any of the Company or the Guarantors within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company and the Guarantors to each Participant and shall have the rights and duties given to the Company and the Guarantors in paragraph (c) of this Section 7 (except that if the Company and the Guarantors shall have assumed the defense thereof, such Participant shall not be required to do so, but may employ separate counsel therein and participate in the defense thereof but the fees and expenses of such counsel shall be at the expense of such Participant), but only with reference to information relating to such Participant furnished to the Company and the Guarantors in writing by such Participant expressly for use in any Registration Statement or Prospectus, any amendment or supplement thereto, or any preliminary Prospectus. The liability of any Participant under this paragraph (b) shall in no event exceed the proceeds received by such Participant from sales of Registrable Notes or Exchange Notes giving rise to such obligations. (c) If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against any Person in respect of which indemnity may be sought pursuant to either paragraph (a) or (b) of this Section 7, such Person (the "Indemnified Person") shall promptly notify the Person against whom such indemnity may be sought (the "Indemnifying Person") in writing, and the Indemnifying Person, upon request of the Indemnified Person, shall retain one counsel reasonably satisfactory to the Indemnified Person to represent the Indemnified Person and any others the Indemnifying Person may reasonably designate in such proceeding and shall pay the reasonable fees and expenses incurred by such counsel related to such proceeding. In any such 29 -27- proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed in writing to the contrary, (ii) the Indemnifying Person has failed to retain counsel reasonably satisfactory to the Indemnified Person or (iii) the named parties in any such proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and such Indemnified Person shall have been advised by counsel that there may be one or more legal defenses available to it which are different from or additional to those available to any such Indemnifying Person. It is understood that the Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same jurisdiction, be liable for the fees and expenses of more than one separate law firm (in addition to any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be reimbursed as they are incurred. Any such separate firm for the Participants and such control Persons of Participants shall be designated in writing by Participants who sold a majority in interest of Registrable Notes and Exchange Notes sold by all such Participants and any such separate firm for the Company and the Guarantors, their directors, their officers and such control Persons of the Company and the Guarantors shall be designated in writing by the Company. The Indemnifying Person shall not be liable for any settlement of any proceeding effected without its prior written consent, but if settled with such consent or if there is a final judgment for the plaintiff for which the Indemnified Person is entitled to indemnification pursuant to this Agreement, the Indemnifying Person agrees to indemnify any Indemnified Person from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested an Indemnifying Person to reimburse the Indemnified Person for reasonable fees and expenses incurred by counsel as contemplated by the third sentence of this paragraph, the Indemnifying Person agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 60 days after receipt by such Indemnifying Person of the aforesaid request and (ii) such Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such request prior to the date of such settlement; provided, however, that the Indemnifying Person shall not be liable for any settlement effected without its consent pursuant to this sentence if the Indemnifying Party is contesting, in good faith, the request for reimbursement. No Indemnifying Person shall, without the prior written consent of 30 -28- the Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnity could have been sought hereunder by such Indemnified Person, unless such settlement includes an unconditional release (or any other release reasonably acceptable to the Indemnified Person) of such Indemnified Person from all liability on claims that are the subject matter of such proceeding. (d) If the indemnification provided for in paragraphs (a) and (b) of this Section 7 is unavailable to an Indemnified Person in respect of any losses, claims, damages or liabilities referred to therein (other than as a result of the proviso set forth in Section 7(a)), then each Indemnifying Person under such paragraphs, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect the relative fault of the Company and the Guarantors on the one hand and the Participants on the other in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative fault of the Company and the Guarantors on the one hand and the Participants on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company and the Guarantors or by the Participants and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. (e) The parties agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even if the Participants were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in the immediately preceding paragraph. The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any reasonable legal or other expenses actually incurred by such Indemnified Person in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 7, in no event shall a Participant be required to contribute any amount in excess of the amount by which proceeds received by such Participant from sales of Registrable Notes or 31 -29- Exchange Notes exceeds the amount of any damages that such Participant has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. (f) The indemnity and contribution agreements contained in this Section 7 will be in addition to any liability which the Indemnifying Persons may otherwise have to the Indemnified Persons referred to above. 8. Rules 144 and 144A Each of the Company and the Guarantors covenants that it will file the reports required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by the SEC thereunder in a timely manner and, if at any time the Company is not required to file such reports, it will, upon the request of any Holder of Registrable Notes, make publicly available other information of a like nature so long as necessary to permit sales pursuant to Rule 144 or Rule 144A. Each of the Company and the Guarantors further covenants that so long as any Registrable Notes remain outstanding to make available to any Holder of Registrable Notes in connection with any sale thereof, the information required by Rule 144A(d)(4) under the Securities Act in order to permit resales of such Registrable Notes pursuant to (a) such Rule 144A, or (b) any similar rule or regulation hereafter adopted by the SEC. 9. Underwritten Registrations If any of the Registrable Notes covered by any Shelf Registration are to be sold in an underwritten offering, the investment banking firm or firms that will underwrite the offering and the manager or managers that will manage the offering will be selected by the Holders of a majority in aggregate principal amount of such Registrable Notes included in such offering and shall be reasonably acceptable to the Company and the Guarantors. No Holder of Registrable Notes may participate in any underwritten offering hereunder unless such Holder (a) agrees to sell such Holder's Registrable Notes on the basis provided in any underwriting arrangements approved by the Persons entitled hereunder to approve such arrangements and (b) completes 32 -30- and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements. 10. Miscellaneous (a) Remedies. In the event of a breach by the Company or any Guarantor of any of its obligations under this Agreement, other than the occurrence of an event which requires payment of Additional Interest, each Holder of Registrable Notes, in addition to being entitled to exercise all rights provided herein, in the Indenture or, in the case of the Initial Purchasers, in the Purchase Agreement or granted by law, including recovery of damages, will be entitled to specific performance of its rights under this Agreement. Each of the Company and the Guarantors, jointly and severally, agree that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of any of the provisions of this Agreement and hereby further agrees, jointly and severally, that, in the event of any action for specific performance in respect of such breach, it shall waive the defense that a remedy at law would be adequate. (b) Enforcement. The Trustee shall be authorized to enforce the provisions of this Agreement for the ratable benefit of the Holders. (c) No Inconsistent Agreements. None of the Company or the Guarantors has entered, as of the date hereof, and the Company and the Guarantors shall not enter, after the date of this Agreement, into any agreement with respect to any of their securities that is inconsistent with the rights granted to the Holders of Registrable Notes in this Agreement or otherwise conflicts with the provisions hereof. None of the Company or the Guarantors has entered or will enter into any agreement with respect to any of its securities which will grant to any Person piggy-back rights with respect to a Registration Statement required to be filed under this Agreement. (d) Adjustments Affecting Registrable Notes. Neither the Company nor the Guarantors shall, directly or indirectly, take any action with respect to the Registrable Notes as a class that would adversely affect the ability of the Holders of Registrable Notes to include such Registrable Notes in a registration undertaken pursuant to this Agreement. (e) Amendments and Waivers. The provisions of this Agreement, including the provisions of this sentence, may not 33 -31- be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given, unless the Company and the Guarantors have obtained the written consent of Holders of at least a majority of the then outstanding aggregate principal amount of Registrable Notes. Notwithstanding the foregoing, a waiver or consent to depart from the provisions hereof with respect to a matter that relates exclusively to the rights of Holders of Registrable Notes whose securities are being sold pursuant to a Registration Statement and that does not directly or indirectly affect, impair, limit or compromise the rights of other Holders of Registrable Notes may be given by Holders of at least a majority in aggregate principal amount of the Registrable Notes being sold by such Holders pursuant to such Registration Statement, provided that the provisions of this sentence may not be amended, modified or supplemented except in accordance with the provisions of the immediately preceding sentence. (f) Notices. All notices and other communications (including without limitation any notices or other communications to the Trustee) provided for or permitted hereunder shall be made in writing by hand-delivery, registered first-class mail, next-day courier or telecopier: (i) if to a Holder of Registrable Notes or any Participating Broker-Dealer, at the most current address given by the Trustee to the Company; and (ii) if to the Company or the Guarantors, to Hayes Lemmerz International, Inc., 38341 Huron River Drive, Romulus, Michigan 48174, Attention: General Counsel and with a copy to Skadden, Arps, Slate, Meagher & Flom LLP, One Rodney Square, Wilmington, Delaware 19801, Attention: Robert B. Pincus, Esq. All such notices and communications shall be deemed to have been duly given: (i) when delivered by hand, if personally delivered; (ii) five business days after being deposited in the mail, postage prepaid, if mailed; (iii) one business day after being timely delivered to a next-day courier; and (iv) when receipt is acknowledged by the addressee, if telecopied. Copies of all such notices, demands or other communications shall be concurrently delivered by the Person giving the same to the Trustee under the Indenture at the address specified in such Indenture. 34 -32- (g) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of each of the parties, including without limitation and without the need for an express assignment, subsequent Holders of Registrable Notes. (h) Counterparts. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. (i) Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. (j) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT. (k) Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their best efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. (l) Entire Agreement. This Agreement, together with the Purchase Agreement and the Indenture, is intended by the parties as a final expression of their agreement, and is intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein and therein. (m) Joint and Several Obligations. Unless otherwise stated herein, each of the obligations of the Company and the Guarantors under this Agreement shall be joint and several obligations of each of them. 35 -33- (n) Notes Held by the Company or their Affiliates. Whenever the consent or approval of Holders of a specified percentage of Registrable Notes is required hereunder, Registrable Notes held by the Company or their affiliates (as such term is defined in Rule 405 under the Securities Act) shall not be counted in determining whether such consent or approval was given by the Holders of such required percentage. 36 -34- IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. HAYES LEMMERZ INTERNATIONAL, INC., a Delaware corporation By: -------------------------------------------- Name: Title: Guarantors: HAYES LEMMERZ INTERNATIONAL- CALIFORNIA, INC., a Delaware corporation By: -------------------------------------------- Name: Title: HAYES LEMMERZ INTERNATIONAL- GEORGIA, INC., a Delaware corporation By: -------------------------------------------- Name: Title: HAYES LEMMERZ INTERNATIONAL- INDIANA, INC., a Delaware corporation By: -------------------------------------------- Name: Title: 37 -35- HAYES LEMMERZ INTERNATIONAL- MEXICO, INC., a Delaware corporation By: -------------------------------------------- Name: Title: HAYES LEMMERZ INTERNATIONAL- MICHIGAN, INC., a Delaware corporation By: -------------------------------------------- Name: Title: HAYES LEMMERZ INTERNATIONAL-OHIO, INC., an Ohio corporation By: -------------------------------------------- Name: Title HL OHIO SUB, INC., a Delaware corporation By: -------------------------------------------- Name: Title: 38 -36- The foregoing Agreement is hereby confirmed and accepted as of the date first above written. CIBC OPPENHEIMER CORP. By: -------------------------------- Name: Title: CREDIT SUISSE FIRST BOSTON CORPORATION By: -------------------------------- Name: Title: MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED By: -------------------------------- Name: Title: EX-10.29 4 AMENDED & RESTATED CREDIT AGREEMENT 1 EXHIBIT 10.29 THIRD AMENDED AND RESTATED CREDIT AGREEMENT among HAYES LEMMERZ INTERNATIONAL, INC., as Borrower The Several Lenders from Time to Time Parties Hereto, CANADIAN IMPERIAL BANK OF COMMERCE, as Administrative Agent and Co-Lead Arranger CREDIT SUISSE FIRST BOSTON, as Syndication Agent and Co-Lead Arranger MERRILL LYNCH CAPITAL CORPORATION, as Co-Documentation Agent, and DRESDNER BANK AG, as Co-Documentation Agent and European Swing Line Administrator Dated as of February 3, 1999 2 2 TABLE OF CONTENTS Page ---- SECTION 1. DEFINITIONS........................................................2 1.1 Defined Terms......................................................2 1.2 Other Definitional Provisions.....................................31 SECTION 2. AMOUNT AND TERMS OF COMMITMENTS...................................32 2.1 Revolving Credit Commitments......................................32 2.2 Revolving Credit Notes............................................32 2.3 Procedure for Revolving Credit Borrowing..........................32 2.4 Commitment Fees; Other Fees.......................................33 2.5 Termination or Reduction of Revolving Credit Commitments..........33 2.6 Swing Line Commitments............................................34 2.7 Competitive Bid Procedure.........................................39 2.8 Term Loans........................................................42 2.9 Term Notes........................................................42 2.10 Repayment of Loans................................................44 2.11 Guarantee.........................................................44 SECTION 3. LETTERS OF CREDIT.................................................47 3.1 L/C Commitment....................................................47 3.2 Procedure for Issuance of Letters of Credit.......................48 3.3 Fees, Commissions and Other Charges...............................48 3.4 L/C Participations................................................49 3.5 Reimbursement Obligation of the Borrower..........................50 3.6 Obligations Absolute..............................................51 3.7 Letter of Credit Payments.........................................51 3.8 Application.......................................................51 SECTION 4. GENERAL PROVISIONS................................................52 4.1 Interest Rates and Payment Dates..................................52 4.2 Optional Prepayments..............................................52 4.3 Mandatory Prepayments and Reduction of Revolving Credit Commitments.......................................................53 4.4 Conversion and Continuation Options...............................56 4.5 Minimum Amounts and Maximum Number of Tranches....................56 4.6 Computation of Interest, Fees and Dollar Equivalent Amount........57 4.7 Inability to Determine Interest Rate..............................58 4.8 Pro Rata Treatment and Payments...................................58 4.9 Illegality........................................................60 4.10 Requirements of Law...............................................61 -2- 3 Page ---- 4.11 Taxes.............................................................62 4.12 Indemnity.........................................................64 4.13 Change of Lending Office; Replacement of Lenders..................64 4.14 Borrower Controls on Non-Dollar Indebtedness; Calculation of Non-Dollar Extensions of Credit; Prepayments................................65 SECTION 5. REPRESENTATIONS AND WARRANTIES....................................65 5.1 Financial Condition...............................................65 5.2 No Change; Solvency...............................................66 5.3 Corporate Existence; Compliance with Law..........................67 5.4 Corporate Power; Authorization; Enforceable Obligations...........67 5.5 No Legal Bar......................................................67 5.6 No Material Litigation............................................67 5.7 No Default........................................................68 5.8 Ownership of Property; Liens......................................68 5.9 Intellectual Property.............................................68 5.10 No Burdensome Restrictions........................................68 5.11 Taxes.............................................................68 5.12 Federal Regulations...............................................69 5.13 ERISA.............................................................69 5.14 Collateral........................................................69 5.15 Investment Company Act; Other Regulations.........................70 5.16 Subsidiaries and Joint Ventures...................................70 5.17 Purpose of Loans..................................................70 5.18 Environmental Matters.............................................70 5.19 Regulation H......................................................71 5.20 No Material Misstatements.........................................71 5.21 Labor Matters.....................................................72 5.22 Year 2000.........................................................72 SECTION 6. CONDITIONS PRECEDENT..............................................72 6.1 Conditions to Effectiveness.......................................72 6.2 Conditions to Each Extension of Credit............................75 SECTION 7. AFFIRMATIVE COVENANTS.............................................76 7.1 Financial Statements..............................................76 7.2 Certificates; Other Information...................................77 7.3 Payment of Obligations............................................78 7.4 Conduct of Business and Maintenance of Existence..................78 7.5 Maintenance of Property; Insurance................................79 7.6 Inspection of Property; Books and Records; Discussions............79 7.7 Notices...........................................................79 7.8 Environmental Laws................................................80 7.9 Further Assurances................................................81 7.10 Additional Collateral.............................................81 -1- 4 Page ---- SECTION 8. NEGATIVE COVENANTS................................................83 8.1 Financial Condition Covenants.....................................83 8.2 Limitation on Indebtedness........................................86 8.3 Limitation on Liens...............................................87 8.4 Limitation on Guarantee Obligations...............................90 8.5 Limitation on Fundamental Changes.................................91 8.6 Limitation on Sale of Assets......................................91 8.7 Limitation on Dividends...........................................93 8.8 Limitation on Capital Expenditures................................93 8.9 Limitation on Investments, Loans and Advances.....................93 8.10 Limitation on Optional Payments and Modifications of Debt Instruments.......................................................95 8.11 Limitation on Transactions with Affiliates........................95 8.12 Limitation on Changes in Fiscal Year..............................96 8.13 Limitation on Negative Pledge Clauses.............................96 8.14 Limitation on Lines of Business...................................96 8.15 Limitations on Currency and Commodity Hedging Transactions........96 SECTION 9. EVENTS OF DEFAULT.................................................97 SECTION 10. THE MANAGING AGENTS..............................................100 10.1 Appointment......................................................100 10.2 Delegation of Duties.............................................101 10.3 Exculpatory Provisions...........................................101 10.4 Reliance by Administrative Agent and Other Managing Agents.......101 10.5 Notice of Default................................................101 10.6 Non-Reliance on Administrative Agent, Other Managing Agents and Other Lenders..................................................102 10.7 Indemnification..................................................102 10.8 Administrative Agent and Other Managing Agents in Their Individual Capacities..........................................103 10.9 Successor Administrative Agent...................................103 10.10 Issuing Lender...................................................103 10.11 Releases of Guarantees and Collateral............................103 10.12 Foreign Pledge Agreement.........................................104 SECTION 11. MISCELLANEOUS....................................................104 11.1 Amendments and Waivers...........................................104 11.2 Notices..........................................................106 11.3 No Waiver; Cumulative Remedies...................................107 11.4 Survival of Representations and Warranties.......................107 11.5 Payment of Expenses and Taxes....................................107 11.6 Successors and Assigns; Participations and Assignments...........108 11.7 Adjustments; Set-off.............................................111 11.8 Counterparts.....................................................111 11.9 Severability.....................................................112 11.10 Integration......................................................112 -2- 5 Page ---- 11.11 GOVERNING LAW....................................................112 11.12 Submission To Jurisdiction; Waivers..............................112 11.13 Acknowledgments..................................................113 11.14 WAIVERS OF JURY TRIAL............................................113 11.15 Confidentiality..................................................113 11.16 Effect of Amendment and Restatement of the Prior Credit Agreement........................................................113 11.17 Judgment.........................................................114 -3- 6 Page ---- SCHEDULES A Commitments and Addresses B Applicable Margin and Applicable Commitment Fee Rate C Available Foreign Currencies D Subsidiary Borrowers 5.1(a) 1998 Acquisitions 5.1(b) Exceptions to GAAP Schedule for CMI 5.4 Consents 5.14 Equipment and Inventory of Borrower and Subsidiaries 5.16 Subsidiaries and Joint Ventures 8.2(e) Permitted Indebtedness 8.3(h) Permitted Liens 8.4(a) Permitted Guarantee Obligations 8.9(j) Investment Schedule 8.10(k) Investments EXHIBITS A-1 Form of Revolving Credit Note A-2 Form of Term Note A-3 Form of Swing Line Note B-1 Form of Guarantee and Collateral Agreement B-2 Form of Fee Mortgage B-3 Form of Leasehold Mortgage B-4 Form of Copyright, Patent and Trademark Security Agreement C Form of Borrowing Certificate D Form of Opinion of General Counsel to Borrower E Form of U.S. Tax Compliance Certificate F Form of Assignment and Acceptance G-1 Form of Competitive Bid Request G-2 Form of Competitive Bid Invitation G-3 Form of Competitive Bid G-4 Form of Competitive Bid Accept/Reject Letter H Form of Subsidiary Borrower Agreement I Form of Subsidiary Borrower Termination J Form of Intercreditor Agreement K Form of Intercreditor/Lien Subordination Agreement L Form of Mexican Stock Pledge Agreement -4- 7 1 THIRD AMENDED AND RESTATED CREDIT AGREEMENT, dated as of February 3, 1999, among HAYES LEMMERZ INTERNATIONAL, INC., a Delaware corporation (the "Borrower"), the several banks and other financial institutions from time to time parties to this Agreement (the "Lenders"), CANADIAN IMPERIAL BANK OF COMMERCE, a Canadian-chartered bank acting through its New York Agency, as administrative agent for the Lenders and co-lead arranger, CREDIT SUISSE FIRST BOSTON, as syndication agent for the Lenders and co-lead arranger, MERRILL LYNCH CAPITAL CORPORATION, a Delaware corporation, as co-documentation agent for the Lenders, and DRESDNER BANK AG, as co-documentation agent and European Swing Line Administrator for the Lenders. W I T N E S S E T H : WHEREAS, the Borrower, the several banks and other financial institutions from time to time parties thereto, Canadian Imperial Bank of Commerce, as administrative agent, Merrill Lynch Capital Corporation, as documentation agent, and Dresdner Bank AG, as European swing line administrator, are parties to that certain Second Amended and Restated Credit Agreement, dated as of June 12, 1998 (the "Prior Credit Agreement"), providing for certain term loans, revolving credit loans and other extensions of credit described therein; WHEREAS, the Borrower has requested that the Lenders continue and increase certain commitments, loans and other extensions of credit under the Prior Credit Agreement, in part, to fund the acquisition (the "Acquisition") by the Borrower of all the issued and outstanding capital stock of CMI International, Inc. ("CMI") from the current stockholders thereof for aggregate cash consideration (including the refinancing of existing indebtedness of CMI) of approximately $605,000,000; WHEREAS, in connection with the Acquisition, (i) the Borrower will obtain the credit facilities provided for herein, (ii) each of the Borrower's and CMI's existing senior secured credit facilities and certain of CMI's other outstanding indebtedness (the "Refinanced Debt") will be continued or refinanced and (iii) the Borrower will pay fees and expenses in connection with the foregoing (the Acquisition and the foregoing transactions are collectively referred to herein as the "Transactions"); WHEREAS, the Lenders are willing (a) to provide a senior secured revolving credit facility in an aggregate principal amount of $650,000,000, of which up to $100,000,000 will be available in certain currencies (including euro units) other than U.S. dollars, up to $130,000,000 will be available in the form of letters of credit, up to $75,000,000 will be available pursuant to a competitive bid facility and up to $100,000,000 will be available pursuant to a swing line facility and (b) to make term loans in an aggregate principal amount of 8 2 $450,000,000, of which up to the dollar equivalent amount of $100,000,000 may be denominated in Deutschemarks or euro units upon the terms and subject to the conditions set forth herein; NOW THEREFORE, in consideration of the premises and the mutual covenants contained herein, the parties hereto hereby agree that, effective on the Closing Date, the Prior Credit Agreement shall be amended and restated to read in its entirety as follows: SECTION 1. DEFINITIONS 1.1 Defined Terms. As used in this Agreement, the following terms shall have the following meanings (such terms to be equally applicable to the singular and plural forms thereof): "ABR Loans": Loans the rate of interest applicable to which is based upon the CIBC Alternate Base Rate. "Acquisition": as defined in the recitals hereto. "Administrative Agent": CIBC, together with its affiliates, as the arranger of the Commitments and as the administrative agent for the Lenders under this Agreement and the other Loan Documents. "Adjustment Date": the second Business Day following receipt by the Lenders of both (i) the financial statements required to be delivered pursuant to subsection 7.1(a) or 7.1(b), as applicable, for the most recently completed fiscal period and (ii) the related Compliance Certificate required to be delivered pursuant to subsection 7.2(b) with respect to such fiscal period. "Affiliate": as to any Person, any other Person (other than a Subsidiary) which, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person. For purposes of this definition, "control" of a Person means the power, directly or indirectly, either to (a) vote 10% or more of the securities having ordinary voting power for the election of directors of such Person or (b) direct or cause the direction of the management and policies of such Person, whether by contract or otherwise. "Aggregate Outstanding Revolving Credit": as to any Revolving Credit Lender at any time, an amount equal to the sum (calculated in accordance with subsection 4.6(b)) of (a) the aggregate principal Dollar Equivalent Amount of all Revolving Credit Loans made by such Revolving Credit Lender then outstanding, (b) such Revolving Credit Lender's Revolving Credit Commitment Percentage of the Dollar Equivalent Amount of the L/C Obligations then outstanding and (c) such Revolving Credit Lender's Revolving Credit Commitment Percentage of the aggregate principal Dollar Equivalent Amount of (I) the Competitive Loans then outstanding and (II) the Swing Line Loans (including Foreign Currency Swing Line Commitments as provided for in subsection 2.6(b)) then outstanding. 9 3 "Aggregate Revolving Credit Outstandings": at any time, an amount equal to the sum (calculated in accordance with subsection 4.6(b)) of the Dollar Equivalent Amount of (a) the aggregate then outstanding principal amount of Revolving Credit Loans, (b) the aggregate then outstanding L/C Obligations in respect of Letters of Credit, (c) the aggregate then outstanding principal amount of Swing Line Loans (including Foreign Currency Swing Line Commitments as provided for in subsection 2.6(b)) and (d) the aggregate then outstanding principal amount of Competitive Loans. "Agreement": this Third Amended and Restated Credit Agreement, as amended, supplemented or otherwise modified from time to time. "Applicable Commitment Fee Rate": during the period from the Closing Date until the first Adjustment Date, the Applicable Commitment Fee Rate shall equal 0.425%; on the first Adjustment Date and on each Adjustment Date to occur thereafter the Applicable Commitment Fee Rate will be adjusted to the applicable rate per annum set forth under the heading "Applicable Commitment Fee Rate" on Schedule B which corresponds to the Leverage Ratio determined from the financial statements and Compliance Certificate relating to the end of the fiscal quarter immediately preceding such Adjustment Date; provided, further, that in the event that the financial statements required to be delivered pursuant to subsection 7.1(a) or (b), as applicable, and the related Compliance Certificate required to be delivered pursuant to subsection 7.2(b), are not delivered when due, then (a) if such financial statements and Compliance Certificate are delivered after the date such financial statements and Compliance Certificate were required to be delivered (without giving effect to any applicable cure period) and the Applicable Commitment Fee Rate increases from that previously in effect as a result of the delivery of such financial statements and Compliance Certificate, then the Applicable Commitment Fee Rate during the period from the date upon which such financial statements and Compliance Certificate were required to be delivered (without giving effect to any applicable cure period) until the date upon which they actually are delivered shall, except as otherwise provided in clause (c) below, be the Applicable Commitment Fee Rate as so increased; (b) if such financial statements and Compliance Certificate are delivered after the date such financial statements and Compliance Certificate were required to be delivered and the Applicable Commitment Fee Rate decreases from that previously in effect as a result of the delivery of such financial statements and Compliance Certificate, then such decrease in the Applicable Commitment Fee Rate shall not become applicable until the date upon which such financial statements and Compliance Certificate actually are delivered; and (c) if such financial statements and Compliance Certificate are not delivered prior to the expiration of the applicable cure period, then, effective upon such expiration, for the period from the date upon which such financial statements and Compliance Certificate were required to be delivered (after the expiration of the applicable cure period) until two Business Days following the date upon 10 4 which such financial statements and Compliance Certificate actually are delivered, the Applicable Commitment Fee Rate shall be 0.50% per annum. "Applicable Margin": as applied to a given Type of Loan, the rate per annum determined as follows: during the period from the Closing Date until the first Adjustment Date, the Applicable Margin in respect of ABR Loans shall be .50% per annum, and the Applicable Margin in respect of Eurocurrency Loans shall be 2.00% per annum in respect of Revolving Credit Loans and Term Loans; and on the first Adjustment Date and on each Adjustment Date to occur thereafter the Applicable Margin will be adjusted to the applicable rate per annum set forth under the heading "Applicable Margin" on Schedule B which corresponds to the Leverage Ratio determined from the financial statements and Compliance Certificate relating to the end of the fiscal quarter immediately preceding such Adjustment Date; provided that in the event that the financial statements required to be delivered pursuant to subsection 7.1(a) or 7.1(b), as applicable, and the related Compliance Certificate required to be delivered pursuant to subsection 7.2(b), are not delivered when due, then (a) if such financial statements and Compliance Certificate are delivered after the date such financial statements and Compliance Certificate were required to be delivered (without giving effect to any applicable cure period) and the Applicable Margin increases from that previously in effect as a result of the delivery of such financial statements and Compliance Certificate, then the Applicable Margin in respect of the Loans during the period from the date upon which such financial statements and Compliance Certificate were required to be delivered (without giving effect to any applicable cure period) until the date upon which they actually are delivered shall, except as otherwise provided in clause (c) below, be the Applicable Margin as so increased; (b) if such financial statements and Compliance Certificate are delivered after the date such financial statements and Compliance Certificate were required to be delivered and the Applicable Margin decreases from that previously in effect as a result of the delivery of such financial statements and Compliance Certificate, then such decrease in the Applicable Margin shall not become applicable until the date upon which such financial statements and Compliance Certificate actually are delivered; and (c) if such financial statements and Compliance Certificate are not delivered prior to the expiration of the applicable cure period, then, effective upon such expiration, for the period from the date upon which such financial statements and Compliance Certificate were required to be delivered (after the expiration of the applicable cure period) until two Business Days following the date upon which such financial statements and Compliance Certificate actually are delivered, in respect of ABR Loans shall be 1.00% per annum and in respect of Eurocurrency Loans shall be 2.50% per annum. "Arrangers": CIBC and Credit Suisse First Boston, as arrangers of the credit facilities provided for herein. 11 5 "Assignee": as defined in subsection 11.6(c). "Available Foreign Currencies": the currencies set forth on Schedule C, and any other available and freely convertible non-Dollar currency selected by the Borrower and approved in writing by the Administrative Agent and the Majority Revolving Credit Lenders (or in the case of Foreign Currency Swing Line Loans, only the applicable Foreign Currency Swing Line Lender). "Available Revolving Credit Commitment": as to any Revolving Credit Lender at any time, an amount equal to the excess, if any, of (a) the amount of such Revolving Credit Lender's Revolving Credit Commitment at such time over (b) such Revolving Credit Lender's Aggregate Outstanding Revolving Credit, provided that for purposes of calculating Available Revolving Credit Commitments under subsection 2.4(a) it shall be assumed that no Swing Line Loans and no Competitive Loans are then outstanding and that no Foreign Currency Swing Line Commitments have been extended; collectively, as to all the Lenders, the "Available Revolving Credit Commitments". "Board": the Board of Governors of the Federal Reserve System or any successor thereto. "Borrower": as defined in the preamble hereto; provided that, where the term "Borrower" is used in any context that provides for more than one Borrower, it is understood that such reference shall include each Person included in the term "Borrowers". "Borrower Guarantee": the Guarantee provided by the Borrower in subsection 2.11, as the same may be amended, supplemented or otherwise modified from time to time. "Borrower Notes": the 9-1/4% Senior Notes of the Borrower due November 15, 2002, as the same may be amended, supplemented or otherwise modified from time to time in accordance with subsection 8.10. "Borrowers": collectively, the Borrower and any Subsidiary Borrower. "Borrowing Date": any Business Day specified in a notice pursuant to subsection 2.3, 2.6, 2.7, 2.9 or 3.2 as a date on which the Borrower requests that Loans be made hereunder or an Issuing Lender to issue a Letter of Credit hereunder. "Business Day": (a) when such term is used in respect of a day on which a Loan in an Available Foreign Currency is to be made, a payment is to be made in respect of such Loan, an Exchange Rate is to be set in respect of an Available Foreign Currency or any other dealing in an Available Foreign Currency is to be carried out pursuant to this Agreement, such term shall mean a London Banking Day which is also a day on which banks are open for general banking business in the city which is the principal financial center of the country of such Available Foreign Currency, (b) when such term is used to 12 6 describe a day on which a request is to be made to an Issuing Lender for issuance of a Letter of Credit or on which a Letter of Credit is to be issued, such term shall mean a day other than a Saturday, Sunday or other day on which commercial banks in the city in which such Issuing Lender's issuing office is located are authorized or required by law to close, (c) when such term is used in any context in this Agreement, such term shall mean a day other than a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to close and (d) when such term is used in relation to any matter relating to euros or euro units, such term shall mean a day on which the Trans-European Automated Real-Time Gross Settlement Express Transfer System is operating. "Capital Expenditure": as defined in subsection 8.8. "Capital Stock": any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants or options to purchase any of the foregoing. "Cash Equivalents": (a) securities with maturities of one year or less from the date of acquisition issued or fully guaranteed or insured by the United States Government or any agency thereof, (b) certificates of deposit and time deposits with maturities of one year or less from the date of acquisition and overnight bank deposits and demand deposits of any Lender or of any commercial bank having capital and surplus in excess of $500,000,000, (c) repurchase obligations of any Lender or of any commercial bank satisfying the requirements of clause (b) of this definition, having a term of not more than 30 days with respect to securities issued or fully guaranteed or insured by the United States Government, (d) commercial paper of a domestic issuer rated at least A-2 by Standard and Poor's Ratings Services ("S&P") or P-2 by Moody's Investors Service, Inc. ("Moody's"), (e) securities with maturities of one year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political subdivision or taxing authority of any such state, commonwealth or territory or by any foreign government, the securities of which state, commonwealth, territory, political subdivision, taxing authority or foreign government (as the case may be) are rated at least A by S&P or A by Moody's, (f) securities with maturities of one year or less from the date of acquisition backed by standby letters of credit issued by any Lender or any commercial bank satisfying the requirements of clause (b) of this definition, (g) in the case of any Foreign Subsidiary, (i) direct obligations of the sovereign nation (or any agency thereof) in which such Foreign Subsidiary is organized or is conducting business or in obligations fully and unconditionally guaranteed by such sovereign nation (or any agency thereof), (ii) deposits, obligations or securities of the type and maturity described in clauses (b) through (f) above of foreign obligors, which deposits, obligations or securities or obligors (or the parent entities of such obligors) have ratings described in such clauses or equivalent ratings from comparable foreign rating agencies or (iii) deposits, obligations or securities of the type and maturity described in clauses (b) through (f) above of foreign obligors (or the parent entities of such obligors), which deposits, obligations or securities or obligors (or the parent entities of such obligors) do not have the ratings described in such clauses or in clause (g)(ii) but which 13 7 are comparable in investment quality to such deposits, obligations or securities or obligors (or the parent entities of such obligors), as the case may be, or (h) shares of money market mutual or similar funds which invest exclusively in assets satisfying the requirements of clauses (a) through (f) of this definition. "C/D Published Moving Rate": on any particular date, the latest three-week moving average of daily secondary market morning offering rates in the United States for three-month certificates of deposit of major United States money market lenders, such three-week moving average (adjusted to the basis of a year of 360 days) being determined weekly for the three-week period ending on the previous Friday by the Administrative Agent on the basis of: (a) such rates reported by certificate of deposit dealers to and published by the Federal Reserve Bank of New York (as adjusted for reserves and assessments in the same manner as the C/D Quoted Rate); or (b) if such publication shall be suspended or terminated, the C/D Quoted Rate determined by the Administrative Agent on the basis of quotations for such rates by the Administrative Agent. "C/D Quoted Rate": relative to any determination of the C/D Published Moving Rate in circumstances when publication of the rates referred to in clause (a) of the definition thereof has been suspended or terminated, the rate of interest per annum determined by the Administrative Agent to be the sum (rounded upward to the nearest 1/16th of 1%) of: (a) the rate obtained by dividing (i) the average (rounded upward to the nearest 1/16th of 1%) of the bid rates quoted to the Administrative Agent, in CIBC's secondary market at approximately 10:00 A.M., New York City time (or as soon thereafter as practicable), from time to time by three certificate of deposit dealers of recognized standing selected by the Administrative Agent in its reasonable discretion for the purchase at face value of three-month certificates of deposit of CIBC in an amount approximately equal or comparable to the amount of CIBC's portion of the Loans outstanding hereunder with respect to which the C/D Quoted Rate is being determined by (ii) a percentage equal to 100% minus the average of the daily percentages specified during such period by the Board for determining the maximum reserve requirement (including, but not limited to, any marginal reserve requirement) for a member bank of the Federal Reserve System in respect of liabilities consisting of or including (among other liabilities) three-month Dollar nonpersonal time deposits in the United States; and (b) the daily average during such period of the net annual assessment rates estimated by the Administrative Agent for determining the then current annual assessment payable by CIBC to the Federal Deposit Insurance Corporation for insuring Dollar deposits of CIBC in the United States. 