Exhibit 99(a)
AMENDED AND RESTATED
REVOLVING CREDIT, TERM LOAN AND GUARANTY AGREEMENT
AMONG
DELPHI CORPORATION
A DEBTOR AND A DEBTOR-IN-POSSESSION UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
AS BORROWER,
AND
THE SUBSIDIARIES OF THE BORROWER NAMED HEREIN,
EACH A DEBTOR AND A DEBTOR-IN-POSSESSION UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
AS GUARANTORS
AND
THE LENDERS PARTY HERETO,
AND
JPMORGAN CHASE BANK, N.A.
AS ADMINISTRATIVE AGENT
AND
CITICORP USA, INC.
AS SYNDICATION AGENT
AND
ABLECO FINANCE LLC,
DEUTSCHE BANK TRUST COMPANY AMERICAS
AND
GENERAL ELECTRIC CAPITAL CORPORATION
AS CO-DOCUMENTATION AGENTS
▇.▇. ▇▇▇▇▇▇ SECURITIES INC., CITIGROUP GLOBAL MARKETS, INC.
AND DEUTSCHE BANK SECURITIES INC.
AS JOINT BOOKRUNNERS
AND
JOINT LEAD ARRANGERS
DATED AS OF NOVEMBER 21, 2005
TABLE OF CONTENTS
PAGE
----
SECTION 1. DEFINITIONS................................................... 2
SECTION 1.01 Defined Terms......................................... 2
SECTION 1.02 Terms Generally....................................... 29
SECTION 1.03 Accounting Terms; GAAP................................ 30
SECTION 2. AMOUNT AND TERMS OF CREDIT.................................... 30
SECTION 2.01 Commitments of the Lenders............................ 30
SECTION 2.02 Reserved.............................................. 31
SECTION 2.03 Letters of Credit..................................... 31
SECTION 2.04 Requests for Borrowings............................... 36
SECTION 2.05 Funding of Borrowings................................. 37
SECTION 2.06 Interest Elections.................................... 38
SECTION 2.07 [Reserved]............................................ 39
SECTION 2.08 Interest on Loans..................................... 39
SECTION 2.09 Default Interest...................................... 39
SECTION 2.10 Alternate Rate of Interest............................ 39
SECTION 2.11 Repayment of Loans; Evidence of Debt.................. 40
SECTION 2.12 Optional Termination or Reduction of Commitment....... 40
SECTION 2.13 Mandatory Prepayment; Commitment Termination.......... 41
SECTION 2.14 Optional Prepayment of Loans.......................... 42
SECTION 2.15 Reserved.............................................. 42
SECTION 2.16 Increased Costs....................................... 42
SECTION 2.17 Break Funding Payments................................ 44
SECTION 2.18 Taxes................................................. 44
SECTION 2.19 Payments Generally; Pro Rata Treatment................ 47
SECTION 2.20 Mitigation Obligations; Replacement of Lenders........ 48
SECTION 2.21 Certain Fees.......................................... 49
SECTION 2.22 Commitment Fees....................................... 49
SECTION 2.23 Letter of Credit Fees................................. 49
SECTION 2.24 Nature of Fees........................................ 49
SECTION 2.25 Priority and Liens.................................... 49
TABLE OF CONTENTS
(CONTINUED)
SECTION 2.26 Right of Set-Off...................................... 51
SECTION 2.27 Security Interest in Letter of Credit Account......... 52
SECTION 2.28 Payment of Obligations................................ 52
SECTION 2.29 No Discharge; Survival of Claims...................... 52
SECTION 2.30 Use of Cash Collateral................................ 52
SECTION 3. REPRESENTATIONS AND WARRANTIES................................ 52
SECTION 3.01 Organization and Authority............................ 53
SECTION 3.02 Due Execution......................................... 53
SECTION 3.03 Statements Made....................................... 53
SECTION 3.04 Financial Statements.................................. 54
SECTION 3.05 Ownership............................................. 54
SECTION 3.06 Liens................................................. 54
SECTION 3.07 Compliance with Law................................... 54
SECTION 3.08 Insurance............................................. 55
SECTION 3.09 Use of Proceeds....................................... 55
SECTION 3.10 Litigation............................................ 55
SECTION 3.11 ERISA................................................. 55
SECTION 3.12 The Orders............................................ 55
SECTION 3.13 Properties............................................ 56
SECTION 4. CONDITIONS OF LENDING......................................... 56
SECTION 4.01 Conditions Precedent to Initial Loans and Initial
Letters of Credit..................................... 56
SECTION 4.02 Conditions Precedent to Each Loan and Each Letter of
Credit................................................ 59
SECTION 4.03 Conditions Precedent to the Tranche B Loan............ 60
SECTION 4.04 Conditions Precedent to the Amendment and Restatement
Effective Date; Effect of Amendment and Restatement... 60
SECTION 5. AFFIRMATIVE COVENANTS......................................... 61
SECTION 5.01 Financial Statements, Reports, etc.................... 61
SECTION 5.02 Existence............................................. 64
SECTION 5.03 Insurance............................................. 64
SECTION 5.04 Obligations and Taxes................................. 64
SECTION 5.05 Notice of Event of Default, etc....................... 65
SECTION 5.06 Access to Books and Records........................... 65
SECTION 5.07 Maintenance of Concentration Account.................. 65
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TABLE OF CONTENTS
(CONTINUED)
SECTION 5.08 Borrowing Base Certificate............................ 65
SECTION 5.09 Collateral Monitoring and Review...................... 66
SECTION 5.10 Public Rating......................................... 66
SECTION 5.11 Subsequently Filed Domestic Entities.................. 66
SECTION 5.12 Post-Closing Deliveries............................... 67
SECTION 6. NEGATIVE COVENANTS............................................ 67
SECTION 6.01 Liens................................................. 67
SECTION 6.02 Merger, etc........................................... 69
SECTION 6.03 Indebtedness.......................................... 69
SECTION 6.04 EBITDAR............................................... 70
SECTION 6.05 [Reserved]............................................ 71
SECTION 6.06 Chapter 11 Claims..................................... 71
SECTION 6.07 Dividends; Capital Stock.............................. 71
SECTION 6.08 Transactions with Affiliates.......................... 72
SECTION 6.09 Investments, Loans and Advances....................... 72
SECTION 6.10 Disposition of Assets................................. 73
SECTION 6.11 Nature of Business.................................... 73
SECTION 7. EVENTS OF DEFAULT............................................. 74
SECTION 7.01 Events of Default..................................... 74
SECTION 8. THE AGENTS.................................................... 77
SECTION 8.01 Appointments; Administration by Administrative Agent;
No Duties for Syndication Agent....................... 77
SECTION 8.02 Rights of Agents...................................... 77
SECTION 8.03 Liability of Agents................................... 77
SECTION 8.04 Reimbursement and Indemnification..................... 78
SECTION 8.05 Successor Administrative Agent........................ 78
SECTION 8.06 Independent Lenders................................... 79
SECTION 8.07 Advances and Payments................................. 79
SECTION 8.08 Sharing of Setoffs.................................... 80
SECTION 9. GUARANTY...................................................... 80
SECTION 9.01 Guaranty.............................................. 80
SECTION 9.02 No Impairment of Guaranty............................. 81
SECTION 9.03 Subrogation........................................... 81
iii
TABLE OF CONTENTS
(CONTINUED)
SECTION 10. MISCELLANEOUS................................................ 82
SECTION 10.01 Notices............................................... 82
SECTION 10.02 Survival of Agreement, Representations and Warranties,
etc................................................... 83
SECTION 10.03 Successors and Assigns................................ 83
SECTION 10.04 Confidentiality....................................... 87
SECTION 10.05 Expenses; Indemnity; Damage Waiver.................... 87
SECTION 10.06 CHOICE OF LAW......................................... 88
SECTION 10.07 No Waiver............................................. 88
SECTION 10.08 Extension of Maturity................................. 89
SECTION 10.09 Amendments, etc....................................... 89
SECTION 10.10 Severability.......................................... 90
SECTION 10.11 Headings.............................................. 90
SECTION 10.12 Survival.............................................. 91
SECTION 10.13 Execution in Counterparts; Integration;
Effectiveness......................................... 91
SECTION 10.14 Prior Agreements...................................... 91
SECTION 10.15 Further Assurances.................................... 91
SECTION 10.16 USA Patriot Act....................................... 92
SECTION 10.17 WAIVER OF JURY TRIAL.................................. 92
ANNEX A Commitment Amounts
EXHIBIT A-1 - Interim Order
EXHIBIT A-2 - Final Order
EXHIBIT B - Form of Security and Pledge Agreement
EXHIBIT C - Form of Assignment and Acceptance
EXHIBIT D - Form of Exemption Certificate
EXHIBIT E - Form of Borrowing Base Certificate
SCHEDULE 1.01 - Existing Agreement
SCHEDULE 3.05 - Subsidiaries
SCHEDULE 3.10 - Litigation
SCHEDULE 6.01 - Liens
SCHEDULE 6.08 - Transactions with Affiliates
SCHEDULE 6.10 - Asset Sales
iv
AMENDED AND RESTATED
REVOLVING CREDIT, TERM LOAN AND GUARANTY AGREEMENT
DATED AS OF NOVEMBER 21, 2005
AMENDED AND RESTATED REVOLVING CREDIT, TERM LOAN AND GUARANTY
AGREEMENT, dated as of November 21, 2005, among DELPHI CORPORATION, a Delaware
corporation (the "Borrower"), a debtor and debtor-in-possession in a case
pending under Chapter 11 of the Bankruptcy Code, and the subsidiaries of the
Borrower signatory hereto (each a "Guarantor" and collectively the
"Guarantors"), each of which Guarantors is a debtor and debtor-in-possession in
a case pending under Chapter 11 of the Bankruptcy Code (the cases of the
Borrower and the Guarantors, each a "Case" and collectively, the "Cases"),
JPMORGAN CHASE BANK, N.A., a national banking association ("JPMCB"), CITICORP
USA, INC. ("CUSA"), each of the other financial institutions from time to time
party hereto (together with JPMCB and CUSA, the "Lenders"), JPMCB, as
administrative agent (in such capacity, the "Administrative Agent") for the
Lenders, and CUSA, as syndication agent (in such capacity, the "Syndication
Agent"; together, the Administrative Agent and the Syndication Agent are the
"Agents") for the Lenders.
INTRODUCTORY STATEMENT
On October 8, 2005, the Borrower and the Guarantors filed voluntary
petitions with the Bankruptcy Court initiating the Cases 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.
On October 14, 2005 the Borrower, the Guarantors, JPMCB and CUSA as
Lenders, the Administrative Agent and the Syndication Agent entered into the
Revolving Credit, Term Loan and Guaranty Agreement dated as of October 14, 2005
(the "Original DIP Credit Agreement", and the Original DIP Credit Agreement as
amended by the First Amendment (as defined below), the "Existing DIP Credit
Agreement"), which provides for (i) loan facilities of $2,000,000,000, comprised
of (1) a revolving credit and letter of credit facility in an aggregate
principal amount of $1,750,000,000 as set forth therein and (2) a term loan in
an aggregate principal amount of $250,000,000 as set forth therein and (ii) all
of the Borrower's obligations thereunder to be guaranteed by the Guarantors.
On October 27, 2005 the Borrower, the Guarantors, JPMCB and CUSA as
Lenders, the Administrative Agent and the Syndication Agent entered into the
First Amendment to Revolving Credit, Term Loan and Guaranty Agreement dated as
of October 27, 2005 (the "First Amendment").
There are no Loans outstanding under the Existing DIP Credit
Agreement. There are letters of credit outstanding under the Existing DIP Credit
Agreement, which will be deemed to be Letters of Credit outstanding hereunder.
