EXHIBIT 10-X
EXECUTION COPY
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$1,450,000,000
SENIOR SECURED SUPERPRIORITY
DEBTOR-IN-POSSESSION CREDIT AGREEMENT
Dated as of March 3, 2006
Among
▇▇▇▇ CORPORATION,
as Debtor and Debtor-in-Possession
as Borrower
and
THE GUARANTORS PARTY HERETO,
as Debtors and Debtors in Possession under Chapter 11 of the Bankruptcy Code
and
CITICORP NORTH AMERICA, INC.
as Administrative Agent
and
BANK OF AMERICA, N.A.
and
JPMORGAN CHASE BANK, N.A.
as Co-Syndication Agents
and
CITICORP NORTH AMERICA, INC.
as Initial Swing Line Lender
and
BANK OF AMERICA, N.A.,
CITICORP NORTH AMERICA, INC.
and
JPMORGAN CHASE BANK, N.A.
as Initial Issuing Banks
THE INITIAL LENDERS AND THE OTHER LENDERS PARTY HERETO
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CITIGROUP GLOBAL MARKETS INC., ▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
and
BANC OF AMERICA SECURITIES LLC
as Joint Lead Arrangers and Joint Bookrunners
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TABLE OF CONTENTS
PAGE
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01 Certain Defined Terms ...................................... 2
Section 1.02 Computation of Time Periods ................................ 27
Section 1.03 Accounting Terms ........................................... 27
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
Section 2.01 The Advances ............................................... 27
Section 2.02 Making the Advances ........................................ 28
Section 2.03 Issuance of and Drawings and Reimbursement Under Letters of
Credit ..................................................... 30
Section 2.04 Repayment of Advances ...................................... 35
Section 2.05 Termination or Reduction of Commitments .................... 36
Section 2.06 Prepayments ................................................ 36
Section 2.07 Interest ................................................... 38
Section 2.08 Fees ....................................................... 38
Section 2.09 Conversion of Advances ..................................... 39
Section 2.10 Increased Costs, Etc ....................................... 40
Section 2.11 Payments and Computations .................................. 41
Section 2.12 Taxes ...................................................... 42
Section 2.13 Sharing of Payments, Etc ................................... 44
Section 2.14 Use of Proceeds ............................................ 45
Section 2.15 Defaulting Lenders ......................................... 45
Section 2.16 Evidence of Debt ........................................... 47
Section 2.17 Priority and Liens ......................................... 48
Section 2.18 Payment of Obligations ..................................... 48
Section 2.19 No Discharge: Survival of Claims ........................... 48
ARTICLE III
CONDITIONS TO EFFECTIVENESS
Section 3.01 Conditions Precedent to Effectiveness ...................... 49
Section 3.02 Conditions Precedent to Each Borrowing and Each Issuance of
a Letter of Credit ......................................... 51
Section 3.03 Conditions Precedent to the Term Borrowing ................. 52
Section 3.04 Determinations Under Sections 3.01 and 3.03 ................ 53
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01 Representations and Warranties of the Loan Parties ......... 53
ii
ARTICLE V
COVENANTS OF THE LOAN PARTIES
Section 5.01 Affirmative Covenants ...................................... 56
Section 5.02 Negative Covenants ......................................... 60
Section 5.03 Reporting Requirements ..................................... 64
Section 5.04 Financial Covenants ........................................ 67
ARTICLE VI
EVENTS OF DEFAULT
Section 6.01 Events of Default .......................................... 68
Section 6.02 Actions in Respect of the Letters of Credit upon Default ... 71
ARTICLE VII
THE AGENTS
Section 7.01 Appointment and Authorization of the Agents ................ 72
Section 7.02 Delegation of Duties ....................................... 72
Section 7.03 Liability of Agents ........................................ 72
Section 7.04 Reliance by Agents ......................................... 73
Section 7.05 Notice of Default .......................................... 73
Section 7.06 Credit Decision; Disclosure of Information by Agents ....... 73
Section 7.07 Indemnification of Agents .................................. 74
Section 7.08 Agents in Their Individual Capacity ........................ 74
Section 7.09 Successor Agent ............................................ 74
Section 7.10 Administrative Agent May File Proofs of Claim .............. 75
Section 7.11 Collateral and Guaranty Matters ............................ 75
Section 7.12 Other Agents; Arrangers and Managers ....................... 76
ARTICLE VIII
SUBSIDIARY GUARANTY
Section 8.01 Subsidiary Guaranty ........................................ 76
Section 8.02 Guaranty Absolute .......................................... 77
Section 8.03 Waivers and Acknowledgments ................................ 78
Section 8.04 Subrogation ................................................ 78
Section 8.05 Additional Guarantors ...................................... 79
Section 8.06 Continuing Guarantee; Assignments .......................... 79
Section 8.07 No Reliance ................................................ 79
ARTICLE IX
SECURITY
Section 9.01 Grant of Security .......................................... 79
Section 9.02 Further Assurances ......................................... 83
iii
Section 9.03 Rights of Lender; Limitations on Lenders' Obligations ...... 84
Section 9.04 Covenants of the Loan Parties with Respect to Collateral ... 85
Section 9.05 Performance by Agent of the Loan Parties' Obligations ...... 88
Section 9.06 The Administrative Agent's Duties .......................... 89
Section 9.07 Remedies ................................................... 89
Section 9.08 Modifications .............................................. 91
Section 9.09 Release; Termination ....................................... 92
ARTICLE X
MISCELLANEOUS
Section 10.01 Amendments, Etc ........................................... 92
Section 10.02 Notices, Etc .............................................. 94
Section 10.03 No Waiver; Remedies ....................................... 95
Section 10.04 Costs, Fees and Expenses .................................. 95
Section 10.05 Right of Set-off .......................................... 97
Section 10.06 Binding Effect ............................................ 97
Section 10.07 Successors and Assigns .................................... 97
Section 10.08 Execution in Counterparts ................................. 100
Section 10.09 Confidentiality; Press Releases and Related Matters ....... 100
Section 10.10 Patriot Act Notice ........................................ 101
Section 10.11 Jurisdiction, Etc ......................................... 101
Section 10.12 Governing Law ............................................. 101
Section 10.13 Waiver of Jury Trial ...................................... 103
iv
SCHEDULES
Schedule I - Commitments and Applicable Lending Offices
Schedule II - Intellectual Property
Schedule III - Material IP Agreements
Schedule IV - Initial Pledged Equity
Schedule V - Initial Pledged Debt
Schedule 1.01(a) - Material Guarantors
Schedule 1.01(b) - Material Intellectual Property
Schedule 4.01 - Equity Investments; Subsidiaries
Schedule 4.01(i) - Disclosures
Schedule 4.01(m) - Environmental Matters
Schedule 5.01(n)(iii) - Post-Closing Matters
Schedule 5.01(p) - Sale and Lease Backs
EXHIBITS
Exhibit A-1 - Form of Term Note
Exhibit A-2 - Form of Revolving Credit Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D-1 - Form of Opinion of ▇▇▇▇▇ Day
Exhibit D-2 - Form of Opinion of Hunton & ▇▇▇▇▇▇▇▇ LLP
Exhibit D-3 - Form of Opinion of ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP
Exhibit E - Interim Order
Exhibit F - Final Order
Exhibit G - Form of IP Security Agreement Supplement
Exhibit H - Form of Guaranty Supplement
SENIOR SECURED SUPERPRIORITY
DEBTOR-IN-POSSESSION CREDIT AGREEMENT
SENIOR SECURED SUPERPRIORITY DEBTOR-IN-POSSESSION CREDIT AGREEMENT
(this "Agreement") dated as of March 3, 2006 among ▇▇▇▇ CORPORATION, a Virginia
corporation and a debtor and debtor-in-possession in a case pending under
chapter 11 of the Bankruptcy Code (as hereinafter defined) (the "Borrower"), and
each of the direct and indirect subsidiaries of the Borrower signatory hereto
(each, a "Guarantor", and, collectively, together with any person that becomes a
Guarantor hereunder pursuant to Section 8.05, the "Guarantors"), each of which
is a debtor and debtor-in-possession in a case pending under Chapter 11 of the
Bankruptcy Code, the Initial Lenders (as hereinafter defined) and the other
banks, financial institutions and other institutional lenders party hereto
(each, a "Lender", and collectively with the Initial Lenders and any other
person that becomes a Lender hereunder pursuant to Section 10.07, the
"Lenders"), BANK OF AMERICA, N.A. ("BofA"), CITICORP NORTH AMERICA, INC.
("CNAI") and JPMORGAN CHASE BANK, N.A. ("JPM"), as the initial Issuing Banks (in
such capacity, the "Initial Issuing Banks"), CNAI, as the initial Swing Line
Lender (in such capacity, the "Initial Swing Line Lender"), CNAI, as
administrative agent (or any successor appointed pursuant to Article VII, the
"Administrative Agent") for the Lender Parties and the other Secured Parties
(each as hereinafter defined), JPMORGAN CHASE BANK, N.A. and BANK OF AMERICA,
N.A., as co-syndication agents (the "Syndication Agents") and CITIGROUP GLOBAL
MARKETS INC., ▇.▇. ▇▇▇▇▇▇ SECURITIES INC. and BANC OF AMERICA SECURITIES LLC, as
Joint Lead Arrangers and Joint Bookrunners (the "Lead Arrangers").
PRELIMINARY STATEMENTS
(1) On March 3, 2006 (the "Petition Date"), the Borrower and the
Guarantors filed voluntary petitions in the United States Bankruptcy Court for
the Southern District of New York (the "Bankruptcy Court") for relief, and
commenced proceedings (the "Cases") under Chapter 11 of the U.S. Bankruptcy Code
(11 U.S.C. Sections 101 et seq.; the "Bankruptcy Code") and have continued in
the possession of their assets and in the management of their businesses
pursuant to Sections 1107 and 1108 of the Bankruptcy Code.
(2) The Borrower has requested that the Agents (as hereafter defined)
and the Lender Parties (as hereinafter defined) enter into term, revolving
credit, swing line and letter of credit facilities (collectively, the
"Facilities") in an aggregate principal amount not to exceed $1,450,000,000.
(3) To provide guarantees and security for the repayment of the
advances under the Facilities, the reimbursement of any drawing under a letter
of credit and the payment of the other obligations of the Borrower hereunder and
under the other Loan Documents (as hereinafter defined), the Borrower and the
Guarantors, as the case may be, will provide to the Administrative Agent and the
Lender Parties (a) a guaranty from each of the Guarantors of the due and
punctual payment of the obligations of the Borrower hereunder, and (b) the
claims and liens described in Section 2.17 of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01 Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Account Collateral" has the meaning specified in Section 9.01(f).
"Accounts" has the meaning set forth in the UCC.
"Acquisition" means any transaction or series of related transactions
for the purpose of or resulting, directly or indirectly, in (i) the
acquisition of all or substantially all of the assets of any Person, or any
business or division of any Person, (ii) the acquisition or ownership of in
excess of 50% of the Equity Interests in any Person, or (iii) the
acquisition of another Person by a merger, consolidation, amalgamation or
any other combination with such Person.
"Administrative Agent" has the meaning specified in the recital of
parties to this Agreement.
"Administrative Agent's Account" means the account of the
Administrative Agent maintained by the Administrative Agent with Citibank,
N.A. and identified to the Borrower and the Lender Parties from time to
time.
"Advance" means a Term Advance, a Revolving Credit Advance, a Swing
Line Advance or a Letter of Credit Advance.
"Affiliate" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person. For purposes of
this definition, the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a Person means the
possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of such Person, whether through
the ownership of Voting Stock, by contract or otherwise.
"After-Acquired Intellectual Property" has the meaning specified in
Section 9.04(e)(v).
"Agent-Related Persons" means, the Agents, together with their
respective Affiliates, and the officers, directors, employees, agents and
attorneys-in-fact of such Agents and Affiliates.
"Agents" means the Administrative Agent, the Syndication Agent and the
Lead Arrangers.
"Agreement Value" means, for each Hedge Agreement, on any date of
determination, an amount equal to: (a) in the case of a Hedge Agreement
documented pursuant to the Master Agreement (Multicurrency-Cross Border)
published by the International Swap and Derivatives Association, Inc. (the
"Master Agreement"), the amount, if any, that would be payable by any Loan
Party or any of its Subsidiaries to its counterparty to such Hedge
Agreement, as if (i) such Hedge Agreement was being terminated early on
such date of determination, (ii) such Loan Party or Subsidiary was the sole
"Affected Party," and (iii) the Administrative Agent was the sole party
determining such payment amount (with the Administrative Agent making such
determination
3
pursuant to the provisions of the form of Master Agreement); (b) in the
case of a Hedge Agreement traded on an exchange, the ▇▇▇▇-to-market value
of such Hedge Agreement, which will be the unrealized loss or gain on such
Hedge Agreement to the Loan Party or Subsidiary of a Loan Party to such
Hedge Agreement based on the settlement price of such Hedge Agreement on
such date of determination; or (c) in all other cases, the ▇▇▇▇-to-market
value of such Hedge Agreement, which will be the unrealized loss or gain on
such Hedge Agreement to the Loan Party or Subsidiary of a Loan Party to
such Hedge Agreement determined as the amount, if any, by which (i) the
present value of the future cash flows to be paid by such Loan Party or
Subsidiary exceeds (ii) the present value of the future cash flows to be
received by such Loan Party or Subsidiary pursuant to such Hedge Agreement;
capitalized terms used and not otherwise defined in this definition shall
have the respective meanings set forth in the above described Master
Agreement
"Applicable Lending Office" means, with respect to each Lender Party,
such Lender Party's Domestic Lending Office in the case of a Base Rate
Advance and such Lender Party's Eurodollar Lending Office in the case of a
Eurodollar Rate Advance.
"Applicable Margin" means (a) in respect of the Term Facility, 3.25%
per annum, in the case of Eurodollar Rate Advances, and 2.25% per annum, in
the case of Base Rate Advances, (b) in respect of the Swing Line Facility,
as set forth in clause (c) below for Base Rate Advances, and (c) in respect
of the Revolving Credit Facility, 2.25% per annum, in the case of
Eurodollar Rate Advances, and 1.25% per annum, in the case of Base Rate
Advances.
"Appropriate Lender" means, at any time, with respect to (a) the Term
Facility or the Revolving Credit Facility, a Lender that has a Commitment
or Advances outstanding, in each case with respect to or under such
Facility at such time, (b) the Letter of Credit Sublimit, (i) any Issuing
Bank and (ii) if the Revolving Credit Lenders have made Letter of Credit
Advances pursuant to Section 2.03(c) that are outstanding at such time,
each such Revolving Credit Lender and (c) the Swing Line Facility, (i) the
Swing Line Lender and (ii) if the Revolving Credit Lenders have made Swing
Line Advances pursuant to Section 2.02(b) that are outstanding at such
time, each Revolving Credit Lender.
"Approved Fund" means any Fund that is administered or managed by (a)
a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of
an entity that administers or manages a Lender.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender Party and an Eligible Assignee, and accepted by the
Administrative Agent, in accordance with Section 10.07 and in substantially
the form of Exhibit C hereto.
"Available Amount" of any Letter of Credit means, at any time, the
maximum amount available to be drawn under such Letter of Credit at such
time (assuming compliance at such time with all conditions to drawing).
"Availability" means at any time the excess of (a) the Revolving
Credit Availability Amount at such time over (b) the sum of (i) the
Revolving Credit Advances, Swing Line Advances and Letter of Credit
Advances outstanding at such time plus (ii) the aggregate Available Amount
of all Letters of Credit outstanding at such time.
"Bankruptcy Code" has the meaning specified in the Preliminary
Statements.
4
"Bankruptcy Court" has the meaning specified in the Preliminary
Statements and means the United States District Court for the Southern
District of New York when such court is exercising direct jurisdiction over
the Cases.
"Base Rate" means a fluctuating interest rate per annum in effect from
time to time, which rate per annum shall at all times be equal to the
higher of:
(a) the rate of interest announced publicly by Citibank, N.A. in
New York, New York, from time to time, as Citibank N.A.'s base rate;
and
(b) 1/2 of 1% per annum above the Federal Funds Rate.
"Borrower" has the meaning specified in the recital of parties to this
Agreement.
"Borrower's Account" means the account of the Borrower maintained by
the Borrower and specified in writing to the Administrative Agent from time
to time.
"Borrowing" means a borrowing consisting of simultaneous Advances of
the same Type made by the Appropriate Lenders.
"Borrowing Base" means (a) the sum of the Loan Values less (b)
Reserves.
"Borrowing Base Amendment" means an amendment to this Agreement
reasonably satisfactory to the Initial Lenders to be executed and delivered
prior to entry of the Final Order pursuant to which aggregate availability
under the Revolving Credit Facility will not be permitted to exceed the
Borrowing Base.
"Business Day" means a day of the year on which banks are not required
or authorized by law to close in New York City and, if the applicable
Business Day relates to any Eurodollar Rate Advances, on which dealings are
carried on in the London interbank market.
"Budget Variance Report" means a report calculated in accordance with
the most recent Thirteen Week Forecast, in each case certified by a
Responsible Officer of the Borrower, in form and substance reasonably
satisfactory to the Initial Lenders, to be delivered concurrently with each
Thirteen Week Forecast showing cash usage and borrowing variance for the
period since the delivery of the last Thirteen Week Forecast.
"Canadian Revolving Facility" means the senior secured revolving
credit facility in an aggregate principal amount up to $100,000,000 entered
into by ▇▇▇▇ Canada Holding Company and its Subsidiaries on or prior to the
date of the entry of the Final Order, on terms reasonably acceptable to the
Initial Lenders.
"Capital Expenditures" means, for any Person for any period, the sum
(without duplication) of all expenditures made, directly or indirectly, by
such Person or any of its Subsidiaries during such period for equipment,
fixed assets, real property or improvements, or for replacements or
substitutions therefor or additions thereto, that have been or should be,
in accordance with GAAP, reflected as additions to property, plant or
equipment on a Consolidated balance sheet of such Person. For purposes of
this definition, the purchase price of equipment that is purchased
simultaneously with the trade in of existing equipment or with insurance
proceeds shall be included in Capital Expenditures only to the extent of
the gross amount of such
5
purchase price less the credit granted by the seller of such equipment for
the equipment being traded in at such time or the amount of such proceeds,
as the case may be.
"Capitalized Leases" means all leases that have been or should be, in
accordance with GAAP, recorded as capitalized leases.
"Carve-Out" means (i) all fees required to be paid to the Clerk of the
Bankruptcy Court and to the Office of the United States Trustee under
Section 1930(a) of title 28 of the United States Code and (ii) an amount
not exceeding $20,000,000 in the aggregate, which amount may be used after
the occurrence and during the continuance of an Event of Default, to pay
fees or expenses incurred by the Borrower and any Committee in respect of
(A) allowances of compensation for services rendered or reimbursement or
expenses awarded by the Bankruptcy Court to the Borrower's or any
Committee's professionals, any chapter 11 or chapter 7 trustees or
examiners appointed in these cases and (B) the reimbursement of expenses
incurred by Committee members in the performance of their duties that are
allowed by the Bankruptcy Court; provided, however, that the Borrower and
each Guarantor shall be permitted to pay compensation and reimbursement of
expenses allowed and payable under Sections 330 and 331 of the Bankruptcy
Code, such dollar limitation on fees and disbursements shall not be reduced
by the amount of any compensation and reimbursement of expenses paid or
incurred (to the extent ultimately allowed by the Bankruptcy Court) prior
to the occurrence of an Event of Default in respect of which the Carve-Out
is invoked or any fees, expenses, indemnities or other amounts paid to the
Administration Agent or the Lenders and their respective attorneys and
agents under this Agreement or otherwise; and provided further that nothing
herein shall be construed to impair the ability of any party to object to
any of the fees, expenses, reimbursement or compensation described in
clauses (A) and (B) above.
"Cases" has the meaning specified in the Preliminary Statements.
"Cash Equivalents" means any of the following, to the extent owned by
any Loan Party free and clear of all Liens other than Liens created under
the Collateral Documents or claims or Liens permitted pursuant to this
Agreement and having a maturity of not greater than 12 months from the date
of issuance thereof: (a) readily marketable direct obligations of the
Government of the United States or any agency or instrumentality thereof or
obligations unconditionally guaranteed by the full faith and credit of the
Government of the United States, (b) certificates of deposit of or time
deposits with any commercial bank that is a Lender Party or a member of the
Federal Reserve System that issues (or the parent of which issues)
commercial paper rated as described in clause (c), is organized under the
laws of the United States or any state thereof and has combined capital and
surplus of at least $500,000,000, (c) commercial paper in an aggregate
amount of no more than $10,000,000 per issuer outstanding at any time,
issued by any corporation organized under the laws of any state of the
United States and rated at least "Prime-1" (or the then equivalent grade)
by ▇▇▇▇▇'▇ or "A-1" (or the then equivalent grade) by S&P or (d)
Investments, classified in accordance with GAAP, as current assets of the
Borrower or any of its Subsidiaries, in money market investment programs
registered under the Investment Company Act of 1940, as amended, which are
administered by financial institutions that have the highest rating
obtainable from either ▇▇▇▇▇'▇ or S&P and which are approved by the
Bankruptcy Court, or (e) offshore overnight interest bearing deposits in
foreign branches of Citibank, N.A., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank, N.A. or Bank of
America, N.A.
"Cash Flow" means for any period, (a) EBITDAR for such period less (b)
the sum of (i) Professional Fees accrued in connection with the Cases
during such period and (ii) Capital Expenditures made during such period.
6
"Cash Management Obligations" means all Obligations of any Loan Party
owing to a Lender Party (or a banking Affiliate of a Lender Party) in
respect of any overdrafts and related liabilities arising from treasury,
depository and cash management services or in connection with any automated
clearing house transfers of funds.
"Change of Control" means and shall be deemed to have occurred upon
the occurrence of any of the following events: (i) any Person or "group"
(within the meaning of Section 13(d) or 14(d) of the Securities Exchange
Act of 1934, and regulations promulgated thereunder) shall have acquired
beneficial ownership of more than 40% of the outstanding Equity Interests
in the Borrower and (ii) after the Effective Date, the occupation of a
majority of the seats (other than vacant seats) on the board of directors
of the Borrower by Persons who were neither (A) nominated by the board of
directors of the Borrower nor (B) appointed by the directors so nominated.
"CNAI" has the meaning specified in the recital of parties to this
Agreement.
"Collateral" means all "Collateral" referred to in the Collateral
Documents and all other property that is or is intended to be subject to
any Lien in favor of the Administrative Agent for the benefit of the
Secured Parties.
"Collateral Documents" means, collectively, the provisions of Article
IX of this Agreement, the Intellectual Property Security Agreement and any
other agreement that creates or purports to create a Lien in favor of the
Administrative Agent for the benefit of the Secured Parties.
"Commitment" means a Term Commitment, a Revolving Credit Commitment, a
Swing Line Commitment or a Letter of Credit Commitment.
"Committee" means any statutory committee appointed in the Cases.
"Company" means, collectively, the Borrower and its Subsidiaries.
"Computer Software" has the meaning specified in Section 9.01(g)(iv).
"Confidential Information" means any and all material non-public
information delivered or made available by any Loan Party or any Subsidiary
relating to any Loan Party or any Subsidiary or their respective
businesses, other than any such information that is or has been made
available publicly by a Loan Party or any Subsidiary.
"Confidential Information Memorandum" means the confidential
information memorandum that will be used by the Lead Arrangers in
connection with the syndication of the Commitments.
"Consolidated" refers to the consolidation of accounts in accordance
with GAAP which, for purposes of this Agreement, shall result in the
treatment of DCC and its Subsidiaries on an equity basis.
"Conversion", "Convert" and "Converted" each refers to the conversion
of Advances from one Type to Advances of the other Type.
"Copyrights" has the meaning specified in Section 9.01(g)(iii).
7
"Credit Card Program" means the (i) Citibank Business Card Purchasing
Card Agreement, dated August 31, 1994, between Citibank (South Dakota),
N.A. and ▇▇▇▇ Corporation, (ii) Citibank Purchasing Card Agreement, dated
January 18, 2005, between Citibank International plc and ▇▇▇▇ Corporation,
and (iii) Citibank Corporate Card Agreement, dated January 24, 2005,
between Citibank International plc and ▇▇▇▇ Corporation, each as amended,
restated, or otherwise modified from time to time, or any replacement of
any of the foregoing for the same or substantially similar purposes.
"DCC" means ▇▇▇▇ Credit Corporation, a Delaware corporation.
"DCC Entity" means DCC or any of its Subsidiaries.
"Debt" of any Person means, without duplication, (a) all indebtedness
of such Person for borrowed money, (b) all indebtedness of such Person for
the deferred purchase price of property or services (other than trade
payables incurred in the ordinary course of such Person's business), (c)
all obligations of such Person evidenced by notes, bonds, debentures or
other similar instruments, (d) all indebtedness of such Person created or
arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property), (e) all
obligations of such Person as lessee under Capitalized Leases, (f) all
obligations of such Person under acceptance, letter of credit or similar
facilities, (g) all mandatory obligations of such Person to purchase,
redeem, retire, defease or otherwise make any payment in cash in respect of
any Equity Interests in such Person or any other Person or any warrants,
rights or options to acquire such Equity Interests, valued, in the case of
Redeemable Preferred Interests, at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends, (h)
all obligations of such Person in respect of Hedge Agreements, valued at
the Agreement Value thereof, (i) all Guarantee Obligations and Synthetic
Debt of such Person and (j) all indebtedness and other payment Obligations
referred to in clauses (a) through (i) above of another Person secured by
(or for which the holder of such Debt has an existing right, contingent or
otherwise, to be secured by) any Lien on property (including, without
limitation, accounts and contract rights) owned by such Person, even though
such Person has not assumed or become liable for the payment of such
indebtedness or other payment Obligations.
"Debtor Relief Laws" means the Bankruptcy Code and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of
creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be given
or time elapse or both.
"Defaulted Advance" means, with respect to any Lender at any time, the
portion of any Advance required to be made by such Lender to the Borrower
pursuant to Section 2.01 or 2.02 at or prior to such time which has not
been made by such Lender or by the Administrative Agent for the account of
such Lender pursuant to Section 2.02(e) as of such time. In the event that
a portion of a Defaulted Advance shall be deemed made pursuant to Section
2.15(a), the remaining portion of such Defaulted Advance shall be
considered a Defaulted Advance originally required to be made pursuant to
Section 2.01 on the same date as the Defaulted Advance so deemed made in
part.
8
"Defaulted Amount" means, with respect to any Lender Party at any
time, any amount required to be paid by such Lender Party to the
Administrative Agent or any other Lender Party hereunder or under any other
Loan Document at or prior to such time which has not been so paid as of
such time, including, without limitation, any amount required to be paid by
such Lender Party to (a) the Swing Line Lender pursuant to Section 2.02(b)
to purchase a portion of the Swing Line Advance made by the Swing Line
Lender, (b) any Issuing Bank pursuant to Section 2.03(d) to purchase a
portion of a Letter of Credit Advance made by such Issuing Bank, (c) the
Administrative Agent pursuant to Section 2.02(e) to reimburse the
Administrative Agent for the amount of any Advance made by the
Administrative Agent for the account of such Lender Party, (d) any other
Lender Party pursuant to Section 2.13 to purchase any participation in
Advances owing to such other Lender Party and (e) the Administrative Agent
or any Issuing Bank pursuant to Section 7.07 to reimburse the
Administrative Agent or such Issuing Bank for such Lender Party's ratable
share of any amount required to be paid by the Lender Parties to the
Administrative Agent or such Issuing Bank as provided therein. In the event
that a portion of a Defaulted Amount shall be deemed paid pursuant to
Section 2.15(b), the remaining portion of such Defaulted Amount shall be
considered a Defaulted Amount originally required to be paid hereunder or
under any other Loan Document on the same date as the Defaulted Amount so
deemed paid in part.
"Defaulting Lender" means, at any time, any Lender Party that, at such
time, (a) owes a Defaulted Advance or a Defaulted Amount or (b) shall take
any action or be the subject of any action or proceeding under any Debtor
Relief Law.
"DIP Budget" means a forecast heretofore delivered to the Initial
Lenders, as supplemented as provided in Section 5.03(g), detailing the
Borrower's anticipated income statement, balance sheet and cash flow
statement, each on a Consolidated basis for the Borrower and its
Subsidiaries, together with a written set of assumptions supporting such
statements, for 2006 and 2007 and setting forth the anticipated uses of the
Commitments on a monthly basis.
"DIP Financing Orders" means the Interim Order and the Final Order.
"Domestic Lending Office" means, with respect to any Lender Party, the
office of such Lender Party specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assignment and Acceptance
pursuant to which it became a Lender Party, as the case may be, or such
other office of such Lender Party as such Lender Party may from time to
time specify to the Borrower and the Administrative Agent.
"EBITDAR" means, for any period, without duplication (a) the sum,
determined on a Consolidated basis, of (i) net income (or net loss), (ii)
interest expense and facility fees, unused commitment fees, letter of
credit fees and similar fees, (iii) income tax expense, (iv) depreciation
expense, (v) amortization expense, (vi) non-recurring, transactional or
unusual losses deducted in calculating net income less non-recurring,
transactional or unusual gains added in calculating net income, (vii) in
each case without duplication, cash Restructuring Charges to the extent
deducted in computing net income for such period and settled or to be
settled in cash during such period in an aggregate amount not to exceed
$75,000,000 in any twelve-month period, in each case of the Borrower and
its Subsidiaries, determined in accordance with GAAP for such period,
(viii) non-cash Restructuring Charges and related non-cash losses or other
non-cash charges resulting from the writedown in the valuation of any
assets in each case of the Borrower and its Subsidiaries, determined in
accordance with GAAP for such period, (ix) without duplication, net losses
from discontinued operations, (x) Professional Fees and (xi) minority
interest expense, minus (b) (i) net income from discontinued operations,
(ii) equity earnings of Affiliates and (iii) interest income.
9
"Effective Date" means the date on which this Agreement shall become
effective pursuant to Section 3.01.
"Eligible Assignee" means with respect to any Facility (other than the
Letter of Credit Facility), (i) a Lender Party; (ii) an Affiliate of a
Lender Party; (iii) an Approved Fund; and (iv) any other Person (other than
an individual) approved by (x) the Administrative Agent, (y) in the case of
an assignment of a Revolving Credit Commitment, each Issuing Bank and (z)
solely in the case of the Revolving Credit Facility, unless an Event of
Default has occurred and is continuing, and except in the case of an
assignment by an Initial Lender during the primary syndication of the
Revolving Credit Facility, the Borrower (each such approval not to be
unreasonably withheld or delayed); provided, however, that neither any Loan
Party nor any Affiliate of a Loan Party shall qualify as an Eligible
Assignee under this definition.
"Eligible Inventory" shall have the meaning ascribed to such term in
the Borrowing Base Amendment.
"Eligible Receivables" shall have the meaning ascribed to such term in
the Borrowing Base Amendment.
"Environmental Action" means any action, suit, written demand, demand
letter, written claim, written notice of noncompliance or violation, notice
of liability or potential liability, investigation, proceeding, consent
order or consent agreement relating in any way to any Environmental Law,
any Environmental Permit, any Hazardous Material, or arising from alleged
injury or threat to public or employee health or safety, as such relates to
exposure to Hazardous Material, or to the environment, including, without
limitation, (a) by any governmental or regulatory authority for
enforcement, cleanup, removal, response, remedial or other actions or
damages and (b) by any governmental or regulatory authority or third party
for damages, contribution, indemnification, cost recovery, compensation or
injunctive relief.
"Environmental Law" means any applicable federal, state, local or
foreign statute, law, ordinance, rule, regulation, code, order, writ,
judgment, injunction or decree, or judicial or agency interpretation,
relating to pollution or protection of the environment, public or employee
health or safety, as such relates to exposure to Hazardous Material, or
natural resources, including, without limitation, those relating to the
use, handling, transportation, treatment, storage, disposal, release or
discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental
Law.
"Equipment" has the meaning specified in the UCC.
"Equity Interests" means, with respect to any Person, shares of
capital stock of (or other ownership or profit interests in) such Person,
warrants, options or other rights for the purchase or other acquisition
from such Person of shares of capital stock of (or other ownership or
profit interests in) such Person, securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit
interests in) such Person or warrants, rights or options for the purchase
or other acquisition from such Person of such shares (or such other
interests), and other ownership or profit interests in such Person
(including, without limitation, partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares,
warrants, options, rights or other interests are authorized on any date of
determination.
10
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of
ERISA is a member of the controlled group of any Loan Party (other than a
DCC Entity), or under common control with any Loan Party (other than a DCC
Entity), within the meaning of Section 414(b), (c), (m) or (o) of the
Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any ERISA Plan
unless the 30-day notice requirement with respect to such event has been
waived by the PBGC or (ii) the requirements of subsection (1) of Section
4043(b) of ERISA (without regard to subsection (2) of such Section) are met
with respect to a contributing sponsor, as defined in Section 4001(a)(13)
of ERISA, of an ERISA Plan, and an event described in paragraph (9), (10),
(11), (12) or (13) of Section 4043(c) of ERISA is reasonably expected to
occur with respect to such ERISA Plan within the following 30 days; (b) the
application for a minimum funding waiver with respect to an ERISA Plan; (c)
the provision by the administrator of any ERISA Plan of a notice of intent
to terminate such ERISA Plan, pursuant to Section 4041(a)(2) of ERISA
(including any such notice with respect to a plan amendment referred to in
Section 4041(e) of ERISA); (d) the cessation of operations at a facility of
any Loan Party or any ERISA Affiliate in the circumstances described in
Section 4062(e) of ERISA; (e) the withdrawal by any Loan Party or any ERISA
Affiliate from a Multiple Employer Plan during a plan year for which it was
a substantial employer, as defined in Section 4001(a)(2) of ERISA; (f) the
conditions for imposition of a lien under Section 302(f) of ERISA shall
have been met with respect to any ERISA Plan; (g) the adoption of an
amendment to an ERISA Plan requiring the provision of security to such
ERISA Plan pursuant to Section 307 of ERISA; or (h) the institution by the
PBGC of proceedings to terminate an ERISA Plan pursuant to Section 4042 of
ERISA, or the occurrence of any event or condition described in Section
4042 of ERISA that constitutes grounds for the termination of, or the
appointment of a trustee to administer, such ERISA Plan.
"ERISA Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Eurodollar Lending Office" means, with respect to any Lender Party,
the office of such Lender Party specified as its "Eurodollar Lending
Office" opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender Party, as the case may be,
or such other office of such Lender Party as such Lender Party may from
time to time specify to the Borrower and the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for all Eurodollar
Rate Advances comprising part of the same Borrowing, an interest rate per
annum equal to the rate per annum obtained by dividing (a) the rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing
on Telerate Page 3750 (or any successor page) as the London interbank
offered rate for deposits in U.S. dollars at 11:00 A.M. (London time) two
Business Days before the first day of such Interest Period for a period
equal to such Interest Period (provided that, if for any reason such rate
is not available, the term "Eurodollar Rate" shall mean, for any Interest
Period for all Eurodollar Rate Advances comprising part of the same
Borrowing, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as the London
interbank offered rate for deposits in Dollars at approximately 11:00 A.M.
(London time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period); provided, however,
if more than one rate is specified on Reuters Screen LIBO Page, the
applicable rate shall be the arithmetic mean of all such rates) by
11
(b) a percentage equal to 100% minus the Eurodollar Rate Reserve Percentage
for such Interest Period.
"Eurodollar Rate Advance" means an Advance that bears interest as
provided in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing means the
reserve percentage applicable two Business Days before the first day of
such Interest Period under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without limitation,
any emergency, supplemental or other marginal reserve requirement) for a
member bank of the Federal Reserve System in New York City with respect to
liabilities or assets consisting of or including Eurocurrency Liabilities
(or with respect to any other category of liabilities that includes
deposits by reference to which the interest rate on Eurodollar Rate
Advances is determined) having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Excluded Property" means property constituting withholdings required
under any law (including but not limited to federal, state and local
income, payroll and trust fund taxes and insurance payments of any nature,
whether imposed on the employer or employee or otherwise) from any amounts
due to any employee of a Loan Party, and any withholdings from an employee
considered a "plan asset" under Title I of ERISA.
"Existing Credit Agreement" means the Five-Year Credit Agreement,
dated as March 4, 2005, among the Borrower, Citicorp USA, Inc., as
administrative agent and the other lenders signatory thereto from time to
time, as amended, modified or supplemented prior to the date hereof.
"Existing Receivables Facility" means the sale and securitization of
certain Accounts of the Borrower and certain of its Subsidiaries pursuant
to the (a) Amended and Restated Purchase and Contribution Agreement, dated
as of April 15, 2005, between ▇▇▇▇ Corporation and ▇▇▇▇ Asset Funding LLC,
and (b) Amended and Restated Purchase and Contribution Agreement, dated as
April 15, 2005, among ▇▇▇▇ Asset Funding LLC, ▇▇▇▇ Corporation, as
collection agent, Falcon Asset Securitization Corporation and Blue Ridge
Asset Funding Corp., as conduit purchasers, Wachovia Bank, N.A., as a
committed purchaser, Blue Ridge Agent and JPMorgan Chase Bank, N.A., each
as a committed purchaser and as agents in the capacities set forth therein,
each agreement as amended, restated, or otherwise modified from time to
time.
"Facility" means the Term Facility, the Revolving Credit Facility, the
Swing Line Facility or the Letter of Credit Sublimit.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight federal funds transactions with members
of the Federal Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a Business Day, the
average of the quotations for such day for such transactions received by
the Administrative Agent from three federal funds brokers of recognized
standing selected by it.
12
"Fee Letter" means the fee letter dated March 2, 2006 among the
Borrower, the Initial Lenders and the Lead Arrangers, as amended.
"Final Order" has the meaning specified in Section 3.02(i)(C).
"First Day Orders" means all orders entered by the Bankruptcy Court on
the Petition Date or within five Business Days of the Petition Date or
based on motions filed on the Petition Date.
"Fiscal Year" means a fiscal year of the Borrower and its Subsidiaries
ending on December 31.
"Foreign Subsidiary" means, at any time, any of the direct or indirect
Subsidiaries of the Borrower that are organized outside of the laws of the
United States, any state thereof or the District of Columbia at such time.
"Fund" means any Person (other than a natural person) that is (or will
be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of
its business.
"GAAP" has the meaning specified in Section 1.03.
"General Intangibles" has the meaning specified in the UCC.
"Granting Lender" has the meaning specified in Section 10.07(k).
"Guarantee Obligation" means, with respect to any Person, any
Obligation or arrangement of such Person to guarantee or intended to
guarantee any Debt ("primary obligations") of any other Person (the
"primary obligor") in any manner, whether directly or indirectly,
including, without limitation, (a) the direct or indirect guarantee,
endorsement (other than for collection or deposit in the ordinary course of
business), co-making, discounting with recourse or sale with recourse by
such Person of the primary obligation of a primary obligor, (b) the
Obligation to make take-or-pay or similar payments, if required, regardless
of nonperformance by any other party or parties to an agreement or (c) any
Obligation of such 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 (A) for the purchase or
payment of any such primary obligation or (B) 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,
assets, 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 holder of such primary obligation against loss in respect
thereof. The amount of any Guarantee Obligation shall be deemed to be an
amount equal to the stated or determinable amount of the primary obligation
in respect of which such Guarantee Obligation is made (or, if less, the
maximum amount of such primary obligation for which such Person may be
liable pursuant to the terms of the instrument evidencing such Guarantee
Obligation) or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required
to perform thereunder), as determined by such Person in good faith.
"Guaranteed Obligations" has the meaning specified in Section 8.01.
13
"Guarantor" has the meaning specified in the recital of parties to
this Agreement, but shall exclude the Non-Filing Domestic Subsidiaries.
"Guaranty" has the meaning specified in Section 8.01.
"Hazardous Materials" means (a) petroleum or petroleum products,
by-products or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls, mold and radon
gas and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous, toxic or words of similar import
under any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements,
currency future or option contracts and other hedging agreements.