14 8 "Change of Control": any of the following events: (a) at any time prior to the occurrence of (i) the "senior secured bank loan rating" of the Borrower achieving a rating of an equivalent of at least BBB- by S&P and a rating of an equivalent of at least Baa3 by Moody's, (ii) the Leverage Ratio as of the end of the most recently ended fiscal quarter of the Borrower not being greater than 3.50 to 1.00, as determined from the financial statements and shown on the Compliance Certificate delivered for such fiscal quarter pursuant to subsection 7.1(a) or 7.1(b), as applicable, and subsection 7.2(b), respectively, or (iii) at least 17.5% in the aggregate of the Borrower's outstanding common stock, determined on a fully diluted basis, shall have been issued pursuant to one or more public offerings, JLL and its Affiliates are the beneficial owners (as defined under Rule 13d-3 or any successor rule or regulation promulgated under the Exchange Act) of less than 10% of the outstanding common stock of the Borrower, determined on a fully diluted basis; (b) at any time, any Person (including such Person's Affiliates and associates), other than the New Borrower Investors or any underwriter of a public offering of the Borrower's common stock, is the beneficial owner of more than 30% of the total voting power of the outstanding common stock of the Borrower, determined on a fully diluted basis, and the New Borrower Investors are in the aggregate the beneficial owner of a lesser percentage of the total voting power of the outstanding common stock of the Borrower, determined on a fully diluted basis, than such other Person and does not have the right or ability by voting power, contract or otherwise to elect or designate for election a majority of the board of directors of the Borrower; (c) during any period of two consecutive years, individuals who at the beginning of such period constituted the board of directors of the Borrower (together with any new directors whose election by such board of directors or whose nomination for election by the shareholders of the Borrower has been approved by 66-2/3% of the directors then still in office who either were directors at the beginning of such period or whose election or recommendation for election was previously so approved) cease to constitute a majority of the board of directors of the Borrower; or (d) a "Change of Control" as defined in any of the Senior Subordinated Note Indentures shall have occurred. "CIBC": Canadian Imperial Bank of Commerce, a Canadian-chartered bank, acting through its New York Agency. "CIBC Alternate Base Rate": on any particular date, a rate of interest per annum equal to the highest of: (a) the rate of interest most recently announced by CIBC as its base rate (the "CIBC Prime Rate"); (b) the Federal Funds Rate for such date plus 1/2 of 1%; and (c) the CD Published Moving Rate most recently determined by CIBC plus 1%. The CIBC Alternate Base Rate is not necessarily intended to be the lowest rate of interest charged by CIBC in connection with extensions of credit. 15 9 "Clean-Down Amount": $300,000,000. "Closing Date": the date on which the conditions precedent set forth in subsection 6.1 shall be satisfied. "CMI": as defined in the recitals hereto. "Code": the Internal Revenue Code of 1986, as amended from time to time. "Co-Documentation Agents": Merrill Lynch and Dresdner Bank AG, as co-documentation agents for the Lenders under this Agreement and the other Loan Documents. "Collateral": all assets (including assets constituting shares of Capital Stock) of the Loan Parties, now owned or hereinafter acquired, upon which a Lien is purported to be created by any Security Document. "Commitments": collectively, the Revolving Credit Commitments, the Dollar Swing Line Commitment, the L/C Commitment and the Term Loan Commitments; individually, a "Commitment". "Commitment Percentage": as to any Lender, prior to the Closing Date, the percentage of the aggregate Revolving Credit Commitments and the Term Loan Commitments constituted by such Lender's Revolving Credit Commitment and Term Loan Commitment, or following the Closing Date, the percentage representing a fraction the numerator of which is the sum of (i) the aggregate principal amount of such Lender's Term Loans then outstanding plus (ii) the Revolving Credit Commitment of such Lender (or, following the termination or expiration of the Revolving Credit Commitments, the sum of (x) the aggregate principal amount of such Lender's Revolving Credit Loans then outstanding plus (y) such Lender's Revolving Commitment Percentage of all L/C Obligations and Swing Line Loans then outstanding), and the denominator of which is the sum of (i) the aggregate principal amount of Term Loans of all Lenders then outstanding plus (ii) the aggregate Revolving Credit Commitments of all Lenders (or, following the termination or expiration of the Revolving Credit Commitments, the sum of (x) the aggregate principal amount of all Revolving Credit Loans then outstanding plus (y) the aggregate principal amount of all L/C Obligations and Swing Line Loans then outstanding). "Commonly Controlled Entity": an entity, whether or not incorporated, which is under common control with the Borrower within the meaning of Section 4001 of ERISA or is part of a group which includes the Borrower and which is treated as a single employer under Section 414 of the Code. "Competitive Bid": an offer by a Lender to make a Competitive Loan pursuant to subsection 2.7 in the form of Exhibit G-3. 16 10 "Competitive Bid Accept/Reject Letter: a notification made by the Borrower pursuant to subsection 2.7(d) in the form of Exhibit G-4. "Competitive Bid Rate": as to any Competitive Bid made by a Lender pursuant to subsection 2.7(b), (a) in the case of a Eurocurrency Loan, the Margin and (b) in the case of a Fixed Rate Loan, the fixed rate of interest offered by the Lender making such Competitive Bid. "Competitive Bid Request": a request made pursuant to subsection 2.7 in the form of Exhibit G-1. "Competitive Loan": a Loan from a Lender to the Borrower pursuant to the bidding procedure described in subsection 2.7. Each Competitive Loan shall be a Eurocurrency Competitive Loan or a Fixed Rate Loan. "Competitive Note": as defined in subsection 2.7(h). "Compliance Certificate": as defined in subsection 7.2(b). "Consolidated": when used in connection with any financial statements required to be delivered pursuant to subsection 7.1, means such term as it applies to the Borrower and its Subsidiaries on a consolidated basis, after eliminating all intercompany items. "Consolidating": when used in connection with any financial statements required to be delivered pursuant to subsection 7.1, means such term as it applies to the individual business segments of the Borrower and its Subsidiaries on a stand-alone basis. "Contractual Obligation": as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound. "Copyright, Patent and Trademark Security Agreement": the Third Amended and Restated Copyright, Patent and Trademark Security Agreement to be executed and delivered by the Borrower and certain Domestic Subsidiaries of the Borrower, substantially in the form of Exhibit B-4, as the same may be amended, supplemented or otherwise modified from time to time. "Currency" or "Currencies": collectively, Dollars and Available Foreign Currencies. "Current Assets": on any date, with respect to the Borrower and its Subsidiaries on a consolidated basis, all assets of the Borrower and its Subsidiaries on such date which would, in accordance with GAAP, be classified on a consolidated balance sheet of the Borrower as "current assets". "Current Liabilities": on any date, with respect to the Borrower and its Subsidiaries on a consolidated basis, all liabilities of the Borrower and its Subsidiaries on 17 11 such date which, in accordance with GAAP, would be classified on a consolidated balance sheet of the Borrower as "current liabilities". "December 1998 Senior Subordinated Notes": the Senior Subordinated Notes due 2008 of the Borrower in an aggregate principal amount of $250,000,000 issued pursuant to the December 1998 Senior Subordinated Notes Indenture, as the same may be amended, supplemented or otherwise modified from time to time in accordance with subsection 8.10. "December 1998 Senior Subordinated Notes Indenture": the Indenture dated as of December 14, 1998 between the Borrower and The Bank of New York, as trustee, as the same may be amended, supplemented or otherwise modified from time to time in accordance with subsection 8.10. "Default": any of the events specified in Section 9, whether or not any requirement for the giving of notice, the lapse of time, or both, or any other condition, has been satisfied. "Dollar Equivalent Amount": with respect to (i) any amount of any currency other than Dollars on any date, the equivalent amount in Dollars of such amount of currency as determined by the Administrative Agent in accordance with subsection 4.6(b) using the applicable Exchange Rate and (ii) any amount in Dollars, such amount. "Dollar Indebtedness": at any time, any Indebtedness then denominated in Dollars. "Dollar Letters of Credit": at any time, all Letters of Credit then denominated in Dollars. "Dollar Refunding Amount": as defined in subsection 2.6(e)(i). "Dollar Revolving Credit Loans": Revolving Credit Loans denominated in Dollars. "Dollar Term Loans": Term Loans denominated in Dollars. "Dollar Swing Line Commitment": the Dollar Swing Line Lender's obligation to make Dollar Swing Line Loans pursuant to subsection 2.6(a) in an aggregate principal amount not to exceed $100,000,000 at any time. "Dollar Swing Line Lender": Dresdner Bank AG, in its capacity as provider of Dollar Swing Line Loans. "Dollar Swing Line Loans": as such term is defined in subsection 2.6(a). "Dollars" and "$": dollars in lawful currency of the United States. 18 12 "Domestic Subsidiary": any Subsidiary organized under the laws of any jurisdiction within the United States. "EBITDA": for any period, with respect to the Borrower and its Subsidiaries on a consolidated basis, determined in accordance with GAAP, an amount equal to the sum of (without duplication) (a) Net Income for such period, plus (b) income taxes, excluding income taxes (either positive or negative) attributable to extraordinary and non-recurring gains or losses or sales or other dispositions of assets permitted under subsection 8.6, plus (c) Interest Expense for such period, plus (d) depreciation for such period, plus (e) amortization for such period, plus (f) any other non-cash items (including minority interests) reducing Net Income for such period, plus (g) restructuring charges and costs (whether cash or non-cash) for such period to the extent not added back to Net Income, plus (h) amortization of deferred financing costs and expenses for such period, plus (i) for any period from January 31, 1998 through July 31, 1999, up to $5,000,000 of losses incurred by a joint venture owned in part by the Borrower or a Subsidiary which joint venture becomes a Subsidiary during such period minus (j) all non-cash items increasing Net Income for such period. For the purposes of calculating EBITDA for any period of four consecutive fiscal quarters (each, a "Reference Period") pursuant to any determination of the Leverage Ratio, (i) if at any time during such Reference Period the Borrower or any Subsidiary shall have made any Material Disposition, the EBITDA for such Reference Period shall be reduced by an amount equal to the EBITDA (if positive) attributable to the property that is the subject of such Material Disposition for such Reference Period or increased by an amount equal to the EBITDA (if negative) attributable thereto for such Reference Period and (ii) if during such Reference Period the Borrower or any Subsidiary shall have made a Material Acquisition, EBITDA for such Reference Period shall be calculated after giving pro forma effect thereto as if such Material Acquisition occurred on the first day of such Reference Period. As used in this definition, "Material Acquisition" means any acquisition of property or series of related acquisitions of property that (a) constitutes assets comprising all or substantially all of an operating unit of a business or Person or constitutes all or substantially all of the common stock of a Person and (b) involves the payment of consideration (including the assumption of debt) by the Borrower and its Subsidiaries in excess of $5,000,000; and "Material Disposition" means any Disposition of property or series of related Dispositions of property that yields gross proceeds to the Borrower or any of its Subsidiaries in excess of $1,000,000. For purposes of calculating EBITDA for any period of four consecutive fiscal quarters that commences prior to the Closing Date, the Borrower may exclude certain expenses incurred by CMI and its Subsidiaries prior to the Closing Date that are not reasonably expected to continue after the Closing Date and that resulted from payments by them to affiliates of CMI not being acquired by the Borrower as part of the Acquisition. "EMU legislation": legislative measures of the European Council for the introduction of, changeover to or operation of a single or unified European currency 19 13 (whether known as the euro or otherwise), being in part the implementation of the third stage of EMU. "Environmental Costs": any and all costs or expenses (including, without limitation, reasonable attorney's and consultant's fees, investigation and laboratory fees, response costs, court costs and litigation expenses, fines, penalties, damages, settlement payments, judgments and awards), of whatever kind or nature, contingent or otherwise, arising out of, or in any way relating to, any violation of, noncompliance with or liability under any Environmental Laws or any orders, requirements, demands, or investigations of any person related to any Environmental Laws. Environmental Costs include any and all of the foregoing, without regard to whether they arise out of or are related to any past, pending or threatened proceeding of any kind. "Environmental Laws": any and all laws, rules, orders, regulations, statutes, ordinances, codes, decrees, or other legally enforceable requirements (including, without limitation, common law) of any foreign government, the United States, or any state, local, municipal or other Governmental Authority, regulating, relating to or imposing liability or standards of conduct concerning protection of the environment or of human health, or employee health and safety, as has been, is now, or may at any time hereafter be, in effect. "Environmental Permits": any and all permits, licenses, registrations, notifications, exemptions and any other authorization required under any Environmental Law. "ERISA": the Employee Retirement Income Security Act of 1974, as amended from time to time. "euro": the single currency of participating member states of the European Union. "Eurocurrency Base Rate": with respect to each day during each Interest Period pertaining to a Eurocurrency Loan, the rate per annum determined by the Administrative Agent to be the arithmetic mean of the offered rates for deposits in the applicable Currency with a term comparable to such Interest Period that appears on the Dow Jones Market Service British Bankers Assoc. Interest Settlement Rates Page (as defined below) at approximately 11:00 A.M., London time, on the second full Business Day preceding the first day of such Interest Period; provided that if there shall at any time no longer exist a Dow Jones Market Service British Bankers Assoc. Interest Settlement Rates Page, "Eurocurrency Base Rate" shall mean, with respect to each day during each Interest Period pertaining to a Eurocurrency Loan, the rate per annum equal to the rate at which CIBC is offered deposits in the applicable Currency at or about 10:00 A.M., New York City time, two Business Days prior to the beginning of such Interest Period in the interbank eurodollar market where the eurodollar and foreign currency and exchange operations in respect of its Eurocurrency Loans are then being conducted for delivery on the first day of such Interest Period for the number of days comprised therein and in an amount comparable to the amount of its Eurocurrency Loan to be outstanding during such 20 14 Interest Period. "Dow Jones Market Service British Bankers Assoc. Interest Settlement Rates Page" shall mean the display designated as Page 3750 (or Page 3740 in the case of French Francs, U.K. Pounds Sterling and Deutschemarks) on the Dow Jones Market Service System Incorporated Service (or such other page as may replace such page on such service for the purpose of displaying the rates at which deposits in the applicable Currency are offered by leading banks in the London interbank deposit market). If the Administrative Agent determines that there is no Eurocurrency Base Rate displayed on the screen for deposits denominated in the national currency unit in which any Loans are denominated, the Eurocurrency Base Rate for such Loans shall be based upon the rate displayed on the screen for the offering of deposits denominated in euro units. "Eurocurrency Competitive Loan": any Competitive Loan bearing interest at a rate determined by reference to the Eurocurrency Rate in accordance with the provisions of subsection 2.7. "Eurocurrency Loan": any Eurocurrency Competitive Loan or Eurocurrency Standby Loan. "Eurocurrency Rate": with respect to each day during each Interest Period pertaining to a Eurocurrency Loan, a rate per annum determined for such day in accordance with the following formula (rounded upward to the nearest 1/100th of 1%): Eurocurrency Base Rate ------------------------------------ 1.00 - Eurocurrency Reserve Requirements "Eurocurrency Reserve Requirements": for any day as applied to a Eurocurrency Loan, the aggregate (without duplication) of the rates (expressed as a decimal fraction) of reserve requirements in effect on such day (including, without limitation, basic, supplemental, marginal and emergency reserves under any regulations of the Board or other Governmental Authority having jurisdiction with respect thereto) dealing with reserve requirements prescribed for eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in Regulation D of such Board) maintained by a member bank of such System. "Eurocurrency Revolving Credit Loan": any Revolving Credit Loan (other than a Competitive Loan) bearing interest at a rate determined by reference to the Eurocurrency Rate in accordance with the provisions of subsection 4.1(a). "Eurocurrency Standby Loan": any Loan (other than a Competitive Loan) bearing interest at a rate determined by reference to the Eurocurrency Rate in accordance with the provisions of subsection 4.1(a). "European Swing Line Administrator": Dresdner Bank AG. "euro unit ": the currency unit of the euro. 21 15 "Event of Default": any of the events specified in Section 9, provided that any requirement for the giving of notice, the lapse of time, or both, or any other condition, has been satisfied. "Excess Cash Flow": with respect to any fiscal year of the Borrower and its Subsidiaries, on a consolidated basis, an amount equal to (a) Net Income for such fiscal year, plus (b) amortization and depreciation for such fiscal year, plus (c) extraordinary or non-recurring losses for such fiscal year, minus (d) extraordinary or non-recurring gains for such fiscal year, minus (e) Capital Expenditures made in accordance with subsection 8.8 during such fiscal year, minus (f) payments of principal on Indebtedness resulting in a permanent reduction of such Indebtedness made during such fiscal year, minus (g) amounts arising from sales of assets permitted by subsection 8.6 during such fiscal year to the extent included in Net Income and paid to the Lenders as a mandatory prepayment pursuant to subsection 4.3(c), minus (h) Investments made in accordance with subsections 8.9(c) and (g) during such fiscal year, minus (i) plant closing and restructuring costs and charges during such fiscal year, minus (j) pension plan expense to the extent not reducing Net Income for such fiscal year, minus (k) increases in Working Capital for such fiscal year, plus (l) decreases in Working Capital for such fiscal year in excess of $40,000,000. "Exchange Act": the Securities Exchange Act of 1934, as amended from time to time. "Exchange Rate": with respect to any currency other than Dollars on any date, the rate at which such currency may be exchanged into Dollars, as set forth on such date on the relevant FWDS Series Reuters currency page at or about 11:00 A.M. New York City time on such date. In the event that such rate does not appear on any such Reuters page, the "Exchange Rate" with respect to such currency shall be determined by reference to such other publicly available service for displaying exchange rates as may be agreed upon by the Administrative Agent and the Borrower or, in the absence of such agreement, such "Exchange Rate" shall instead be the Administrative Agent's spot rate of exchange in the interbank market where its currency exchange operations in respect of such currency are then being conducted, at or about 10:00 A.M. local time at such date for the purchase of Dollars with such currency for delivery two Business Days later; provided that if at the time of any such determination no such spot rate can reasonably be quoted, the Administrative Agent may use any reasonable method (including obtaining quotes from three or more market makers for such currency) as it deems appropriate to determine such rate and such determination shall be conclusive absent manifest error (without prejudice to the determination of the reasonableness of such method). "Federal Funds Rate": for any particular date, an interest rate per annum equal to the interest rate (rounded upwards, if necessary, to the nearest 1/16th of 1%) offered in the interbank market to the Administrative Agent as the overnight Federal Funds Rate at or about 10:00 A.M. New York City time on such day (or if such day is not a Business Day, for the next preceding Business Day). 22 16 "Fee Letter": the Fee Letter dated as of December 16, 1998 among CIBC, Credit Suisse First Boston and the Borrower, as amended, supplemented or otherwise modified from time to time. "Fee Mortgages": the Fee Mortgages executed and delivered by the Borrower and certain Domestic Subsidiaries, substantially in the form of Exhibit B-2, as the same may be amended, supplemented or otherwise modified from time to time. "Financing Lease": any lease of property, real or personal, the obligations of the lessee in respect of which are required in accordance with GAAP to be capitalized on a balance sheet of the lessee. "Fixed Charge Coverage Ratio": as of the end of each fiscal quarter of the Borrower, for the twelve month period ending on such date, with respect to the Borrower and its Subsidiaries on a consolidated basis, the ratio of (a) EBITDA for the applicable period, minus an amount equal to the Capital Expenditures for the applicable period, provided that for any period from January 31, 1998 through July 31, 1999 up to $5,000,000 of Capital Expenditures made by a joint venture owned in part by the Borrower or a Subsidiary which joint venture becomes a Subsidiary during such period shall be excluded from such amount to (b) the sum of (i) cash Interest Expense for the applicable period, plus (ii) scheduled payments of principal on the Term Loans for the applicable period. "Fixed Rate Loan": any Competitive Loan bearing interest at a fixed percentage rate per annum (expressed in the form of a decimal to no more than four decimal places) specified by the Lender making such Loan in its Competitive Bid. "Foreign Currency Competitive Loans": Competitive Loans demonstrated in a Currency other than Dollars. "Foreign Currency Letters of Credit": at any time, all Letters of Credit then denominated in an Available Foreign Currency. "Foreign Currency Revolving Credit Loans": at any time, all Revolving Credit Loans then denominated in an Available Foreign Currency. "Foreign Currency Subfacility Amount": $100,000,000 or, if less, the aggregate amount of the Revolving Credit Commitments then in effect. "Foreign Currency Sublimit Outstandings": at any time, the sum, without duplication, of the Dollar Equivalent Amount of (a) the aggregate then outstanding principal amount of Foreign Currency Revolving Credit Loans, (b) the aggregate then outstanding principal amount of Foreign Currency Competitive Loans and (c) the aggregate then outstanding amount of L/C Obligations in respect of Foreign Currency Letters of Credit. 23 17 "Foreign Currency Swing Line Commitment": as defined in subsection 2.6(b). "Foreign Currency Swing Line Lender": the European Swing Line Administrator (including any branch or affiliate thereof) and any other Lender (including CIBC) that, with the consent of the Borrower and the Administrative Agent, agrees to make Foreign Currency Swing Line Loans hereunder, in its capacity as a provider of such Foreign Currency Swing Line Loans. "Foreign Currency Swing Line Loan Agreement": as defined in subsection 2.6(b). "Foreign Currency Swing Line Loans": as defined in subsection 2.6(b). "Foreign Currency Swing Line Subfacility Amount": $100,000,000. "Foreign Stock Pledge Agreements": collectively, the Mexican Stock Pledge Agreement and each of the other Stock Pledge Agreements executed and delivered by the Borrower and certain of its Domestic Subsidiaries in connection with the Initial Credit Agreement, the Prior Credit Agreement or this Agreement, as the same may be amended, supplemented or otherwise modified from time to time. "Foreign Subsidiary": any Subsidiary organized under the laws of any jurisdiction outside the United States. "Funded Debt": as to any Person, all Indebtedness of such Person that matures more than one year from the date of its creation or matures within one year from such date but is renewable or extendible, at the option of such Person, to a date more than one year from such date or arises under a revolving credit or similar agreement that obligates the lender or lenders to extend credit during a period of more than one year from such date, including, without limitation, all current maturities and current sinking fund payments in respect of such Indebtedness whether or not required to be paid within one year from the date of its creation (the "Current Portion of Funded Debt") and, in the case of the Borrower, Indebtedness in respect of the Loans. "GAAP": generally accepted accounting principles in the United States consistent with those utilized in preparing the audited financial statements referred to in subsection 5.1; provided that for purposes of subsection 7.1 GAAP shall mean generally accepted accounting principles in the United States as in effect at the time of the applicable financial statements. "Governmental Authority": any nation or government, any state or other political subdivision thereof and any entity (including, without limitation, any central bank) exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government. For purposes of subsections 4.9, 4.10 and 11.15, the term "Governmental Authority" shall be deemed to include, without limitation, the National Association of Insurance Commissioners. 24 18 "Guarantee": as defined in the definition of "Guarantor." "Guarantee and Collateral Agreement": the Third Amended and Restated Guarantee and Collateral Agreement to be executed and delivered by the Borrower and each of its material Domestic Subsidiaries, substantially in the form of Exhibit B-1, as the same may be amended, supplemented or otherwise modified from time to time. "Guarantee Obligation": as to any Person (the "guaranteeing person"), any obligation of (a) the guaranteeing person or (b) another Person (including, without limitation, any bank under any letter of credit) to induce the creation of which the guaranteeing person has issued a reimbursement, counterindemnity or similar obligation, in either case guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or other obligations (the "primary obligations") of any other third Person (the "primary obligor") in any manner, whether directly or indirectly, including, without limitation, any obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or payment of any such primary obligation or (2) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect thereof; provided that the term Guarantee Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guarantee Obligation of any guaranteeing person shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee Obligation is made and (b) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee Obligation, unless such primary obligation and the maximum amount for which such guaranteeing person may be liable are not stated or determinable, in which case the amount of such Guarantee Obligation shall be such guaranteeing person's maximum reasonably anticipated liability in respect thereof as determined by the Borrower in good faith. "Guarantor": any Person which is now or hereafter a party to (a) the Guarantee and Collateral Agreement or (b) any other guarantee (a "Guarantee") hereafter delivered to the Administrative Agent guaranteeing the obligations and liabilities of each of the Loan Parties hereunder or under any other Loan Documents, including, without limitation, any guarantee delivered pursuant to subsection 7.10. "Guarantor Subsidiaries": each of the Guarantors that is a Subsidiary of the Borrower. "HLI Sub": HL Holding Germany GmbH, a limited liability company under the laws of the Federal Republic of Germany. 25 19 "IKB": IKB Deutsche Industriebank. "Indebtedness": at any date, an amount equal to (a) all indebtedness of such Person for borrowed money or for the deferred purchase price of property or services (other than current trade liabilities incurred in the ordinary course of business and payable in accordance with customary practices), (b) any other indebtedness of such Person which is evidenced by a note, bond, debenture or similar instrument, (c) all obligations of such Person under Financing Leases, (d) all obligations of such Person in respect of acceptances issued or created for the account of such Person, (e) for purposes of subsections 8.2 and Section 9(e), all obligations of such Person in respect of interest rate protection agreements, interest rate futures, interest rate options, interest rate caps and any other interest rate, currency, commodity or other hedging arrangement, (f) all liabilities of another Person secured by any Lien on any property owned by such Person whether or not such Person has assumed or otherwise become liable for the payment thereof and (g) the net investment paid by the purchasers to the Borrower or any Subsidiary under a Permitted Receivables Financing. "Initial Credit Agreement": the Credit Agreement, dated as of June 27, 1996, among the Borrower, the several banks and other financial institutions from time to time parties thereto, Canadian Imperial Bank of Commerce, as administrative agent, and Merrill Lynch Capital Corporation, as documentation agent. "Insolvency": with respect to any Multiemployer Plan, the condition that such Plan is insolvent within the meaning of Section 4245 of ERISA. "Insolvent": pertaining to a condition of Insolvency. "Intercreditor Agreement": the Intercreditor Agreement dated as of April 30, 1998, substantially in the form of Exhibit J, as the same may be amended, supplemented or otherwise modified from time to time. "Intercreditor/Lien Subordination Agreement": the Intercreditor and Lien Subordination Agreement dated as of September 30, 1998, substantially in the form of Exhibit K, as the same may be amended, supplemented or otherwise modified from time to time. "Interest Coverage Ratio": as of the end of each fiscal quarter of the Borrower for the twelve month period ending on such date, with respect to the Borrower and its Subsidiaries on a consolidated basis, the ratio of (a) EBITDA for the applicable period to (b) cash Interest Expense for the applicable period. "Interest Expense": for any period and without duplication, with respect to the Borrower and its Subsidiaries on a consolidated basis, (a) the aggregate amount of interest which would be set forth opposite the caption "interest expense" or any like caption on an income statement for the Borrower and its Subsidiaries on a consolidated basis, determined in accordance with GAAP, for such period plus, to the extent not included in such interest, (i) imputed interest included in Financing Leases for such 26 20 period, (ii) all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers' acceptance financing permitted by subsection 8.2 for such period; (iii) the net payments made in connection with Interest Rate Protection Agreements for such period, (iv) the interest portion of any deferred payment obligation for such period, (v) amortization of discount or premium, if any, for such period, (vi) all other non-cash interest expense (other than interest amortized to cost of sales) for such period, (vii) all net capitalized interest for such period and (viii) all interest paid under any Guarantee Obligation, minus (b) net payments received in connection with Interest Rate Protection Agreements for such period, minus (c) amortization of deferred financing costs and expenses for such period. "Interest Payment Date": (a) as to any ABR Loan, the last day of each April, July, October and January, (b) as to any Eurocurrency Loan having an Interest Period of three months or less, the last day of such Interest Period, and (c) as to any Eurocurrency Loan having an Interest Period longer than three months or a Fixed Rate Loan with an Interest Period of more than 90 days' duration, each day which is three months or 90 days, or a whole multiple thereof, after the first day of such Interest Period and the last day of such Interest Period. "Interest Period": (a) with respect to any Eurocurrency Loan (i) initially, the period commencing on the borrowing or conversion date, as the case may be, with respect to such Eurocurrency Loan and ending one, two, three or six months thereafter, as selected by the Borrower in its notice of borrowing or notice of conversion, as the case may be, given with respect thereto; and (ii) thereafter, each period commencing on the last day of the next preceding Interest Period applicable to such Eurocurrency Loan and ending one, two, three or six months thereafter, as selected by the Borrower by irrevocable notice to the Administrative Agent not less than three Business Days prior to the last day of the then current Interest Period with respect thereto and (b) with respect to any Fixed Rate Loan, the period commencing on the date of such Loan and ending on the date specified in the Competitive Bids in which the offers to make the Fixed Rate Loans were extended, which shall not be earlier than seven days after the date of such Loan or later than 360 days after the date of such Loan; provided that all of the foregoing provisions relating to Interest Periods are subject to the following: (1) if any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless, in the case of Eurocurrency Loans only, the result of such extension would be to carry such Interest Period into another calendar month in which event such Interest Period shall end on the immediately preceding Business Day; (2) any Interest Period that would otherwise extend beyond (a) the Revolving Credit Commitment Termination Date (in the case of Revolving Credit Loans) shall end on the Revolving Credit Commitment Termination Date, or (b) 27 21 the Term Loan Maturity Date (in the case of the Term Loans) shall end on the Term Loan Maturity Date; (3) any Interest Period pertaining to a Eurocurrency Loan that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of a calendar month; and (4) the Borrower shall select Interest Periods so as not to require a payment or prepayment of any Loan during an Interest Period for such Loan. "Interest Rate Protection Agreement": any interest rate protection agreement, interest rate future, interest rate option, interest rate cap or collar or other interest rate hedge arrangement, to or under which the Borrower or any of its Subsidiaries is a party or a beneficiary on the Closing Date or becomes a party or a beneficiary after the Closing Date. "Investment": as defined in subsection 8.9. "Issuing Lender": CIBC or any of its affiliates, and any other Lender appointed by the Borrower and CIBC, with the consent of such Lender, in its capacity as issuer of Letters of Credit hereunder. "JLL": Joseph Littlejohn & Levy Fund II, L.P., a Delaware limited partnership, or any other fund controlled by Joseph, Littlejohn & Levy. "July 1996 Senior Subordinated Notes": the Senior Subordinated Notes due 2006 of the Borrower in an aggregate principal amount of $250,000,000 issued pursuant to the July 1996 Senior Subordinated Notes Indenture, as the same may be amended, supplemented or otherwise modified from time to time in accordance with subsection 8.10. "July 1996 Senior Subordinated Notes Indenture": the Indenture dated as of June 27, 1996 between the Borrower and First Trust National Association as successor to Comerica Bank, as trustee, as the same may be amended, supplemented or otherwise modified from time to time in accordance with subsection 8.10. "July 1997 Senior Subordinated Notes": the Senior Subordinated Notes due 2007 of the Borrower in an aggregate principal amount of $150,000,000 issued pursuant to the July 1997 Senior Subordinated Notes Indenture, as the same may be amended, supplemented or otherwise modified from time to time in accordance with subsection 8.10. "July 1997 Senior Subordinated Notes Indenture": the Indenture dated as of July 22, 1997 between the Borrower and The Bank of New York, as trustee, as the same may be amended, supplemented or otherwise modified from time to time in accordance with subsection 8.10. 28 22 "June 1997 Senior Subordinated Notes": the Senior Subordinated Notes due 2007 of the Borrower in an aggregate principal amount of $250,000,000 issued pursuant to the June 1997 Senior Subordinated Notes Indenture, as the same may be amended, supplemented or otherwise modified from time to time in accordance with subsection 8.10. "June 1997 Senior Subordinated Notes Indenture": the Indenture dated as of June 30, 1997 between the Borrower and The Bank of New York, as trustee, as the same may be amended, supplemented or otherwise modified from time to time in accordance with subsection 8.10. "L/C Commitment": $130,000,000. "L/C Fee Payment Date": the last day of each April, July, October and January. "L/C Obligations": at any date, the sum of (a) the aggregate amount then available to be drawn under all outstanding Letters of Credit and (b) the aggregate amount of drawings under Letters of Credit which have not then been reimbursed by the Borrower pursuant to subsection 3.5. "L/C Participants": with respect to any Letter of Credit, collectively, all the Revolving Credit Lenders other than the Issuing Lender with respect thereto. "L/C Participating Interest": with respect to any Letter of Credit (a) in the case of the Issuing Lender with respect thereto, its interest in such Letter of Credit and any Letter of Credit Application relating thereto after giving effect to the granting of participating interests therein, if any, pursuant hereto and (b) in the case of each L/C Participant, its undivided participating interest in such Letter of Credit and any Letter of Credit Application relating thereto. "Lease Expense": for any period, the aggregate amount of fixed and contingent rentals payable by the Borrower and its Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP, with respect to leases (other than Financing Leases) of real and personal property. "Leasehold Mortgages": the Leasehold Mortgages executed and delivered by the Borrower and certain Domestic Subsidiaries of the Borrower, substantially in the form of Exhibit B-3, as the same may be amended, supplemented or otherwise modified from time to time. "Lemmerz": Lemmerz Holding GmbH. "Lemmerz Shareholders": Marianne Lemmerz, Inge Kruge-Pressl, Renate Kukwa-Lemmerz and Horst Kukwa-Lemmerz. 29 23 "Lenders": as defined in the preamble hereto and including, without limitation, the Dollar Swing Line Lender, the Foreign Currency Swing Line Lenders and each Issuing Lender. "Letters of Credit": as defined in subsection 3.1. "Letter of Credit Application": an application in such form as the applicable Issuing Lender may specify from time to time requesting such Issuing Lender to open a Letter of Credit. "Leverage Ratio": as of the end of each fiscal quarter of the Borrower, with respect to the Borrower and its Subsidiaries on a consolidated basis, the ratio of (a) Total Indebtedness on such date (provided that, for purposes of this definition, Total Indebtedness shall include Indebtedness described in clause (g) of the definition of such term only to the extent that the aggregate Dollar Equivalent Amount thereof exceeds $250,000,000) to (b) EBITDA for the twelve month period ending on such date. "Lien": any mortgage, pledge, hypothecation, deposit arrangement, encumbrance, lien (statutory or other), charge or other security interest or any preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement and any Financing Lease having substantially the same economic effect as any of the foregoing). "Loan": any loan made by any Lender pursuant to this Agreement. "Loan Documents": this Agreement, any Notes, any Letter of Credit Applications, any Letters of Credit, any Foreign Currency Swing Line Loan Agreement (and any documents or agreements executed in connection therewith), the Security Documents and any Guarantees. "Loan Parties": the Borrowers and each Subsidiary which is a party to a Loan Document, individually, a "Loan Party". "London Banking Day": any day on which banks in London are open for general banking business, including dealings in foreign currency and exchange. "Majority Lenders": at any time, Lenders the Commitment Percentages of which aggregate more than 50%. "Majority Revolving Credit Lenders": Revolving Credit Lenders the Revolving Credit Commitment Percentages of which aggregate more than 50%. "Managing Agents": collectively, the Administrative Agent, Syndication Agent and the Co- Documentation Agents. "Margin": as to any Eurocurrency Competitive Loan, the margin (expressed as a percentage rate per annum in the form of a decimal to four decimal 30 24 places) to be added to, or subtracted from, the Eurocurrency Rate to determine the interest rate applicable to such Loan, as specified in the Competitive Bid relating to such Loan. "Material Adverse Effect": a material adverse effect on (a) the business, operations, property, condition (financial or otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole or (b) the validity or enforceability of this Agreement or any of the other Loan Documents or the rights or remedies of the Administrative Agent or the Lenders hereunder or thereunder. "Materials of Environmental Concern": any gasoline or petroleum (including crude oil or any fraction thereof) or petroleum products, polychlorinated biphenyls, urea-formaldehyde insulation, asbestos or asbestos-containing materials, pollutants, contaminants, radioactivity, and any other substances of any kind, whether or not any such substance is defined as hazardous or toxic under any Environmental Law, that is regulated pursuant to or could give rise to liability under any Environmental Law. "Merrill Lynch": Merrill Lynch Capital Corporation. "Mexican Stock Pledge Agreement": the Pledge Agreement made by CMI-Texas, Inc. in favor of the Administrative Agent on behalf of the Lenders, substantially in the form of Exhibit L, as the same may be amended, supplemented or otherwise modified from time to time. "Moody's": as defined in the definition of "Cash Equivalents." "Mortgages": collectively, the Fee Mortgages and the Leasehold Mortgages. "Multiemployer Plan": a Plan which is a multiemployer plan as defined in Section 4001(a)(3) of ERISA. "national currency unit": the unit of currency (other than a euro unit) of a participating member state. "Net Cash Proceeds": (a) with respect to any sale or other disposition of assets by the Borrower or any of its Subsidiaries, the net amount equal to the aggregate amount received in cash (including any cash received by way of deferred payment pursuant to a note receivable, other non-cash consideration or otherwise, but only as and when such cash is so received) minus the sum of (i) the reasonable fees, commissions and other out-of-pocket expenses incurred by the Borrower or such Subsidiary in connection with such sale or other disposition, (ii) federal, state and local taxes incurred in connection with such sale or other disposition, whether payable at such time or thereafter and (iii) in the case of any such sale or other disposition of assets subject to a Lien securing any Indebtedness (which Lien and Indebtedness are permitted by this Agreement), any amounts required to be repaid by the Borrower or such Subsidiary in respect of such Indebtedness (other than Indebtedness under this Agreement and any Notes) in connection with such sale or other disposition; and 31 25 (b) with respect to any issuance, sale or other disposition of any debt security by the Borrower or any of its Subsidiaries (other than to the Borrower or any of its Subsidiaries), the net amount equal to the aggregate amount received in cash in connection with such issuance, sale or other disposition minus the sum of (i) the reasonable fees, commissions and other out-of-pocket expenses incurred by the Borrower or such Subsidiary in connection with such issuance, sale or other disposition and (ii) federal, state and local taxes incurred in connection with such issuance, sale or other disposition, whether payable at such time or thereafter. "Net Income": for any period, the aggregate of the net income of the Borrower and its Subsidiaries for such period on a consolidated basis, determined in accordance with GAAP, for such period; provided that there shall be excluded from Net Income (a) the net income of a Person whose net income is not consolidated with the Borrower's under GAAP (other than the amount of dividends and other distributions paid or made by such Person to the Borrower or any of its Subsidiaries during such period), (b) the net income of any Person for such period acquired in a pooling of interests transaction for any period prior to the date of such acquisition, (c) any net gain or loss for such period (net of the related tax effect thereof) resulting from any sale or other disposition of assets or any sale or other disposition of any Capital Stock of any Person by the Borrower or any of its Subsidiaries, in each case, other than in the ordinary course of business and permitted by subsection 8.6, (d) extraordinary gains and losses for such period (net of the related tax effect thereof), (e) non-recurring gains and losses for such period (net of the related tax effect thereof) and (f) cash returns on or on account of Investments permitted under subsection 8.9(g); provided that there shall be added back to Net Income non-cash restructuring charges deducted in calculating Net Income for such period. "New Borrower Investors": JLL, CIBC WG Argosy Merchant Fund 2, L.L.C., TSG Capital Fund II, L.P., Tri-Links Investment Trust, Chase Equity Associates, L.P., the Lemmerz Shareholders and their respective Affiliates. "Non-Dollar Indebtedness": at any time, all Indebtedness of the Borrower and its Subsidiaries then denominated in a currency other than Dollars. "Non-Excluded Taxes": as defined in subsection 4.11. "Non-Guarantor Subsidiary": any Subsidiary that is not a Guarantor Subsidiary. "Notes": collectively, the Revolving Credit Notes, the Swing Line Note, the Term Notes and the Competitive Notes, if any. "Notice of Foreign Currency Swing Line Refunding": as defined in subsection 2.6(e)(i). "Obligations": as defined in the Guarantee and Collateral Agreement. "Participant": as defined in subsection 11.6(b). 