The Borrower, the Guarantors, the Lenders party hereto, the
Administrative Agent and the Syndication Agent wish to amend and restate the
Existing DIP Credit Agreement in its entirety in order to add additional Lenders
to the facility and re-allocate Commitments
1
accordingly and to effect certain other amendments to the Existing DIP Credit
Agreement as set forth herein.
The Borrower, the Existing Lenders and the Existing Agent are parties
to the Existing Agreement pursuant to which the Borrower was (and the
Pre-Petition Guarantors were, pursuant to the Guarantee and Collateral Agreement
(as defined in the Existing Credit Agreement)) truly and justly indebted to the
Existing Lenders on the Filing Date in the principal amount of $2,579,783,051.85
(including the aggregate outstanding face amount of issued but undrawn letters
of credit outstanding thereunder) in respect of the extensions of credit
provided for thereunder.
The proceeds of the loan facilities will be used in accordance with
Section 3.09 hereof.
To provide guarantees and security for the repayment of the Loans, the
reimbursement of any draft drawn under a Letter of Credit and the payment of all
other Secured Obligations (including the obligations of the Borrower and the
Guarantors in respect of any hedging obligation permitted hereunder and
Indebtedness permitted by Section 6.03(viii), in each case owing to JPMCB, any
other Lender or any of their respective banking Affiliates), the Borrower and
the Guarantors will provide to the Administrative Agent and the Lenders the
claims and liens described in Section 2.25 of this Agreement.
Accordingly, the parties hereto hereby agree that, as of the Amendment
and Restatement Effective Date, the Existing DIP Credit Agreement is amended and
restated in its entirety as follows:
SECTION 1. DEFINITIONS
SECTION 1.01 DEFINED TERMS.
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"Account" shall mean any right to payment for goods sold or leased or
for services rendered, whether or not earned by performance, as set forth in the
UCC.
"Account Debtor" shall mean the Person obligated on an Account.
"Additional Credit" shall have the meaning given such term in Section
4.02(d).
"Adjusted LIBO Rate" shall mean, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such
Interest Period multiplied by (b) the Statutory Reserve Rate.
2
"Adjusted Eligible Receivables" shall mean the Eligible Receivables,
minus the Dilution Reserve.
"Administrative Agent" shall have the meaning given such term in the
Introduction.
"Affiliate" shall mean, as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such Person. For purposes of this definition, a Person (a
"Controlled Person") shall be deemed to be "controlled by" another Person (a
"Controlling Person") if the Controlling Person possesses, directly or
indirectly, power to direct or cause the direction of the management and
policies of the Controlled Person whether by contract or otherwise.
"Agents" shall have the meaning given such term in the Introduction.
"Agreement" shall mean this Amended and Restated Revolving Credit,
Term Loan and Guaranty Agreement, as the same may from time to time be amended,
modified or supplemented.
"Alternate Base Rate" shall mean, for any day, a rate per annum equal
to the greater of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"Amendment and Restatement Effective Date" shall have the meaning
given such term in Section 4.04.
"Approved Fund" shall have the meaning given such term in Section
10.03(b).
"Arrangers" shall have the meaning given such term in Section
10.05(a).
"Asset Sale" shall mean any Disposition of property or series of
related Dispositions of property by the Borrower or any Guarantor (excluding any
such Disposition permitted by Clauses (i), (ii), (iii), (v), (vii) and (viii) of
Section 6.10).
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 10.03), and accepted by the Administrative Agent.
substantially in the form of Exhibit C.
"Automotive Holdings Group" shall mean the division within Delphi
Automotive Systems LLC comprised of select product lines and plant sites that do
not meet the Borrower's targets for net income or other financial metrics, with
such additions and deletions to product lines and plant sites as the Borrower
may from time to time determine (in a manner consistent with the criteria used
on the Closing Date to include product lines and plant sites in such division)
and as such divisional name may be changed from time to time.
3
"Availability Period" shall mean the period from and including the
Closing Date to but excluding the Termination Date.
"Available Amount" shall have the meaning given such term in Section
5.08.
"Available Inventory" shall mean, on any date, the lesser of (i) an
amount equal to (x) the product of (1) 65% multiplied by (2) the sum of Eligible
Inventory, less Inventory Reserves, less (y) Rent Reserves and (ii) 85% of the
product of (x) the Net Recovery Rate in effect for the Inventory (based on the
then most recent independent inventory appraisal) on such date of determination,
multiplied by (y) the aggregate amount of gross domestic Inventory and Mexican
Inventory (as reported in accordance with the Borrower's general ledger and
inventory system at such date of determination) as set forth in the most recent
Borrowing Base Certificate.
"Available Receivables" shall mean, at any date of determination, an
amount equal to 85% of Adjusted Eligible Receivables.
"Bankruptcy Code" shall mean The Bankruptcy Reform Act of 1978, as
heretofore and hereafter amended, and codified as 11 U.S.C. Section 101 et seq.
"Bankruptcy Court" shall mean the United States Bankruptcy Court for
the Southern District of New York or any other court having jurisdiction over
the Cases from time to time.
"Board" shall mean the Board of Governors of the Federal Reserve
System of the United States.
"Borrower" shall have the meaning given such term in the Introduction.
"Borrowing" shall mean (a) the incurrence, conversion or continuation
of Tranche A Loans of a single Type made from all the Tranche A Lenders on a
single date and having, in the case of Eurodollar Loans, a single Interest
Period and (b) the incurrence of the Tranche B Loan or the conversion or
continuation of a portion of the Tranche B Loan having a specified Type and
having, in the case of a Eurodollar Borrowing, a specified Interest Period.
"Borrowing Base" shall mean, on any date, an amount (calculated based
on the most recent Borrowing Base Certificate delivered to the Administrative
Agent in accordance with this Agreement) that is equal to the sum of (i)
Available Receivables, plus (ii) Available Inventory, plus (iii) the Fixed Asset
Component, minus the Carve-Out, minus an amount equal to the excess (if any) of
the aggregate amount of Secured Domestic Hedging Obligations (determined on a
marked-to-market basis) over $75,000,000; provided that the aggregate amount of
the Fixed Asset Component shall at no time account for more than thirty percent
(30%) of the aggregate amount of the Borrowing Base (it being understood that,
solely for purposes of this proviso, the aggregate amount of the Borrowing Base
shall be calculated without giving effect to the deductions described in clauses
(iv) and (v) above). For the avoidance of doubt, for purposes of this
definition, (A) the amount described in clause (iii) of the definition of
"Carve-Out" shall be deemed at all times to be equal to $35,000,000 and (B) the
amount described in clause (iv)(y) of the definition of "Carve-Out" shall be
deemed at all times to be equal to $5,000,000.
4
Borrowing Base standards may be fixed and revised from time to time by the
Administrative Agent in its reasonable discretion.
"Borrowing Base Certificate" shall mean a certificate substantially in
the form of an Exhibit E (with such changes therein as may be reasonably
required from time to time (upon at least 10 days' notice by the Administrative
Agent, except during the continuance of an Event of Default) to reflect the
components of and reserves against the Borrowing Base as provided for hereunder
from time to time), executed and certified by a Financial Officer of the
Borrower, which shall include appropriate exhibits, schedules and collateral
reporting requirements as provided for herein, including in Section 5.08.
"Borrowing Request" shall mean a request by the Borrower for a
Borrowing in accordance with Section 2.04.
"Business Day" shall mean any day other than a Saturday, Sunday or
other day on which commercial banks in New York City are required or authorized
to remain closed (and, for a Letter of Credit, other than a day on which the
applicable Issuing Lender is closed); provided, however, that when used in
connection with a Eurodollar Loan, the term "Business Day" shall also exclude
any day on which banks are not open for dealings in dollar deposits on the
London interbank market.
"Canadian Dollars" and "C$" mean the lawful money of Canada.
"Capitalized Lease" shall mean, as applied to any Person, any lease of
property by such Person as lessee which would be capitalized on a balance sheet
of such Person prepared in accordance with GAAP. The amount of obligations of
such Person under a Capitalized Lease shall be the capitalized amount thereof
determined in accordance with GAAP.
"Carve-Out" shall mean (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, (ii) all fees and
expenses incurred by a trustee under Section 726(b) of the Bankruptcy Code,
(iii) after the occurrence and during the continuance of an Event of Default,
the payment of allowed and unpaid professional fees and disbursements incurred
by the Borrower, the Guarantors and any statutory committees appointed in the
Cases (each, a "Committee") in an aggregate amount not exceeding $35,000,000 and
(iv) all unpaid professional fees and disbursements incurred or accrued by the
Borrowers, the Guarantors and any Committees at any time when no Event of
Default is continuing, in an aggregate amount not exceeding the sum of (x) such
unpaid professional fees and disbursements reflected on the most recent
Borrowing Base Certificate delivered to the Administrative Agent prior to any
Event of Default that is then continuing and (y) such unpaid professional fees
and disbursements incurred or accrued after the date of such Borrowing Base
Certificate (but at a time when no Event of Default is continuing) in an
aggregate amount under this clause (y) not exceeding $5,000,000 (and with
amounts included under this clause (y) to be supported by back-up documentation
in respect of the amounts and dates of incurrence of such fees and
disbursements), in each of the foregoing clauses (i), (ii), (iii) and (iv), to
the extent allowed by the Bankruptcy Court at any time.
5
"Cases" shall have the meaning given such term in the Introduction.
"Cash Collateralization" shall have the meaning given such term in
Section 2.03(j), and "Cash Collateralize" shall have the corresponding meaning.
"CGMI" shall have the meaning given such term in Section 10.05(a).
"Change in Law" shall mean (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender or
Issuing Lender (or, for purposes of Section 2.16(b), by any lending office of
such Lender or Issuing Lender or by such Lender's or Issuing Lender's holding
company, if any) with any request, guideline or directive (whether or not having
the force of law) of any Governmental Authority made or issued after the date of
this Agreement.
"Change of Control" shall mean (i) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or group
(within the meaning of the Securities Exchange Act of 1934 and the rules of the
Securities and Exchange Commission thereunder as in effect on the Closing Date),
of Equity Interests representing more than 50% of the aggregate ordinary voting
power represented by the issued and outstanding Equity Interests of the
Borrower; or (ii) 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
directors so nominated.
"Closing Date" shall mean October 14, 2005, which is the date the
Original DIP Credit Agreement was executed and the conditions precedent to the
making of the initial Loans set forth in Section 4.01 were satisfied or waived,
which date occurred not later than 15 days following the entry of the Interim
Order.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated and rulings issued thereunder.
"Collateral" shall mean the "Collateral" as defined in the Security
and Pledge Agreement.
"Commitment" shall mean either a Tranche A Commitment or a Tranche B
Commitment.
"Commitment Fee" shall have the meaning given such term in Section
2.22.
"Commitment Letter" shall mean that certain Commitment Letter dated
September 22, 2005, among JPMCB, JPMorgan, CGMI and the Borrower.
"Consummation Date" shall mean the date of the substantial
consummation (as defined in Section 1101 of the Bankruptcy Code and which for
purposes of this Agreement shall be no later than the effective date) of a
Reorganization Plan that is confirmed pursuant to an order of the Bankruptcy
Court.
6
"Dilution Factors" shall mean, without duplication (including, without
duplication to the deductions taken into account in the calculation of Eligible
Receivables), with respect to any period, the aggregate amount of all
deductions, credit memos, returns, adjustments, allowances, bad debt write-offs
and other non-cash credits which are recorded to reduce accounts receivable in a
manner consistent with current and historical accounting practices of the Loan
Parties.