"Hedge Bank" means any Lender Party or an Affiliate of a Lender Party
in its capacity as a party to a Secured Hedge Agreement.
"Honor Date" has the meaning specified in Section 2.03(c).
"Indemnified Liabilities" has the meaning specified in Section
10.04(b).
"Indemnitees" has the meaning specified in Section 10.04(b).
"Initial Extension of Credit" means the earlier to occur of the
initial Borrowing and the initial issuance of a Letter of Credit hereunder.
"Initial Issuing Banks" has the meaning specified in the recital of
parties to this Agreement.
"Initial Lenders" means the banks, financial institutions and other
institutional lenders listed on the signature pages hereof as the Initial
Lenders; provided that any such bank, financial institution or other
institutional lender shall cease to be an Initial Lender on any date on
which it ceases to have a Commitment.
"Initial Pledged Debt" means Debt in existence on the Petition Date
which is evidenced by a promissory note payable to a Loan Party by a third
party with a principal face amount in excess of $2,500,000 as listed
opposite such Loan Party's name on and as otherwise described in Schedule V
hereto.
"Initial Pledged Equity" means the shares of stock and other Equity
Interests in any Subsidiary of a Loan Party as set forth opposite each Loan
Party's name on and as otherwise described in Schedule IV hereto; provided
that no Loan Party shall be required to pledge any shares of stock in any
Foreign Subsidiary owned or otherwise held by such Loan Party which, when
aggregated with all of the other shares of stock in such Foreign Subsidiary
pledged by any Loan Party, would result in more than 66% of the shares of
stock in such Foreign Subsidiary entitled to vote (within the meaning of
Treasury Regulation Section 1.956(d)(2) promulgated under the Internal
Revenue Code) (the "Voting Foreign Stock") (on a fully diluted basis) being
pledged to the Administrative Agent, on behalf of the Secured Parties,
under this Agreement (although all of the shares of stock in such Foreign
Subsidiary not entitled to vote (within the meaning of Treasury Regulation
Section 1.956-2(c)(2) promulgated under the Internal Revenue
14
Code) (the "Non-Voting Foreign Stock") shall be pledged by each of the Loan
Parties that owns or otherwise holds any such Non-Voting Foreign Stock
therein).
"Initial Swing Line Lender" has the meaning specified in the recital
of parties to this Agreement.
"Insufficiency" means, with respect to any ERISA Plan, the amount, if
any, of its unfunded benefit liabilities, as defined in Section 4001(a)(18)
of ERISA.
"Intellectual Property" has the meaning specified in Section 9.01(g).
"Intellectual Property Collateral" shall mean all Material
Intellectual Property.
"Intellectual Property Security Agreement" has the meaning specified
in Section 3.01(a)(vii).
"Interest Period" means, for each Eurodollar Rate Advance comprising
part of the same Borrowing, the period commencing on the date of such
Eurodollar Rate Advance or the date of the Conversion of any Base Rate
Advance into such Eurodollar Rate Advance, and ending on the last day of
the period selected by the Borrower pursuant to the provisions below and,
thereafter, each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of the
period selected by the Borrower pursuant to the provisions below. The
duration of each such Interest Period shall be one, two, three or six
months, as the Borrower may, upon notice received by the Administrative
Agent not later than 11:00 A.M. (New York City time) on the third Business
Day prior to the first day of such Interest Period, select; provided,
however, that:
(a) the Borrower may not select any Interest Period with respect
to any Eurodollar Rate Advance under a Facility that ends after any
principal repayment installment date for such Facility unless, after
giving effect to such selection, the aggregate principal amount of
Base Rate Advances and of Eurodollar Rate Advances having Interest
Periods that end on or prior to such principal repayment installment
date for such Facility shall be at least equal to the aggregate
principal amount of Advances under such Facility due and payable on or
prior to such date;
(b) Interest Periods commencing on the same date for Eurodollar
Rate Advances comprising part of the same Borrowing shall be of the
same duration;
(c) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such
Interest Period shall be extended to occur on the next succeeding
Business Day, provided, however, that, if such extension would cause
the last day of such Interest Period to occur in the next following
calendar month, the last day of such Interest Period shall occur on
the next preceding Business Day; and
(d) whenever the first day of any Interest Period occurs on a day
of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months
in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
15
"Interim Order" means a certified copy of an order entered by the
Bankruptcy Court in substantially the form of Exhibit E.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"Inventory" has the meaning specified in the UCC.
"Investment" means, with respect to any Person, (a) any direct or
indirect purchase or other acquisition (whether for cash, securities,
property, services or otherwise) by such Person of, or of a beneficial
interest in, any Equity Interests or Debt of any other Person, (b) any
direct or indirect purchase or other acquisition (whether for cash,
securities, property, services or otherwise) by such Person of all or
substantially all of the property and assets of any other Person or of any
division, branch or other unit of operation of any other Person, (c) any
direct or indirect loan, advance, other extension of credit or capital
contribution by such Person to, or any other investment by such Person in,
any other Person (including, without limitation, any arrangement pursuant
to which the investor incurs indebtedness of the types referred to in
clause (i) or (j) of the definition of "Debt" set forth in this Section
1.01 in respect of such other Person) and (d) any written agreement to make
any Investment.
"Issuing Bank" means each Initial Issuing Bank and any other Revolving
Credit Lender approved as an Issuing Bank by the Administrative Agent and
any Eligible Assignee to which a Letter of Credit Commitment hereunder has
been assigned pursuant to Section 7.09 or 10.07.
"L/C Cash Collateral Account" means the account established by the
Borrower in the name of the Administrative Agent and under the sole and
exclusive control of the Administrative Agent that shall be used solely for
the purposes set forth herein.
"L/C Obligations" means, as at any date of determination, the
aggregate Available Amount of all outstanding Letters of Credit plus the
aggregate of all Unreimbursed Amounts, including all Letter of Credit
Borrowings.
"Lead Arrangers" has the meaning specified in the recital of parties
to this Agreement.
"Lender Party" means any Lender, any Issuing Bank or the Swing Line
Lender.
"Lenders" has the meaning specified in the recital of parties to this
Agreement.
"Letter of Credit" means any letter of credit issued hereunder.
"Letter of Credit Advance" means an advance made by any Issuing Bank
or Revolving Credit Lender pursuant to Section 2.03(c).
"Letter of Credit Application" means an application and agreement for
the issuance or amendment of a Letter of Credit in the form from time to
time in use by the applicable Issuing Bank.
"Letter of Credit Commitment" means with respect to any Issuing Bank,
the amount set forth opposite such Issuing Bank's name on Schedule I hereto
under the caption "Letter of Credit Commitment" or if such Issuing Bank has
entered into one or more Assignment and Acceptances, set forth (for such
Issuing Bank in the Register maintained by the Administrative Agent
pursuant
16
to Section 10.07(d) as such Issuing Bank's Letter of Credit Commitment," as
such amount may be reduced at or prior to such time pursuant to Section
2.05.
"Letter of Credit Expiration Date" means the day that is five days
prior to the Maturity Date, or such later date as the applicable Issuing
Bank may, in its sole discretion, specify.
"Letter of Credit Sublimit" means an amount equal to the lesser of (a)
the aggregate amount of the Issuing Banks' Letter of Credit Commitments at
such time and (b) $400,000,000 as such amount may be reduced from time to
time pursuant to Section 2.05. The Letter of Credit Sublimit is part of,
and not in addition to, the Revolving Credit Commitments.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance on
title to real property.
"Loan Documents" means (i) this Agreement, (ii) the Notes, if any,
(iii) the DIP Financing Orders, (iv) the Collateral Documents, (v) the Fee
Letter, (vi) solely for purposes of the Collateral Documents, each Secured
Hedge Agreement and (vii) any other document, agreement or instrument
executed and delivered by a Loan Party in connection with the Facilities,
in each case as amended, supplemented or otherwise modified from time to
time in accordance with the terms thereof.
"Loan Parties" means, collectively, the Borrower and the Guarantors.
"Loan Value" means (a) with respect to Eligible Receivables, up to 85%
of the value of Eligible Receivables and (b) with respect to Eligible
Inventory, the lesser of (i) 65% of the value of Eligible Inventory and
(ii) 85% of the Net Recovery Rate of Eligible Inventory (based on the then
most recent independent inventory appraisal) on any date of determination.
"Margin Stock" has the meaning specified in Regulation U.
"Material Adverse Change" means any event or occurrence which has
resulted in or would reasonably be expected to result in any material
adverse change in the business, financial or other condition, operations or
properties of the Borrower and its Subsidiaries, taken as a whole (other
than events publicly disclosed prior to the commencement of the Cases and
the commencement and continuation of the Cases and the consequences that
would normally result therefrom); provided that events, developments and
circumstances disclosed in public filings and press releases of the
Borrower and any other events of information made available in writing to
the Lead Arrangers, in each case at least three days prior to the Effective
Date, shall not be considered in determining whether a Material Adverse
Change has occurred, although subsequent events, developments and
circumstances relating thereto may be considered in determining whether or
not a Material Adverse Change has occurred.
"Material Adverse Effect" means a material adverse effect on (a) the
business, financial or other condition, operations or properties of the
Borrower and its Subsidiaries, taken as a whole (other than events publicly
disclosed prior to the commencement of the Cases and the commencement and
continuation of the Cases and the consequences that would normally result
therefrom), (b) the rights and remedies of the Administrative Agent or any
Lender Party under any Loan Document or (c) the ability of any Loan Party
to perform its Obligations under any Loan Document to which it is or is to
be a party; provided that events, developments and
17
circumstances disclosed in public filings and press releases of the
Borrower and any other events of information made available in writing to
the Lead Arrangers, in each case at least three days prior to the Effective
Date, shall not be considered in determining whether a Material Adverse
Effect has occurred, although subsequent events, developments and
circumstances relating thereto may be considered in determining whether or
not a Material Adverse Effect has occurred.
"Material Guarantors" means, on any date of determination, (a) those
Guarantors set forth on Schedule 1.01(a) and (b) any other Guarantor that
is a Material Subsidiary, on such date, has (i) assets with a book value
equal to or in excess of $1,000,000, (ii) annual net income in excess of
$1,000,000 or (iii) liabilities in an aggregate amount equal to or in
excess of $1,000,000; provided, however, that in no event shall Guarantors
that are not Material Guarantors have (i) assets with an aggregate book
value in excess of $5,000,000, (ii) aggregate annual net income in excess
of $5,000,000 or (iii) liabilities in an aggregate amount in excess of
$5,000,000.
"Material Intellectual Property" means the Intellectual Property set
forth on Schedule 1.01(b).
"Material Subsidiary" means, on any date of determination, any
Subsidiary of the Borrower that, on such date, has (i) assets with a book
value equal to or in excess of $1,000,000, (ii) annual net income in excess
of $1,000,000 or (iii) liabilities in an aggregate amount equal to or in
excess of $1,000,000; provided, however, that in no event shall all
Subsidiaries of the borrower that are not Material Subsidiaries have (i)
assets with an aggregate book value in excess of $5,000,000, (ii) aggregate
annual net income in excess of $5,000,000 or (iii) liabilities in an
aggregate amount in excess of $5,000,000.
"Maturity Date" means the earlier of (i) the date that is eighteen
months following the Effective Date and (ii) the effective date of a
Reorganization Plan in respect of the Cases.
"Moody's" means ▇▇▇▇▇'▇ Investor Services, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate is
making or accruing an obligation to make contributions, or has within any
of the preceding five plan years made or accrued an obligation to make
contributions.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any
Loan Party or any ERISA Affiliate and at least one Person other than the
Loan Parties and the ERISA Affiliates or (b) was so maintained and in
respect of which any Loan Party or any ERISA Affiliate could have liability
under Section 4064 or 4069 of ERISA in the event such plan has been or were
to be terminated.
"Net Cash Proceeds" means, with respect to any sale, lease, transfer
or other disposition of any asset of the Borrower or any of its
Subsidiaries (other than any sale, lease, transfer or other disposition of
assets pursuant to clauses (i), (ii), (iv) or (v) of Section 5.02(h) and,
to the extent that the distribution to any Loan Party of any proceeds of
any sale, transfer or other disposition of any asset of a Foreign
Subsidiary would (1) result in material adverse tax consequences, (2)
result in a breach of any agreement governing Debt of such Foreign
Subsidiary permitted to exist or to be incurred by such Foreign Subsidiary
under the terms of this Agreement and/or (3) be limited or prohibited under
applicable local law, clause (x) of Section 5.02(h)), the excess, if any,
of (i) the sum of cash and Cash Equivalents received in connection with
such sale, lease, transfer or other
18
disposition (including any cash or Cash Equivalents received by way of
deferred payment pursuant to, or by monetization of, a note receivable or
otherwise, but only as and when so received) over (ii) the sum of (A) the
principal amount of any Debt (other than Debt under the Loan Documents)
that is secured by such asset and that is required to be repaid in
connection with such sale, lease, transfer or other disposition thereof,
(B) in the case of Net Cash Proceeds received by a Foreign Subsidiary, the
principal amount of any Debt of Foreign Subsidiaries permanently prepaid or
repaid with such proceeds, (C) the reasonable and customary out-of-pocket
costs, fees (including investment banking fees), commissions, premiums and
expenses incurred by the Borrower or its Subsidiaries, (D) federal, state,
provincial, foreign and local taxes reasonably estimated (on a Consolidated
basis) to be actually payable within the current or the immediately
succeeding tax year as a result of any gain recognized in connection
therewith, and (E) a reasonable reserve (which reserve shall be deposited
into an escrow account with the Administrative Agent) for any purchase
price adjustment or any indemnification payments (fixed and contingent)
attributable to the seller's obligations to the purchaser undertaken by the
Borrower or any of its Subsidiaries in connection with such sale, lease,
transfer or other disposition (but excluding any purchase price adjustment
or any indemnity which, by its terms, will not under any circumstances be
made prior to the Maturity Date); provided, however, that Net Cash Proceeds
shall not include any such amounts to the extent (i) such amounts are
reinvested in the business of the Borrower and its Subsidiaries within 180
days after the date of receipt thereof or (ii) a binding agreement with a
third party to so invest is entered into by the Borrower and its
Subsidiaries within 180 days after the date of receipt thereof and such
amounts are invested within 270 days after the date of receipt thereof;
provided, further, that Net Cash Proceeds shall not include the first
$100,000,000 of cash receipts received after the Effective Date from sales,
leases, transfers or other dispositions of assets by Foreign Subsidiaries
permitted by Section 5.02(h)(x).
"Net Orderly Liquidation Value" shall mean, with respect to Inventory
or Equipment, as the case may be, the orderly liquidation value with
respect to such Inventory or Equipment, net of expenses estimated to be
incurred in connection with such liquidation, based on the most recent
third party appraisal in form and substance, and by an independent
appraisal firm, reasonably satisfactory to the Administrative Agent.
"Net Recovery Rate" shall mean, with respect to Inventory at any time,
the quotient (expressed as a percentage) of (i) the Net Orderly Liquidation
Value of all Inventory owned by the Borrower and the Guarantors divided by
(ii) the gross inventory cost of such Inventory, determined on the basis of
the then most recently conducted third party inventory appraisal in form
and substance, and performed by an independent appraisal firm, reasonably
satisfactory to the Administrative Agent.
"Non-Filing Domestic Subsidiary" means ▇▇▇▇ Asset Funding LLC and each
other direct or indirect Subsidiary of the Borrower that is organized under
the laws of the United States or any state or other political subdivision
thereof that is not a party to a Case.
"Non-Loan Party" means any Subsidiary of a Loan Party that is not a
Loan Party.
"Note" means a Term Note or a Revolving Credit Note.
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
"Notice of Default" has the meaning specified in Section 7.05.
19
"Notice of Swing Line Borrowing" has the meaning specified in Section
2.02(b).
"Obligation" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including,
without limitation, any liability of such Person on any claim, whether or
not the right of any creditor to payment in respect of such claim is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
disputed, undisputed, legal, equitable, secured or unsecured, and whether
or not such claim is discharged, stayed or otherwise affected by any
proceeding under any Debtor Relief Law. Without limiting the generality of
the foregoing, the Obligations of the Loan Parties under the Loan Documents
include (a) the obligation to pay principal, interest, Letter of Credit
commissions, charges, expenses, fees, reasonable attorneys' fees and
disbursements, indemnities and other amounts payable by any Loan Party
under any Loan Document and (b) the obligation of any Loan Party to
reimburse any amount in respect of any of the foregoing that any Lender
Party, in its sole discretion, may elect to pay or advance on behalf of
such Loan Party.
"Other Taxes" has the meaning specified in Section 2.12(b).
"Outstanding Amount" means (i) with respect to Advances on any date,
the aggregate outstanding principal amount thereof after giving effect to
any borrowings and prepayments or repayments of Advances, as the case may
be, occurring on such date; and (ii) with respect to any L/C Obligations on
any date, the amount of such L/C Obligations on such date after giving
effect to any Letter of Credit Borrowing occurring on such date and any
other changes in the aggregate amount of the L/C Obligations as of such
date, including as a result of any reimbursements of outstanding unpaid
drawings under any Letters of Credit or any reductions in the Available
Amount of any Letter of Credit taking effect on such date.
"Patents" has the meaning specified in Section 9.01(g)(i).
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Acquisition" means any Acquisition by the Borrower or any
of its Subsidiaries; provided that (A) such Acquisition shall be in
property and assets which are part of, or in lines of business that are,
substantially the same lines of business as (or ancillary to) one or more
of the businesses of the Borrower and its Subsidiaries in the ordinary
course; (B) any determination of the amount of consideration paid in
connection with such investment shall include all cash consideration paid,
the aggregate amounts paid or to be paid under noncompete, consulting and
other affiliated agreements with, the sellers of such investment, and the
principal amount of all assumptions of debt, liabilities and other
obligations in connection therewith; (C) immediately before and immediately
after giving effect to any such purchase or other acquisition, no Default
shall have occurred and be continuing and (2) immediately after giving
effect to such purchase or other acquisition, the Borrower and its
Subsidiaries shall be in pro forma compliance with all of the financial
covenants set forth in Section 5.04 hereof, such compliance to be
determined, in the case of any Permitted Acquisition involving
consideration in excess of $10,000,0000, on the basis of audited financial
statements (or, if such audited financial statements are unavailable, on
the basis of such other historical financial information as is reasonably
acceptable to the Administrative Agent) for such investment as though such
investment had been consummated as of the first day of the fiscal period
covered thereby.
"Permitted Lien" means (i) liens in favor of the Administrative Agent
for the benefit of the Secured Parties and the other parties intended to
share the benefits of the Collateral granted pursuant to any of the Loan
Documents; (ii) liens for taxes and other obligations or requirements
20
owing to or imposed by governmental authorities existing or having
priority, as applicable, by operation of law which in either case (A) are
not yet overdue or (B) are being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted so long as
appropriate reserves in accordance with GAAP shall have been made with
respect to such taxes or other obligations; (iii) statutory liens of banks
and other financial institutions (and rights of set-off), (iv) statutory
liens of landlords, carriers, warehousemen, mechanics, repairmen, workmen
and materialmen, and other liens imposed by law (other than any such lien
imposed pursuant to Section 401 (a)(29) or 412(n) of the Internal Revenue
Code or by ERISA), in each case incurred in the ordinary course of business
(A) for amounts not yet overdue or (B) for amounts that are overdue and
that (in the case of any such amounts overdue for a period in excess of
five days) are being contested in good faith by appropriate proceedings, so
long as such reserves or other appropriate provisions, if any, as shall be
required by GAAP shall have been made for any such contested amounts; (v)
liens incurred in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of social
security; (vi) liens, pledges and deposits to secure the performance of
tenders, statutory obligations, performance and completion bonds, surety
bonds, appeal bonds, bids, leases, licenses, government contracts, trade
contracts, performance and return-of-money bonds and other similar
obligations; (vii) easements, rights-of-way, zoning restrictions, licenses,
encroachments, restrictions on use of real property and other similar
encumbrances incurred in the ordinary course of business, in each case
which do not and will not interfere in any material respect with the
ordinary conduct of the business of the Borrower or any of its
Subsidiaries; (viii) (A) any interest or title of a lessor or sublessor
under any lease or sublease by the Borrower or any Subsidiary and (B) any
leases or subleases by the Borrower or any Subsidiary to another Person(s)
in the ordinary course of business; (ix) liens solely on any ▇▇▇▇ ▇▇▇▇▇▇▇
money deposits made by the Borrower or any of its Subsidiaries in
connection with any letter of intent or purchase agreement entered into in
connection with a Permitted Acquisition or another Investment permitted
hereunder; (x) the filing of precautionary UCC financing statements
relating to leases entered into in the ordinary course of business and the
filing of UCC financing statements by bailees and consignees in the
ordinary course of business; (xi) liens in favor of customs and revenue
authorities arising as a matter of law to secure payment of customs duties
in connection with the importation of goods; (xii) leases and subleases or
licenses and sublicenses of patents, trademarks and other intellectual
property rights granted by the Borrower or any of its Subsidiaries in the
ordinary course of business and not interfering in any respect with the
ordinary conduct of the business of the Borrower or such Subsidiary; (xiii)
liens arising out of judgments not constituting an Event of Default
hereunder; (xiv) liens securing reimbursement obligations with respect to
letters of credit that encumber documents and other property relating to
such letters of credit and the proceeds and products thereof; and (xv) any
right of first refusal or first offer, redemption right, or option or
similar right in respect of any capital stock owned by the Borrower or any
Subsidiary with respect to any joint venture or other Investment, in favor
of any co-venturer or other holder of capital stock in such investment.
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government
or any political subdivision or agency thereof.
"Petition Date" has the meaning specified in Preliminary Statement
(1).
"Pledged Collateral" means, collectively, (i) the Initial Pledged
Equity, (ii) the Initial Pledged Debt, (iii) Pledged Equity which is (x)
all Equity Interests in any domestic Subsidiary of a Loan Party other than
the Initial Pledged Equity that are acquired after the Petition Date or (y)
all Equity Interests in any third party entities owned by any Loan Party
which individually is valued (in accordance with GAAP) to be in excess of
$1,000,000 and represents more than 10%
21
ownership in such third party entity, (iv) Pledged Debt (other than the
Initial Pledged Debt) which has a face principal amount in excess of
$1,000,000 and which arises after the Petition Date and (v) any Pledged
Investment Property (other than an Equity Interest) which has an individual
value in excess of $1,000,000, subject in the case of each of the foregoing
to the limitations and exclusions set forth in this Agreement.
"Pledged Debt" has the meaning specified in Section 9.01(e)(iv).
"Pledged Equity" has the meaning specified in Section 9.01(e)(iii).
"Pledged Investment Property" has the meaning specified in Section
9.01(e)(v).
"Pre-Petition Agent" means Citicorp USA, Inc. in its capacity as agent
under the Pre-Petition Security Agreement.
"Pre-Petition Collateral" means the "Collateral" as defined in the
Pre-Petition Security Agreement.
"Pre-Petition Document" means each of the "Secured Documents" as
defined in the Pre-Petition Security Agreement.
"Pre-Petition Payment" means a payment (by way of adequate protection
or otherwise) of principal or interest or otherwise on account of any
pre-petition Debt or trade payables or other pre-petition claims against
the Borrower or any Guarantor.
"Pre-Petition Secured Creditors" means the Persons from time to time
holding Pre-Petition Secured Indebtedness.
"Pre-Petition Secured Indebtedness" means all indebtedness and other
Obligations of the Borrower and the Guarantors that are secured pursuant to
the Pre-Petition Security Agreement.
"Pre-Petition Security Agreement" means the Security Agreement dated
as of November 18, 2005 from ▇▇▇▇ Corporation and the other grantors
referred to therein to Citicorp USA, Inc., as Agent.
"Preferred Interests" means, with respect to any Person, Equity
Interests issued by such Person that are entitled to a preference or
priority over any other Equity Interests issued by such Person upon any
distribution of such Person's property and assets, whether by dividend or
upon liquidation.
"Priority Collateral" means, in respect of each of the Revolving
Credit Facility and the Term Facility, in each case following satisfaction
by the Loan Parties of the conditions set forth in Section 3.03, the
Collateral securing such Facility on a first priority basis (subject solely
to unavoidable pre-petition Liens and Liens permitted under Section 5.02(a)
and the Carve-Out).
"Professional Fees" means legal, appraisal, financing, consulting, and
other advisor fees incurred in connection with the Cases, the Restructuring
and this Agreement.
"Pro Rata Share" of any amount means, with respect to any Lender at
any time, the product of such amount times a fraction the numerator of
which is the amount of such Lender's Commitment (or, if the Commitments
shall have been terminated pursuant to Section 2.05 or
22
6.01, such Lender's Commitment as in effect immediately prior to such
termination) under the applicable Facility or Facilities at such time and
the denominator of which is the amount of such Facility or Facilities at
such time (or, if the Commitments shall have been terminated pursuant to
Section 2.05 or 6.01, the amount of such Facility or Facilities as in
effect immediately prior to such termination).
"Redeemable" means, with respect to any Equity Interest, Debt or other
right or Obligation, any such right or Obligation that (a) the issuer has
undertaken to redeem at a fixed or determinable date or dates, whether by
operation of a sinking fund or otherwise, or upon the occurrence of a
condition not solely within the control of the issuer or (b) is redeemable
at the option of the holder.
"Reduction Amount" has the meaning specified in Section 2.06(b)(iv).
"Register" has the meaning specified in Section 10.07(d).
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Related Contracts" has the meaning specified in Section 9.01(c).
"Reorganization Plan" shall mean a Chapter 11 plan of reorganization
in any of the Cases of the Borrower or a Material Guarantor.
"Required Lenders" means, at any time, Lenders owed or holding at
least a majority in interest of the sum of (a) the aggregate principal
amount of the Advances outstanding at such time, (b) the aggregate
Available Amount of all Letters of Credit outstanding at such time, (c) the
aggregate Unused Term Commitments at such time and (d) the aggregate Unused
Revolving Credit Commitment at such time; provided, however, that if any
Lender shall be a Defaulting Lender at such time, there shall be excluded
from the determination of Required Lenders at such time (A) the aggregate
principal amount of the Advances owing to such Lender (in its capacity as a
Lender) and outstanding at such time, (B) such Lender's Pro Rata Share of
the aggregate Available Amount of all Letters of Credit issued by such
Lender and outstanding at such time, (C) the Unused Term Commitment of such
Lender at such time and (D) the Unused Revolving Credit Commitment of such
Lender at such time. For purposes of this definition, the aggregate amount
of Swing Line Advances owing to any Swing Line Lender, the aggregate
principal amount of Letter of Credit Advances owing to the Issuing Banks
and the Available Amount of each Letter of Credit shall be considered to be
owed to the Lenders ratably in accordance with their respective Revolving
Credit Commitments.
"Reserves" shall have the meaning ascribed to such term in the
Borrowing Base Amendment.
"Responsible Officer" means the chief executive officer, president,
chief financial officer or treasurer of a Loan Party. Any document
delivered hereunder or under any other Loan Document that is signed by a
Responsible Officer of a Loan Party shall be conclusively presumed to have
been authorized by all necessary corporate, partnership and/or or other
action on the part of such Loan Party and such Responsible Officer shall be
conclusively presumed to have acted on behalf of such Loan Party.
23
"Restructuring" means the reorganization or discontinuation of the
Borrower's or any Subsidiary's business, operations and structure in
respect of (a) facility closures and the consolidation, relocation or
elimination of operations and (b) related severance costs and other costs
incurred in connection with the termination, relocation and training of
employees.
"Restructuring Charges" means non-recurring and other one-time costs
incurred by the Borrower or any Subsidiary in connection with the
Restructuring.
"Revolving Credit Advance" has the meaning specified in Section
2.01(b).
"Revolving Credit Availability Amount" means (a) prior to the
satisfaction of the conditions set forth in Section 3.02, the lesser of (i)
$800,000,000 (as such amount may be reduced in accordance with the
provisions of Section 2.05) and (ii) the aggregate amount permitted by the
Interim Order and (b) thereafter, the lesser of (i) the Borrowing Base and
(ii) the Revolving Credit Commitments at such time.
"Revolving Credit Commitment" means, with respect to any Lender at any
time, the amount set forth for such time opposite such Lender's name on
Schedule I hereto under the caption "Revolving Credit Commitment" or, if
such Lender has entered into one or more Assignments and Assignments, set
forth for such Lender in the Register maintained by the Administrative
Agent pursuant to Section 10.07(d) as such Lender's "Revolving Credit
Commitment", as such amount may be reduced at or prior to such time
pursuant to Section 2.05.
"Revolving Credit Facility" means, at any time, the aggregate amount
of the Lenders' Revolving Credit Commitments at such time.
"Revolving Credit Lender" means any Lender that has a Revolving Credit
Commitment.
"Revolving Credit Note" means a promissory note of the Borrower
payable to the order of any Revolving Credit Lender, in substantially the
form of Exhibit A-2 hereto, evidencing the aggregate indebtedness of the
Borrower to such Lender resulting from the Revolving Credit Advances made
by such Lender.
"S&P" means Standard & Poor's, a division of The ▇▇-▇▇▇▇ ▇▇▇▇
Companies, Inc.
"SEC" means the Securities and Exchange Commission or any governmental
authority succeeding to any of its principal functions.
"Secured Credit Card Obligations" means any Obligations arising on and
after the Petition Date under the Credit Card Program.
"Secured Hedge Agreement" means any Hedge Agreement required or
permitted under Article V that is entered into by and between any Loan
Party and any Hedge Bank, in each case solely to the extent that the
obligations in respect of such Hedge Agreement are not cash collateralized
or otherwise secured (other than pursuant to the Collateral Documents).
"Secured Obligation" has the meaning specified in Section 9.01.
"Secured Parties" means, collectively, the Administrative Agent, the
Lender Parties, the Hedge Banks and the Affiliates of Lender Parties party
to the Credit Card Program.
24
"Security Collateral" has the meaning specified in Section 9.01(e).
"Single Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any
Loan Party or any ERISA Affiliate and no Person other than the Loan Parties
and the ERISA Affiliates or (b) was so maintained and in respect of which
any Loan Party or any ERISA Affiliate could have liability under Section
4069 of ERISA in the event such plan has been or were to be terminated.
"SPC" has the meaning specified in Section 10.07(k).
"Subagent" has the meaning specified in Section 9.06(b).
"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which)
more than 50% of (a) the issued and outstanding capital stock having
ordinary voting power to elect a majority of the Board of Directors of such
corporation (irrespective of whether at the time capital stock of any other
class or classes of such corporation shall or might have voting power upon
the occurrence of any contingency), (b) the interest in the capital or
profits of such partnership, joint venture or limited liability company or
(c) the beneficial interest in such trust or estate is at the time directly
or indirectly owned or controlled by such Person, by such Person and one or
more of its other Subsidiaries or by one or more of such Person's other
Subsidiaries; provided that, for purposes of the Loan Documents, no DCC
Entity shall be a "Subsidiary" of the Borrower.
"Supermajority Lenders" means, at any time, Lenders owed or holding at
least 66% in interest of the sum of (a) the aggregate principal amount of
the Advances outstanding at such time, (b) the aggregate Available Amount
of all Letters of Credit outstanding at such time, (c) the aggregate Unused
Term Commitments at such time and (d) the aggregate Unused Revolving Credit
Commitment at such time; provided, however, that if any Lender shall be a
Defaulting Lender at such time, there shall be excluded from the
determination of Required Lenders at such time (A) the aggregate principal
amount of the Advances owing to such Lender (in its capacity as a Lender)
and outstanding at such time, (B) such Lender's Pro Rata Share of the
aggregate Available Amount of all Letters of Credit issued by such Lender
and outstanding at such time, (C) the Unused Term Commitment of such Lender
at such time and (D) the Unused Revolving Credit Commitment of such Lender
at such time. For purposes of this definition, the aggregate amount of
Swing Line Advances owing to any Swing Line Lender, the aggregate principal
amount of Letter of Credit Advances owing to the Issuing Banks and the
Available Amount of each Letter of Credit shall be considered to be owed to
the Lenders ratably in accordance with their respective Revolving Credit
Commitments.
"Superpriority Claim" shall mean a claim against the Borrower or a
Guarantor in any of the Cases that is a superpriority administrative
expense claim having priority over any or all administrative expenses and
other claims of the kind specified in, or otherwise arising or ordered
under, any Sections of the Bankruptcy Code (including, without limitation,
Sections 105, 326, 328, 330, 331, 503(b), 507(a), 507(b), 546(c) and/or 726
thereof), whether or not such claim or expenses may become secured by a
judgment lien or other non-consensual lien, levy or attachment.
"Swing Line Advance" means an advance made by (a) the Swing Line
Lender pursuant to Section 2.01(d) or (b) any Revolving Credit Lender
pursuant to Section 2.02(b).
25
"Swing Line Borrowing" means a borrowing consisting of a Swing Line
Advance made by the Swing Line Lender pursuant to Section 2.01(d) or the
Revolving Credit Lenders pursuant to Section 2.02(b).
"Swing Line Commitment" means, with respect to the Swing Line Lender,
the amount set forth opposite its name on Schedule I hereto under the
caption "Swing Line Commitment" or, if the Swing Line Lender has entered
into an Assignment and Acceptance, set forth for the Swing Line Lender in
the Register maintained by the Administrative Agent pursuant to Section
10.07(d) as the Swing Line Lender's "Swing Line Commitment", as such amount
may be reduced at or prior to such time pursuant to Section 2.05.
"Swing Line Facility" means, at any time, an amount equal to the
aggregate amount of the Swing Line Lender's Swing Line Commitment at such
time, as such amount may be reduced at or prior to such time pursuant to
Section 2.05.
"Swing Line Lender" means the Initial Swing Line Lender and any
Eligible Assignee to which the Swing Line Commitment hereunder has been
assigned pursuant to Section 10.07 so long as such Eligible Assignee
expressly agrees to perform in accordance with their terms all obligations
that by the terms of this Agreement are required to be performed by it as a
Swing Line Lender and notifies the Administrative Agent of its Applicable
Lending Office and the amount of its Swing Line Commitment (which
information shall be recorded by the Administrative Agent in the Register),
for so long as such Initial Swing Line Lender or Eligible Assignee, as the
case may be, shall have a Swing Line Commitment.
"Syndication Agent" has the meaning specified in the recital of
parties to this Agreement.
"Synthetic Debt" means, with respect to any Person as of any date of
determination thereof, all Obligations of such Person in respect of
transactions entered into by such Person that are intended to function
primarily as a borrowing of funds (including, without limitation, any
minority interest transactions that function primarily as a borrowing) but
are not otherwise included in the definition of "Debt" or as a liability on
the consolidated balance sheet of such Person and its Subsidiaries in
accordance with GAAP.
"Taxes" has the meaning specified in Section 2.12(a).
"Term Advance" has the meaning specified in Section 2.01(a).
"Term Commitment" means, with respect to any Term Lender at any time,
the amount set forth opposite such Lender's name on Schedule I hereto under
the caption "Term Commitment" or, if such Lender has entered into one or
more Assignments and Assignments, set forth for such Lender in the Register
maintained by the Administrative Agent pursuant to Section 10.07(d) as such
Lender's "Term Commitment", as such amount may be reduced at or prior to
such time pursuant to Section 2.05. As of the Effective Date, the aggregate
principal amount of the Term Commitments is $700,000,000.
"Term Facility" means, at any time, the aggregate amount of the Term
Lenders' Term Commitments at such time.
"Term Lender" means any Lender that has a Term Commitment.
26
"Term Note" means a promissory note of the Borrower payable to the
order of any Term Lender, in substantially the form of Exhibit A-1 hereto,
evidencing the indebtedness of the Borrower to such Lender resulting from
the Term Advance made by such Lender.
"Termination Date" means the earliest to occur of (i) the Maturity
Date, (ii) the effective date of a Reorganization Plan and (iii) the date
of termination in whole of the Commitments pursuant to Section 2.05 or
6.01.
"Thirteen Week Forecast" has the meaning set forth in Section 5.03(f).
"Tooling Program" means any program whereby tooling equipment is
purchased or progress payments are made to facilitate production customer's
products and whereby the customer will ultimately repurchase the tooling
equipment after the final approval by such customer.
"Total Outstandings" means the aggregate Outstanding Amount of all
Advances and all L/C Obligations.
"Trade Secrets" has the meaning specified in Section 9.01(g)(v).
"Trademarks" has the meaning specified in Section 9.01(g)(ii).
"Type" refers to the distinction between Advances bearing interest at
the Base Rate and Advances bearing interest at the Eurodollar Rate.
"UCC" means the Uniform Commercial Code as in effect, from time to
time, in the State of New York; provided that, if perfection or the effect
of perfection or non-perfection or the priority of any security interest in
any Collateral is governed by the Uniform Commercial Code as in effect in a
jurisdiction other than the State of New York, "UCC" means the Uniform
Commercial Code as in effect from time to time in such other jurisdiction
for purposes of the provisions hereof relating to such perfection, effect
of perfection or non-perfection or priority.
"Unreimbursed Amount" has the meaning specified in Section 2.03(c)(i).
"Unused Revolving Credit Commitment" means, with respect to any Lender
at any time, (a) such Lender's Revolving Credit Commitment at such time
minus (b) the sum of (i) the aggregate principal amount of all Revolving
Credit Advances, Swing Line Advances and Letter of Credit Advances made by
such Lender (in its capacity as a Lender) and outstanding at such time,
plus (ii) such Lender's Pro Rata Share of (A) the aggregate Available
Amount of all Letters of Credit outstanding at such time, (B) the aggregate
principal amount of all Letter of Credit Advances made by the Issuing Banks
pursuant to Section 2.03(c) and outstanding at such time, and (C) the
aggregate principal amount of all Swing Line Advances made by the Swing
Line Lender pursuant to Section 2.01(d) at any time.
"Unused Term Commitment" means, with respect to any Lender at any time
(a) such Lender's Term Commitment at such time minus (b) the aggregate
principal amount of all Term Advances made by such Lender (in its capacity
as a Lender).
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote
27
for the election of directors (or persons performing similar functions) of
such Person, even if the right so to vote has been suspended by the
happening of such a contingency.
"Welfare Plan" means a welfare plan, as defined in Section 3(1) of
ERISA, that is maintained for employees of any Loan Party or in respect of
which any Loan Party could have liability.
"Withdrawal Liability" has the meaning specified in Part I of Subtitle
E of Title IV of ERISA.
Section 1.02 Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
Section 1.03 Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles consistent with those applied in the preparation of the
financial statements referred to in Section 4.01(f) ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
Section 2.01 The Advances. (a) The Term Advances. Each Term Lender
severally agrees, on the terms and conditions hereinafter set forth, to make a
single advance to the Borrower (a "Term Advance") on any Business Day during the
period from the date of the entry of the Final Order until such date as the
Initial Lenders and the Borrower shall mutually determine, in an amount not to
exceed such Lender's Term Commitment at such time. Amounts borrowed under this
Section 2.01(a) and repaid or prepaid may not be reborrowed.
(b) The Revolving Credit Advances. Each Revolving Credit Lender
severally agrees, on the terms and conditions hereinafter set forth, to make
advances (each, a "Revolving Credit Advance") to the Borrower from time to time
on any Business Day during the period from the Effective Date until the
Termination Date (i) in an amount for each such Advance not to exceed such
Revolving Credit Lender's Unused Revolving Credit Commitment at such time and
(ii) in an aggregate amount for all such Advances not to exceed such Lender's
ratable portion (based on the aggregate amount of the Unused Revolving Credit
Commitments at such time) of the Revolving Credit Availability Amount at such
time; provided that the sum of (x) the aggregate principal amount of all
Revolving Credit Advances, Swing Line Advances and Letter of Credit Advances
outstanding at such time plus (y) the aggregate Available Amount of all Letters
of Credit outstanding at such time shall not exceed the Revolving Credit
Availability Amount at any time.