32 26 "participating member state ": each state so described in any EMU legislation. "PBGC": the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA. "PBGC Agreement": the Hayes Wheels Int'l Inc. - PBGC Agreement dated July 2, 1996 between the Borrower and the PBGC with respect to, among other things, the funding levels of certain pension plans of the Borrower and Hayes Lemmerz International -- Ohio, Inc., an Ohio corporation. "Permitted Hedging Arrangement": as defined in subsection 8.15. "Permitted Receivables Financing": a receivables financing transaction financed in Dollars or in a currency other than Dollars on terms and conditions that are similar to and no less favorable in any material respects to the Lenders and the Borrower than the terms of the receivables financing transaction entered into by the Borrower on April 30, 1998. "Person": an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, Governmental Authority or other entity of whatever nature. "Plan": at a particular time, any employee benefit plan which is covered by ERISA and in respect of which the Borrower or a Commonly Controlled Entity is (or, if such plan were terminated at such time, would under Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA. "Prior Credit Agreement": as defined in the recitals hereto. "Refunded Dollar Swing Line Loans": as defined in subsection 2.6(d)(i). "Register": as defined in subsection 11.6(d). "Refinanced Debt": as defined in the recitals hereto. "Reimbursement Obligations": the obligation of the Borrower to reimburse the Issuing Lenders pursuant to subsection 3.5 for amounts drawn under Letters of Credit. "Reorganization": with respect to any Multiemployer Plan, the condition that such plan is in reorganization within the meaning of Section 4241 of ERISA. "Reportable Event": any of the events set forth in Section 4043 of ERISA, other than those events as to which the thirty day notice period is waived under subsections .13, .14, .16, .18, .19 or .20 of PBGC Reg. Section 2615. 33 27 "Requirement of Law": as to any Person, the Certificate of Incorporation and By-Laws or other organizational or governing documents of such Person, and any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject. "Responsible Officer": the chief executive officer, the president and the general counsel of the Borrower or, with respect to financial matters, the chief financial officer and the treasurer of the Borrower. "Revolving Credit Commitment": as to any Revolving Credit Lender, its obligation to make Revolving Credit Loans to, and/or make or participate in Swing Line Loans made to, and/or issue or participate in Letters of Credit issued on behalf of, the Borrower in an aggregate amount not to exceed at any one time outstanding the amount set forth under such Revolving Credit Lender's name in Schedule A opposite the heading "Revolving Credit Commitment" or, in the case of any Lender that is an Assignee, the amount of the assigning Lender's Revolving Credit Commitment assigned to such Assignee pursuant to subsection 11.6 (in each case as such amount may be adjusted from time to time as provided herein). "Revolving Credit Commitment Percentage": as to any Revolving Credit Lender, the percentage of the aggregate Revolving Credit Commitments constituted by its Revolving Credit Commitment (or, if the Revolving Credit Commitments have terminated or expired, the percentage which (i) the sum of the Dollar Equivalent Amount of (a) such Lender's then outstanding Revolving Credit Loans plus (b) such Lender's interests in the aggregate L/C Obligations and Swing Line Loans then outstanding then constitutes of (ii) the sum of the Dollar Equivalent Amount of (a) the aggregate Revolving Credit Loans of all the Revolving Credit Lenders then outstanding plus (b) the aggregate L/C Obligations and Swing Line Loans then outstanding). "Revolving Credit Commitment Period": the period from and including the Closing Date to but not including the Revolving Credit Commitment Termination Date. "Revolving Credit Commitment Termination Date": the earlier of (a) February 15, 2005 or, if such date is not a Business Day, the Business Day next preceding such date and (b) the date upon which the Revolving Credit Commitments shall be terminated pursuant hereto. "Revolving Credit Lender": any Lender having a Revolving Credit Commitment or that holds outstanding Revolving Credit Loans or L/C Participating Interests hereunder. "Revolving Credit Loans": as defined in subsection 2.1. "Revolving Credit Note": as defined in subsection 2.2. 34 28 "Securities Act": the Securities Act of 1933, as amended from time to time. "Security Documents": collectively, the Guarantee and Collateral Agreement, the Borrower Guarantee, the Foreign Stock Pledge Agreements, the Copyright, Patent and Trademark Security Agreement, the Fee Mortgages and the Leasehold Mortgages and all other security documents hereafter delivered to the Administrative Agent granting a Lien on any asset or assets of any Person to secure the obligations and liabilities of the Borrower hereunder or under any of the other Loan Documents or to secure any guarantee of any such obligations and liabilities, including, without limitation, any security document delivered pursuant to subsection 7.10. "Senior Subordinated Note Indentures": collectively, the July 1996 Senior Subordinated Notes Indenture, the June 1997 Senior Subordinated Notes Indenture, the July 1997 Senior Subordinated Notes Indenture, the December 1998 Senior Subordinated Notes Indenture and any indenture pursuant to which the senior subordinated notes permitted by subsection 8.2(k) are issued. "Senior Subordinated Notes": collectively, the July 1996 Senior Subordinated Notes, the June 1997 Senior Subordinated Notes, the July 1997 Senior Subordinated Notes, the December 1998 Senior Subordinated Notes and any other senior subordinated notes permitted by subsection 8.2(k). "Short-Term Indebtedness ": all Indebtedness other than (a) Funded Debt and (b) the Current Portion of Funded Debt. "Single Employer Plan": any Plan which is covered by Title IV of ERISA, but which is not a Multiemployer Plan. "Specified Assets": those assets specified in the letter, dated as of the date hereof, from the Borrower to the Administrative Agent identifying certain assets of the Borrower and its Subsidiaries which the Borrower proposes to sell. "S&P": as defined in the definition of "Cash Equivalents." "Subsidiary": as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity ("Voting Stock") are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise qualified, all references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower. 35 29 "Subsidiary Borrower": at any time, any Wholly Owned Subsidiary (or Kalyani Lemmerz Ltd so long as the Borrower and its Subsidiaries own at least 85% of the Capital Stock of such entity) of the Borrower designated as a Subsidiary Borrower by the Borrower and consented to by the European Swing Line Administrator pursuant to subsection 2.6(g) that has not ceased to be a Subsidiary Borrower pursuant to subsection 2.6(g); the Subsidiary Borrowers as of the Closing Date are set forth on Schedule D. "Subsidiary Borrower Agreement": a Subsidiary Borrower Agreement substantially in the form of Exhibit H, as the same may be amended, supplemented or otherwise modified from time to time. "Subsidiary Borrower Obligations": collectively, the obligations of each of the Subsidiary Borrowers to make due and punctual payment of principal of, and interest on (including post-petition interest, whether or not allowed), the Foreign Currency Swing Line Loans made to it and all other monetary obligations of each of the Subsidiary Borrowers to the Managing Agents, the European Swing Line Administrator or any Lender under this Agreement or any other Loan Document. "Subsidiary Borrower Termination": a Subsidiary Borrower Termination substantially in the form of Exhibit I, as the same may be amended, supplemented or otherwise modified from time to time. "Syndication Agent": Credit Suisse First Boston, as syndication agent for the Lenders. "Swing Line Loans": collectively, Dollar Swing Line Loans and Foreign Currency Swing Line Loans. "Swing Line Note": as defined in subsection 2.6(c). "Swing Line Lenders": collectively, the Dollar Swing Line Lender and the Foreign Currency Swing Line Lenders. "Term Loan": as defined in subsection 2.8. "Term Loan Commitment": as to any Term Loan Lender, its obligation to make a Term Loan to the Borrower in Deutschemarks or euro units pursuant to subsection 2.8 in a Dollar Equivalent Amount equal to the amount set forth opposite such Term Loan Lender's name in Schedule A under the heading "Term Loan Commitment", collectively, the "Term Loan Commitments". "Term Loan Commitment Percentage": as to any Term Loan Lender, the percentage of the aggregate outstanding Term Loans of all the Term Loan Lenders constituted by such Term Loan Lender's Term Loan. "Term Loan Lender": any Lender that holds outstanding Term Loans. 36 30 "Term Loan Maturity Date": February 15, 2005. "Term Note": as defined in subsection 2.9(a). "Total Indebtedness": on any date, with respect to the Borrower and its Subsidiaries on a consolidated basis, all Indebtedness of the Borrower and its Subsidiaries on such date other than Indebtedness permitted by subsection 8.2(j). "Tranche": collectively, Eurocurrency Loans the then current Interest Periods with respect to all of which begin on the same date and end on the same later date (whether or not such Loans shall originally have been made on the same day). "Transactions": as defined in the recitals hereto. "Transferee": as defined in subsection 11.6(f). "Type": as to any Loan, its nature as an ABR Loan or a Eurocurrency Loan. "Uniform Customs": the Uniform Customs and Practice for Documentary Credits (1993 Revision), International Chamber of Commerce Publication No. 500, as the same may be amended from time to time, or, with respect to standby letters of credit, the International Standby Practices (1999), International Chamber of Commerce Publication No. 590, as the same may be amended from time to time. "United States": the United States of America. "Wholly Owned Subsidiary": means any Subsidiary, all of the outstanding voting securities (other than directors' qualifying shares or shares held pursuant to similar requirements of law in respect of Foreign Subsidiaries, other than shares of Lemmerz representing not more than .01% of the voting securities thereof and other than shares of Borlem representing not more than 1% of the voting securities thereof) of which are owned, directly or indirectly, by the Borrower. "Working Capital": on any date, with respect to the Borrower and its Subsidiaries on a consolidated basis, the Current Assets (other than cash and Cash Equivalents) of the Borrower and its Subsidiaries on such date, minus the Current Liabilities (other than the current portion of long term Indebtedness and short term Indebtedness of Foreign Subsidiaries) of the Borrower and its Subsidiaries on such date. 1.2 Other Definitional Provisions. (a) Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in any Notes, any other Loan Documents or any certificate or other document made or delivered pursuant hereto. (b) As used herein and in any Notes, any other Loan Documents and any certificate or other document made or delivered pursuant hereto, accounting terms relating to the Borrower and its Subsidiaries not defined in subsection 1.1 and accounting terms partly defined 37 31 in subsection 1.1, to the extent not defined, shall have the respective meanings given to them under GAAP. (c) The words "hereof", "herein" and "hereunder" and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, subsection, Schedule and Exhibit references are to this Agreement unless otherwise specified. (d) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms. (e) Without prejudice to the respective liabilities of the Borrower to the Lenders and the Lenders to the Borrower under or pursuant to this Agreement, each provision of this Agreement shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time specify to be necessary or appropriate to reflect the introduction of or changeover to the euro in participating member states. SECTION 2. AMOUNT AND TERMS OF COMMITMENTS 2.1 Revolving Credit Commitments. (a) Subject to the terms and conditions hereof, each Revolving Credit Lender severally agrees to continue or make revolving credit loans (each a "Revolving Credit Loan", collectively, "Revolving Credit Loans") to the Borrower from time to time during the Revolving Credit Commitment Period in Dollars and/or one or more Available Foreign Currencies so long as after giving effect thereto (i) the Available Revolving Credit Commitment of such Revolving Credit Lender would not be less than zero, (ii) the Aggregate Revolving Credit Outstandings would not exceed the aggregate amount of the Revolving Credit Commitments of all the Revolving Credit Lenders, and (iii) the then Dollar Equivalent Amount of the Foreign Currency Sublimit Outstandings would not exceed the Foreign Currency Subfacility Amount. During the Revolving Credit Commitment Period, the Borrower may use the Revolving Credit Commitments by borrowing, prepaying the Revolving Credit Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof, provided that the Aggregate Outstanding Revolving Credit (other than in respect of the undrawn portion of any Letters of Credit) at any time during any consecutive thirty day period during each fiscal year of the Borrower (such thirty day period during each fiscal year to be selected by the Borrower) may in no event exceed the Clean-Down Amount (as certified to the Administrative Agent pursuant to subsection 7.2(b)(iv)). (b) The Revolving Credit Loans may from time to time be (i) Eurocurrency Loans, (ii) ABR Loans (in the case of Dollar Revolving Credit Loans only) or (iii) a combination thereof, as determined by the Borrower and notified to the Administrative Agent in accordance with subsections 2.3 and 4.4, provided that no Revolving Credit Loan shall be made as a Eurocurrency Loan after the day that is one month prior to the Revolving Credit Commitment Termination Date. 2.2 Revolving Credit Notes. The Borrower agrees that, upon the request to the Administrative Agent by any Revolving Credit Lender made on or prior to the Closing Date or in connection with any assignment pursuant to subsection 11.6, to evidence such Lender's 38 32 Revolving Credit Loans the Borrower will execute and deliver to such Lender a promissory note substantially in the form of Exhibit A-1, with appropriate insertions as to payee, date and principal amount (each, as amended, supplemented, replaced or otherwise modified from time to time, a "Revolving Credit Note"), payable to the order of such Lender and in a principal amount equal to the lesser of (a) the amount set forth under such Lender's name in Schedule A opposite the heading "Revolving Credit Commitment" and (b) the aggregate unpaid principal amount of all Revolving Credit Loans made by such Lender to such Borrower. Each Revolving Credit Note shall (x) be dated the Closing Date, (y) be stated to mature on the Revolving Credit Commitment Termination Date and (z) provide for the payment of interest in accordance with subsection 4.1. 2.3 Procedure for Revolving Credit Borrowing. The Borrower may borrow under the Revolving Credit Commitments during the Revolving Credit Commitment Period on any Business Day, provided that the Borrower shall give the Administrative Agent irrevocable notice (which notice must be received by the Administrative Agent prior to 11:00 A.M., New York City time, (a) four Business Days (or three Business Days if the Revolving Credit Loans requested are to be denominated in Dollars) prior to the requested Borrowing Date, if all or any part of the requested Revolving Credit Loans are to be initially Eurocurrency Loans or (b) on the requested Borrowing Date, otherwise), specifying (i) the amount to be borrowed, (ii) the requested Borrowing Date, (iii) whether the borrowing is to be of Eurocurrency Loans, ABR Loans or a combination thereof, (iv) the applicable Currency and (v) if the borrowing is to be entirely or partly of Eurocurrency Loans, the respective amount of such Type of Loan and the respective length of the initial Interest Period therefor. Each borrowing under the Revolving Credit Commitments shall be in an amount equal to (x) in the case of ABR Loans, $1,000,000 or a whole multiple of $500,000 in excess thereof (or, if the aggregate Available Revolving Credit Commitments then in effect are less than $1,000,000, such lesser amount) and (y) in the case of Eurocurrency Loans, an amount the then Dollar Equivalent Amount of which is $5,000,000 or a whole multiple of $1,000,000 in excess thereof. Upon receipt of any such notice from the Borrower, the Administrative Agent shall promptly notify each Revolving Credit Lender thereof. Each Revolving Credit Lender will make the amount of its pro rata share of each borrowing available to the Administrative Agent for the account of the Borrower at the office of the Administrative Agent specified from time to time by the Administrative Agent prior to (i) in the case of borrowings in Dollars, 1:00 P.M., New York City time or (ii) in the case of borrowings in Available Foreign Currencies, 10:00 A.M., New York City time, on the Borrowing Date requested by the Borrower in the requested Currency in funds immediately available to the Administrative Agent. Such borrowing will then be made available to the Borrower by the Administrative Agent crediting the account of the Borrower as previously specified in writing by the Borrower to the Administrative Agent with the aggregate of the amounts made available to the Administrative Agent by the Revolving Credit Lenders and in like funds as received by the Administrative Agent. 2.4 Commitment Fees; Other Fees. (a) The Borrower agrees to pay to the Administrative Agent, for the account of each Revolving Credit Lender, a commitment fee for the period from and including the first day of the Revolving Credit Commitment Period to the Revolving Credit Commitment Termination Date, computed at the Applicable Commitment Fee Rate on the average daily amount of the Available Revolving Credit Commitment of such Lender during the period for which payment is made, payable quarterly in arrears on the last day of each 39 33 April, July, October and January and on the Revolving Credit Commitment Termination Date, commencing on the first of such days to occur after the Closing Date. (b) The Borrower shall pay to the Managing Agents and the Lenders the amounts set forth in the Fee Letter on the dates provided for therein. 2.5 Termination or Reduction of Revolving Credit Commitments. (a) The Borrower shall have the right, upon not less than three Business Days' notice to the Administrative Agent (which will promptly notify the Lenders thereof), to terminate the Revolving Credit Commitments or, from time to time, to reduce the amount of the Revolving Credit Commitments; provided that no such termination or reduction shall be permitted if, after giving effect thereto and to any prepayments of the Revolving Credit Loans, the Swing Line Loans and the Competitive Loans (to the extent permitted by the applicable Lender) made on the effective date thereof, (i) the Available Revolving Credit Commitment of each Revolving Credit Lender would be less than zero, (ii) the Aggregate Revolving Credit Outstandings would exceed the aggregate amount of the Revolving Credit Commitments of all the Revolving Credit Lenders or (iii) the then Dollar Equivalent Amount of the Foreign Currency Sublimit Outstandings would exceed the Foreign Currency Subfacility Amount. Any such reduction shall be in an amount equal to $1,000,000 or a whole multiple of $500,000 in excess thereof and shall reduce permanently the Revolving Credit Commitments then in effect. (b) The Revolving Credit Commitments shall be automatically reduced in connection with any reductions of the Revolving Credit Commitments in accordance with subsection 4.3(e). Any such reduction shall reduce permanently the Revolving Credit Commitments then in effect. 2.6 Swing Line Commitments. (a) Subject to the terms and conditions hereof, the Dollar Swing Line Lender agrees to make swing line loans denominated in Dollars ("Dollar Swing Line Loans") to the Borrower from time to time during the Revolving Credit Commitment Period in an aggregate principal amount at any one time outstanding, when added to the Dollar Equivalent Amount of then outstanding Foreign Currency Swing Line Commitments, not to exceed the Dollar Swing Line Commitment, provided that no Dollar Swing Line Loan shall be required to be made hereunder unless, after giving effect thereto, (i) the Available Revolving Credit Commitment of each Revolving Credit Lender would not be less than zero and (ii) the Aggregate Revolving Credit Outstandings would not exceed the aggregate amount of the Revolving Credit Commitments of all the Revolving Credit Lenders. Amounts borrowed by the Borrower under this subsection 2.6(a) may be repaid and, through but excluding the Revolving Credit Commitment Termination Date, reborrowed. All Dollar Swing Line Loans shall be made as ABR Loans and shall not be entitled to be converted into Eurocurrency Loans. The Borrower shall give the Dollar Swing Line Lender irrevocable notice (which notice must be received by the Dollar Swing Line Lender prior to 12:00 Noon, New York City time) on the requested Borrowing Date specifying the amount of the requested Dollar Swing Line Loan which shall be in an amount equal to $500,000 or a whole multiple of $100,000 in excess thereof. The proceeds of each Dollar Swing Line Loan will be made available on the date requested by the Dollar Swing Line Lender to the Borrower by crediting the account of the Borrower as specified in writing by the Borrower to the Administrative Agent with such proceeds in Dollars. 40 34 (b) (i) The Borrowers may, subject to the terms and conditions of this Agreement, borrow swing line loans denominated in Available Foreign Currencies ("Foreign Currency Swing Line Loans") from any Foreign Currency Swing Line Lender from time to time during the Revolving Credit Commitment Period upon the extension of a Foreign Currency Swing Line Commitment (as hereafter defined) on such terms and conditions as may be agreed to (any such agreement, a "Foreign Currency Swing Line Loan Agreement") by any of the Borrowers and such Foreign Currency Swing Line Lender, including, but not limited to, the applicable Available Foreign Currency, the procedures for the Foreign Currency Swing Line Lender to make the proceeds of such Foreign Currency Swing Line Loans available to such Borrower (including, without limitation, the lending installation from which such Foreign Currency Swing Line Loan is to be made), the applicable interest rate, the manner of calculation of the applicable interest rate, the maximum aggregate principal Dollar Equivalent Amount of Foreign Currency Swing Line Loans that such Foreign Currency Swing Line Lender shall commit to lend to such Borrower in such Available Foreign Currency (such amount, a "Foreign Currency Swing Line Commitment") and the duration of such Foreign Currency Swing Line Commitment, provided that such terms and conditions shall not be inconsistent with the limitations on Foreign Currency Swing Line Commitments and Foreign Currency Swing Line Loans set forth in this subsection and elsewhere in this Agreement. No loan made under a Foreign Currency Swing Line Commitment shall be treated as a Foreign Currency Swing Line Loan for purposes of this Agreement and the other Loan Documents, including, but not limited to, for the purposes of entitling such loans to the benefits of subsection 2.6(e), unless and until (i) the Borrower and the applicable Foreign Currency Swing Line Lender shall have informed the Administrative Agent and the European Swing Line Administrator in writing of the Dollar Equivalent Amount of the Foreign Currency Swing Line Commitment of such Foreign Currency Swing Line Lender and all other terms and conditions thereof and (ii) the European Swing Line Administrator shall have confirmed that the Foreign Currency Swing Line Commitment to be extended (when added to the Dollar Equivalent Amount (calculated in each case on the date such Foreign Currency Swing Line Commitment is originally extended) of all other Foreign Currency Swing Line Commitments then in effect) would not exceed the Foreign Currency Swing Line Subfacility Amount. At any time, and from time to time thereafter, subject to the terms and conditions of this Agreement, such Borrower may borrow Foreign Currency Swing Line Loans from such Foreign Currency Swing Line Lender in an amount equal to the then unused amount of the Foreign Currency Swing Line Commitment of such Foreign Currency Swing Line Lender. (ii) Except any determinations of the unused amount of any Foreign Currency Swing Line Commitment for purposes of the final sentence of the preceding paragraph, as expressly provided otherwise herein or to the extent the context otherwise requires, in any determination of the aggregate amount of outstanding Foreign Currency Swing Line Loans at any time for all purposes of this Agreement and the other Loan Documents, the full Dollar Equivalent Amount (calculated in each case on the date such Foreign Currency Swing Line Commitment is originally extended) of each Foreign Currency Swing Line Commitment of each Foreign Currency Swing Line Lender (other than CIBC) shall be deemed to be outstanding as Foreign Currency Swing Line Loans, whether borrowed or not borrowed, and only the aggregate principal Dollar Equivalent Amount of the then outstanding Foreign Currency Swing Line Loans made by CIBC shall be included in such determination; provided, further, that at no time shall any Foreign Currency Swing Line Loan Commitment be extended, or Foreign Currency Swing Line Loan be made, by a Foreign Currency Swing Line Lender or accepted by any of the Borrowers if, after 41 35 giving effect thereto, (i) the aggregate Dollar Equivalent Amount (calculated, in the case of each Foreign Currency Swing Line Commitment, on the date such Foreign Currency Swing Line Commitment is originally extended) of the Foreign Currency Swing Line Loans and of the Foreign Currency Swing Line Commitments (as the case may be as provided for above) of all the Foreign Currency Swing Line Lenders exceed the Foreign Currency Swing Line Subfacility Amount or (ii) the sum of (A) the aggregate principal amount of the Dollar Swing Line Loans and (B) aggregate Dollar Equivalent Amount (calculated, in the case of each Foreign Currency Swing Line Commitment, on the date such Foreign Swing Line Commitment is originally extended) of the Foreign Currency Swing Line Loans and the Foreign Currency Swing Line Commitments (as the case may be as provided for above) exceed the Dollar Swing Line Commitment and provided, further, however, that at no time shall any Foreign Currency Swing Line Loan Commitment be extended, or Foreign Currency Swing Line Loan be made, by a Foreign Currency Swing Line Lender or accepted by any of the Borrowers if, after giving effect thereto, (I) the Available Revolving Credit Commitment of a Revolving Credit Lender would be less than zero or (II) the Aggregate Revolving Credit Outstandings would exceed the aggregate amount of the Revolving Credit Commitments of all the Revolving Credit Lenders. (c) The Borrower agrees that, upon the request to the Administrative Agent by the Dollar Swing Line Lender made on or prior to the Closing Date or in connection with any assignment pursuant to subsection 11.6, to evidence the Dollar Swing Line Loans the Borrower will execute and deliver to the Dollar Swing Line Lender a promissory note substantially in the form of Exhibit A-3, with appropriate insertions (as the same may be amended, supplemented, replaced or otherwise modified from time to time, the "Swing Line Note"), payable to the order of the Dollar Swing Line Lender and representing the obligation of the Borrower to pay the amount of the Dollar Swing Line Commitment or, if less, the unpaid principal amount of the Dollar Swing Line Loans made to the Borrower by the Dollar Swing Line Lender, with interest thereon as prescribed in subsection 4.1. The Swing Line Note shall (a) be dated the Closing Date, (b) be stated to mature on the Revolving Credit Commitment Termination Date and (c) provide for the payment of interest in accordance with subsection 4.1. (d) (i) The Dollar Swing Line Lender, at any time in its sole and absolute discretion may, and, at any time as there shall be a Dollar Swing Line Loan outstanding for more than seven Business Days, the Dollar Swing Line Lender shall, on behalf of the Borrower (which hereby irrevocably directs and authorizes the Dollar Swing Line Lender to act on its behalf), request each Revolving Credit Lender, including the Swing Line Lenders, to make a Revolving Credit Loan as an ABR Loan in Dollars in an amount equal to such Revolving Credit Lender's Revolving Credit Commitment Percentage of the principal amount of all of the Dollar Swing Line Loans (the "Refunded Dollar Swing Line Loans") outstanding on the date such notice is given; provided that the provisions of this subsection shall not affect the obligations of the Borrower to prepay Dollar Swing Line Loans in accordance with the provisions of subsection 4.2. Unless the Revolving Credit Commitments shall have expired or terminated for any reason, including but not limited to, the occurrence of any of the events described in paragraph (f) of Section 9 with respect to the Borrower (in which event the procedures of paragraph (d)(ii) of this subsection 2.6 shall apply), and without regard to whether the conditions precedent in subsection 6.2 are satisfied, each Revolving Credit Lender will make the proceeds of its Revolving Credit Loan available to the Administrative Agent for the account of the Dollar Swing Line Lender at the office of the Administrative Agent specified by the Administrative Agent prior to 12:00 42 36 Noon, New York City time, in funds immediately available on the Business Day next succeeding the date such notice is given. The proceeds of such Revolving Credit Loans shall be immediately applied to repay the Refunded Dollar Swing Line Loans. (ii) If the Revolving Credit Commitments shall expire or terminate (for any reason, including but not limited to the occurrence of any of the events described in paragraph (f) of Section 9 with respect to the Borrower) at any time while Dollar Swing Line Loans are outstanding, each Revolving Credit Lender shall, at the option of the Dollar Swing Line Lender exercised reasonably, either (i) notwithstanding the expiration or termination of the Revolving Credit Commitments and without regard to whether the conditions precedent in subsection 6.2 are satisfied, make a Revolving Credit Loan as an ABR Loan (which Revolving Credit Loan shall be deemed a "Revolving Credit Loan" for all purposes of this Agreement and the other Loan Documents) or (ii) purchase an undivided participating interest in such Dollar Swing Line Loans, in either case, in an amount equal to such Revolving Credit Lender's Revolving Credit Commitment Percentage (determined on the date of, and immediately prior to, expiration or termination of the Revolving Credit Commitments), of the aggregate principal amount of such Dollar Swing Line Loans. Each Revolving Credit Lender will make the proceeds of any Revolving Credit Loan made pursuant to the immediately preceding sentence available to the Administrative Agent for the account of the Dollar Swing Line Lender at the office of the Administrative Agent specified by the Administrative Agent prior to 12:00 Noon, New York City time, in funds immediately available on the Business Day next succeeding the date on which the Revolving Credit Commitments expire or terminate. The proceeds of such Revolving Credit Loans shall be immediately applied to repay the Dollar Swing Line Loans outstanding on the date of termination or expiration of the Revolving Credit Commitments. In the event that the Revolving Credit Lenders purchase undivided participating interests pursuant to the first sentence of this paragraph (d)(ii), each Revolving Credit Lender shall immediately transfer to the Dollar Swing Line Lender, in immediately available funds, the amount of its participation. (iii) Whenever, at any time after the Dollar Swing Line Lender has received from any Revolving Credit Lender such Revolving Credit Lender's participating interest in a Dollar Swing Line Loan and the Dollar Swing Line Lender receives any payment on account thereof, the Dollar Swing Line Lender will distribute to such Revolving Credit Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Revolving Credit Lender's participating interest was outstanding and funded); provided that in the event that such payment received by the Dollar Swing Line Lender is required to be returned such Revolving Credit Lender will return to the Dollar Swing Line Lender any portion thereof previously distributed by the Dollar Swing Line Lender to it. (e) (i) Subject to the provisions of the second sentence of subsection 2.6(b)(i), if any Event of Default shall occur and be continuing, any Foreign Currency Swing Line Lender may, in its sole and absolute discretion, direct that the Foreign Currency Swing Line Loans owing to it be refunded, by delivering a notice (with such detail as the Administrative Agent shall request, a "Notice of Foreign Currency Swing Line Refunding") to the Administrative Agent and the European Swing Line Administrator. Upon receipt of such notice, the Administrative Agent shall (i) promptly give notice of the contents thereof to the Revolving Credit Lenders and, unless an Event of Default described in paragraph (f) of Section 9 in respect of the Borrower has 43 37 occurred, to the Borrower and (ii) calculate, without regard to the first sentence of subsection 2.6(b)(ii), the Dollar Equivalent Amount of the aggregate principal amount of the Foreign Currency Swing Line Loans of such Foreign Currency Swing Line Lender outstanding as of the date the Administrative Agent received such Notice of Foreign Currency Swing Line Refunding (the "Dollar Refunding Amount"). Each such Notice of Foreign Currency Swing Line Refunding shall be deemed to constitute delivery by the Borrower of a notice to the Administrative Agent requesting each Revolving Credit Lender to make a Revolving Credit Loan denominated in Dollars in an amount equal to such Revolving Credit Lender's Revolving Credit Commitment Percentage of the Dollar Refunding Amount as an ABR Loan. Unless the Revolving Credit Commitments shall have expired or terminated for any reason, including but not limited to, the occurrence of any of the events described in paragraph (f) of Section 9 hereto with respect to the Borrower (in which event the procedures of paragraph (e)(ii) of this subsection 2.6 shall apply), and without regard to whether the conditions precedent in subsection 6.2 are satisfied, each Revolving Credit Lender will make the proceeds of its Revolving Credit Loan available to the Administrative Agent for the account of the applicable Foreign Currency Swing Line Lender at the office of the Administrative Agent specified by the Administrative Agent prior to 12:00 Noon, New York City time, in funds immediately available on the Business Day next succeeding the date such notice is given; provided that the Revolving Credit Lenders shall not be obligated to make Revolving Credit Loans and purchase participating interests pursuant to this subsection 2.6(e) in an aggregate amount that exceeds the sum of (I) $5,000,000 plus (II) the Foreign Currency Swing Line Subfacility Amount. The proceeds of such Revolving Credit Loans shall be immediately applied to repay to the applicable Foreign Currency Swing Line Lender the Dollar Refunding Amount. (ii) If the Revolving Credit Commitments shall expire or terminate (for any reason, including but not limited to the occurrence of any of the events described in paragraph (f) of Section 9 hereto with respect to the Borrower) at any time while Foreign Currency Swing Line Loans made by a Foreign Currency Swing Line Lender are outstanding, each Revolving Credit Lender shall, at the option of the applicable Foreign Currency Swing Line Lender exercised reasonably, either (i) notwithstanding the expiration or termination of the Revolving Credit Commitments and without regard to whether the conditions precedent in subsection 6.2 are satisfied, make a Revolving Credit Loan as an ABR Loan denominated in Dollars (which Revolving Credit Loan shall be deemed a "Revolving Credit Loan" for all purposes of this Agreement and the other Loan Documents) or (ii) purchase an undivided participating interest in the outstanding Foreign Currency Swing Line Loans of such Foreign Currency Swing Line Lender, in either case, in a Dollar Equivalent Amount equal to such Revolving Credit Lender's Revolving Credit Commitment Percentage determined on the date of, and immediately prior to, expiration or termination of the Revolving Credit Commitments, of the aggregate principal amount of such Foreign Currency Swing Line Loans (calculated without regard to the first sentence of subsection 2.6(b)(ii)); provided that the Revolving Credit Lenders shall not be obligated to make Revolving Credit Loans and purchase participating interests pursuant to this subsection 2.6(e) in an aggregate amount that exceeds the sum of (I) $5,000,000 plus (II) the Foreign Currency Swing Line Subfacility Amount. Each Revolving Credit Lender will make the proceeds of any Revolving Credit Loan made pursuant to the immediately preceding sentence available to the Administrative Agent for the account of the applicable Foreign Currency Swing Line Lender at the office of the Administrative Agent prior to 12:00 Noon, New York City time, in funds immediately available on the Business Day next succeeding the date on which the 44 38 Revolving Credit Commitments expire or terminate. The proceeds of such Revolving Credit Loans shall be immediately applied to repay the Foreign Currency Swing Line Loans of such Foreign Currency Swing Line Lender outstanding on the date of termination or expiration of the Revolving Credit Commitments. In the event that the Revolving Credit Lenders purchase undivided participating interests pursuant to the first sentence of this paragraph (e)(ii), each Revolving Credit Lender shall immediately transfer to the applicable Foreign Currency Swing Line Lender, in immediately available funds, the amount of its participation. (iii) Whenever, at any time after a Foreign Currency Swing Line Lender has received from any Revolving Credit Lender such Revolving Credit Lender's participating interest in a Foreign Currency Swing Line Loan made by such Foreign Currency Swing Line Lender and such Foreign Currency Swing Line Lender receives any payment on account thereof, such Foreign Currency Swing Line Lender will distribute to such Revolving Credit Lender its participating interest in such amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Revolving Credit Lender's participating interest was outstanding and funded); provided that in the event that such payment received by such Foreign Currency Swing Line Lender is required to be returned such Revolving Credit Lender will return to such Foreign Currency Swing Line Lender any portion thereof previously distributed by such Foreign Currency Swing Line Lender to it. (f) Notwithstanding anything herein to the contrary, neither the Dollar Swing Line Lender nor any Foreign Currency Swing Line Lender shall be obligated to make any Swing Line Loan if the conditions set forth in subsection 6.2 have not been satisfied. (g) The Borrower may designate any Wholly Owned Subsidiary of the Borrower as a Subsidiary Borrower by delivery to the Administrative Agent and the European Swing Line Administrator of a Subsidiary Borrower Agreement executed by such Subsidiary and the Borrower. Upon such delivery and the written consent of the European Swing Line Administrator to such designation, such Subsidiary shall for all purposes of this Agreement be a Subsidiary Borrower and a party to this Agreement until the Borrower shall have executed and delivered to the Administrative Agent and the European Swing Line Administrator a Subsidiary Borrower Termination with respect to such Subsidiary, whereupon such Subsidiary shall cease to be a Subsidiary Borrower and a party to this Agreement. Notwithstanding the preceding sentence, no Subsidiary Borrower Termination will become effective as to any Subsidiary Borrower at a time when any principal of, interest on or any other amount in respect of any extension of credit to such Subsidiary Borrower shall be outstanding under any Foreign Currency Swing Line Loan Agreement, provided that such Subsidiary Borrower Termination shall be effective to terminate such Subsidiary Borrower's right to make further borrowings under any Foreign Currency Swing Line Loan Agreement. 