"Dilution Ratio" shall mean, at any date, the amount (expressed as a
percentage) equal to (a) the aggregate amount of the applicable Dilution Factors
for the twelve (12) most recently ended fiscal months divided by (b) total gross
sales of the Loan Parties for the twelve (12) most recently ended fiscal months,
or such other amount as may be otherwise agreed by the Administrative Agent and
the Borrower.
"Dilution Reserve" shall mean, at any date, (i) the amount by which
the Dilution Ratio exceeds five percent (5%) multiplied by (ii) the Eligible
Receivables on such date.
"Disclosure Filings" shall mean the following filings made by the
Borrower with the Securities and Exchange Commission: (a) the Forms 8-K filed on
March 4, 2005, March 22, 2005, May 16, 2005 and June 30, 2005 relating to the
restatement of certain financial statements of the Borrower (and any
shareholders' litigation arising out of the matters disclosed in such Forms
8-K); (b) the Form 8-K filed on May 13, 2005 relating to certain financial
information of the Borrower; (c) the Forms 8-K filed on June 9, 2005, September
8, 2005 and October 3, 2005; (d) the Form 10-K for the year ended December 31,
2004; and (e) the Forms 10-Q for the quarterly periods ended March 31, 2005 and
June 30, 2005.
"Disposition" shall mean, with respect to any property, any sale,
lease, sale and leaseback, assignment (other than for security or collection in
the ordinary course of business), conveyance, transfer or other disposition
thereof. The terms "Dispose" and "Disposed of" shall have correlative meanings.
"Dollars" and "$" shall mean lawful money of the United States of
America.
"Domestic Entities" shall mean the Borrower and its direct and
indirect domestic Subsidiaries on a consolidated basis.
"DPW" shall have the meaning given such term in Section 10.05(a).
"Eligible Assignee" shall mean (i) a commercial bank having total
assets in excess of $1,000,000,000, (ii) a finance company, insurance company or
other financial institution or fund, in each case reasonably acceptable to the
Administrative Agent, which in the ordinary course of business extends credit of
the type contemplated herein and has total assets in excess of $200,000,000 and
whose becoming an assignee would not constitute a prohibited transaction under
Section 4975 of the Code or Section 406 of ERISA, (iii) an Affiliate of the
assignor Lender, (iv) an Approved Fund and (v) any other Person reasonably
satisfactory to the Administrative Agent.
"Eligible Equipment" shall mean, on any date of determination, the
aggregate value (as reflected on the accounting records of the Borrower or the
applicable Guarantor and
7
consistent with such Person's current and historical accounting practices) at
such date of all Qualified Equipment and Machinery owned by the Borrower and the
Guarantors and located in any jurisdiction in the United States of America as to
which Qualified Equipment and Machinery appropriate UCC financing statements
have been filed naming the Borrower or the applicable Guarantor as "debtor" and
JPMorgan Chase Bank, N.A., as Administrative Agent, as "secured party". As used
herein, the term "Qualified Equipment and Machinery" means, with respect to the
Borrower or any Guarantor, all Equipment that is owned solely by such Person and
as to which such Person has good, valid and marketable and unencumbered title;
provided that no Equipment shall be considered for inclusion as Qualified
Equipment and Machinery until (i) a collateral review of such Equipment shall
have been performed by the Agents or their representatives (the fees and
expenses associated with such review to be paid by the Borrower in accordance
with the terms of this Agreement) and (ii) the Administrative Agent shall have
received a third party appraisal of such Equipment in form and substance, and
prepared by an independent appraisal firm, reasonably satisfactory to the
Administrative Agent (the fees and expenses associated with such appraisal to be
paid by the Borrower in accordance with the terms of this Agreement).
"Eligible Inventory" shall mean, at the time of any determination
thereof, without duplication, the Inventory Value of the Loan Parties at such
time that is not ineligible for inclusion in the calculation of the Borrowing
Base pursuant to any of clauses (a) through (m) below. Criteria and eligibility
standards used in determining Eligible Inventory may be fixed and revised from
time to time by the Administrative Agent in its reasonable discretion. Unless
otherwise from time to time approved in writing by the Administrative Agent, no
Inventory shall be deemed Eligible Inventory if, without duplication:
(a) a Loan Party does not have good, valid and unencumbered title thereto,
subject only to Liens permitted under clause (v) or (vi) of Section
6.01; or
(b) it is not located in the United States or, solely in the case of
Inventory that qualifies as Mexican Inventory, Mexico; or
(c) it is not either (i) located on property owned by a Loan Party, (ii)
Mexican Inventory or (iii) located in a third party warehouse or at a
third party processor or (except in the case of consigned Inventory,
which is covered by clause (f) below) in another location not owned by
a Loan Party (it being understood that the Borrower will provide its
best estimate of the value of such Inventory to be agreed to by the
Administrative Agent and reflected in the Borrowing Base Certificate),
and either (A) is not covered by a Landlord Lien Waiver, (B) a Rent
Reserve has not been taken with respect to such Inventory or (C) is
not subject to an enforceable agreement in form and substance
reasonably satisfactory to the Administrative Agent pursuant to which
the relevant Loan Party has validly assigned its access rights to such
Inventory and property to the Administrative Agent; or
(d) it is operating supplies, labels, packaging or shipping materials,
cartons, repair parts, labels or miscellaneous spare parts,
nonproductive stores inventory and other such materials, in each case
not considered used for sale in the ordinary
8
course of business of the Loan Parties by the Administrative Agent in
its reasonable discretion from time to time; or
(e) it is not subject to a valid and perfected first priority Lien in
favor of the Administrative Agent; or
(f) it is consigned at a customer, supplier or contractor location but
still accounted for in the Loan Party's inventory balance (it being
understood that the Mexican Inventory shall not be excluded pursuant
to this clause (f)); provided that a portion of the Loan Parties'
consigned Inventory (not to exceed 50%) may be included in "Eligible
Inventory" in the Administrative Agent's discretion to the extent such
consigned Inventory is (i) on or after January 30, 2006, subject to an
agreement (in form and substance reasonably satisfactory to the
Administrative Agent) pursuant to which the relevant Loan Party has
validly assigned its access rights to such Inventory and property to
the Administrative Agent and (ii) otherwise eligible for inclusion in
the Borrowing Base; or
(g) it is Inventory (other than Mexican Inventory) that is in-transit to
or from a location not leased or owned by a Loan Party (it being
understood that the Borrower will provide its best estimate of the
value of all such Inventory and all Mexican Inventory in-transit,
which estimate is to be reflected in the Borrowing Base Certificate);
or
(h) it is obsolete, slow-moving, nonconforming or unmerchantable or is
identified as a write-off, overstock or excess by a Loan Party, or
does not otherwise conform to the representations and warranties
contained in this Agreement and the other Loan Documents applicable to
Inventory; provided that a portion of the Loan Parties' reserve for
such Inventory (not to exceed 50%) may be included in "Eligible
Inventory" in the Administrative Agent's reasonable discretion to the
extent such Inventory is otherwise eligible for inclusion in the
Borrowing Base; or
(i) it is Inventory used as a sample or prototype, display or display
item; or
(j) to the extent of any portion of Inventory Value thereof attributable
to intercompany profit among Loan Parties or their affiliates (it
being understood that the Borrower will provide its best estimate of
the value of such Inventory Value to be agreed by the Administrative
Agent and reflected in the Borrowing Base Certificate); or
(k) any Inventory that is damaged, defective or marked for return to
vendor, has been deemed by a Loan Party to require rework or is being
held for quality control purposes; provided that a portion (not to
exceed 25%) of the book value of core Inventory that is held for scrap
value recovery at a location of Automotive Holdings Group may be
included in "Eligible Inventory" in the Administrative Agent's
reasonable discretion to the extent such Inventory is otherwise
eligible for inclusion in the Borrowing Base; or
9
(l) such Inventory does not meet all material applicable standards imposed
by any Governmental Authority having regulatory authority over it.
"Eligible Real Estate" shall mean, on any date of determination, the
aggregate value (as reflected on the accounting records of the Borrower or the
applicable Guarantor and consistent with such Person's current and historical
accounting practices) at such date of all Qualified Real Estate owned by the
Borrower and the Guarantors and located in any jurisdiction in the United States
of America as to which Qualified Real Estate (x) an appropriate mortgage, deed
of trust or deed to secure debt has been recorded, to the extent required to be
recorded pursuant Section 2.25(b), naming the Borrower or the applicable
Guarantor as "mortgagor" or "trustor" and JPMorgan Chase Bank, N.A., as
Administrative Agent, as "mortgagee" or "beneficiary" and (y) UCC financing
statements have been filed naming the Borrower or the applicable Guarantor as
"debtor" and JPMorgan Chase Bank, N.A., as Administrative Agent, as "secured
party". As used herein, the term "Qualified Real Estate" means, with respect to
the Borrower or any Guarantor, all real property that is owned solely by such
Person and as to which such Person has good, valid and marketable and
unencumbered title; provided that no real property shall be considered for
inclusion as Qualified Real Estate until (i) a collateral review of such real
property shall have been performed by the Agents or their representatives (the
fees and expenses associated with such review to be paid by the Borrower in
accordance with the terms of this Agreement) and (ii) the Administrative Agent
shall have received a third party appraisal of such real property in form and
substance, and prepared by an independent appraisal firm, reasonably
satisfactory to the Administrative Agent (the fees and expenses associated with
such appraisal to be paid by the Borrower in accordance with the terms of this
Agreement).