(c) Borrowings. Each Borrowing shall be in a principal amount of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof (other than a
Borrowing the proceeds of which shall be used solely to repay or prepay in full
outstanding Swing Line Advances or Letter of Credit Advances) and shall consist
of Advances made simultaneously by the Lenders under the applicable Facility
ratably according to the Lenders' Commitments under such Facility. Within the
limits of each Lender's Unused Revolving Credit Commitment in effect from time
to time, the Borrower may borrow under Section 2.01(a), prepay pursuant to
Section 2.06, and reborrow under Section 2.01(a).
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(d) The Swing Line Advances. The Swing Line Lender severally agrees on
the terms and conditions hereinafter set forth, to make Swing Line Advances to
the Borrower from time to time on any Business Day during the period from the
Effective Date until the Termination Date in an aggregate amount owing to the
Swing Line Lender not to exceed at any time outstanding the lesser of (i) the
Swing Line Facility at such time and (ii) the Swing Line Lender's Swing Line
Commitment at such time; provided, however, that no Swing Line Borrowing shall
exceed the aggregate of the Unused Revolving Credit Commitments of the Revolving
Credit Lenders at such time. No Swing Line Advance shall be used for the purpose
of funding the payment of principal of any other Swing Line Advance. Each Swing
Line Borrowing shall be in an amount of $500,000 or an integral multiple of
$100,000 in excess thereof. Within the limits of the Swing Line Facility and
within the limits referred to in the first sentence of this subsection (d), the
Borrower may borrow under this Section 2.01(d), repay pursuant to Section
2.04(d) or prepay pursuant to Section 2.06(a) and reborrow under this Section
2.01(d). Immediately upon the making of a Swing Line Advance, each Revolving
Credit Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the Swing Line Lender a risk participation in such
Swing Line Advance in an amount equal to the product of such Lender's Pro Rata
Share times the principal amount of such Swing Line Advance.
Section 2.02 Making the Advances. (a) Except as otherwise provided in
Section 2.02(b) or 2.03, each Borrowing shall be made on notice, given not later
than 11:00 A.M. (New York City time) on the third Business Day prior to the date
of the proposed Borrowing in the case of a Borrowing consisting of Eurodollar
Rate Advances, or the first Business Day prior to the date of the proposed
Borrowing in the case of a Borrowing consisting of Base Rate Advances, by the
Borrower to the Administrative Agent, which shall give to each Lender prompt
notice thereof by telex or telecopier. Each such notice of a Borrowing (a
"Notice of Borrowing") shall be by telephone, confirmed immediately in writing,
or telex or telecopier, in substantially the form of Exhibit B hereto,
specifying therein the requested (i) date of such Borrowing, (ii) the Facility
under which such Borrowing is to be made, (iii) Type of Advances comprising such
Borrowing, (iv) aggregate amount of such Borrowing and (v) in the case of a
Borrowing consisting of Eurodollar Rate Advances, initial Interest Period for
each such Advance. Each Lender shall, before 11:00 A.M. (New York City time) on
the date of such Borrowing, make available for the account of its Applicable
Lending Office to the Administrative Agent at the Administrative Agent's
Account, in same day funds, such Lender's ratable portion of such Borrowing in
accordance with the respective Commitments of such Lender and the other Lenders.
After the Administrative Agent's receipt of such funds and upon fulfillment of
the applicable conditions set forth in Article III, the Administrative Agent
will make such funds available to the Borrower by crediting the Borrower's
Account or such other account as the Borrower shall request; provided, however,
that, in the case of Revolving Credit Advances, the Administrative Agent shall
first apply such funds to prepay ratably the aggregate principal amount of any
Swing Line Advances and Letter of Credit Advances outstanding on the date of
such Borrowing, plus interest accrued and unpaid thereon to and as of such date.
(b) (i) Each Swing Line Borrowing shall be made on notice, given not
later than 11:00 A.M. (New York City time) on the date of the proposed Swing
Line Borrowing, by the Borrower to the Swing Line Lender and the Administrative
Agent. Each such notice of a Swing Line Borrowing (a "Notice of Swing Line
Borrowing") shall be by telephone, confirmed immediately in writing, or
telecopier, specifying therein the requested (i) date of such Borrowing, (ii)
amount of such Borrowing and (iii) maturity of such Borrowing (which maturity
shall be no later than the seventh day after the requested date of such
Borrowing). The Swing Line Lender will make the amount of the requested Swing
Line Advances available to the Administrative Agent at the Administrative
Agent's Account, in same day funds. After the Administrative Agent's receipt of
such funds and upon fulfillment of the applicable conditions set forth in
Article III, the Administrative Agent will make such funds available to the
Borrower by crediting the Borrower's Account or such other account as the
Borrower shall request.
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(ii) The Swing Line Lender may, at any time in its sole and absolute
discretion, request on behalf of the Borrower (and the Borrower hereby
irrevocably authorizes the Swing Line Lender to so request on its behalf) that
each Revolving Credit Lender make a Base Rate Advance in an amount equal to such
Lender's Pro Rata Share of the amount of Swing Line Advances then outstanding.
Such request shall be deemed to be a Notice of Borrowing for purposes hereof and
shall be made in accordance with the provisions of Section 2.02(a) without
regard solely to the minimum amounts specified therein but subject to the
satisfaction of the conditions set forth in Section 3.02 (except that the
Borrower shall not be deemed to have made any representations and warranties).
The Swing Line Lender shall furnish the Borrower with a copy of the Notice of
Borrowing promptly after delivering such notice to the Administrative Agent.
Each Revolving Credit Lender shall make an amount equal to its Pro Rata Share of
the amount specified in such Notice of Borrowing available for the account of
its Applicable Lending Office to the Administrative Agent for the account of
such Swing Line Lender, by deposit to the Administrative Agent's Account, in
same date funds, not later than 3:00 P.M. on the day specified in such Notice of
Borrowing.
(iii) If for any reason any Swing Line Advance cannot be refinanced by
a Revolving Credit Borrowing as contemplated by Section 2.02(b)(ii), the request
for Base Rate Advances submitted by the Swing Line Lender as set forth in
Section 2.02(b)(ii) shall be deemed to be a request by such Swing Line Lender
that each of the Revolving Credit Lenders fund its risk participation in the
relevant Swing Line Advance and each Revolving Credit Lender's payment to the
Administrative Agent for the account of the Swing Line Lender pursuant to
Section 2.02(b)(ii) shall be deemed payment in respect of such participation.
(iv) If and to the extent that any Revolving Credit Lender shall not
have made the amount of its Pro Rata Share of such Swing Line Advance available
to the Administrative Agent in accordance with the provisions of Section
2.02(b)(ii), such Revolving Credit Lender agrees to pay to the Administrative
Agent forthwith on demand such amount together with interest thereon, for each
day from the date of the applicable Notice of Borrowing delivered by such Swing
Line Lender until the date such amount is paid to the Administrative Agent, at
the Federal Funds Rate.
(v) Each Revolving Credit Lender's obligation to make Revolving Credit
Advances or to purchase and fund risk participations in a Swing Line Advance
pursuant to this Section 2.02(b) shall be absolute and unconditional and shall
not be affected by any circumstance, including (A) any set-off, counterclaim,
recoupment, defense or other right which such Lender may have against the Swing
Line Lender, the Borrower or any other Person for any reason whatsoever, (B) the
occurrence or continuance of a Default, or (C) any other occurrence, event or
condition, whether or not similar to any of the foregoing; provided, however,
that each Revolving Credit Lender's obligation to make Revolving Credit Advances
pursuant to this Section 2.02(b) is subject to satisfaction of the conditions
set forth in Section 3.02. No funding of risk participations shall relieve or
otherwise impair the obligation of the Borrower to repay Swing Line Advances,
together with interest as provided herein.
(c) Anything in subsection (a) above to the contrary notwithstanding,
(i) the Borrower may not select Eurodollar Rate Advances for the initial
Borrowing hereunder or for any Borrowing if the aggregate amount of such
Borrowing is less than $5,000,000 or if the obligation of the Lenders to make
Eurodollar Rate Advances shall then be suspended pursuant to Section 2.09 or
2.10 and (ii) the Revolving Credit Advances may not be outstanding as part of
more than 15 separate Borrowings.
(d) Each Notice of Borrowing and each Notice of Swing Line Borrowing
shall be irrevocable and binding on the Borrower. In the case of any Borrowing
that the related Notice of Borrowing specifies is to be comprised of Eurodollar
Rate Advances, the Borrower shall indemnify each Lender against any loss, cost
or expense incurred by such Lender as a result of any failure to fulfill on or
30
before the date specified in such Notice of Borrowing for such Borrowing the
applicable conditions set forth in Article III, including, without limitation,
any actual loss (excluding loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund the Advance to be made by such Lender as part of
such Borrowing when such Advance, as a result of such failure, is not made on
such date.
(e) Unless the Administrative Agent shall have received notice from
any Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of such
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing in
accordance with subsection (a) of this Section 2.02 and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent that such Lender shall not
have so made such ratable portion available to the Administrative Agent, such
Lender and the Borrower severally agree to repay or pay to the Administrative
Agent forthwith on demand such corresponding amount and to pay interest thereon,
for each day from the date such amount is made available to the Borrower until
the date such amount is repaid or paid to the Administrative Agent, at (i) in
the case of the Borrower, the interest rate applicable at such time under
Section 2.07 to Advances comprising such Borrowing and (ii) in the case of such
Lender, the Federal Funds Rate. If such Lender shall pay to the Administrative
Agent such corresponding amount, such amount so paid shall constitute such
Lender's Advance as part of such Borrowing for all purposes of this Agreement.
(f) The failure of any Lender to make the Advance to be made by it
shall not relieve any other Lender of its obligation, if any, hereunder to make
its Advance or make available on the date of such Borrowing, but no Lender shall
be responsible for the failure of any other Lender to make the Advance to be
made by it.
Section 2.03 Issuance of and Drawings and Reimbursement Under Letters
of Credit. (a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) each
Issuing Bank agrees, in reliance upon the agreements of the other Lenders set
forth in this Section 2.03, (1) from time to time on any Business Day during the
period from the Effective Date until the Letter of Credit Expiration Date, to
issue Letters of Credit for the account of the Borrower or any of its
Subsidiaries, and to amend Letters of Credit previously issued by it, in
accordance with subsection (b) below, and (2) to honor drafts under the Letters
of Credit; and (B) the Lenders severally agree to participate in Letters of
Credit issued for the account of the Borrower or any of its Subsidiaries;
provided that the Issuing Banks shall not be obligated to issue any Letter of
Credit, and no Lender shall be obligated to participate in any Letter of Credit
if as of the date of such issuance, (x) the Available Amount for all Letters of
Credit issued by such Issuing Bank would exceed the lesser of the Letter of
Credit Sublimit at such time and such Issuing Bank's Letter of Credit Commitment
at such time, (y) the Available Amount of such Letter of Credit would exceed the
Unused Revolving Credit Commitment. Within the foregoing limits, and subject to
the terms and conditions hereof, the Borrower's ability to obtain Letters of
Credit shall be fully revolving, and accordingly the Borrower may, during the
foregoing period, obtain Letters of Credit to replace Letters of Credit that
have expired or that have been drawn upon and reimbursed.
(ii) No Issuing Bank shall be under any obligation to issue any Letter
of Credit if: (A) any order, judgment or decree of any governmental authority or
arbitrator shall by its terms purport to enjoin or restrain such Issuing Bank
from issuing such Letter of Credit, or any law applicable to such Issuing Bank
or any request or directive (whether or not having the force of law) from any
governmental authority with jurisdiction over such Issuing Bank shall prohibit,
or request that such Issuing Bank refrain from, the issuance of letters of
credit generally or such Letter of Credit in particular or shall impose upon
31
such Issuing Bank any unreimbursed loss, cost or expense which such Issuing Bank
in good ▇▇▇▇▇ ▇▇▇▇▇ material to it; (B) the expiry date of such requested Letter
of Credit would occur after the Letter of Credit Expiration Date, unless all the
Revolving Credit Lenders have approved such expiry date; (C) the issuance of
such Letter of Credit would violate one or more policies of such Issuing Bank;
or (D) such Letter of Credit is in an initial amount less than $100,000 (unless
such Issuing Bank agrees otherwise), or is to be denominated in a currency other
than U.S. dollars.
(iii) No Issuing Bank shall be under any obligation to amend any
Letter of Credit if (A) such Issuing Bank would have no obligation at such time
to issue such Letter of Credit in its amended form under the terms hereof, or
(B) the beneficiary of such Letter of Credit does not accept the proposed
amendment to such Letter of Credit.
(b) Procedures for Issuance and Amendment of Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case may
be, upon the request of the Borrower delivered to the applicable Issuing Bank
(with a copy to the Administrative Agent) in the form of a Letter of Credit
Application, appropriately completed and signed by a Responsible Officer of the
Borrower or such Subsidiary for whose account such Letter of Credit is to be
issued. Such Letter of Credit Application must be received by the applicable
Issuing Bank and the Administrative Agent not later than 11:00 a.m. at least two
Business Days (or such later date and time as such Issuing Bank may agree in a
particular instance in its sole discretion) prior to the proposed issuance date
or date of amendment, as the case may be. In the case of a request for an
initial issuance of a Letter of Credit, such Letter of Credit Application shall
specify in form and detail reasonably satisfactory to the applicable Issuing
Bank: (A) the proposed issuance date of the requested Letter of Credit (which
shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof;
(D) the name and address of the beneficiary thereof; (E) the documents to be
presented by such beneficiary in case of any drawing thereunder; (F) the full
text of any certificate to be presented by such beneficiary in case of any
drawing thereunder; and (G) such other matters as such Issuing Bank may
reasonably require. In the case of a request for an amendment of any outstanding
Letter of Credit, such Letter of Credit Application shall specify in form and
detail reasonably satisfactory to the applicable Issuing Bank (A) the Letter of
Credit to be amended; (B) the proposed date of amendment thereof (which shall be
a Business Day); (C) the nature of the proposed amendment; and (D) such other
matters as such Issuing Bank may reasonably require.
(ii) Promptly after receipt of any Letter of Credit Application, the
applicable Issuing Bank will confirm with the Administrative Agent (by telephone
or in writing) that the Administrative Agent has received a copy of such Letter
of Credit Application from the Borrower and, if not, such Issuing Bank will
provide the Administrative Agent with a copy thereof. Upon receipt by such
Issuing Bank of confirmation from the Administrative Agent that the requested
issuance or amendment is permitted in accordance with the terms hereof, then,
subject to the terms and conditions hereof, such Issuing Bank shall, on the
requested date, issue a Letter of Credit for the account of the Borrower or the
applicable Subsidiary or enter into the applicable amendment, as the case may
be, in each case in accordance with such Issuing Bank's usual and customary
business practices. Immediately upon the issuance of each Letter of Credit, each
Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from such Issuing Bank a risk participation in such Letter of Credit in
an amount equal to the product of such Lender's Pro Rata Share times the amount
of such Letter of Credit.
(iii) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect thereto or to
the beneficiary thereof, the applicable Issuing
32
Bank will also deliver to the Borrower and the Administrative Agent a true and
complete copy of such Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit of any
notice of a drawing under such Letter of Credit, the applicable Issuing Bank
shall notify the Borrower and the Administrative Agent thereof. Not later than
11:00 a.m. on the Business Day following any payment by the applicable Issuing
Bank under a Letter of Credit, so long as the Borrower has received notice of
such drawing by 10:00 a.m. on such following Business Day (each such date, an
"Honor Date"), the Borrower shall reimburse such Issuing Bank through the
Administrative Agent in an amount equal to the amount of such drawing (together
with interest thereon at the rate set forth in Section 2.07 for Revolving Credit
Advances bearing interest at the Base Rate). If the Borrower fails to so
reimburse the applicable Issuing Bank by such time, the Administrative Agent
shall promptly notify each Revolving Credit Lender of the Honor Date, the amount
of the unreimbursed drawing (the "Unreimbursed Amount"), and the amount of such
Revolving Credit Lender's Pro Rata Share thereof. In such event, the Borrower
shall be deemed to have requested a Borrowing to be disbursed on the Honor Date
in an amount equal to the Unreimbursed Amount, without regard to the minimum and
multiples specified in Section 2.02 for the principal amount of Borrowings, but
subject to the amount of the Unused Revolving Credit Commitments and the
conditions set forth in Section 3.02 (other than the delivery of a Notice of
Borrowing). Any notice given by an Issuing Bank or the Administrative Agent
pursuant to this Section 2.03(c)(i) may be given by telephone if immediately
confirmed in writing; provided that the lack of such an immediate confirmation
shall not affect the conclusiveness or binding effect of such notice.
(ii) Each Revolving Credit Lender (including a Revolving Credit Lender
acting as Issuing Bank) shall upon any notice pursuant to Section 2.03(c)(i)
make funds available to the Administrative Agent for the account of the
applicable Issuing Bank at the Administrative Agent's Office in an amount equal
to its Pro Rata Share of the Unreimbursed Amount not later than 1:00 p.m. on the
Business Day specified in such notice by the Administrative Agent, whereupon,
subject to the provisions of Section 2.03(c)(iii), each Revolving Credit Lender
that so makes funds available shall be deemed to have made a Letter of Credit
Advance to the Borrower in such amount. The Administrative Agent shall remit the
funds so received to the applicable Issuing Bank.
(iii) With respect to any Unreimbursed Amount that is not fully
refinanced by a Borrowing because the conditions set forth in Section 3.02
cannot be satisfied or for any other reason, the Borrower shall be deemed to
have incurred from the applicable Issuing Bank a Letter of Credit Borrowing in
the amount of the Unreimbursed Amount that is not so refinanced, which Letter of
Credit Borrowing shall be due and payable on demand (together with interest) and
shall bear interest at the Default Rate. In such event, each Revolving Credit
Lender's payment to the Administrative Agent for the account of the applicable
Issuing Bank pursuant to Section 2.03(c)(ii) shall be deemed payment in respect
of its participation in such Letter of Credit Borrowing and shall constitute a
Letter of Credit Advance from such Revolving Credit Lender in satisfaction of
its participation obligation under this Section 2.03.
(iv) Until each Revolving Credit Lender funds its Revolving Credit
Advance or Letter of Credit Advance pursuant to this Section 2.03(c) to
reimburse the applicable Issuing Bank for any amount drawn under any Letter of
Credit, interest in respect of such Revolving Credit Lender's Pro Rata Share of
such amount shall be solely for the account of such Issuing Bank.
(v) Each Revolving Credit Lender's obligation to make Letter of Credit
Advances to reimburse the applicable Issuing Bank for amounts drawn under
Letters of Credit, as contemplated by this Section 2.03(c), shall be absolute
and unconditional and shall not be affected by any circumstance,
33
including (A) any set-off, counterclaim, recoupment, defense or other right
which such Revolving Credit Lender may have against such Issuing Bank, the
Borrower or any other Person for any reason whatsoever; (B) the occurrence or
continuance of a Default, or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing. No such making of a Letter of
Credit Advance shall relieve or otherwise impair the obligation of the Borrower
to reimburse the applicable Issuing Bank for the amount of any payment made by
such Issuing Bank under any Letter of Credit, together with interest as provided
herein.
(vi) If any Revolving Credit Lender fails to make available to the
Administrative Agent for the account of the applicable Issuing Bank any amount
required to be paid by such Revolving Credit Lender pursuant to the foregoing
provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii),
such Issuing Bank shall be entitled to recover from such Revolving Credit Lender
(acting through the Administrative Agent), on demand, such amount with interest
thereon for the period from the date such payment is required to the date on
which such payment is immediately available to the such Issuing Bank at a rate
per annum equal to the Federal Funds Rate from time to time in effect. A
certificate of the applicable Issuing Bank submitted to any Revolving Credit
Lender (through the Administrative Agent) with respect to any amounts owing
under this clause (vi) shall be conclusive absent manifest error.
(d) Repayment of Participations.
(i) At any time after any Issuing Bank has made a payment under any
Letter of Credit and has received from any Revolving Credit Lender such
Revolving Credit Lender's Letter of Credit Advance in respect of such payment in
accordance with Section 2.03(c), if the Administrative Agent receives for the
account of the applicable Issuing Bank any payment in respect of the related
Unreimbursed Amount or interest thereon (whether directly from the Borrower or
otherwise, including proceeds of Cash Collateral applied thereto by the
Administrative Agent), the Administrative Agent will distribute to such
Revolving Credit Lender its Pro Rata Share thereof (appropriately adjusted, in
the case of interest payments, to reflect the period of time during which such
Revolving Credit Lender's Letter of Credit Advance was outstanding) in the same
funds as those received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for the
account of the applicable Issuing Bank pursuant to Section 2.03(c)(i) is
required to be returned under any circumstances (including pursuant to any
settlement entered into by such Issuing Bank in its discretion), each Revolving
Credit Lender shall pay to the Administrative Agent for the account of such
Issuing Bank its Pro Rata Share thereof on demand of the Administrative Agent,
plus interest thereon from the date of such demand to the date such amount is
returned by such Revolving Credit Lender, at a rate per annum equal to the
Federal Funds Rate from time to time in effect.
(e) Obligations Absolute. The obligation of the Borrower to reimburse
any Issuing Bank for each drawing under each Letter of Credit and to repay each
Letter of Credit Borrowing shall be absolute, unconditional and irrevocable, and
shall be paid strictly in accordance with the terms of this Agreement under all
circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of Credit,
this Agreement, or any other agreement or instrument relating thereto;
(ii) the existence of any claim, counterclaim, set-off, defense or
other right that the Borrower may have at any time against any beneficiary
or any transferee of such Letter of Credit (or any Person for whom any such
beneficiary or any such transferee may be acting), such Issuing Bank or any
other Person, whether in connection with this Agreement, the transactions
34
contemplated hereby or by such Letter of Credit or any agreement or
instrument relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document presented under
such Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under such
Letter of Credit;
(iv) any payment by the Issuing Bank under such Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit; or any payment made by such
Issuing Bank under such Letter of Credit to any Person purporting to be a
trustee in bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or successor to
any beneficiary or any transferee of such Letter of Credit, including any
arising in connection with any proceeding under any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including any other circumstance that
might otherwise constitute a defense available to, or a discharge of, the
Borrower.
The Borrower shall promptly examine a copy of each Letter of Credit
and each amendment thereto that is delivered to it and, in the event of any
claim of noncompliance with the Borrower's instructions or other irregularity,
the Borrower will immediately notify the applicable Issuing Bank. The Borrower
shall be conclusively deemed to have waived any such claim against the
applicable Issuing Bank and its correspondents unless such notice is given as
aforesaid.
(f) Role of Issuing Bank. Each Revolving Credit Lender and the
Borrower agree that, in paying any drawing under a Letter of Credit, no Issuing
Bank shall have any responsibility to obtain any document (other than any sight
draft, certificates and documents expressly required by the Letter of Credit) or
to ascertain or inquire as to the validity or accuracy of any such document or
the authority of the Person executing or delivering any such document. None of
the Issuing Banks, any Agent-Related Person nor any of the respective
correspondents, participants or assignees of any Issuing Bank shall be liable to
any Revolving Credit Lender for (i) any action taken or omitted in connection
herewith at the request or with the approval of the Revolving Credit Lenders or
the Required Lenders, as applicable; (ii) any action taken or omitted in the
absence of gross negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any document or instrument related
to any Letter of Credit or Letter of Credit Application. The Borrower hereby
assumes all risks of the acts or omissions of any beneficiary or transferee with
respect to its use of any Letter of Credit; provided, however, that this
assumption is not intended to, and shall not, preclude the Borrower from
pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. None of the Issuing Banks, any
Agent-Related Person, nor any of the respective correspondents, participants or
assignees of any Issuing Bank, shall be liable or responsible for any of the
matters described in clauses (i) through (v) of Section 2.03(e); provided,
however, that anything in such clauses to the contrary notwithstanding, the
Borrower may have a claim against an Issuing Bank, any related Agent-Related
Person, any of their respective correspondents, participants or assignees of
such Issuing Bank or any Agent-Related Person, and they may be liable to the
Borrower, to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Borrower which the Borrower
proves were caused by such Issuing Bank's, any such Agent-Related Person's, or
any of such respective correspondents, participants or assignees of such Issuing
Bank or of any Agent-Related Person's willful misconduct or gross negligence or
such Issuing Bank's willful failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s)
strictly
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complying with the terms and conditions of a Letter of Credit. In furtherance
and not in limitation of the foregoing, the applicable Issuing Bank may accept
documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary,
and such Issuing Bank shall not be responsible for the validity or sufficiency
of any instrument transferring or assigning or purporting to transfer or assign
a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any reason.
(g) Cash Collateral. Upon the request of the Administrative Agent, if,
as of the Letter of Credit Expiration Date, any Letter of Credit may for any
reason remain outstanding and partially or wholly undrawn, the Borrower shall
immediately Cash Collateralize the then Outstanding Amount of all L/C
Obligations (in an amount equal to 105% of such Outstanding Amount determined as
of the date of such Letter of Credit Borrowing or the Letter of Credit
Expiration Date, as the case may be). For purposes hereof, "Cash Collateralize"
means to pledge and deposit with or deliver to the Administrative Agent, for the
benefit of the Issuing Banks and the Revolving Credit Lenders, as collateral for
the L/C Obligations, cash or deposit account balances pursuant to documentation
in form and substance reasonably satisfactory to the Administrative Agent and
the Issuing Banks (which documents are hereby consented to by the Revolving
Credit Lenders). Derivatives of such term have corresponding meanings. The
Borrower hereby grants to the Administrative Agent, for the benefit of the
Issuing Banks and the Revolving Credit Lenders, a security interest in all such
cash, deposit accounts and all balances therein and all proceeds of the
foregoing. Such cash collateral shall be maintained in the L/C Cash Collateral
Account.
(h) Applicability of ISP98 and UCP. Unless otherwise expressly agreed
by the applicable Issuing Bank and the Borrower when a Letter of Credit is
issued, (i) the rules of the "International Standby Practices 1998" published by
the Institute of International Banking Law & Practice (or such later version
thereof as may be in effect at the time of issuance) shall apply to each standby
Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for
Documentary Credits, as most recently published by the International Chamber of
Commerce (the "ICC") at the time of issuance (including the ICC decision
published by the Commission on Banking Technique and Practice on April 6, 1998
regarding the European single currency (euro)) shall apply to each commercial
Letter of Credit.
(i) Conflict with Letter of Credit Application. In the event of any
conflict between the terms hereof and the terms of any Letter of Credit
Application, the terms hereof shall control.
Section 2.04 Repayment of Advances. (a) Term Advances. The Borrower
shall repay to the Administrative Agent for the ratable account of the Term
Lenders on the Termination Date the aggregate outstanding principal amount of
the Term Advances then outstanding.
(b) Revolving Credit Advances. The Borrower shall repay to the
Administrative Agent for the ratable account of the Revolving Credit Lenders on
the Termination Date the aggregate outstanding principal amount of the Revolving
Credit Advances then outstanding.
(c) Swing Line Advances. The Borrower shall repay to the
Administrative Agent for the account of the Swing Line Lender and each other
Revolving Credit Lender that has made a Swing Line Advance the outstanding
principal amount of each Swing Line Advance made by each of them on the earlier
of the maturity date specified in the applicable Notice of Swing Line Borrowing
(which maturity shall be no later than the seventh day after the requested date
of such Borrowing) and the Termination Date.
36
(d) Letter of Credit Advances. The Borrower shall repay to the
Administrative Agent for the account of the Issuing Banks and each Revolving
Credit Lender that has made a Letter of Credit Advance the outstanding principal
amount of each Letter of Credit Advance made by each of them on the earlier of
(i) the date of demand therefor and (ii) the Termination Date.
Section 2.05 Termination or Reduction of Commitments. (a) Optional.
The Borrower may, upon at least two Business Days' notice to the Administrative
Agent, terminate in whole or reduce in part the unused portions of the Swing
Line Facility and the Letter of Credit Sublimit, the Unused Term Commitments and
the Unused Revolving Credit Commitments; provided, however, that each partial
reduction shall be in an aggregate amount of $10,000,000 or an integral multiple
of $1,000,000 in excess thereof.
(b) Mandatory.
(i) Upon the making of the Term Advances pursuant to Section 2.01(a),
the Term Commitments shall be automatically and permanently reduced to zero.
(ii) The Revolving Credit Facility shall be automatically and
permanently reduced (A) upon the entry of the Final Order by an amount equal to
$50,000,000 and (B) on each date (prior to the date on which the Loan Parties
shall have satisfied the conditions set forth in Section 3.03) on which
prepayment thereof is required to be made pursuant to clause (i) of Section
2.06(b), by an amount equal to the applicable Reduction Amount.
(iii) The Letter of Credit Sublimit shall be automatically and
permanently reduced from time to time on the date of each reduction in the
Revolving Credit Facility by the amount, if any, by which the amount of the
Letter of Credit Sublimit exceeds the Revolving Credit Facility after giving
effect to such reduction of the Revolving Credit Facility.
(iv) The Swing Line Facility shall be permanently reduced from time to
time on the date of each reduction in the Revolving Credit Facility by the
amount, if any, by which the amount of the Swing Line Facility exceeds the
Revolving Credit Facility after giving effect to such reduction of the Revolving
Credit Facility.
(c) Application of Commitment Reductions. Upon each reduction of the
Revolving Credit Facility pursuant to this Section 2.05, the Commitment of each
of the Revolving Credit Lenders shall be reduced by such Revolving Credit
Lender's Pro Rata Share of the amount by which the Revolving Credit Facility is
reduced in accordance with the Lenders' respective Revolving Credit Commitments.
Section 2.06 Prepayments. (a) Optional. The Borrower may, upon at
least one Business Day's notice to the Administrative Agent received not later
than 11:00 A.M. (New York, New York time) stating the proposed date and
aggregate principal amount of the prepayment, and if such notice is given the
Borrower shall, prepay the outstanding aggregate principal amount of Advances,
in whole or ratably in part, together with accrued interest to the date of such
prepayment on the aggregate principal amount prepaid; provided, however, that
each partial prepayment shall be in an aggregate principal amount of $5,000,000
or an integral multiple of $1,000,000 in excess thereof or, if less, the
aggregate outstanding principal amount of any Advance.
37
(b) Mandatory.
(i) The Borrower shall, within five Business Days after the date of
receipt of any Net Cash Proceeds (or, (A) if the Borrower or its applicable
Subsidiary has elected to reinvest such Net Cash Proceeds, on the 185th day
after receipt of such Net Cash Proceeds, to the extent any such Net Cash
Proceeds remain uninvested or (B) if the Borrower or its applicable Subsidiary
has entered into a binding agreement with a third party to reinvest such Net
Cash Proceeds within 180 days following the date of receipt of such Net Cash
Proceeds, on the 275th day after receipt of such Net Cash Proceeds, to the
extent any such Net Cash Proceeds remain uninvested) by any Loan Party or any of
its Subsidiaries, prepay an aggregate principal amount of the Advances
comprising part of the same Borrowings equal to such Net Cash Proceeds (or
portion thereof); provided that the Borrower shall not be required to make any
prepayment hereunder in respect of any transaction or series of related
transactions as to which Net Cash Proceeds are not greater than $5,000,000
unless and until the aggregate amount of all Net Cash Proceeds that have not
theretofore been applied to prepay the Advances pursuant to this Section
2.06(b)(i) exceeds $10,000,000. Each such prepayment shall be applied first
ratably to the outstanding Term Advances and second to the Revolving Credit
Facility as set forth in clause (iv) below.
(ii) The Borrower shall, on each Business Day, if applicable, prepay
an aggregate principal amount of the Revolving Credit Advances comprising part
of the same Borrowings, the Letter of Credit Advances and the Swing Line
Advances or deposit an amount in the Collateral Account in an amount equal to
the amount by which (A) the sum of (x) the aggregate principal amount of the
Revolving Credit Advances, the Letter of Credit Advances and the Swing Line
Advances then outstanding plus (y) the aggregate Available Amount of all Letters
of Credit then outstanding exceeds (B) the Revolving Credit Availability Amount.
(iii) The Borrower shall, on each Business Day, if applicable, pay to
the Administrative Agent for deposit in the L/C Cash Collateral Account an
amount sufficient to cause the aggregate amount on deposit in such L/C Cash
Collateral Account to equal the amount by which the aggregate Available Amount
of all Letters of Credit then outstanding exceeds the Letter of Credit Sublimit
on such Business Day.
(iv) Prepayments of the Revolving Credit Facility made pursuant to
clause (i) and (ii) above shall be first applied to prepay Letter of Credit
Advances then outstanding, if any, until such Advances are paid in full, second
applied to prepay Swing Line Advances then outstanding until such Advances are
paid in full, third applied ratably to prepay Revolving Credit Advances then
outstanding, if any, comprising part of the same Borrowings until such Advances
are paid in full and third, if required under Section 2.03(g), deposited in the
L/C Cash Collateral Account; and, in the case of any prepayment of the Revolving
Credit Facility pursuant to clause (i) above, the amount remaining, if any, from
the Revolving Credit Facility's ratable portion of such Net Cash Proceeds after
the prepayment of the Letter of Credit Advances and the Revolving Credit
Advances then outstanding and any required cash collateralization of Letters of
Credit then outstanding (the sum of such prepayment amounts, cash
collateralization amounts and remaining amounts being referred to herein as the
"Reduction Amount") may be retained by the Borrower for use in its business and
operations in the ordinary course. Upon the drawing of any Letter of Credit for
which funds are on deposit in the L/C Cash Collateral Account, such funds shall
be applied to reimburse the applicable Issuing Bank or Revolving Credit Lenders,
as applicable.
(v) All prepayments under this subsection (b) shall be made together
with accrued interest to the date of such prepayment on the principal amount
prepaid.
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Section 2.07 Interest. (a) Scheduled Interest. The Borrower shall pay
interest on each Term Advance and each Revolving Credit Advance owing to each
Lender from the date of such Term Advance and each Revolving Credit Advance
until such principal amount shall be paid in full, at the following rates per
annum:
(i) Base Rate Advances. During such periods as such Advance is a Base
Rate Advance, a rate per annum equal at all times to the sum of (A) the
Base Rate in effect from time to time plus (B) the Applicable Margin in
effect from time to time, payable in arrears monthly on the first Business
Day of each month during such periods and on the date such Base Rate
Advance shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such Advance is
a Eurodollar Rate Advance, a rate per annum equal at all times during each
Interest Period for such Advance to the sum of (A) the Eurodollar Rate for
such Interest Period for such Advance plus (B) the Applicable Margin in
effect on the first day of such Interest Period, payable in arrears on the
last Business Day of such Interest Period and, if such Interest Period has
a duration of more than one month, on the first Business Day of each month
that occurs during such Interest Period every month from the first day of
such Interest Period and on the date such Eurodollar Rate Advance shall be
Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the continuance
of an Event of Default the Borrower shall pay interest on (i) the unpaid
principal amount of each Advance owing to each Lender, payable in arrears on the
dates referred to in clause (a) above and on demand, at a rate per annum equal
at all times to 2% per annum above the rate per annum required to be paid on
such Advance pursuant to clause (a) and (ii) to the fullest extent permitted by
law, the amount of any interest, fee or other amount payable hereunder that is
not paid when due, from the date such amount shall be due until such amount
shall be paid in full, payable in arrears on the date such amount shall be paid
in full and on demand, at a rate per annum equal at all times to 2% per annum
above the rate per annum required to be paid on Advances pursuant to clause
(a)(i) above.
(c) Notice of Interest Rate. Promptly after receipt of a Notice of
Borrowing pursuant to Section 2.02(a), the Administrative Agent shall give
notice to the Borrower and each Lender of the interest rate determined by the
Administrative Agent for purposes of clause (a) above.
Section 2.08 Fees. (a) Commitment Fees. (i) The Borrower shall pay to
the Administrative Agent for the account of the Revolving Credit Lenders a
commitment fee, from the date hereof in the case of each such Initial Lender and
from the effective date specified in the Assignment and Acceptance pursuant to
which it became a Lender in the case of each other such Lender until the
Termination Date, payable in arrears on the Effective Date, thereafter quarterly
on the first day of each month and on the Termination Date, at the rate of
0.375% per annum on the average daily unused portion of the Unused Revolving
Credit Commitment of such Lender; provided, however, that no commitment fee
shall accrue on any of the Commitments of a Defaulting Lender so long as such
Lender shall be a Defaulting Lender.
(ii) The Borrower shall pay to the Administrative Agent for the
account of the Term Lenders a commitment fee, from the date hereof in the
case of each such Initial Lender and from the effective date specified in
the Assignment and Acceptance pursuant to which it became a Lender in the
case of each other such Lender until the Termination Date, payable in
arrears on the Effective Date, thereafter quarterly on the first day of
each month and on the Termination Date, at the rate of 0.50% per annum on
the average daily unused portion of the Unused Term
39
Commitment of such Lender; provided, however, that no Commitment fee shall
accrue on any of the commitments of a Defaulting Lender so long as such
Lender shall be a Defaulting Lender.
(b) Letter of Credit Fees, Etc.
(i) The Borrower shall pay to the Administrative Agent for the account
of each Revolving Credit Lender a commission, payable in arrears on the first
Business Day of each month, on the earliest to occur of the full drawing,
expiration, termination or cancellation of any such Letter of Credit and on the
Termination Date, on such Revolving Credit Lender's Pro Rata Share of the
average daily aggregate Available Amount during such month of all Letters of
Credit outstanding from time to time at a rate per annum equal to the Applicable
Margin for Eurodollar Rate Advances under the Revolving Credit Facility.
(ii) The Borrower shall pay to the Issuing Banks, for their own
account, (A) a fronting fee, payable in arrears on the first Business Day of
each month and on the Termination Date, on the average daily amount of its
Letter of Credit Commitment during such month, from the Effective Date until the
Termination Date, at the rate of 0.25% per annum and (B) the customary issuance,
presentation, amendment and other processing fees, and other standard costs and
charges, of the Issuing Banks.
(c) Initial Lender Fees. The Borrower shall pay to the Administrative
Agent for the account of the Initial Lenders (and their respective Affiliates)
such other fees as may be from time to time agreed among the Borrower and the
Initial Lenders (and their respective Affiliates).
Section 2.09 Conversion of Advances. (a) Optional. The Borrower may on
any Business Day, upon notice given to the Administrative Agent not later than
11:00 A.M. (New York City time) on the third Business Day prior to the date of
the proposed Conversion and subject to the provisions of Section 2.10, Convert
all or any portion of the Advances of one Type comprising the same Borrowing
into Advances of the other Type; provided, however, that any Conversion of
Eurodollar Rate Advances into Base Rate Advances shall be made only on the last
day of an Interest Period for such Eurodollar Rate Advances, any Conversion of
Base Rate Advances into Eurodollar Rate Advances shall be in an amount not less
than the minimum amount specified in Section 2.02(c), no Conversion of any
Advances shall result in more separate Borrowings than permitted under Section
2.02(c) and each Conversion of Advances comprising part of the same Borrowing
shall be made ratably among the Lenders in accordance with their Commitments.
Each such notice of Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion, (ii) the Advances to be Converted and
(iii) if such Conversion is into Eurodollar Rate Advances, the duration of the
initial Interest Period for such Advances. Each notice of Conversion shall be
irrevocable and binding on the Borrower.
(b) Mandatory.
(i) On the date on which the aggregate unpaid principal amount of
Eurodollar Rate Advances comprising any Borrowing shall be reduced, by payment
or prepayment or otherwise, to less than $5,000,000, such Advances shall, at the
end of the applicable Interest Period, automatically Convert into Base Rate
Advances.
(ii) If the Borrower shall fail to select the duration of any Interest
Period for any Eurodollar Rate Advances in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify the Borrower and the Lenders,
whereupon each such Eurodollar Rate Advance will automatically, on the last day
of the then existing Interest Period therefor, Convert into a Base Rate Advance.
40
(iii) Upon the occurrence and during the continuance of any Event of
Default, (x) each Eurodollar Rate Advance will automatically, on the last day of
the then existing Interest Period therefor, Convert into a Base Rate Advance and
(y) the obligation of the Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended.