2.7 Competitive Bid Procedure. (a) To request Competitive Bids, the Borrower shall hand deliver or telecopy to the Administrative Agent a duly completed Competitive Bid Request in the form of Exhibit G-1, to be received by the Administrative Agent (i) in the case of a Eurocurrency Competitive Loan, not later than 2:00 p.m., New York City time, four Business Days before a proposed Competitive Loan and (ii) in the case of a Fixed Rate Loan, not later than 2:00 p.m., New York City time, one Business Day before a proposed Competitive Loan. Each Competitive Bid Request shall specify the requested Currency. No ABR Loan shall be requested 45 39 in, or made pursuant to, a Competitive Bid Request. A Competitive Bid Request that does not conform substantially to the format of Exhibit G-1 may be rejected in the Administrative Agent's sole discretion, and the Administrative Agent shall promptly notify the Borrower of such rejection by telecopier. Such request for Competitive Bids shall in each case refer to this Agreement and specify (i) whether the Loan then being requested is to be a Eurocurrency Loan or a Fixed Rate Loan, (ii) the date of such Loan and the aggregate principal Dollar Equivalent Amount thereof, which shall be in a minimum principal Dollar Equivalent Amount of $5,000,000 and in an integral multiple of $1,000,000, and (iii) the Interest Period with respect thereto (which may not end after the Revolving Credit Commitment Termination Date). No Competitive Loan shall be requested in an aggregate principal Dollar Equivalent Amount such that after giving effect to the making of such Competitive Loan, (a) the aggregate principal Dollar Equivalent Amount of all outstanding Competitive Loans would exceed $75,000,000, (b) the Dollar Equivalent Amount of the Foreign Currency Sublimit Outstandings then outstanding would exceed the Foreign Currency Sublimit Amount, (c) the Available Revolving Credit Commitment of such Revolving Credit Lender would be less than zero, or (d) the Aggregate Revolving Credit Outstandings would exceed the aggregate amount of the Revolving Credit Commitments of all the Revolving Credit Lenders. Promptly after its receipt of a Competitive Bid Request that is not rejected as aforesaid, the Administrative Agent shall invite by telecopier (in the form set forth in Exhibit G-2) the Lenders to bid, on the terms and subject to the conditions of this Agreement, to make Competitive Loans pursuant to such Competitive Bid Request. (b) Each Lender may, in its sole discretion, make one or more Competitive Bids to the Borrower responsive to a Competitive Bid Request. Each Competitive Bid by a Lender must be received by the Administrative Agent via telecopier, in the form of Exhibit G-3, (i) in the case of a Eurocurrency Competitive Loan, not later than 9:30 a.m., New York City time, three Business Days before a proposed Competitive Loan and (ii) in the case of a Fixed Rate Loan, not later than 9:30 a.m., New York City time, on the day of a proposed Competitive Loan. Multiple Competitive Bids will be accepted by the Administrative Agent. Competitive Bids that do not conform substantially to the format of Exhibit G-3 may be rejected by the Administrative Agent after conferring with, and upon the instruction of, the Borrower, and the Administrative Agent shall notify the Lender making such nonconforming Competitive Bid of such rejection as soon as practicable. Each Competitive Bid shall refer to this Agreement and specify (i) the principal Dollar Equivalent Amount (which shall be in a minimum principal Dollar Equivalent Amount of $5,000,000 and in an integral multiple of $1,000,000 and which may equal the entire principal amount of the Competitive Loan requested by the Borrower) of the Competitive Loan or Loans that the applicable Lender is willing to make to the Borrower, (ii) the Competitive Bid Rate or Rates at which such Lender is prepared to make such Competitive Loan or Loans and (iii) the Interest Period or Interest Periods with respect thereto. A Competitive Bid submitted by a Lender pursuant to this paragraph (b) shall be irrevocable after the latest time at which the other Lenders are required to submit their Competitive Bids to the Administrative Agent pursuant to the foregoing provisions of this paragraph. (c) The Administrative Agent shall promptly notify the Borrower by telecopier of all the Competitive Bids made, the Competitive Bid Rate or Rates and the principal amount of each Competitive Loan in respect of which a Competitive Bid was made and the identity of the Lender that made each Competitive Bid. The Administrative Agent shall send a copy of all 46 40 Competitive Bids to the Borrower for its records as soon as practicable after completion of the bidding process set forth in this subsection 2.7. (d) The Borrower may in its sole and absolute discretion, subject only to the provisions of this paragraph (d), accept or reject any Competitive Bid referred to in paragraph (c) above. The Borrower shall notify the Administrative Agent by telephone, promptly confirmed by telecopier in the form of a Competitive Bid Accept/Reject Letter whether and to what extent it has decided to accept or reject any or all of the Competitive Bids referred to in paragraph (c) above, (i) in the case of a Eurocurrency Competitive Loan, not later than 10:30 a.m., New York City time, three Business Days before a proposed Competitive Loan and (ii) in the case of a Fixed Rate Loan, not later than 10:30 a.m., New York City time, on the day of a proposed Competitive Loan; provided that (A) the failure by the Borrower to give such notice shall be deemed to be a rejection of all the Competitive Bids referred to in paragraph (c) above, (B) the Borrower shall not accept a Competitive Bid made at a particular Competitive Bid Rate if the Borrower has decided to reject a Competitive Bid made at a lower Competitive Bid Rate, (C) the aggregate amount of the Competitive Bids accepted by the Borrower shall not exceed the principal amount specified in the Competitive Bid Request, (D) if the Borrower shall accept a Competitive Bid or Competitive Bids made at a particular Competitive Bid Rate but the amount of such Competitive Bid or Competitive Bids shall cause the total amount of Competitive Bids to be accepted by the Borrower to exceed the amount specified in the Competitive Bid Request, then the Borrower shall accept a portion of such Competitive Bid or Competitive Bids in an amount equal to the amount specified in the Competitive Bid Request less the amount of all other Competitive Bids accepted at lower Competitive Bid Rates with respect to such Competitive Bid Request (it being understood that acceptance in the case of multiple Competitive Bids at such Competitive Bid Rate, shall be made pro rata in accordance with the amount of each such Competitive Bid at such Competitive Bid Rate), (E) except pursuant to clause (D) above, no Competitive Bid shall be accepted for a Competitive Loan unless such Competitive Loan is in a minimum principal Dollar Equivalent Amount of $5,000,000 and an integral multiple of $1,000,000 and (F) the Borrower may not accept Competitive Bids for Competitive Loans in any Currency other than the Currency specified in the related Competitive Bid Request; and provided, further, that if a Competitive Loan must be in an amount less than the Dollar Equivalent Amount of $5,000,000 because of the provisions of clause (D) above, such Competitive Loan shall be in a minimum principal Dollar Equivalent Amount of $1,000,000 or any integral multiple thereof, and in calculating the pro rata allocation of acceptances of portions of multiple Competitive Bids at a particular Competitive Bid Rate pursuant to clause (D), the amounts shall be rounded to integral multiples of $1,000,000 in a manner that shall be in the discretion of the Administrative Agent. A notice given by the Borrower pursuant to this paragraph (d) shall be irrevocable. (e) The Administrative Agent shall promptly notify each bidding Lender whether its Competitive Bid has been accepted (and if so, in what amount and at what Competitive Bid Rate) by telecopy sent by the Administrative Agent, and each successful bidder will thereupon become bound, subject to the other applicable conditions hereof, to make the Competitive Loan in respect of which its Competitive Bid has been accepted in the applicable Currency. (f) If the Administrative Agent shall elect to submit a Competitive Bid in its capacity as a Lender, it shall submit such Competitive Bid directly to the Borrower one quarter of 47 41 an hour earlier than the latest time at which the other Lenders are required to submit their Competitive Bids to the Administrative Agent pursuant to paragraph (b) above. (g) All notices required by this subsection 2.7 shall be given in accordance with subsection 11.2. (h) The Borrower agrees that, upon the request to the Administrative Agent by any Lender, the Borrower will execute and deliver to such Lender a promissory note of the Borrower evidencing the Competitive Loans of such Lender, substantially in a form to be agreed upon with appropriate insertions as to date, principal amount and Currency (a "Competitive Note"). 2.8 Term Loans. Subject to the terms and conditions hereof, each Term Loan Lender severally agrees, on the Closing Date, to continue or make a term loan (a "Term Loan") in Dollars, Deutschemarks or euro units in an aggregate principal Dollar Equivalent Amount set forth under such Term Loan Lender's name in Schedule A opposite the heading "Term Loan Commitment"; provided that the initial aggregate principal Dollar Equivalent Amount of Term Loans denominated in Deutschemarks or euro units in the aggregate shall not exceed $100,000,000 on the date such Term Loans are made, and the aggregate principal amount of Term Loans denominated in Dollars shall not exceed $350,000,000; and provided, further, that any Term Loans denominated in Deutschemarks or euro units shall be made on the day that is two Business Days after the Closing Date. The Term Loans may from time to time be (i) Eurocurrency Loans, (ii) ABR Loans (in the case of Dollar Term Loans only) or (iii) a combination thereof, as determined by the Borrower and notified to the Administrative Agent in accordance with subsection 2.9 or 4.4, provided that no Term Loan shall be made as a Eurocurrency Loan after the day that is one month prior to the Term Loan Maturity Date. Amounts paid on account of the Term Loans pursuant to subsection 2.9 may not be reborrowed. 2.9 Term Notes. (a) The Borrower agrees that, upon the request to the Administrative Agent by any Term Loan Lender made on or prior to the Closing Date or in connection with any assignment pursuant to subsection 11.6, to evidence such Lender's Term Loan the Borrower will execute and deliver to such Lender a promissory note substantially in the form of Exhibit A-3 (as amended, supplemented, replaced or otherwise modified from time to time, a Term Note"), with appropriate insertions therein as to payee, date and principal amount, payable to the order of such Term Loan Lender and in a principal amount equal to the amount set forth under such Term Loan Lender's name on Schedule A opposite the heading "Term Loan Commitment." Any Term Note shall (i) be dated the Closing Date, (ii) be payable as provided in subsection 2.9(b) and (iii) provide for the payment of interest in accordance with subsection 4.1. (b) The Term Loans made in any Currency shall be payable in 20 consecutive quarterly installments on the dates and in the aggregate principal amount (together with all accrued interest thereon) equal to the percentage set forth below opposite the applicable installment date multiplied by the original aggregate principal amount of the Term Loans made in such Currency: 48 42 Installment Percentage April 30, 2000 1.111% July 31, 2000 2.220 October 31, 2000 3.333 January 31, 2001 4.444 April 30, 2001 4.167 July 31, 2001 4.167 October 31, 2001 4.167 January 31, 2002 4.167 April 30, 2002 5.556 July 31, 2002 5.556 October 31, 2002 5.556 January 31, 2003 5.556 April 30, 2003 5.556 July 31, 2003 5.556 October 31, 2003 5.556 January 31, 2004 5.556 April 30, 2004 6.944 July 31, 2004 6.944 October 31, 2004 6.944 February 15, 2005 6.944 (c) The Borrower shall give the Administrative Agent irrevocable notice (which notice must be received by the Administrative Agent prior to 11:00 A.M., New York City time, (a) four Business Days (or three Business Days if the Term Loans requested are to be denominated in Dollars) prior to the Borrowing Date, if all or any part of the requested Term Loans are to be initially Eurocurrency Loans or (b) on the Closing Date, otherwise), specifying (i) the amount to be borrowed, (ii) whether the borrowing is to be of Eurocurrency Loans, ABR Loans or a combination thereof, (iii) the applicable Currency and (iv) if the borrowing is to be entirely or partly of Eurocurrency Loans, the respective amount of such Type of Loan and the respective length of the initial Interest Period therefor. Upon receipt of such notice, the Administrative Agent shall promptly notify each Term Loan Lender thereof. Each Term Loan Lender will make the amount of its pro rata share of such borrowing available to the Administrative Agent for the account of the Borrower at the office of the Administrative Agent specified by the Administrative Agent prior to (i) in the case of a borrowing in Dollars, 1:00 P.M., New York City time or (ii) in the case of a borrowing in Deutschemarks or euro unit, 10:00 A.M., New York City time, on the Borrowing Date requested by the Borrower in the requested Currency in funds immediately available to the Administrative Agent. The Administrative Agent shall on such date credit the account of the Borrower previously specified in writing by the Borrower to the Administrative Agent with the aggregate of the amounts made available to the Administrative Agent by the Term Loan Lenders. 2.10 Repayment of Loans. (a) The Borrower (or Borrowers, as the case may be) hereby unconditionally promises to pay to the Administrative Agent (or, in the case of Foreign 49 43 Currency Swing Line Loans, as provided in subsection 2.6(b)) for the account of: (i) each Revolving Credit Lender, the then unpaid principal amount of each Revolving Credit Loan of such Lender made to a Borrower, on the Revolving Credit Commitment Termination Date (or such earlier date on which the Revolving Credit Loans become due and payable pursuant to Section 9); (ii) the Dollar Swing Line Lender and each Foreign Currency Swing Line Lender, the then unpaid principal amount of the Dollar Swing Line Loans or Foreign Currency Swing Line Loans, as the case may be, made to a Borrower, on the Revolving Credit Commitment Termination Date (or such earlier date on which the Swing Line Loans become due and payable pursuant to Section 9); (iii) each Term Loan Lender, the amounts specified in subsection 2.9(b) on the dates specified in subsection 2.9(b) (or such earlier date on which the Term Loans become due and payable pursuant to Section 9) and (iv) each Lender that makes a Competitive Loan, the then unpaid principal amount of such Competitive Loan on the last day of the Interest Period applicable to such Competitive Loan. Each of the Borrowers hereby further agrees to pay interest on the unpaid principal amount of the Loans made to such Borrower from time to time outstanding from the date of the making of the Loans until payment in full thereof at the rates per annum, and on the dates, set forth in subsection 4.1. (b) Each Lender (including the Swing Line Lenders) shall maintain in accordance with its usual practice an account or accounts evidencing indebtedness of each of the Borrowers to such Lender resulting from each Loan of such Lender from time to time, including, without limitation, the amounts of principal and interest payable and paid to such Lender from time to time under this Agreement. (c) The Administrative Agent shall maintain the Register pursuant to subsection 11.6(d), and a subaccount therein for each Lender, in which shall be recorded (i) the amount of each Loan (other than a Foreign Currency Swing Line Loan made by a Foreign Currency Swing Line Lender other than CIBC) made hereunder, the Type thereof and each Interest Period, if any, applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the applicable Borrower to each Lender with respect to each such Loan hereunder and (iii) both the amount of any sum received by the Administrative Agent hereunder from any Borrower and each Lender's share thereof. (d) The entries made in the Register and the accounts of each Lender maintained pursuant to subsection 2.10(c) shall, to the extent permitted by applicable law, be prima facie evidence of the existence and amounts of the obligations of the applicable Borrower therein recorded; provided that the failure of any Lender or the Administrative Agent to maintain the Register or any such account, or any error therein, shall not in any manner affect the obligation of the applicable Borrower to repay (with applicable interest) the Loans made to the Borrower by such Lender in accordance with the terms of this Agreement. Each Borrower shall repay each Loan made to it, and interest thereon, in the Currency in which such Loan is denominated. 2.11 Guarantee. (a) To induce the Foreign Currency Swing Line Lenders to execute and deliver this Agreement and each Foreign Currency Swing Line Loan Agreement and to make or maintain Foreign Currency Swing Line Loans to the Subsidiary Borrowers, and in consideration thereof, the Borrower hereby unconditionally and irrevocably guarantees for the benefit of the Foreign Currency Swing Line Lenders and the other Lenders, the prompt and complete payment and performance by the Subsidiary Borrowers when due (whether at stated 50 44 maturity, by acceleration or otherwise) of the Subsidiary Borrower Obligations, and the Borrower further agrees to pay any and all expenses (including, without limitation, all reasonable fees, charges and disbursements of counsel) which may be paid or incurred by the Managing Agents, the European Swing Line Administrator or by the Lenders in enforcing, or obtaining advice of counsel in respect of, any of their rights under the guarantee contained in this subsection 2.11. The guarantee contained in this subsection 2.11, subject to subsection 2.11(e), shall remain in full force and effect until the Subsidiary Borrower Obligations are paid in full and the Revolving Credit Commitments are terminated, notwithstanding that from time to time prior thereto the Subsidiary Borrowers may be free from any Subsidiary Borrower Obligations. (b) Notwithstanding any payment or payments made by the Borrower hereunder or any set-off or application of funds of the Borrower by any Lender, the Borrower shall not be entitled to be subrogated to any of the rights of the Managing Agents, the European Swing Line Administrator or any Lender against the Subsidiary Borrowers or any collateral security or guarantee or right of offset held by any of the Managing Agents, the European Swing Line Administrator or any Lender for the payment of the Subsidiary Borrower Obligations, nor shall the Borrower seek or be entitled to seek any contribution or reimbursement from the Subsidiary Borrowers in respect of payments made by the Borrower hereunder, until all amounts owing to the Managing Agents, the European Swing Line Administrator and the Lenders by the Subsidiary Borrowers on account of the Subsidiary Borrower Obligations are paid in full and the Revolving Credit Commitments are terminated. If any amount shall be paid to the Borrower on account of such subrogation rights at any time when all of the Subsidiary Borrower Obligations shall not have been paid in full or the Revolving Credit Commitments shall not have been terminated, such amount shall be held by the Borrower in trust for the Managing Agents, the European Swing Line Administrator and the Lenders, segregated from other funds of the Borrower, and shall, forthwith upon receipt by the Borrower, be turned over to the Administrative Agent in the exact form received by the Borrower (duly endorsed by the Borrower to the Administrative Agent, if required), to be applied against the Subsidiary Borrower Obligations, whether matured or unmatured, in such order as the Administrative Agent may determine. The Borrower hereby further irrevocably waives all contractual, common law, statutory and other rights of reimbursement, contribution, exoneration or indemnity (or any similar right) from or against the Subsidiary Borrowers or any other Person which may have arisen in connection with the guarantee contained in this subsection 2.11. (c) The Borrower shall remain obligated under this subsection 2.11 notwithstanding that, without any reservation of rights against the Borrower, and without notice to or further assent by the Borrower, any demand for payment of or reduction in the principal amount of any of the Subsidiary Borrower Obligations made by either of the Managing Agents, the European Swing Line Administrator or any Lender may be rescinded by either of the Managing Agents, the European Swing Line Administrator or such Lender, and any of the Subsidiary Borrower Obligations continued, and the Subsidiary Borrower Obligations, or the liability of any other party upon or for any part thereof, or any collateral security or guarantee therefor or right of offset with respect thereto, may, from time to time, in whole or in part, be renewed, extended, amended, modified, accelerated, compromised, waived, surrendered or released by either of the Managing Agents, the European Swing Line Administrator or any Lender, and this Agreement, any other Loan Document, and any other documents executed and delivered in connection therewith may be amended, modified, supplemented or terminated, in 51 45 whole or in part, as the Lenders (or the Required Lenders, as the case may be) may deem advisable from time to time, and any collateral security, guarantee or right of offset at any time held by either of the Managing Agents, the European Swing Line Administrator or any Lender for the payment of the Subsidiary Borrower Obligations may be sold, exchanged, waived, surrendered or released. Neither of the Managing Agents, the European Swing Line Administrator nor any Lender shall have any obligation to protect, secure, perfect or insure any Lien at any time held by it as security for the Subsidiary Borrower Obligations or for the guarantee contained in this subsection 2.11 or any property subject thereto. (d) The Borrower waives any and all notice of the creation, renewal, extension or accrual of any of the Subsidiary Borrower Obligations and notice of or proof of reliance by either of the Managing Agents, the European Swing Line Administrator or any Lender upon the guarantee contained in this subsection 2.11 or acceptance of the guarantee contained in this subsection 2.11; the Subsidiary Borrower Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guarantee contained in this subsection 2.11; and all dealings between any of the Subsidiary Borrower or the Borrower, on the one hand, and the Managing Agents, the European Swing Line Administrator and the Lenders, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon the guarantee contained in this subsection 2.11. The Borrower waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon any Subsidiary Borrower or the Borrower with respect to the Subsidiary Borrower Obligations. The guarantee contained in this subsection 2.11 shall be construed as a continuing, absolute and unconditional guarantee of payment without regard to (i) the validity or enforceability of this Agreement, any other Loan Document, any of the Subsidiary Borrower Obligations or any collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by either of the Managing Agents, the European Swing Line Administrator or any Lender, (ii) any defense, setoff or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower against any Lender, or (iii) any other circumstance whatsoever (with or without notice to or knowledge of the Subsidiary Borrower or the Borrower) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Subsidiary Borrower for the Subsidiary Borrower Obligations, or of the Borrower under the guarantee contained in this subsection 2.11, in bankruptcy or in any other instance. When either of the Managing Agents, the European Swing Line Administrator or any Lender is pursuing its rights and remedies under this subsection 2.11 against the Borrower, either of the Managing Agents, the European Swing Line Administrator or any Lender may, but shall be under no obligation to, pursue such rights and remedies as it may have against the Subsidiary Borrower or any other Person or against any collateral security or guarantee for the Subsidiary Borrower Obligations or any right of offset with respect thereto, and any failure by either of the Managing Agents, the European Swing Line Administrator or any Lender to pursue such other rights or remedies or to collect any payments from the Subsidiary Borrower or any such other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Subsidiary Borrower or any such other Person or of any such collateral security, guarantee or right of offset, shall not relieve the Borrower of any liability under this subsection 2.11, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Managing Agents, the European Swing Line Administrator and the Lenders against the Borrower. 52 46 (e) The guarantee contained in this subsection 2.11 shall continue to be effective, or be reinstated, as the case may be, if at any time payment, or any part thereof, of any of the Subsidiary Borrower Obligations is rescinded or must otherwise be restored or returned by either of the Managing Agents, the European Swing Line Administrator or any Lender upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of any Subsidiary Borrower or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, any Subsidiary Borrower or any substantial part of its property, or otherwise, all as though such payments had not been made. (f) The Borrower hereby agrees that any payments in respect of the Subsidiary Borrower Obligations pursuant to this subsection 2.11 will be paid to the Administrative Agent without setoff or counterclaim (other than a defense of payment or performance) in Dollars at the office of the Administrative Agent specified in subsection 11.2. SECTION 3. LETTERS OF CREDIT 3.1 L/C Commitment. (a) Subject to the terms and conditions hereof, the Issuing Lender, in reliance on the agreements of the other Revolving Credit Lenders set forth in subsection 3.4(a), agrees to issue letters of credit ("Letters of Credit") denominated in Dollars or an Available Foreign Currency for the account of the Borrower on any Business Day during the Revolving Credit Commitment Period in such form as may be approved from time to time by the Issuing Lender; provided that the Issuing Lender shall have no obligation to issue any Letter of Credit if, after giving effect to such issuance, (i) the Dollar Equivalent Amount of the aggregate L/C Obligations would exceed the L/C Commitment, (ii) the Available Revolving Credit Commitment of any Revolving Credit Lender would be less than zero, (iii) the Aggregate Revolving Credit Outstandings would exceed the aggregate amount of the Revolving Credit Commitments of all the Revolving Credit Lenders, or (iv) the then Dollar Equivalent Amount of the Foreign Currency Sublimit Outstandings would exceed the Foreign Currency Subfacility Amount. All letters of credit issued pursuant to the Prior Credit Agreement shall, at all times on or after the Closing Date, be deemed to be "Letters of Credit" for all purposes of this Agreement and the other Loan Documents. (b) Each Letter of Credit shall (i) be either (x) a standby letter of credit issued to support obligations of the Borrower or any of its Subsidiaries, contingent or otherwise, to finance the working capital and business needs of the Borrower or any of its Subsidiaries in the ordinary course of business or (y) a commercial letter of credit issued in respect of the purchase of goods or services by the Borrower or any of its Subsidiaries in the ordinary course of business and (ii) expire no later than the earlier of (x) the date that is 12 months after the date of its issuance and (y) the fifth Business Day prior to the Revolving Credit Commitment Termination Date. (c) Each Letter of Credit shall be subject to the Uniform Customs and, to the extent not inconsistent therewith, the laws of the State of New York or, in any case where the Issuing Lender issues such Letters of Credit from an office located outside of the United States, the laws of the jurisdiction in which such office is located. 53 47 (d) The Issuing Lender shall not at any time be obligated to issue any Letter of Credit hereunder if such issuance would conflict with, or cause the Issuing Lender or any L/C Participant to exceed any limits imposed by, any applicable Requirement of Law. 3.2 Procedure for Issuance of Letters of Credit. The Borrower may request that the Issuing Lender issue a Letter of Credit at any time prior to the fifth Business Day prior to the Revolving Credit Commitment Termination Date by delivering to the Issuing Lender at its address for notices specified herein a Letter of Credit Application therefor, completed to the satisfaction of the Issuing Lender, and such other certificates, documents and other papers and information as the Issuing Lender may request. Upon receipt of any Letter of Credit Application, the Issuing Lender will process such Letter of Credit Application and the certificates, documents and other papers and information delivered to it in connection therewith in accordance with its customary procedures and shall promptly issue the Letter of Credit requested thereby (but in no event shall the Issuing Lender be required to issue any Letter of Credit earlier than three Business Days after its receipt of the Letter of Credit Application therefor and all such other certificates, documents and other papers and information relating thereto) by issuing the original of such Letter of Credit to the beneficiary thereof or as otherwise may be agreed by the Issuing Lender and the Borrower. The Issuing Lender shall furnish a copy of such Letter of Credit to the Borrower promptly following the issuance thereof. 3.3 Fees, Commissions and Other Charges. (a) The Borrower shall pay to the Administrative Agent, for the account of the Issuing Lender and the L/C Participants, a letter of credit fee with respect to each Letter of Credit payable in Dollars in the Dollar Equivalent Amount of the amount of such fee calculated in the Currency in which such Letter of Credit is denominated, computed for the period from and including the date of issuance of such Letter of Credit to the expiration date of such Letter of Credit at a rate per annum equal to the Applicable Margin in effect during such period for Eurocurrency Loans that are Revolving Credit Loans (on the basis of the actual number of days elapsed over a 360-day year) on the aggregate face amount of Letters of Credit outstanding during such period, payable in arrears on each L/C Fee Payment Date and on the Revolving Credit Commitment Termination Date. Such fee shall be payable to the Administrative Agent to be shared ratably among the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitment Percentages. In addition, the Borrower shall pay to the Issuing Lender, for its own account, a fee equal to 0.125% per annum on the aggregate face amount of outstanding Letters of Credit, payable in Dollars in the Dollar Equivalent Amount of the amount of such fee calculated in Currency in which such Letter of Credit is denominated quarterly in arrears on each L/C Fee Payment Date and on the Revolving Credit Commitment Termination Date and calculated on the basis of the actual number of days elapsed over a 360-day year. (b) In addition to the foregoing fees and commissions, the Borrower shall pay or reimburse the Issuing Lender for such normal and customary costs and expenses as are incurred or charged by the Issuing Lender in issuing, effecting payment under, amending or otherwise administering any Letter of Credit. (c) The Administrative Agent shall, promptly following its receipt thereof, distribute to the Issuing Lender and the L/C Participants all fees and commissions received by the Administrative Agent for their respective accounts pursuant to this subsection. 54 48 3.4 L/C Participations. (a) The Issuing Lender irrevocably agrees to grant and hereby grants to each L/C Participant, and, to induce the Issuing Lender to issue Letters of Credit hereunder, each L/C Participant irrevocably agrees to accept and purchase and hereby accepts and purchases from the Issuing Lender, on the terms and conditions hereinafter stated, for such L/C Participant's own account and risk an undivided interest equal to such L/C Participant's Revolving Credit Commitment Percentage from time to time in effect in the Issuing Lender's obligations and rights under each Letter of Credit issued hereunder and the amount of each draft paid by the Issuing Lender thereunder. Each L/C Participant unconditionally and irrevocably agrees with the Issuing Lender that, if a draft is paid under any Letter of Credit for which the Issuing Lender is not reimbursed in full by the Borrower in accordance with the terms of this Agreement, such L/C Participant shall pay in the Currency in which such Letter of Credit is denominated to the Issuing Lender upon demand at the Issuing Lender's address for notices specified herein an amount equal to such L/C Participant's then Revolving Credit Commitment Percentage of the amount of such draft, or any part thereof, which is not so reimbursed; provided that if such demand is made prior to 12:00 Noon, New York City time, on a Business Day such L/C Participant shall make such payment to the Issuing Lender prior to the end of such Business Day and otherwise such L/C Participant shall make such payment on the next succeeding Business Day. (b) If any amount required to be paid by any L/C Participant to the Issuing Lender pursuant to paragraph 3.4(a) in respect of any unreimbursed portion of any payment made by the Issuing Lender under any Letter of Credit is paid to the Issuing Lender within three Business Days after the date such payment is due, such L/C Participant shall pay to the Issuing Lender on demand an amount equal to the product of (i) such amount, times (ii) (A) in the case of any such payment obligation denominated in Dollars, the daily average Federal Funds Rate, as quoted by the Issuing Lender, or (B) in the case of any such payment obligation denominated in an Available Foreign Currency, the rate customary in such Available Foreign Currency for settlement of similar interbank obligations, as quoted by the Issuing Lender, in each case, during the period from and including the date such payment is required to the date on which such payment is immediately available to the Issuing Lender, times (iii) a fraction the numerator of which is the number of days that elapse during such period and the denominator of which is 360. If any such amount required to be paid by any L/C Participant pursuant to paragraph 3.4(a) is not in fact made available to the Issuing Lender by such L/C Participant within three Business Days after the date such payment is due, the Issuing Lender shall be entitled to recover from such L/C Participant, on demand, such amount with interest thereon calculated from such due date at the rate per annum applicable to ABR Loans hereunder, in the case of payment obligations denominated in Dollars, or the rate per annum applicable to Eurocurrency Loans having an Interest period of one day, in the case of payment obligations denominated in an Available Foreign Currency. A certificate of the Issuing Lender submitted to any L/C Participant with respect to any amounts owing under this subsection shall be conclusive in the absence of manifest error. (c) Whenever, at any time after the Issuing Lender has made payment under any Letter of Credit and has received from any L/C Participant its pro rata share of such payment in accordance with subsection 3.4(a), the Issuing Lender receives any payment related to such Letter of Credit (whether directly from the Borrower or otherwise, including proceeds of collateral 55 49 applied thereto by the Issuing Lender), or any payment of interest on account thereof, the Issuing Lender will, if such payment is received prior to 12:00 Noon, New York City time, on a Business Day, distribute to such L/C Participant its pro rata share thereof prior to the end of such Business Day and otherwise the Issuing Lender will distribute such payment on the next succeeding Business Day; provided that in the event that any such payment received by the Issuing Lender shall be required to be returned by the Issuing Lender, such L/C Participant shall return to the Issuing Lender the portion thereof previously distributed by the Issuing Lender to it. 3.5 Reimbursement Obligation of the Borrower. (a) The Borrower agrees to reimburse the Issuing Lender on the same Business Day on which a draft is presented under any Letter of Credit and paid by the Issuing Lender, provided that the Issuing Lender provides notice to the Borrower prior to 12:00 Noon, New York City time, on such Business Day and otherwise the Borrower will reimburse the Issuing Lender on the next succeeding Business Day; provided, further, that the failure to provide such notice shall not affect the Borrower's absolute and unconditional obligation to reimburse the Issuing Lender for any draft paid under any Letter of Credit. The Issuing Lender shall provide notice to the Borrower on such Business Day as a draft is presented and paid by the Issuing Lender indicating the amount of (i) such draft so paid and (ii) any taxes, fees, charges or other costs or expenses incurred by the Issuing Lender in connection with such payment. Each such payment shall be made to the Issuing Lender at its address for notices specified herein in the Currency in which the applicable Letter of Credit is denominated and in immediately available funds. (b) Interest shall be payable on any and all amounts remaining unpaid by the Borrower under this subsection from the date such amounts are drawn until payment in full at the rate which would be payable on any outstanding Revolving Credit Loans that are ABR Loans which were then overdue, in the case of any Dollar Letter of Credit, or Eurocurrency Loans having Interest Periods of one day which were then overdue, in the case of any Foreign Currency Letter of Credit (unless such drawing occurs after 11:00 A.M. New York City time on the date of drawing and the Borrower would be able to satisfy the conditions to borrowing Revolving Credit Loans on such date in an amount at least equal to the amount of such drawing, in which case, interest shall be payable for the first day after such drawing at the respective rates for the applicable type of Loans that are not overdue). (c) Each drawing under any Letter of Credit shall constitute a request by the Borrower to the Administrative Agent for a borrowing pursuant to subsection 2.3 of ABR Loans in the amount of such drawing (or, in the case of a drawing under a Foreign Currency Letter of Credit, the Dollar Equivalent Amount of the amount of such drawing). The Borrowing Date with respect to such borrowing shall be the date of such drawing. 3.6 Obligations Absolute. (a) The Borrower's obligations under this Section 3 shall be absolute and unconditional under any and all circumstances and irrespective of any set-off, counterclaim or defense to payment which the Borrower may have or have had against the Issuing Lender, any L/C Participant or any beneficiary of a Letter of Credit. (b) The Borrower also agrees with the Issuing Lender and any L/C Participant that the Issuing Lender and any L/C Participant shall not be responsible for, and the Borrower's Reimbursement Obligations under subsection 3.5(a) shall not be affected by, among other things, (i) the validity or genuineness of documents or of any endorsements thereon, even though such 56 50 documents shall in fact prove to be invalid, fraudulent or forged, or (ii) any dispute between or among the Borrower and any beneficiary of any Letter of Credit or any other party to which such Letter of Credit may be transferred or (iii) any claims whatsoever of the Borrower against any beneficiary of such Letter of Credit or any such transferee. (c) Neither the Issuing Lender nor any L/C Participant shall be liable for any error, omission, interruption or delay in transmission, dispatch or delivery of any message or advice, however transmitted, in connection with any Letter of Credit, except for errors or omissions caused by the Issuing Lender's gross negligence or willful misconduct. (d) The Borrower agrees that any action taken or omitted by the Issuing Lender under or in connection with any Letter of Credit or the related drafts or documents, if done in the absence of gross negligence or willful misconduct and in accordance with the standards of care specified in the Uniform Commercial Code of the State of New York, shall be binding on the Borrower and shall not result in any liability of the Issuing Lender or any L/C Participant to the Borrower. 3.7 Letter of Credit Payments. If any draft shall be presented for payment under any Letter of Credit, the responsibility of the Issuing Lender to the Borrower in connection with such draft shall, in addition to any payment obligation expressly provided for in such Letter of Credit, be limited to determining that the documents (including each draft) delivered under such Letter of Credit in connection with such presentment are in conformity with such Letter of Credit. 3.8 Application. To the extent that any provision of any Letter of Credit Application related to any Letter of Credit is inconsistent with the provisions of this Section 3, the provisions of this Section 3 shall apply. SECTION 4. GENERAL PROVISIONS 4.1 Interest Rates and Payment Dates. (a) Each Eurocurrency Loan (other than a Eurocurrency Competitive Loan) shall bear interest for each day during each Interest Period with respect thereto at a rate per annum equal to the Eurocurrency Rate determined for such day plus the Applicable Margin. (b) Each Competitive Loan shall bear interest for each day during each Interest Period with respect thereto at the applicable rate per annum determined as provided in subsection 2.7. (c) Each ABR Loan shall bear interest at a rate per annum equal to the CIBC Alternate Base Rate plus the Applicable Margin. (d) If all or a portion of (i) any principal of any Loan, (ii) any interest payable thereon, (iii) any commitment fee or (iv) any other amount payable hereunder shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), the principal of the Loans and any such overdue interest, commitment fee or other amount shall bear interest at a rate 57 51 per annum which is (x) in the case of principal, the rate that would otherwise be applicable thereto pursuant to the foregoing provisions of this subsection plus 2% or (y) in the case of any such overdue interest, commitment fee or other amount, the rate described in paragraph (b) of this subsection plus 2%, in each case, from the date of such non-payment until such overdue principal, interest, commitment fee or other amount is paid in full (as well after as before judgment). (e) Interest shall be payable in arrears on each Interest Payment Date, provided that interest accruing pursuant to paragraph (d) of this subsection shall be payable from time to time on demand. 4.2 Optional Prepayments. Each of the Borrowers may at any time and from time to time prepay the Loans made to it in whole or in part, without premium or penalty on any Business Day, provided that (i) such Borrower shall have given (x) at least three Business Days' irrevocable notice to the Administrative Agent (in the case of Eurocurrency Loans) or (y) same-day irrevocable notice to the Administrative Agent (in the case of ABR Loans, including Dollar Swing Line Loans or to the applicable Foreign Currency Swing Line Lender in the case of Foreign Currency Swing Line Loans), (ii) such notice specifies, in the case of any prepayment of Loans, the date, Currency and amount of prepayment and whether the prepayment is (x) of Term Loans, Revolving Credit Loans or Dollar Swing Line Loans, Foreign Currency Swing Line Loans, or a combination thereof, and in each case if a combination thereof, the amount allocable to each, (y) of Eurocurrency Loans, ABR Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each and (iii) each prepayment is in a minimum principal Dollar Equivalent Amount of $1,000,000 and a multiple of $100,000 in excess thereof. Upon the receipt of any such notice the Administrative Agent shall promptly notify each of the Lenders thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with any amounts payable pursuant to subsection 4.12 and, in the case of prepayments of the Term Loans only, accrued interest to such date on the amount prepaid. Partial prepayments of (i) the Term Loans pursuant to this subsection shall be applied pro rata to the respective installments of principal thereof and (ii) the Revolving Credit Loans and the Letters of Credit pursuant to this subsection shall be applied, first, to payment of the Dollar Swing Line Loans then outstanding, second, to the payment of the Foreign Currency Swing Line Loans then outstanding, third, to payment of the Revolving Credit Loans then outstanding and, last, to cash collateralize any outstanding L/C Obligation upon terms reasonably satisfactory to the Administrative Agent. The Borrower shall not have the right to prepay Competitive Loans without the consent of the applicable Lender. 4.3 Mandatory Prepayments and Reduction of Revolving Credit Commitments. (a) If, in any fiscal year, commencing with the fiscal year ending January 31, 1999, there shall be Excess Cash Flow for such fiscal year, then on the date that is the earlier of (i) the date on which the audited financial statements for such fiscal year are required to be delivered pursuant to subsection 7.1(a) and (ii) the date two Business Days after the delivery of such financial statements, 75% (provided that such percentage shall reduce to 50% if at the end of such fiscal year the Leverage Ratio is less than 3.00 to 1.00) of such Excess Cash Flow shall be applied toward the prepayment of the Loans and the permanent reduction of the Revolving Credit Commitments in accordance with subsection 4.3(e). 