"Eligible Receivables" means, at the time of any determination
thereof, each Account that satisfies the following criteria: such Account (i)
has been invoiced to, and represents the bona fide amounts due to a Loan Party
from, the purchaser of goods or services, in each case originated in the
ordinary course of business of such Loan Party and (ii) is not ineligible for
inclusion in the calculation of the Borrowing Base pursuant to any of clauses
(a) through (t) below. Without limiting the foregoing, to qualify as Eligible
Receivables, an Account shall indicate no person other than a Loan Party as
payee or remittance party. In determining the amount to be so included, the face
amount of an Account shall be reduced by, without duplication, to the extent not
reflected in such face amount, (A) the amount of all accrued and actual
discounts, claims, credits or credits pending, promotional program allowances,
price adjustments, finance charges or other allowances (including any amount
that a Loan Party may be obligated to rebate to a customer pursuant to the terms
of any agreement or understanding (written or oral)), (B) without duplication,
the aggregate amount of all limits and deductions provided for in this
definition and elsewhere in this Agreement, if any, and (C) the aggregate amount
of all cash received in respect of such Account but not yet applied by a Loan
Party to reduce the amount of such Account. Criteria and eligibility standards
used in determining Eligible Receivables may be fixed and revised from time to
time by the Administrative Agent in its reasonable discretion. Unless otherwise
approved from time to time in writing by the Administrative Agent, no Account
shall be an Eligible Receivable if, without duplication:
(a) (i) a Loan Party does not have sole lawful and absolute title to such
Account (subject only to Liens permitted under clause (v) or (vi) of
Section 6.01) or (ii) the
10
goods sold with respect to such Account have been sold under a
purchase order or pursuant to the terms of a contract or other
agreement or understanding (written or oral) that indicates that any
Person other than a Loan Party has or has purported to have an
ownership interest in such goods; or
(b) (i) it is unpaid more than 90 days from the original date of invoice
or 60 days from the original due date or (ii) it has been written off
the books of a Loan Party or has been otherwise designated on such
books as uncollectible; or
(c) more than 50% in face amount of all Accounts of the same Account
Debtor are ineligible pursuant to clause (b) above; or
(d) the Account Debtor is insolvent or the subject of any bankruptcy case
or insolvency proceeding of any kind (other than postpetition accounts
payable of an Account Debtor that is a debtor-in-possession under the
Bankruptcy Code and reasonably acceptable to the Administrative
Agent); or
(e) the Account is not (i) payable in Dollars or Canadian Dollars or (ii)
the Account Debtor is either not organized under the laws of the
United States of America, any state thereof, or the District of
Columbia, or Canada or any province thereof or is located outside or
has its principal place of business or substantially all of its assets
outside the United States or Canada, unless, in each case, such
Account is supported by a letter of credit from an institution and in
form and substance satisfactory to the Administrative Agent in its
sole discretion; provided that Accounts in an aggregate amount not
exceeding $50,000,000 of Account Debtors that (x) are not organized
under the laws of the United States of America, any state thereof, the
District of Columbia, or Canada or any province thereof or (y) are
located outside or have their respective principal places of business
or substantially all of their assets outside the United States or
Canada may be included in "Eligible Receivables" in the Administrative
Agent's reasonable discretion to the extent such Accounts are
otherwise eligible for inclusion in the Borrowing Base; or
(f) the Account Debtor is the United States of America or any department,
agency or instrumentality thereof, unless the relevant Loan Party duly
assigns its rights to payment of such Account to the Administrative
Agent pursuant to the Assignment of Claims Act of 1940, as amended,
which assignment and related documents and filings shall be in form
and substance reasonably satisfactory to the Administrative Agent; or
(g) the Account is subject to any security deposit (to the extent received
from the applicable Account Debtor), progress payment, retainage or
other similar advance made by or for the benefit of the applicable
Account Debtor, in each case to the extent thereof; or
(h) (i) it is not subject to a valid and perfected first priority Lien in
favor of the Administrative Agent, subject to no other Liens other
than Liens permitted by this
11
Agreement or (ii) it does not otherwise conform in all material
respects to the representations and warranties contained in this
Agreement and the other Loan Documents relating to Accounts; or
(i) (i) such Account was invoiced in advance of goods or services
provided, (ii) such Account was invoiced twice or more, or (iii) the
associated revenue has not been earned; or
(j) the sale to the Account Debtor is on a ▇▇▇▇-and-hold, guaranteed sale,
sale-and-return, ship-and-return, sale on approval or consignment or
other similar basis or made pursuant to any other agreement providing
for repurchases or return of any merchandise which has been claimed to
be defective or otherwise unsatisfactory; or
(k) the goods giving rise to such Account have not been shipped and/or
title has not been transferred to the Account Debtor, or the Account
represents a progress-billing or otherwise does not represent a
complete sale; for purposes hereof, "progress-billing" means any
invoice for goods sold or leased or services rendered under a contract
or agreement pursuant to which the Account Debtor's obligation to pay
such invoice is conditioned upon the completion by a Loan Party of any
further performance under the contract or agreement; or
(l) it arises out of a sale made by a Loan Party to an employee, officer,
agent, director, Subsidiary or Affiliate of a Loan Party; or
(m) such Account was not paid in full, and a Loan Party created a new
receivable for the unpaid portion of the Account, and other Accounts
constituting chargebacks, debit memos and other adjustments for
unauthorized deductions; or
(n) the Account Debtor (i) has or has asserted a right of set-off against
a Loan Party (unless such Account Debtor has entered into a written
agreement reasonably satisfactory to the Administrative Agent to waive
such set-off rights) or (ii) has disputed its liability (whether by
chargeback or otherwise) or made any claim with respect to the Account
or any other Account of a Loan Party which has not been resolved, in
each case, without duplication, only to the extent of the amount of
such actual or asserted right of set-off, or the amount of such
dispute or claim, as the case may be (except to the extent that such
right of set-off (x) may not be exercised as a result of the automatic
stay pursuant to Section 362 of the Bankruptcy Code or (y) otherwise
may not be currently exercised pursuant to the terms of the Final
Order); or
(o) the Account does not comply in all material respects with the
requirements of all applicable laws and regulations, whether Federal,
state or local, including without limitation, the Federal Consumer
Credit Protection Act, Federal Truth in Lending Act and Regulation Z;
or
(p) as to any Account, to the extent that (i) a check, promissory note,
draft, trade acceptance or other Instrument for the payment of money
has been received,
12
presented for payment and returned uncollected for any reason or (ii)
such Account is otherwise classified as a note receivable and the
obligation with respect thereto is evidenced by a promissory note or
other debt instrument or agreement; or
(q) the Account is created on cash on delivery terms, or on extended terms
and is due and payable more than 90 days from the invoice date; or
(r) the Account represents tooling receivables related to tooling that has
not been completed or received by a Loan Party and approved and
accepted by the applicable customer.
Notwithstanding the forgoing, all Accounts of any single Account Debtor and its
Affiliates which, in the aggregate, exceed (i) 25% in the case of GM
Receivables, (ii) 20% in respect of any other Account Debtor whose securities
are rated Investment Grade or (iii) 10% in respect of all other Account Debtors,
of the total amount of all Eligible Receivables at the time of any determination
shall be deemed not to be Eligible Receivables to the extent of such excess. In
addition, in determining the aggregate amount from the same Account Debtor that
is unpaid more than 90 days from the date of invoice or more than 60 days from
the due date pursuant to clause (b) above there shall be excluded the amount of
any net credit balances relating to Accounts due from an Account Debtor with
invoice dates more than 90 days from the date of invoice or more than 60 days
from the due date.
"Environmental Laws" shall mean all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating to the protection of the environment, preservation or reclamation of
natural resources, the management, release or threatened release of any
Hazardous Material or to health and safety matters.
"Environmental Liability" shall mean any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Borrower or any Subsidiary
directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the release or threatened release of any Hazardous Materials into
the environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Environmental Lien" shall mean a Lien in favor of any Governmental
Authority for (i) any liability under federal or state environmental laws or
regulations, or (ii) damages arising from or costs incurred by such Governmental
Authority in response to a release or threatened release of a hazardous or toxic
waste, substance or constituent, or other substance into the environment.
"Equipment" shall have the meaning set forth in Article 9 of the
Uniform Commercial Code as in effect from time to time in the State of New York.
13
"Equity Interests" shall mean shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person, and any
warrants, options or other rights entitling the holder thereof to purchase or
acquire any such equity interest.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of
any notice, or the receipt by any Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"Eurocurrency Liabilities" shall have the meaning assigned thereto in
Regulation D issued by the Board, as in effect from time to time.
"Eurodollar", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Eurodollar Borrowing" shall mean a Borrowing comprised of Eurodollar
Loans.
"Event of Default" shall have the meaning given such term in Section
7.
"Excluded Taxes" shall mean, with respect to the Administrative Agent,
any Lender, any Issuing Lender or any other recipient of any payment to be made
by or on account of any obligation of the Borrower hereunder, (a) income,
franchise, or similar taxes imposed on (or measured by) its net income as a
result of a present or former connection between the Administrative Agent or
such Lender and the jurisdiction of the Governmental Authority imposing such Tax
or any political subdivision or Taxing authority thereof or therein (other than
any such connection arising solely from the Administrative Agent or such Lender
having
14
executed, delivered or performed its obligations or received payment under, or
enforced, this Agreement or any other Loan Document), (b) any branch profits
taxes imposed by the United States of America or any similar tax imposed by any
other jurisdiction in which the Borrower is located and (c) any withholding tax
that would have been imposed had such payment been made to such Lender at the
time such Lender became a party to this Agreement (or designates a new lending
office) or is attributable to such Lender's failure to comply with Sections
2.18(e) and (f), except to the extent that such Lender (or its assignor, if any)
was entitled, at the time of designation of a new lending office (or
assignment), to receive additional amounts from the Borrower with respect to
such withholding tax pursuant to Section 2.18(a).
"Existing Agreement" shall mean the 5-Year Third Amended and Restated
Credit Agreement dated as of June 14, 2005 among the Borrower, the Existing
Lenders and the Existing Agent, as amended, restated, or otherwise modified from
time to time, and shall include all of the agreements providing guaranties by
the Existing Guarantors and granting security interests and Liens in property
and assets of the Borrower and the Existing Guarantors to the Existing Agent or
the Existing Lenders, including the security agreements and other agreements
listed on Schedule 1.01 hereto, each of which documents was executed and
delivered (to the extent party thereto) by the Borrower and the Existing
Guarantors prior to the Filing Date, as each may have been amended or modified
from time to time.
"Existing Agent" shall mean JPMCB, in its capacity as administrative
agent under the Existing Agreement, and its successors in such capacity.
"Existing Collateral" shall mean the "Collateral" as defined in the
Existing Agreement.
"Existing Guarantors" shall mean the Subsidiaries of the Borrower that
provided guarantees of the Borrower's obligations under the Existing Credit
Agreement.
"Existing Indebtedness" shall mean Indebtedness and other obligations
incurred by the Borrower and the Existing Guarantors under the Existing
Agreement.
"Existing Lenders" shall mean the lenders from time to time holding
Existing Indebtedness.
"Existing Letters of Credit" means all outstanding letters of credit
previously issued by JPMCB, as issuing lender under the Existing DIP Credit
Agreement.
"Facility Availability Amount" means, at any time, an amount equal to
(A) the lesser of (x) the Total Commitment at such time and (y) the Borrowing
Base, MINUS (B) the sum of the aggregate principal amount of the outstanding
Tranche A Loans, plus the aggregate principal amount of the outstanding Tranche
B Loans, plus the LC Exposure, PLUS (C) an amount (up to a maximum of
$500,000,000) equal to the excess (if any) of the unrestricted cash reflected on
the consolidated balance sheet of the Borrower and its Subsidiaries then most
recently delivered to the Lenders over $500,000,000.
"Federal Funds Effective Rate" shall mean, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds
15
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published on the next succeeding 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 (rounded upwards, if necessary, to the next 1/100
of 1%) 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.
"Fees" shall collectively mean the Commitment Fees, Letter of Credit
Fees and other fees referred to in Sections 2.21, 2.22 and 2.23.
"Filing Date" shall mean October 8, 2005.
"Final Order" shall have the meaning given such term in Section
4.02(d). The Final order as entered by the Bankruptcy Court on October 28, 2005
is attached hereto as Exhibit A-2.
"Financial Officer" shall mean the chief financial officer, chief
restructuring officer or treasurer of the Borrower.
"Fixed Asset Component" shall mean, on any date, an amount equal to
the sum of (i) 80% of the Net Orderly Liquidation Value of Eligible Equipment
plus (ii) 50% of the fair market value of Eligible Real Estate (as set forth in
the most recent third party real estate appraisal in form and substance, and
prepared by an independent appraisal firm, reasonably satisfactory to the
Administrative Agent ) less (iii) reserves as are deemed necessary from time to
time by the Administrative Agent in its reasonable discretion, including a
reserve in respect of matters disclosed in the environmental consultant report
required to be delivered pursuant to Section 5.12.
"Foreign Lender" shall mean any Lender that is organized under the
laws of a jurisdiction other than that in which the Borrower is located and that
is not a "United States Person" as defined in Section 7701(a)(30) of the Code.
For purposes of this definition and Sections 2.18(e) and (f), the United States
of America, each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.
"Foreign Receivables Financing" means Indebtedness and other
financings relating to securitizations and factoring arrangements entered into
by any of the Foreign Subsidiaries.
"Foreign Subsidiary" shall mean any direct or indirect non-U.S.
Subsidiary of the Borrower.
"Foreign Subsidiary Debt Limit" shall have the meaning given such term
in Section 6.03.
"GAAP" shall mean generally accepted accounting principles applied in
accordance with Section 1.03.