Section 2.10 Increased Costs, Etc. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law),
there shall be any increase in the cost to any Lender Party of agreeing to make
or of making, funding or maintaining Eurodollar Rate Advances or of agreeing to
issue or of issuing or maintaining or participating in Letters of Credit or of
agreeing to make or of making or maintaining Letter of Credit Advances
(excluding, for purposes of this Section 2.10, any such increased costs
resulting from (x) Taxes or Other Taxes (as to which Section 2.12 shall govern)
and (y) changes in the basis of taxation of overall net income or overall gross
income by the United States or by the foreign jurisdiction or state under the
laws of which such Lender Party is organized or has its Applicable Lending
Office or any political subdivision thereof), then the Borrower shall from time
to time, upon demand by such Lender Party (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such
Lender Party additional amounts sufficient to compensate such Lender Party for
such increased cost; provided, however, that a Lender Party claiming additional
amounts under this Section 2.10(a) agrees to use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to designate a
different Applicable Lending Office if the making of such a designation would
avoid the need for, or reduce the amount of, such increased cost that may
thereafter accrue and would not, in the reasonable judgment of such Lender
Party, be otherwise disadvantageous to such Lender Party. A certificate as to
the amount of such increased cost, submitted to the Borrower by such Lender
Party, shall be conclusive and binding for all purposes, absent manifest error.
(b) If any Lender Party determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by such
Lender Party or any corporation controlling such Lender Party and that the
amount of such capital is increased by or based upon the existence of such
Lender Party's commitment to lend or to issue or participate in Letters of
Credit hereunder and other commitments of such type or the issuance or
maintenance of or participation in the Letters of Credit (or similar contingent
obligations), then, upon demand by such Lender Party or such corporation (with a
copy of such demand to the Administrative Agent), the Borrower shall pay to the
Administrative Agent for the account of such Lender Party, from time to time as
specified by such Lender Party, additional amounts sufficient to compensate such
Lender Party in the light of such circumstances, to the extent that such Lender
Party reasonably determines such increase in capital to be allocable to the
existence of such Lender Party's commitment to lend or to issue or participate
in Letters of Credit hereunder or to the issuance or maintenance of or
participation in any Letters of Credit. A certificate as to such amounts
submitted to the Borrower by such Lender Party shall be conclusive and binding
for all purposes, absent manifest error.
(c) If, with respect to any Eurodollar Rate Advances, the Required
Lenders notify the Administrative Agent that the Eurodollar Rate for any
Interest Period for such Advances will not adequately reflect the cost to such
Lenders of making, funding or maintaining their Eurodollar Rate Advances for
such Interest Period, the Administrative Agent shall forthwith so notify the
Borrower and the Lenders, whereupon (i) each such Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance and (ii) the obligation of the Lenders to make,
or to Convert Advances into, Eurodollar Rate Advances shall be suspended until
the Administrative Agent shall notify the Borrower that such Lenders have
determined that the circumstances causing such suspension no longer exist.
41
(d) Notwithstanding any other provision of this Agreement, if the
introduction of or any change in or in the interpretation of any law or
regulation shall make it unlawful, or any central bank or other governmental
authority shall assert that it is unlawful, for any Lender or its Eurodollar
Lending Office to perform its obligations hereunder to make Eurodollar Rate
Advances or to continue to fund or maintain Eurodollar Rate Advances hereunder,
then, on notice thereof and demand therefor by such Lender to the Borrower
through the Administrative Agent, (i) each Eurodollar Rate Advance will
automatically, upon such demand, Convert into a Base Rate Advance and (ii) the
obligation of the Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended until the Administrative Agent shall notify the
Borrower that such Lender has determined that the circumstances causing such
suspension no longer exist; provided, however, that, before making any such
demand, such Lender agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate a different
Eurodollar Lending Office if the making of such a designation would allow such
Lender or its Eurodollar Lending Office to continue to perform its obligations
to make Eurodollar Rate Advances or to continue to fund or maintain Eurodollar
Rate Advances and would not, in the judgment of such Lender, be otherwise
disadvantageous to such Lender.
Section 2.11 Payments and Computations. (a) The Borrower shall make
each payment hereunder and under the Notes, irrespective of any right of
counterclaim or set-off (except as otherwise provided in Section 2.15), not
later than 11:00 A.M. (New York, New York time) on the day when due (or, in the
case of payments made by a Guarantor pursuant to Section 8.01, on the date of
demand therefor) in U.S. dollars to the Administrative Agent at the
Administrative Agent's Account in same day funds. The Administrative Agent will
promptly thereafter cause like funds to be distributed (i) if such payment by
the Borrower is in respect of principal, interest, commitment fees or any other
Obligation then payable hereunder and under the Notes to more than one Lender
Party, to such Lender Parties for the account of their respective Applicable
Lending Offices ratably in accordance with the amounts of such respective
Obligations then payable to such Lender Parties and (ii) if such payment by the
Borrower is in respect of any Obligation then payable hereunder to one Lender
Party, to such Lender Party for the account of its Applicable Lending Office, in
each case to be applied in accordance with the terms of this Agreement. Upon its
acceptance of an Assignment and Acceptance and recording of the information
contained therein in the Register pursuant to Section 10.07(d), from and after
the effective date of such Assignment and Acceptance, the Administrative Agent
shall make all payments hereunder and under the Notes in respect of the interest
assigned thereby to the Lender Party assignee thereunder, and the parties to
such Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
(b) If the Administrative Agent receives funds for application to the
Obligations under the Loan Documents under circumstances for which the Loan
Documents do not specify the Advances to which, or the manner in which, such
funds are to be applied, the Administrative Agent may, but shall not be
obligated to, elect to distribute such funds to each Lender Party ratably in
accordance with such Lender Party's proportionate share of the principal amount
of all outstanding Advances and the Available Amount of all Letters of Credit
then outstanding, in repayment or prepayment of such of the outstanding Advances
or other Obligations owed to such Lender Party, and for application to such
principal installments, as the Administrative Agent shall direct.
(c) The Borrower hereby authorizes each Lender Party, if and to the
extent payment owed to such Lender Party is not made when due hereunder or, in
the case of a Lender, under the Note held by such Lender, to charge from time to
time against any or all of the Borrower's accounts with such Lender Party any
amount so due. Each of the Lender Parties hereby agrees to notify the Borrower
promptly after any such setoff and application shall be made by such Lender
Party; provided, however, that the failure to give such notice shall not affect
the validity of such charge.
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(d) All computations of interest based on the Base Rate, of fees and
Letter of Credit commissions shall be made by the Administrative Agent on the
basis of a year of 365 or 366 days, as the case may be, and all computations of
interest based on the Eurodollar Rate or the Federal Funds Rate shall be made by
the Administrative Agent on the basis of a year of 360 days, in each case for
the actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest, fees or commissions are
payable. Each determination by the Administrative Agent of an interest rate, fee
or commission hereunder shall be conclusive and binding for all purposes, absent
manifest error.
(e) Whenever any payment hereunder or under the Notes shall be stated
to be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or commitment fee, as the
case may be; provided, however, that, if such extension would cause payment of
interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(f) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to any Lender Party
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each such Lender Party
on such due date an amount equal to the amount then due such Lender Party. If
and to the extent the Borrower shall not have so made such payment in full to
the Administrative Agent, each such Lender Party shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Lender
Party together with interest thereon, for each day from the date such amount is
distributed to such Lender Party until the date such Lender Party repays such
amount to the Administrative Agent, at the Federal Funds Rate.
Section 2.12 Taxes. (a) Except as otherwise provided herein, any and
all payments by any Loan Party to or for the account of any Lender Party or any
Agent hereunder or under any other Loan Document shall be made, in accordance
with Section 2.11 or the applicable provisions of such other Loan Document, if
any, free and clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges or withholdings, and all liabilities
with respect thereto, excluding, in the case of each Lender Party and each
Agent, (x) taxes, levies, imposts, deductions, charges or withholdings that are
imposed on or measured by its overall net income and franchise taxes imposed in
lieu thereof by the United States or by the state or foreign jurisdiction or any
political subdivision thereof under the laws of which such Lender Party or such
Agent, as the case may be, is organized or, in the case of each Lender Party,
such Lender Party's Applicable Lending Office is located or (y) any branch
profit taxes imposed by the United States of America (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings being hereinafter
referred to as "Taxes"). If any Loan Party shall be required by law to deduct
any Taxes from or in respect of any sum payable hereunder or under any other
Loan Document to any Lender Party or any Agent, subject to Section 2.12(f), (i)
the sum payable by such Loan Party shall be increased as may be necessary so
that after such Loan Party and the Administrative Agent have made all required
deductions (including deductions applicable to additional sums payable under
this Section 2.12) such Lender Party or such Agent, as the case may be, receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) such Loan Party shall make all such deductions and (iii) such Loan
Party shall pay the full amount deducted to the relevant taxing authority or
other authority in accordance with applicable law.
(b) In addition, each Loan Party shall pay any present or future
stamp, documentary, excise, property, intangible, mortgage recording or similar
taxes, charges or levies that arise from any payment made by such Loan Party
hereunder or under any other Loan Documents or from the execution,
43
delivery or registration of, performance under, or otherwise with respect to,
this Agreement or the other Loan Documents (hereinafter referred to as "Other
Taxes").
(c) Except as otherwise provided herein, the Loan Parties shall
indemnify each Lender Party and each Agent for and hold them harmless against
the full amount of Taxes and Other Taxes imposed on or paid by such Lender Party
or such Agent (as the case may be) and any liability (including penalties,
additions to tax, interest and expenses) arising therefrom or with respect
thereto. This indemnification shall be made within 30 days from the date such
Lender Party or such Agent (as the case may be) makes written demand therefor,
which written demand shall be accompanied by copies of the applicable
documentation evidencing the amount of such taxes.
(d) Within 30 days after the date of any payment of Taxes, the
appropriate Loan Party shall furnish to the Administrative Agent, at its address
referred to in Section 10.02, the original or a certified copy of a receipt
evidencing such payment, to the extent such a receipt is issued therefor, or
other written proof of payment thereof that is reasonably satisfactory to the
Administrative Agent. In the case of any payment hereunder or under the other
Loan Documents by or on behalf of a Loan Party through an account or branch
outside the United States or by or on behalf of a Loan Party by a payor that is
not a United States person, if such Loan Party determines that no Taxes are
payable in respect thereof, such Loan Party shall furnish, or shall cause such
payor to furnish, to the Administrative Agent, at such address, an opinion of
counsel acceptable to the Administrative Agent stating that such payment is
exempt from Taxes. For purposes of subsections (d) and (e) of this Section 2.12,
the terms "United States person" shall have the meanings specified in Section
7701 of the Internal Revenue Code.
(e) Each Lender Party organized under the laws of a jurisdiction
outside the United States shall, on or prior to the date of its execution and
delivery of this Agreement in the case of each Initial Lender Party and on the
date of the Assignment and Acceptance pursuant to which it becomes a Lender
Party in the case of each other Lender Party, and from time to time thereafter
as reasonably requested in writing by the Borrower (but only so long thereafter
as such Lender Party remains lawfully able to do so), provide each of the
Administrative Agent and Borrower with two original properly completed Internal
Revenue Service Forms W-8BEN, W-8IMY or W-8ECI, (in the case of a Lender Party
that has certified in writing to the Administrative Agent that it is not (i) a
"bank" (within the meaning of Section 881(c)(3)(A) of the Internal Revenue
Code), (ii) a 10-percent shareholder (within the meaning of Section 871(h)(3)(B)
of the Internal Revenue Code) of any Loan Party or (iii) a controlled foreign
corporation related to the Borrower (within the meaning of Section 864(d)(4) of
the Internal Revenue Code), Internal Revenue Service Form W-8BEN,) as
appropriate, or any successor or other form prescribed by the Internal Revenue
Service, certifying that such Lender Party is exempt from or entitled to a
reduced rate of United States withholding tax on payments pursuant to this
Agreement or the other Loan Documents or, in the case of a Lender Party that has
certified that it is not a "bank" as described above, certifying that such
Lender Party is a foreign corporation, partnership, estate or trust. If the
forms provided by a Lender Party at the time such Lender Party first becomes a
party to this Agreement indicate a United States interest withholding tax rate
in excess of zero, withholding tax at such rate shall be considered excluded
from Taxes unless and until such Lender Party provides the appropriate forms
certifying that a lesser rate applies, whereupon withholding tax at such lesser
rate only shall be considered excluded from Taxes for periods governed by such
forms; provided, however, that if, at the effective date of the Assignment and
Acceptance pursuant to which a Lender Party becomes a party to this Agreement,
the Lender Party assignor was entitled to payments under subsection (a) of this
Section 2.12 in respect of United States withholding tax with respect to
interest paid at such date, then, to such extent, the term Taxes shall include
(in addition to withholding taxes that may be imposed in the future or other
amounts otherwise includable in Taxes) United States withholding tax, if any,
applicable with respect to the Lender Party assignee on such date. If any form
or document referred to in this subsection (e) requires the disclosure of
information, other than information necessary to compute the tax payable and
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information required on the date hereof by Internal Revenue Service Form ▇-▇▇▇▇,
▇-▇▇▇▇, ▇-▇▇▇▇ or any successor, or the related certificate described above,
that the applicable Lender Party reasonably considers to be confidential, such
Lender Party shall give notice thereof to the Borrower and shall not be
obligated to include in such form or document such confidential information.
(f) For any period with respect to which a Lender Party has failed to
provide the Borrower with the appropriate form, certificate or other document
described in subsection (e) above (other than if such failure is due to a change
in law, or in the interpretation or application thereof, occurring after the
date on which a form, certificate or other document originally was required to
be provided or if such form, certificate or other document otherwise is not
required under subsection (e) above), such Lender Party shall not be entitled to
increased payment or indemnification under subsection (a) or (c) of this Section
2.12 with respect to taxes imposed by the United States by reason of such
failure; provided, however, that should a Lender Party become subject to taxes
because of its failure to deliver a form, certificate or other document required
hereunder, the Loan Parties shall take such steps as such Lender Party shall
reasonably request to assist such Lender Party to recover such taxes.
(g) If any Lender Party determines, in its sole discretion, that it
has actually and finally realized by reason of the refund of any Taxes paid or
reimbursed by any Loan Party pursuant to subsection (a) or (c) above in respect
of payments under the Loan Documents, a current monetary benefit that it would
otherwise not have obtained, and that would result in the total payments under
this Section 2.12 exceeding the amount needed to make such Lender Party whole,
such Lender Party shall pay to the Borrower or other Loan Party, as the case may
be, with reasonable promptness following the date on which it actually realizes
such benefit, an amount equal to the lesser of the amount of such benefit or the
amount of such excess, net of all out-of-pocket expenses in securing such
refund.
Section 2.13 Sharing of Payments, Etc. If any Lender Party shall
obtain at any time any payment, whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise (other than pursuant to Section
2.10, 2.12, 10.04 or 10.07), (a) on account of Obligations due and payable to
such Lender Party hereunder and under the Notes at such time in excess of its
ratable share (according to the proportion of (i) the amount of such Obligations
due and payable to such Lender Party at such time (other than pursuant to
Section 2.10, 2.12, 10.04 or 10.07) to (ii) the aggregate amount of the
Obligations due and payable to all Lender Parties hereunder and under the Notes
at such time) of payments on account of the Obligations due and payable to all
Lender Parties hereunder and under the Notes at such time obtained by all the
Lender Parties at such time or (b) on account of Obligations owing (but not due
and payable) to such Lender Party hereunder and under the Notes at such time
(other than pursuant to Section 2.10, 2.12, 10.04 or 10.07) in excess of its
ratable share (according to the proportion of (i) the amount of such Obligations
owing to such Lender Party at such time (other than pursuant to Section 2.10,
2.12, 10.04 or 10.07) to (ii) the aggregate amount of the Obligations owing (but
not due and payable) to all Lender Parties hereunder and under the Notes at such
time) of payments on account of the Obligations owing (but not due and payable)
to all Lender Parties hereunder and under the Notes at such time obtained by all
of the Lender Parties at such time, such Lender Party shall forthwith purchase
from the other Lender Parties such participations in the Obligations due and
payable or owing to them, as the case may be, as shall be necessary to cause
such purchasing Lender Party to share the excess payment ratably with each of
them; provided, however, that, if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender Party, such purchase from each
other Lender Party shall be rescinded and such other Lender Party shall repay to
the purchasing Lender Party the purchase price to the extent of such Lender
Party's ratable share (according to the proportion of (i) the purchase price
paid to such Lender Party to (ii) the aggregate purchase price paid to all
Lender Parties) of such recovery together with an amount equal to such Lender
Party's ratable share (according to the proportion of (i) the amount of such
other Lender Party's required repayment to (ii) the total amount so recovered
from the purchasing Lender Party) of any interest or other amount paid or
payable by the purchasing Lender Party
45
in respect of the total amount so recovered. The Borrower agrees that any Lender
Party so purchasing a participation from another Lender Party pursuant to this
Section 2.13 may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off) with respect to such
participation as fully as if such Lender Party were the direct creditor of the
Borrower in the amount of such participation.
Section 2.14 Use of Proceeds. The proceeds of (a) the Revolving Credit
Advances, the Swing Line Advances and the Letters of Credit shall only be
utilized (i)(A) to refinance the Existing Receivables Facility and (B) to
satisfy the obligations under the Credit Card Program as of the Petition Date in
the ordinary course of business, (ii) to pay costs and expenses in connection
with such refinancing and the Cases, and (iii) to provide financing for working
capital, letters of credit, capital expenditures and other general corporate
purposes of the Borrower and the Guarantors, provided that not more than
$200,000,000 in Available Amount of Letters of Credit may be issued to provide
credit support for Foreign Subsidiaries of the Borrower and (b) the Term
Advances shall only be utilized (i) to refinance Pre-Petition Secured
Indebtedness and to repay Revolving Credit Advances on the date of the Term
Advance, (ii) to pay costs and expenses in connection such refinancing and (iii)
for other general corporate purposes of the Loan Parties, provided, however,
that no amounts shall be paid pursuant to this Section 2.14 for fees and
disbursements incurred by any Loan Party in connection with any assertion or
prosecution of claims or causes of action against the Agents or any Lender
Party, including, without limitation, (x) any objection to, the contesting in
any manner of, or the raising of any defenses to, the validity, perfection,
priority or enforceability of the Obligations under this Agreement or the
Administrative Agent's Liens upon the Collateral, or (y) any other rights or
interest of the Agents or the Lender Parties under the Loan Documents but not
including assertions or prosecutions of claims and causes of action arising from
an Agent's or a Lender's failure to perform hereunder; provided, further, that,
the proceeds of the Advances shall be available, and the Borrower agrees that it
shall use all such proceeds in a manner consistent with the most recent Thirteen
Week Forecast.
Section 2.15 Defaulting Lenders. (a) In the event that, at any time,
(i) any Lender Party shall be a Defaulting Lender, (ii) such Defaulting Lender
shall owe a Defaulted Advance to the Borrower and (iii) the Borrower shall be
required to make any payment hereunder or under any other Loan Document to or
for the account of such Defaulting Lender, then the Borrower may, to the fullest
extent permitted by applicable law, set off and otherwise apply the Obligation
of the Borrower to make such payment to or for the account of such Defaulting
Lender against the obligation of such Defaulting Lender to make such Defaulted
Advance. In the event that, on any date, the Borrower shall so set off and
otherwise apply its obligation to make any such payment against the obligation
of such Defaulting Lender to make any such Defaulted Advance on or prior to such
date, the amount so set off and otherwise applied by the Borrower shall
constitute for all purposes of this Agreement and the other Loan Documents an
Advance by such Defaulting Lender made on the date under the Facility pursuant
to which such Defaulted Advance was originally required to have been made
pursuant to Section 2.01. Such Advance shall be considered, for all purposes of
this Agreement, to comprise part of the Borrowing in connection with which such
Defaulted Advance was originally required to have been made pursuant to Section
2.01, even if the other Advances comprising such Borrowing shall be Eurodollar
Rate Advances on the date such Advance is deemed to be made pursuant to this
subsection (a). The Borrower shall notify the Administrative Agent at any time
the Borrower exercises its right of set-off pursuant to this subsection (a) and
shall set forth in such notice (A) the name of the Defaulting Lender and the
Defaulted Advance required to be made by such Defaulting Lender and (B) the
amount set off and otherwise applied in respect of such Defaulted Advance
pursuant to this subsection (a). Any portion of such payment otherwise required
to be made by the Borrower to or for the account of such Defaulting Lender which
is paid by the Borrower, after giving effect to the amount set off and otherwise
applied by the Borrower pursuant to this subsection (a), shall be applied by the
Administrative Agent as specified in subsection (b) or (c) of this Section 2.15.
46
(b) In the event that, at any time, (i) any Lender Party shall be a
Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted Amount to
the Administrative Agent or any of the other Lender Parties and (iii) the
Borrower shall make any payment hereunder or under any other Loan Document to
the Administrative Agent for the account of such Defaulting Lender, then the
Administrative Agent may, on its behalf or on behalf of such other Lender
Parties and to the fullest extent permitted by applicable law, apply at such
time the amount so paid by the Borrower to or for the account of such Defaulting
Lender to the payment of each such Defaulted Amount to the extent required to
pay such Defaulted Amount. In the event that the Administrative Agent shall so
apply any such amount to the payment of any such Defaulted Amount on any date,
the amount so applied by the Administrative Agent shall constitute for all
purposes of this Agreement and the other Loan Documents payment, to such extent,
of such Defaulted Amount on such date. Any such amount so applied by the
Administrative Agent shall be retained by the Administrative Agent or
distributed by the Administrative Agent to such other Lender Parties, ratably in
accordance with the respective portions of such Defaulted Amounts payable at
such time to the Administrative Agent and such other Lender Parties and, if the
amount of such payment made by the Borrower shall at such time be insufficient
to pay all Defaulted Amounts owing at such time to the Administrative Agent and
the other Lender Parties, in the following order of priority:
(i) first, to the Administrative Agent for any Defaulted Amount then
owing to the Administrative Agent in its capacity as Administrative Agent;
and
(ii) second, to the Issuing Banks and the Swing Line Lender for any
Defaulted Amounts then owing to them, in their capacities as such, ratably
in accordance with such respective Defaulted Amounts then owing to the
Issuing Banks and the Swing Line Lender; and
(iii) third, to any other Lender Parties for any Defaulted Amounts
then owing to such other Lender Parties, ratably in accordance with such
respective Defaulted Amounts then owing to such other Lender Parties.
Any portion of such amount paid by the Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by the
Administrative Agent pursuant to this subsection (b), shall be applied by the
Administrative Agent as specified in subsection (c) of this Section 2.15.
(c) In the event that, at any time, (i) any Lender Party shall be a
Defaulting Lender, (ii) such Defaulting Lender shall not owe a Defaulted Advance
or a Defaulted Amount and (iii) the Borrower, the Administrative Agent or any
other Lender Party shall be required to pay or distribute any amount hereunder
or under any other Loan Document to or for the account of such Defaulting
Lender, then the Borrower or such other Lender Party shall pay such amount to
the Administrative Agent to be held by the Administrative Agent, to the fullest
extent permitted by applicable law, in escrow or the Administrative Agent shall,
to the fullest extent permitted by applicable law, hold in escrow such amount
otherwise held by it. Any funds held by the Administrative Agent in escrow under
this subsection (c) shall be deposited by the Administrative Agent in an account
with Citibank, N.A., in the name and under the control of the Administrative
Agent, but subject to the provisions of this subsection (c). The terms
applicable to such account, including the rate of interest payable with respect
to the credit balance of such account from time to time, shall be Citibank,
N.A.'s standard terms applicable to escrow accounts maintained with it. Any
interest credited to such account from time to time shall be held by the
Administrative Agent in escrow under, and applied by the Administrative Agent
from time to time in accordance with the provisions of, this subsection (c). The
Administrative Agent shall, to the fullest extent permitted by applicable law,
apply all funds so held in escrow from time to time to the extent necessary to
make any Advances required to be made by such Defaulting Lender and to pay any
amount payable by such Defaulting Lender hereunder and under the other Loan
Documents to the Administrative Agent or any other Lender Party, as and when
such Advances or amounts are required to be made or paid
47
and, if the amount so held in escrow shall at any time be insufficient to make
and pay all such Advances and amounts required to be made or paid at such time,
in the following order of priority:
(i) first, to the Administrative Agent for any amount then due and
payable by such Defaulting Lender to the Administrative Agent hereunder in
its capacity as Administrative Agent;
(ii) second, to the Issuing Banks and the Swing Line Lender for any
amounts then due and payable to them hereunder, in their capacities as
such, by such Defaulting Lender, ratably in accordance with such respective
amounts then due and payable to the Issuing Banks and the Swing Line
Lender;
(iii) third, to any other Lender Parties for any amount then due and
payable by such Defaulting Lender to such other Lender Parties hereunder,
ratably in accordance with such respective amounts then due and payable to
such other Lender Parties; and
(iv) fourth, to the Borrower for any Advance then required to be made
by such Defaulting Lender pursuant to a Commitment of such Defaulting
Lender.
In the event that any Lender Party that is a Defaulting Lender shall, at any
time, cease to be a Defaulting Lender, any funds held by the Administrative
Agent in escrow at such time with respect to such Lender Party shall be
distributed by the Administrative Agent to such Lender Party and applied by such
Lender Party to the Obligations owing to such Lender Party at such time under
this Agreement and the other Loan Documents ratably in accordance with the
respective amounts of such Obligations outstanding at such time.
(d) The rights and remedies against a Defaulting Lender under this
Section 2.15 are in addition to other rights and remedies that the Borrower may
have against such Defaulting Lender with respect to any Defaulted Advance and
that the Administrative Agent or any Lender Party may have against such
Defaulting Lender with respect to any Defaulted Amount.
Section 2.16 Evidence of Debt. (a) The Advances made by each Lender
shall be evidenced by one or more accounts or records maintained by such Lender
and by the Administrative Agent in the ordinary course of business. The accounts
or records maintained by the Administrative Agent and each Lender shall be
conclusive absent manifest error of the amount of the Advances made by the
Lenders to the Borrower and the interest and payments thereon. Any failure to so
record or any error in doing so shall not, however, limit or otherwise affect
the obligation of the Borrower hereunder to pay any amount owing with respect to
the Obligations. In the event of any conflict between the accounts and records
maintained by any Lender and the accounts and records of the Administrative
Agent in respect of such matters, the accounts and records of the Administrative
Agent shall control in the absence of manifest error. Upon the request of any
Lender made through the Administrative Agent, the Borrower shall execute and
deliver to such Lender (through the Administrative Agent) a Note, which shall
evidence such Lender's Advances in addition to such accounts or records. Each
Lender may attach schedules to its Note and endorse thereon the date, amount and
maturity of its Advances and payments with respect thereto.
(b) In addition to the accounts and records referred to in subsection
(a), each Lender and the Administrative Agent shall maintain in accordance with
its usual practice accounts or records evidencing the purchases and sales by
such Lender of participations in Letters of Credit. In the event of any conflict
between the accounts and records maintained by the Administrative Agent and the
accounts and records of any Lender in respect of such matters, the accounts and
records of the Administrative Agent shall control in the absence of manifest
error.
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Section 2.17 Priority and Liens. Subject to the limitations and
exclusions set forth in Section 9.01(e)(iii) hereof, each of the Borrower and
each Guarantor hereby covenants, represents and warrants that, upon entry of the
Interim Order, the Obligations of the Borrower and such Guarantor hereunder and
under the Loan Documents: (i) pursuant to Section 364(c)(1) of the Bankruptcy
Code, shall at all times constitute an allowed Superpriority Claim; (ii)
pursuant to Section 364(c)(2) of the Bankruptcy Code, shall at all times be
secured by a perfected first priority Lien on all unencumbered tangible and
intangible property of the Borrower and such Guarantor and on all cash
maintained in the L/C Cash Collateral Account and any investments of the funds
contained therein, including any such property that is subject to valid and
perfected Liens in existence on the Petition Date, which Liens are thereafter
released or otherwise extinguished in connection with the satisfaction of the
obligations secured by such Liens (excluding any avoidance actions under the
Bankruptcy Code (but including the proceeds therefrom)); (iii) pursuant to
Section 364(c)(3) of the Bankruptcy Code, shall be secured by a perfected Lien
upon all real, personal and mixed property of the Borrower and such Guarantor
that is subject to valid and perfected liens in existence on the Petition Date,
junior to such valid and perfected Liens; and (iv) pursuant to Section
364(d)(1), shall be secured by a perfected priming Lien upon all tangible and
intangible property of the Borrower and such Guarantor that presently secure the
Pre-Petition Secured Indebtedness, subject and subordinated in each case with
respect to clauses (i) through (iv) above, only to the Carve-Out. Except for the
Carve-Out having priority over the Obligations, the Superpriority Claims shall
at all times be senior to the rights of the Borrower, each Guarantor, any
chapter 11 trustee and, subject to section 726 of the Bankruptcy Code, any
chapter 7 trustee, or any other creditor (including, without limitation,
post-petition counterparties and other post-petition creditors) in the Cases or
any subsequent proceedings under the Bankruptcy Code, including, without
limitation, any chapter 7 cases if any of the Borrower's or the Guarantor's
cases are converted to cases under chapter 7 of the Bankruptcy Code.
Section 2.18 Payment of Obligations. Subject to the provisions of
Section 6.01 and the DIP Financing Orders, upon the maturity (whether by
acceleration or otherwise) of any of the Obligations under this Agreement or any
of the other Loan Documents of the Borrower and the Guarantors, the Lender
Parties shall be entitled to immediate payment of such Obligations without
further application to or order of the Bankruptcy Court.
Section 2.19 No Discharge: Survival of Claims. Each of the Borrower
and each Guarantor agree that (i) its obligations hereunder shall not be
discharged by the entry of an order confirming any Reorganization Plan (and each
of the Borrower and each Guarantor, pursuant to Section 1141(d)(4) of the
Bankruptcy Code hereby waives any such discharge), (ii) the Superpriority Claim
granted to the Administrative Agent and the Lender Parties pursuant to the Order
and described in Section 2.17 and the Liens granted to the Administrative Agent
and the Lender Parties pursuant to the Order and described in Section 2.17 shall
not be affected in any manner by the entry of any order by the Bankruptcy Court,
including an order confirming any Reorganization Plan, and (iii) notwithstanding
the terms of any Reorganization Plan, its Obligations hereunder and under each
other Loan Document shall be repaid in full in accordance with the terms hereof
and the terms of each other Loan Document, the Interim Order, and the Final
Order.
Section 2.20 Replacement of Certain Lenders.
In the event a Lender ("Affected Lender") shall have (i) become a
Defaulting Lender under Section 2.15, (ii) requested compensation from the
Borrowers under Section 2.12 with respect to Taxes or Other Taxes or with
respect to increased costs or capital or under Section 2.10 or other additional
costs incurred by such Lender which, in any case, are not being incurred
generally by the other Lenders, or (iii) delivered a notice pursuant to Section
2.10(d) claiming that such Lender is unable to extend Eurodollar Rate Advances
to the Borrower for reasons not generally applicable to the other
49
Lenders, then, in any case, the Borrower or the Administrative Agent may make
written demand on such Affected Lender (with a copy to the Administrative Agent
in the case of a demand by the Borrower and a copy to the Borrower in the case
of a demand by the Administrative Agent) for the Affected Lender to assign, and
such Affected Lender shall use commercially reasonable efforts to assign
pursuant to one or more duly executed Assignments and Acceptances 5 Business
Days after the date of such demand, to one or more financial institutions that
comply with the provisions of Section 10.07 which the Borrower or the
Administrative Agent, as the case may be, shall have engaged for such purpose
("Replacement Lender"), all of such Affected Lender's rights and obligations
under this Agreement and the other Loan Documents (including, without
limitation, its Commitment, all Advances owing to it, all of its participation
interests in existing Letters of Credit, and its obligation to participate in
additional Letters of Credit hereunder) in accordance with Section 10.07. The
Administrative Agent is authorized to execute one or more of such Assignments
and Acceptances as attorney-in-fact for any Affected Lender failing to execute
and deliver the same within 5 Business Days after the date of such demand.
Further, with respect to such assignment, the Affected Lender shall have
concurrently received, in cash, all amounts due and owing to the Affected Lender
hereunder or under any other Loan Document; provided that upon such Affected
Lender's replacement, such Affected Lender shall cease to be a party hereto but
shall continue to be entitled to the benefits of Sections 2.10 and 10.04, as
well as to any fees accrued for its account hereunder and not yet paid, and
shall continue to be obligated under Section 7.07 with respect to losses,
obligations, liabilities, damages, penalties, actions, judgments, costs,
expenses or disbursements for matters which occurred prior to the date the
Affected Lender is replaced.
ARTICLE III
CONDITIONS TO EFFECTIVENESS
Section 3.01 Conditions Precedent to Effectiveness. The effectiveness
of this agreement, the obligation of the Revolving Credit Lenders to make
Revolving Credit Advance up to the Revolving Credit Availability Amount then in
effect, the obligation of the Initial Swing Line Lender to make the initial
Swing Line Advance and obligation of the Initial Issuing Banks to issue the
initial Letter of Credit are, in each case, subject to the satisfaction of the
following conditions precedent (other than those conditions specified in
Schedule 5.01(n)(iii)):
(a) The Administrative Agent shall have received on or before the
Effective Date the following, each dated such day (unless otherwise
specified), in form and substance reasonably satisfactory to the Initial
Lenders (unless otherwise specified) and (except for the Notes) in
sufficient copies for each Initial Lender:
(i) The Notes payable to the order of the Lenders to the extent
requested in accordance with Section 2.16(a).
(ii) Certified copies of the resolutions of the Boards of
Directors of each of the Borrower and each Guarantor approving the
execution and delivery of this Agreement, and of all documents
evidencing other necessary constitutive action and, if any,
governmental and other third party approvals and consents, if any,
with respect to this Agreement and each other Loan Document other than
any approval required and granted pursuant to the Interim Order.
(iii) A copy of the charter or other constitutive document of
each Guarantor and each amendment thereto, certified (as of a date on
or after November 15, 2005) by
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the Secretary of State of the jurisdiction of its incorporation or
organization, as the case may be, thereof as being a true and correct
copy thereof.
(iv) A certificate of each of the Borrower and each Material
Guarantor signed on behalf of the Borrower and such Guarantor,
respectively, by its President or a Vice President and its Secretary
or any Assistant Secretary, dated the Effective Date (the statements
made in which certificate shall be true on and as of the Effective
Date), certifying as to (A) the accuracy and completeness of the
charter of the Borrower or such Guarantor and the absence of any
changes thereto; (B) the accuracy and completeness of the bylaws of
the Borrower or such Guarantor as in effect on the date on which the
resolutions of the board of directors (or persons performing similar
functions) of such Person referred to in Section 3.01(a)(ii) were
adopted and the absence of any changes thereto (a copy of which shall
be attached to such certificate); (C) the absence of any proceeding
known to be pending for the dissolution, liquidation or other
termination of the existence of the Borrower or any Guarantor; (D) the
accuracy in all material respects of the representations and
warranties made by the Borrower or such Guarantor in the Loan
Documents to which it is or is to be a party as though made on and as
of the Effective Date, before and after giving effect to all of the
Borrowings and the issuance of all of the Letters of Credit to be made
on such date and to the application of proceeds, if any, therefrom;
and (E) the absence of any event occurring and continuing, or
resulting from any of the Borrowings or the issuance of any of the
Letters of Credit to be made on the Effective Date or the application
of proceeds, if any, therefrom, that would constitute a Default.
(v) A certificate of the Secretary or an Assistant Secretary of
each of the Borrower and each Material Guarantor certifying the names
and true signatures of the officers of the Borrower and such
Guarantor, respectively, authorized to sign this Agreement and the
other documents to be delivered hereunder.
(vi) The following: (A) such certificates representing the
Initial Pledged Equity of domestic entities referred to on Schedule V
hereto, accompanied by undated stock powers, duly executed in blank,
and such instruments evidencing the Initial Pledged Debt referred to
on Schedule V hereto, duly indorsed in blank, as the Loan Parties may
be able to deliver using their reasonable best efforts, (B) proper
financing statements (Form UCC-1 or a comparable form) under the UCC
of all jurisdictions that the Initial Lenders may deem necessary or
desirable in order to perfect and protect the liens and security
interest created or purported to be created under Article IX hereof,
covering the Collateral described in Article IX hereof, in each case
completed in a manner reasonably satisfactory to the Lender Parties,
and (C) evidence of insurance as reasonably requested by the Initial
Lenders.
(vii) An intellectual property security agreement (as amended,
supplemented or otherwise modified from time to time in accordance
with its terms, the "Intellectual Property Security Agreement"), duly
executed by each Loan Party, together with evidence that all actions
that the Initial Lenders may deem reasonably necessary or desirable in
order to perfect and protect the first priority liens and security
interests created under the Intellectual Property Security Agreement
have been taken or will be taken in accordance with the terms of the
Loan Documents.
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(viii) A Thirteen Week Forecast detailing the Borrower's
anticipated cash receipts and disbursements reasonably satisfactory in
form and substance to the Initial Lenders.
(ix) A Notice of Borrowing for any Borrowing to be made, and/or
one or more Letter of Credit Applications for each Letter of Credit to
be issued, on the Effective Date.
(x) A favorable opinion of (A) ▇▇▇▇▇ Day, counsel to the Loan
Parties, in substantially the form of Exhibit D-1 hereto, and
addressing such other matters as the Initial Lenders may reasonably
request, (B) Hunton & ▇▇▇▇▇▇▇▇ LLP, Virginia and Delaware counsel to
the Loan Parties, in substantially the form of Exhibit D-2 hereto, and
addressing such other matters as the Initial Lenders may reasonably
request and (C) ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan counsel to
the Loan Parties, in substantially the form of Exhibit D-3 hereto and
addressing such other matters as the Initial Lenders may reasonably
request.
(b) Interim Order. At the time of the Initial Extension of Credit, the
Bankruptcy Court shall have entered an order in substantially the form of
Exhibit E (the "Interim Order") approving the Loan Documents and granting
the Superpriority Claim status and the Liens described in Section 2.17.
(c) First Day Orders. All of the First Day Orders entered by the
Bankruptcy Court at the time of commencement of the Cases shall be in form
and substance reasonably satisfactory to the Initial Lenders.
(d) Payment of Fees. The Borrower shall have paid all accrued fees and
expenses of the Lead Arrangers, the Administrative Agent and the Initial
Lenders.