58 52 (b) If, subsequent to the Closing Date, the Borrower or any of its Subsidiaries shall incur or issue any debt obligations (other than in respect of Indebtedness permitted by subsection 8.2 (other than subsections 8.2(i) and 8.2(k)), then 100% of the Net Cash Proceeds thereof shall, on the first Business Day after receipt thereof, be applied toward the prepayment of the Loans and the permanent reduction of the Revolving Credit Commitments in accordance with subsection 4.3(e), provided that if, subsequent to the Closing Date, the Borrower or any of its Subsidiaries shall incur or issue any debt obligations permitted by subsection 8.2(i), then 100% (provided that such percentage shall reduce to 50% if at the end of the fiscal quarter most recently ended prior to the date of such debt issuance for which financial statements shall have been delivered by the Borrower pursuant to subsection 7.1 and after giving effect thereto (with EBITDA being calculated on the basis of such financial statements) the Leverage Ratio would be less than 3.00 to 1.00) of the Net Cash Proceeds thereof shall, on the first Business Day after receipt thereof, be applied toward the prepayment of the Loans or any other outstanding Indebtedness of the Borrower or any Subsidiary (the Loans or other Indebtedness so prepaid shall be elected by the Borrower in its sole discretion, subject to subsection 8.10) (provided that the Revolving Credit Commitments shall not be reduced to the extent the Borrower elects to prepay Revolving Credit Loans). (c) If, subsequent to the Closing Date, the Borrower or any of its Subsidiaries shall receive Net Cash Proceeds from any asset sales or other dispositions permitted by subsection 8.6(b) or (j), then 100% of the portion of such Net Cash Proceeds required by subsection 8.6(b) or (j), as the case may be, to be so applied shall on the first Business Day after receipt thereof, be applied toward the prepayment of the Loans and the permanent reduction of the Revolving Credit Commitments in accordance with subsection 4.3(e); provided that (i) such Net Cash Proceeds from any such asset sales or other dispositions shall not be required to be so applied until the amount of such unapplied Net Cash Proceeds exceeds the Dollar Equivalent Amount of $5,000,000 in the aggregate, at which time 100% of such unapplied Net Cash Proceeds shall be applied immediately toward the prepayment of the Loans and the permanent reduction of the Revolving Credit Commitments in accordance with subsection 4.3(e) and (ii) to the extent that such Net Cash Proceeds from any such asset sales or other dispositions may be used by the Borrower and its Subsidiaries to acquire fixed or capital assets or make Investments or may be used by Non-Guarantor Subsidiaries to prepay, repay or repurchase Indebtedness of Non-Guarantor Subsidiaries, or acquire assets used or useful in the businesses of Non-Guarantor Subsidiaries, in each case, within 180 days of receipt thereof and otherwise in accordance with subsection 8.6(b) or (j), as the case may be, but such Net Cash Proceeds are not so used, such Net Cash Proceeds shall be applied toward the repayment of the Loans and the permanent reduction of the Revolving Credit Commitments in accordance with subsection 4.3(e) on the earlier of (x) the 180th day after receipt of such Net Cash Proceeds and (y) the date on which the Borrower has reasonably determined that such Net Cash Proceeds shall not be so used. If, subsequent to the Closing Date, the Borrower or any of its Subsidiaries shall receive Net Cash Proceeds from asset sales or other dispositions permitted 59 53 by subsection 8.6(g), then 100% of such Net Cash Proceeds shall, on the first Business Day after receipt thereof, be applied toward the prepayment of the Loans or any other outstanding Indebtedness of the Borrower or any Subsidiary (the Loans or other Indebtedness so prepaid shall be elected by the Borrower in its sole discretion) (provided that the Revolving Credit Commitments shall not be reduced to the extent the Borrower elects to prepay Revolving Credit Loans). If, subsequent to the Closing Date, the Borrower or any of its Subsidiaries shall receive Net Cash Proceeds from any asset sales or other dispositions permitted by subsection 8.6(i), then the portion of such Net Cash Proceeds required by subsection 8.6(i) to be applied in accordance with this subsection 4.3(c) shall be applied as follows: 100% of (A) the Dollar Equivalent Amount of the first $50,000,000 of such portion of such Net Cash Proceeds shall, on the first Business Day after receipt thereof (or such later date upon which such application shall be required), be applied toward the prepayment of the Loans or any other outstanding Indebtedness of the Borrower or any Subsidiary (the Loans or other Indebtedness so prepaid shall be elected by the Borrower in its sole discretion) (provided that the Revolving Credit Commitments shall not be reduced to the extent the Borrower elects to prepay Revolving Credit Loans) and (B) any additional Net Cash Proceeds shall, on the first Business Day after receipt thereof (or such later date upon which such application shall be required), be applied toward the prepayment of the Loans and the permanent reduction of the Revolving Credit Commitments in accordance with subsection 4.3(e). (d) If, at any time during the Revolving Credit Commitment Period, the Aggregate Outstanding Revolving Credit with respect to all Revolving Credit Lenders (including the Swing Line Lenders) exceeds the aggregate Revolving Credit Commitments then in effect, the Borrower shall, without notice or demand, immediately repay the Revolving Credit Loans and/or the Swing Line Loans in an aggregate principal amount equal to such excess, together with interest accrued to the date of such payment or prepayment and any amounts payable under subsection 4.12. To the extent that after giving effect to any prepayment of the Loans required by the preceding sentence, the Aggregate Outstanding Revolving Credit with respect to all Revolving Credit Lenders (including the Swing Line Lenders) exceeds the aggregate Revolving Credit Commitments then in effect, the Borrower shall, without notice or demand, immediately cash collateralize the then outstanding L/C Obligations in an amount equal to such excess upon terms reasonably satisfactory to the Administrative Agent. On the Business Day next succeeding the date on which a payment has caused the Aggregate Outstanding Revolving Credit with respect to all Revolving Credit Lenders (including the Swing Line Lender) to be equal to or less than the Revolving Credit Commitments then in effect, the Administrative Agent shall return to the Borrower the cash used to cash collateralize the then outstanding L/C Obligations pursuant to the preceding sentence. (e) Except as expressly provided herein, prepayments of the Loans and permanent reductions of the Revolving Credit Commitments pursuant to subsections 4.3(a), (b) and (c) shall be applied, first, to payment of the Term Loans then outstanding and, second, (to the extent that there are no Term Loans then outstanding) to permanent reduction of the Revolving Credit Commitments then in effect. Prepayments of the Term Loans pursuant to subsections 4.3(a), (b), (c) and (h) shall be applied pro rata to the respective installments of principal thereof. Notwithstanding the foregoing, in the event Term Loans denominated in Deutschemarks or euro units are outstanding at the time of such prepayment, mandatory prepayments shall be applied first to prepay outstanding Term Loans denominated in Dollars. (f) Amounts prepaid on account of Term Loans pursuant to subsection 4.3(a), (b), (c) or (h) may not be reborrowed. (g) If, at any time during the Revolving Credit Commitment Period, the Aggregate Outstanding Revolving Credit (other than in respect of the undrawn portion of any Letters of Credit) with respect to all Revolving Credit Lenders (including the Swing Line 60 54 Lenders) is not less than the Clean-Down Amount for at least a consecutive thirty day period during each fiscal year of the Borrower, the Borrower shall, without notice or demand, immediately repay the Revolving Credit Loans and/or the Swing Line Loans in an aggregate principal amount equal to such excess, together with interest accrued to the date of such payment or prepayment and any amounts payable under subsection 4.12, and any borrowings of Revolving Credit Loans during such thirty day period shall be subject to the proviso to subsection 2.1(a). To the extent that after giving effect to any prepayment of the Loans required by the preceding sentence, such Aggregate Outstanding Revolving Credit with respect to all Revolving Credit Lenders (including the Swing Line Lenders) exceeds the Clean-Down Amount, the Borrower shall, without notice or demand, immediately cash collateralize the then outstanding L/C Obligations in an amount equal to such excess upon terms reasonably satisfactory to the Administrative Agent. On the Business Day next succeeding the date on which the thirty day period described above has expired, the Administrative Agent shall return to the Borrower the cash, if any, used to cash collateralize the then outstanding L/C Obligations pursuant to the preceding sentence. (h) If, subsequent to the Closing Date, the Borrower or any of its Subsidiaries shall receive any cash proceeds of any casualty or condemnation, then on the first Business Day after receipt thereof 100% of the portion of such proceeds required by subsection 8.6(h) to be applied pursuant to the terms of this subsection 4.3(h) shall be either (at the election of the Borrower) (a) deposited by the Borrower with the Administrative Agent, which shall hold such proceeds in a cash collateral account upon terms reasonably satisfactory to it or (b) applied by the Borrower to prepay Term Loans or Revolving Credit Loans (at the election of the Borrower), provided that to the extent the Borrower elects to prepay Revolving Credit Loans (i) the Borrower shall maintain Available Revolving Credit Commitments (in addition to any requirement to maintain Available Revolving Credit Commitments in accordance with subsections 8.2(h) and (l)) at least equal to the aggregate principal amount of Revolving Credit Loans so prepaid and (ii) if such property is not replaced or rebuilt within one year (subject to reasonable extension for force majeure or weather delays) following the condemnation or casualty or if the Borrower fails to notify the Administrative Agent in writing on or before the 180th day after such casualty or condemnation that the Borrower shall commence the replacement or rebuilding of such property, then, the Revolving Credit Commitments shall be permanently reduced at such time in an amount equal to the aggregate amount of proceeds applied by the Borrower to prepay Revolving Credit Loans rather than Term Loans. 4.4 Conversion and Continuation Options. (a) The Borrower may elect from time to time to convert Eurocurrency Revolving Credit Loans denominated in Dollars to ABR Loans by giving the Administrative Agent at least three Business Days' prior irrevocable notice of such election, provided that any such conversion of Eurocurrency Revolving Credit Loans may only be made on the last day of an Interest Period with respect thereto. The Borrower may elect from time to time to convert ABR Loans to Eurocurrency Revolving Credit Loans by giving the Administrative Agent at least three Business Days' prior irrevocable notice of such election. Any such notice of conversion to Eurocurrency Revolving Credit Loans shall specify the length of the initial Interest Period or Interest Periods therefor. Upon receipt of any such notice the Administrative Agent shall promptly notify each Lender thereof. All or any part of outstanding Eurocurrency Revolving Credit Loans and ABR Loans may be converted as provided herein, provided that (i) unless the Majority Lenders otherwise consent, no Loan may be converted into a 61 55 Eurocurrency Revolving Credit Loan when any Event of Default has occurred and is continuing and (ii) no Loan may be converted into a Eurocurrency Revolving Credit Loan after the date that is one month prior to the Revolving Credit Commitment Termination Date. (b) Any Eurocurrency Standby Loans may be continued as such in the same Currency upon the expiration of the then current Interest Period with respect thereto by the Borrower giving notice to the Administrative Agent, in accordance with the applicable notice provisions of subsection 2.3, of the length of the next Interest Period to be applicable to such Loans, provided that no such Eurocurrency Loan may be continued as such (i) unless the Majority Lenders otherwise consent, when any Event of Default has occurred and is continuing or (ii) after the date that is one month prior to the Revolving Credit Commitment Termination Date (in the case of continuations of Revolving Credit Loans) or the Term Loan Maturity Date (in the case of continuations of Term Loans) and provided, further, that if the Borrower shall fail to give such notice or if such continuation is not permitted such Eurocurrency Loans shall be automatically continued with an Interest Period of one month. 4.5 Minimum Amounts and Maximum Number of Tranches. All borrowings, conversions and continuations of Loans hereunder and all selections of Interest Periods hereunder shall be in such amounts and be made pursuant to such elections so that, after giving effect thereto, the aggregate principal Dollar Equivalent Amount of the Loans comprising each Tranche shall be equal to $5,000,000 or a whole multiple of $1,000,000 in excess thereof. In no event shall there be more than (a) 25 Tranches outstanding at any time or (b) 20 Tranches in respect of Revolving Credit Loans and 5 Tranches in respect of Term Loans. 4.6 Computation of Interest, Fees and Dollar Equivalent Amounts. (a) Interest (other than interest based on the CIBC Prime Rate) on all Loans and commitment fees payable pursuant hereto shall be calculated on the basis of a year of 360 days for the actual days elapsed; interest based on the CIBC Prime Rate shall be calculated on the basis of a 365-(or 366-, as the case may be) day year for the actual days elapsed. The Administrative Agent shall as soon as practicable notify the Borrower and the Lenders of each determination of a Eurocurrency Rate. Any change in the interest rate on the Loans resulting from a change in the CIBC Alternate Base Rate or the Eurocurrency Reserve Requirements shall become effective as of the opening of business on the day on which such change shall become effective, provided that such change becomes effective prior to 5:00 P.M., New York City time, on such day. The Administrative Agent shall as soon as practicable notify the Borrower and each Lender of the effective date and the amount of each such change. (b) The Administrative Agent will determine the Dollar Equivalent Amount with respect to: (i) any borrowing of Foreign Currency Revolving Credit Loans or Foreign Currency Competitive Loans, on the second full Business Day preceding the first day of the applicable Interest Period; (ii) any Foreign Currency Swing Line Loans made by CIBC, as of the proposed Borrowing Date thereof; 62 56 (iii) any issuance of a Foreign Currency Letter of Credit, as of the requested issuance date of such Letter of Credit; (iv) any drawing under a Foreign Currency Letter of Credit and any calculation of letter of credit fees in respect thereof, as of the date the Borrower is required pursuant to subsection 3.5 to reimburse the Issuing Lender; (v) all outstanding Foreign Currency Revolving Credit Loans, Foreign Currency Swing Line Loans, L/C Obligations in respect of Foreign Currency Letters of Credit and Foreign Currency Competitive Loans, on any date on which the Revolving Credit Commitments are reduced pursuant to subsection 2.5; (vi) all outstanding Foreign Currency Revolving Credit Loans, Foreign Currency Competitive Loans, Foreign Currency Swing Line Loans and L/C Obligations in respect of Foreign Currency Letters of Credit, for purposes of calculating compliance with the proviso to subsection 2.1(a) (as reflected in the certificate to be delivered by the Borrower pursuant to subsection 7.2(b)(iv)), as of the first day of the thirty-day compliance period provided for in such clause; (vii) each Foreign Currency Swing Line Commitment, as of the date such Foreign Currency Swing Line Commitment is originally extended; and (viii) all Foreign Currency Revolving Credit Loans and L/C Obligations in respect of Foreign Currency Letters of Credit for purposes of calculating the letter of credit fees and the commitment fees due the Revolving Credit Lenders pursuant to subsection 2.4(a), as of the first Business Day prior to the last day of the fiscal quarter for which computation thereof is made. (c) Each determination of an interest rate or a Dollar Equivalent Amount by the Administrative Agent pursuant to any provision of this Agreement shall be conclusive and binding on the Borrower and the Lenders in the absence of manifest error. The Administrative Agent shall, at the reasonable request of the Borrower or any Lender, deliver to the Borrower or such Lender, as the case may be, a statement showing the quotations used by the Administrative Agent in determining any interest rate pursuant to subsection 4.1. 4.7 Inability to Determine Interest Rate. If prior to the first day of any Interest Period: (a) the Administrative Agent shall have determined (which determination shall be conclusive and binding upon the Borrower) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the Eurocurrency Rate for any Currency for such Interest Period, or (b) the Administrative Agent shall have received notice from the Majority Lenders that the Eurocurrency Rate for any Currency determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or any affiliate of any such Lender from which such Lender customarily obtains funds) (as conclusively certified by such Lenders) of making or maintaining their affected Loans during such Interest Period, then the Administrative Agent shall give telecopy or telephonic notice thereof to the Borrower and the Lenders as soon as practicable thereafter. If such notice is given (x) any Eurocurrency Loans in the affected Currency requested to be made on the first day of such Interest Period shall be made as ABR Loans, (y) any Loans that were to 63 57 have been converted on the first day of such Interest Period to Eurocurrency Loans in the affected Currency shall be converted to or continued as ABR Loans and (z) any outstanding Eurocurrency Loans in the affected Currency shall be converted, on the first day of such Interest Period, to ABR Loans, provided that nothing in this sentence shall be deemed to prevent the Eurocurrency Loans in the affected Currency from being converted to Eurocurrency Loans in another Currency if the applicable requirements of this Agreement to the prepayment of such Eurocurrency Loans in the affected Currency and to the making of such Eurocurrency Loans in such other Currency shall be satisfied. Until such notice has been withdrawn by the Administrative Agent, no further Eurocurrency Loans in the affected Currency shall be made or continued as such, nor shall the Borrower have the right to convert Loans to Eurocurrency Loans in the affected Currency. 4.8 Pro Rata Treatment and Payments. (a) Each borrowing of Revolving Credit Loans (other than Swing Line Loans) by the Borrower from the Revolving Credit Lenders hereunder shall be made, each payment by the Borrower on account of any commitment fee in respect of the Revolving Credit Commitments hereunder shall be allocated by the Administrative Agent, and any reduction of the Revolving Credit Commitments of the Revolving Credit Lenders shall be allocated by the Administrative Agent, pro rata according to the Revolving Credit Commitment Percentages of the Revolving Credit Lenders. Each payment (including each prepayment) by the Borrower on account of principal of and interest on any Revolving Credit Loan shall be allocated by the Administrative Agent pro rata according to the respective outstanding principal Dollar Equivalent Amounts of such Revolving Credit Loans then held by the Revolving Credit Lenders. Each payment (including each prepayment) by the Borrower on account of principal of and interest on any Term Loans shall be allocated by the Administrative Agent pro rata according to the respective outstanding principal amounts of such Term Loans then held by the Term Loan Lenders. Each payment of interest on any Competitive Loan shall be allocated pro rata among the Lenders participating in such Loan in accordance with the respective principal amount of their outstanding Competitive Loans. For purposes of determining the Available Revolving Credit Commitments of the Revolving Credit Lenders at any time, each outstanding Competitive Loan shall be deemed to have utilized the Revolving Credit Commitment of the Revolving Credit Lenders (including those Revolving Credit Lenders that shall not have made Competitive Loans) pro rata in accordance with such respective Revolving Credit Commitments. All payments (including prepayments) to be made by the Borrower hereunder and under any Notes in any Currency, whether on account of principal, interest, fees, Reimbursement Obligations or otherwise, shall be made in such Currency without set-off or counterclaim and shall be made prior to 12:00 Noon, New York City time, on the due date thereof to the Administrative Agent, for the account of the Lenders holding the relevant Loans or the L/C Participants, as the case may be, at the Administrative Agent's office specified by the Administrative Agent from time to time, in such Currency and in immediately available, freely transferable funds. Payments received by the Administrative Agent after such time shall be deemed to have been received on the next Business Day. If any payment hereunder (other than payments on Eurocurrency Loans) becomes due and payable on a day other than a Business Day, the maturity of such payment shall be extended to the next succeeding Business Day, and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the maturity of such payment shall be extended to the next succeeding Business Day (and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension) unless the result of such extension 64 58 would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. To the extent that any EMU legislation provides that an amount denominated either in the euro or in the national currency unit of a participating member state and payable within that participating member state by crediting an account of the creditor can be paid by the debtor either in the euro unit or in that national currency unit, each party to this Agreement shall be entitled to pay or repay any such amount either in the euro unit or in such national currency unit. (b) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its Commitment Percentage of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the daily average Federal Funds Rate in the case of any amount denominated in Dollars, or the rate customary in such Currency for settlement of similar interbank obligations in the case of any amount denominated in an Available Foreign Currency as quoted by the Administrative Agent, in each case, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this subsection shall be conclusive in the absence of manifest error. If such Lender's Commitment Percentage of such borrowing is not made available to the Administrative Agent by such Lender within three Business Days of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR Loans, in the case of obligations denominated in Dollars, or the rate per annum applicable to Eurocurrency Loans having an Interest Period of one day, in the case of payment obligations denominated in an Available Foreign Currency, in each case, on demand, from the Borrower. (c) With respect to the payment of any amount denominated in the euro or in a national currency unit, the Administrative Agent shall not be liable to any Borrower or any of the Lenders in any way whatsoever for any delay, or the consequences of any delay, in the crediting to any account of any amount required by this Agreement to be paid by the Administrative Agent if the Administrative Agent shall have taken all relevant steps to achieve, on the date required by this Agreement, the payment of such amount in immediately available, freely transferable, cleared funds (in the euro unit or, as the case may be, in a national currency unit) to the account of any Lender in the principal financial center in the participating member state which such Borrower or, as the case may be, such Lender shall have specified for such purpose. In this paragraph, "all relevant steps" means all such steps as may be prescribed from time to time by the regulations or operating procedures of such clearing or settlement system as the Administrative Agent may from time to time determine for the purpose of clearing or settling payments of the euro. 4.9 Illegality. Notwithstanding any other provision herein, if the adoption of or any change in any Requirement of Law or in the interpretation or application thereof shall make it unlawful for any Lender (or any affiliate of such Lender from which such Lender customarily 65 59 obtains funds) to make or maintain Eurocurrency Loans in Dollars or any Available Foreign Currency or Foreign Currency Swing Line Loans as contemplated by this Agreement, (a) the commitment of such Lender hereunder to make Eurocurrency Standby Loans in Dollars or such Available Foreign Currency or make Foreign Currency Swing Line Loans, as the case may be, continue Eurocurrency Standby Loans in Dollars or such Available Foreign Currency, as the case may be, as such and convert ABR Loans to Eurocurrency Standby Loans in Dollars or such Available Foreign Currency or make Foreign Currency Swing Line Loans, as the case may be, shall forthwith be canceled, (b) the Borrower shall be prohibited from requesting Eurocurrency Competitive Loans from such Lender and (c) such Lender's Loans then outstanding as Eurocurrency Loans in Dollars or such Available Foreign Currency, as the case may be, if any, shall be converted automatically to ABR Loans or, if a Foreign Currency Swing Line Loan, immediately repaid, and on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by law. If any such conversion of a Eurocurrency Loan or a Foreign Currency Swing Line Loan occurs on a day which is not the last day of the then current Interest Period (or other agreed payment date in the case of a Foreign Currency Swing Line Loan) with respect thereto, the applicable Borrower shall pay to such Lender such amounts, if any, as may be required pursuant to subsection 4.12. 4.10 Requirements of Law. (a) If the adoption of or any change in any Requirement of Law or in the interpretation or application thereof or compliance by any Lender with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority made subsequent to the date hereof: (i) shall subject any Lender to any tax of any kind whatsoever with respect to this Agreement, any Note, any Letter of Credit, any Letter of Credit Application, any Foreign Currency Swing Line Loan or any Eurocurrency Loan made by it, or change the basis of taxation of payments to such Lender in respect thereof (except for Non-Excluded Taxes covered by subsection 4.11 and changes in the rate of tax on the overall net income of such Lender); (ii) shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of such Lender (or any affiliate of such Lender from which such Lender customarily obtains funds) which is not otherwise included in the determination of the Eurocurrency Rate hereunder or the rate applicable to any Foreign Currency Swing Line Loan; or (iii) shall impose on such Lender (or such affiliate) any other condition; and the result of any of the foregoing is to increase the cost to such Lender, by an amount which such Lender deems to be material, of making, converting into, continuing or maintaining Eurocurrency Loans or Foreign Currency Swing Line Loans or issuing or participating in Letters of Credit or to reduce any amount receivable hereunder in respect thereof, then, in any such case, the applicable Borrower shall promptly pay such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduced amount receivable. 66 60 (b) If any Lender shall have determined that the adoption of or any change in any Requirement of Law regarding capital adequacy or in the interpretation or application thereof or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy (whether or not having the force of law) from any Governmental Authority made subsequent to the date hereof shall have the effect of reducing the rate of return on such Lender's or such corporation's capital as a consequence of its obligations hereunder or under any Letter of Credit to a level below that which such Lender or such corporation could have achieved but for such adoption, change or compliance (taking into consideration such Lender's or such corporation's policies with respect to capital adequacy) by an amount deemed by such Lender to be material, then from time to time, the applicable Borrower shall promptly pay to such Lender such additional amount or amounts as will compensate such Lender or such corporation for such reduction. (c) If any Lender becomes entitled to claim any additional amounts pursuant to this subsection, such Lender shall promptly notify the applicable Borrower (with a copy to the Administrative Agent) of the event by reason of which it has become so entitled. A certificate as to any additional amounts payable pursuant to this subsection submitted by such Lender to the applicable Borrower (with a copy to the Administrative Agent) shall be conclusive in the absence of manifest error. The agreements in this subsection shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder. 4.11 Taxes. (a) All payments made by the Borrowers under this Agreement, any Notes, any Letters of Credit, any Letter of Credit Application or any Foreign Currency Swing Line Agreement shall be made free and clear of, and without deduction or withholding for or on account of, any present or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings and all interest, penalties or similar liabilities imposed with respect to such tax, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding net income taxes and franchise taxes (imposed in lieu of net income taxes) imposed on the Administrative Agent or any Lender as a result of a present or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent or such Lender having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement or any Note). If any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings ("Non-Excluded Taxes") are required to be withheld from any amounts payable to the Administrative Agent or any Lender hereunder or under any Note, any Letters of Credit or any Letter of Credit Applications, the amounts so payable to the Administrative Agent or such Lender shall be increased to the extent necessary to yield to the Administrative Agent or such Lender (after payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement, provided that the Borrowers shall not be required to increase any such amounts payable to any Lender that is not organized under the laws of the United States or a state thereof if such Lender fails to comply with the requirements of paragraph (b) of this subsection. Whenever any Non-Excluded Taxes are payable by a Borrower, as promptly as possible thereafter such Borrower shall send to the Administrative Agent for its own account or for the account of such Lender, as the case may be, a certified copy of an original official receipt 67 61 received by such Borrower showing payment thereof. If a Borrower fails to pay any Non-Excluded Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent the required receipts or other required documentary evidence, such Borrower shall indemnify the Administrative Agent and the Lenders for any incremental taxes, interest or penalties that may become payable by the Administrative Agent or any Lender as a result of any such failure. The agreements in this subsection shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder. (b) Each Lender that is not incorporated under the laws of the United States or a state thereof shall: (X) in the case of a Lender that is a "bank" within the meaning of Section 881 (c)(3)(A) of the Code,(i) deliver to the Borrower and the Administrative Agent (A) two duly completed copies of United States Internal Revenue Service Form 1001 or 4224, or successor applicable form, as the case may be, and (B) an Internal Revenue Service Form W-8 or W-9, or successor applicable form, as the case may be; (ii) deliver to the Borrower and the Administrative Agent two further copies of any such form or certification on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the Borrower; and (iii) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the Borrower or the Administrative Agent; or (Y) in the case of any such Lender that is not a "bank" within the meaning of Section 881(c)(3)(A) of the Code, (i) represent to the Borrower (for the benefit of the Borrower and the Administrative Agent) that it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (ii) agree to furnish to the Borrower on or before the date of any payment by the Borrower, with a copy to the Administrative Agent, (A) a certificate substantially in the form of Exhibit E (any such certificate a "U.S. Tax Compliance Certificate") and (B) two accurate and complete original signed copies of Internal Revenue Service Form W-8, or successor applicable form certifying to such Lender's legal entitlement at the date of such certificate to an exemption from U.S. withholding tax under the provisions of Section 881(c) of the Code with respect to payments to be made under this Agreement and any Notes (and to deliver to the Borrower and the Administrative Agent two further copies of such form on or before the date it expires or becomes obsolete and after the occurrence of any event requiring a change in the most recently provided form and, if necessary, obtain any extensions of time reasonably requested by the Borrower or the Administrative Agent for filing and completing such forms), and (iii) agree, to the extent legally entitled to do so, upon reasonable request by the Borrower, to provide to the Borrower (for the benefit of the Borrower and the Administrative Agent) such other forms as may be reasonably required in order to establish the legal entitlement of such Lender to an exemption from withholding with respect to payments under this Agreement and any Notes, provided that in determining the reasonableness of a request under this clause (iii) such Lender shall be 68 62 entitled to consider the cost (to the extent unreimbursed by the Borrower) which would be imposed on such Lender of complying with such request; unless in any such case any change in treaty, law or regulation has occurred after the date such Person becomes a Lender hereunder which renders all such forms inapplicable or which would prevent such Lender from duly completing and delivering any such form with respect to it and such Lender so advises the Borrower and the Administrative Agent. Each Person that shall become a Lender or a Participant pursuant to subsection 11.6 shall, upon the effectiveness of the related transfer, be required to provide all of the forms, certifications and statements required pursuant to this subsection, provided that in the case of a Participant the obligations of such Participant pursuant to this paragraph (b) shall be determined as if such Participant were a Lender except that such Participant shall furnish all such required forms, certifications and statements to the Lender from which the related participation shall have been purchased. 4.12 Indemnity. Each Borrower agrees to indemnify each Lender and to hold each Lender harmless from any loss or expense which such Lender may sustain or incur as a consequence of (a) default by such Borrower in making a borrowing of, conversion from or into or continuation of Eurocurrency Loans or Foreign Currency Swing Line Loans after such Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (b) default by such Borrower in making any prepayment of Eurocurrency Standby Loans or Foreign Currency Swing Line Loans after such Borrower has given a notice thereof in accordance with the provisions of this Agreement or (c) the making of a prepayment of Eurocurrency Standby Loans or Foreign Currency Swing Line Loans on a day which is not the last day of an Interest Period or other agreed payment date (in the case of Foreign Currency Swing Line Loans) with respect thereto. Such indemnification may include an amount equal to the excess, if any, of (i) the amount of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or continued, for the period from the date of such prepayment or of such failure to borrow, convert or continue to the last day of such Interest Period or other agreed payment date (in the case of Foreign Currency Swing Line Loans) (or, in the case of a failure to borrow, convert or continue, the Interest Period or other agreed loan period (in the case of Foreign Currency Swing Line Loans) that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Loans provided for herein (excluding, however, the Applicable Margin included therein, if any) over (ii) the amount of interest (as reasonably determined by such Lender) which would have accrued to such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank eurodollar market. This covenant shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder. 4.13 Change of Lending Office; Replacement of Lenders. (a) Each Lender agrees that if it makes any demand for payment under subsection 4.10 or 4.11(a), or if any adoption or change of the type described in subsection 4.9 shall occur with respect to it, it shall use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions and so long as such efforts would not be disadvantageous to it, as determined in its sole discretion) to designate a different lending office if the making of such a designation would reduce or obviate the need for a Borrower to make payments under subsection 4.10 or 4.11(a), or would eliminate or reduce the effect of any adoption or change described in subsection 4.9. 69 63 (b) The Borrower shall be permitted to replace any Lender that (a) requests reimbursement for amounts owing pursuant to subsection 4.10 or 4.11(a) or (b) defaults in its obligation to make Loans hereunder, with a replacement financial institution; provided that (i) such replacement does not conflict with any Requirement of Law, (ii) no Event of Default shall have occurred and be continuing at the time of such replacement, (iii) prior to any such replacement, such Lender shall have taken no action under subsection 4.13(a) so as to eliminate the continued need for payment of amounts owing pursuant to subsection 4.10 or 4.11(a), (iv) the replacement financial institution shall purchase, at par, all Loans and other amounts owing to such replaced Lender on or prior to the date of replacement, (v) the Borrower shall be liable to such replaced Lender under subsection 4.12 if any Eurocurrency Loan owing to such replaced Lender shall be purchased other than on the last day of the Interest Period relating thereto, (vi) the replacement financial institution, if not already a Lender, shall be reasonably satisfactory to the Administrative Agent, (vii) the replaced Lender shall be obligated to make such replacement in accordance with the provisions of subsection 11.6 (provided that the Borrower shall be obligated to pay the registration and processing fee referred to therein), (viii) until such time as such replacement shall be consummated, the Borrower shall pay all additional amounts (if any) required pursuant to subsection 4.10 or 4.11(a), as the case may be, and (ix) any such replacement shall not be deemed to be a waiver of any rights that the Borrower, the Administrative Agent or any other Lender shall have against the replaced Lender. 4.14 Borrower Controls on Non-Dollar Indebtedness; Calculation of Non-Dollar Extensions of Credit; Prepayments. The Borrowers will implement and maintain internal accounting controls to monitor the borrowings and repayments of Foreign Currency Revolving Credit Loans (including Foreign Currency Swing Line Loans and Foreign Currency Competitive Loans), the issuance of and drawings under Foreign Currency Letters of Credit and other Non-Dollar Indebtedness with the object of preventing any request for an extension of credit that would result in the Borrower failing to comply with this Agreement, including subsections 2.1, 2.5, 2.6, 2.7, 3.1 and 8.2, and of promptly identifying and remedying any circumstance where, by reason of changes in exchange rates, the Borrower fails to be in compliance with such subsections. SECTION 5. REPRESENTATIONS AND WARRANTIES To induce the Managing Agents and the Lenders to enter into this Agreement and to make the Loans and issue or participate in the Letters of Credit, each of the Borrowers hereby represents and warrants, on the Closing Date and on any date thereafter on which any Loan or any other extension of credit is requested to be made by any Lender or on which any Letter of Credit is requested to be issued by the Issuing Lender to the Managing Agents and each Lender that: 5.1 Financial Condition. (a) The consolidated balance sheets of the Borrower and its consolidated Subsidiaries as of January 31, 1996, January 31, 1997 and January 31, 1998 and the related consolidated statements of income and of cash flows for the fiscal years ended on such dates, reported on by KPMG Peat Marwick LLP, copies of which have heretofore been furnished to each Lender, are complete and correct and present fairly the consolidated financial condition of the Borrower and its consolidated Subsidiaries as at such dates, and the consolidated results of their operations and their consolidated cash flows for the fiscal years then ended. The unaudited consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at October 31, 1998 and the related unaudited consolidated statements of income and of cash flows for the nine-month period ended on such date, certified by a Responsible Officer, copies of which have heretofore been furnished to each Lender, are complete and correct and present fairly the consolidated financial condition of the Borrower and its consolidated Subsidiaries as at such date, and the consolidated 70 64 results of their operations and their consolidated cash flows for the nine-month period then ended (subject to normal year-end audit adjustments). All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (except as approved by such accountants or Responsible Officer, as the case may be, and as disclosed therein). Neither the Borrower nor any of its consolidated Subsidiaries had, at the date of the most recent balance sheet referred to above, any material Guarantee Obligation, contingent liability or liability for taxes, or any long-term lease or other material agreement or unusual forward or long-term commitment, including, without limitation, any interest rate or foreign currency swap or exchange transaction, which is not reflected in the foregoing statements or in the notes thereto. During the period from January 31, 1998 to and including the Closing Date (other than the Acquisition and as set forth on Schedule 5.1(a) hereto) there has been no sale, transfer or other disposition by the Borrower or any of its consolidated Subsidiaries of any material part of its business or property and no purchase or other acquisition of any business or property (including any capital stock of any other Person) material in relation to the consolidated financial condition of the Borrower and its consolidated Subsidiaries at January 31, 1998. (b) The Borrower has furnished the Lenders with copies of the CMI (i) unaudited consolidated balance sheet as of September 30, 1998 (the "Latest Balance Sheet") and the related consolidated statements of income and cash flow for the four-month period then ended and (ii) audited consolidated balance sheets and consolidated statements of income and cash flow for the fiscal years ended May 31, 1998, 1997 and 1996. Each of the foregoing financial statements (including in all cases the notes thereto, if any) (the "Financial Statements") is correct and complete, presents fairly in all material respects CMI"s and its Subsidiaries" financial condition and results of operations as of the times and for the periods referred to therein, and except as set forth on Schedule 5.1(b) hereto (the "Exceptions to GAAP Schedule") has been prepared in accordance with generally accepted accounting principles consistently applied ("GAAP"), subject in the case of unaudited financial statements to changes resulting from normal year-end audit adjustments and to the absence of footnote disclosure. Without limiting the generality of the foregoing, with respect to the Financial Statements (i) adequate provision has been made for doubtful accounts; (ii) receivables and sales are stated net of discounts, returns and allowances; and (iii) all items of income or expense that are unusual or of a non-recurring nature are separately disclosed on the Financial Statements. As to CMI and its Subsidiaries, no accounts payable have been written off since May 31, 1998 and no provision in the Financial Statements is necessary under GAAP (except as otherwise disclosed therein) for liability for product warranties or the manufacture or sale of defective products. 5.2 No Change; Solvency. Since January 31, 1998, there has been no development or event which has had or could reasonably be expected to have a Material Adverse Effect. As of the Closing Date, after giving effect to the transactions contemplated by the Loan 71 65 Documents, the Borrower and its Subsidiaries are solvent, on a consolidated basis and on an individual basis. 