16
"Global EBITDAR" shall mean, for any period, all as determined in
accordance with GAAP, the consolidated net income (or net loss) of the Global
Entities for such period, plus (a) to the extent deducted in the calculation of
consolidated net income, without duplication, the sum of (i) income tax expense,
(ii) interest expense, (iii) amortization or write-off of debt discount and debt
issuance costs and commissions, discounts and other fees and charges associated
with Indebtedness (including the Loans), (iv) depreciation and amortization
expense, (v) amortization of intangibles (including, but not limited to,
goodwill) and organization costs, (vi) any extraordinary, unusual or non
recurring non cash expenses or losses (including to the extent constituting
Restructuring Costs) and one-time write-downs of assets, (vii) any expenses
accounted by the Borrower or any of it Subsidiaries in such period for
post-employment benefits under FAS 106, (viii) any cash Restructuring Costs of
the Borrower and its Subsidiaries in an aggregate amount not exceeding (x) for
each four fiscal quarter period ending December 31, 2005, March 31, 2006,
September 30, 2006 and December 31, 2006, $175,000,000 and (y) for any four
fiscal quarter period ending in 2007, $100,000,000, (ix) professional fees and
other "Chapter 11 expenses" (or "administrative costs reflecting Chapter 11
expenses") attributable to the Borrower and the Guarantors for such period as
shown on the Borrower's consolidated statement of income for such period, and
(x) the cumulative effect of any change in accounting principles minus (b) to
the extent included in the calculation of consolidated net income, the sum of
(1) interest income, (2) any extraordinary, unusual or non-recurring gains, all
as determined on a consolidated basis and (3) any cash payments made during such
period in respect of expenses described in clause (vii) above taken in such
period.
"Global Entities" shall mean the Borrower and all of its direct and
indirect Subsidiaries, on a consolidated basis.
"GM Receivables" shall mean any Accounts owing from General Motors
Corporation and its Affiliates.
"Governmental Authority" shall mean the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantor" shall have the meaning set forth in the Introduction.
"Hazardous Materials" shall mean all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
"Hedging Agreements" shall mean (x) foreign exchange contracts,
currency swap agreements, currency future or option contracts and other similar
agreements designed to hedge against fluctuations in foreign interest or
exchange rates, (y) interest rate swap, cap or collar agreements and interest
rate future or option contracts designed to hedge against fluctuations in
17
interest rates and (z) commodity price protection agreements or other commodity
price hedging arrangements.
"Indebtedness" shall mean, at any time and with respect to any Person,
(i) all indebtedness of such Person for borrowed money, (ii) all indebtedness of
such Person for the deferred purchase price of property or services (other than
property, including inventory, and services purchased, trade payables that are
not more than 90 days past due (or that are more than 90 days past due, if the
validity or amount thereof is being contested in good faith and by appropriate
proceedings or if such Person shall have set aside on its books adequate
reserves therefor in accordance with GAAP) and expense accruals and deferred
compensation items arising in the ordinary course of business), (iii) all
obligations of such Person evidenced by notes, bonds, debentures or other
similar instruments (other than performance, surety and appeal bonds and
completion guarantees arising in the ordinary course of business), (iv) 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, in which case such Indebtedness shall be limited to the value of the
property), (v) all obligations of such Person under Capitalized Leases, (vi) (A)
all reimbursement, payment or similar obligations of such Person, contingent or
otherwise, under acceptance, letter of credit or similar facilities and (B) all
obligations of such Person in respect of Hedging Agreements; (vii) all
Indebtedness referred to in clauses (i) through (vi) above guaranteed directly
or indirectly by such Person, or in effect guaranteed directly or indirectly by
such Person through an agreement (A) to pay or purchase such Indebtedness or to
advance or supply funds for the payment or purchase of such Indebtedness, (B) to
purchase, sell or lease (as lessee or lessor) property, or to purchase or sell
services, primarily for the purpose of enabling the debtor to make payment of
such Indebtedness or to assure the holder of such Indebtedness against loss in
respect of such Indebtedness, (C) to supply funds to or in any other manner
invest in the debtor (including any agreement to pay for property or services
irrespective of whether such property is received or such services are rendered)
or (D) otherwise to assure a creditor against loss in respect of such
Indebtedness, and (viii) all Indebtedness referred to in clauses (i) through
(vii) above secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien upon or in
property (including accounts and contract rights) owned by such Person, even
though such Person has not assumed or become liable for the payment of such
Indebtedness; provided, however, such Indebtedness referred to in this clause
(viii) shall be the lesser of the value of such property on which a Lien is
attached or the amount of such Indebtedness.
"Indemnified Taxes" shall mean Taxes other than Excluded Taxes.
"Indemnitee" shall have the meaning given such term in Section
10.05(b).
"Insufficiency" shall mean, with respect to any Plan, its "amount of
unfunded benefit liabilities" within the meaning of Section 4001(a)(18) of
ERISA, if any.
"Intellectual Property" shall mean the collective reference to all
rights, priorities and privileges relating to intellectual property, whether
arising under United States, multinational or foreign laws or otherwise,
including copyrights, copyright licenses, patents, patent licenses,
18
trademarks, trademark licenses, technology, know-how and processes, and all
rights to ▇▇▇ at law or in equity for any infringement or other impairment
thereof, including the right to receive all proceeds and damages therefrom.
"Interest Election Request" shall mean a request by the Borrower to
convert or continue a Borrowing in accordance with Section 2.06.
"Interest Payment Date" shall mean (i) as to any Eurodollar Loan
included in any Eurodollar Borrowing, the last day of each consecutive 30 day
period running from the commencement of the applicable Interest Period, and (ii)
as to all ABR Loans, the last calendar day of each month and the date on which
any ABR Loans are converted to Eurodollar Loans pursuant to Section 2.06.
"Interest Period" shall mean, as to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing (including as a result of a
conversion from ABR Loans) or on the last day of the preceding Interest Period
applicable to such Eurodollar Borrowing and ending on the numerically
corresponding day (or if there is no corresponding day, the last day) in the
calendar month that is one, three or six months thereafter, as the Borrower may
elect in the related notice delivered pursuant to Sections 2.04 or 2.06;
provided, however, that (i) if any Interest Period would end on a day which
shall not be a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless such next succeeding Business Day would fall in
the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day, and (ii) no Interest Period shall end later than
the Termination Date.
"Interim Order" shall have the meaning given such term in Section
4.01(b).
"Inventory" shall have the meaning set forth in Article 9 of the
Uniform Commercial Code as in effect from time to time in the State of New York.
"Inventory Reserves" shall mean reserves against Inventory equal to
the sum of the following:
(a) an unrecorded book to physical inventory reduction determined by the
Borrower based on its most recent physical inventory or cycle counts
or as otherwise determined by the Administrative Agent in its
reasonable discretion;
(b) a revaluation reserve whereby favorable variances shall be deducted
from Eligible Inventory and unfavorable variances shall not be added
to Eligible Inventory;
(c) a lower of cost or market value reserve for any differences between a
Loan Party's actual cost to produce versus its selling price to third
parties, as calculated on a quarterly basis;
(d) a reserve in an amount equal to five percent (5%) of the Eligible
Inventory that is Mexican Inventory; provided that such percentage may
be increased from time to time by the Administrative Agent in its
reasonable discretion; and
19
(e) any other reserve as deemed necessary from time to time by the
Administrative Agent in its reasonable discretion.
"Inventory Value" shall mean with respect to any Inventory of a Loan
Party at the time of any determination thereof, the standard cost carried on the
general ledger or inventory system of such Loan Party stated on a basis
consistent with its current and historical accounting practices, in Dollars,
determined in accordance with the standard cost method of accounting less,
without duplication, (i) any markup on Inventory from an affiliate and (ii) in
the event variances under the standard cost method are expensed, a reserve
reasonably determined by the Administrative Agent as appropriate in order to
adjust the standard cost of Eligible Inventory to approximate actual cost.
"Investment Credit" shall mean the amount of dividends, distributions,
returns of equity, repayments of advances or similar payments paid to the
Borrower or any of the Guarantors during the term of this Agreement by any
Person in which Investments may be made under Section 6.09(ix).
"Investment Grade" shall mean a rating established by a third party
rating agency, equivalent to 'BBB-' by S&P or 'Baa3' by Moody's, or better.
"Investments" shall have the meaning given such term in Section 6.09.
"Issuing Lender" shall mean JPMCB, in its capacity as the issuer of
Letters of Credit hereunder, and its successors in such capacity as provided in
Section 2.03(i) and such other Lenders (which other Lenders shall be reasonably
satisfactory to the Administrative Agent) as may agree with the Borrower to act
in such capacity. Any Issuing Lender may, in its discretion, arrange for one or
more Letters of Credit to be issued by Affiliates of such Issuing Lender, in
which case the term "Issuing Lender" shall include any such Affiliate with
respect to Letters of Credit issued by such Affiliate.
"JPMorgan" shall have the meaning given such term in Section 10.05(a).
"JPMCB" shall have the meaning given such term in the Introduction.
"Landlord Lien Waiver" shall mean a written agreement that is
reasonably acceptable to the Administrative Agent, pursuant to which a Person
shall waive or subordinate its rights (if any, that are or would be prior to the
Liens granted to the Administrative Agent for the benefit of the Lenders under
the Loan Documents) and claims as landlord in any Inventory of a Loan Party for
unpaid rents, grant access to the Administrative Agent for the repossession and
sale of such inventory and make other agreements relative thereto.
"LC Disbursement" shall mean a payment made by the Issuing Lender
pursuant to a Letter of Credit.
"LC Exposure" shall mean, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time plus (b) the
aggregate amount of all LC Disbursements that have not yet been reimbursed by or
on behalf of the Borrower at such time.
20
The LC Exposure of any Tranche A Lender at any time shall be its Tranche A
Commitment Percentage of the LC Exposure at such time.
"Lenders" shall have the meaning set forth in the Introduction.
"Letter of Credit" shall mean (a) the Existing Letters of Credit and
(b) any irrevocable letter of credit issued pursuant to Section 2.03, which
letter of credit shall be (i) an import documentary or a standby letter of
credit, (ii) issued for purposes that are consistent with the provisions of this
Agreement (including Section 3.09), (iii) denominated in Dollars and (iv)
otherwise in such form as may be reasonably approved from time to time by the
Administrative Agent and the applicable Issuing Lender.
"Letter of Credit Account" shall mean the account established by the
Borrower under the sole and exclusive control of the Administrative Agent
maintained at the office of the Administrative Agent at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ designated as the "Delphi Letter of Credit Account" that
shall be used solely for the purposes set forth herein.
"Letter of Credit Fees" shall mean the fees payable in respect of
Letters of Credit pursuant to Section 2.23.
"LIBO Rate" shall mean, with respect to any Eurodollar Borrowing for
any Interest Period, the rate appearing on Page 3750 of the Dow ▇▇▇▇▇ Market
Service (or on any successor or substitute page of such Service, or any
successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as
determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to dollar deposits in the
London interbank market) at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period, as the rate for dollar
deposits with a maturity comparable to such Interest Period. In the event that
such rate is not available at such time for any reason, then the "LIBO Rate"
with respect to such Eurodollar Borrowing for such Interest Period shall be the
rate at which dollar deposits of $5,000,000 and for a maturity comparable to
such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"Lien" shall mean (a) any mortgage, deed of trust, pledge,
hypothecation, security interest, encumbrance, lien or charge of any kind
whatsoever, (b) the interest of a vendor or a lessor under any conditional sale,
capital lease or other title retention agreement (or any financing lease having
substantially the same economic effect as any of the foregoing) and (c) in the
case of securities, any purchase option, call or similar right of a third party
with respect to such securities.
"Loan" shall mean, collectively, the Tranche A Loans and the Tranche B
Loan.