Section 3.02 Conditions Precedent to Each Borrowing and Each Issuance
of a Letter of Credit. Each of (a) the obligation of each Appropriate Lender to
make an Advance (other than a Letter of Credit Advance to be made by the Issuing
Banks or a Lender pursuant to Section 2.03(c) and as set forth in Section
2.02(b) with respect to the Swing Line Advances made by a Lender) on the
occasion of each Borrowing, and (b) the obligation of the Issuing Banks to issue
a Letter of Credit (including the initial issuance of a Letter of Credit
hereunder) or to renew a Letter of Credit and the right of the Borrower to
request a Swing Line Borrowing, shall be subject to the further conditions
precedent that on the date of such Borrowing, issuance or renewal:
(i) the following statements shall be true (and each of the giving of
the applicable Notice of Borrowing or Letter of Credit Application and the
acceptance by the Borrower of the proceeds of such Borrowing or the
issuance or renewal of such Letter of Credit, as the case may be, shall
constitute a representation and warranty by the Borrower that both on the
date of such notice and on the date of such Borrowing, issuance or renewal
such statements are true):
(A) the representations and warranties contained in each Loan
Document, are correct in all material respects on and as of such date,
before and after giving effect to such Borrowing, issuance or renewal
and to the application of the proceeds therefrom, as though made on
and as of such date, other than any such representations or warranties
that, by their terms, refer to a specific date other than the date of
such Borrowing, issuance or renewal, in which case as of such specific
date;
52
(B) no event has occurred and is continuing, or would result from
such Borrowing, issuance or renewal or from the application of the
proceeds, if any, therefrom, that constitutes a Default; and
(C) the Interim Order is in full force and effect and has not
been stayed, reversed, modified or amended in any respect without the
prior written consent of the Initial Lenders, provided that at the
time of the making of any Advance or the issuance of any Letter of
Credit the amount of either of which, when added to the sum of the
aggregate Advances outstanding and the aggregate Available Amount of
all Letters of Credit then outstanding, would exceed the amount
authorized by the Interim Order (collectively, the "Additional
Credit"), the Administrative Agent and each of the Lenders shall have
received a copy of an order of the Bankruptcy Court in substantially
the form of Exhibit F hereto (the "Final Order"), which, in any event,
shall have been entered by the Bankruptcy Court no later than 45 days
after entry of the Interim Order and at the time of the extension of
any Additional Credit the Final Order shall be in full force and
effect, shall authorize extensions of credit in respect of the
Revolving Credit Facility and the Swing Line Facility in the aggregate
amount up to the Revolving Credit Availability Amount and in respect
of the Term Facility in the amount up to $700,000,000, and shall not
have been stayed, reversed, modified or amended in any respect that is
adverse to the Lender Parties without the prior written consent of the
Initial Lenders; and if either the Interim Order or the Final Order is
the subject of a pending appeal in any respect, neither the making of
Advances nor the issuance of any Letter of Credit nor the performance
by the Borrower or the Guarantor of any of their respective
obligations under any of the Loan Documents shall be the subject of a
presently effective stay pending appeal; and
Section 3.03 Conditions Precedent to the Term Borrowing. The
obligation of each Term Lender to make its Term Loan is subject to the
satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received a Notice of Borrowing
with respect to such Borrowing as required by Section 2.02.
(b) The Final Order shall have been entered by the Bankruptcy Court.
(c) The Borrower shall have furnished to the Administrative Agent (i)
the DIP Budget, which shall be reasonably satisfactory to the
Administrative Agent and the Initial Lenders and (ii) the unaudited
Consolidated balance sheet of the Borrower and its Subsidiaries as at
December 31, 2005, and the related unaudited Consolidated statements of
income and cash flows of the Borrower and its Subsidiaries for the Fiscal
Year then ended, each in form and substance reasonably satisfactory to the
Initial Lenders.
(d) The Loan Parties and the Lenders shall have entered into the
Borrowing Base Amendment.
(e) The Borrower shall have used commercially reasonable efforts to
obtain debt ratings for the Facilities from each of Moody's and S&P.
(f) The Borrower shall have paid to the Administrative Agent and the
Lead Arrangers the then unpaid balance of all accrued and unpaid fees of
the Administrative Agent and the Lead Arrangers, and the reasonable fees
and out-of-pocket expenses of counsel to the Administrative Agent and the
Lead Arrangers as to which invoices have been issued.
53
(g) The conditions set forth in Sections 3.01 and 3.02 shall have been
satisfied.
Section 3.04 Determinations Under Sections 3.01 and 3.03. For purposes
of determining compliance with the conditions specified in Sections 3.01 and
3.03, each Lender Party shall be deemed to have consented to, approved or
accepted or to be satisfied with each document or other matter required
thereunder to be consented to or approved by or acceptable or satisfactory to
the Lender Parties unless an officer of the Administrative Agent responsible for
the transactions contemplated by the Loan Documents shall have received notice
from such Lender Party prior to the Effective Date specifying its objection
thereto, and if a Borrowing occurs on the Effective Date, such Lender Party
shall not have made available to the Administrative Agent such Lender Party's
ratable portion of such Borrowing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01 Representations and Warranties of the Loan PartiesEach
Loan Party represents and warrants as follows:
(a) Each of the Borrower and its Material Subsidiaries (i) is a
corporation, partnership, limited liability company or other organization
duly organized, validly existing and in good standing (or to the extent
such concept is applicable to a non-U.S. entity, the functional equivalent
thereof) under the laws of the jurisdiction of its incorporation or
formation except where the failure to be in good standing (or the
functional equivalent), individually or in the aggregate, would not have a
Material Adverse Effect, (ii) is duly qualified as a foreign corporation
(or other entity) and in good standing (or the functional equivalent
thereof, if applicable) in each other jurisdiction in which it owns or
leases property or in which the conduct of its business requires it to so
qualify or be licensed, except where the failure to so qualify or be
licensed and in good standing (or the functional equivalent thereof, if
applicable), individually or in the aggregate, would not reasonably be
expected to result in a Material Adverse Effect, and (iii) subject to the
entry of the Interim Order by the Bankruptcy Court, has all requisite power
and authority (including, without limitation, all governmental licenses,
permits and other approvals) to own or lease and operate its properties and
to carry on its business as now conducted and as proposed to be conducted,
except where the failure to have such power or authority, individually or
in the aggregate, would not reasonably be expected to result in a Material
Adverse Effect. As of the Effective Date, all of the outstanding capital
stock of each Loan Party (other than the Borrower) has been validly issued,
is fully paid and non-assessable and is owned by the Persons listed on
Schedule 4.01 hereto in the percentages specified on Schedule 4.01 hereto
free and clear of all Liens, except those created under the Collateral
Documents or otherwise permitted under Section 5.02(a) hereof.
(b) Set forth on Schedule 4.01 hereto is a complete and accurate list
of all Subsidiaries of the Borrower (other than DCC and its Subsidiaries as
of the Effective Date), showing as of the Effective Date (as to each such
Subsidiary) the jurisdiction of its incorporation or organization, as the
case may be, and the percentage of the Equity Interests owned (directly or
indirectly) by the Borrower or its Subsidiaries.
(c) The execution, delivery and performance by each Loan Party of this
Agreement, the Notes and each other Loan Document to which it is or is to
be a party, and the consummation of each aspect of the transactions
contemplated hereby, are within such Loan Party's constitutive powers, have
been duly authorized by all necessary constitutive action, and do not (i)
contravene such Loan Party's constitutive documents, (ii) subject to the
entry of the Interim Order by the
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, violate any applicable law (including, without
limitation, the Securities Exchange Act of 1934), rule, regulation
(including, without limitation, Regulation X of the Board of Governors of
the Federal Reserve System), order, writ, judgment, injunction, decree,
determination or award, (iii) conflict with or result in the breach of, or
constitute a default under, any contract, loan agreement, indenture,
mortgage, deed of trust, lease or other instrument binding on or affecting
any Loan Party, or any of their properties entered into by such Loan Party
after the Petition Date except, in each case, other than any conflict,
breach or violation which, individually or in the aggregate would not
reasonably be expected to have a Material Adverse Effect or (iv) except for
the Liens created under the Loan Documents, the Interim Order and the Final
Order, result in or require the creation or imposition of any Lien upon or
with respect to any of the properties of any Loan Party or any of its
Subsidiaries.
(d) Except for the entry of the DIP Financing Orders, filings or
recordings already made or to be made pursuant to any federal law, rule or
regulation or filings or recordings to be made in any jurisdiction outside
of the United States, no authorization, approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body or
any other third party is required for (i) the due execution, delivery,
recordation, filing or performance by any Loan Party of this Agreement, the
Notes or any other Loan Document to which it is or is to be a party, or for
the consummation of each aspect of the transactions contemplated hereby,
(ii) the grant by any Loan Party of the Liens granted by it pursuant to the
Collateral Documents, (iii) the perfection or maintenance of the Liens
created under the Collateral Documents (including the requisite priority
set forth in the DIP Financing Orders) or (iv) subject to the DIP Financing
Orders, the exercise by the Administrative Agent or any Lender Party of its
rights under the Loan Documents or the remedies in respect of the
Collateral pursuant to the Collateral Documents.
(e) This Agreement has been, and each of the Notes, if any, and each
other Loan Document when delivered hereunder will have been, duly executed
and delivered by each Loan Party thereto. This Agreement is, and each of
the Notes and each other Loan Document when delivered hereunder will be,
subject to the entry of the Interim Order by the Bankruptcy Court, the
legal, valid and binding obligation of each Loan Party thereto, enforceable
against such Loan Party in accordance with its terms.
(f) The Consolidated balance sheet of the Borrower and its
Subsidiaries as at December 31, 2004, and the related Consolidated
statements of income and cash flows of the Borrower and its Subsidiaries
for the Fiscal Year then ended, and the interim Consolidated balance sheets
of the Borrower and its Subsidiaries as at March 31, 2005, June 30, 2005,
and September 30, 2005 and the related Consolidated statements of income
and cash flows of the Borrower and its Subsidiaries for the respective
periods then ended, in each case as restated, which have been furnished to
each Lender Party present fairly the financial condition and results of
operations of the Borrower and its Subsidiaries as of such dates and for
such periods all in accordance with GAAP consistently applied (subject to
year-end adjustments and in the case of unaudited financial statements,
except for the absence of footnote disclosure). Since December 31, 2004,
there has not occurred a Material Adverse Change.
(g) The DIP Budget and all projected Consolidated balance sheets,
income statements and cash flow statements of the Borrower and its
Subsidiaries delivered to the Lender Parties pursuant to Section 5.03(f)
were prepared and will be prepared, as applicable, in good faith on the
basis of the assumptions stated therein, which assumptions were fair and
will be fair in the light of conditions existing at the time of delivery of
such DIP Budget or projections, as the case may be, and represented and
will represent, at the time of delivery, the Borrower's best estimate of
its future financial performance.
55
(h) Neither the Confidential Information Memorandum nor any other
written information, exhibits and reports furnished by or on behalf of any
Loan Party to the Administrative Agent or any Lender Party on or after
February 4, 2006 in connection with any Loan Document (other than to the
extent that any such information, exhibits and reports constitute
projections described in Section 4.01(g) above and any historical financial
information delivered prior to the restatement thereof by the Borrower and
its auditors) taken as a whole and in light of the circumstances in which
made, contained any untrue statement of a material fact or omitted to state
a material fact necessary to make the statements made therein, in light of
the circumstances in which any such statements were made, not misleading.
(i) Except as set forth on Schedule 4.01(i) or as disclosed in any SEC
filings, there is no action, suit, or proceeding affecting the Borrower or
any of its Material Subsidiaries pending or, to the best knowledge of the
Loan Parties, threatened before any court, governmental agency or
arbitrator that (i) is reasonably expected to be determined adversely to
the Loan Party and, if so adversely determined, would reasonably be
expected to have a Material Adverse Effect or (ii) purports to affect the
legality, validity or enforceability of this Agreement, any Note or any
other Loan Document.
(j) The Borrower is not engaged in the business of extending credit
for the purpose of purchasing or carrying Margin Stock, and no proceeds of
any Advance or any drawing under any Letter of Credit will be used to
purchase or carry any Margin Stock or to extend credit to others for the
purpose of purchasing or carrying any Margin Stock.
(k) Other than the filing of the Cases and events related to such
filing, no ERISA Event has occurred or is reasonably expected to occur with
respect to any Plan that has resulted in or is reasonably expected to
result in a Material Adverse Effect.
(l) The present value of all accumulated benefit obligations under
each Plan (based on the assumptions used for purposes of Statement of
Financial Accounting Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed the fair market
value of the assets of such Plan by an amount which, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
The present value of all accumulated benefit obligations of all underfunded
Plans (based on the assumptions used for purposes of Statement of Financial
Accounting Standards No. 87) did not, as of the date of the most recent
financial statements reflecting such amounts, exceed the fair market value
of the assets of all such underfunded Plans by an amount which could
reasonably be expected to have a Material Adverse Effect. Neither the
Borrower, its Material Subsidiaries, nor any ERISA Affiliates has incurred
or is reasonably expected to incur any material withdrawal liability (as
defined in Part I of Subtitle E of Title IV of ERISA) under any
multiemployer plan.
(m) Except as set forth in Schedule 4.01(m) hereto, the operations and
properties of each Loan Party and each of its Material Subsidiaries comply
with all applicable Environmental Laws and Environmental Permits except for
non-compliance that could not be reasonably likely to have a Material
Adverse Effect, all past non compliance with such Environmental Laws and
Environmental Permits has been resolved in a manner that could not be
reasonably likely to have a Material Adverse Effect, and, to the knowledge
of the Loan Parties after reasonable inquiry, no circumstances exist that
would be reasonably likely to (i) form the basis of an Environmental Action
against any Loan Party or any of its Material Subsidiaries or any of their
properties that could be reasonably likely to have a Material Adverse
Effect or (ii) cause any such property to be subject to any restrictions on
ownership, occupancy, use or transferability under any Environmental Law
that could be reasonably likely to have a Material Adverse Effect.
56
(n) The DIP Financing Orders and the Collateral Documents create a
valid and perfected security interest in the Collateral having the priority
set forth therein securing the payment of the Secured Obligations, and all
filings and other actions necessary or desirable, as determined in the
reasonable discretion of the Initial Lenders, to perfect and protect such
security interest have been duly taken, except that the execution and
delivery of local law governed pledge or analogous documentation with
respect to Equity Interests in Subsidiaries of the Borrower organized in
jurisdictions outside the United States, and the filing, notarization,
registration or other publication thereof, and the taking of other actions,
if any, required under local law of the relevant jurisdictions of
organization for the effective grant and perfection of a Lien on such
Equity Interests under laws of such jurisdictions of organization outside
the United States, may be required in order to fully grant, perfect and
protect such security interest under such local laws. The Loan Parties are
the legal and beneficial owners of the Collateral free and clear of any
Lien, except for the liens and security interests created or permitted
under the Loan Documents.
(o) Neither the making of any Advances, nor the issuance of any
Letters of Credit, nor the application of the proceeds or repayment thereof
by the Borrowers, nor the consummation of the other transactions
contemplated by the Loan Documents, will violate any provision of the
Investment Company Act of 1940, as amended, or any rule, regulation or
order of the Securities and Exchange Commission thereunder.
(p) Each Loan Party and each of its Subsidiaries has filed or caused
to be filed all tax returns and reports (federal, state, local and foreign)
which are required to have been filed and has paid or caused to be paid all
taxes required to have been paid by it, together with applicable interest
and penalties, except (a) taxes that are being contested in good faith by
appropriate proceedings and for which such Borrower or such Subsidiary, as
applicable, has set aside on its books adequate reserves or (b) to the
extent that the failure to do so could not reasonably be expected to result
in a Material Adverse Effect.
ARTICLE V
COVENANTS OF THE LOAN PARTIES
Section 5.01 Affirmative Covenants. So long as any Advance shall
remain unpaid, any Letter of Credit shall be outstanding or any Lender Party
shall have any Commitment hereunder, each Loan Party will:
(a) Corporate Existence. Preserve and maintain in full force and
effect all governmental rights, privileges, qualifications, permits,
licenses and franchises necessary or desirable in the normal conduct of its
business except (i)(A) if in the reasonable business judgment of the
Borrower or such Guarantor, as the case may be, it is in its best economic
interest not to preserve and maintain such rights, privileges,
qualifications, permits, licenses and franchises and the loss thereof is
not materially disadvantageous to the Loan Parties, taken as a whole, and
(B) such failure to preserve the same could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect, and (ii) as
otherwise permitted by Section 5.02(h).
(b) Compliance with Laws. Comply with all laws, rules, regulations and
orders of any governmental authority applicable to it or its property, such
compliance to include without limitation, ERISA, Environmental Laws and The
Racketeer Influenced and Corrupt Organizations Chapter of The Organized
Crime Control Act of 1970, except where the failure to do so, individually
or in the aggregate, would not reasonably be expected to result in a
Material Adverse Effect.
57
(c) Insurance. Keep its insurable properties insured at all times,
against such risks, including fire and other risks insured against by
extended coverage, as is customary with companies of the same or similar
size in the same or similar businesses (subject to deductibles and
including provisions for self-insurance); and maintain in full force and
effect public liability insurance against claims for personal injury or
death or property damage occurring upon, in, about or in connection with
the use of any properties owned, occupied or controlled by the Borrower or
any Guarantor, as the case may be, in such amounts and with such
deductibles as are customary with companies of the same or similar size in
the same or similar businesses and in the same geographic area and in each
case with financially sound and reputable insurance companies (subject to
provisions for self-insurance).
(d) Obligations and Taxes. Pay all its obligations arising after the
Petition Date promptly and in accordance with their terms and pay and
discharge and cause each of its Subsidiaries to pay and discharge promptly
all taxes, assessments and governmental charges or levies imposed upon it
or upon its income or profits or in respect of its property arising, or
attributed to the period, after the Petition Date, before the same shall
become in default, as well as all lawful claims for labor, materials and
supplies or otherwise arising after the Petition Date which, if unpaid,
would become a Lien or charge upon such properties or any part thereof;
provided, however, that the Borrower and each Guarantor shall not be
required to pay and discharge or to cause to be paid and discharged any
such tax, assessment, charge, levy or claim so long as the (i) payment or
discharge thereof shall be stayed by Section 362(a)(8) of the Bankruptcy
Code, or (ii) the validity or amount thereof shall be contested in good
faith by appropriate proceedings, in each case, if the Borrower and the
Guarantors shall have set aside on their books adequate reserves therefor
in conformity with GAAP.
(e) Access to Books and Records.
(i) Maintain or cause to be maintained at all times true and complete
books and records in accordance with GAAP of the financial operations of
the Borrower and the Guarantors; and provide the Lender Parties and their
representatives access to all such books and records during regular
business hours upon reasonable advance notice, in order that the Lender
Parties may examine and make abstracts from such books, accounts, records
and other papers for the purpose of verifying the accuracy of the various
reports delivered by the Borrower or the Guarantors to any Agent or the
Lenders pursuant to this Agreement or for otherwise ascertaining compliance
with this Agreement and to discuss the affairs, finances and condition of
the Borrower and the Guarantors with the officers and independent
accountants of the Borrower; provided that the Borrower shall have the
right to be present at any such visit or inspection.
(ii) Grant the Lender Parties access to and the right to inspect all
reports, audits and other internal information of the Borrower and the
Guarantors relating to environmental matters upon reasonable advance
notice, but subject to appropriate limitations so as to preserve
attorney-client privilege.
(iii) At any reasonable time and from time to time during regular
business hours, upon reasonable notice, permit the Initial Lenders and/or
any representatives designated by the Initial Lenders (including any
consultants, accountants, lawyers and appraisers retained by the Initial
Lenders) to visit the properties of the Borrower and the Guarantors to
conduct evaluations, appraisals, environmental assessments and ongoing
maintenance and monitoring in connection with the Borrower's computation of
the Borrowing Base and the assets included in the Borrowing Base and such
other assets and properties of the Borrower or its Subsidiaries as the
Initial Lenders may require, and to monitor the Collateral and all related
systems; provided that the Borrower
58
shall have the right to be present at any such visit and, unless an Event
of Default has occurred and is continuing, such visits permitted under this
clause (iii) shall be coordinated through the Administrative Agent and
shall be made no more frequently than once in any fiscal quarter.
(f) Use of Proceeds. Use the proceeds of the Advances solely for the
purposes, and subject to the restrictions, set forth in Section 2.14.
(g) Restructuring Advisor; Financial Advisor. Retain at all times (i)
a restructuring advisor and (ii) a financial advisor that, in each case,
has substantial experience and expertise advising Chapter 11
debtors-in-possession in large and complex bankruptcy cases; provided that
the Loan Parties shall be permitted to replace any such advisor with any
another advisor satisfying the requirements of this subsection (g) and
shall be permitted a period a time (not to exceed 10 Business Days) to file
an application with the Bankruptcy Court to employ such replacement
advisor.
(h) Priority. Acknowledge pursuant to Section 364(c)(1) of the
Bankruptcy Code, the Obligations of the Loan Parties hereunder and under
the other Loan Documents constitute allowed Superpriority Claims.
(i) Validity of Loan Documents. Use its best efforts to object to any
application made on behalf of any Loan Party or by any Person to the
validity of any Loan Document or the applicability or enforceability of any
Loan Document or which seeks to void, avoid, limit, or otherwise adversely
affect the security interest created by or in any Loan Document or any
payment made pursuant thereto.
(j) Maintenance of Cash Management System. Maintain a cash management
system on terms reasonably acceptable to the Initial Lenders, it being
acknowledged that the Cash Management System of the Borrower as in effect
on the Effective Date is reasonably acceptable to the Initial Lenders.
(k) Account Control Agreements. (i) Maintain, with respect to lockbox
or other blocked accounts maintained in connection with the Existing
Receivables Facility immediately prior to the termination thereof, and (ii)
obtain and deliver to the Administrative Agent no later than 30 days
following the Effective Date (or such later date as the Initial Lenders may
reasonably determine), with respect to all other lockbox and deposit
accounts (other than disbursement accounts maintained in the ordinary
course of business consistent with past practices), account control
agreements with respect to all such lockboxes and other deposit accounts of
the Borrower and each Guarantor in form and substance reasonably
satisfactory to the Administrative Agent; provided, however, that this
Section 5.01(k) shall not apply to (i) cash collateral accounts for Hedge
Agreements, letters of credit, surety bonds and existing equipment leases
(solely for purposes of collateralizing such letters of credit, surety
bonds and existing equipment leases and solely to the extent permitted by
Section 5.02(a)), (ii) payroll accounts maintained in the ordinary course
of business, (iii) disbursement accounts maintained in the ordinary course
of business for the prompt disbursement of amounts payable in the ordinary
course of business, and (iv) deposit accounts to the extent the aggregate
amount on deposit in each such deposit account does not exceed $1,000,000
at any time and the aggregate amount on deposit in all deposit accounts
under this clause (iv) does not exceed $5,000,000 at any time.
(l) Additional Guarantors. Cause each Material Subsidiary that
hereafter becomes party to a Case to execute a Guaranty Supplement within
10 days of becoming party thereto; provided, however, that notwithstanding
the foregoing, no subsidiary will be required to become
59
or remain a Guarantor or provide or maintain a lien on any of its assets as
security for any of the Obligations (A) if such Subsidiary is not a
wholly-owned Subsidiary; or (B) to the extent doing so would (1) result in
any adverse tax consequences or (2) be prohibited by any applicable law.
(m) DIP Budget; Financial Statements. Furnish to the Administrative
Agent (i) a DIP Budget which shall be reasonably satisfactory to the
Administrative Agent and the Initial Lenders and (ii) the unaudited
Consolidated balance sheet of the Borrower and its Subsidiaries as at
December 31, 2005, and the related unaudited Consolidated statements of
income and cash flows of the Borrower and its Subsidiaries for the Fiscal
Year then ended, in each case not later than March 22, 2006.
(n) Further Assurances.
(i) Promptly upon reasonable request by any Agent, or any Lender
Party through the Administrative Agent, correct, and cause each of its
Subsidiaries promptly to correct, any material defect or error that
may be discovered in any Loan Document or in the execution,
acknowledgment, filing or recordation thereof
(ii) Promptly upon reasonable request by any Agent, or any Lender
Party through the Administrative Agent, do, execute, acknowledge,
deliver, record, re-record, file, re-file, register and re-register
any and all such further acts, deeds, conveyances, pledge agreements,
mortgages, deeds of trust, trust deeds, assignments, financing
statements and continuations thereof, termination statements, notices
of assignment, transfers, certificates, assurances and other
instruments as any Agent, or any Lender Party through the
Administrative Agent, may reasonably require from time to time in
order to (A) carry out more effectively the purposes of the Loan
Documents, (B) to the fullest extent permitted by applicable law,
subject any Loan Party's properties, assets, rights or interests to
the Liens now or hereafter required to be covered by any of the
Collateral Documents, (C) perfect and maintain the validity,
effectiveness and priority of any of the Collateral Documents and any
of the Liens required to be created thereunder and (D) assure, convey,
grant, assign, transfer, preserve, protect and confirm more
effectively unto the Secured Parties the rights granted or now or
hereafter intended to be granted to the Secured Parties under any Loan
Document or under any other instrument executed in connection with any
Loan Document to which any Loan Party or any of its Subsidiaries is or
is to be a party, and cause each of its Subsidiaries to do so.
(iii) Promptly take, or cause to be taken, each action set forth
in Schedule 5.01(n)(iii) to be taken by such Loan Party within the
time period specified for such action to be taken on such schedule.
(o) Maintenance of Properties, Etc. Maintain and preserve all of its
properties that are used or useful in the conduct of its business in good
working order and condition, ordinary wear and tear excepted, and will from
time to time make or cause to be made all appropriate repairs, renewals and
replacements thereof except where failure to do so would not have a
Material Adverse Effect; provided that, this subsection (o) shall not
prohibit the sale, transfer or other disposition of any such property
consummated in accordance with the other terms of this Agreement.
(p) Transfer of Receivables. Use commercially reasonable efforts to
cause the Accounts subject to the Existing Receivables Facility to be
transferred to the originator Loan Parties as promptly as practicable
following payment in full of the Existing Receivables Facility.
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Section 5.02 Negative Covenants. So long as any Advance shall remain
unpaid, any Letter of Credit shall be outstanding or any Lender Party shall have
any Commitment hereunder, no Loan Party will, at any time:
(a) Liens. Incur, create, assume or suffer to exist any Lien on any
asset of the Borrower or any of its Material Subsidiaries now owned or
hereafter acquired by any of the Borrower or the Guarantors, other than:
(i) Liens existing on the Petition Date, (ii) Permitted Liens, (iii) Liens
on assets of Foreign Subsidiaries to secure Debt permitted by Section
5.02(b)(vi), (iv) Liens in favor of the Administrative Agent and the
Secured Parties, (v) Liens in connection with Debt permitted to be incurred
pursuant to Section 5.02(b)(vii) so long as such Liens extend solely to the
property (and improvements and proceeds of such property) acquired with the
proceeds of such Debt or subject to the applicable Capitalized Lease, (vi)
Liens in the form of cash collateral deposited to secure Obligations under
Hedge Agreements provided and such cash is not in excess of $75,000,000,
and (vii) Liens arising pursuant to the Tooling Program.
(b) Debt. Contract, create, incur, assume or suffer to exist any Debt,
or permit any of its Material Subsidiaries to contract, create, incur,
assume or suffer to exist any Debt, except for (i) Debt under this
Agreement and the other Loan Documents, (ii) Debt incurred prior to the
Petition Date (including any capital lease obligations assumed after the
Petition Date), (iii) Debt arising from Investments among the Borrower and
its Subsidiaries that are permitted hereunder, (iv) Debt in respect of any
overdrafts and related liabilities arising from treasury, depository and
cash management services or in connection with any automated clearing house
transfers of funds; (v) Debt consisting of guaranties permitted by Section
5.02(c); (vi) Debt of Foreign Subsidiaries owing to third parties in an
aggregate outstanding principal amount (together with the aggregate
outstanding principal amount of all other Debt of Foreign Subsidiaries
permitted under this subsection (b)) not in excess of $400,000,000 at any
time outstanding and Debt of Canadian Subsidiaries of the Borrower under
the Canadian Revolving Facility, (vii) Debt constituting purchase money
debt and Capitalized Lease obligations (not otherwise included in subclause
(ii) above) in an aggregate outstanding amount not in excess of
$75,000,000, (viii)(x) Debt in respect of Hedge Agreements entered into in
the ordinary course of business to protect against fluctuations in interest
rates, foreign exchange rates and commodity prices and (y) Debt arising on
and after the Petition Date under the Credit Card Program, provided that
the aggregate amount of Debt in respect of (A) Secured Hedge Agreements and
Secured Credit Card Obligations shall not exceed $50,000,000 at any time
outstanding and (B) Hedge Agreements subject to Liens permitted under
Section 5.02(a)(vi) shall not exceed $75,000,000 at any time outstanding,
(ix) indebtedness which may be deemed to exist pursuant to any surety
bonds, appeal bonds or similar obligations incurred in connection with any
judgment not constituting an Event of Default, (x) indebtedness in respect
of netting services, customary overdraft protections and otherwise in
connection with deposit accounts in the ordinary course of business, and
(xi) Debt not otherwise permitted hereunder in an aggregate outstanding
principal amount of $20,000,000.
(c) Guarantees and Other Liabilities. Contract, create, incur, assume
or permit to exist, or permit any Material Subsidiary to contract, create,
assume or permit to exist, any Guarantee Obligations, except (i) for any
guaranty of Debt or other obligations of the Borrower or any Guarantor if
the Borrower or such Guarantor could have incurred such Debt or obligations
under this Agreement, (ii) by endorsement of negotiable instruments for
deposit or collection in the ordinary course of business and (iii)
Guarantee Obligations constituting Investments of the Borrower and its
Subsidiaries permitted hereunder.
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(d) Chapter 11 Claims. Incur, create, assume, suffer to exist or
permit any other Superpriority Claim that is pari passu with or senior to
the claims of the Agents and the Secured Parties against the Borrower and
the Guarantors except with respect to the Carve-Out.
(e) Dividends; Capital Stock. Declare or pay, directly or indirectly,
any dividends or make any other distribution, or payment, whether in cash,
property, securities or a combination thereof, with respect to (whether by
reduction of capital or otherwise) any shares of capital stock (or any
options, warrants, rights or other equity securities or agreements relating
to any capital stock) of the Borrower, or set apart any sum for the
aforesaid purposes.
(f) Transactions with Affiliates. Enter into or permit any of its
Material Subsidiaries to enter into any transaction with any Affiliate,
other than on terms and conditions at least as favorable to the Borrower or
such Subsidiary as would reasonably be obtained at that time in a
comparable arm's-length transaction with a Person other than an Affiliate,
except for the following: (i) any transaction between any Loan Party and
any other Loan Party or between any Non-Loan Party and any other Non-Loan
Party; (ii) any transaction between any Loan Party and any Non-Loan Party
that is at least as favorable to such Loan Party as would reasonably be
obtained at that time in a comparable arm's-length transaction with a
Person other than an Affiliate; (iii) any transaction individually or of a
type expressly permitted pursuant to the terms of the Loan Documents; (iv)
reasonable and customary director, officer and employee compensation
(including bonuses) and other benefits (including retirement, health, stock
option and other benefit plans) and indemnification arrangements, in each
case approved by the relevant Board of Directors; or (v) transactions in
existence, or of a type in existence, on the Petition Date.
(g) Investments. Make or hold, or permit any of its Material
Subsidiaries to make, any Investment in any Person, except for (i) (A)
ownership by the Borrower or the Guarantors of the capital stock of each of
the Subsidiaries listed on Schedule 4.01 and (B) other Investments existing
on the Petition Date; (ii) Investments in Cash Equivalents and Investments
by Foreign Subsidiaries in securities and deposits similar in nature to
Cash Equivalents and customary in the applicable jurisdiction; (iii)
advances and loans existing on the Petition Date among the Borrower and the
Subsidiaries (including any refinancings or extensions thereof but
excluding any increases thereof or any further advances of any kind in
connection therewith); (iv) Investments or intercompany loans or advances
made on or after the Petition Date (A) by any Loan Party to or in any other
Loan Party, (B) by any Non-Loan Party to or in any Loan Party or (C) by any
Non-Loan Party to or in any other Non-Loan Party; (v) investments (A)
received in satisfaction or partial satisfaction thereof from financially
troubled account debtors or in connection with the settlement of delinquent
accounts and disputes with customers and suppliers, or (B) received in
settlement of debts created in the ordinary course of business and owing to
the Borrower or any Subsidiary or in satisfaction of judgments; (vi)
Investments (A) in the form of deposits, prepayments and other credits to
suppliers made in the ordinary course of business consistent with current
market practices, (B) in the form of extensions of trade credit in the
ordinary course of business, or (C) in the form of prepaid expenses and
deposits to other Persons in the ordinary course of business; (vii)
Investments made in any Person to the extent such investment represents the
non-cash portion of consideration received for an asset sale permitted
under the terms of the Loan Documents; (viii) loans or advance to
directors, officers and employees for bona fide business purposes and in
the ordinary course of business in an aggregate principal amount not to
exceed $10,000,000 at any time outstanding; (ix) investments constituting
guaranties permitted pursuant to Section 5.02(c)(i) or (ii) above; (x)
Permitted Acquisitions in an amount not to exceed $75,000,000 in the case
of the Borrower and its Subsidiaries during any Fiscal Year (provided that
the Loan Parties may only make Permitted Acquisitions in an amount not to
exceed $10,000,000 during any Fiscal Year); (xi) Investments in ▇▇▇▇▇▇ ▇.▇.
in an aggregate amount not
62
in excess of the sum of $45,000,000 plus the aggregate amount of any
transfers made to ▇▇▇▇▇▇ ▇.▇. or any of its Subsidiaries in accordance with
Section 5.02(h)(v) below, (xii) Investments in connection with the Tooling
Program in an aggregate amount (together with any Investments in connection
with the Tooling Program permitted under sub-clause (i)(B) above) not in
excess of $135,000,000; (xiii) Investments by Loan Parties in Foreign
Subsidiaries (A) in an aggregate amount not to exceed $50,000,000 at any
time outstanding and (B) to the extent that Letters of Credit are permitted
to be issued hereunder to provide credit support for third-party Debt of
Foreign Subsidiaries; (xiv) Investments by Foreign Subsidiaries in other
Foreign Subsidiaries and in the Loan Parties; and (xv) other Investments to
the extent not permitted pursuant to any other subpart of this Section in
an amount not to exceed $15,000,000 in any Fiscal Year.
(h) Disposition of Assets. Sell or otherwise dispose of, or permit any
of its Material Subsidiaries to sell or otherwise dispose of, any assets
(including, without limitation, the capital stock of any Subsidiary) except
for (i) proposed divestitures publicly disclosed as of the Effective Date
or otherwise disclosed to the Administrative Agent and the Lenders prior to
the Effective Date; (ii) (x) sales of inventory or obsolete or worn-out
property by the Borrower or any of its Subsidiaries in the ordinary course
of business, (y) sales, leases or transfers of property by the Borrower or
any of its Subsidiaries to the Borrower or a Subsidiary or to a third party
in connection with the asset value recovery program to be established with
GOIndustries, or (z) sales by Non-Loan Parties of property no longer used
or useful; (iii) the sale, lease, transfer or other disposition of any
assets (A) by any Loan Party to any other Loan Party, (B) by any Non-Loan
Party to any Loan Party, (c) by any Non-Loan Party to any other Non-Loan
Party, or (E) constituting Permitted Non-Loan Party Investments; (iv)
sales, transfers or other dispositions of assets in connection with the
Tooling Program; (v) the transfer by any US Loan Party of certain
machinery, equipment and inventory to ▇▇▇▇▇▇ ▇.▇. or any of its
Subsidiaries so long as the aggregate value of all such assets transferred
does not exceed $50,000,000; (vi) any sale, lease, transfer or other
disposition made in connection with any Investment permitted under Sections
5.02(g)(ii), (v), (vi) or (ix) hereof; (vii) licenses, sublicenses or
similar transactions of intellectual property in the ordinary course of
business and the abandonment of intellectual property deemed no longer
useful; (viii) equity issuances by any subsidiary to the Borrower or any
other subsidiary to the extent such equity issuance constitutes an
Investment permitted pursuant to Section 5.02(g)(iv); (ix) transfers of
receivables and receivables related assets or any interest therein by any
Foreign Subsidiary in connection with any factoring or similar arrangement,
subject to compliance with Section 5.02(b)(vi); (x) other sales, leases,
transfers or dispositions of assets for fair value at the time of such sale
(as reasonably determined by Borrower) so long as (A) in the case of any
sale or other disposition, not less than 75% of the consideration is cash,
(B) no Default or Event of Default exists immediately before or after
giving effect to any such sale, lease, transfer or other disposition, and
(C) in the case of any sale, lease transfer or other disposition by any
Loan Party, the fair value of all such assets sold, leased, transferred or
otherwise disposed of in any fiscal year does not exceed an amount equal to
$25,000,000.
(i) Nature of Business. Modify or alter, or permit any of its Material
Subsidiaries to modify or alter, in any material manner the nature and type
of its business as conducted at or prior to the Petition Date or the manner
in which such business is currently conducted (except as required by the
Bankruptcy Code), it being understood that sales permitted by Section
5.02(h) and discontinuing operations expressly identified as operations to
be discontinued in the DIP Budget shall not constitute such a material
modification or alteration.
(j) Limitation on Prepayments and Pre-Petition Obligations. Except as
otherwise allowed pursuant to the Interim Order or the Final Order, (i)
make any payment or prepayment on or redemption or acquisition for value
(including, without limitation, by way of depositing with
63
the trustee with respect thereto money or securities before due for the
purpose of paying when due) of any Pre-Petition Debt or other pre-Petition
Date obligations of the Borrower or Guarantor, (ii) pay any interest on any
Pre-Petition Debt of the Borrower or Guarantor (whether in cash, in kind
securities or otherwise), or (iii) except as provided in the Interim Order,
the Final Order or any order of the Bankruptcy Court and approved by the
Required Lenders, make any payment or create or permit any Lien pursuant to
Section 361 of the Bankruptcy Code (or pursuant to any other provision of
the Bankruptcy Code authorizing adequate protection), or apply to the Court
for the authority to do any of the foregoing; provided that (x) the
Borrower may make payments for administrative expenses that are allowed and
payable under Sections 330 and 331 of the Bankruptcy Code, (y) the Borrower
may prepay the obligations under the Loan Documents and make payments
permitted by the First Day Orders, and (z) the Borrower may make payments
to such other claimants and in such amounts as may be consented to by the
Lenders and approved by the Court. In addition, no Loan Party shall permit
any of its Subsidiaries to make any payment, redemption or acquisition on
behalf of such Loan Party which such Loan Party is prohibited from making
under the provisions of this subsection (j).
(k) Capital Expenditures. Make, or permit any of its Subsidiaries to
make, any Capital Expenditures that would cause the aggregate of all such
Capital Expenditures made by the Borrower and its Subsidiaries during any
fiscal year to exceed $325,000,000; provided, however, that if, for any
year, the aggregate amount of capital expenditures made by the Borrower and
its Subsidiaries is less than $325,000,000 (the difference between
$325,000,000 and the amount of Capital Expenditures in such year (the
"Excess Amount"), the Borrower shall be entitled to make additional Capital
Expenditures in the immediately succeeding year in an amount equal to the
Excess Amount, it being understood that the Excess Amount for any Fiscal
Year shall be deemed the first amount used in any succeeding Fiscal Year.
(l) Mergers. Merge into or consolidate with any Person or permit any
Person to merge into it, except (i) for mergers or consolidation
constituting permitted Investments under Section 5.02(g) or asset
dispositions permitted pursuant to Section 5.02(h), (ii) mergers,
consolidations, liquidations or dissolutions (A) by any Loan Party (other
than the Borrower) with or into any other Loan Party, (B) by any Non-Loan
Party (other than a DCC Entity) with or into any Loan Party, (C) by any
Non-Loan Party (other than a DCC Entity) with or into any other Non-Loan
Party (other than a DCC Entity), or (D) by any Subsidiary of the Borrower
in connection with or constituting Permitted Non-Loan Party Investments;
provided that, in the case of any such merger or consolidation, the person
formed by such merger or consolidation shall be a wholly owned Subsidiary
of the Borrower, and provided further that in the case of any such merger
or consolidation (x) to which the Borrower is a party, the Person formed by
such merger or consolidation shall be the Borrower and (y) to which a Loan
Party (other than the Borrower) is a party (other than a merger or
consolidation made in accordance with subclause (D) above), the Person
formed by such merger or consolidation shall be a Loan Party on the same
terms; and (iii) the dissolution, liquidation or winding up of any
subsidiary of the Borrower, provided that such dissolution, liquidation or
winding up would not reasonably be expected to have a Material Adverse
Effect and the assets of the Person so dissolved, liquidated or wound-up
are distributed to its Borrower or to a Loan Party.
(m) Amendments of Constitutive Documents. Amend its constitutive
documents, except for amendments that would not reasonably be expected to
materially affect the interests of the Lenders.
64
(n) Accounting Changes. Make or permit any changes in (i) accounting
policies or reporting practices, except as permitted or required by
generally accepted accounting principles, or (ii) its Fiscal Year.