5.3 Corporate Existence; Compliance with Law. Each of the Borrower and the other Loan Parties (a) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (b) has the corporate power and authority, and the legal right, to own and operate its property, to lease the property it operates as lessee and to conduct the business in which it is currently engaged, (c) is duly qualified as a foreign corporation and in good standing under the laws of each jurisdiction where its ownership, lease or operation of property or the conduct of its business requires such qualification, except for jurisdictions in which the failure to so qualify, in the aggregate, could not reasonably be expected to have a Material Adverse Effect, and (d) is in compliance with all Requirements of Law except to the extent that the failure to comply therewith could not, in the aggregate, reasonably be expected to have a Material Adverse Effect. 5.4 Corporate Power; Authorization; Enforceable Obligations. Each of the Borrower and the other Loan Parties has the corporate power and authority, and the legal right, to execute, deliver and perform the Loan Documents to which it is a party and, in the case of the Borrower, to borrow hereunder and each of the Borrower and the other Loan Parties has taken all necessary corporate action to authorize the borrowings on the terms and conditions of this Agreement and any Notes and to authorize the execution, delivery and performance of the Loan Documents to which it is a party. No consent or authorization of, filing with, notice to or other act by or in respect of, any Governmental Authority or any other Person is required to be received, made, given or completed by any of the Loan Parties in connection with the borrowings hereunder or with the execution, delivery, performance, validity or enforceability of the Loan Documents to which the Borrower or any of the other Loan Parties is a party other than those set forth on Schedule 5.4 (which consents, authorizations, filings, notices and other acts have been heretofore received, made, given or completed). This Agreement has been duly executed and delivered by the Borrower, and each of the other Loan Documents to which the Borrower or any of the other Loan Parties is a party will be duly executed and delivered by the Borrower or such other Loan Party. This Agreement constitutes a legal, valid and binding obligation of the Borrower, and each other Loan Document to which the Borrower or any of the other Loan Parties is a party, when executed and delivered by the Borrower or such other Loan Party, will constitute a legal, valid and binding obligation of the Borrower or such other Loan Party, enforceable against the Borrower or such other Loan Party in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing. 5.5 No Legal Bar. The execution, delivery and performance of the Loan Documents to which the Borrower or any of the other Loan Parties is a party, the borrowings hereunder and the use of the proceeds thereof will not violate any Requirement of Law or material Contractual Obligation of the Borrower or of any of the other Loan Parties and will not result in, or require, the creation or imposition of any Lien on any of its or their respective properties or revenues pursuant to any such Requirement of Law or Contractual Obligation (other than the Loan Documents). 72 66 5.6 No Material Litigation. No litigation, investigation or proceeding of or before any arbitrator or Governmental Authority is pending or, to the knowledge of the Borrower, threatened by or against the Borrower or any of the other Loan Parties or against any of its or their respective properties or revenues (a) with respect to any of the Loan Documents or any of the transactions contemplated hereby or thereby or (b) which could reasonably be expected to have a Material Adverse Effect. 5.7 No Default. Neither the Borrower nor any of the other Loan Parties is in default under or with respect to any of its Contractual Obligations in any respect which could reasonably be expected to have a Material Adverse Effect. No Default or Event of Default has occurred and is continuing. 5.8 Ownership of Property; Liens. Each of the Borrower and the other Loan Parties has good record and marketable title in fee simple to, or a valid leasehold interest in, all its material real property, and good title to, or a valid leasehold interest in, all its other material property, and none of such property is subject to any Lien except as permitted by subsection 8.3. The properties encumbered by the Fee Mortgages constitute all of the material real properties owned in fee by the Borrower and the other Loan Parties. 5.9 Intellectual Property. The Borrower and each of the other Loan Parties owns, or is licensed to use, all trademarks, tradenames, copyrights, technology, know-how and processes necessary for the conduct of its business as currently conducted except for those the failure to own or license which could not reasonably be expected to have a Material Adverse Effect (the "Intellectual Property"). No claim has been asserted and is pending by any Person challenging or questioning the use of any such Intellectual Property or the validity or effectiveness of any such Intellectual Property, except for such claims which, in the aggregate, could not reasonably be expected to have a Material Adverse Effect, nor does the Borrower know of any valid basis for any such claim. The use of such Intellectual Property by the Borrower and the other Loan Parties does not infringe on the rights of any Person, except for such infringements that, in the aggregate, could not reasonably be expected to have a Material Adverse Effect. 5.10 No Burdensome Restrictions. No Requirement of Law (other than ongoing compliance in the ordinary course of business with tax laws and Environmental Laws to the extent that the existence thereof could be understood to have a Material Adverse Effect) or Contractual Obligation of the Borrower or any of the other Loan Parties could reasonably be expected to have a Material Adverse Effect. 5.11 Taxes. Each of the Borrower and the other Loan Parties has filed or caused to be filed all United States federal income tax returns and all other material tax returns which, to the knowledge of the Borrower, are required to be filed and has paid all taxes shown to be due and payable on said returns or on any assessments made against it or any of its property and all other taxes, fees or other charges imposed on it or any of its property by any Governmental Authority (other than any taxes, fees or other charges (i) with respect to which the failure to pay, in the aggregate, could not reasonably be expected to have a Material Adverse Effect or (ii) the amount or validity of which are currently being contested in good faith by appropriate 73 67 proceedings and with respect to which reserves in conformity with GAAP have been provided on the books of the Borrower or any of the other Loan Parties, as the case may be); no tax Lien has been filed, and, to the knowledge of the Borrower, no claim is being asserted, with respect to any such tax, fee or other charge. 5.12 Federal Regulations. No part of the proceeds of any Loans or other extensions of credit hereunder have been or will be used "buying" or "carrying" any "margin stock" within the respective meanings of each of the quoted terms under Regulation U as now and from time to time after in effect or for any purpose which violates the provisions of the Regulations of the Board, including, without limitation, Regulation U thereunder. If requested by any Lender or the Administrative Agent, the Borrower will furnish to the Administrative Agent and each Lender a statement to the foregoing effect in conformity with the requirements of FR Form U-1 referred to in said Regulation U. 5.13 ERISA. Neither a Reportable Event nor an "accumulated funding deficiency" (within the meaning of Section 412 of the Code or Section 302 of ERISA) has occurred during the five-year period prior to the date on which this representation is made or deemed made with respect to any Plan, and each Plan has complied in all material respects with the applicable provisions of ERISA and the Code. No termination of a Single Employer Plan has occurred, and no Lien in favor of the PBGC or a Plan has arisen, during such five year period. The present value of all accrued benefits under all Single Employer Plans taken as a whole does not exceed the value of the assets of such Single Employer Plans by more than $75,000,000. Neither the Borrower nor any Commonly Controlled Entity has had a complete or partial withdrawal from any Multiemployer Plan, except that on December 31, 1998, Hayes Lemmerz International-Michigan, Inc. withdrew from National Industrial Group Pension Plan in connection with which neither the Borrower nor any Commonly Controlled Entity has incurred any material obligation or liability, and neither the Borrower nor any Commonly Controlled Entity would become subject to any material liability under ERISA if the Borrower or any such Commonly Controlled Entity were to withdraw completely from all Multiemployer Plans as of the valuation date most closely preceding the date on which this representation is made or deemed made. As of the Closing Date, and to the knowledge of the Borrower on any Borrowing Date thereafter, no such Multiemployer Plan is in Reorganization or Insolvent. 5.14 Collateral. The provisions of each of the Security Documents, when executed and delivered, will constitute in favor of the Administrative Agent for the ratable benefit of the Lenders, a legal, valid and enforceable security interest in all right, title, and interest of the Borrower or any of the other Loan Parties which is a party to such Security Document, as the case may be, in the Collateral described in such Security Document, in the Intercreditor Agreement and in the Intercreditor/Lien Subordination Agreement. As of the Closing Date, all Equipment and Inventory (as each of such terms is defined in the Guarantee and Collateral Agreement) of the Borrower and each other Loan Party will be kept at, or will be in transit to, the locations listed on Schedule 5.14, and when financing statements have been filed in the offices in the jurisdictions listed in Schedule 3 to the Guarantee and Collateral Agreement, when appropriate filings have been made in the U.S. Patent and Trademark Office and the U.S. Copyright Office, and when such other actions as are each described in each of the Security Documents have been taken in accordance with the Security Documents, each of the Security Documents shall constitute a perfected security interest in all right, title and interest of the 74 68 Borrower or such other Loan Parties, as the case may be, in the Collateral described therein, in the Intercreditor Agreement and in the Intercreditor/Lien Subordination Agreement, and except for Liens existing on the Closing Date which are permitted by subsection 8.3 and whose priority cannot be superseded by the provisions hereof or of any Security Document and the filings hereunder or thereunder, a perfected first lien on, and security interest in, all right, title and interest of the Borrower or such other Loan Parties, as the case may be, in the Collateral described in each Security Document, in the Intercreditor Agreement and in the Intercreditor/Lien Subordination Agreement. 5.15 Investment Company Act; Other Regulations. None of the Borrowers is an "investment company", or a company "controlled" by an "investment company", within the meaning of the Investment Company Act of 1940, as amended. None of the Borrowers is subject to regulation under any Federal or State statute or regulation (other than Regulation X of the Board) which limits its ability to incur Indebtedness. 5.16 Subsidiaries and Joint Ventures. Schedule 5.16 hereto sets forth all of the Subsidiaries of the Borrower, and all of the joint ventures in which the Borrower or any of its Subsidiaries has an interest, at the Closing Date, the jurisdiction of their incorporation and the direct or indirect ownership interest of the Borrower therein. 5.17 Purpose of Loans. The Term Loans shall be used solely to finance the Acquisition (including the refinancing of indebtedness in connection therewith) and to pay related fees and expenses, provided that the proceeds of Term Loans denominated in Deutschemarks or euro units will be used to repay Revolving Credit Loans the proceeds of which shall have been used for the foregoing purposes. The Revolving Credit Loans (and Competitive Loans) may be used by the Borrower for the same purposes as the Term Loans (in an amount (excluding amounts that will be repaid with the proceeds of Term Loans denominated in Deutschemarks or euro units) not to exceed $200,000,000) as well as for the general corporate purposes of the Borrower and its Subsidiaries. The Swing Line Loans and Letters of Credit shall be used by the Borrower and its Subsidiaries for ordinary course purposes. 5.18 Environmental Matters. Other than exceptions to any of the following that would not, individually or in the aggregate, reasonably be expected to give rise to a Material Adverse Effect: (i) The Borrower and the other Loan Parties: (A) are, and within the period of all applicable statutes of limitation have been, in compliance with all applicable Environmental Laws; (B) hold all Environmental Permits (each of which is in full force and effect) required for any of their current operations or for any property owned, leased, or otherwise operated by any of them and have no reason to believe that they will not be able to timely obtain without material expense all such Environmental Permits required for planned operations; (C) are, and within the period of all applicable statutes of limitation have been, in compliance with all of their Environmental Permits; and (D) have no reason to believe that: any of their Environmental Permits will not be, or will entail material expense to be, timely renewed or complied with; any additional Environmental Permits that may be required of any of them will not be, or will entail material expense to be, timely granted or complied with; or that compliance with any 75 69 Environmental Law that is applicable to any of them will not be, or will entail material expense to be, timely attained and maintained. (ii) Materials of Environmental Concern have not been generated, transported, disposed of, emitted, discharged, or otherwise released or threatened to be released, to or at any real property presently or formerly owned, leased or operated by the Borrower or any of the other Loan Parties or, to the best knowledge of the Borrower, at any other location, which could reasonably be expected to (A) give rise to liability of the Borrower or any of the other Loan Parties under any applicable Environmental Law, or (B) interfere with the Borrower's or any other Loan Party's planned or continued operations, or (C) impair the fair saleable value of any real property owned or leased by the Borrower or any other Loan Parties. (iii) There is no judicial, administrative, or arbitral proceeding (including any notice of violation or alleged violation) under any Environmental Law to which the Borrower or any of the other Loan Parties is named as a party that is pending or, to the knowledge of the Borrower, threatened. (iv) Neither the Borrower nor any of the other Loan Parties has received any written request for information, or been notified that it is a potentially responsible party, under the federal Comprehensive Environmental Response, Compensation, and Liability Act or any similar Environmental Law, or received any other written request for information with respect to any Materials of Environmental Concern. (v) Neither the Borrower nor any of the other Loan Parties has entered into or agreed to any consent decree, order, or settlement or other agreement, nor is subject to any judgment, decree, or order or other agreement, in any judicial, administrative, arbitral, or other forum, relating to compliance with or liability under any Environmental Law, as to which any obligation has not been fully and finally resolved. (vi) Neither the Borrower nor any of its Subsidiaries has assumed or retained, by contract or, to the best knowledge of the Borrower, by operation of law, any liabilities of any kind, fixed or contingent, known or unknown, under any Environmental Law or with respect to any Material of Environmental Concern. 5.19 Regulation H. Except as otherwise disclosed in writing to the Administrative Agent, no Fee Mortgage or Leasehold Mortgage encumbers improved real property which is located in an area that has been identified by the Secretary of Housing and Urban Development as an area having special flood hazards and in which flood insurance has been made available under the National Flood Insurance Act of 1968. 5.20 No Material Misstatements. The written information, reports, financial statements, exhibits and schedules furnished by or on behalf of the Borrower and each other Loan Party to the Administrative Agent or the other Managing Agents and the Lenders in connection with the negotiation of any Loan Document or included therein or delivered pursuant thereto do not contain, and will not contain as of the Closing Date, any material misstatement of fact and do not, taken as a whole, omit, and will not, taken as a whole, omit as of the Closing Date, to state any material fact necessary to make the statements therein, in the light of the circumstances under 70 76 70 which they were made, not materially misleading. It is understood that no representation or warranty is made concerning the forecasts, estimates, pro forma information, projections and statements as to anticipated future performance or conditions, and the assumptions on which they were based, contained in any such information, reports, financial statements, exhibits or schedules, except that as of the date such forecasts, estimates, pro forma information, projections and statements were generated, (a) such forecasts, estimates, pro forma information, projections and statements were based on the good faith assumptions of the management of the Borrower and (b) such assumptions were believed by such management to be reasonable. 5.21 Labor Matters. There are no strikes pending or, to the knowledge of the Borrower, threatened against the Borrower or any other Loan Party which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect. The hours worked and payments made to employees of the Borrower and each other Loan Party have not been in violation of any applicable laws, rules or regulations, except where such violations would not reasonably be expected to have a Material Adverse Effect. 5.22 Year 2000. Any reprogramming required to permit the proper functioning, in and following the year 2000, of the Borrower's (i) computer systems and (ii) equipment containing embedded microchips and the testing of all such systems and equipment, as so reprogrammed, will be completed by October 31, 1999. The Borrower has not received any written notice and no senior systems officer has received any oral notice from any Person with regard to systems and equipment supplied by others or with which the Borrower's systems interface that any of such systems or equipment will not be Year 2000 compliant on or before November 30, 1999. The reasonably estimated cost to the Borrower of such reprogramming and testing and of the reasonably foreseeable consequences of year 2000 to the Borrower is not reasonably likely to result in an Event of Default or a Material Adverse Effect. Except for such of the reprogramming referred to in the preceding sentence as may be necessary, the computer and management information systems of the Borrower and its Subsidiaries are and, with such upgrading and maintenance as the Borrower reasonably determines is necessary, will continue for the term of this Agreement to be, sufficient to permit the Borrower to conduct its business without a Material Adverse Effect. SECTION 6. CONDITIONS PRECEDENT 6.1 Conditions to Effectiveness. The effectiveness of the agreement of each Lender to make and/or continue the Loans or other extensions of credit requested to be made and/or continued by it hereunder is subject to the satisfaction, immediately prior to or concurrently with the making and/or continuation of such Loans or other extensions of credit on the Closing Date (provided that the Closing Date shall occur on or before March 1, 1999), of the following conditions precedent: (a) Loan Documents. The Administrative Agent shall have received on or prior to the Closing Date (i) this Agreement, executed and delivered by a duly authorized officer of the Borrower, with a counterpart for each Lender, (ii) for the account of each of the Lenders which has requested a Note pursuant to the terms hereof, a Revolving Credit Note, a Swing Line Note or a Term Note, as the case may be, each conforming to the 77 71 requirements hereof and executed and delivered by a duly authorized officer of the Borrower, (iii) the Guarantee and Collateral Agreement, executed and delivered by a duly authorized officer of each party thereto, with a counterpart or a conformed copy for each Lender, (iv) the Copyright, Patent and Trademark Security Agreement, executed and delivered by a duly authorized officer of the Borrower and the other signatories thereto, with a counterpart or a conformed copy for each Lender, (v) such amendments to the Mortgages existing prior to the Closing Date as may be reasonably requested by the Administrative Agent, each executed and delivered by a duly authorized officer of each party thereto, with a counterpart or conformed copy for each Lender, (vi) Mortgages in respect of the real property acquired by the Borrower and its Subsidiaries pursuant to the Acquisition, each executed and delivered by a duly authorized officer of each party thereto, with a counterpart or conformed copy for each Lender, (vii) the Mexican Stock Pledge Agreement, executed and delivered by a duly authorized officer of each party thereto, with a counterpart or conformed copy for each Lender and (viii) such confirmations of the Foreign Stock Pledge Agreements as the Administrative Agent may reasonably request, each executed and delivered by a duly authorized officer of each party thereto, with a counterpart or conformed copy for each Lender. (b) Existing Indebtedness. Other than obligations outstanding under the Prior Credit Agreement, all principal, interest, fees and other amounts outstanding under the Refinanced Debt shall have been repaid in full, the commitments thereunder terminated and all guarantees thereof and security therefor released, and the Arrangers shall have received reasonably satisfactory evidence thereof, and after giving effect to the Transactions and the other transactions contemplated hereby, the Borrower, CMI and their respective Subsidiaries shall have outstanding no Indebtedness or preferred Capital Stock other than (a) the loans under the credit facilities provided for herein, (b) the Senior Subordinated Notes, (c) certain existing Indebtedness of Foreign Subsidiaries, (d) certain existing other Indebtedness, guarantees or other obligations (contingent or otherwise) of Foreign Subsidiaries and (e) other Indebtedness or preferred Capital Stock permitted or not prohibited herein. (c) Financial Information. On or prior to the Closing Date, the Lenders shall have received copies of and shall be reasonably satisfied, in form and substance, with the financial statements referred to in subsection 5.1, including, without limitation, the Pro Forma Balance Sheet. The financial statements referred to in subsection 5.1(b) and the Pro Forma Balance Sheet, in each case, shall not be materially inconsistent with the applicable forecasts previously provided to the Lenders. (d) Borrowing Certificate. On or prior to the Closing Date, the Administrative Agent shall have received, with a counterpart for each Lender, a certificate of the Borrower, dated the Closing Date, substantially in the form of Exhibit C, with appropriate insertions and attachments, satisfactory in form and substance to the Administrative Agent, executed by the President or any Vice President and the Secretary or any Assistant Secretary of the Borrower. (e) Corporate Proceedings of the Loan Parties. On or prior to the Closing Date, the Administrative Agent shall have received, with a counterpart for each Lender, a 78 72 copy of the resolutions, in form and substance satisfactory to the Administrative Agent, of the Board of Directors of each of the Loan Parties authorizing (i) the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party, (ii) in the case of the Borrower, the borrowings contemplated hereunder and (iii) the granting by it of the Liens created pursuant to the Security Documents, certified by the Secretary or an Assistant Secretary of such Loan Party as of the Closing Date, which certificate shall be in form and substance satisfactory to the Administrative Agent and shall state that the resolutions thereby certified have not been amended, modified, revoked or rescinded. (f) Incumbency Certificate of the Loan Parties. On or prior to the Closing Date, the Administrative Agent shall have received, with a counterpart for each Lender, a certificate of each of the Loan Parties, dated the Closing Date, as to the incumbency and signature of the officers of such Loan Party executing any Loan Document satisfactory in form and substance to the Administrative Agent, executed by the President or any Vice President and the Secretary or any Assistant Secretary of such Loan Party. (g) Corporate Documents. On or prior to the Closing Date, the Administrative Agent shall have received, with a counterpart for each Lender, true and complete copies of the certificate of incorporation and by-laws of each of the Loan Parties, certified as of the Closing Date as complete and correct copies thereof by the Secretary or an Assistant Secretary of such Loan Party (provided that if a Loan Party has previously provided any of such documents to the Administrative Agent and such documents have not been amended, supplemented or otherwise modified since such time, then such Loan Party may so certify to the Lenders rather than delivering to the Administrative Agent an additional copy of such document). (h) Consents, Licenses and Approvals. On or prior to the Closing Date, the Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower stating that all consents, licenses and filings referred to in subsection 5.4 are in full force and effect. (i) Fees. The Administrative Agent and the Lenders shall have received the fees to be received on the Closing Date referred to in subsection 2.4. (j) Legal Opinions. On or prior to the Closing Date, the Administrative Agent shall have received, with a counterpart for each Lender, the executed legal opinion of the general counsel or assistant general counsel of the Borrower, substantially in the form of Exhibit D, with such changes thereto as may be approved by the Administrative Agent. Such legal opinion shall cover such other matters incident to the transactions contemplated by this Agreement as the Administrative Agent may reasonably require. (k) Pledged Stock; Stock Powers; Pledged Notes. The Administrative Agent shall possess the certificates representing the shares pledged pursuant to the Guarantee and Collateral Agreement and the Foreign Stock Pledge Agreements, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof, and the notes pledged pursuant to the Guarantee 79 73 and Collateral Agreement, each endorsed in blank by a duly authorized officer of the pledgor thereof, and each of the pledgors to the Foreign Stock Pledge Agreements shall have consented to the terms of this Agreement and confirmed its pledge in connection herewith. (l) Actions to Perfect Liens. On or prior to the Closing Date, the Administrative Agent shall have received evidence in form and substance satisfactory to it that all filings, recordings, registrations and other actions, including, without limitation, the filing of duly executed financing statements on Form UCC-1, necessary or, in the opinion of the Administrative Agent, desirable to perfect the Liens created by the Security Documents shall have been completed or that all such financing statements and other documents with respect to such filings, recordings, registrations and other actions shall have been delivered to the Administrative Agent. (m) Transactions. The Transactions shall have been consummated or shall be consummated simultaneously on the Closing Date, in each case in all material respects in accordance with the terms hereof and the terms of the relevant documentation therefor (and without the waiver of any such terms). (n) Solvency Opinion. The Arrangers and the Lenders shall have received an opinion, reasonably satisfactory in all respects to the Lenders and the Arrangers, from an independent valuation firm reasonably satisfactory to the Lenders and the Arrangers, to the effect that, after giving effect to the Transactions, the Borrower and its Subsidiaries will not (a) be insolvent, (b) be rendered insolvent by the indebtedness incurred in connection therewith, (c) be left with unreasonably small capital with which to engage in its business or (d) have incurred debts beyond its ability to pay such debts as they mature; (o) Structure; Insurance. The Arrangers shall be satisfied that there shall not have occurred any material change in the capital, corporate and organizational structure of the Borrower, CMI and their respective subsidiaries (after giving effect to the Transactions), and the Borrower shall have obtained insurance in compliance with the terms hereof. 6.2 Conditions to Each Extension of Credit. The agreement of each Lender to make any Loan or any other extension of credit requested to be made by it on any date (including, without limitation, its initial extension of credit), and of the Issuing Lender to issue any Letter of Credit requested to be issued by it on any date, is subject to the satisfaction of the following conditions precedent: (a) Representations and Warranties. Each of the representations and warranties made by the Borrower and any other Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects on and as of such date as if made on and as of such date, except for representations and warranties stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects on and as of such earlier date. 80 74 (b) No Default. No Default or Event of Default shall have occurred and be continuing on such date or after giving effect to the extensions of credit requested to be made on such date. (c) Additional Matters. All corporate and other proceedings, and all documents, instruments and other legal matters in connection with the transactions contemplated by this Agreement and the other Loan Documents shall be satisfactory in form and substance to the Administrative Agent, and the Administrative Agent shall have received such other documents and legal opinions in respect of any aspect or consequence of the transactions contemplated hereby or thereby as it shall reasonably request. Each borrowing by and Letter of Credit issued on behalf of the Borrower hereunder shall constitute a representation and warranty by the Borrower as of the date thereof that the conditions contained in this subsection have been satisfied. SECTION 7. AFFIRMATIVE COVENANTS The Borrower hereby agrees that, on and after the Closing Date and so long as the Commitments remain in effect or any Letter of Credit remains outstanding and unpaid or any amount is owing to any Lender or the Administrative Agent hereunder or under any other Loan Document, the Borrower shall and (except in the case of delivery of financial information, reports and notices) shall cause each of its Subsidiaries to: 7.1 Financial Statements. Furnish to each Lender: (a) as soon as available, but in any event within 90 days after the end of each fiscal year of the Borrower, a copy of the Consolidated and Consolidating balance sheets of the Borrower and its consolidated Subsidiaries as at the end of such year and the related Consolidated and Consolidating statements of income and Consolidated statements of retained earnings and of cash flows for such year, setting forth (i) in the case of such Consolidated balance sheet, in comparative form the budgeted figures as at the end of such fiscal year and the figures as at the end of the previous fiscal year and (ii) in the case of such Consolidated statements of income and of cash flows, in comparative form the budgeted figures for such fiscal year and the figures for the previous fiscal year, reported on, in the case of such Consolidated financial statements, without a "going concern" or like qualification or exception, or qualification arising out of the scope of the audit, by KPMG Peat Marwick or other independent certified public accountants of nationally recognized standing; and (b) as soon as available, but in any event within 45 days after the end of each of the first three quarterly periods of each fiscal year of the Borrower, the unaudited Consolidated balance sheets of the Borrower and its consolidated Subsidiaries as at the end of such quarter and the related unaudited Consolidated statements of income and of cash flows of the Borrower and its consolidated Subsidiaries for such quarter and the portion of the fiscal year through the end of such quarter, setting forth (i) in the case of such Consolidated balance sheet, in comparative form the budgeted figures as at the end 81 75 of such quarter and the figures as at the end of the corresponding quarter of the previous fiscal year and (ii) in the case of such Consolidated statements of income and of cash flows, in comparative form the budgeted figures for such quarter and the figures for the corresponding quarter of the previous fiscal year, certified by a Responsible Officer as being fairly stated in all material respects (subject to normal year-end audit adjustments); all such financial statements shall be complete and correct in all material respects and shall be prepared in reasonable detail and in accordance with GAAP applied consistently throughout the periods reflected therein and with prior periods (except as approved by such accountants or Responsible Officer, as the case may be, and disclosed therein). 7.2 Certificates; Other Information. Furnish to each Lender: (a) concurrently with the delivery of the financial statements referred to in subsection 7.1(a), a certificate of the independent certified public accountants reporting on such financial statements stating that in connection with their audit nothing has come to their attention to cause them to believe that the Borrower or any of its Subsidiaries failed to comply with the covenants contained in Section 8; provided that such audit shall not have been directed primarily toward obtaining knowledge of such noncompliance, except as specified in such certificate; (b) concurrently with the delivery of the financial statements referred to in subsections 7.1(a) and (b), a certificate of a Responsible Officer ("Compliance Certificate") stating that, to the best of such Officer's knowledge, during such period (i) no Subsidiary has been formed or acquired (or, if any such Subsidiary has been formed or acquired, the Borrower has complied with the requirements of subsection 7.10 with respect thereto), (ii) neither the Borrower nor any of its Subsidiaries has changed its name, its principal place of business, its chief executive office or the location of any material item of tangible Collateral without complying with the requirements of this Agreement and the Security Documents with respect thereto, (iii) the Borrower has observed or performed all of its covenants and other agreements, and satisfied every condition, contained in this Agreement and the other Loan Documents to be observed, performed or satisfied by it, and (iv) the Borrower has set forth in reasonable detail any and all calculations necessary to show compliance with subsection 2.1(a) (including, but not limited to, the proviso therein (for which the Borrower shall calculate and provide the Dollar Equivalent Amount of the Aggregate Outstanding Revolving Credit for the first day of the thirty-day compliance period provided for therein)) and all of the financial condition covenants set forth in subsections 8.1 and 8.9, including, without limitation, calculations and reconciliations, if any, necessary to show compliance with such financial condition covenants on the basis of generally accepted accounting principles in the United States consistent with those utilized in preparing the audited financial statements referred to in subsection 5.1, and that such Officer has obtained no knowledge of any Default or Event of Default except as specified in such certificate; (c) not later than 45 days after the end of each fiscal year of the Borrower, a copy of the projections by the Borrower of the balance sheet, statement of income and statement of cash flows on a consolidated basis of the Borrower and its Subsidiaries for 82 76 each of the next succeeding two fiscal years, such projections to be accompanied by a certificate of a Responsible Officer to the effect that such projections have been prepared on the basis of sound financial planning practice and that such Officer has no reason to believe they are incorrect or misleading in any material respect; (d) within five days after the same are sent, copies of all financial statements and reports which the Borrower sends to its stockholders generally, and within five days after the same are filed, copies of all financial statements and reports which the Borrower may make to, or file with, the Securities and Exchange Commission or any successor or analogous Governmental Authority; and (e) promptly, such additional financial and other information as any Lender may from time to time reasonably request. 7.3 Payment of Obligations. Pay, discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all its obligations of whatever nature, including, without limitation, taxes, except where (a) the amount or validity thereof is currently being contested in good faith by appropriate proceedings and reserves in conformity with GAAP with respect thereto have been provided on the books of the Borrower or its Subsidiaries, as the case may be, or (b) the failure to so pay, discharge or otherwise satisfy such obligations could not, in the aggregate, be reasonably be expected to have a Material Adverse Effect. 7.4 Conduct of Business and Maintenance of Existence. Continue to engage in business of the same general type as now conducted by it and preserve, renew and keep in full force and effect its corporate existence and take all reasonable action to maintain all rights, privileges and franchises necessary or desirable in the normal conduct of its business except as otherwise permitted pursuant to subsection 8.5; comply with all Contractual Obligations and Requirements of Law except to the extent that failure to comply therewith could not, in the aggregate, be reasonably expected to have a Material Adverse Effect. 7.5 Maintenance of Property; Insurance. Keep all property useful and necessary in its business in good working order and condition, reasonable wear and tear excepted; maintain with financially sound and reputable insurance companies insurance on all the Collateral in accordance with the requirements of Section 5.3 of the Guarantee and Collateral Agreement, Section 5 of each of the Fee Mortgages and Section 5 of each of the Leasehold Mortgages and on all its other property in at least such amounts (including as to amounts of deductibles) and against at least such risks (but including in any event commercial general liability, product liability and business interruption) as are usually insured against in the same general area by companies engaged in the same or a similar business; and furnish to each Lender, upon written request, full information as to the insurance carried. 7.6 Inspection of Property; Books and Records; Discussions. Keep proper books of records and account in which full, true and correct entries in conformity with GAAP and all Requirements of Law shall be made of all dealings and transactions in relation to its business and activities; and permit representatives of any Lender to visit and inspect any of its properties and examine and make abstracts from any of its books and records at any reasonable time and upon reasonable notice and as often as may reasonably be desired and to discuss the business, 83 77 operations, properties and financial and other condition of the Borrower and its Subsidiaries with officers and employees of the Borrower and its Subsidiaries and with its independent certified public accountants (provided that any officers or employees of the Borrower shall be permitted to be present at any such discussions between representatives of any Lender and the Borrower's independent certified public accountants). 7.7 Notices. Promptly give notice to the Administrative Agent and each Lender of: (a) the occurrence of any Default or Event of Default; (b) any (i) default or event of default under any Contractual Obligation of the Borrower or any of its Subsidiaries, including, without limitation, under the Senior Subordinated Notes or (ii) litigation, investigation or proceeding which may exist at any time between the Borrower or any of its Subsidiaries and any Governmental Authority, which in either case, if not cured or if adversely determined, as the case may be, could reasonably be expected to have a Material Adverse Effect; (c) any litigation or proceeding affecting the Borrower or any of its Subsidiaries (i) in which the amount involved is $30,000,000 or more and not covered by insurance or (ii) in which injunctive or similar relief is sought which could reasonably be expected to have a Material Adverse Effect; (d) the following events, as soon as possible and in any event within 30 days after the Borrower knows or has reason to know thereof: (i) the occurrence or expected occurrence of any Reportable Event with respect to any Plan, a failure to make any required contribution to a Plan, the creation of any Lien in favor of the PBGC or a Plan or any withdrawal from, or the termination, Reorganization or Insolvency of, any Multiemployer Plan or (ii) the institution of proceedings or the taking of any other action by the PBGC or the Borrower or any Commonly Controlled Entity or any Multiemployer Plan with respect to the withdrawal from, or the terminating, Reorganization or Insolvency of, any Plan; (e) any material adverse change in the business, operations, property, condition (financial or otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole; and (f) as soon as possible after a Responsible Officer of the Borrower knows or reasonably should know thereof, (i) any release or discharge by the Borrower or any of its Subsidiaries of any Materials of Environmental Concern required to be reported under applicable Environmental Laws to any Governmental Authority, unless the Borrower reasonably determines that the total Environmental Costs arising out of such release or discharge are unlikely to exceed $30,000,000 or to have a Material Adverse Effect; (ii) any condition, circumstance, occurrence or event not previously disclosed in writing to the Administrative Agent that could result in liability under applicable Environmental Laws unless the Borrower reasonably determines that the total Environmental Costs arising out of such condition, circumstance, occurrence or event are unlikely to exceed 84 78 $30,000,000 or to have a Material Adverse Effect, or could result in the imposition of any Lien or other restriction on the title, ownership or transferability of any facilities and properties owned, leased or operated by the Borrower or any of its Subsidiaries that could reasonably be expected to have a Material Adverse Effect; and (iii) any proposed action to be taken by the Borrower or any of its Subsidiaries that would reasonably be expected to subject the Borrower or any of its Subsidiaries to any material additional or different requirements or liabilities under Environmental Laws, unless the Borrower determines that the total Environmental Costs arising out of such proposed action are unlikely to exceed $30,000,000 or to have a Material Adverse Effect. Each notice pursuant to this subsection shall be accompanied by a statement of a Responsible Officer setting forth details of the occurrence referred to therein and stating what action the Borrower proposes to take with respect thereto. 