"Loan Documents" shall mean this Agreement, the Letters of Credit, the
Security and Pledge Agreement, and any other instrument or agreement executed
and delivered by the Borrower or any Guarantor to the Administrative Agent or
any Lender in connection herewith.
21
"Loan Parties" shall mean the Borrower and the Guarantors.
"Material Adverse Effect" shall mean a material adverse effect on (a)
the business, financial condition, operations or assets of (i) the Domestic
Entities taken as a whole or (ii) the Global Entities taken as a whole, (b) the
validity or enforceability of this Agreement or any other Loan Documents or (c)
the rights and remedies of the Administrative Agent or the Lenders hereunder or
thereunder; provided that (x) the failure to make a contribution to any Plan and
any Lien resulting therefrom that arises pursuant to Section 412(n) of the Code
shall not be considered to have such a material adverse effect, so long as (1)
any such Lien encumbering assets of a Domestic Entity shall be permitted under
Section 6.01(xviii) and (2) any such Lien encumbering assets of a Foreign
Subsidiary shall be permitted under Section 6.01(xix), it being understood that
subsequent events, developments and circumstances relating to such failure to
make a contribution to a Plan and the resulting Liens may be considered in
determining whether such subsequent events, developments and circumstances have
had or could reasonably be expected to have such a material adverse effect, (y)
events, developments and circumstances disclosed in the Disclosure Filings and
any information disclosed to the Lenders prior to the Closing Date shall not be
considered to have such a material adverse effect, although subsequent events,
developments and circumstances relating to such disclosed matters which reveal
material adverse changes in such disclosed matters may be considered in
determining whether such subsequent events, developments and circumstances have
had or could reasonably be expected to have such a material adverse effect and
(z) the commencement of the Cases and the consequences that customarily result
therefrom shall not be considered to have such a material adverse effect.
"Maturity Date" shall mean October 8, 2007.
"Mexican Inventory" shall mean Inventory that is owned by a Loan Party
and has been consigned to a Mexican Subsidiary of the Borrower; provided that no
Inventory shall qualify as Mexican Inventory unless (i) the rights of the Loan
Parties under the agreements pursuant to which such Inventory is so consigned
are subject to a first priority Lien in favor of the Administrative Agent and
(ii) such Inventory is (x) located at a plant owned by the Borrower or its
Subsidiaries, (y) in-transit between such a plant and a location owned or leased
by a Loan Party or (z) located on property as to which an enforceable power of
attorney and other requisite documentation (in each case in form and substance
reasonably satisfactory to the Administrative Agent) providing the
Administrative Agent rights of access to such Inventory has been delivered to
the Administrative Agent.
"Minority Lenders" shall have the meaning given such term in Section
10.09.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" shall mean a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Cash Proceeds" shall mean in connection with any Asset Sale or
any Recovery Event, the proceeds thereof in the form of cash and Permitted
Investments, net of attorneys' fees, accountants' fees, investment banking fees,
commissions, premiums, amounts
22
required to be applied to the repayment of Indebtedness secured by a Lien
permitted hereunder on any asset that is the subject of such Asset Sale or
Recovery Event (other than any Lien pursuant to the Security and Pledge
Agreement) and other customary fees and expenses actually incurred in connection
therewith and net of taxes paid or reasonably estimated to be payable as a
result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements) and a reasonable reserve for
purchase price adjustments and indemnification payments that could reasonably be
expected to arise during the term of the Tranche A Loans and the Tranche B
Loans; provided that in the case of any Asset Sale or Recovery Event in respect
of which the Net Cash Proceeds do not exceed $2,500,000, such Net Cash Proceeds
shall not be deemed to constitute "Net Cash Proceeds" for purposes of Section
2.13 until the aggregate amount of all such excluded Net Cash Proceeds is at
least $10,000,000.
"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-Filed Domestic Entity" means any Domestic Entity that is not a
Guarantor.
"Obligations" shall mean (a) the due and punctual payment of principal
of and interest on the Loans and the reimbursement of all amounts drawn under
Letters of Credit, and (b) the due and punctual payment of the Fees and all
other present and future, fixed or contingent, monetary obligations of the
Borrower and the Guarantors to the Lenders and the Administrative Agent under
the Loan Documents.
"Orders" shall mean the Interim Order and the Final Order.
"Other Taxes" shall mean any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement.
"Participant" shall have the meaning given such term in Section
10.03(d).
"Patriot Act" shall mean the USA Patriot Act, Title III of Pub. L.
107-56, signed into law on October 26, 2001.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or any
successor agency or entity performing substantially the same functions.
23
"Permitted Investments" shall mean (a) marketable direct obligations
issued by, or unconditionally guaranteed by, the United States Government or
issued by any agency thereof and backed by the full faith and credit of the
United States, in each case maturing within one year from the date of
acquisition; (b) certificates of deposit, time deposits, eurodollar time
deposits, overnight bank deposits or bank notes having maturities of 270 days or
less from the date of acquisition issued by any Lender or by any commercial bank
organized under the laws of the United States or any state thereof having
combined capital and surplus of not less than $250,000,000; (c) commercial paper
of an issuer rated at least A-2 by S&P or P-2 by Moody's, or carrying an
equivalent rating by a nationally recognized rating agency, if both of the two
named rating agencies cease publishing ratings of commercial paper issuers
generally, and maturing within six months from the date of acquisition; (d)
repurchase obligations of any Lender or of any commercial bank satisfying the
requirements of clause (b) of this definition, having a term of not more than 30
days, with respect to securities issued or fully guaranteed or insured by the
United States government; (e) securities with maturities of one year or less
from the date of acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States, by any political subdivision or
taxing authority of any such state, commonwealth or territory or by any foreign
government, the securities of which state, commonwealth, territory, political
subdivision, taxing authority or foreign government (as the case may be) are
rated at least A by S&P or A by Moody's; (f) securities with maturities of six
months or less from the date of acquisition backed by standby letters of credit
issued by any Lender or any commercial bank satisfying the requirements of
clause (b) of this definition; (g) money market mutual or similar funds that
invest exclusively in assets satisfying the requirements of clauses (a) through
(f) of this definition; (h) money market funds that (i) comply with the criteria
set forth in SEC Rule 2a-7 under the Investment Company Act of 1940, as amended,
(ii) are rated AAA by S&P and Aaa by Moody's and (iii) have portfolio assets of
at least $5,000,000,000; or (i) in the case of any Foreign Subsidiary, (x)
direct obligations of the sovereign nation (or any agency thereof) in which such
Foreign Subsidiary is organized or is conducting business or in obligations
fully and unconditionally guaranteed by such sovereign nation (or any agency
thereof), or (y) investments of the type and maturity described in clauses (a)
through (g) above of foreign obligors, which investments or obligors have
ratings described in such clauses or equivalent ratings from comparable foreign
rating agencies, with references in clauses (a), (b) and (d) above to the
"United States" being understood to mean the sovereign nation in which such
Foreign Subsidiary is organized or conducting business or other jurisdiction
sharing the same currency as such sovereign nation.
"Person" shall mean any natural person, corporation, division of a
corporation, partnership, limited liability company, trust, joint venture,
association, company, estate, unincorporated organization or Governmental
Authority or any agency or political subdivision thereof.
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4062 of ERISA be deemed to be) a "contributing sponsor" as defined in Section
4001(a)(13) of ERISA or a member of its "controlled group" as defined in Section
4001(a)(14) of ERISA.
24
"Prepayment Date" shall mean the date that is forty-five (45) days
after the entry of the Interim Order by the Bankruptcy Court if the Final Order
has not been entered by the Bankruptcy Court prior to the expiration of such
forty-five (45) day period, or if the Final Order as entered by the Bankruptcy
Court does not authorize (i) credit extensions under this Agreement of up to
$2,000,000,000 and (ii) such changes to the Loan Documents as the Administrative
Agent and the Arrangers may reasonably determine are advisable in order to
ensure a successful syndication of the loan facilities hereunder (subject to any
limitations on such changes contained in the fee letter referred to in Section
2.21).
"Pre-Petition Payment" shall mean a payment (by way of adequate
protection or otherwise) of principal or interest or otherwise on account of any
pre-petition Indebtedness or trade payables or other pre-petition claims against
the Borrower or any Guarantor.
"Prime Rate" shall mean the rate of interest per annum publicly
announced from time to time by JPMCB as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Recovery Event" shall mean any settlement of or payment in respect of
any property or casualty insurance claim or any condemnation proceeding relating
to any asset of the Borrower or any Guarantor, in each case in an amount in
excess of $5,000,000.
"Reduced Availability Period" shall have the meaning given such term
in Section 5.08.
"Register" shall have the meaning given such term in Section
10.03(b)(iv).
"Related Parties" shall mean, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Rent Reserve" shall mean, with respect to any plant, warehouse
distribution center or other operating facility where any Inventory subject to
landlords' Liens or other Liens arising by operation of law is located, a
reserve equal to one (1) month's rent at such plant, warehouse distribution
center, or other operating facility, and such other reserve amounts that may be
determined by the Administrative Agent in its reasonable discretion.
"Reorganization Plan" shall mean a plan of reorganization in any of
the Cases.
"Required Lenders" shall mean, at any time, Lenders having Tranche A
Commitments at such time (or, if the Total Tranche A Commitment has been
terminated, Lenders holding Tranche A Loans and LC Exposure at such time) and
Lenders holding a portion of the Tranche B Loan at such time (or, if the Tranche
B Loan is not outstanding, Lenders holding Tranche B Commitments at such time)
representing in excess of 50% of the sum of the Total Tranche A Commitment at
such time (or, if the Total Tranche A Commitment has been terminated, the
Tranche A Total Commitment Usage at such time) plus the Total Tranche B
Commitment at such time.
25
"Restructuring Costs" shall mean any and all of (i) the costs and
expenses of restructuring, consolidating or closing of any of the plants,
facilities or offices of the Borrower or any of its Subsidiaries, (ii) the costs
of severance or other similar payments relating to the termination of employees
at such plants, facilities or offices, (iii) machine transfer costs or any
similar such costs at such plants, facilities or offices, (iv) costs and
expenses in respect of the termination or settlement of executory contracts and
(v) other non-cash charges in respect of other pre-petition obligations.
"S&P" shall mean Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc.
"Secured Domestic Hedging Obligations" shall mean on any date, all
obligations of the Borrowers and the Guarantors in respect of Hedging
Agreements, which obligations are secured by a Lien on any asset of any Domestic
Entity.
"Secured Obligations" shall have the meaning set forth in the Security
and Pledge Agreement.
"Security and Pledge Agreement" shall mean the Amended and Restated
Security and Pledge Agreement dated as of the date hereof in substantially the
form of Exhibit B.
"Single Employer Plan" shall mean a single employer plan, as defined
in Section 4001(a)(15) of ERISA, that is maintained for employees of the
Borrower or an ERISA Affiliate.
"Statutory Reserve Rate" shall mean a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board to which the Administrative Agent is
subject for eurocurrency funding (currently referred to as "Eurocurrency
Liabilities" in Regulation D of the Board). Such reserve percentages shall
include those imposed pursuant to such Regulation D. Eurodollar Loans shall be
deemed to constitute eurocurrency funding and to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or offsets
that may be available from time to time to any Lender under such Regulation D or
any comparable regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"Subsidiary" shall mean, with respect to any Person (in this
definition referred to as the "parent"), any corporation, association or other
business entity (whether now existing or hereafter organized) of which at least
a majority of the securities or other ownership or membership interests having
ordinary voting power for the election of directors is, at the time as of which
any determination is being made, owned or controlled by the parent or one or
more subsidiaries of the parent or by the parent and one or more subsidiaries of
the parent.