(o) Payment Restrictions Affecting Subsidiaries. Enter into or allow
to exist, or allow any Material Subsidiary to enter into or allow to exist,
any agreement prohibiting or conditioning the ability of the Borrower or
any such Subsidiary to (i) create any lien upon any of its property or
assets, (ii) make dividends to, or pay any indebtedness owed to, any Loan
Party, (iii) make loans or advances to, or other investments in, any Loan
Party, or (iv) transfer any of its assets to any Loan Party other than (A)
any such agreement with or in favor of the Administrative Agent or the
Lenders; (B) in connection with (1) any agreement evidencing any Liens
permitted pursuant to Section 5.02(a)(iii), (v) or (vii) (so long as (x) in
the case of agreements evidencing Liens permitted under Section (a)(iii),
such prohibitions or conditions are customary for such Liens and the
obligations they secure and (y) in the case of agreements evidencing Liens
permitted under Section (a)(v) or (vii), such prohibitions or conditions
relate solely to the assets that are the subject of such Liens) or (2) any
Indebtedness permitted to be incurred under Sections 5.02(b)(vi), (vii), or
(viii) above (so long as (x) in the case of agreements evidencing
Indebtedness permitted under Section 5.02(b)(vi), such prohibitions or
conditions are customary for such Indebtedness and (y) in the case of
agreements evidencing Indebtedness permitted under Section 5.02(b)(vii) or
(viii), such prohibitions or conditions are limited to the assets securing
such Indebtedness; (C) any agreement setting forth customary restrictions
on the subletting, assignment or transfer of any property or asset that is
a lease, license, conveyance or contract of similar property or assets; (D)
any restriction or encumbrance imposed pursuant to an agreement that has
been entered into by the Borrower or any Subsidiary for the disposition of
any of its property or assets so long as such disposition is otherwise
permitted under the Loan Documents; (E) any such agreement imposed in
connection with consignment agreements entered into in the ordinary course
of business; (F) customary anti-assignment provisions contained in any
agreement entered into in the ordinary course of business; (G) any
agreement in existence on the Petition Date and any assumption of any such
agreement permitted hereunder so long as the terms or provisions in
connection with any such assumption relating to liens are no more
restrictive than the agreement in effect on the Petition Date; (H) any
agreement in existence at the time a Subsidiary is acquired so long as such
agreement was not entered into in contemplation of such acquisition; or (I)
such encumbrances or restrictions required by applicable law.
(p) Sales and Lease Backs. Except as set forth on Schedule 5.02(p),
become or remain liable as lessee or as a guarantor or other surety with
respect to any lease of any property, whether now owned or hereafter
acquired (i) which such Loan Party has sold or transferred or is to sell or
transfer to any other Person (other than another Loan Party) or (ii) which
such Loan Party intends to use for substantially the same purpose as any
other property which has been or is to be sold or transferred by a Loan
Party to any Person (other than another Loan Party) in connection with such
lease.
Section 5.03 Reporting Requirements. So long as any Advance shall
remain unpaid, any Letter of Credit shall be outstanding or any Lender Party
shall have any Commitment hereunder, the Borrower will furnish to the
Administrative Agent:
(a) Default Notice. As soon as possible and in any event within three
Business Days after any Responsible Officer of the Borrower has knowledge
of the occurrence of each Default or within five Business Days after any
Responsible Officer of the Borrower has knowledge of the occurrence of any
event, development or occurrence reasonably likely to have a Material
Adverse Effect continuing on the date of such statement, a statement of a
Responsible Officer (or person
65
performing similar functions) of the Borrower setting forth details of such
Default or other event and the action that the Borrower has taken and
proposes to take with respect thereto.
(b) Monthly Financials. For each month, as soon as available and in
any event on the later of (i) 30 days after the end of such month and (ii)
the date on which the Bankruptcy Court shall require the delivery thereof
(but in no event later than the 60th days after the end of such month), in
each case, the financial information required to be delivered to the
Bankruptcy Court for such month, which information shall be in form and
detail satisfactory to the Required Lenders, and, without duplication, a
comparison of such financial information with the projections for such
month in the DIP Budget and a schedule in form reasonably satisfactory to
the Initial Lenders of the computations used in determining compliance with
the covenants contained in Section 5.04, all in reasonable detail and duly
certified by a Responsible Officer of the Borrower.
(c) Quarterly Financials. Commencing with the fiscal quarter ending
March 31, 2006, as soon as available and in any event within 45 days after
the end of each of the first three quarters of each Fiscal Year (or such
earlier date as the Borrower may be required by the SEC to deliver its Form
10-Q or such later date as the SEC may permit for the delivery of the
Borrower's Form 10-Q up to 60 days), a Consolidated balance sheet of the
Borrower and its Subsidiaries as of the end of such quarter, and
Consolidated statements of income and cash flows of the Borrower and its
Subsidiaries for the period commencing at the end of the previous quarter
and ending with the end of such quarter, and Consolidated statements of
income cash flows of the Borrower and its Subsidiaries for the period
commencing at the end of the previous Fiscal Year and ending with the end
of such quarter, setting forth, in each case in comparative form the
corresponding figures for the corresponding period of the immediately
preceding Fiscal Year, all in reasonable detail and duly certified (subject
to normal year-end audit adjustments) by a Responsible Officer of the
Borrower as having been prepared in accordance with GAAP, together with a
certificate of said officer stating that no Default has occurred and is
continuing or, if a Default has occurred and is continuing, a statement as
to the nature thereof and the action that the Borrower has taken and
proposes to take with respect thereto.
(d) Annual Financials. As soon as available and in any event no later
than 90 days (or 120 days in the case of the Fiscal Year ending December
31, 2005) following the end of the Fiscal Year ending December 31, 2005, a
copy of the annual audit report for such Fiscal Year, including therein a
Consolidated balance sheet of the Borrower and its Subsidiaries as of the
end of such Fiscal Year and Consolidated statements of income and cash
flows of the Borrower and its Subsidiaries for such Fiscal Year, in each
case accompanied by (A) an opinion acceptable to the Initial Lenders of
independent public accountants of recognized national standing acceptable
to the Initial Lenders and (B) a certificate of a Responsible Officer of
the Borrower stating that no Default has occurred and is continuing or, if
a Default has occurred and is continuing, a statement as to the nature
thereof and the action that the Borrower has taken and proposes to take
with respect thereto, together with a schedule in form reasonably
satisfactory to the Initial Lenders of the computations used in
determining, as of the end of such Fiscal Year, compliance with the
covenants contained in Sections 5.02(k) and 5.04; provided that, in the
event of any change in GAAP used in the preparation of such financial
statements, the Borrower shall also provide, if necessary for the
determination of compliance with Section 5.02(k) and 5.04, a statement of
reconciliation conforming such financial statements to GAAP.
(e) Annual Forecasts. No later than 30 days after the end of each
fiscal year (commencing with the fiscal year ending December 31, 2006)
annual forecasts of the Borrower and its Consolidated Subsidiaries on a
monthly basis.
66
(f) Cash Flows. No later than the last Business Day of each month,
commencing March 31, 2006, (i) a cash flow forecast detailing cash receipts
and cash disbursements on a weekly basis for the next 13 weeks (a "Thirteen
Week Forecast"), the information and calculations contained in which shall
be reasonably satisfactory to the Initial Lenders and (ii) a Budget
Variance Report for the month then ended.
(g) DIP Budget Supplement. No later than December 31, 2006, and on any
other date on which the Borrower may deliver the same to the Bankruptcy
Court, a supplement to the DIP Budget setting forth on a monthly basis for
the remainder of the term of the Facilities an updated forecast of the
information contained in the DIP Budget for such period and a written set
of supporting assumptions, all in form reasonably satisfactory to the
Initial Lenders.
(h) ERISA Events and ERISA Reports. Promptly and in any event within
10 Business Days after any Loan Party or any ERISA Affiliate knows or has
reason to know that any ERISA Event has occurred with respect to an ERISA
Plan, a statement of a Responsible Officer of the Borrower describing such
ERISA Event and the action, if any, that such Loan Party or such ERISA
Affiliate has taken and proposes to take with respect thereto, on the date
any records, documents or other information must be furnished to the PBGC
with respect to any ERISA Plan pursuant to Section 4010 of ERISA, a copy of
such records, documents and information.
(i) Plan Terminations. Promptly and in any event within two Business
Days after receipt thereof by any Loan Party or any ERISA Affiliate, copies
of each notice from the PBGC stating its intention to terminate any ERISA
Plan or to have a trustee appointed to administer any ERISA Plan.
(j) Actuarial Reports. Promptly upon receipt thereof by any Loan Party
or any ERISA Affiliate, a copy of the annual actuarial valuation report for
each Plan the funded current liability percentage (as defined in Section
302(d)(8) of ERISA) of which is less than 90% or the unfunded current
liability of which exceeds $5,000,000.
(k) Multiemployer Plan Notices. Promptly and in any event within five
Business Days after receipt thereof by any Loan Party or any ERISA
Affiliate from the sponsor of a Multiemployer Plan, copies of each notice
concerning (i) the imposition of Withdrawal Liability by any such
Multiemployer Plan, (ii) the reorganization or termination, within the
meaning of Title IV of ERISA, of any such Multiemployer Plan or (iii) the
amount of liability incurred, or that may be incurred, by such Loan Party
or any ERISA Affiliate in connection with any event described in clause (i)
or (ii) above.
(l) Litigation. Promptly after the commencement thereof, notice of
each unstayed action, suit, investigation, litigation and proceeding before
any court or governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, affecting any Loan Party or any of
its Subsidiaries that (i) is reasonably likely to be determined adversely
and if so determined adversely would be reasonably likely to have a
Material Adverse Effect or (ii) purports to affect the legality, validity
or enforceability of this Agreement, any Note, any other Loan Document or
the consummation of the transactions contemplated hereby.
(m) Securities Reports. Promptly after the sending or filing thereof,
copies of all proxy statements, financial statements and reports that the
Borrower sends to its public stockholders, copies of all regular, periodic
and special reports, and all registration statements, that the Borrower
files with the Securities and Exchange Commission or any governmental
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authority that may be substituted therefor, or with any national securities
exchange; provided that such documents may be made available by posting on
the Borrower's website.
(n) Environmental Conditions. Promptly after the assertion or
occurrence thereof, notice of any Environmental Action against or of any
non-compliance by any Loan Party or any of its Subsidiaries with any
Environmental Law or Environmental Permit that would reasonably be expected
to (i) have a Material Adverse Effect or (ii) cause any real property to be
subject to any restrictions on ownership, occupancy, use or transferability
under any Environmental Law that could reasonably be expected to have a
Material Adverse Effect.
(o) Bankruptcy Pleadings, Etc. Promptly after the same is available,
copies of all pleadings, motions, applications, judicial information,
financial information and other documents filed by or on behalf of any of
the Loan Parties with the Bankruptcy Court in the cases, or distributed by
or on behalf of any of the Loan Parties to any Official Committee appointed
in the cases, providing copies of same to the Initial Lenders and counsel
for Administrative Agent; provided that such documents may be made
available by posting on a website maintained by the Borrower, and
identified to the Lenders, in connection with the Cases.
(p) Other Information. Such other information respecting the business,
condition (financial or otherwise), operations, performance, properties or
prospects of any Loan Party or any of its Subsidiaries as any Lender Party
(through the Administrative Agent), the Administrative Agent or any of
their advisors may from time to time reasonably request.
Section 5.04 Financial Covenants. So long as any Advance shall remain
unpaid, any Letter of Credit shall be outstanding or any Lender Party shall have
any Commitment hereunder, the Borrower will:
(a) Minimum Global EBITDAR. Maintain Consolidated EBITDAR of the
Borrower and its Subsidiaries as at the last day of each calendar month not
less than the amount set forth below for each period set forth below, as
determined for such period then ended:
Month Period then Ended EBITDAR
----- ----------------- ------------
May 2006 3 months $ 20,000,000
June 2006 4 months $ 40,000,000
July 2006 5 months $ 45,000,000
August 2006 6 months $ 70,000,000
September 2006 7 months $100,000,000
October 2006 8 months $145,000,000
November 2006 9 months $190,000,000
December 2006 10 months $215,000,000
January 2007 11 months $240,000,000
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February 2007 12 months $260,000,000
March 2007 12 months $270,000,000
April 2007 12 months $280,000,000
May 2007 12 months $280,000,000
June 2007 12 months $280,000,000
July 2007 12 months $280,000,000
August 2007 12 months $280,000,000
(b) Minimum Availability. Not permit Availability to be less than
$100,000,000 on any Business Day if Availability on the immediately
preceding Business Day was less than $100,000,000.
ARTICLE VI
EVENTS OF DEFAULT
Section 6.01 Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) the Borrower shall fail to pay any principal of any Advance or any
unreimbursed drawing with respect to any Letter of Credit when the same
shall become due and payable or any Loan Party shall fail to make any
payment of interest on any Advance or any other payment under any Loan
Document within three business days after the same becomes due and payable;
or
(b) any representation or warranty made by any Loan Party (or any of
its officers) under or in connection with any Loan Document shall prove to
have been incorrect in any material respect when made or deemed made; or
(c) any Loan Party shall fail to perform or observe (i) any term,
covenant or agreement contained in Sections 2.14, 5.01(f), 5.02, 5.03 or
5.04 or (ii) any term, covenant or agreement (other than those listed in
clause (i) above) contained in Article V hereof, if such failure shall
remain unremedied for 5 Business Days; or
(d) any Loan Party shall fail to perform any other term, covenant or
agreement contained in any Loan Document on its part to be performed or
observed if such failure shall remain unremedied for 10 days; or
(e) (i) any Loan Party or any of its Subsidiaries shall fail to pay
any principal of, premium or interest on or any other amount payable in
respect of one or more items of Debt arising after the Petition Date of the
Loan Parties and their Subsidiaries (excluding Debt outstanding hereunder)
that is outstanding in an aggregate principal or notional amount (or, in
the case of any Hedge Agreement, an Agreement Value) of at least
$35,000,000 when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration,
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demand or otherwise), and such failure shall continue after the applicable
grace period, if any, specified in the agreements or instruments relating
to all such Debt; or (ii) any other event shall occur or condition shall
exist under the agreements or instruments relating to one or more items of
Debt arising after the Petition Date of the Loan Parties and their
Subsidiaries (excluding Debt outstanding hereunder) that is outstanding in
an aggregate principal or notional amount of at least $35,000,000, and such
other event or condition shall continue after the applicable grace period,
if any, specified in all such agreements or instruments, if the effect of
such event or condition is to accelerate, or to permit the acceleration of,
the maturity of such Debt or otherwise to cause, or to permit the holder
thereof to cause, such Debt to mature; or (iii) one or more items of Debt
arising after the Petition Date of the Loan Parties and their Subsidiaries
(excluding Debt outstanding hereunder) that is outstanding in an aggregate
principal or notional amount (or, in the case of any Hedge Agreement, an
Agreement Value) of at least $35,000,000 shall be declared to be due and
payable or required to be prepaid or redeemed (other than by a regularly
scheduled or required prepayment or redemption), purchased or defeased, or
an offer to prepay, redeem, purchase or defease such Debt shall be required
to be made, in each case prior to the stated maturity thereof; or
(f) one or more final, non-appealable judgments or orders for the
payment of money in excess of $35,000,000 (exclusive of any judgment or
order the amounts of which are fully covered by insurance (less any
applicable deductible) which is not in dispute) in the aggregate at any
time, as an administrative expense of the kind specified in Section 503(b)
of the Bankruptcy Code shall be rendered against any Loan Party or any of
its Subsidiaries and enforcement proceedings shall have been commenced by
any creditor upon such judgment or order; or
(g) one or more nonmonetary judgments or orders shall be rendered
against any Loan Party or any of its Subsidiaries that is reasonably likely
to have a Material Adverse Effect, and there shall be any period of 10
consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect;
or
(h) any provision of any Loan Document after delivery thereof pursuant
to Section 3.01 or Section 3.03 shall for any reason cease to be valid and
binding on or enforceable against any Loan Party intended to be a party to
it, or any such Loan Party shall so state in writing; or
(i) any Collateral Document after delivery thereof pursuant to Section
3.01 shall for any reason (other than pursuant to the terms thereof) cease
to create a valid and perfected lien on and security interest in the
Collateral purported to be covered thereby; or
(j) any ERISA Event shall have occurred with respect to a Plan and the
sum (determined as of the date of occurrence of such ERISA Event) of the
Insufficiency of such Plan and the Insufficiency of any and all other Plans
with respect to which an ERISA Event shall have occurred and then exist (or
the liability of the Loan Parties and the ERISA Affiliates related to such
ERISA Event) is reasonably likely to have a Material Adverse Effect; or
(k) any Loan Party or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that it has incurred Withdrawal
Liability to such Multiemployer Plan in an amount that, when aggregated
with all other amounts required to be paid to Multiemployer Plans by the
Loan Parties and the ERISA Affiliates as Withdrawal Liability (determined
as of the date of such notification), exceeds $5,000,000 or requires
payments exceeding $2,500,000 per annum; or
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(l) any Loan Party or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of
ERISA, and as a result of such reorganization or termination the aggregate
annual contributions of the Loan Parties and the ERISA Affiliates to all
Multiemployer Plans that are then in reorganization or being terminated
have been or will be increased over the amounts contributed to such
Multiemployer Plans for the plan years of such Multiemployer Plans
immediately preceding the plan year in which such reorganization or
termination occurs by an amount exceeding $2,000,000; or
(m) any of the Cases concerning the Borrower or Guarantors shall be
dismissed or converted to a case under Chapter 7 of the Bankruptcy Code or
any Loan Party shall file a motion or other pleading or support a motion or
other pleading filed by any other Person seeking the dismissal of any of
the Cases concerning the Borrower or Material Guarantors under Section 1112
of the Bankruptcy Code or otherwise; a trustee under Chapter 7 or Chapter
11 of the Bankruptcy Code, a responsible officer or an examiner with
enlarged powers relating to the operation of the business (powers beyond
those set forth in Section 1106(a)(3) and (4) of the Bankruptcy Code) under
Section 1106(b) of the Bankruptcy Code shall be appointed in any of the
Cases and the order appointing such trustee, responsible officer or
examiner shall not be reversed or vacated within 30 days after the entry
thereof; or an application shall be filed by the Borrower or any Guarantor
for the approval of any other Superpriority Claim (other than the
Carve-Out) in any of the Cases which is pari passu with or senior to the
claims of the Administrative Agent and the Lenders against the Borrower or
any Guarantor hereunder, or there shall arise or be granted any such pari
passu or senior Superpriority Claim; or
(n) the Bankruptcy Court shall enter an order or orders granting
relief from the automatic stay applicable under Section 362 of the
Bankruptcy Code to the holder or holders of any security interest to permit
foreclosure (or the granting of a deed in lieu of foreclosure or the like)
on any assets of any of the Borrower or the Guarantors that have a value in
excess of $10,000,000 in the aggregate, provided that this subsection (n)
shall not apply to any order granting relief from the automatic stay
pursuant to which a creditor exercises valid setoff rights pursuant to
Section 553 of the Bankruptcy Code; or
(o) an order of the Bankruptcy Court shall be entered (i) reversing,
amending, staying for a period in excess of 10 days or vacating either of
the DIP Financing Orders, (ii) without the written consent of the
Administrative Agent and the requisite Lenders (in accordance with the
provisions of Section 10.01), otherwise amending, supplementing or
modifying either of the DIP Financing Orders in a manner that is reasonably
determined by the Administrative Agent to be adverse to the Agents and the
Lenders or (iii) terminating the use of cash collateral by the Borrower or
the Guarantors pursuant to the DIP Financing Orders; or
(p) default in any material respect shall be made by the Borrower or
any Guarantor in the due observance or performance of any term or condition
contained in any DIP Financing Order; or
(q) any Loan Party shall bring a motion in the Cases: (i) to obtain
working capital financing from any Person other than Lenders under Section
364(d) of the Bankruptcy Code; or (ii) to obtain financing for such Loan
Party from any Person other than the Lenders under Section 364(c) of the
Bankruptcy Code (other than with respect to a financing used, in whole or
part, to repay in full the Obligations); or (iii) to grant any Lien other
than those permitted under Section 5.02(a) upon or affecting any
Collateral; or (iv) to use Cash Collateral of the Administrative Agent or
Lenders under Section 363(c) of the Bankruptcy Code without the prior
written consent
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of the Required Lenders (as provided in Section 10.01); except to pay the
Carve-Out or (v) to recover from any portions of the Collateral any costs
or expenses of preserving or disposing of such Collateral under Section
506(c) of the Bankruptcy Code; or (vi) to effect any other action or
actions adverse to the Administrative Agent or Lenders or their rights and
remedies hereunder or their interest in the Collateral that would,
individually or in the aggregate, have a Material Adverse Effect; or
(r) the entry of the Final Order shall not have occurred within 45
days of the entry of the Interim Order; or
(s) any challenge by any Loan Party to the validity of any Loan
Document or the applicability or enforceability of any Loan Document or
which seeks to void, avoid, limit, or otherwise adversely affect the
security interest created by or in any Loan Document or any payment made
pursuant thereto; or
(t) a Change of Control shall occur;
then, and in any such event, subject only to the giving of an "Enforcement
Notice" under and as defined in the DIP Financing Orders to the parties entitled
thereunder to receive such notice, without further order of or application to
the Bankruptcy Court, the Administrative Agent (i) shall at the request, or may
with the consent, of the Required Lenders, by notice to the Borrower, declare
the obligation of each Lender to make Advances (other than Letter of Credit
Advances by the Issuing Banks or a Lender pursuant to Section 2.03(c) and Swing
Line Advances by a Lender pursuant to Section 2.02(b)) and of the Issuing Banks
to issue Letters of Credit to be terminated, whereupon the same shall forthwith
terminate, and (ii) shall at the request, or may with the consent, of the
Required Lenders, by notice to the Borrower, declare the Notes, all interest
thereon and all other amounts payable under this Agreement and the other Loan
Documents to be forthwith due and payable, whereupon the Notes, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by the Borrower.
Section 6.02 Actions in Respect of the Letters of Credit upon Default.
If any Event of Default shall have occurred and be continuing, the
Administrative Agent may, or shall at the request of the Required Lenders,
irrespective of whether it is taking any of the actions described in Section
6.01 or otherwise, make demand upon the Borrower to, and forthwith upon such
demand the Borrower will, pay to the Administrative Agent on behalf of the
Lender Parties in same day funds at the Administrative Agent's office designated
in such demand, for deposit in the L/C Cash Collateral Account, an amount equal
to 105% of the aggregate Available Amount of all Letters of Credit then
outstanding. If at any time the Administrative Agent determines that any funds
held in the L/C Cash Collateral Account are subject to any right or claim of any
Person other than the Administrative Agent and the Lender Parties or that the
total amount of such funds is less than the aggregate Available Amount of all
Letters of Credit, the Borrower will, forthwith upon demand by the
Administrative Agent, pay to the Administrative Agent, as additional funds to be
deposited and held in the L/C Cash Collateral Account, an amount equal to the
excess of (a) such aggregate Available Amount over (b) the total amount of
funds, if any, then held in the L/C Cash Collateral Account that the
Administrative Agent determines to be free and clear of any such right and
claim.
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ARTICLE VII
THE AGENTS
Section 7.01 Appointment and Authorization of the Agents. (a) Each
Lender Party hereby irrevocably appoints, designates and authorizes each of the
Agents to take such action on its behalf under the provisions of this Agreement
and each other Loan Document and to exercise such powers and perform such duties
as are expressly delegated to it by the terms of this Agreement or any other
Loan Document, together with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere herein or in
any other Loan Document, no Agent shall have any duties or responsibilities,
except those expressly set forth herein, nor shall any Agent have or be deemed
to have any fiduciary relationship with any Lender Party or participant, 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 such Agent. Without limiting the generality of the
foregoing sentence, the use of the term "agent" herein and in the other Loan
Documents with reference to any Agent is not intended to connote any fiduciary
or other implied (or express) obligations arising under agency doctrine of any
applicable law. Instead, such term is used merely as a matter of market custom,
and is intended to create or reflect only an administrative relationship between
independent contracting parties.
(b) Each Issuing Bank shall act on behalf of the Lenders with respect
to any Letters of Credit issued by it and the documents associated therewith,
and each Issuing Bank shall have all of the benefits and immunities (i) provided
to each Agent in this Article VII with respect to any acts taken or omissions
suffered by such Issuing Bank in connection with Letters of Credit issued by it
or proposed to be issued by it and the applications and agreements for letters
of credit pertaining to such Letters of Credit as fully as if the term "Agent"
as used in this Article VII and in the definition of "Agent-Related Person"
included such Issuing Bank with respect to such acts or omissions, and (ii) as
additionally provided herein with respect to such Issuing Bank.
Section 7.02 Delegation of Duties. Each Agent may execute any of its
duties under this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel and
other consultants or experts concerning all matters pertaining to such duties.
No Agent shall be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects in the absence of gross negligence or willful
misconduct.
Section 7.03 Liability of Agents. No Agent-Related Person shall (a) be
liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful misconduct
in connection with its duties expressly set forth herein), or (b) be responsible
in any manner to any Lender Party or participant for any recital, statement,
representation or warranty made by any Loan Party or any officer thereof,
contained herein or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by any
Agent under or in connection with, this Agreement or any other Loan Document, or
the validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document, or for any failure of any Loan Party or
any other party to any Loan Document to perform its obligations hereunder or
thereunder. No Agent-Related Person shall be under any obligation to any Lender
Party or participant 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 any Loan Party or any Affiliate thereof.
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Section 7.04 Reliance by Agents. (a) Each Agent shall be entitled to
rely, and shall be fully protected in relying, upon any writing, communication,
signature, resolution, representation, notice, consent, certificate, affidavit,
letter, telegram, facsimile, telex or telephone message, electronic mail
message, statement or other document or conversation 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 counsel
to any Loan Party), independent accountants and other experts selected by such
Agent, as applicable. Each Agent shall be fully justified in failing or refusing
to take any action under any Loan Document unless it shall first receive such
advice or concurrence of the Required Lenders as it deems appropriate and, if it
so requests, 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. Each Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this Agreement
or any other Loan Document in accordance with a request or consent of the
Required Lenders (or such greater number of Lenders as may be expressly required
hereby in any instance) and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders.
(b) For purposes of determining compliance with the conditions
specified in Section 3.01, each Lender that has signed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to a Lender unless the relevant Agent or Agents
shall have received notice from such Lender prior to the Effective Date
specifying its objection thereto.
Section 7.05 Notice of Default. No Agent shall be deemed to have
knowledge or notice of the occurrence of any Default, except with respect to
defaults in the payment of principal, interest and fees required to be paid to
any Agent for the account of the Lenders, unless such Agent shall have received
written notice from a Lender or the Borrower referring to this Agreement,
describing such Default and stating that such notice is a "Notice of Default."
The Administrative Agent will notify the Lenders of its receipt of any such
notice. The Administrative Agent, in consultation with the Initial Lenders,
shall take such action with respect to such Default as may be directed by the
Required Lenders in accordance with Article VI; provided, however, that unless
and until the Administrative Agent has received any such direction, it may (but
shall not be obligated to) take such action, or refrain from taking such action,
in each case, in consultation with the Initial Lenders, with respect to such
Default as it shall deem advisable or in the best interest of the Lenders.
Section 7.06 Credit Decision; Disclosure of Information by Agents.
Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by any Agent hereafter taken,
including any consent to and acceptance of any assignment or review of the
affairs of any Loan Party or any Affiliate thereof, shall be deemed to
constitute any representation or warranty by any Agent-Related Person to any
Lender as to any matter, including whether Agent-Related Persons have disclosed
material information in their possession. Each Lender represents to the Agents
that it has, independently and without reliance upon any Agent-Related Person
and based on such documents and information as it has deemed appropriate, made
its own appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the Loan Parties
and their respective Subsidiaries, and all applicable bank or other regulatory
Laws relating to the transactions contemplated hereby, and made its own decision
to enter into this Agreement and to extend credit to the Borrower hereunder.
Each Lender also represents that it will, independently and without reliance
upon any Agent-Related Person 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 investigations as it deems necessary
to inform itself as to the business, prospects, operations, property, financial
and other condition and creditworthiness of the Borrower. Except for notices,
reports and other
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documents expressly required to be furnished to the Lenders by any Agent herein,
such Agent shall not have any duty or responsibility to provide any Lender with
any credit or other information concerning the business, prospects, operations,
property, financial and other condition or creditworthiness of any of the Loan
Parties or any of their respective Affiliates which may come into the possession
of any Agent-Related Person.
Section 7.07 Indemnification of Agents. Whether or not the
transactions contemplated hereby are consummated, the Lenders shall indemnify
upon demand each Agent-Related Person (to the extent not reimbursed by or on
behalf of any Loan Party and without limiting the obligation of any Loan Party
to do so), pro rata, and hold harmless each Agent-Related Person from and
against any and all Indemnified Liabilities incurred by it; provided, however,
that no Lender shall be liable for the payment to any Agent-Related Person of
any portion of such Indemnified Liabilities to the extent determined in a final,
nonappealable judgment by a court of competent jurisdiction to have resulted
primarily from such Agent-Related Person's own gross negligence or willful
misconduct; provided, however, that no action taken in accordance with the
directions of the Required Lenders shall be deemed to constitute gross
negligence or willful misconduct for purposes of this Section. Without
limitation of the foregoing, each Lender shall reimburse each Agent upon demand
for its ratable share of any costs or out-of-pocket expenses (including Attorney
Costs) incurred by any Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement, any other Loan
Document, or any document contemplated by or referred to herein, to the extent
that such Agent is not reimbursed for such expenses by or on behalf of the
Borrower. The undertaking in this Section shall survive termination of the
Commitments, the payment of all other Obligations and the resignation of each of
the Agents. In the case of an investigation, litigation or other proceeding to
which the indemnity in this Section 7.07 applies, such indemnity shall be
effective whether or not such investigation, litigation or proceeding is brought
by any Lender Party, its directors, shareholders or creditors and whether or not
the transactions contemplated hereby are consummated.
Section 7.08 Agents in Their Individual Capacity. CNAI, JPM and BofA
and their respective Affiliates may make loans to, issue letters of credit for
the account of, accept deposits from, acquire equity interests in and generally
engage in any kind of banking, trust, financial advisory, underwriting or other
business with each of the Loan Parties and their respective Affiliates as though
CNAI, JPM and BofA, as the case may be, were not an Agent or Issuing Bank
hereunder, as the case may be, and without notice to or consent of the Lenders.
The Lenders acknowledge that, pursuant to such activities, each of CNAI, JPM and
BofA and each of their respective Affiliates may receive information regarding
any Loan Party or its Affiliates (including information that may be subject to
confidentiality obligations in favor of such Loan Party or such Affiliate) and
acknowledge that each of CNAI, JPM and BofA and their respective Affiliates
shall be under no obligation to provide such information to them. With respect
to its Loans, each of CNAI, JPM and BofA and their respective Affiliates shall
have the same rights and powers under this Agreement as any other Lender and may
exercise such rights and powers as though it were not an Agent, the Swing Line
Lender or an Issuing Bank, as the case may be, and the terms "Lender" and
"Lenders" include CNAI, JPM and BofA in its individual capacity.
Section 7.09 Successor Agent. Each Agent may resign from acting in
such capacity upon 30 days' notice to the Lenders and the Borrower; provided
that any such resignation by CNAI shall also constitute the resignation by CNAI
as Issuing Bank. If an Agent resigns under this Agreement, the Required Lenders
shall appoint from among the Lenders a successor agent for the Lenders. If no
successor agent is appointed prior to the effective date of the resignation of
such Agent, such Agent may appoint, after consulting with the Lenders, a
successor agent from among the Lenders. Upon the acceptance of its appointment
as successor agent hereunder, the Person acting as such successor agent shall
succeed to all the rights, powers and duties of the retiring Agent and Issuing
Bank and the term
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"Agent" shall mean such successor agent, and the retiring Agent's appointment,
powers and duties as Agent shall be terminated and in the case of the
Administrative Agent, the retiring Issuing Bank's rights, powers and duties as
such shall be terminated, without any other or further act or deed on the part
of such retiring Agent or Issuing Bank, as the case may be, or any other Lender,
other than the obligation of the successor Issuing Bank to issue letters of
credit in substitution for the Letters of Credit, if any, outstanding at the
time of such succession or to make other arrangements satisfactory to the
retiring Issuing Bank to effectively assume the obligations of the retiring with
respect to such Letters of Credit. After any retiring Agent's resignation
hereunder as Agent, the provisions of this Article VII and Section 10.04 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Agent under this Agreement. If no successor agent has accepted
appointment as Agent by the date which is 30 days following a retiring Agent's
notice of resignation, the retiring Agent's resignation shall nevertheless
thereupon become effective and the Lenders shall perform all of the duties of
the Agent hereunder until such time, if any, as the Required Lenders appoint a
successor agent as provided for above.
Section 7.10 Administrative Agent May File Proofs of Claim. In case of
the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, the Administrative Agent (irrespective of
whether the principal of any Advance shall then be due and payable as herein
expressed or by declaration or otherwise and irrespective of whether any Agent
shall have made any demand on the Borrower) shall be entitled and empowered, by
intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the principal
and interest owing and unpaid in respect of the Advances and all other
Obligations that are owing and unpaid and to file such other documents as
may be necessary or advisable in order to have the claims of the Lenders
and the Agents (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders and the Agents and
their respective agents and counsel and all other amounts due the Lenders
and the Agents under Sections 2.08 and 10.04) allowed in such judicial
proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any amount due for
the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due to
the Administrative Agent under Sections 2.08 and 10.04.
Nothing contained herein shall be deemed to authorize the
Administrative Agent to authorize or consent to or accept or adopt on behalf of
any Lender any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Lender or to authorize the
Administrative Agent to vote in respect of the claim of any Lender in any such
proceeding.
Section 7.11 Collateral and Guaranty Matters. The Lenders irrevocably
authorize the Administrative Agent, at its option and in its discretion,
(a) to release any Lien on any property granted to or held by the
Administrative Agent under any Loan Document (i) upon termination of the
Commitments and payment in full of all Obligations (other than contingent
indemnification obligations) and the expiration or termination of all
Letters of Credit, (ii) that is sold or to be sold as part of or in
connection with
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any sale permitted hereunder or under any other Loan Document, or (iii)
subject to Section 10.01, if approved, authorized or ratified in writing by
the Required Lenders;
(b) to subordinate any Lien on any property granted to or held by the
Administrative Agent under any Loan Document to the holder of any Lien on
such property that is permitted by Section 5.02(a);
(c) to release any Guarantor from its obligations under the Guaranty
if such Person ceases to be a Subsidiary as a result of a transaction
permitted hereunder or if all of such Person's assets are sold or
liquidated as permitted under the terms of the Loan Documents and the
proceeds thereof are distributed to the Borrower; and
(d) to acquire, hold and enforce any and all Liens on Collateral
granted by and of the Loan Parties to secure any of the Secured
Obligations, together with such other powers and discretion as are
reasonably incidental thereto.
Upon request by the Administrative Agent at any time, the Required
Lenders (acting on behalf of all the Lenders) will confirm in writing that the
Administrative Agent's authority to release Liens or subordinate the interests
of the Secured Parties in particular types or items of property, or to release
any Guarantor from its obligations under the Guaranty pursuant to this Section
7.11.
Section 7.12 Other Agents; Arrangers and Managers. None of the Lenders
or other Persons identified on the facing page or signature pages of this
Agreement as a "syndication agent," "book runner," "arranger," or "lead
arranger" shall have any right, power, obligation, liability, responsibility or
duty under this Agreement other than, in the case of such Lenders, those
applicable to all Lenders as such. Without limiting the foregoing, none of the
Lenders or other Persons so identified shall have or be deemed to have any
fiduciary relationship with any Lender. Each Lender acknowledges that it has not
relied, and will not rely, on any of the Lenders or other Persons so identified
in deciding to enter into this Agreement or in taking or not taking action
hereunder.
ARTICLE VIII
SUBSIDIARY GUARANTY
Section 8.01 Subsidiary Guaranty. Each Guarantor, severally,
unconditionally and irrevocably guarantees (the undertaking by each Guarantor
under this Article VIII being the "Guaranty") the punctual payment when due,
whether at scheduled maturity or at a date fixed for prepayment or by
acceleration, demand or otherwise, of all of the Obligations of each of the
other Loan Parties now or hereafter existing under or in respect of the Loan
Documents (including, without limitation, any extensions, modifications,
substitutions, amendments or renewals of any or all of the foregoing
Obligations), whether direct or indirect, absolute or contingent, and whether
for principal, interest, premium, fees, indemnification payments, contract
causes of action, costs, expenses or otherwise (such Obligations being the
"Guaranteed Obligations"), and agrees to pay any and all expenses (including,
without limitation, reasonable fees and expenses of counsel) incurred by the
Administrative Agent or any of the other Secured Parties solely in enforcing any
rights under this Guaranty. Without limiting the generality of the foregoing,
each Guarantor's liability shall extend to all amounts that constitute part of
the Guaranteed Obligations and would be owed by any of the other Loan Parties to
the Administrative Agent or any of the other Secured Parties under or in respect
of the Loan Documents but for the fact that they are unenforceable or not
allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving such other Loan Party.
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Section 8.02 Guaranty Absolute. Each Guarantor guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of the
Loan Documents, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the
Administrative Agent or any other Secured Party with respect thereto. The
Obligations of each Guarantor under this Guaranty are independent of the
Guaranteed Obligations or any other Obligations of any Loan Party under the Loan
Documents, and a separate action or actions may be brought and prosecuted
against such Guarantor to enforce this Guaranty, irrespective of whether any
action is brought against any other Loan Party or whether any other Loan Party
is joined in any such action or actions. The liability of each Guarantor under
this Guaranty shall be absolute, unconditional and irrevocable irrespective of,
and such Guarantor hereby irrevocably waives any defenses it may now or
hereafter have in any way relating to, any and all of the following:
(a) any lack of validity or enforceability of any Loan Document or any
other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Guaranteed Obligations or any other
Obligations of any Loan Party under the Loan Documents, or any other
amendment or waiver of or any consent to departure from any Loan Document,
including, without limitation, any increase in the Guaranteed Obligations
resulting from the extension of additional credit to any Loan Party or any
of its Subsidiaries or otherwise;
(c) any taking, exchange, release or nonperfection of any Collateral,
or any taking, release or amendment or waiver of or consent to departure
from any Subsidiary Guaranty or any other guaranty, for all or any of the
Guaranteed Obligations;
(d) any manner of application of Collateral, or proceeds thereof, to
all or any of the Guaranteed Obligations, or any manner of sale or other
disposition of any Collateral for all or any of the Guaranteed Obligations
or any other Obligations of any Loan Party under the Loan Documents, or any
other property and assets of any other Loan Party or any of its
Subsidiaries;
(e) any change, restructuring or termination of the corporate
structure or existence of any other Loan Party or any of its Subsidiaries;
(f) any failure of the Administrative Agent or any other Secured Party
to disclose to any Loan Party any information relating to the financial
condition, operations, properties or prospects of any other Loan Party now
or hereafter known to the Administrative Agent or such other Secured Party,
as the case may be (such Guarantor waiving any duty on the part of the
Secured Parties to disclose such information);
(g) the failure of any other Person to execute this Guaranty or any
other guarantee or agreement of the release or reduction of the liability
of any of the other Loan Parties or any other guarantor or surety with
respect to the Guaranteed Obligations; or
(h) any other circumstance (including, without limitation, any statute
of limitations or any existence of or reliance on any representation by the
Administrative Agent or any other Secured Party) that might otherwise
constitute a defense available to, or a discharge of, such Guarantor, any
other Loan Party or any other guarantor or surety other than payment in
full in cash of the Guaranteed Obligations.
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This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by the Administrative Agent or any other Secured
Party or by any other Person upon the insolvency, bankruptcy or reorganization
of any other Loan Party or otherwise, all as though such payment had not been
made.