7.8 Environmental Laws. (a) (i) Comply substantially with, and undertake all reasonable efforts to ensure substantial compliance by all tenants, subtenants, and contractors with, all applicable Environmental Laws; (ii) obtain, comply substantially with and maintain any and all Environmental Permits necessary for its operations as conducted and as planned; and (iii) undertake all reasonable efforts to ensure that all tenants, subtenants, and contractors obtain, comply substantially with and maintain any and all Environmental Permits necessary for their operations as conducted and as planned, with respect to any property leased or subleased from, or operated by the Borrower or its Subsidiaries. For purposes of this subsection 7.8(a), the Borrower and its Subsidiaries shall be deemed to comply substantially, or require substantial compliance, with an Environmental Law or an Environmental Permit, provided that they comply with subsection 7.8(c) and that, upon learning of any actual or suspected noncompliance, the Borrower and any such affected Subsidiary shall promptly undertake all reasonable efforts, if any, to achieve compliance, and provided, further, that in any case such noncompliance would not reasonably be expected to have a Material Adverse Effect. (b) Promptly comply with all orders and directives of all Governmental Authorities regarding Environmental Laws, other than any such order or directive as to which an appeal or other appropriate contest is or has been timely and properly taken, is being diligently pursued in good faith, and the pendency of such appeal or other appropriate contest would not reasonably be expected to have a Material Adverse Effect. (c) Maintain, update as appropriate, and implement in all material respects an environmental program reasonably designed to (i) ensure that the Borrower, its Subsidiaries, any of their respective operations (including, without limitation, disposal), and any properties owned, leased or operated by any of them, attain and remain in substantial compliance with all applicable Environmental Laws and (ii) reasonably and prudently manage any liabilities or potential liabilities that the Borrower, any of the other Loan Parties, any of their respective operations (including, without limitation, disposal), and any properties owned or leased by any of them, may have under all applicable Environmental Laws. 7.9 Further Assurances. Upon the reasonable request of the Administrative Agent, promptly perform or cause to be performed any and all acts and execute or cause to be executed any and all documents (including, without limitation, financing statements and 85 79 continuation statements) for filing under the provisions of the Uniform Commercial Code or any other Requirement of Law which are reasonably necessary or advisable to maintain in favor of the Administrative Agent, for the benefit of the Lenders, Liens on the Collateral that are duly perfected in accordance with all applicable Requirements of Law. 7.10 Additional Collateral. (a) With respect to any assets (or any interest therein) acquired after the Closing Date by the Borrower or any of its Subsidiaries (excluding (x) real estate (including leasehold interests therein) the fair market value of which is less than $2,000,000 per parcel, (y) any assets described in paragraph (b) or (c) of this subsection and (z) any asset acquired by a Foreign Subsidiary) as to which the Administrative Agent, for the benefit of the Lenders, does not have a perfected Lien, promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent such amendments to the relevant Security Documents or such other documents as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on such assets (or such interest therein), (ii) take all actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including, without limitation, the filing of financing statements and the recording of Mortgages in such jurisdictions as may be requested by the Administrative Agent (provided that the Borrower and its Subsidiaries shall not be required to deliver certificates to the Administrative Agent in respect of (A) any foreign joint venture equity interest (i.e. an equity interest of 50% or less of the outstanding equity interests of a joint venture) owned by (x) the Borrower and/or any Domestic Subsidiary or Subsidiaries the fair market value of which is less than $30,000,000 or (y) any Foreign Subsidiary, (B) any domestic joint venture equity interest (i.e. an equity interest of 50% or less of the outstanding equity interests of a joint venture) owned by the Borrower and/or any Domestic Subsidiary, the fair market value of which is less than $2,000,000 or (C) any joint venture equity interest with respect to which such delivery is prohibited by the organizational documents of such joint venture), (iii) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent, and (iv) if reasonably requested by the Administrative Agent, deliver to the Administrative Agent surveys, title insurance and flood insurance. (b) With respect to any Person that, subsequent to the Closing Date, becomes a Subsidiary (other than a Foreign Subsidiary and provided that a Subsidiary shall not be required to comply with the provisions of this subsection 7.10(b) until such time as the fair market value of its assets is greater than $2,000,000), promptly: (i) execute and deliver to the Administrative Agent, for the benefit of the Lenders, a new Pledge Agreement or such amendments to the Guarantee and Collateral Agreement as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on the Capital Stock of such Subsidiary which is owned by the Borrower or any of its Subsidiaries, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated stock powers executed and delivered in blank by a duly authorized officer of the Borrower or such Subsidiary, as the case may be, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement or to a new Security Agreement, in each case pursuant to an annex to the Guarantee and Collateral Agreement or otherwise pursuant to documentation which is in form and substance satisfactory to the Administrative Agent, and (B) 86 80 to take all actions necessary or advisable to cause the Lien created by the Guarantee and Collateral Agreement or such Security Agreement to be duly perfected in accordance with all applicable Requirements of Law, including, without limitation, the filing of financing statements in such jurisdictions as may be requested by the Administrative Agent and (iv) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i), (ii) and (iii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. (c) With respect to any Person that subsequent to the Closing Date becomes a Foreign Subsidiary (provided that the requirements of this subsection 7.10(c) need not be complied with until such time as the aggregate fair market value of the assets of such Foreign Subsidiary is greater than $2,000,000) shares of the Capital Stock of which are owned directly by the Borrower or a Domestic Subsidiary, promptly upon the request of the Administrative Agent: (i) execute and deliver to the Administrative Agent a new Pledge Agreement or such amendments to the Collateral and Guarantee Agreement as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on the Capital Stock of such Subsidiary (provided that in no event shall more than 65% of the Capital Stock of any such Subsidiary be required to be so pledged), (ii) deliver to the Administrative Agent any certificates representing such Capital Stock, together with undated stock powers executed and delivered in blank by a duly authorized officer of the Borrower or such Subsidiary, as the case may be, and take or cause to be taken all such other actions under the law of the jurisdiction of organization of such Foreign Subsidiary as may be necessary or advisable to perfect such Lien on such Capital Stock and (iii) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. (d) At its own expense, request, and use reasonable efforts to obtain, prior to entering into a lease of a facility located in the United States at which Inventory of any of the Loan Parties the fair market value of which exceeds $5,000,000 will be located on or after the Closing Date, a consent, in such form as may be reasonably satisfactory to the Administrative Agent, from the landlord of each such facility, pursuant to which such landlord acknowledges the Administrative Agent's first priority security interest in such Inventory. 7.11 Title Insurance. Within 30 days after the Closing Date, deliver to the Administrative Agent all title insurance, surveys and customary related documents in connection with the Mortgages and amendments to the Mortgages. SECTION 8. NEGATIVE COVENANTS The Borrower hereby agrees that on and after the Closing Date and, so long as the Commitments remain in effect or any Letter of Credit remains outstanding and unpaid or any amount is owing to any Lender or the Administrative Agent hereunder or under any other Loan Document, the Borrower shall not, and (except with respect to subsection 8.1) shall not permit any of its Subsidiaries to, directly or indirectly: 87 81 8.1 Financial Condition Covenants. (a) Leverage Ratio. Permit the Leverage Ratio as of the end of each fiscal quarter of the Borrower set forth below to be greater than the ratio set forth opposite such fiscal quarter set forth below: Fiscal Quarter Leverage Ratio 1999 1st 5.50 to 1.00 2nd 5.50 to 1.00 3rd 5.25 to 1.00 4th 5.25 to 1.00 2000 1st 5.00 to 1.00 2nd 5.00 to 1.00 3rd 4.75 to 1.00 4th 4.75 to 1.00 2001 1st 4.50 to 1.00 2nd 4.25 to 1.00 3rd 4.00 to 1.00 4th 3.75 to 1.00 2002 1st 3.50 to 1.00 2nd 3.50 to 1.00 3rd 3.50 to 1.00 4rd 3.50 to 1.00 2003 1st 3.25 to 1.00 2nd 3.25 to 1.00 3rd 3.25 to 1.00 4rd 3.25 to 1.00 2004 1st 3.25 to 1.00 2nd 3.25 to 1.00 3rd 3.25 to 1.00 4th 3.25 to 1.00 (b) Interest Coverage Ratio. Permit the Interest Coverage Ratio as of the end of each fiscal quarter of the Borrower set forth below to be less than the ratio set forth opposite such fiscal quarter set forth below: 88 82 Fiscal Quarter Interest Coverage Ratio 1999 1st 2.00 to 1.00 2nd 2.00 to 1.00 3rd 2.00 to 1.00 4th 2.00 to 1.00 2000 1st 2.00 to 1.00 2nd 2.00 to 1.00 3rd 2.25 to 1.00 4th 2.25 to 1.00 2001 1st 2.25 to 1.00 2nd 2.25 to 1.00 3rd 2.50 to 1.00 4th 2.75 to 1.00 2002 1st 2.75 to 1.00 2nd 2.75 to 1.00 3rd 3.00 to 1.00 4th 3.00 to 1.00 2003 1st 3.00 to 1.00 2nd 3.00 to 1.00 3rd 3.00 to 1.00 4th 3.00 to 1.00 2004 1st 3.00 to 1.00 2nd 3.00 to 1.00 3rd 3.00 to 1.00 4th 3.00 to 1.00 (c) Fixed Charge Coverage Ratio. Permit the Fixed Charge Coverage Ratio as of the end of each fiscal quarter of the Borrower set forth below to be less than the ratio set forth opposite such fiscal quarter set forth below: Fiscal Quarter Fixed Charge Coverage Ratio 1999 1st 1.00 to 1.00 2nd 1.00 to 1.00 3rd 1.00 to 1.00 4th 1.00 to 1.00 2000 1st 1.00 to 1.00 2nd 1.00 to 1.00 3rd 1.05 to 1.00 89 83 4th 1.05 to 1.00 2001 1st 1.05 to 1.00 2nd 1.05 to 1.00 3rd 1.05 to 1.00 4th 1.05 to 1.00 2002 1st 1.05 to 1.00 2nd 1.05 to 1.00 3rd 1.05 to 1.00 4th 1.10 to 1.00 2003 1st 1.10 to 1.00 2nd 1.10 to 1.00 3rd 1.10 to 1.00 4th 1.15 to 1.00 2004 1st 1.15 to 1.00 2nd 1.15 to 1.00 3rd 1.15 to 1.00 4th 1.15 to 1.00 8.2 Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except: (a) Indebtedness of the Borrower and its Subsidiaries under this Agreement and any Notes (including, without limitation, Swing Line Loans in an aggregate principal amount not to exceed $100,000,000); (b) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; (c) Dollar Indebtedness evidenced by the Borrower Notes and the Senior Subordinated Notes and, in the case of such Borrower Notes, any refinancings, refundings, renewals or extensions thereof; provided that the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension of such Borrower Notes and the terms and conditions thereof (including, without limitation, terms and conditions relating to the interest rate, fees, amortization, maturity, subordination (provided that such terms and conditions relating to subordination are no less favorable to the Lenders than those of such Borrower Notes), covenants, events of default and remedies) are no less favorable to the Borrower than those of such Borrower Notes as in effect on the Closing Date; (d) Dollar Indebtedness and Non-Dollar Indebtedness of the Borrower and its Subsidiaries under Permitted Hedging Arrangements permitted by subsection 8.15; (e) Indebtedness of the Borrower and the Guarantor Subsidiaries outstanding on the Closing Date listed on Schedule 8.2(e) and any refinancings, 90 84 refundings, renewals or extensions thereof; provided that the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension; (f) Indebtedness of a Person which becomes a Guarantor Subsidiary after the Closing Date; provided that (i) such Indebtedness existed at the time such Person became a Subsidiary and was not created in anticipation thereof and (ii) immediately after giving effect to the acquisition of such Person by the Borrower or a Subsidiary no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof; provided that the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension; (g) Indebtedness of the Borrower or any of its Guarantor Subsidiaries incurred to finance the acquisition of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) in an aggregate principal amount not exceeding as to the Borrower and its Guarantor Subsidiaries $125,000,000 at any time outstanding; (h) Indebtedness of the Borrower and its Subsidiaries under uncommitted lines of credit in an aggregate outstanding principal Dollar Equivalent Amount not exceeding at any time the lesser of (i) the then Available Revolving Credit Commitments (other than any such Available Revolving Credit Commitments required to be maintained pursuant to subsection 4.3(h)) and (ii) $50,000,000; (i) Indebtedness incurred by the Borrower or any of its Subsidiaries in connection with a Permitted Receivable Financing; provided that the Net Cash Proceeds of such Indebtedness shall be applied to make mandatory prepayments of the Loans or pay or prepay other outstanding Indebtedness of the Borrower and its Guarantor Subsidiaries pursuant to subsection 4.3(b); (j) Indebtedness of the Borrower and its Guarantor Subsidiaries in an aggregate amount not in excess of $110,000,000 in connection with synthetic leases secured in accordance with subsection 8.3(p); (k) Dollar Indebtedness of the Borrower incurred in respect of senior subordinated notes issued in one or more series in an aggregate principal amount not to exceed $400,000,000 on terms and conditions substantially similar to the December 1998 Senior Subordinated Notes except that the interest rate payable thereon shall be based on market conditions at the date of incurrence; provided that the Net Cash Proceeds of such Indebtedness (other than any such Indebtedness to the extent that it refinances, refunds or replaces any other Senior Subordinated Notes) shall be applied to make mandatory prepayments of the Loans and to reduce permanently the Revolving Credit Commitments pursuant to subsection 4.3(b); and (l) Indebtedness of Non-Guarantor Subsidiaries in an aggregate outstanding principal Dollar Equivalent Amount, when added to the then aggregate outstanding principal Dollar Equivalent Amount of Indebtedness of Non-Guarantor 91 85 Subsidiaries under uncommitted lines of credit, not to exceed $350,000,000 at any time; provided that at no time shall (A) (x) the excess of (i) the aggregate outstanding principal Dollar Equivalent Amount of such Indebtedness that constitutes Short Term Indebtedness (including, without limitation, Indebtedness under uncommitted lines of credit) over (ii) $150,000,000 exceed (y) the then aggregate Available Revolving Credit Commitments (other than any such Available Revolving Credit Commitments required to be maintained pursuant to subsection 4.3(h)) or (B) the aggregate outstanding principal Dollar Equivalent Amount of such Indebtedness that constitutes Short-Term Indebtedness exceed $260,000,000. 8.3 Limitation on Liens. Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, except for: (a) Liens for taxes not yet due or which are being contested in good faith by appropriate proceedings; provided that adequate reserves with respect thereto are maintained on the books of the Borrower or its Subsidiaries, as the case may be, in conformity with GAAP (or, in the case of Foreign Subsidiaries, generally accepted accounting principles in effect from time to time in their respective jurisdictions of incorporation); (b) carrier's, warehousemen's, mechanic's, landlord's, materialmen's, repairmen's or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 60 days or which are being contested in good faith by appropriate proceedings; (c) pledges or deposits in connection with workers' compensation, unemployment insurance and other social security legislation and deposits securing liability to insurance carriers under insurance or self-insurance arrangements; (d) deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business; (e) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business which, in the aggregate, are not substantial in amount and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the Borrower or such Subsidiary conducted at the property subject thereto; (f) Liens on the property or assets of a Person which becomes a Subsidiary after the Closing Date securing Indebtedness permitted by subsection 8.2(f); provided that (i) such Liens existed at the time such Person became a Subsidiary and were not created in anticipation thereof, (ii) any such Lien is not spread to cover any property or assets of such Person after the time such corporation becomes a Subsidiary, and (iii) the amount of Indebtedness secured thereby is not increased; (g) Liens created pursuant to the Security Documents; 92 86 (h) Liens in existence on the Closing Date listed on Schedule 8.3(h), securing Indebtedness permitted by subsection 8.2(l); provided that no such Lien is spread to cover any additional property after the Closing Date and that the amount of Indebtedness secured thereby is not increased; (i) Liens securing Indebtedness of the Borrower and its Subsidiaries permitted by subsection 8.2(g) incurred to finance the acquisition of fixed or capital assets; provided that (i) such Liens shall be created substantially simultaneously with the acquisition of such fixed or capital assets, and (ii) such Liens do not at any time encumber any property other than the property financed by such Indebtedness; (j) Liens on assets of any Foreign Subsidiary (including, in the case of any Foreign Subsidiary which is not a direct Subsidiary of the Borrower or any Domestic Subsidiary, the Capital Stock of such Foreign Subsidiary) securing Indebtedness of such Foreign Subsidiary permitted by subsection 8.2(l); (k) Liens arising by reason of any judgment, decree or order of any court or other Governmental Authority, if appropriate legal proceedings are being diligently prosecuted and shall not have been finally terminated or the period within which such proceedings may be initiated shall not have expired, in an aggregate amount not to exceed $15,000,000 at any time outstanding; (l) leases and subleases of real property owned or leased by the Borrower or any of its Subsidiaries not interfering with the ordinary conduct of the business of the Borrower and its Subsidiaries; (m) Liens arising from the sale or other disposition of any accounts receivable in connection with a receivables financing transaction otherwise permitted by subsection 8.6(g) and Liens in respect of assets sold or otherwise disposed of pursuant to subsection 8.6(j); (n) renewals, extensions and replacements of the Liens permitted under clauses (f) and (h) above; provided that no such Lien shall as a result thereof cover any additional assets and the principal amount of Indebtedness secured thereby is not increased; (o) Liens securing Non-Dollar Indebtedness of any Foreign Subsidiary incurred pursuant to subsections 8.2(l) to finance the construction or acquisition of fixed or capital assets, provided that (i) such Liens shall be created substantially simultaneously with the construction or acquisition of such fixed or capital assets and (ii) such Liens do not at any time encumber any property other than the property of such Foreign Subsidiary financed by such Indebtedness; and (p) Liens securing obligations in an amount not in excess of $110,000,000 in connection with synthetic leases to finance the construction, acquisition or use of fixed or capital assets, which Liens may be on any or all of the assets and property of the Borrower and its Guarantor Subsidiaries; provided that (i) the documentation creating or 93 87 otherwise relating to such Liens shall be in form and substance satisfactory to the Majority Lenders (a form of documentation approved by the Majority Lenders under this Agreement or the Prior Credit Agreement for use in one synthetic lease financing may be used in substantially such form for subsequent synthetic lease financings without further approval by the Majority lenders), (ii) as compared to the first priority security interest granted by the Borrower and its Guarantor Subsidiaries to the Lenders, such Lien shall be a junior and second priority security interest to the extent such Lien is granted in the Collateral and (iii) to the extent such Lien is granted in Collateral, the Borrower and applicable creditors shall enter into an intercreditor agreement with the Administrative Agent on behalf of the Lenders in form and substance satisfactory to the Majority Lenders (a form of intercreditor agreement approved by the Majority Lenders under this Agreement or the Prior Credit Agreement for use in one synthetic lease financing may be used in substantially such form for subsequent synthetic lease financings without further approval by the Majority Lenders). 8.4 Limitation on Guarantee Obligations. Create, incur, assume or suffer to exist any Guarantee Obligation except: (a) Guarantee Obligations in existence on the Closing Date and listed on Schedule 8.4(a), and any refinancing, refundings, renewals or extensions thereof provided that the amount of such Guarantee Obligation shall not be increased at the time of such refinancing, refunding, extension or renewal; (b) guarantees made in the ordinary course of its business by the Borrower or any of its Subsidiaries of obligations of any of the Borrower's Guarantor Subsidiaries, which obligations are otherwise permitted under this Agreement; (c) the Guarantee and Collateral Agreement and any of the other Guarantees; (d) Guarantee Obligations of certain Subsidiaries of the Borrower set forth in any of the Senior Subordinated Notes and the related Senior Subordinated Note Indenture which are subordinated as provided therein; (e) Guarantee Obligations in respect of Indebtedness of a Person or Persons in connection with one or more joint ventures in an aggregate amount not exceeding at any time outstanding, when aggregated with the amount of any Investments permitted by subsection 8.9(g) which are outstanding at such time, an amount equal to the amount of Investments permitted by subsection 8.9(g) to be made in such a Person or Persons; provided that no Default or Event of Default shall have occurred and be continuing on the date of the incurrence of any such Guarantee Obligations or would result therefrom; (f) Guarantee Obligations consisting of any Reimbursement Obligation in respect of Letters of Credit; 94 88 (g) Guarantee Obligations of a Person which becomes a Subsidiary after the Closing Date; provided that (i) such Guarantee Obligations existed at the time such Person became a Subsidiary and were not created in anticipation thereof and (ii) immediately after giving effect to the acquisition of such Person by the Borrower no Default or Event of Default shall have occurred and be continuing, and any refinancings, refundings, renewals or extensions thereof; provided, further, that the amount of such Guarantee Obligations is not increased at the time of such refinancing, refunding, renewal or extension; (h) Guarantee Obligations in respect of synthetic leases entered into by the Borrower or any Subsidiary in an aggregate amount not to exceed $110,000,000; and (i) Guarantee Obligations of the Borrower and the Non-Guarantor Subsidiaries (including, without limitation, those resulting from the issuance of Letters of Credit) in respect of Indebtedness permitted by subsection 8.2(l), provided that at no time shall the aggregate Dollar Equivalent Amount of such Guarantee Obligations (x) of the Borrower and the Non-Guarantor Subsidiaries exceed $150,000,000 or (y) of the Borrower exceed the then aggregate Available Revolving Credit Commitments (other than any such Available Revolving Credit Commitments required to be maintained pursuant to subsection 4.3(h)). 8.5 Limitation on Fundamental Changes. Enter into any merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer or otherwise dispose of, all or substantially all of its property, business or assets, or make any material change in its present method of conducting business, except: (a) any Subsidiary of the Borrower may be merged or consolidated with or into the Borrower (provided that the Borrower shall be the continuing or surviving corporation) or with or into any one or more Wholly Owned Subsidiaries of the Borrower (provided that the Wholly Owned Subsidiary or Subsidiaries shall be the continuing or surviving corporation); (b) any Wholly Owned Subsidiary may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any other Wholly Owned Subsidiary of the Borrower; (c) mergers and consolidations in connection with Investments permitted under subsection 8.9(e), subject to compliance with subsection 7.10; and (d) sales and other dispositions of assets permitted by subsection 8.6. 8.6 Limitation on Sale of Assets. Convey, sell, lease, assign, transfer or otherwise dispose of any of its property, business or assets (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, or, in the case of any Subsidiary, issue or sell any shares of such Subsidiary's Capital Stock to any Person other than the Borrower or any Wholly Owned Subsidiary, except: 95 89 (a) the sale or other disposition of any property in the ordinary course of business; (b) the sale or other disposition of any assets at fair market value; provided that the Net Cash Proceeds of all sales of assets permitted by this clause (b) in excess of $50,000,000 are applied to make mandatory prepayments and permanent reductions of the Revolving Credit Commitments pursuant to subsection 4.3(c), except that (i) the Borrower and the Guarantor Subsidiaries may use up to $150,000,000 in the aggregate of such excess Net Cash Proceeds received by them in any fiscal year of the Borrower to acquire within 180 days after the receipt thereof, assets used or useful in the business of the Borrower and the Guarantor Subsidiaries, and such excess amount so used need not be so applied pursuant to subsection 4.3(c) and (ii) the Non-Guarantor Subsidiaries may use all such excess Net Cash Proceeds received by them, within 180 days of the receipt thereof, to (x) prepay, repay or purchase Indebtedness of Non-Guarantor Subsidiaries permitted by subsection 8.2 or (y) acquire assets used or useful in the businesses of Non-Guarantor Subsidiaries, and such excess amount so used shall not be required to be so applied pursuant to subsection 4.3(c); (c) the sale or discount without recourse of accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof; (d) as permitted by subsection 8.5(b); (e) transfers of property or assets in connection with Investments permitted under subsection 8.9(g); (f) sales, leases, conveyances, transfers or other dispositions to the Borrower or to any Subsidiary of the Borrower or to any Person if after giving effect to such sale, lease, conveyance, transfer or other disposition such other Person becomes a Subsidiary, subject to compliance with subsection 7.10 and, to the extent applicable, subsection 8.9; (g) the sale or other disposition of any accounts receivable in connection with a Permitted Receivables Financing, so long as the Net Cash Proceeds of such sale or other disposition are applied as provided in subsection 4.3(c); (h) dispositions resulting from any casualty or condemnation of any property; provided that the proceeds of any such single disposition of property permitted by this clause (h) in excess of $20,000,000 are applied pursuant to subsection 4.3(h); (i) the sale or other disposition of any Specified Assets at fair market value; provided that the Net Cash Proceeds of all sales of Specified Assets permitted by this clause (i) are applied as provided in subsection 4.3(c), except that (i) any such Net Cash Proceeds of sales or other dispositions of Specified Assets permitted by this clause (i) to the extent that they are used to (x) make Investments permitted by subsection 8.9(e) within 180 days of receipt thereof or (y) acquire assets used or useful in the businesses of 96 90 the Borrower and its Subsidiaries within 180 days of receipt thereof, shall not be required to be applied as provided in subsection 4.3(c); (j) the sale or other disposition of assets in connection with one or more sale and leaseback transactions as to which the resulting Lease Expense shall not exceed $25,000,000 (provided that in connection therewith the Administrative Agent shall be authorized to enter into an intercreditor agreement on behalf of the Lenders in respect of such assets if requested to do so by the Borrower on terms and conditions reasonably satisfactory to the Administrative Agent), so long as the Net Cash Proceeds of such sale or other disposition are applied to make mandatory prepayments and permanent reductions of the Revolving Credit Commitments pursuant to subsection 4.3(c); and (k) the sale or other disposition of assets in connection with one or more sale and leaseback transactions on customary terms in respect of assets purchased after the Closing Date and no more than one year prior to the consummation of such sale and leaseback transaction. 8.7 Limitation on Dividends. Declare or pay any dividend on, or make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, any shares of any class of Capital Stock of the Borrower or any warrants or options to purchase any such Capital Stock, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Borrower or any Subsidiary, except for dividends, payments or distributions solely in common stock of the Borrower. 8.8 Limitation on Capital Expenditures. Make any expenditure, other than pursuant to subsection 8.9, in respect of the purchase or other acquisition of fixed or capital assets (a "Capital Expenditure") except for expenditures in the ordinary course of business not exceeding, in the aggregate for the Borrower and its Subsidiaries during any of the test periods set forth below, the amount set forth opposite such test period set forth below:
Test Period Amount ----------- ------ February 1, 1999 - January 31, 2000 $200,000,000 February 1, 2000 - January 31, 2001 200,000,000 February 1, 2001 - January 31, 2002 200,000,000 February 1, 2002 - January 31, 2003 190,000,000 February 1, 2003 - January 31, 2004 190,000,000 February 1, 2004 - January 31, 2005 190,000,000
provided that (a) up to $60,000,000 of any Capital Expenditures permitted to be made during any test period and not made during such test period may be carried over and expended during the next succeeding test period (it being understood and agreed that any Capital Expenditures made during such next succeeding test period shall count, first, against the amount permitted to be made during such next succeeding test period as set forth in the table above and, second, against any amounts carried over to such next succeeding test period) and (b) up to $40,000,000 of any Capital Expenditures permitted to be made during any test period and not made during such test period (to the extent not expended during the next succeeding test period) may be carried over 97 91 and expended during the second succeeding test period (it being understood and agreed that any Capital Expenditures made during such second succeeding test period shall count, first, against the amount permitted to be made during such second succeeding test period as set forth in the table above, second, against any amounts carried over to such second succeeding test period from the immediately preceding test period and, third, against any amounts carried over to such second succeeding test period from the second preceding test period). 8.9 Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make or permit to exist any other investment, in cash or by transfer of assets or property, in, any Person (each, an "Investment"), except: (a) extensions of trade credit in the ordinary course of business; (b) Investments in Cash Equivalents; (c) loans and advances to employees of the Borrower or its Subsidiaries for travel, entertainment and relocation expenses in the ordinary course of business; (d) Investments by the Borrower in its Subsidiaries and Investments by such Subsidiaries in the Borrower and in other Subsidiaries of the Borrower; (e) Investments by the Borrower or any of its Subsidiaries in a Person, if as a result of any such Investment (i) such Person becomes a Subsidiary of the Borrower, subject to compliance with subsection 7.10, or (ii) such Person is merged or consolidated with or into, or transfers or conveys the assets which are the subject of such Investment to, or is liquidated into, the Borrower or any of its Subsidiaries; provided that (y) no Default or Event of Default shall have occurred and be continuing on the date of any such Investment or would result therefrom and (z) the aggregate amount of consideration (other than consideration consisting of common stock of the Borrower) given by the Borrower and its Subsidiaries in respect of all such Investments ("Non-Stock Consideration") subsequent to the date hereof shall not exceed $400,000,000; (f) Investments by the Borrower or any of its Subsidiaries in the form of promissory notes that are issued to the Borrower or such Subsidiary by a Person which is not the Borrower or such Subsidiary solely as partial consideration for the consummation of an asset sale or other disposition permitted by subsection 8.6 (not to exceed 25% of the total consideration received by the Borrower or such Subsidiary in respect of such asset sale); provided that the aggregate principal amount of such promissory notes as to all such asset sales or other dispositions does not exceed $15,000,000 at any time outstanding and such promissory notes held by the Borrower or any Domestic Subsidiary are pledged to the Administrative Agent for the benefit of the Lenders pursuant to the Security Documents; (g) Investments in a Person or Persons in connection with one or more joint ventures (in addition to those permitted by subsection 8.9(j)) in an aggregate amount, 98 92 when aggregated with the amount of any Guarantee Obligations permitted by subsection 8.4(e) which are outstanding at such time and disregarding the amount of any Investments permitted by subsection 8.9(j), not to exceed $50,000,000 at any one time outstanding; provided that such amount shall be increased by an amount equal to the aggregate amount of cash returned on or on account of Investments permitted under this clause (g), whether through interest payments, principal payments, dividends or other distributions or payments, provided, further that no Investment shall be permitted under this clause (g) if any Default or Event of Default shall have occurred and be continuing on the date of any such Investment or would result therefrom; (h) Investments in the nature of promissory notes, other securities or other property received in connection with the bankruptcy or reorganization of Persons having obligations in favor of the Borrower or its Subsidiaries, in settlement of such obligations; provided that such promissory notes, other securities or other property held by the Borrower or any Domestic Subsidiary are pledged to the Administrative Agent for the benefit of the Lenders pursuant to the Security Documents; (i) Investments paid for solely in common stock of the Borrower; and (j) Investments in existence on the date hereof (including in joint ventures) that are listed on Schedule 8.9(j). 8.10 Limitation on Optional Payments and Modifications of Debt Instruments. (a) (i) Make any optional payment or prepayment on or repurchase or redemption or purchase of any of the Senior Subordinated Notes or the Borrower Notes (including, without limitation, any payment on account of, or for a sinking or other analogous fund for the repurchase, redemption, defeasance or other acquisition thereof); provided that a series of Senior Subordinated Notes may be refinanced, refunded or replaced on terms and conditions more favorable to the Borrower and the Lenders than those applicable to such series being so refinanced, refunded or replaced or (ii) amend, modify or change, or consent or agree to any amendment, modification or change to any of the terms of such Indebtedness or any instrument, document or other agreement pursuant to which the same shall have been issued or created (other than any such amendment, modification or change which would (A) extend the maturity or reduce the amount of any payment of principal thereof or which would reduce the rate or extend the date for payment of interest thereon or (B) amend the Senior Subordinated Notes, other than the December 1998 Senior Subordinated Notes, to contain provisions identical in all material respects to the December 1998 Senior Subordinated Notes). (b) In the event of the occurrence of a Change of Control, repurchase any of the Senior Subordinated Notes or Borrower Notes or any portion thereof, unless the Borrower shall have (i) repaid in full the Loans, all Reimbursement Obligations and any other amounts then due and owing to any Lender or the Administrative Agent hereunder and under any Note or any other Loan Document and cash collateralized the L/C Obligations on terms reasonably satisfactory to the Administrative Agent or (ii) made an offer to repay the Loans, all Reimbursement Obligations and any other amounts then due and owing to each Lender and the Administrative Agent hereunder and under any Note or any other Loan Document and to cash collateralize the L/C Obligations in respect of each Lender and shall have made repayment in full thereof to each 99 93 such Lender or the Administrative Agent which has accepted such offer and cash collateralized the L/C Obligations in respect of each such Lender which has accepted such offer. 8.11 Limitation on Transactions with Affiliates. Enter into any transaction, including, without limitation, any purchase, sale, lease or exchange of property or the rendering of any service, with any Affiliate unless such transaction is (a) otherwise permitted under this Agreement, (b) in the ordinary course of the Borrower's or such Subsidiary's business and (c) upon fair and reasonable terms no less favorable to the Borrower or such Subsidiary, as the case may be, than it would obtain in a comparable arm's length transaction with a Person which is not an Affiliate. This subsection 8.11 shall not apply to customary investment banking underwriter, placement agent or financial advisor fees paid to CIBC and its Affiliates in connection with services rendered to the Borrower or its Subsidiaries. 8.12 Limitation on Changes in Fiscal Year. Permit the fiscal year of the Borrower to end on a day other than January 31. 8.13 Limitation on Negative Pledge Clauses. Enter into with any Person any agreement which prohibits or limits the ability of the Borrower or any of its Subsidiaries to create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, other than (a) this Agreement, (b) agreements in effect on the Closing Date, including, without limitation, the Senior Subordinated Note Indentures or any refinancing, refunding, renewal or extension thereof which is permitted hereunder, (c) customary non-assignment provisions under contracts to the extent such provisions prohibit or limit the ability to grant a Lien on the rights under such contracts, (d) agreements under which Indebtedness permitted hereunder is incurred by Foreign Subsidiaries, to the extent such agreements prohibit or limit Liens on assets of such Foreign Subsidiaries (including, in the case of Foreign Subsidiaries which are not direct Subsidiaries of the Borrower or any Domestic Subsidiary, the Capital Stock of such Foreign Subsidiaries), (e) restrictions on granting Liens on assets under agreements to sell or otherwise dispose of such assets, (f) restrictions in Indebtedness incurred to finance the acquisition of fixed or capital assets or Financing Leases permitted hereunder with respect to Liens on the assets financed thereunder and (g) restrictions in Indebtedness permitted by subsection 8.2(j). 8.14 Limitation on Lines of Business. Enter into any business, either directly or through any Subsidiary or any joint venture, except for those businesses in which the Borrower and its Subsidiaries are engaged on the Closing Date or which are related thereto (provided that the Borrower and its Subsidiaries may acquire unrelated businesses in connection with the acquisition of a related business permitted hereunder so long as such unrelated business is not a material portion of the assets acquired in such acquisition). 