"Super-majority Lenders" shall have the meaning given such term in
Section 10.09.
"Superpriority Claim" shall mean a claim against the Borrower and any
Guarantor in any of the Cases which is an administrative expense claim having
priority over any or all
26
administrative expenses of the kind specified in Sections 503(b) or 507(b) of
the Bankruptcy Code.
"Taxes" shall mean any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Termination Date" shall mean the earliest to occur of (i) the
Prepayment Date, (ii) the Maturity Date, (iii) the Consummation Date and (iv)
the acceleration of the Loans and the termination of the Total Commitment in
accordance with the terms hereof.
"Termination Event" shall mean (i) a "reportable event", as such term
is described in Section 4043(c) of ERISA (other than a "reportable event" as to
which the 30-day notice is waived under subsection .22, .23, .25, .27 or .28 of
PBGC Regulation Section 4043) or an event described in Section 4068 of ERISA and
excluding events which would not be reasonably likely (as reasonably determined
by the Agent) to have a material adverse effect on the operations, business,
properties, assets or condition (financial or otherwise) of the Borrower and the
Guarantors taken as a whole, or (ii) the imposition of any Withdrawal Liability
on the Borrower or any ERISA Affiliate, or (iii) providing notice of intent to
terminate a Plan pursuant to Section 4041(c) of ERISA or the treatment of a Plan
amendment as a termination under Section 4041 of ERISA, if such amendment
requires the provision of security, or (iv) the institution of proceedings to
terminate a Plan by the PBGC under Section 4042 of ERISA, or (v) any other event
or condition (other than the commencement of the Cases and the failure to have
made any contribution accrued as of the Filing Date but not paid) which would
reasonably be expected to constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Plan, or the
imposition of any liability under Title IV of ERISA (other than for the payment
of premiums to the PBGC in the ordinary course).
"Total Commitment" shall mean, at any time, the sum of the Total
Tranche A Commitment and the Total Tranche B Commitment at such time.
"Total Commitment Percentage" shall mean at any time, with respect to
each Tranche A Lender or Tranche B Lender, the percentage obtained by dividing
such Lender's Tranche A Commitment and/or Tranche B Commitment, as the case may
be, by the Total Commitment at such time.
"Total Commitment Usage" shall mean, at any time, the sum of the
Tranche A Total Commitment Usage and the outstanding principal amount of the
Tranche B Loan.
"Total Tranche A Commitment" shall mean, any time, the sum of the
Tranche A Commitments at such time.
"Total Tranche B Commitment" shall mean, at any time, (i) prior to the
funding of the Tranche B Loan pursuant to Section 2.01(b), the sum of the
Tranche B Commitments at such time and (ii) on and after funding of the Tranche
B Loan pursuant to 2.01(b), the outstanding principal amount of the Tranche B
Loan at such time.
"Tranche A Commitment" shall mean the commitment of each Tranche A
Lender to make Tranche A Loans hereunder in the amount set forth opposite its
name in Annex A hereto
27
or as may be subsequently set forth in the Register from time to time, as the
case may be, and as may be reduced from time to time pursuant to Sections 2.12
and 2.13. The initial aggregate amount of the Tranche A Commitment is
$1,750,000,000.
"Tranche A Commitment Percentage" shall mean, at any time, with
respect to each Tranche A Lender, the percentage obtained by dividing its
Tranche A Commitment at such time by the Total Tranche A Commitment or, if the
Tranche A Commitments have been terminated, the Tranche A Commitment Percentage
of each Tranche A Lender that existed immediately prior to such termination.
"Tranche A Lender" shall mean each Lender having a Tranche A
Commitment.
"Tranche A Loan" shall have the meaning set forth in Section 2.01(a).
"Tranche A Total Commitment Usage" shall mean, at any time, the sum of
(i) the aggregate outstanding principal amount of all Tranche A Loans and (ii)
the aggregate LC Exposure at such time.
"Tranche B Commitment" shall mean the commitment of each Tranche B
Lender to make such amount of the Tranche B Loan hereunder in the amount set
forth opposite its name on Annex A hereto or as may be subsequently set forth in
the Register from time to time, as the case may be and as the same may be
reduced from time to time pursuant to the last sentence of Section 2.01(b) and
Sections 2.12 and 2.13. The initial aggregate amount of the Tranche B Commitment
is $250,000,000.
"Tranche B Commitment Percentage" shall mean, at any time, with
respect to each Tranche B Lender, the percentage obtained by dividing its
Tranche B Commitment at such time by the Total Tranche B Commitment.
"Tranche B Lender" shall mean each Lender having a Tranche B
Commitment.
"Tranche B Loan" shall have the meaning set forth in Section 2.01(b).
"Transactions" shall mean the execution, delivery and performance by
the Borrower and Guarantors of this Agreement, the borrowing of Loans, the use
of the proceeds thereof and the request for and issuance of Letters of Credit
hereunder.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate
Base Rate.
"UCC" shall mean the Uniform Commercial Code as in effect from time to
time in the State of New York; provided, however, that if by reason of any
provisions of law, the perfection or the effect of perfection or non-perfection
of the security interests granted to the Administrative Agent pursuant to the
applicable Loan Document is governed by the Uniform Commercial Code as in effect
in a jurisdiction of the United States other than New York, then "UCC" shall
mean the Uniform Commercial Code as in effect from time to time in such other
jurisdiction for purposes of the provisions of each Loan Document.
28
"Uncollateralized LC Exposure" shall mean, at any time, (i) the
aggregate LC Exposure at such time less (ii) the aggregate LC Exposure for which
Cash Collateralization has been made in accordance with Section 2.03(j) prior to
such time and which Cash Collateralization is in effect at such time.
"Unused Total Tranche A Commitment" shall mean, at any time, (i) the
Total Tranche A Commitment less (ii) the Tranche A Total Commitment Usage.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer Plan, as
such term is defined in Part I of Subtitle E of Title IV of ERISA.
"Wholly-Owned" shall mean, as to any Guarantor (or any other
Subsidiary of the Borrower), any other Person all of the capital stock (or other
equivalent ownership interests) of which (other than directors' qualifying
shares or nominal shares held by employees, in each case as required by law) is
owned by such Guarantor (or such other Subsidiary of the Borrower) directly and
or through other Wholly-Owned Subsidiaries.
SECTION 1.02 TERMS GENERALLY. (a) The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (i) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (ii) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (iii) the words "herein", "hereof' and "hereunder", and words of
similar import, shall be construed to refer to this Agreement in its entirety
and not to any particular provision hereof, (iv) all references herein to
Articles, Sections, Exhibits and Schedules shall be construed to refer to
Articles and Section of, and Exhibits and Schedules to, this Agreement and (v)
the words "asset" and "property" shall construed to have the same meaning and
effect and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract rights.
(b) When a change in any amount, percentage, reserve, eligibility criteria
or other item in the definitions of the terms "Borrowing Base", "Eligible
Inventory", "Eligible Receivables", "Fixed Asset Component", "Inventory
Reserves" and "Rent Reserve" is to be determined in the Administrative Agent's
"reasonable discretion", such change shall become effective on the date that is
ten (10) days after delivery of a written notice thereof to the Borrower (a
"Borrowing Base Change Notice"), or immediately, without prior written notice,
during the continuance of an Event of Default; provided that (regardless of
whether an Event of Default is continuing) no change set forth in a Borrowing
Base Change Notice shall be required to be reflected in the next Borrowing Base
Certificate delivered by the Borrower if such Borrowing Base Change Notice is
delivered to the Borrower less than ten (10) days prior to the date such
Borrowing Base Certificate is required to be delivered hereunder.
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SECTION 1.03 ACCOUNTING TERMS; GAAP. Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time; provided that, if the
Borrower notifies the Administrative Agent that the Borrower requests an
amendment to any provision hereof to eliminate the effect of any change
occurring after the Closing Date in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall been
withdrawn or such provision amended in accordance herewith.
SECTION 2. AMOUNT AND TERMS OF CREDIT
SECTION 2.01 COMMITMENTS OF THE LENDERS.
(a) Tranche A Revolving Commitment. (i) Each Tranche A Lender
severally and not jointly with the other Tranche A Lenders agrees, upon the
terms and subject to the conditions herein set forth, to make revolving credit
loans (each a "Tranche A Loan" and collectively, the "Tranche A Loans") to the
Borrower at any time and from time to time during the Availability Period in an
aggregate principal amount not to exceed, when added to its LC Exposure, the
Tranche A Commitment of such Lender, which Tranche A Loans may be repaid and
reborrowed in accordance with the provisions of this Agreement; provided that
(x) at no time shall the sum of the then outstanding aggregate principal amount
of the Tranche A Loans plus the then LC Exposure exceed the Total Tranche A
Commitment at such time and (y) at no time shall the sum of the then outstanding
aggregate principal amount of the Tranche A Loans plus the then LC Exposure plus
the then outstanding aggregate principal amount of the Tranche B Loans exceed
the lesser of (i) the Total Commitment at such time and (ii) (A) prior to the
entry of the Final Order, the amount permitted by the Interim Order and (B) from
and after the entry of the Final Order, the Borrowing Base.
(ii) Each Borrowing of a Tranche A Loan shall be made by the
Tranche A Lenders pro rata in accordance with their respective Tranche A
Commitments; provided, however, that the failure of any Tranche A Lender to
make any Tranche A Loan shall not relieve the other Tranche A Lenders of
their obligations to lend.
(b) Tranche B Term Loan Commitment. (i) Each Tranche B Lender,
severally and not jointly with the other Tranche B Lenders agrees, upon the
satisfaction (or waiver) of the conditions set forth in Section 4.03 and upon
the other terms and subject to the conditions herein set forth, to make
available to the Borrower term loans in an aggregate principal amount equal to
such Tranche B Lender's Tranche B Commitment (all such loans, collectively, the
"Tranche B Loan") provided that at no time shall the sum of the then outstanding
aggregate principal amount of the Tranche A Loans plus the then LC Exposure plus
the then outstanding aggregate principal amount of the Tranche B Loans exceed
the lesser of (i) the Total Commitment at such time and (ii) (A) prior to the
entry of the Final Order, the amount permitted by the Interim Order and (B) from
and after the entry of the Final Order, the Borrowing Base. Once repaid, the
Tranche B
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Loan may not be reborrowed and the Total Tranche B Commitment shall be
automatically and permanently reduced by an amount equal to the amount so
repaid.
(ii) The Tranche B Loan shall be made by the Tranche B Lenders
pro rata in accordance with their respective Tranche B Commitment;
provided, however, that the failure of any Tranche B Lender to make its
Tranche B Loan shall not in itself relieve the other Tranche B Lenders of
their obligations to lend.
(c) Other than as otherwise provided in Section 2.04(b), each
Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the
Borrower may request in accordance herewith. Each Lender at its option may make
any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of
such Lender to make such Eurodollar Loan; provided that any exercise of such
option shall not affect the obligation of the Borrower to repay such Loan in
accordance with the terms of this Agreement.
(d) At the commencement of each Interest Period for any Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount that is in an integral
multiple of $1,000,000 and not less than $5,000,000. At the time that each ABR
Borrowing is made, such Borrowing shall be in an aggregate amount that is an
integral multiple of $500,000 and not less than $1,000,000 provided, that an ABR
Borrowing may be in an aggregate amount that is equal to the entire Unused Total
Tranche A Commitment or that is required to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.03(e). Borrowings of more than one
Type may be outstanding at the same time.
(e) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Maturity Date.
SECTION 2.02 RESERVED.