Section 8.03 Waivers and Acknowledgments. (a) Each Guarantor hereby
unconditionally and irrevocably waives promptness, diligence, notice of
acceptance and any other notice with respect to any of the Guaranteed
Obligations and this Guaranty, and any requirement that the Administrative Agent
or any other Secured Party protect, secure, perfect or insure any Lien or any
property or assets subject thereto or exhaust any right or take any action
against any other Loan Party or any other Person or any Collateral.
(b) Each Guarantor hereby unconditionally waives any right to revoke
this Guaranty, and acknowledges that this Guaranty is continuing in nature and
applies to all Guaranteed Obligations, whether existing now or in the future.
(c) Each Guarantor hereby unconditionally and irrevocably waives (i)
any defense arising by reason of any claim or defense based upon an election of
remedies by the Secured Parties which in any manner impairs, reduces, releases
or otherwise adversely affects the subrogation, reimbursement, exoneration,
contribution or indemnification rights of such Guarantor or other rights to
proceed against any of the other Loan Parties, any other guarantor or any other
Person or any Collateral, and (ii) any defense based on any right of setoff or
counterclaim against or in respect of such Guarantor's obligations hereunder.
(d) Each Guarantor acknowledges that it will receive substantial
direct and indirect benefits from the financing arrangements contemplated by the
Loan Documents and that the waivers set forth in Section 8.02 and this Section
8.03 are knowingly made in contemplation of such benefits.
Section 8.04 Subrogation. Each Guarantor hereby unconditionally and
irrevocably agrees not to exercise any rights that it may now have or may
hereafter acquire against any other Loan Party or any other insider guarantor
that arise from the existence, payment, performance or enforcement of its
Obligations under this Guaranty or under any other Loan Document, including,
without limitation, any right of subrogation, reimbursement, exoneration,
contribution or indemnification and any right to participate in any claim or
remedy of the Administrative Agent or any other Secured Party against such other
Loan Party or any other insider guarantor or any Collateral, whether or not such
claim, remedy or right arises in equity or under contract, statute or common
law, including, without limitation, the right to take or receive from such other
Loan Party or any other insider guarantor, directly or indirectly, in cash or
other property or by set-off or in any other manner, payment or security on
account of such claim, remedy or right, until such time as all of the Guaranteed
Obligations and all other amounts payable under this Guaranty shall have been
paid in full in cash, all of the Letters of Credit and all Secured Hedge
Agreements shall have expired or been terminated and the Commitments shall have
expired or terminated. If any amount shall be paid to any Guarantor in violation
of the immediately preceding sentence at any time prior to the latest of (a) the
payment in full in cash of all of the Guaranteed Obligations and all other
amounts payable under this Guaranty, (b) the latest date of expiration or
termination of all Letters of Credit and all Secured Hedge Agreements, and (c)
the Termination Date, such amount shall be held in trust for the benefit of the
Administrative Agent and the other Secured Parties and shall forthwith be paid
to the Administrative Agent to be credited and applied to the Guaranteed
Obligations and all other amounts payable under this Guaranty, whether matured
or unmatured, in accordance with the terms of the Loan Documents, or to be held
as Collateral for any Guaranteed Obligations or other amounts payable under this
Guaranty thereafter arising. If (i) any Guarantor shall pay to the
Administrative Agent all or any part of the Guaranteed Obligations, (ii) all of
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the Guaranteed Obligations and all other amounts payable under this Guaranty
shall have been paid in full in cash, (iii) all Letters of Credit and all
Secured Hedge Agreements shall have expired or been terminated, and (iv) the
Termination Date shall have occurred, the Administrative Agent and the other
Secured Parties will, at such Guarantor's request and expense, execute and
deliver to such Guarantor appropriate documents, without recourse and without
representation or warranty, necessary to evidence the transfer of subrogation to
such Guarantor of an interest in the Guaranteed Obligations resulting from the
payment made by such Guarantor.
Section 8.05 Additional Guarantors. Upon the execution and delivery by
any Person of a guaranty joinder agreement in substantially the form of Exhibit
H hereto (each, a "Guaranty Supplement"), (i) such Person shall be referred to
as an "Additional Guarantor" and shall become and be a Guarantor hereunder, and
each reference in this Guaranty to a "Guarantor" shall also mean and be a
reference to such Additional Guarantor, and each reference in any other Loan
Document to a "Guarantor" shall also mean and be a reference to such Additional
Guarantor, and (ii) each reference herein to "this Guaranty", "hereunder",
"hereof" or words of like import referring to this Guaranty, and each reference
in any other Loan Document to the "Guaranty", "thereunder", "thereof" or words
of like import referring to this Guaranty, shall include each such duly executed
and delivered Guaranty Supplement.
Section 8.06 Continuing Guarantee; Assignments. This Guaranty is a
continuing guaranty and shall (a) remain in full force and effect until the
latest of (i) the payment in full in cash of all of the Guaranteed Obligations
and all other amounts payable under this Guaranty, (ii) the latest date of
expiration or termination of all Letters of Credit and all Secured Hedge
Agreements, and (iii) the Termination Date, (b) be binding upon each Guarantor
and its successors and assigns and (c) inure to the benefit of, and be
enforceable by, the Administrative Agent and the other Secured Parties and their
respective successors, transferees and assigns. Without limiting the generality
of clause (c) of the immediately preceding sentence, any Lender Party may assign
or otherwise transfer all or any portion of its rights and obligations under
this Agreement (including, without limitation, all or any portion of its
Commitment or Commitments, the Advances owing to it and the Notes held by it) to
any other Person, and such other Person shall thereupon become vested with all
the benefits in respect thereof granted to such Lender Party under this Article
VIII or otherwise, in each case as provided in Section 10.07.
Section 8.07 No Reliance. Each Guarantor has, independently and
without reliance upon any Agent or any Lender Party and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Guaranty and each other Loan Document to which it is
or is to be a party, and such Guarantor has established adequate means of
obtaining from each other Loan Party on a continuing basis information
pertaining to, and is now and on a continuing basis will be completely familiar
with, the business, condition (financial or otherwise), operations, performance,
properties and prospects of such other Loan Party.
ARTICLE IX
SECURITY
Section 9.01 Grant of Security. To induce the Lenders to make the
Advances, and the Issuing Banks to issue Letters of Credit, each Loan Party
hereby grants to the Administrative Agent, for itself and for the ratable
benefit of the Secured Parties, as security for the full and prompt payment when
due (whether at stated maturity, by acceleration or otherwise) of the
Obligations of such Loan Party under the Loan Documents, all Cash Management
Obligations of such Loan Party, all Obligations of such Loan Party under Secured
Hedge Agreements and all Secured Credit Card Obligations, and each agreement or
instrument delivered by any Loan Party pursuant to any of the foregoing (whether
direct or indirect, absolute or contingent, and whether for principal,
reimbursement obligations, interest, fees, premiums,
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penalties, indemnifications, contract causes of action, costs, expenses or
otherwise) (collectively, the "Secured Obligations") a continuing first priority
Lien and security interest (subject only to certain Liens permitted pursuant to
Section 5.02(a) and the Carve-Out as set forth in Section 2.17) in accordance
with subsections 364(c)(2) and (3) of the Bankruptcy Code in and to all
Collateral of such Loan Party. "Collateral" means, except as otherwise specified
in the DIP Financing Orders, all of the property and assets of each Loan Party
and its estate, real and personal, tangible and intangible, whether now owned or
hereafter acquired or arising and regardless of where located, including but not
limited to:
(a) all Equipment;
(b) all Inventory;
(c) all Accounts (and any and all such supporting obligations,
security agreements, mortgages, Liens, leases, letters of credit and other
contracts being the "Related Contracts");
(d) all General Intangibles;
(e) the following (the "Security Collateral"):
(i) the Initial Pledged Equity and the certificates, if any,
representing the Initial Pledged Equity, and all dividends,
distributions, return of capital, cash, instruments and other property
from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the Initial Pledged Equity
and all subscription warrants, rights or options issued thereon or
with respect thereto;
(ii) the Initial Pledged Debt and the instruments, if any,
evidencing the Initial Pledged Debt, and all interest, cash,
instruments and other property from time to time received, receivable
or otherwise distributed in respect of or in exchange for any or all
of the Initial Pledged Debt;
(iii) all additional shares of stock and other Equity Interests
from time to time acquired by such Loan Party in any manner (such
shares and other Equity Interests, together with the Initial Pledged
Equity, being the "Pledged Equity"), and the certificates, if any,
representing such additional shares or other Equity Interests, and all
dividends, distributions, return of capital, cash, instruments and
other property from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such shares
or other Equity Interests and all subscription warrants, rights or
options issued thereon or with respect thereto; provided that no Loan
Party shall be required to pledge any Equity Interests in any Foreign
Subsidiary (or any Equity Interests in any entity that is treated as a
partnership or a disregarded entity for United States federal income
tax purposes and whose assets are substantially only Equity Interests
in Foreign Subsidiaries (a "Flow-Through Entity") that own directly or
indirectly through one or more other Flow-Through Entities, Equity
Interests in any Foreign Subsidiaries) owned or otherwise held by such
Loan Party which, when aggregated with all of the other Equity
Interests in such Foreign Subsidiary (or Flow-Through Entity) pledged
by any Loan Party, would result (or would be deemed to result for
United States federal income tax purposes) in more than 66% of the
total combined voting power of all classes of stock in a Foreign
Subsidiary entitled to vote (within the meaning of Treasury Regulation
Section 1.956-2(c)(2) promulgated under the Internal Revenue Code)
(the "Voting Foreign Stock") being pledged to the Administrative
Agent, on behalf of the Secured Parties, under this Agreement
(although all of the shares of stock in a Foreign Subsidiary not
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entitled to vote (within the meaning of Treasury Regulation Section
1.956-2(c)(2) promulgated under the Internal Revenue Code) (the
"Non-Voting Foreign Stock") shall be pledged by each of the Loan
Parties that owns or otherwise holds any such Non-Voting Foreign Stock
therein); provided further that, if, as a result of any change in the
tax laws of the United States of America after the date of this
Agreement, the pledge by such Loan Party of any additional shares of
stock in any such Foreign Subsidiary to the Administrative Agent, on
behalf of the Secured Parties, under this Agreement would not result
in an increase in the aggregate net consolidated tax liabilities or in
the reduction of any loss carryforward, tax basis or other tax
attribute, of the Borrower and its Subsidiaries, then, promptly after
the change in such laws, all such additional shares of stock shall be
so pledged under this Agreement;
(iv) all additional indebtedness from time to time owed to such
Loan Party (such indebtedness, together with the Initial Pledged Debt,
being the "Pledged Debt") and the instruments, if any, evidencing such
indebtedness, and all interest, cash, instruments and other property
from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of such indebtedness; and
(v) all other investment property (including, without limitation,
all (A) securities, whether certificated or uncertificated, (B)
security entitlements, (C) securities accounts, (D) commodity
contracts and (E) commodity accounts) in which such Loan Party has
now, or acquires from time to time hereafter, any right, title or
interest in any manner, and the certificates or instruments, if any,
representing or evidencing such investment property, and all
dividends, distributions, return of capital, interest, distributions,
value, cash, instruments and other property from time to time
received, receivable or otherwise distributed in respect of or in
exchange for any or all of such investment property and all
subscription warrants, rights or options issued thereon or with
respect thereto (the "Pledged Investment Property");
(f) the following (collectively, the "Account Collateral"):
(i) all deposit and other bank accounts and all funds and
financial assets from time to time credited thereto (including,
without limitation, all Cash Equivalents), all interest, dividends,
distributions, cash, instruments and other property from time to time
received, receivable or otherwise distributed in respect of or in
exchange for any or all of such funds and financial assets, and all
certificates and instruments, if any, from time to time representing
or evidencing such accounts;
(ii) all promissory notes, certificates of deposit, deposit
accounts, checks and other instruments from time to time delivered to
or otherwise possessed by the Administrative Agent for or on behalf of
such Loan Party, including, without limitation, those delivered or
possessed in substitution for or in addition to any or all of the then
existing Account Collateral; and
(iii) all interest, dividends, distributions, cash, instruments
and other property from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the then
existing Account Collateral;
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(g) the following (collectively, the "Intellectual Property"):
(i) all patents, patent applications, utility models and
statutory invention registrations, all inventions claimed or disclosed
therein and all improvements thereto ("Patents");
(ii) all trademarks, service marks, domain names, trade dress,
logos, designs, slogans, trade names, business names, corporate names
and other source identifiers, whether registered or unregistered
(provided that no security interest shall be granted in United States
intent-to-use trademark applications to the extent that, and solely
during the period in which, the grant of a security interest therein
would impair the validity or enforceability of such intent-to-use
trademark applications under applicable federal law), together, in
each case, with the goodwill symbolized thereby ("Trademarks");
(iii) all copyrights, including, without limitation, copyrights
in Computer Software, internet web sites and the content thereof,
whether registered or unregistered ("Copyrights");
(iv) all computer software, programs and databases (including,
without limitation, source code, object code and all related
applications and data files), firmware and documentation and materials
relating thereto, together with any and all maintenance rights,
service rights, programming rights, hosting rights, test rights,
improvement rights, renewal rights and indemnification rights and any
substitutions, replacements, improvements, error corrections, updates
and new versions of any of the foregoing ("Computer Software");
(v) all confidential and proprietary information, including,
without limitation, know-how, trade secrets, manufacturing and
production processes and techniques, inventions, research and
development information, databases and data, including, without
limitation, technical data, financial, marketing and business data,
pricing and cost information, business and marketing plans and
customer and supplier lists and information (collectively, "Trade
Secrets"), and all other intellectual, industrial and intangible
property of any type, including, without limitation, industrial
designs and mask works;
(vi) all registrations and applications for registration for any
of the foregoing, including, without limitation, those registrations
and applications for registration in the United States (other than
patent applications) set forth in Schedule II hereto (as such Schedule
II may be supplemented from time to time by supplements to the IP
Security Agreement, each such supplement being substantially in the
form of Exhibit G hereto (an "IP Security Agreement Supplement"),
executed by such Loan Party to the Administrative Agent from time to
time), together with all reissues, divisions, continuations,
continuations-in-part, extensions, renewals and reexaminations
thereof;
(vii) all tangible embodiments of the foregoing, all rights in
the foregoing provided by international treaties or conventions, all
rights corresponding thereto throughout the world and all other rights
of any kind whatsoever of such Loan Party accruing thereunder or
pertaining thereto;
(viii) all agreements, permits, consents, orders and franchises
relating to the license, development, use or disclosure of any of the
foregoing to which such Loan Party,
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now or hereafter, is a party or a beneficiary, including, without
limitation, the material and key agreements not entered into in the
ordinary course of business set forth in Schedule III hereto (such
scheduled agreements, the "IP Agreements"); and
(ix) any and all claims for damages and injunctive relief for
past, present and future infringement, dilution, misappropriation,
violation, misuse or breach with respect to any of the foregoing, with
the right, but not the obligation, to ▇▇▇ for and collect, or
otherwise recover, such damages;
(h) all of the right, title and interest of the Loan Parties in all
real property the title to which is held by the Loan Parties, or the
possession of which is held by the Loan Parties pursuant to leasehold
interest, and in all such leasehold interests, together in each case with
all of the right, title and interest of the Loan Parties in and to all
buildings, improvements, and fixtures related thereto, any lease or
sublease thereof, all general intangibles relating thereto and all proceeds
thereof (collectively, the "Real Property Collateral");
(i) all proceeds of licenses granted to the Loan Parties by the
Federal Communications Commission;
(j) all books and records (including, without limitation, customer
lists, credit files, printouts and other computer output materials and
records) of such Loan Party pertaining to any of the Collateral; and
(k) all proceeds of, collateral for, income, royalties and other
payments now or hereafter due and payable with respect to, and supporting
obligations relating to, any and all of the Collateral (including, without
limitation, proceeds, collateral and supporting obligations that constitute
property of the types described in clauses (a) through (j) of this Section
9.01 and this clause (k)) and, to the extent not otherwise included, all
(A) payments under insurance (whether or not the Administrative Agent is
the loss payee thereof), or any indemnity, warranty or guaranty, payable by
reason of loss or damage to or otherwise with respect to any of the
foregoing Collateral, (B) tort claims, including, without limitation, all
commercial tort claims and (C) cash.
; provided, however, that Collateral shall not include any Excluded Property.
Section 9.02 Further Assurances. (a) Each Loan Party agrees that from
time to time, at the expense of such Loan Party, such Loan Party will promptly
execute and deliver, or otherwise authenticate, all further instruments and
documents, and take all further action that may be necessary or desirable, or
that any Agent may reasonably request, in order to perfect and protect any
pledge or security interest granted or purported to be granted by such Loan
Party hereunder or to enable such Agent to exercise and enforce its rights and
remedies hereunder with respect to any Collateral of such Loan Party. Without
limiting the generality of the foregoing, each Loan Party will promptly with
respect to Collateral of such Loan Party: (i) if any such Collateral shall be
evidenced by a promissory note or other instrument or chattel paper, upon
request of the Administrative Agent, deliver and pledge to such Agent hereunder
such note or instrument or chattel paper duly indorsed and accompanied by duly
executed instruments of transfer or assignment, all in form and substance
reasonably satisfactory to such Agent; (ii) execute or authenticate and file
such financing or continuation statements, or amendments thereto, and such other
instruments or notices, as may be necessary or desirable, or as any Agent may
reasonably request, in order to perfect and preserve the security interest
granted or purported to be granted by such Loan Party hereunder; (iii) at the
request of any Agent, deliver to such Agent for benefit of the Secured Parties
certificates representing Pledged Collateral that constitutes certificated
securities, accompanied by
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undated stock or bond powers executed in blank; (iv) take all action necessary
to ensure that such Agent has control of Pledged Collateral and of Collateral
consisting of deposit accounts, electronic chattel paper, letter-of-credit
rights and transferable records as provided in Sections 9-104, 9-105, 9-106 and
9-107 of the UCC and in Section 16 of the Uniform Electronics Transactions Act,
as in effect in the jurisdiction governing such transferable record; (v) at the
request of any Agent, take all necessary action to ensure that such Agent's
security interest is noted on any certificate of ownership related to any
Collateral evidenced by a certificate of ownership; (vi) at the reasonable
request of any Agent, take commercially reasonable efforts to cause such Agent
to be the beneficiary under all letters of credit that constitute Collateral,
with the exclusive right to make all draws under such letters of credit, and
with all rights of a transferee under Section 5-114(e) of the UCC; and (vii)
deliver to such Agent evidence that all other action that such Agent may deem
reasonably necessary or desirable in order to perfect and protect the security
interest created by such Loan Party under this Agreement has been taken. From
time to time upon reasonable request by any Agent, each Loan Party will, at such
Loan Party's expense, cause to be delivered to such Agent, for the benefit of
the Secured Parties, an opinion of counsel, from outside counsel reasonably
satisfactory to such Agent, as to such matters relating to the transactions
contemplated by this Article IX as such Agent may reasonably request.
(b) Each Loan Party hereby authorizes each Agent to file one or more
financing or continuation statements, and amendments thereto, including, without
limitation, one or more financing statements indicating that such financing
statements cover all assets or all personal property (or words of similar
effect) of such Loan Party, in each case without the signature of such Loan
Party, and regardless of whether any particular asset described in such
financing statements falls within the scope of the UCC or the granting clause of
this Agreement. A photocopy or other reproduction of this Agreement or any
financing statement covering the Collateral or any part thereof shall be
sufficient as a financing statement where permitted by law. Each Loan Party
ratifies its authorization for each Agent to have filed such financing
statements, continuation statements or amendments filed prior to the date
hereof.
(c) Each Loan Party will furnish to each Agent from time to time
statements and schedules further identifying and describing the Collateral of
such Loan Party and such other reports in connection with such Collateral as
such Agent may reasonably request, all in reasonable detail.
(d) Notwithstanding subsections (a) and (b) of this Section 9.02, or
any failure on the part of any Loan Party or any Agent to take any of the
actions set forth in such subsections, the Liens and security interests granted
herein shall be deemed valid, enforceable and perfected by entry of the Interim
Order and the Final Order, as applicable. No financing statement, notice of
lien, mortgage, deed of trust or similar instrument in any jurisdiction or
filing office need be filed or any other action taken in order to validate and
perfect the Liens and security interests granted by or pursuant to this
Agreement, the Interim Order or the Final Order.
Section 9.03 Rights of Lender; Limitations on Lenders' Obligations.
(a) Subject to each Loan Party's rights and duties under the Bankruptcy Code
(including Section 365 of the Bankruptcy Code), and anything herein to the
contrary notwithstanding, (i) each Loan Party shall remain liable under the
contracts and agreements included in such Loan Party's Collateral to the extent
set forth therein to perform all of its duties and obligations thereunder to the
same extent as if this Agreement had not been executed, (ii) the exercise by the
Administrative Agent of any of the rights hereunder shall not release any Loan
Party from any of its duties or obligations under the contracts and agreements
included in the Collateral and (iii) no Secured Party shall have any obligation
or liability under the contracts and agreements included in the Collateral by
reason of this Agreement or any other Loan Document, nor shall any Secured Party
be obligated to perform any of the obligations or duties of any Loan Party
thereunder or to take any action to collect or enforce any claim for payment
assigned hereunder.
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(b) Except as otherwise provided in this subsection (b), each Loan
Party will continue to collect, at its own expense, all amounts due or to become
due such Loan Party under the Accounts and Related Contracts. In connection with
such collections, such Loan Party may take (and, upon the occurrence and during
the continuance of an Event of Default, at the Administrative Agent's direction,
will take) such action as such Loan Party or the Administrative Agent may deem
necessary or advisable to enforce collection of the Accounts and Related
Contracts; provided, however, that, subject to any requirement of notice
provided in the DIP Financing Orders or in Section 6.01, the Administrative
Agent shall have the right at any time, upon the occurrence and during the
continuance of an Event of Default, to notify the obligors under any Accounts
and Related Contracts of the assignment of such Accounts and Related Contracts
to the Administrative Agent and to direct such obligors to make payment of all
amounts due or to become due to such Loan Party thereunder directly to the
Administrative Agent and, upon such notification and at the expense of such Loan
Party, to enforce collection of any such Accounts and Related Contracts, to
adjust, settle or compromise the amount or payment thereof, in the same manner
and to the same extent as such Loan Party might have done, and to otherwise
exercise all rights with respect to such Accounts and Related Contracts,
including, without limitation, those set forth in Section 9-607 of the UCC. Upon
and during the exercise by the Administrative Agent on behalf of the Lenders of
any of the remedies described in the proviso of the immediately preceding
sentence, (i) any and all amounts and proceeds (including, without limitation,
instruments) received by such Loan Party in respect of the Accounts and Related
Contracts of such Loan Party shall be received in trust for the benefit of the
Administrative Agent hereunder, shall be segregated from other funds of such
Loan Party and shall be forthwith paid over to the Administrative Agent in the
same form as so received (with any necessary endorsement) to be deposited in a
collateral account maintained with the Administrative Agent and applied as
provided in Section 9.07(b) and (ii) such Loan Party will not adjust, settle or
compromise the amount or payment of any Account or amount due on any Related
Contract, release wholly or partly any obligor thereof, or allow any credit or
discount thereon. No Loan Party will permit or consent to the subordination of
its right to payment under any of the Accounts and Related Contracts to any
other indebtedness or obligations of the obligor thereof.
(c) Each Initial Lender shall have the right to make test verification
of the Accounts (other than Accounts that any Loan Party is required to maintain
as "classified") in any manner and through any medium that it considers
advisable in its reasonable discretion, and each Loan Party agrees to furnish
all such assistance and information as any Initial Lender may reasonably require
in connection therewith.
Section 9.04 Covenants of the Loan Parties with Respect to Collateral.
Each Loan Party hereby covenants and agrees with the Administrative Agent that
from and after the date of this Agreement and until the Secured Obligations
(other than contingent indemnification obligations which are not then due and
payable) are fully satisfied or cash collateralized:
(a) Delivery and Control of Pledged Collateral.
(i) All certificates or instruments representing or evidencing Pledged
Collateral shall be delivered to and held by or on behalf of the
Administrative Agent pursuant hereto at the request of the Administrative
Agent, and shall be in suitable form for transfer by delivery, or shall be
accompanied by duly executed instruments of transfer or assignment in
blank, all in form and substance reasonably satisfactory to the
Administrative Agent. In addition, the Administrative Agent shall have the
right at any time to exchange certificates or instruments representing or
evidencing Pledged Collateral for certificates or instruments of smaller or
larger denominations.
(ii) With respect to any Pledged Collateral in which any Loan Party
has any right, title or interest and that constitutes an uncertificated
security, upon the request of the
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Administrative Agent such Loan Party will cause the issuer thereof either
(i) to register the Administrative Agent as the registered owner of such
security or (ii) to agree in an authenticated record with such Loan Party
and the Administrative Agent that such issuer will comply with instructions
with respect to such security originated by the Administrative Agent
without further consent of such Loan Party, such authenticated record to be
in form and substance reasonably satisfactory to the Administrative Agent.
With respect to any Pledged Collateral in which any Loan Party has any
right, title or interest and that is not an uncertificated security, upon
the request of the Administrative Agent, such Loan Party will notify each
such issuer of Pledged Equity that such Pledged Equity is subject to the
security interest granted hereunder.
(iii) Except as provided in Section 9.07, such Loan Party shall be
entitled to receive all cash dividends paid in respect of the Initial
Pledged Collateral (other than liquidating or distributing dividends) with
respect to the Initial Pledged Equity. Any sums paid upon or in respect of
any of the Pledged Equity upon the liquidation or dissolution of any issuer
of any of the Initial Pledged Equity, any distribution of capital made on
or in respect of any of the Initial Pledged Equity or any property
distributed upon or with respect to any of the Initial Pledged Equity
pursuant to the recapitalization or reclassification of the capital of any
issuer of Initial Pledged Equity or pursuant to the reorganization thereof
shall be delivered to the Administrative Agent to hold as collateral for
the Secured Obligations.
(iv) Except as provided in Section 9.07, such Loan Party will be
entitled to exercise all voting, consent and corporate rights with respect
to Pledged Equity; provided, however, that no vote shall be cast, consent
given or right exercised or other action taken by such Loan Party which
would impair the Pledged Collateral or which would be inconsistent in any
material respect with or result in any violation of any provision of this
Agreement or any other Loan Document or, without prior notice to the
Administrative Agent, to enable or take any other action to permit any
issuer of Pledged Equity to issue any stock or other equity securities of
any nature or to issue any other securities convertible into or granting
the right to purchase or exchange for any stock or other equity securities
of any nature of any issuer of Pledged Equity other than issuances,
transfers and grants to a Loan Party.
(v) Such Loan Party shall not grant control over any investment
property to any Person other than the Administrative Agent, except to the
extent permitted pursuant to this Agreement.
(vi) In the case of each Loan Party which is an issuer of Pledged
Equity, such Loan Party agrees to be bound by the terms of this Agreement
relating to the Pledged Equity issued by it and will comply with such terms
insofar as such terms are applicable to it.
(b) Maintenance of Records. Such Loan Party will keep and maintain, at
its own cost and expense, satisfactory and complete records of the
Collateral, in all material respects, including, without limitation, a
record of all payments received and all credits granted with respect to the
Collateral and all other material dealings concerning the Collateral. For
the Administrative Agent's further security, each Loan Party agrees that
the Administrative Agent shall have a property interest in all of such Loan
Party's books and records pertaining to the Collateral and, upon the
occurrence and during the continuation of an Event of Default, such Loan
Party shall deliver and turn over any such books and records to the
Administrative Agent or to its representatives at any time on demand of the
Administrative Agent.
(c) Indemnification With Respect to Collateral. In any suit,
proceeding or action brought by the Administrative Agent relating to any
Collateral for any sum owing thereunder or
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to enforce any provision of any Collateral, such Loan Party will save,
indemnify and keep the Secured Parties harmless from and against all
expense, loss or damage suffered by the Secured Parties by reason of any
defense, setoff, counterclaim, recoupment or reduction of liability
whatsoever of the obligor thereunder, arising out of a breach by such Loan
Party of any obligation thereunder or arising out of any other agreement,
indebtedness or liability at any time owing to, or in favor of, such
obligor or its successors from such Loan Party, and all such obligations of
such Loan Party shall be and remain enforceable against and only against
such Loan Party and shall not be enforceable against the Administrative
Agent.
(d) Limitation on Liens on Collateral. Such Loan Party will not
create, permit or suffer to exist, and will defend the Collateral against
and take such other action as is necessary to remove, any Lien on the
Collateral except Liens permitted under Section 5.02(a) and will defend the
right, title and interest of the Administrative Agent in and to all of such
Loan Party's rights under the Collateral against the claims and demands of
all Persons whomsoever other than claims or demands arising out of Liens
permitted under Section 5.02(a).
(e) As to Intellectual Property Collateral.
(i) Except as set forth in the last sentence of this clause (i),
with respect to each item of its Intellectual Property Collateral,
each Loan Party agrees to take, at its expense, all necessary steps,
including, without limitation, in the U.S. Patent and Trademark
Office, the U.S. Copyright Office and any other United States
governmental authority, to (A) maintain the validity and
enforceability of such Intellectual Property Collateral and maintain
such Intellectual Property Collateral in full force and effect, and
(B) pursue the registration and maintenance of each patent, trademark,
or copyright registration or application, now or hereafter included in
such Intellectual Property Collateral of such Loan Party, including,
without limitation, the payment of required fees and taxes, the filing
of responses to office actions issued by the U.S. Patent and Trademark
Office, the U.S. Copyright Office or other governmental authorities,
the filing of applications for renewal or extension, the filing of
affidavits under Sections 8 and 15 of the U.S. Trademark Act, the
filing of divisional, continuation, continuation-in-part, reissue and
renewal applications or extensions, the payment of maintenance fees
and the participation in interference, reexamination, opposition,
cancellation, infringement and misappropriation proceedings. Except to
the extent permitted pursuant to this Agreement, no Loan Party shall,
without the written consent of the Administrative Agent, discontinue
use of or otherwise abandon any Intellectual Property Collateral, or
abandon any right to file an application for patent, trademark, or
copyright, unless such Loan Party shall have previously determined
that such use or the pursuit or maintenance of such Intellectual
Property Collateral is no longer desirable in the conduct of such Loan
Party's business and that the loss thereof would not be reasonably
likely to have a Material Adverse Effect, in which case, such Loan
Party will give notice quarterly of any such abandonment to the
Administrative Agent.
(ii) Each Loan Party shall take all steps which it or the
Administrative Agent deems reasonable and appropriate under the
circumstances to preserve and protect each item of its Intellectual
Property Collateral, including, without limitation, maintaining the
quality of any and all products or services used or provided in
connection with any of the Trademarks, consistent with the quality of
the products and services as of the date hereof, and taking all steps
necessary to ensure that all licensed users of any of the Trademarks
use such consistent standards of quality.
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(iii) Each Loan Party agrees that should it obtain a material
ownership interest in any item of the type set forth in Section
9.01(g) that is not on the date hereof a part of the Intellectual
Property Collateral ("After-Acquired Intellectual Property") (i) the
provisions of this Agreement shall automatically apply thereto, and
(ii) any such After-Acquired Intellectual Property and, in the case of
trademarks, the goodwill symbolized thereby, shall automatically
become part of the Intellectual Property Collateral subject to the
terms and conditions of this Agreement with respect thereto. At the
end of each quarter, each Loan Party shall give prompt written notice
to the Administrative Agent identifying the After-Acquired
Intellectual Property (other than patent applications and trade
secrets, the disclosure of which shall not be required until a patent
is issued) acquired during such quarter, and such Loan Party shall
execute and deliver to the Administrative Agent with such written
notice, or otherwise authenticate, an IP Security Agreement Supplement
covering such After-Acquired Intellectual Property and any newly
issued patents, which IP Security Agreement Supplement may be recorded
with the U.S. Patent and Trademark Office, the U.S. Copyright Office
and any other governmental authorities necessary to perfect the
security interest hereunder in such After-Acquired Intellectual
Property.
Section 9.05 Performance by Agent of the Loan Parties' Obligations.
(a) Administrative Agent Appointed Attorney-in-Fact. Each Loan Party hereby
irrevocably appoints the Administrative Agent such Loan Party's attorney-in-fact
after the occurrence and during the continuance of an Event of Default, with
full authority in the place and stead of such Loan Party and in the name of such
Loan Party or otherwise, from time to time, in the Administrative Agent's
discretion, to take any action and to execute any instrument that the
Administrative Agent may deem necessary or advisable to accomplish the purposes
of this Agreement, including, without limitation:
(i) to obtain and adjust insurance required to be paid to the
Administrative Agent pursuant to this Agreement,
(ii) to ask for, demand, collect, ▇▇▇ for, recover, compromise,
receive and give acquittance and receipts for moneys due and to become due
under or in respect of any of the Collateral,
(iii) to receive, indorse and collect any drafts or other instruments,
documents and chattel paper, in connection with clause (i) or (ii) above,
and
(iv) to file any claims or take any action or institute any
proceedings that the Administrative Agent may deem necessary or desirable
for the collection of any of the Collateral or otherwise to enforce the
rights of the Administrative Agent with respect to any of the Collateral.
(b) Administrative Agent May Perform. If any Loan Party fails to
perform any agreement contained herein, the Administrative Agent may, as the
Administrative Agent deems necessary to protect the security interest granted
hereunder in the Collateral or to protect the value thereof, but without any
obligation to do so and without notice, itself perform, or cause performance of,
such agreement, and the expenses of the Administrative Agent incurred in
connection therewith shall be payable by such Loan Party under Section 10.04.
(c) Performance of such Loan Party's agreements as permitted under
this Section 9.05 shall in no way constitute a violation of the automatic stay
provided by Section 362 of the Bankruptcy Code and each Loan Party hereby waives
applicability thereof. Moreover, the Administrative
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Agent shall in no way be responsible for the payment of any costs incurred in
connection with preserving or disposing of Collateral pursuant to Section 506(c)
of the Bankruptcy Code and the Collateral may not be charged for the incurrence
of any such cost.
Section 9.06 The Administrative Agent's Duties. (a) The powers
conferred on the Administrative Agent hereunder are solely to protect the
Secured Parties' interest in the Collateral and shall not impose any duty upon
it to exercise any such powers. Except for the safe custody of any Collateral in
its possession and the accounting for moneys actually received by it hereunder,
the Administrative Agent shall have no duty as to any Collateral, as to
ascertaining or taking action with respect to calls, conversions, exchanges,
maturities, tenders or other matters relative to any Collateral, whether or not
any Secured Party has or is deemed to have knowledge of such matters, or as to
the taking of any necessary steps to preserve rights against any parties or any
other rights pertaining to any Collateral. The Administrative Agent shall be
deemed to have exercised reasonable care in the custody and preservation of any
Collateral in its possession if such Collateral is accorded treatment
substantially equal to that which it accords its own property.
(b) Anything contained herein to the contrary notwithstanding, the
Administrative Agent may from time to time, when the Administrative Agent deems
it to be necessary, appoint one or more subagents (each a "Subagent") for the
Administrative Agent hereunder with respect to all or any part of the
Collateral. In the event that the Administrative Agent so appoints any Subagent
with respect to any Collateral, (i) the assignment and pledge of such Collateral
and the security interest granted in such Collateral by each Loan Party
hereunder shall be deemed for purposes of this Security Agreement to have been
made to such Subagent, in addition to the Administrative Agent, for the ratable
benefit of the Secured Parties, as security for the Secured Obligations of such
Loan Party, (ii) such Subagent shall automatically be vested, in addition to the
Administrative Agent, with all rights, powers, privileges, interests and
remedies of the Administrative Agent hereunder with respect to such Collateral,
and (iii) the term "Administrative Agent," when used herein in relation to any
rights, powers, privileges, interests and remedies of the Administrative Agent
with respect to such Collateral, shall include such Subagent; provided, however,
that no such Subagent shall be authorized to take any action with respect to any
such Collateral unless and except to the extent expressly authorized in writing
by the Administrative Agent.
Section 9.07 Remedies. If any Event of Default shall have occurred and
be continuing:
(a) Subject to and in accordance with the DIP Financing Orders, the
Administrative Agent may exercise in respect of the Collateral, in addition
to other rights and remedies provided for herein or otherwise available to
it, all the rights and remedies of a secured party upon default under the
UCC (whether or not the UCC applies to the affected Collateral) and also
may: (i) require each Loan Party to, and each Loan Party hereby agrees that
it will at its expense and upon request of the Administrative Agent
forthwith, assemble all or part of the Collateral as directed by the
Administrative Agent and make it available to the Administrative Agent at a
place and time to be designated by the Administrative Agent that is
reasonably convenient to both parties; (ii) without notice except as
specified below or in the DIP Financing Orders, sell the Collateral or any
part thereof in one or more parcels at public or private sale, at any of
the Administrative Agent's offices or elsewhere, for cash, on credit or for
future delivery, and upon such other terms as the Administrative Agent may
deem commercially reasonable; (iii) occupy any premises owned or leased by
any of the Loan Parties where the Collateral or any part thereof is
assembled or located for a reasonable period in order to effectuate its
rights and remedies hereunder or under law, without obligation to such Loan
Party in respect of such occupation; and (iv) exercise any and all rights
and remedies of any of the Loan Parties under or in connection with the
Collateral, or otherwise in respect of the Collateral, including, without
limitation, (A) any and all rights of such Loan Party to demand or
otherwise require payment of any amount
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under, or performance of any provision of, the Accounts, the Related
Contracts and the other Collateral, (B) withdraw, or cause or direct the
withdrawal, of all funds with respect to the Account Collateral and (C)
exercise all other rights and remedies with respect to the Accounts, the
Related Contracts and the other Collateral, including, without limitation,
those set forth in Section 9-607 of the UCC. Each Loan Party agrees that,
to the extent notice of sale shall be required by law, at least 10 days'
notice to such Loan Party of the time and place of any public sale or the
time after which any private sale is to be made shall constitute reasonable
notification. The Administrative Agent shall not be obligated to make any
sale of Collateral regardless of notice of sale having been given. The
Administrative Agent may adjourn any public or private sale from time to
time by announcement at the time and place fixed therefor, and such sale
may, without further notice, be made at the time and place to which it was
so adjourned.
(b) Any cash held by or on behalf of the Administrative Agent and all
cash proceeds received by or on behalf of the Administrative Agent in
respect of any sale of, collection from, or other realization upon all or
any part of the Collateral may, in the discretion of the Administrative
Agent, be held by the Administrative Agent as collateral for, and/or then
or at any time thereafter applied (after payment of any amounts payable to
the Administrative Agent pursuant to Section 9.08) in whole or in part by
the Administrative Agent for the ratable benefit of the Secured Parties
against, all or any part of the Secured Obligations, in the following
manner:
(i) first, paid ratably to each Agent for any amounts then owing
to such Agent pursuant to Section 10.04 or otherwise under the Loan
Documents; and
(ii) second, ratably (A) paid to the Secured Parties for any
amounts then owing to them, in their capacities as such, in respect of
the Secured Obligations ratably in accordance with such respective
amounts then owing to such Secured Parties, (B) paid to each Lender
Party (or its applicable Affiliate) for any amounts then owing to such
Lender Party (or such Affiliate) in respect of Cash Management
Obligations, Secured Hedge Agreements and Secured Credit Card
Obligations and (C) deposited as Collateral in the L/C Cash Collateral
Account up to an amount equal to 105% of the aggregate Available
Amount of all outstanding Letters of Credit, provided that in the
event that any such Letter of Credit is drawn, the Administrative
Agent shall pay to the Issuing Bank that issued such Letter of Credit
the amount held in the L/C Cash Collateral Account in respect of such
Letter of Credit, provided further that, to the extent that any such
Letter of Credit shall expire or terminate undrawn and as a result
thereof the amount of the Collateral in the L/C Cash Collateral
Account shall exceed 105% of the aggregate Available Amount of all
then outstanding Letters of Credit, such excess amount of such
Collateral shall be applied in accordance with the remaining order of
priority set out in this Section 9.07(b).