8.15 Limitations on Currency and Commodity Hedging Transactions. Enter into, purchase or otherwise acquire agreements or arrangements relating to currency, commodity or other hedging except, to the extent and only to the extent that, such agreements or arrangements are entered into, purchased or otherwise acquired in the ordinary course of business of the Borrower or any of its Subsidiaries with reputable financial institutions and not for purposes of investment or speculation (any such agreement or arrangement permitted by this subsection, a 100 94 "Permitted Hedging Arrangement"), including the two Dollar/Deutschemark currency swaps entered into by the Borrower in connection with the June 1997 Senior Subordinated Notes. SECTION 9. EVENTS OF DEFAULT If any of the following events shall occur and be continuing: (a) Any of the Borrowers shall fail to pay any principal of any Loan or any Reimbursement Obligation when due in accordance with the terms thereof or hereof; or any Borrower shall fail to pay any interest on any Loan, or any other amount payable hereunder, within five days after any such interest or other amount becomes due in accordance with the terms thereof or hereof (it being agreed that any amounts payable hereunder (other than principal, interest, commitment fees and letter of credit fees) shall be due on the date which is five days after the Administrative Agent or the applicable Lender shall give written notice thereof to the applicable Borrower); or (b) Any representation or warranty made or deemed made by the Borrower or any other Loan Party herein or in any other Loan Document or which is contained in any certificate, document or financial or other written statement furnished by it at any time under or in connection with this Agreement or any such other Loan Document shall prove to have been incorrect in any material respect on or as of the date made or deemed made; or (c) The Borrower or any other Loan Party shall default in the observance or performance of any agreement contained in subsection 7.7(a) or Section 8; or (d) The Borrower or any other Loan Party shall default in the observance or performance of any other agreement contained in this Agreement or any other Loan Document (other than as provided in paragraphs (a) through (c) of this Section 9), and such default shall continue unremedied for a period of 30 days or, in the case of any agreement contained in subsection 7.1 or 7.2, such default shall continue unremedied for a period ending on the date three days after notice has been given to the Borrower by the Administrative Agent or any Lender of the expiration of such 30 day period; or (e) The Borrower or any of its Subsidiaries shall (i) default in any payment of principal of or interest on any Indebtedness (other than the Loans and the Reimbursement Obligations) in excess of $30,000,000 or in the payment of any Guarantee Obligation in excess of $30,000,000, beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness or Guarantee Obligation was created; or (ii) default in the observance or performance of any other agreement or condition relating to any such Indebtedness or Guarantee Obligation or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness or beneficiary or beneficiaries of such Guarantee Obligation (or a trustee or agent on behalf of such holder or holders or beneficiary or 101 95 beneficiaries) to cause, with the giving of notice if required, such Indebtedness to become due prior to its stated maturity or such Guarantee Obligation to become payable; or (f) (i) The Borrower or any of its Subsidiaries shall commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or the Borrower or any of its Subsidiaries shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against the Borrower or any of its Subsidiaries any case, proceeding or other action of a nature referred to in clause (i) above which (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged or unbonded for a period of 60 days; or (iii) there shall be commenced against the Borrower or any of its Subsidiaries any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets which results in the entry of an order for any such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within 60 days from the entry thereof; or (iv) the Borrower or any of its Subsidiaries shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) the Borrower or any of its Subsidiaries shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due; or (g) (i) Any Person shall engage in any "prohibited transaction" (as defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302 of ERISA), whether or not waived, shall exist with respect to any Plan or any Lien in favor of the PBGC or a Plan shall arise on the assets of the Borrower or any Commonly Controlled Entity, (iii) a Reportable Event shall occur with respect to, or proceedings shall commence to have a trustee appointed, or a trustee shall be appointed, to administer or to terminate, any Single Employer Plan, which Reportable Event or commencement of proceedings or appointment of a trustee is, in the reasonable opinion of the Majority Lenders, likely to result in the termination of such Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for purposes of Title IV of ERISA, (v) the Borrower or any Commonly Controlled Entity shall, or in the reasonable opinion of the Majority Lenders is likely to, incur any liability in connection with a withdrawal from, or the Insolvency or Reorganization of, a Multiemployer Plan or (vi) any other event or condition shall occur or exist with respect to a Plan; and in each case in clauses (i) through (vi) above, such event or condition, together with all other such events or conditions, if any, could reasonably be expected to have a Material Adverse Effect; or (h) One or more judgments or decrees shall be entered against the Borrower or any of its Subsidiaries involving in the aggregate a liability (not paid or fully covered by insurance) of $30,000,000 or more, and all such judgments or decrees shall not have been 102 96 vacated, discharged, stayed or bonded pending appeal within 60 days from the entry thereof; or (i) Except as, and to the extent, permitted by this Agreement, (i) any of the Security Documents or any of the other Loan Documents shall cease, for any reason, to be in full force and effect, or the Borrower or any other Loan Party which is a party to any of the Security Documents or any of the other Loan Documents shall so assert or (ii) the Lien created by any of the Security Documents shall cease to be enforceable and of the same effect and priority purported to be created thereby, and, in any such case, such cessation or, in the case of clause (i), assertion thereof shall affect a material portion of the Collateral; or (j) The occurrence of any Change of Control; or (k) Any of the Senior Subordinated Notes, for any reason, shall not be or shall cease to be validly subordinated, as provided therein and in the related Senior Subordinated Note Indenture, to the obligations of the Borrower under this Agreement, any Notes and the other Loan Documents, or the obligations of any other Loan Party under a guarantee of any of the Senior Subordinated Notes, for any reason, shall not be or shall cease to be validly subordinated as provided therein and in the related Senior Subordinated Note Indenture to the obligations of such Loan Party under the Guarantee and Collateral Agreement or any of the Guarantees to which it is a party; or (l) (i) If any of the remaining contributions referred to in the PBGC Agreement in an aggregate amount in excess of $10,000,000 shall not be paid within 30 days after the date on which such contributions are due if such remaining contributions in an aggregate amount in excess of $10,000,000 shall become immediately due and payable prior to the stated maturity thereof or (ii) any Lien in favor of the PBGC shall arise on the assets of the Borrower or any of its Subsidiaries with respect to the transactions contemplated by the PBGC Agreement or the definitive documentation with respect to the PBGC Agreement (it being understood and agreed that the Lenders shall not seek to enjoin any such Liens from arising based on subsection 8.3); then, and in any such event, (A) if such event is an Event of Default specified in clause (i) or (ii) of paragraph (f) of this Section with respect to the Borrower, automatically the Commitments shall immediately terminate and automatically the Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement (including, without limitation, all amounts of L/C Obligations, whether or not the beneficiaries of the then outstanding Letters of Credit shall have presented the documents required thereunder) shall immediately become due and payable, and (B) if such event is any other Event of Default, either or both of the following actions may be taken: (i) with the consent of the Majority Lenders, the Administrative Agent may, or upon the request of the Majority Lenders, the Administrative Agent shall, by notice to the Borrower declare the Commitments to be terminated forthwith, whereupon the Commitments shall immediately terminate; and (ii) with the consent of the Majority Lenders, the Administrative Agent may, or upon the request of the Majority Lenders, the Administrative Agent shall, by notice to the Borrower, declare the Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement (including, without limitation, all 103 97 amounts of L/C Obligations, whether or not the beneficiaries of the then outstanding Letters of Credit shall have presented the documents required thereunder) and the Notes to be due and payable forthwith, whereupon the same shall immediately become due and payable. With respect to all Letters of Credit with respect to which presentment for honor shall not have occurred at the time of an acceleration pursuant to the preceding paragraph, the Borrower shall at such time deposit in a cash collateral account opened by the Administrative Agent an amount equal to the aggregate then undrawn and unexpired amount of such Letters of Credit. The Borrower hereby grants to the Administrative Agent, for the benefit of the Issuing Lender and the L/C Participants, a security interest in such cash collateral to secure all obligations of the Borrower under this Agreement and the other Loan Documents. Amounts held in such cash collateral account shall be applied by the Administrative Agent to the payment of drafts drawn under such Letters of Credit, and the unused portion thereof after all such Letters of Credit shall have expired or been fully drawn upon, if any, shall be applied to repay other obligations of the Borrower hereunder and under the Notes. Within a reasonable period after all such Letters of Credit shall have expired or been fully drawn upon, all Reimbursement Obligations shall have been satisfied and all other obligations of the Borrower hereunder and under the Notes shall have been paid in full, the balance, if any, in such cash collateral account shall be returned to the Borrower. The Borrower shall execute and deliver to the Administrative Agent, for the account of the Issuing Lender and the L/C Participants, such further documents and instruments as the Administrative Agent may request to evidence the creation and perfection of the within security interest in such cash collateral account. Except as expressly provided above in this Section, presentment, demand, protest and all other notices of any kind are hereby expressly waived. SECTION 10. THE MANAGING AGENTS 10.1 Appointment. Each Lender hereby irrevocably designates and appoints CIBC as the Administrative Agent, Credit Suisse First Boston as the Syndication Agent, Merrill Lynch as Co-Documentation, Agent and Dresdner Bank AG as Co-Documentation Agent, in each case under this Agreement and the other Loan Documents, and each such Lender irrevocably authorizes each such Managing Agent, in such capacities, to take such action on its behalf under the provisions of this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are expressly delegated to the Administrative Agent, the Syndication Agent and the Co-Documentation Agents, respectively, by the terms of this Agreement and the other Loan Documents, together with such other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Agreement, neither the Administrative Agent nor the other Managing Agents shall have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against either the Administrative Agent or the other Managing Agents. 10.2 Delegation of Duties. The Administrative Agent may execute any of its duties under this Agreement and the other Loan Documents by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such 104 98 duties. The Administrative Agent shall not be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable care. 10.3 Exculpatory Provisions. Neither the Administrative Agent, the other Managing Agents nor any of their respective officers, directors, employees, agents, attorneys-in-fact or Affiliates shall be (i) liable for any action lawfully taken or omitted to be taken by it or such Person under or in connection with this Agreement or any other Loan Document (except for its or such Person's own gross negligence or willful misconduct) or (ii) responsible in any manner to any of the Lenders for any recitals, statements, representations or warranties made by any Loan Party or any officer thereof contained in this Agreement or any other Loan Document or in any certificate, report, statement or other document referred to or provided for in, or received by the Administrative Agent or the other Managing Agents under or in connection with, this Agreement or any other Loan Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document or for any failure of any Loan Party to perform its obligations hereunder or thereunder. Neither the Administrative Agent nor the other Managing Agents shall be under any obligation to any Lender to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of the Borrower or any other Loan Party. 10.4 Reliance by Administrative Agent and Other Managing Agents. Each of the Administrative Agent and the other Managing Agents shall be entitled to rely, and shall be fully protected in relying, upon any Note, writing, resolution, notice, consent, certificate, affidavit, letter, telecopy, telex or teletype message, statement, order or other document or conversation reasonably believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel (including, without limitation, counsel to any Borrower), independent accountants and other experts selected by it. The Administrative Agent may deem and treat the payee of any Note as the owner thereof for all purposes unless a written notice of assignment, negotiation or transfer thereof shall have been filed with the Administrative Agent. The Administrative Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other Loan Document unless it shall first receive such advice or concurrence of the Majority Lenders as it deems appropriate or it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement and the other Loan Documents in accordance with a request of the Majority Lenders, and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders and all future holders of the Loans. 10.5 Notice of Default. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default hereunder unless the Administrative Agent has received notice from a Lender or the Borrower referring to this Agreement, describing such Default or Event of Default and stating that such notice is a "notice of default". In the event that the Administrative Agent receives such a notice, the Administrative Agent shall give notice thereof, reasonably promptly thereof to the other Managing Agents and to the Lenders. The Administrative Agent shall take such action reasonably promptly with respect to such Default or Event of Default as shall be reasonably directed by the Majority Lenders; 105 99 provided that unless and until the Administrative Agent shall have received such directions, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable in the best interests of the Lenders. 10.6 Non-Reliance on Administrative Agent, Other Managing Agents and Other Lenders. Each Lender expressly acknowledges that neither the Administrative Agent, the other Managing Agents nor any of their respective officers, directors, employees, agents, attorneys-in-fact or Affiliates has made any representations or warranties to it and that no act by the Administrative Agent or the other Managing Agents hereinafter taken, including any review of the affairs of the Borrower or any other Loan Party, shall be deemed to constitute any representation or warranty by the Administrative Agent or the other Managing Agents to any Lender. Each Lender represents to the Administrative Agent and the other Managing Agents that it has, independently and without reliance upon the Administrative Agent or the other Managing Agents or any other Lender, and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, operations, property, financial and other condition and creditworthiness of the Borrower and made its own decision to make its Loans hereunder and enter into this Agreement. Each Lender also represents that it will, independently and without reliance upon the Administrative Agent or the other Managing Agents 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 analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Loan Documents, and to make such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other condition and creditworthiness of the Borrower or any of the other Loan Parties and the other Loan Parties. Except for notices, reports and other documents expressly required to be furnished to the Lenders by the Administrative Agent hereunder, the Administrative Agent and the other Managing Agents shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, operations, property, condition (financial or otherwise), prospects or creditworthiness of the Borrower or any of the other Loan Parties which may come into the possession of the Administrative Agent or the other Managing Agents or any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates. 10.7 Indemnification. The Lenders agree to indemnify each of the Administrative Agent and the other Managing Agents in their respective capacities as such (to the extent not reimbursed by the Borrower or any of the other Loan Parties and without limiting the obligation of the Borrower or any of the other Loan Parties to do so), ratably according to their respective Commitment Percentages in effect on the date on which indemnification is sought, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever which may at any time (including, without limitation, at any time following the payment of the Loans) be imposed on, incurred by or asserted against the Administrative Agent or the other Managing Agents in any way relating to or arising out of, the Commitments, this Agreement, any of the other Loan Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by the Administrative Agent or the other Managing Agents under or in connection with any of the foregoing; provided that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, 106 100 penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Administrative Agent's or the other Managing Agents' gross negligence or willful misconduct, as the case may be. The agreements in this subsection shall survive the payment of the Loans and all other amounts payable hereunder. 10.8 Administrative Agent and Other Managing Agents in Their Individual Capacities. The Administrative Agent, the other Managing Agents and their respective Affiliates may make loans to, accept deposits from and generally engage in any kind of business with the Borrower or any other Loan Party as if the Administrative Agent and the other Managing Agents were not the Administrative Agent or the other Managing Agents, as the case may be, hereunder and under the other Loan Documents. With respect to the Loans made by it and with respect to any Letter of Credit issued or participated in by it, each of the Administrative Agent and the other Managing Agents shall have the same rights and powers under this Agreement and the other Loan Documents as any Lender and may exercise the same as though it were not the Administrative Agent or the other Managing Agents, as the case may be, and the terms "Lender" and "Lenders" shall include each of the Administrative Agent and the other Managing Agents in its individual capacity. 10.9 Successor Administrative Agent. The Administrative Agent may resign as Administrative Agent upon 10 days' notice to the Lenders. If the Administrative Agent shall resign as Administrative Agent under this Agreement and the other Loan Documents, then the Majority Lenders shall appoint from among the Lenders a successor agent for the Lenders, which successor agent (provided that it shall have been approved by the Borrower), shall succeed to the rights, powers and duties of the Administrative Agent hereunder. Effective upon such appointment and approval, the term "Administrative Agent" shall mean such successor agent, such former Administrative Agent's rights, powers and duties as Administrative Agent shall be terminated, without any other or further act or deed on the part of such former Administrative Agent or any of the parties to this Agreement or any holders of the Loans. After any retiring Administrative Agent's resignation as Administrative Agent, the provisions of this Section 10 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was an Administrative Agent under this Agreement and the other Loan Documents. 10.10 Issuing Lender. The provisions of this Section 10 shall apply to the Issuing Lender in its capacity as such and to the European Swing Line Administrator in its capacity as such to the same extent that such provisions apply to the Administrative Agent. 10.11 Releases of Guarantees and Collateral. In connection with the sale or other disposition of all of the Capital Stock of any Guarantor or the sale or other disposition of Collateral (as defined in each of the Security Documents) permitted under subsection 8.6, the Administrative Agent shall, and is hereby authorized by the Lenders to, promptly, upon the request of the Borrower and at the sole expense of the Borrower, take all actions reasonably necessary to release such Guarantor from its guarantee contained in the Guarantee and Collateral Agreement or its Guarantee or to release the Collateral subject to such sale or other disposition, as the case may be, and shall take any other actions reasonably requested by the Borrower to effect the transactions permitted under subsection 8.6. 107 101 10.12 Foreign Pledge Agreement. Each Lender has authorized the Administrative Agent to enter into a Foreign Stock Pledge Agreement (and/or a confirmation thereof) with HLI (Europe) Ltd., 38481 Huron River Drive, Romulus, Michigan, pursuant to which certain present and future shares in HLI Sub as well as certain rights and claims relating thereto are pledged as security to the Lenders and the Administrative Agent. The Administrative Agent is authorized to agree on any provisions and to make all declarations that it considers in its discretion necessary or appropriate in this context, including any amendments of such Foreign Stock Pledge Agreement. The Administrative Agent is released of the restrictions set forth in Section 181 German Civil Code and authorized to delegate this power of attorney or grant sub-power of attorney. SECTION 11. MISCELLANEOUS 11.1 Amendments and Waivers. Neither this Agreement nor any other Loan Document, nor any terms hereof or thereof may be amended, supplemented or modified except in accordance with the provisions of this subsection. The Majority Lenders may, or, with the written consent of the Majority Lenders, the Administrative Agent may, from time to time, (a) enter into with the Borrower and the other Loan Parties written amendments, supplements or modifications hereto and to the other Loan Documents for the purpose of amending, supplementing or modifying any provisions of this Agreement or the other Loan Documents or changing in any manner the rights of the Lenders or of the Borrower hereunder or thereunder or (b) waive, on such terms and conditions as the Majority Lenders or the Administrative Agent, as the case may be, may specify in such instrument, any of the requirements of this Agreement or the other Loan Documents or any Default or Event of Default and its consequences; provided that no such waiver and no such amendment, supplement or modification shall: (i) reduce the amount or extend the scheduled date of maturity of any Loan or any installment thereof or any Reimbursement Obligation or reduce the stated rate of any interest or fee payable hereunder or extend the scheduled date of any payment thereof or increase the amount or extend the expiration date of any Lender's Commitments, in each case without the consent of each Lender affected thereby; or (ii) amend, modify or waive any provision of this subsection 11.1 or reduce the percentage specified in the definition of Majority Lenders, or consent to the assignment or transfer by any of the Borrowers of any of its rights and obligations under this Agreement and the other Loan Documents or release any guarantee obligation contained in the Guarantee and Collateral Document, the Borrower Guarantee or any of the other Guarantees or release all or a substantial part of the Collateral (other than in connection with any release permitted by subsection 10.11), in each case without the written consent of all the Lenders; or (iii) amend, modify or waive any provision of Section 10 without the written consent of the then Administrative Agent; or (iv) amend, modify or waive any provision of this Agreement regarding the application of prepayment amounts to the installments of principal under the Term Loans 108 102 without the written consent of the Term Loan Lenders the Term Loan Commitment Percentages of which aggregate more than 50%; or (v) subject to clause (i) of this subsection 11.1(a) as it relates to reducing the amount or extending the scheduled date of maturity of any Loan or any installment thereof, amend, modify or waive any provision of subsection 2.9 without the written consent of Term Loan Lenders the Term Loan Commitment Percentages of which aggregate more than 50%; or (vi) amend, modify or waive any provision of subsection 2.1, 2.2, 2.3, 2.5, 2.6 or 2.7 or, subject to paragraph (i) of this subsection 11.1(a) as it relates to reducing the amount or extending the scheduled date of maturity of any Reimbursement Obligation, Section 3 without the written consent of the Revolving Credit Lenders the Revolving Credit Commitment Percentages of which aggregate more than 50%; or (vii) amend, modify or waive any provision of any Swing Line Note, subsection 2.6 or any Foreign Currency Swing Line Loan Agreement without the written consent of each Swing Line Lender affected thereby; or (viii) amend, modify or waive the provisions of any Letter of Credit or any L/C Obligation without the written consent of the affected Issuing Lender; (ix) amend, modify or waive any provision of any Security Document that provides for the ratable sharing by the Lenders under such Security Document of the proceeds of any realization on the Collateral to provide for a non-ratable sharing thereof, without the consent of (y) the Majority Revolving Credit Lenders, and (z) the Term Loan Lenders the Term Loan Commitment Percentages of which aggregate more than 50%; or (x) amend, modify or waive any provision of the Loan Documents in respect of an outstanding Competitive Bid Loan without the consent of each Lender that made such Loan. Any such waiver and any such amendment, supplement or modification shall apply equally to each of the Lenders and shall be binding upon the Borrower, the Lenders, the Administrative Agent and all future holders of the Loans. In the case of any waiver, the Borrower, the Lenders and the Administrative Agent shall be restored to their former positions and rights hereunder and under the other Loan Documents, and any Default or Event of Default waived shall be deemed to be cured and not continuing; no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon. 11.2 Notices. All notices, requests and demands to or upon the respective parties hereto to be effective shall be in writing (including by facsimile transmission) and, unless otherwise expressly provided herein, shall be deemed to have been duly given or made (a) in the case of delivery by hand or by overnight courier, when delivered, (b) in the case of delivery by mail, three days after being deposited in the mails, postage prepaid, or (c) in the case of delivery by facsimile transmission, when sent and receipt has been confirmed, addressed as follows in the case of the Borrower and each Managing Agent, as set forth in Schedule A in the case of the 109 103 other parties hereto, and as set forth in the applicable Subsidiary Borrower Agreement in the case of a Subsidiary Borrower or to such other address as may be hereafter notified by the respective parties hereto: The Borrower: Hayes Lemmerz International, Inc. 38481 Huron River Drive Romulus, Michigan 48174 Attention: Treasurer Fax: (734) 942-7783 with a copy to: Hayes Lemmerz International, Inc. 38481 Huron River Drive Romulus, Michigan 48174 Attention: General Counsel Fax: (734) 942-5199 The Administrative Agent: Canadian Imperial Bank of Commerce 425 Lexington Avenue 7th Floor New York, New York 10017 Attention: Darren Gaffney Fax: (212) 856-3763 The Syndication Agent: Credit Suisse First Boston 11 Madison Avenue New York, New York 10010 Attention: Thomas G. Muoio Fax: (212) 325-8319 The Co-Documentation Agents: Merrill Lynch Capital Corporation World Financial Center South Tower New York, New York 10281 Attention: Christopher Reilly Fax: (212) 623-7584 110 104 Dresdner Bank AG 75 Wall Street New York, New York 10005 Attention: Gary Jermansky Fax: (212) 429-2130 provided that any notice, request or demand to or upon the Administrative Agent or the Lenders pursuant to subsection 2.3, 2.5, 2.6, 2.7, 2.12, 3.2, 4.2, 4.4 or 4.8 shall not be effective until received. 11.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of the Administrative Agent or any Lender, any right, remedy, power or privilege hereunder or under the other Loan Documents shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law. 11.4 Survival of Representations and Warranties. All representations and warranties made hereunder, in the other Loan Documents (or in any amendment, modification or supplement hereto or thereto) and in any document, certificate or statement delivered pursuant hereto or in connection herewith shall survive the execution and delivery of this Agreement and the making of the Loans hereunder. 11.5 Payment of Expenses and Taxes. The Borrower agrees (a) to pay or reimburse the Administrative Agent and the other Managing Agents for all their respective out-of-pocket costs and expenses incurred in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the transactions contemplated hereby and thereby (including the syndication of the Revolving Credit Commitments and Term Loans (including the reasonable expenses of the Administrative Agent's due diligence investigation)), including, without limitation, the reasonable fees and disbursements of counsel to the Administrative Agent and the other Managing Agents, (b) to pay or reimburse each Lender and the Administrative Agent for all their respective costs and expenses incurred in connection with the enforcement or preservation of any rights under this Agreement, the other Loan Documents and any such other documents, including, without limitation, the fees and disbursements of counsel (including the allocated fees and expenses of in-house counsel) to the respective Lenders and the Administrative Agent, (c) to pay, indemnify, and hold each Lender, the Administrative Agent, the other Managing Agents and the European Swing Line Administrator harmless from, any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other taxes, if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, this Agreement, the other Loan Documents and any such other documents, and (d) to pay, indemnify, and hold each Lender, the Administrative Agent, the other Managing Agents and the European Swing Line Administrator and their respective directors, trustees, 111 105 officers, affiliates, employees and agents harmless from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with respect to the execution, delivery, enforcement, performance and administration of this Agreement, the other Loan Documents or the use or proposed use of the proceeds of the Loans in connection with the transactions contemplated hereby and thereby and any such other documents regardless of whether the Administrative Agent or any Lender is a party to the litigation or other proceeding giving rise thereto and regardless of whether any such litigation or other proceeding is brought by the Borrower or any other Person, including, without limitation, any of the foregoing relating to the violation of, noncompliance with or liability under, any Environmental Law applicable to the operations of the Borrower, any of its Subsidiaries or any of the facilities and properties owed, leased or operated by the Borrower or any of its Subsidiaries (all the foregoing in this clause (d), collectively, the "indemnified liabilities"), provided that the Borrower shall have no obligation hereunder to the Administrative Agent or any Lender or any other Person with respect to indemnified liabilities arising from the gross negligence or willful misconduct of the party seeking indemnification. The agreements in this subsection shall survive repayment of the Loans and all other amounts payable hereunder. 11.6 Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Borrower, the Lenders, the Administrative Agent, other Managing Agents and their respective successors and assigns, except that none of the Borrowers may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender. (b) Any Lender may, in the ordinary course of its business or investment activities and in accordance with applicable law, at any time sell to one or more banks or other entities ("Participants") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and the other Loan Documents. No Lender shall be entitled to create in favor of any Participant, in the participation agreement pursuant to which such Participant's participating interest shall be created or otherwise, any right to vote on, consent to or approve any matter relating to this Agreement or any other Loan Document except for those matters specified in clauses (i) and (ii) of the proviso to subsection 11.1. The Borrower agrees that if amounts outstanding under this Agreement are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in subsection 11.7(a) as fully as if it were a Lender hereunder. The Borrower also agrees that each Participant shall be entitled 112 106 to the benefits of subsections 4.10, 4.11 and 4.12 with respect to its participation in the Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of subsection 4.11, such Participant shall have complied with the requirements of said subsection and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such subsection than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. (c) Any Lender may, in the ordinary course of its business or investment activities and in accordance with applicable law, at any time and from time to time assign to any Lender or any branch or affiliate thereof or, with the consent of the Borrower and the Administrative Agent (which in each case shall not be unreasonably withheld or delayed), to an additional bank or financial institution (an "Assignee") all or any part of its rights and obligations under this Agreement and the other Loan Documents pursuant to an Assignment and Acceptance, substantially in the form of Exhibit F, executed by such Assignee and such assigning Lender (and, in the case of an Assignee that is not then a Lender or a branch or an affiliate thereof, by the Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register, provided that, in the case of any such assignment to an additional bank or financial institution, if such assignment is of less than all of the rights and obligations of the assigning Lender, the sum of the aggregate principal amount of the Loans, the aggregate amount of the L/C Obligations and the aggregate amount of the Available Revolving Credit Commitment being assigned shall not be less than $5,000,000 (or such lesser amount as may be agreed to by the Borrower and the Administrative Agent). Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Acceptance, have the rights and obligations of a Lender hereunder with a Commitment as set forth therein, and (y) the assigning Lender thereunder shall, to the extent provided in such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such assigning Lender shall cease to be a party hereto but shall nonetheless continue to be entitled to the benefits of subsections 4.10, 4.11, 4.12 and 11.5). Notwithstanding any provision of this paragraph (c) and paragraph (e) of this subsection, the consent of the Borrower shall not be required for any assignment which occurs at any time when any of the Events of Default described in Section 9(f) shall have occurred and be continuing. (d) The Administrative Agent, on behalf of the Borrower, shall maintain at the address of the Administrative Agent referred to in subsection 11.2 a copy of each Assignment and Acceptance delivered to it and a register (the "Register") for the recordation of the names and addresses of the Lenders and the Commitments of, and principal amounts of the Loans owing to, each Lender from time to time (whether or not evidenced by a Note). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Acceptance, and thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee and the old Note shall be returned by the Administrative Agent to the Borrower marked "canceled". The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, the 113 107 Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of a Loan or other obligation hereunder as the owner thereof for all purposes of this Agreement and the other Loan Documents, notwithstanding any notice to the contrary. Any assignment of any Loan or other obligation (whether or not evidenced by a Note) hereunder shall be effective only upon appropriate entries with respect thereto being made in the Register. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $3,500, the Administrative Agent shall promptly accept such Assignment and Acceptance and record the information contained therein in the Register. Such Assignment and Acceptance and the assignment evidenced thereby shall only be effective upon appropriate entries with respect to the information contained therein being made in the Register pursuant to subsection 11.6(d). (f) The Borrower authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee, subject to such Person agreeing to comply with the provisions of subsection 11.15, any and all financial and other information in such Lender's possession concerning the Borrower and its Affiliates which has been delivered to such Lender by or on behalf of the Borrower pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Borrower in connection with such Lender's credit evaluation of the Borrower and its Affiliates prior to becoming a party to this Agreement. (g) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this subsection concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. 11.7 Adjustments; Set-off. (a) Other than as provided for in subsection 2.6 in respect of the Swing Line Lenders, if any Lender (a "benefitted Lender") shall at any time receive any payment of all or part of its Loans or the Reimbursement Obligations owing to it, or interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 9(f), or otherwise), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of such other Lender's Loans or the Reimbursement Obligations owing to it, or interest thereon, such benefitted Lender shall purchase for cash from the other Lenders a participating interest (or, at the option of such benefitted Lender, a direct interest) in such portion of each such other Lender's Loan or the Reimbursement Obligations owing to it, or shall provide such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such benefitted Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the Lenders; provided that if all or any portion of such excess payment or benefits is thereafter recovered from such benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. 114 108 (b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to any Borrower, any such notice being expressly waived by each Borrower to the extent permitted by applicable law, upon any amount remaining unpaid (including, without limitation, any amount owing to such Lender in respect of an undivided participation interest purchased by such Lender in any Swing Line Loan pursuant to subsection 2.6(d) or an undivided interest purchased by such Lender in any draft paid by the Issuing Lender under any Letter of Credit pursuant to subsection 3.4(a)) after it becomes due and payable by a Borrower hereunder (whether at the stated maturity, by acceleration or otherwise) to set-off and appropriate and apply against such amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any affiliate, branch or agency thereof to or for the credit or the account of a Borrower. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such set-off and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such set-off and application. 11.8 Counterparts. This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts (including by facsimile transmission), and all of said counterparts taken together shall be deemed to constitute one and the same instrument. A set of the copies of this Agreement signed by all the parties shall be lodged with the Borrower and the Administrative Agent. 11.9 Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. 11.10 Integration. This Agreement and the other Loan Documents and the Fee Letter represent the agreement of the Loan Parties, the Administrative Agent and the Lenders with respect to the subject matter hereof, and there are no promises, undertakings, representations or warranties by the Administrative Agent or any Lender relative to subject matter hereof not expressly set forth or referred to herein or in the other Loan Documents or the Fee Letter. 11.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. 11.12 Submission To Jurisdiction; Waivers. Each of the Borrowers hereby irrevocably and unconditionally: (a) submits for itself and its property in any legal action or proceeding relating to this Agreement and the other Loan Documents to which it is a party, or for recognition and enforcement of any judgement in respect thereof, to the non-exclusive 115 109 general jurisdiction of the courts of the State of New York, the courts of the United States for the Southern District of New York, and appellate courts from any thereof; (b) consents that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same; (c) agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to such Borrower at its address referred to in subsection 11.2 or at such other address of which the Administrative Agent shall have been notified pursuant thereto; (d) agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the right to sue in any other jurisdiction; and (e) waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding referred to in this subsection any special, exemplary, punitive or consequential damages. 11.13 Acknowledgments. Each of the Borrowers hereby acknowledges that: (a) it has been advised by counsel in the negotiation, execution and delivery of this Agreement and the other Loan Documents; (b) neither the Administrative Agent nor any Lender has any fiduciary relationship with or duty to such Borrower arising out of or in connection with this Agreement or any of the other Loan Documents, and the relationship between Administrative Agent and Lenders, on one hand, and such Borrower, on the other hand, in connection herewith or therewith is solely that of debtor and creditor; and (c) no joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions contemplated hereby among the Lenders or among such Borrower and the Lenders. 11.14 WAIVERS OF JURY TRIAL. EACH OF THE BORROWERS, THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN. 11.15 Confidentiality. Each Lender agrees to keep confidential any written information (a) provided to it by or on behalf of the Borrower or any of its Subsidiaries pursuant to or in connection with this Agreement or (b) obtained by such Lender based on a review of the books and records of the Borrower or any of its Subsidiaries; provided that nothing herein shall 116 110 prevent any Lender from disclosing any such information (i) to the Administrative Agent or any other Lender, (ii) to any Transferee, prospective Transferee or to any direct or indirect contractual counterparty in swap agreements payments with respect to which are related to payments made pursuant to this Agreement or such contractual counterparty's professional advisors, in each case, which agrees to comply with the provisions of this subsection, (iii) to its employees, directors, agents, attorneys, affiliates, accountants and other professional advisors, (iv) upon the request or demand of any Governmental Authority having jurisdiction over such Lender or as shall be required pursuant to any Requirement of Law, (v) in response to any order of any court or other Governmental Authority or as may otherwise be required pursuant to any Requirement of Law, (vi) in connection with any litigation to which such Lender is a party, (vii) which has been publicly disclosed other than in breach of this Agreement, or (viii) to the extent reasonably necessary, in connection with the exercise of any remedy hereunder. 11.16 Effect of Amendment and Restatement of the Prior Credit Agreement. On the Closing Date, the Prior Credit Agreement shall be amended, restated and superseded in its entirety. The parties hereto acknowledge and agree that (a) this Agreement and the other Loan Documents executed and delivered in connection herewith do not constitute a novation, payment and reborrowing, or termination of the "Obligations" (as defined in the Loan Documents in respect of the Prior Credit Agreement) under the Prior Credit Agreement as in effect prior to the Closing Date; (b) such "Obligations" are in all respects continuing (as amended and restated hereby) with only the terms thereof being modified as provided in this Agreement; and (c) the Liens and security interests as granted under the Security Documents (as defined herein) securing payment of such "Obligations" are in all respects continuing and in full force and effect and secure the payment of the Obligations (as defined in the Loan Documents in respect of this Agreement). 11.17 Judgment. (a) If for the purpose of obtaining judgment in any court it is necessary to convert a sum due hereunder in one currency into another currency, the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase the first currency with such other currency on the second Business Day preceding the day on which final judgment is given. (b) The obligation of each of the Borrowers in respect of any sum due to any Lender or the Administrative Agent hereunder shall, notwithstanding any judgment in a currency (the "Judgment Currency") other than that in which such sum is denominated in accordance with the applicable provisions of this Agreement or the other Loan Documents (the "Agreement Currency"), be discharged only to the extent that on the second Business Day following receipt by such Lender or the Administrative Agent (as the case may be) of any sum adjudged to be so due in the Judgment Currency such Lender or the Administrative Agent (as the case may be) may in accordance with normal banking procedures purchase the Agreement Currency with the Judgment Currency; if the amount of the Agreement Currency so purchased is less than the sum originally due to such Lender or the Administrative Agent (as the case may be) in the Agreement Currency, each of the Borrowers agrees, as a separate obligation and notwithstanding any such judgment, to indemnify such Lender or the Administrative Agent (as the case may be) against such loss, and if the amount of the Agreement Currency so purchased exceeds the sum originally due to any Lender or the Administrative Agent (as the case may be), such Lender or the 117 111 Administrative Agent (as the case may be) agrees to remit to the Borrower such excess. The obligations of each of the Borrowers contained in this subsection 11.17 shall survive the termination of this Agreement and the payment of all amounts owing hereunder. 118 112 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their proper and duly authorized officers as of the day and year first above written. HAYES LEMMERZ INTERNATIONAL, INC. By: Title: CANADIAN IMPERIAL BANK OF COMMERCE, NEW YORK AGENCY, as Administrative Agent, Co-Lead Arranger and as a Lender By: Title: CREDIT SUISSE FIRST BOSTON, as Syndication Agent, Co-Lead Arranger and as a Lender By: Title: By: Title: DRESDNER BANK AG NEW YORK AND GRAND CAYMAN BRANCHES, as Co-Documentation Agent, as European Swing Line Administrator and as a Lender By: Title: MERRILL LYNCH & CO., MERRILL LYNCH PIERCE FENNER & SMITH INCORPORATED, as Co-Documentation Agent 119 113 By: Title: MERRILL LYNCH CAPITAL CORPORATION, as Lender By: Title: 120 1 SCHEDULE B APPLICABLE MARGIN AND APPLICABLE COMMITMENT FEE RATE
Applicable Margin Applicable Commitment Fee Leverage Ratio LIBOR Spread Base Rate Spread Rate - ------------------------------------------------------------ ------------- ------------------ -------------- Greater than or equal to 5.250 to 1 2.50 % 1.00 % 0.500 % Less than 5.250 to 1 but greater than or equal to 4.750 to 1 2.25 % .75 % 0.500 % Less than 4.750 to 1 but greater than or equal to 4.250 to 1 2.00 % .50 % 0.425 % Less than 4.250 to 1 but greater than or equal to 3.750 to 1 1.75 % .25 % 0.375 % Less than 3.750 to 1 but greater than or equal to 3.250 to 1 1.50 % .00 % 0.300 % Less than 3.250 to 1 1.25 % .00 % 0.300 %
121 1 SCHEDULE C AVAILABLE FOREIGN CURRENCIES TERM LOANS 1. Deutschemarks or such other lawful currency of Germany. 1. euro unit. FOREIGN CURRENCY REVOLVING CREDIT LOANS, FOREIGN CURRENCY COMPETITIVE LOANS AND FOREIGN CURRENCY LETTERS OF CREDIT 1. Deutschemarks or such other lawful currency of Germany. 2. U.K. Pounds Sterling or such other lawful currency of England. 3. French Francs or such other lawful currency of France. 4. euro unit. FOREIGN CURRENCY SWING LINE LOANS 1. Deutschemarks or such other lawful currency of Germany. 2. Lire or such other lawful currency of Italy. 3. Belgian Francs or such other lawful currency of Belgium. 4. Guilders or such other lawful currency of the Netherlands. 5. Pesetas or such other lawful currency of Spain. 6. Turkish Lira or such other lawful currency of Turkey. 2. euro unit. 3. Brazilian Real or such other lawful currency of Brazil. -----END PRIVACY-ENHANCED MESSAGE-----