(c) All payments received by any Loan Party under or in connection
with the Collateral shall be received in trust for the benefit of the
Administrative Agent, and after the occurrence, continuance and declaration
of an Event of Default, shall be segregated from other funds of such Loan
Party and shall be forthwith paid over to the Administrative Agent in the
same form as so received (with any necessary endorsement).
(d) The Administrative Agent may, without notice to any Loan Party
except as required by law or by the DIP Financing Orders and at any time or
from time to time, charge, set off and otherwise apply all or any part of
the Secured Obligations against any funds held with respect to the Account
Collateral or in any other deposit account.
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(e) In the event of any sale or other disposition of any of the
Intellectual Property Collateral of any Loan Party, the goodwill symbolized
by any Trademarks subject to such sale or other disposition shall be
included therein, and such Loan Party shall supply to the Administrative
Agent or its designee such Loan Party's know-how and expertise, and
documents and things relating to any Intellectual Property Collateral
subject to such sale or other disposition, and such Loan Party's customer
lists and other records and documents relating to such Intellectual
Property Collateral and to the manufacture, distribution, advertising and
sale of products and services of such Loan Party.
(f) The Administrative Agent is authorized, in connection with any
sale of the Pledged Collateral pursuant to this Section 9.07, to deliver or
otherwise disclose to any prospective purchaser of the Pledged Collateral
any information in its possession relating to such Pledged Collateral.
(g) To the extent that any rights and remedies under this Section 9.07
would otherwise be in violation of the automatic stay of section 362 of the
Bankruptcy Code, such stay shall be deemed modified, as set forth in the
Interim Order or Final Order, as applicable, to the extent necessary to
permit the Administrative Agent to exercise such rights and remedies.
Section 9.08 Modifications. (a) Except as specifically contemplated in
the Interim Order in respect of collateral arrangements between the Revolving
Credit Facility and the Term Facility upon and following entry of the Final
Order, the Liens, lien priority, administrative priorities and other rights and
remedies granted to the Administrative Agent for the benefit of the Lenders
pursuant to this Agreement and the DIP Financing Orders (specifically,
including, but not limited to, the existence, perfection and priority of the
Liens provided herein and therein and the administrative priority provided
herein and therein) shall not be modified, altered or impaired in any manner by
any other financing or extension of credit or incurrence of Debt by any of the
Loan Parties (pursuant to Section 364 of the Bankruptcy Code or otherwise), or
by any dismissal or conversion of any of the Cases, or by any other act or
omission whatsoever (other than in connection with any disposition permitted
hereunder). Without limitation, notwithstanding any such order, financing,
extension, incurrence, dismissal, conversion, act or omission:
(i) except for the Carve-Out having priority over the Secured
Obligations, no costs or expenses of administration which have been or may
be incurred in any of the Cases or any conversion of the same or in any
other proceedings related thereto, and no priority claims, are or will be
prior to or on a parity with any claim of the Administrative Agent or the
Lenders against the Loan Parties in respect of any Obligation;
(ii) the liens and security interests granted herein and in the DIP
Financing Orders shall constitute valid and perfected first priority liens
and security interests (subject only to (A) the Carve-Out, (B) valid and
perfected liens, (C) Permitted Liens in existence on the Petition Date and
junior to such valid and perfected Liens and Liens permitted pursuant to
Section 5.02(a), and (D) only to the extent such post-petition perfection
is expressly permitted by the Bankruptcy Code, valid, nonavoidable and
enforceable Liens existing as of the Petition Date, but perfected after the
Petition Date, in accordance with subsections 364(c)(2) and (3) and 364(d)
of the Bankruptcy Code, and shall be prior to all other Liens and security
interests (other than those set forth in sub-clauses (A) through (D)
herein), now existing or hereafter arising, in favor of any other creditor
or any other Person whatsoever (except that the execution and delivery of
local law governed pledge or analogous documentation with respect to Equity
Interests in Subsidiaries of the Borrower organized in jurisdictions
outside the United States, and the filing, notarization, registration or
other publication thereof, and the taking of other actions, if any,
required under
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local law of the relevant jurisdictions of organization for the effective
grant and perfection of a Lien on such Equity Interests under laws of such
jurisdictions or organization outside the United States, may be required in
order to fully grant, perfect and protect such security interests under
such local laws); and
(iii) the liens and security interests granted hereunder shall
continue valid and perfected without the necessity that financing
statements be filed or that any other action be taken under applicable
nonbankruptcy law.
(b) Notwithstanding any failure on the part of any Loan Party or the
Administrative Agent or the Lenders to perfect, maintain, protect or enforce the
liens and security interests in the Collateral granted hereunder, the Interim
Order and the Final Order (when entered) shall automatically, and without
further action by any Person, perfect such liens and security interests against
the Collateral.
Section 9.09 Release; Termination. (a) Upon any sale, lease, transfer
or other disposition of any item of Collateral of any Loan Party in accordance
with the terms of the Loan Documents (other than sales of Inventory in the
ordinary course of business), the Administrative Agent will, at such Loan
Party's expense, execute and deliver to such Loan Party such documents as such
Loan Party shall reasonably request to evidence the release of such item of
Collateral from the assignment and security interest granted hereby; provided,
however, that (i) at the time of such request and such release no Default shall
have occurred and be continuing, (ii) such Loan Party shall have delivered to
the Administrative Agent, at least 5 Business Days prior to the date of the
proposed release, a written request for release describing the item of
Collateral and the terms of the sale, lease, transfer or other disposition in
reasonable detail, including, without limitation, the price thereof and any
expenses in connection therewith, together with a form of release for execution
by the Administrative Agent and a certificate of such Loan Party to the effect
that the transaction is in compliance with the Loan Documents and as to such
other matters as the Administrative Agent may request, and (iii) the proceeds of
any such sale, lease, transfer or other disposition required to be applied, or
any payment to be made in connection therewith, in accordance with Section 2.06
shall, to the extent so required, be paid or made to, or in accordance with the
instructions of, the Administrative Agent when and as required under Section
2.06, and (iv) in the case of Collateral sold or disposed of, the release of a
Lien created hereby will not be effective until the receipt by the
Administrative Agent of the Net Cash Proceeds arising from the sale or
disposition of such Collateral.
(b) Upon the latest of (i) the payment in full in cash of the Secured
Obligations (other than contingent indemnification obligations which are not
then due and payable), (ii) the Termination Date and (iii) the termination or
expiration of all Letters of Credit, the pledge and security interest granted
hereby shall terminate and all rights to the Collateral shall revert to the
applicable Loan Party. Upon any such termination, the Administrative Agent will,
at the applicable Loan Party's expense, execute and deliver to such Loan Party
such documents as such Loan Party shall reasonably request to evidence such
termination.
ARTICLE X
MISCELLANEOUS
Section 10.01 Amendments, Etc. No amendment or waiver of any provision
of this Agreement or any other Loan Document, and no consent to any departure by
the Borrower or any other Loan Party therefrom, shall be effective unless in
writing signed by the Required Lenders (or the Initial Lenders, as applicable)
and the Borrower or the applicable Loan Party, as the case may be, and
acknowledged by the Administrative Agent, and each such waiver or consent shall
be effective only in the
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specific instance and for the specific purpose for which given; provided,
however, that no such amendment, waiver or consent shall:
(a) waive any condition set forth in Section 3.01(a) without the
written consent of each Initial Lender;
(b) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 2.05 or Section 6.01) without the
written consent of such Lender;
(c) postpone any date fixed by this Agreement or any other Loan
Document for any payment of principal, interest, fees or other amounts due
to the Lenders (or any of them) hereunder or under any other Loan Document
without the written consent of each Lender directly affected thereby;
(d) reduce the principal of, or the rate of interest specified herein
on, any Advance, or any fees or other amounts payable hereunder or under
any other Loan Document without the written consent of each Lender directly
affected thereby;
(e) change (i) Section 2.02(a) in a manner that would alter the pro
rata nature of Borrowings required thereby, (ii) Section 2.13 in a manner
that would alter the pro rata sharing of payments required thereby or (iii)
Section 9.07(b) in a manner that would alter the pro rata sharing of cash
and cash proceeds required thereby, in each case with respect to clauses
(i), (ii) and (iii) of this Section 10.01(e), without the written consent
of each Lender;
(f) change the definition of "Required Lenders" or any other provision
hereof specifying the number or percentage of Lenders required to amend,
waive or otherwise modify any rights hereunder or grant any consent
hereunder, without the written consent of each Lender;
(g) amend, restate, supplement or otherwise modify any provision of
this Agreement or the DIP Financing Orders in any manner that would impair
the interests of the Lenders in Priority Collateral under either the
Revolving Credit Facility or the Term Facility, in each case without the
consent of Lenders holding a majority in interest of the Obligations under
such Facility;
(h) except in connection with a transaction permitted under this
Agreement, release all or substantially all of the Guarantors from the
Guaranty or release all or a material portion of the Collateral or release
the superpriority claim without the written consent of each Lender;
(i) amend, modify or waive the provisions of Section 5.04(b) without
the consent of the Supermajority Lenders; and
(j) change the definition of any of "Availability", "Eligible
Inventory", "Eligible Receivables", "Initial Lenders", "Loan Value" or
"Reserves", in each case, without the written consent of the Initial
Lenders; provided that any change in the definition of "Loan Value" or
"Availability" that would result in an increase in either the Borrowing
Base or Availability shall require the written consent of each Lender;
and provided further that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Swing Line Lender or the Issuing Banks, as the case
may be, in addition to the Lenders required above, affect the rights or duties
of the Swing Line Lender or of the Issuing Banks, as the case may be, under this
Agreement or any Letter of Credit Application relating to any Letter of Credit
issued or to be issued by it;
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and (ii) no amendment, waiver or consent shall, unless in writing and signed by
the Administrative Agent in addition to the Lenders required above, affect the
rights or duties of the Administrative Agent under this Agreement or any other
Loan Document. Notwithstanding anything to the contrary herein, no Defaulting
Lender shall have any right to approve or disapprove any amendment, waiver or
consent hereunder, except that the Commitment of such Lender may not be
increased or extended without the consent of such Lender.
Section 10.02 Notices, Etc. (a) All notices and other communications
provided for hereunder shall be in writing (including telegraphic or telecopy
communication) and mailed, telegraphed, telecopied or delivered, if to the
Borrower or any Guarantor, at the Borrower's address at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer, as well as to (i) the attention of the
general counsel of the Borrower at the Borrower's address, fax number (419)
▇▇▇-▇▇▇▇, and (ii) ▇▇▇▇▇ Day, counsel to the Loan Parties, at its address at ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, fax
number (▇▇▇) ▇▇▇-▇▇▇▇; if to any Initial Lender or the Initial Issuing Banks, at
its Applicable Lending Office, respectively, specified opposite its name on
Schedule I hereto; if to any other Lender Party, at its Applicable Lending
Office specified in the Assignment and Acceptance pursuant to which it became a
Lender Party; if to the Administrative Agent, at its address at ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, fax number (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇
▇▇▇▇▇▇, as well as to Shearman & Sterling, counsel to the Administrative Agent,
at its address at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, fax number
(▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇ ▇'▇▇▇▇▇▇▇▇, Esq.; or, as to the Borrower, any
Guarantor or the Administrative Agent, at such other address as shall be
designated by such party in a written notice to the other parties. All such
notices and communications shall, when mailed, telegraphed or telecopied, be
effective three Business Days after being deposited in the U.S. mails, first
class postage prepaid, delivered to the telegraph company or confirmed as
received when sent by telecopier, respectively, except that notices and
communications to the Administrative Agent pursuant to Article II, III or VII
shall not be effective until received by the Administrative Agent. Delivery by
telecopier of an executed counterpart of any amendment or waiver of any
provision of this Agreement or the Notes or of any Exhibit hereto to be executed
and delivered hereunder shall be effective as delivery of a manually executed
counterpart thereof.
(b) The Borrower hereby agrees that it will provide to the
Administrative Agent all information, documents and other materials that it is
obligated to furnish to the Administrative Agent pursuant to the Loan Documents,
including, without limitation, all notices, requests, financial statements,
financial and other reports, certificates and other information materials, but
excluding any such communication that (i) relates to a request for a new, or a
Conversion of an existing, Borrowing or other Extension of Credit (including any
election of an interest rate or interest period relating thereto), (ii) relates
to the payment of any principal or other amount due under this Agreement prior
to the scheduled date therefor, (iii) provides notice of any Default or Event of
Default under this Agreement or (iv) is required to be delivered to satisfy any
condition precedent to the effectiveness of this Agreement and/or any Borrowing
or other Extension of Credit thereunder (all such non-excluded communications
being referred to herein collectively as "COMMUNICATIONS"), by transmitting the
Communications in an electronic/soft medium in a format acceptable to the
Administrative Agent to ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇. In addition, the Borrower
agrees to continue to provide the Communications to the Administrative Agent in
the manner specified in the Loan Documents but only to the extent requested by
the Administrative Agent. The Borrower further agrees that the Administrative
Agent may make the Communications available to the Lenders by posting the
Communications on IntraLinks or a substantially similar electronic transmission
system (the "PLATFORM").
(c) THE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE". THE AGENT
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE
COMMUNICATIONS, OR THE ADEQUACY OF THE PLATFORM
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AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE COMMUNICATIONS.
NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE
DEFECTS, IS MADE BY THE AGENT PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR
THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS
AFFILIATES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS,
ADVISORS OR REPRESENTATIVES (COLLECTIVELY, "AGENT PARTIES") HAVE ANY LIABILITY
TO THE BORROWER, ANY LENDER PARTY OR ANY OTHER PERSON OR ENTITY FOR DAMAGES OF
ANY KIND, INCLUDING, WITHOUT LIMITATION, DIRECT OR INDIRECT, SPECIAL, INCIDENTAL
OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR
OTHERWISE) ARISING OUT OF THE BORROWER'S OR THE ADMINISTRATIVE AGENT'S
TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE
LIABILITY OF ANY AGENT PARTY IS FOUND IN A FINAL NON-APPEALABLE JUDGMENT BY A
COURT OF COMPETENT JURISDICTION TO HAVE RESULTED PRIMARILY FROM SUCH AGENT
PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
(d) The Administrative Agent agrees that the receipt of the
Communications by the Administrative Agent at its e-mail address set forth above
shall constitute effective delivery of the Communications to the Administrative
Agent for purposes of the Loan Documents. Each Lender Party agrees that notice
to it (as provided in the next sentence) specifying that the Communications have
been posted to the Platform shall constitute effective delivery of the
Communications to such Lender Party for purposes of the Loan Documents. Each
Lender Party agrees to notify the Administrative Agent in writing (including by
electronic communication) from time to time of such Lender Party's e-mail
address to which the foregoing notice may be sent by electronic transmission and
(ii) that the foregoing notice may be sent to such e-mail address. Nothing
herein shall prejudice the right of the Administrative Agent or any Lender Party
to give any notice or other communication pursuant to any Loan Document in any
other manner specified in such Loan Document.
Section 10.03 No Waiver; Remedies. No failure on the part of any
Lender Party or the Administrative Agent to exercise, and no delay in
exercising, any right hereunder or under any Note shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
Section 10.04 Costs, Fees and Expenses. (a) The Borrower agrees (i) to
pay or reimburse the Initial Lenders for all reasonable costs and expenses
incurred in connection with the development, preparation, negotiation and
execution of this Agreement (which shall be deemed to include any predecessor
transaction contemplated to be entered into with the Initial Lenders) and the
other Loan Documents and any amendment, waiver, consent or other modification of
the provisions hereof and thereof (whether or not the transactions contemplated
hereby or thereby are consummated), and the consummation and administration of
the transactions contemplated hereby and thereby (including the monitoring of,
and participation in, all aspects of the Cases), including all fees, expenses
and disbursements of one joint outside counsel for the Administrative Agent and
the Initial Lenders, and (ii) to pay or reimburse the Initial Lenders
(including, without limitation, CNAI in its capacity as Administrative Agent)
for all reasonable costs and expenses incurred in connection with (A) the
ongoing maintenance and monitoring of Availability and (B) enforcement,
attempted enforcement, or preservation of any rights or remedies under this
Agreement or the other Loan Documents (including all such costs and expenses
incurred during any "workout" or restructuring in respect of the Obligations and
during any
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legal proceeding, including any proceeding under any Debtor Relief Law),
including all reasonable fees, expenses and disbursements of outside counsel for
the Initial Lenders (including, without limitation, CNAI in its capacity as
Administrative Agent). The foregoing fees, costs and expenses shall include all
search, filing, recording, title insurance, collateral review, monitoring, and
appraisal charges and fees and taxes related thereto, and other reasonable
out-of-pocket expenses incurred by the Initial Lenders and the cost of
independent public accountants and other outside experts retained jointly by the
Initial Lenders. All amounts due under this Section 10.04(a) shall be payable
within ten Business Days after demand therefor accompanied by an appropriate
invoice. The agreements in this Section shall survive the termination of the
Commitments and repayment of all other Obligations.
(b) Whether or not the transactions contemplated hereby are
consummated, the Borrower shall indemnify and hold harmless each Agent-Related
Person, each Lender and their respective Affiliates, directors, officers,
employees, counsel, agents, advisors, attorneys-in-fact and representatives
(collectively the "Indemnitees") from and against any and all claims, damages,
losses, liabilities and expenses (including, without limitation, fees and
disbursements of counsel), joint or several that may be incurred by, or asserted
or awarded against any Indemnitee, in each case arising out of or in connection
with or relating to any investigation, litigation or proceeding or the
preparation of any defense with respect thereto arising out of or in connection
with (i) the execution, delivery, enforcement, performance or administration of
any Loan Document or any other agreement, letter or instrument delivered in
connection with the transactions contemplated thereby or the consummation of the
transactions contemplated thereby, (ii) any Commitment, Advance or Letter of
Credit or the use or proposed use of the proceeds therefrom (including any
refusal by an Issuing Bank to honor a demand for payment under a Letter of
Credit if the documents presented in connection with such demand do not strictly
comply with the terms of such Letter of Credit), (iii) any actual or alleged
presence or release of Hazardous Materials on or from any property currently or
formerly owned or operated by the Borrower or any other Loan Party, or any
Liability related in any way to the Borrower or any other Loan Party in respect
of Environmental Laws, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory (including any investigation of, preparation
for, or defense of any pending or threatened claim, investigation, litigation or
proceeding) and regardless of whether any Indemnitee is a party thereto (all the
foregoing, collectively, the "Indemnified Liabilities"), in all cases, whether
or not caused by or arising, in whole or in part, out of the negligence of the
Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such claim, damage, loss, liability or expense is
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted primarily from the gross negligence or willful
misconduct of such Indemnitee. In the case of an investigation, litigation or
other proceeding to which the indemnity in this Section 10.04(b) applies, such
indemnity shall be effective whether or not such investigation, litigation or
proceeding is brought by the Borrower or any of its Subsidiaries, any security
holders or creditors of the foregoing an Indemnitee or any other Person, or an
Indemnitee is otherwise a party thereto and whether or not the transactions
contemplated hereby are consummated. No Indemnitee shall have any liability
(whether direct or indirect, in contract, tort or otherwise) to the Borrower or
any of its Subsidiaries for or in connection with the transactions contemplated
hereby, except to the extent such liability is determined in a final
non-appealable judgment by a court of competent jurisdiction to have resulted
from such Indemnitee's gross negligence or willful misconduct. In no event,
however, shall any Indemnitee be liable on any theory of liability for any
special, indirect, consequential or punitive damages (including, without
limitation, any loss of profits, business or anticipated savings). No Indemnitee
shall be liable for any damages arising from the use by others of any
information or other materials obtained through IntraLinks or other similar
information transmission systems in connection with this Agreement. All amounts
due under this Section 10.04(b) shall be payable within two Business Days after
demand therefor. The agreements in this Section shall survive the resignation of
the Administrative Agent, the replacement of any Lender, the termination of the
Commitments and the repayment, satisfaction or discharge of all the other
Obligations.
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(c) If any payment of principal of, or Conversion of, any Eurodollar
Rate Advance is made by the Borrower to or for the account of a Lender Party
other than on the last day of the Interest Period for such Advance, as a result
of a payment or Conversion pursuant to Section 2.06, 2.09(b)(i) or 2.10(d),
acceleration of the maturity of the Notes pursuant to Section 6.01 or for any
other reason, or if the Borrower fails to make any payment or prepayment of an
Advance for which a notice of prepayment has been given or that is otherwise
required to be made, whether pursuant to Section 2.04, 2.06 or 6.01 or
otherwise, the Borrower shall, upon demand by such Lender Party (with a copy of
such demand to the Administrative Agent), pay to the Administrative Agent for
the account of such Lender Party any amounts required to compensate such Lender
Party for any additional losses, costs or expenses that it may reasonably incur
as a result of such payment or Conversion or such failure to pay or prepay, as
the case may be, including, without limitation, any actual loss (excluding loss
of anticipated profits), cost or expense incurred by reason of the liquidation
or reemployment of deposits or other funds acquired by any Lender Party to fund
or maintain such Advance.
Section 10.05 Right of Set-off. Subject to the DIP Financing Orders,
upon (a) the occurrence and during the continuance of any Event of Default and
(b) the making of the request or the granting of the consent specified by
Section 6.01 to authorize the Administrative Agent to declare the Notes due and
payable pursuant to the provisions of Section 6.01, each Lender Party and each
of its respective Affiliates is hereby authorized at any time and from time to
time, to the fullest extent permitted by law, to set off and otherwise apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other indebtedness at any time owing by such Lender Party or
such Affiliate to or for the credit or the account of the Borrower against any
and all of the Obligations of the Borrower now or hereafter existing under this
Agreement and the Note or Notes (if any) held by such Lender Party, irrespective
of whether such Lender Party shall have made any demand under this Agreement or
such Note or Notes and although such obligations may be unmatured. Each Lender
Party agrees promptly to notify the Borrower after any such set-off and
application; provided, however, that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of each Lender
Party and its respective Affiliates under this Section are in addition to other
rights and remedies (including, without limitation, other rights of set-off)
that such Lender Party and its respective Affiliates may have.
Section 10.06 Binding Effect. This Agreement shall become effective
when it shall have been executed by the Borrower, the Guarantors, each Agent,
the Initial Issuing Banks and the Initial Swing Line Lender and the
Administrative Agent shall have been notified by each Initial Lender that such
Initial Lender has executed it and thereafter shall be binding upon and inure to
the benefit of the Borrower, each Agent and each Lender Party and their
respective successors and assigns, except that the Borrower shall not have the
right to assign its rights hereunder or any interest herein without the prior
written consent of each Lender Party.
Section 10.07 Successors and Assigns. (a) Each Lender may assign all
or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment or Commitments, the
Advances owing to it and the Note or Notes held by it); provided, however, that
(i) each such assignment shall be of a uniform, and not a varying, percentage of
all rights and obligations under and in respect of any or all Facilities, (ii)
except in the case of an assignment to a Person that, immediately prior to such
assignment, was a Lender, an Affiliate of any Lender or an Approved Fund of any
Lender or an assignment of all of a Lender's rights and obligations under this
Agreement, the aggregate amount of the Commitments being assigned to such
Eligible Assignee pursuant to such assignment (determined as of the date of the
Assignment and Acceptance with respect to such assignment) shall in no event be
less than $1,000,000 or, in the case of an assignment of the Revolving Credit
Facility, $5,000,000 under each Facility for which a Commitment is being
assigned, (iii) each such assignment shall be to an Eligible Assignee, and (iv)
the parties to each such assignment shall execute and
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deliver to the Administrative Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with any Note or Notes (if any)
subject to such assignment and a processing and recordation fee of $3,500.
(b) Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in such Assignment and Acceptance, (i) the
assignee thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender or Issuing Bank, as the
case may be, hereunder and (ii) the Lender or Issuing Bank assignor thereunder
shall, to the extent that rights and obligations hereunder have been assigned by
it pursuant to such Assignment and Acceptance, relinquish its rights (other than
its rights under Sections 2.10, 2.12 and 10.04 to the extent any claim
thereunder relates to an event arising prior to such assignment) and be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the remaining portion of an assigning Lender's or
Issuing Bank's rights and obligations under this Agreement, such Lender or
Issuing Bank shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, each
Lender Party assignor thereunder and each assignee thereunder confirm to and
agree with each other and the other parties thereto and hereto as follows: (i)
other than as provided in such Assignment and Acceptance, such assigning Lender
Party makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with any Loan Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, any Loan Document or any other instrument or
document furnished pursuant thereto; (ii) such assigning Lender Party makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of any Loan Party or the performance or observance by any
Loan Party of any of its obligations under any Loan Document or any other
instrument or document furnished pursuant thereto; (iii) such assignee confirms
that it has received a copy of this Agreement, together with copies of the
financial statements referred to in Section 4.01 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon any Agent, such assigning Lender Party
or any other Lender Party and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) such assignee confirms
that it is an Eligible Assignee; (vi) such assignee appoints and authorizes each
Agent to take such action as agent on its behalf and to exercise such powers and
discretion under the Loan Documents as are delegated to such Agent by the terms
hereof and thereof, together with such powers and discretion as are reasonably
incidental thereto; and (vii) such assignee agrees that it will perform in
accordance with their terms all of the obligations that by the terms of this
Agreement are required to be performed by it as a Lender or Issuing Bank, as the
case may be.
(d) The Administrative Agent, acting for this purpose (but only for
this purpose) as the agent of the Borrower, shall maintain at its address
referred to in Section 10.02 a copy of each Assignment and Acceptance delivered
to and accepted by it and a register for the recordation of the names and
addresses of the Lender Parties and the Commitment under each Facility of, and
principal amount of the Advances owing under each Facility to, each Lender Party
from time to time (the "Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Agents and the Lender Parties may treat each Person whose name is
recorded in the Register as a Lender Party hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or any
Agent or any Lender Party at any reasonable time and from time to time upon
reasonable prior notice.
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(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender Party and an assignee, together with any Note or Notes subject
to such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit C
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof and a
copy of such Assignment and Acceptance to the Borrower and each other Agent. In
the case of any assignment by a Lender, within five Business Days after its
receipt of such notice, the Borrower, at its own expense, shall execute and
deliver to the Administrative Agent in exchange for the surrendered Note or
Notes (if any) a new Note to the order of such Eligible Assignee in an amount
equal to the Commitment assumed by it under each Facility pursuant to such
Assignment and Acceptance and, if any assigning Lender that had a Note or Notes
prior to such assignment has retained a Commitment hereunder under such
Facility, a new Note to the order of such assigning Lender in an amount equal to
the Commitment retained by it hereunder. Such new Note or Notes shall be dated
the effective date of such Assignment and Acceptance and shall otherwise be in
substantially the form of Exhibit A-1 or A-2 hereto, as the case may be.
(f) Each Issuing Bank may assign to one or more Eligible Assignees all
or a portion of its rights and obligations under the undrawn portion of its
Letter of Credit Commitment at any time; provided, however, that (i) each such
assignment shall be to an Eligible Assignee and (ii) the parties to each such
assignment shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance, together
with a processing and recordation fee of $3,500.
(g) Each Lender Party may sell participations to one or more Persons
(other than any Loan Party or any of its Affiliates) in or to all or a portion
of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitments, the Advances owing to it and
any Note or Notes held by it); provided, however, that (i) such Lender Party's
obligations under this Agreement (including, without limitation, its
Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender Party shall remain the holder of any such Note for all
purposes of this Agreement, (iv) the Borrower, the Agents and the other Lender
Parties shall continue to deal solely and directly with such Lender Party in
connection with such Lender Party's rights and obligations under this Agreement,
(v) no participant under any such participation shall have any right to approve
any amendment or waiver of any provision of any Loan Document, or any consent to
any departure by any Loan Party therefrom, except to the extent that such
amendment, waiver or consent would reduce the principal of, or interest (other
than default interest) on, the Advances or any fees or other amounts payable
hereunder, in each case to the extent subject to such participation, postpone
any date fixed for any payment of principal of, or interest on, the Advances or
any fees or other amounts payable hereunder, in each case to the extent subject
to such participation, or release a substantial portion of the value of the
Collateral or the value of the Guaranties and (vi) the participating banks or
other entities shall be entitled to the benefit of Section 2.12 to the same
extent as if they were a Lender Party but, with respect to any particular
participant, to no greater extent than the Lender Party that sold the
participation to such participant and only if such participant agrees to comply
with Section 2.12(e) as though it were a Lender Party.
(h) Any Lender Party may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
10.07, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender
Party by or on behalf of the Borrower; provided, however, that, prior to any
such disclosure, the assignee or participant or proposed assignee or participant
shall agree to preserve the confidentiality of any Confidential Information
received by it from such Lender Party in accordance with Section 10.09 hereof.
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(i) Notwithstanding any other provision set forth in this Agreement,
any Lender Party may at any time (and without the consent of the Administrative
Agent or the Borrower) create a security interest in all or any portion of its
rights under this Agreement (including, without limitation, the Advances owing
to it and any Note or Notes held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve
System
(j) Notwithstanding anything to the contrary contained herein, any
Lender that is a fund that invests in bank loans may create a security interest
in all or any portion of the Advances owing to it and the Note or Notes held by
it to the trustee for holders of obligations owed, or securities issued, by such
fund as security for such obligations or securities, provided, however, that
unless and until such trustee actually becomes a Lender in compliance with the
other provisions of this Section 10.07, (i) no such pledge shall release the
pledging Lender from any of its obligations under the Loan Documents and (ii)
such trustee shall not be entitled to exercise any of the rights of a Lender
under the Loan Documents even though such trustee may have acquired ownership
rights with respect to the pledged interest through foreclosure or otherwise.
(k) Notwithstanding anything to the contrary contained herein, any
Lender Party (a "Granting Lender") may grant to a special purpose funding
vehicle identified as such in writing from time to time by the Granting Lender
to the Administrative Agent and the Borrower (an "SPC") the option to provide
all or any part of any Advance that such Granting Lender would otherwise be
obligated to make pursuant to this Agreement; provided, however, that (i)
nothing herein shall constitute a commitment by any SPC to fund any Advance, and
(ii) if an SPC elects not to exercise such option or otherwise fails to make all
or any part of such Advance, the Granting Lender shall be obligated to make such
Advance pursuant to the terms hereof. The making of an Advance by an SPC
hereunder shall utilize the Commitment of the Granting Lender to the same
extent, and as if, such Advance were made by such Granting Lender. Each party
hereto hereby agrees that (i) no SPC shall be liable for any indemnity or
similar payment obligation under this Agreement for which a Lender Party would
be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.10 and
2.12 (or any other increased costs protection provision) and (iii) the Granting
Lender shall for all purposes, including, without limitation, the approval of
any amendment or waiver of any provision of any Loan Document, remain the Lender
Party of record hereunder. In furtherance of the foregoing, each party hereto
hereby agrees (which agreement shall survive the termination of this Agreement)
that, prior to the date that is one year and one day after the payment in full
of all outstanding commercial paper or other senior Debt of any SPC, it will not
institute against, or join any other person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding
under the laws of the United States or any State thereof. Notwithstanding
anything to the contrary contained in this Agreement, any SPC may (i) with
notice to, but without prior consent of, the Borrower and the Administrative
Agent, assign all or any portion of its interest in any Advance to the Granting
Lender and (ii) disclose on a confidential basis any non-public information
relating to its funding of Advances to any rating agency, commercial paper
dealer or provider of any surety or guarantee or credit or liquidity enhancement
to such SPC. This subsection (k) may not be amended without the prior written
consent of each Granting Lender, all or any part of whose Advances are being
funded by the SPC at the time of such amendment.
Section 10.08 Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
Section 10.09 Confidentiality; Press Releases and Related Matters. (a)
No Agent or Lender Party shall disclose any Confidential Information to any
Person without the consent of the
101
Borrower, other than (i) to such Agent's or such Lender Party's Affiliates and
their officers, directors, employees, agents and advisors and to actual or
prospective Eligible Assignees and participants, and then only on a
confidential, need-to-know basis, (ii) as requested or required by any law, rule
or regulation or judicial process or (iii) as requested or required by any
state, federal or foreign authority or examiner regulating banks or banking.
(b) Each of the parties hereto and each party joining hereafter agrees
that neither it nor its Affiliates will in the future issue any press releases
or other public disclosure using the name of any Lender or its Affiliates or
referring to this Agreement or any of the other Loan Documents without at least
2 Business Days' prior notice to such Lender and without the prior written
consent of such Lender or unless (and only to the extent that) such party or
Affiliate is required to do so under law and then, in any event, such party or
Affiliate will consult with the Borrower, the Administrative Agent and such
Lender before issuing such press release or other public disclosure. Each party
consents to the publication by the Agents or any Lender Party of a tombstone or
similar advertising material relating to the financing transactions contemplated
by this Agreement. The Agents reserve the right to provide to industry trade
organizations such necessary and customary information needed for inclusion in
league table measurements.
Section 10.10 Patriot Act Notice.(a) Each Lender Party and each Agent
(for itself and not on behalf of any Lender Party) hereby notifies the Loan
Parties that pursuant to the requirements of the Patriot Act, it is required to
obtain, verify and record information that identifies each Loan Party, which
information includes the name and address of such Loan Party and other
information that will allow such Lender Party or such Agent, as applicable, to
identify such Loan Party in accordance with the Patriot Act. The Borrower shall,
and shall cause each of its Subsidiaries to, provide the extent commercially
reasonable, such information and take such actions as are reasonably requested
by any Agents or any Lender Party in order to assist the Agents and the Lender
Parties in maintaining compliance with the Patriot Act.
Section 10.11 Jurisdiction, Etc. (a) Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or federal court of the
United States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement or any of the other Loan Documents to which it is a party, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such New York State
court or, to the extent permitted by law, in such federal court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that any party may otherwise have to bring any action or
proceeding relating to this Agreement or any of the other Loan Documents in the
courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection that
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or any of the other Loan
Documents to which it is a party in any New York State or federal court. Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
Section 10.12 Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New York
and, to the extent applicable, the Bankruptcy Code.
102
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Section 10.13 Waiver of Jury Trial. Each of the Guarantors, the
Borrower, the Agents and the Lender Parties irrevocably waives all right to
trial by jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to any of the Loan
Documents, the Advances or the actions of the Administrative Agent or any Lender
Party in the negotiation, administration, performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
▇▇▇▇ CORPORATION, a debtor and a
debtor-in-possession, as Borrower
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Treasurer
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President, Secretary
and General Counsel
BRAKE SYSTEMS, INC.
As a debtor and a debtor-in-possession,
and each a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Treasurer
BWDAC, INC.
As a debtor and a debtor-in-possession,
and each a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Treasurer
COUPLED PRODUCTS, INC.
As a debtor and a debtor-in-possession,
and each a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Treasurer
DAKOTA NEW YORK CORP.
As a debtor and a debtor-in-possession,
and each a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Treasurer
DANA ATLANTIC LLC FKA GLACIER
DAIDO AMERICA, LLC
As a debtor and a debtor-in-possession,
and each a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇ AUTOMOTIVE AFTERMARKET, INC.
As a debtor and a debtor-in-possession,
and each a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Secretary
DANABRAZIL HOLDINGS LLC
As a debtor and a debtor-in-possession,
and each a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Treasurer
DANA BRAZIL HOLDINGS 1 LLC
As a debtor and a debtor-in-possession,
and each a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
▇▇▇▇ INFORMATION TECHNOLOGY LLC
As a debtor and a debtor-in-possession,
and each a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Treasurer
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ FINANCE, INC.
As a debtor and a debtor-in-possession,
and each a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ HOLDINGS, INC.
As a debtor and a debtor-in-possession,
and each a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Treasurer
▇▇▇▇ RISK MANAGEMENT SERVICES, INC.
As a debtor and a debtor-in-possession,
and each a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇ TECHNOLOGY INC.
As a debtor and a debtor-in-possession,
and each a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Treasurer
▇▇▇▇ WORLD TRADE CORPORATION
As a debtor and a debtor-in-possession,
and each a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Treasurer
DANDORR L.L.C.
As a debtor and a debtor-in-possession,
and each a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇ LEASING CORPORATION
As a debtor and a debtor-in-possession,
and each a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Treasurer
DTF TRUCKING, INC.
As a debtor and a debtor-in-possession,
and each a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Treasurer
▇▇▇▇▇▇-▇▇▇▇▇, INC.
As a debtor and a debtor-in-possession,
and each a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Treasurer
EFMC LLC
As a debtor and a debtor-in-possession,
and each a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Treasurer
EPE, INC.
As a debtor and a debtor-in-possession,
and each a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Treasurer
ERS LLC
As a debtor and a debtor-in-possession,
and each a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Treasurer
FLIGHT OPERATIONS, INC.
As a debtor and a debtor-in-possession,
and each a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
FRICTION INC.
As a debtor and a debtor-in-possession,
and each a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Treasurer
FRICTION MATERIALS, INC.
As a debtor and a debtor-in-possession,
and each a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Treasurer
GLACIER VANDERVELL INC.
As a debtor and a debtor-in-possession,
and each a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Treasurer
HOSE & TUBING PRODUCTS, INC.
As a debtor and a debtor-in-possession,
and each a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Treasurer
▇▇▇▇ CORPORATION
As a debtor and a debtor-in-possession,
and each a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Treasurer
LONG AUTOMOTIVE LLC
As a debtor and a debtor-in-possession,
and each a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Treasurer
LONG COOLING LLC
As a debtor and a debtor-in-possession,
and each a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Treasurer
LONG USA LLC
As a debtor and a debtor-in-possession,
and each a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Treasurer
MIDLAND BRAKE, INC.
As a debtor and a debtor-in-possession,
and each a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
PRATTVILLE MFG., INC.
As a debtor and a debtor-in-possession,
and each a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
REINZ WISCONSIN GASKET LLC
As a debtor and a debtor-in-possession,
and each a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
▇▇▇▇▇▇ HEAVY AXLE & BRAKE, INC.
As a debtor and a debtor-in-possession,
and each a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
▇▇▇▇▇▇ HEAVY AXLE HOLDINGS, INC.
As a debtor and a debtor-in-possession,
and each a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
▇▇▇▇▇▇ OUTDOOR POWER EQUIPMENT
COMPONENTS LLC
As a debtor and a debtor-in-possession,
and each a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
TORQUE-TRACTION INTEGRATION
TECHNOLOGIES LLC
As a debtor and a debtor-in-possession,
and each a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
TORQUE-TRACTION MANUFACTURING
TECHNOLOGIES LLC
As a debtor and a debtor-in-possession,
and each a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
TORQUE-TRACTION TECHNOLOGIES LLC
As a debtor and a debtor-in-possession,
and each a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
UNITED BRAKE SYSTEMS INC.
As a debtor and a debtor-in-possession,
and each a Guarantor
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
CITICORP NORTH AMERICA, INC., as
Administrative Agent
By /s/ Shapleigh ▇. ▇▇▇▇▇
-------------------------------------
Name: Shapleigh ▇. ▇▇▇▇▇
Title: Managing Director
CITICORP NORTH AMERICA, INC., as
Initial Issuing Bank
By /s/ Shapleigh ▇. ▇▇▇▇▇
-------------------------------------
Name: Shapleigh ▇. ▇▇▇▇▇
Title: Managing Director
CITICORP NORTH AMERICA, INC., as
Initial Swing Line Lender
By /s/ Shapleigh ▇. ▇▇▇▇▇
-------------------------------------
Name: Shapleigh ▇. ▇▇▇▇▇
Title: Managing Director
BANK OF AMERICA, N.A., as Initial
Issuing Bank and as Co-Syndication Agent
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: SVP
JPMORGAN CHASE BANK, N.A., as Initial
Issuing Bank and as Co-Syndication Agent
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
CITICORP NORTH AMERICA, INC., as Initial
Lender
By /s/ Shapleigh ▇. ▇▇▇▇▇
-------------------------------------
Name: Shapleigh ▇. ▇▇▇▇▇
Title: Managing Director
JPMORGAN CHASE BANK, N.A., as Initial
Lender
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
BANK OF AMERICA, N.A., as Initial
Lender
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: SVP