SECTION 2.03 LETTERS OF CREDIT. (a) General. Subject to the terms and
conditions set forth herein, the Borrower may request the issuance of Letters of
Credit for its own account or the account of any Subsidiary, in a form
reasonably acceptable to the Administrative Agent and the Issuing Lender, and
the Issuing Lender hereby agrees to issue such requested Letters of Credit, at
any time and from time to time during the Availability Period. In the event of
any inconsistency between the terms and conditions of this Agreement and the
terms and conditions of any form of letter of credit application or other
agreement submitted by the Borrower to, or entered into by the Borrower with,
the Issuing Lender relating to any Letter of Credit, the terms and conditions of
this Agreement shall control. At no time shall a Letter of Credit be issued if
(x) the sum of the then outstanding aggregate principal amount of the Tranche A
Loans plus the LC Exposure (inclusive of the amount of such proposed Letter of
Credit) would exceed the Total Tranche A Commitment at such time or (y) the sum
of the then outstanding aggregate principal amount of the Tranche A Loans plus
the then LC Exposure (inclusive of the amount of such proposed Letter of Credit)
plus the then outstanding aggregate principal amount of the Tranche B Loans
would exceed the lesser of (i) the Total Commitment at such time and (ii) (A)
prior to the entry of the Final Order, the amount permitted by the Interim Order
and (B) from and after the entry of the Final Order, the Borrowing Base.
31
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the Issuing Lender) to the
Issuing Lender and the Administrative Agent (reasonably in advance of the
requested date of issuance, amendment, renewal or extension) a notice requesting
the issuance of a Letter of Credit, or identifying the Letter of Credit to be
amended, renewed or extended, and specifying the date of issuance, amendment,
renewal or extension (which shall be a Business Day), the date on which such
Letter of Credit is to expire (which shall comply with paragraph (c) of this
Section), the amount of such Letter of Credit, the Person for whose account such
Letter of Credit shall be issued, the name and address of the beneficiary
thereof and such other information as shall be reasonably necessary to prepare,
amend, renew or extend such Letter of Credit. If requested by the Issuing
Lender, the Borrower also shall submit a letter of credit application on the
Issuing Lender's standard form in connection with any request for a Letter of
Credit. A Letter of Credit shall be issued, amended, renewed or extended only if
(and upon issuance, amendment, renewal or extension of each Letter of Credit the
Borrower shall be deemed to represent and warrant that), after giving effect to
such issuance, amendment, renewal or extension the LC Exposure shall not exceed
$325,000,000. No Issuing Lender shall permit any such issuance, renewal,
extension or amendment resulting in an increase in the amount of any Letter of
Credit to occur if such Issuing Lender has received notice from the
Administrative Agent or the Required Lenders that the conditions to such
issuance, renewal, extension or amendment have not been met.
(c) Expiration Date. Each Letter of Credit shall expire at or prior to
the close of business on the earlier of (i) one year after the date of the
issuance of such Letter of Credit (or, in the case of any renewal or extension
thereof, one year after such renewal or extension) and (ii) 180 days after the
Maturity Date; provided that any Letter of Credit with a one-year term may
provide for the renewal thereof for additional one-year periods (which shall in
no event extend beyond the date referred to in clause (ii) above).
(d) Participations. By the issuance (or, in the case of an Existing
Letter of Credit, the deemed issuance) of a Letter of Credit (or an amendment to
a Letter of Credit including any amendment increasing the amount thereof) and
without any further action on the part of the Issuing Lender or the Tranche A
Lenders, the Issuing Lender hereby grants to each Tranche A Lender, and each
Tranche A Lender hereby acquires from the Issuing Lender, a participation in
such Letter of Credit equal to such Tranche A Lender's Tranche A Commitment
Percentage of the aggregate amount available to be drawn under such Letter of
Credit. In consideration and in furtherance of the foregoing, each Tranche A
Lender hereby absolutely and unconditionally agrees to pay to the Administrative
Agent. for the account of the Issuing Lender, such Tranche A Lender's Tranche A
Commitment Percentage of each LC Disbursement made by the Issuing Lender and not
reimbursed by the Borrower on the date due as provided in paragraph (e) of this
Section, or of any reimbursement payment required to be refunded to the Borrower
for any reason. Each Tranche A Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence of an Event of
32
Default or reduction or termination of the Tranche A Commitments, and that each
such payment shall be made without any offset, abatement, withholding or
reduction whatsoever.
(e) Reimbursement. If the Issuing Lender shall make any LC
Disbursement in respect of a Letter of Credit (including any Letter of Credit
issued for the account of any Subsidiary), the Borrower shall reimburse such LC
Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than 12:00 noon, New York City time, on the Business Day
immediately following the day that the Borrower receives notice of such LC
Disbursement; provided, that, the Borrower may, subject to the conditions to
borrowing set forth herein, request in accordance with Section 2.04(a) that such
payment be financed with an ABR Borrowing in an equivalent amount and, to the
extent so financed, the Borrower's obligation to make such payment shall be
discharged and replaced by the resulting ABR Borrowing. If the Borrower fails to
make such payment when due, the Administrative Agent shall notify each Tranche A
Lender of the applicable LC Disbursement, the payment then due from the Borrower
in respect thereof and such Tranche A Lender's Tranche A Commitment Percentage
thereof. Promptly following receipt of such notice, each Tranche A Lender shall
pay to the Administrative Agent its Tranche A Commitment Percentage of the
payment then due to the Issuing Lender from the Borrower, in the same manner as
provided in Section 2.05 with respect to Tranche A Loans made by such Tranche A
Lender (and Section 2.05 shall apply, mutatis mutandis, to the payment
obligations of the Tranche A Lenders), and the Administrative Agent shall
promptly pay to the Issuing Lender the amounts so received by it from the
Tranche A Lenders. Promptly following receipt by the Administrative Agent of any
payment from the Borrower pursuant to this paragraph, the Administrative Agent
shall distribute such payment to the Issuing Lender or, to the extent that
Tranche A Lenders have made payments pursuant to this paragraph to reimburse the
Issuing Lender, then to such Tranche A Lenders and the Issuing Lender as their
interests may appear. Any payment made by a Tranche A Lender pursuant to this
paragraph to reimburse the Issuing Lender for any LC Disbursement (other than
the funding of ABR Loans as contemplated above) shall not constitute a Tranche A
Loan and shall not relieve the Borrower of its obligation to reimburse such LC
Disbursement.
(f) Obligations Absolute. The Borrower's obligation to reimburse LC
Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the Issuing Lender under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Borrower's obligations hereunder. Neither
the Administrative Agent, the Tranche A Lenders nor the Issuing Lender, nor any
of their Related Parties, shall have any liability or responsibility by reason
of or in connection with the issuance or transfer of any Letter of Credit or any
payment or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit
33
(including any document required to make a drawing thereunder), any error in
interpretation of technical terms or any consequence arising from causes beyond
the control of the Issuing Lender; provided, that the foregoing shall not be
construed to excuse the Issuing Lender from liability to the Borrower to the
extent of any direct damages (as opposed to consequential damages, claims in
respect of which are hereby waived by the Borrower to the extent permitted by
applicable law) suffered by the Borrower that are caused by the Issuing Lender's
failure to exercise care when determining whether drafts and other documents
presented under a Letter of Credit comply with the terms thereof. The parties
hereto expressly agree that, in the absence of gross negligence, bad faith or
willful misconduct on the part of the Issuing Lender, its directors, officers,
employees or affiliates (as finally determined by a court of competent
jurisdiction), the Issuing Lender shall be deemed to have exercised care in each
such determination. In furtherance of the foregoing and without limiting the
generality thereof, the parties agree that, with respect to documents presented
which appear on their face to be in substantial compliance with the terms of a
Letter of Credit, the Issuing Lender may, in its reasonable discretion, either
accept and make payment upon such documents without responsibility for further
investigation, regardless of any notice or information to the contrary, or
refuse to accept and make payment upon such documents if such documents are not
in strict compliance with the terms of such Letter of Credit.
(g) Disbursement Procedures. The Issuing Lender shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The Issuing Lender shall promptly
notify the Administrative Agent and the Borrower by telephone (confirmed by
telecopy) of such demand for payment and whether the Issuing Lender has made or
will make an LC Disbursement thereunder; provided, that any failure to give or
delay in giving such notice shall not relieve the Borrower of its obligation to
reimburse the Issuing Lender and the Tranche A Lenders with respect to any such
LC Disbursement.
(h) Interim Interest. If the Issuing Lender shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Loans; provided,
that, if the Borrower fails to reimburse such LC Disbursement when due pursuant
to paragraph (e) of this Section, then Section 2.09 shall apply. Interest
accrued pursuant to this paragraph shall be for the account of the Issuing
Lender, except that interest accrued on and after the date of payment by any
Tranche A Lender pursuant to paragraph (e) of this Section to reimburse the
Issuing Lender shall be for the account of such Tranche A Lender to the extent
of such payment.
(i) Replacement of the Issuing Lender. An Issuing Lender may be
replaced at any time by written agreement among the Borrower, the Administrative
Agent, the replaced Issuing Lender and the successor Issuing Lender. The
Administrative Agent shall notify the Tranche A Lenders of any such replacement
of an Issuing Lender. At the time any such replacement shall become effective,
the Borrower shall pay all unpaid fees accrued for the account of the replaced
Issuing Lender pursuant to Section 2.22. From and after the effective date of
any such replacement, (i) the successor Issuing Lender shall have all the rights
and obligations of an Issuing Lender under this Agreement with respect to
Letters of Credit to be
34
issued thereafter and (ii) references herein to the term "Issuing Lender" shall
be deemed to refer to such successor or to any previous Issuing Lender, or to
such successor and all previous Issuing Lenders, as the context shall require.
After the replacement of a Issuing Lender hereunder, the replaced Issuing Lender
shall remain a party hereto and shall continue to have all the rights and
obligations of an Issuing Lender under this Agreement with respect to Letters of
Credit issued by it prior to such replacement, but shall not be required to
issue additional Letters of Credit.
(j) Replacement of Letters of Credit; Cash Collateralization. Upon or
prior to the occurrence of the Termination Date the Borrower shall (i) cause all
Letters of Credit which expire after the Termination Date to be returned to the
Issuing Lender undrawn and marked "cancelled" or, to the extent the Borrower is
unable to return any of the Letters of Credit, (ii) either (x) provide one or
more "back-to-back" letters of credit to one or more Issuing Lenders in a form
reasonably satisfactory to each such Issuing Lender that is a beneficiary of
such "back-to-back" letter of credit and the Administrative Agent, issued by a
bank reasonably satisfactory to each such Issuing Lender and the Administrative
Agent, and/or (y) deposit cash in the Letter of Credit Account, the sum of (x)
and (y) of the foregoing sentence to be in an aggregate amount equal to 105% of
Uncollateralized LC Exposure as collateral security for the Borrower's
reimbursement obligations in connection therewith, such cash to be remitted to
the Borrower upon and to the extent of the expiration, cancellation or other
termination or satisfaction of such reimbursement obligations ("Cash
Collateralization"). The Administrative Agent shall have exclusive dominion and
control, including the exclusive right of withdrawal, over such account. Other
than any interest earned on the investment of such deposits, which investments
shall be made at the option and sole reasonable discretion of the Administrative
Agent (in accordance with its usual and customary practices for investments of
this type) and at the Borrower's risk and reasonable expense, such deposits
shall not bear interest. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall be applied by the
Administrative Agent to reimburse the Issuing Lender for LC Disbursements for
which it has not been reimbursed and, to the extent not so applied, shall be
held for the satisfaction of the reimbursement obligations of the Borrower for
the LC Exposure at such time and upon expiration or cancellation (or backstop as
set forth in clause (x) above) of the related Letter of Credit or other
termination or satisfaction of the Borrower's reimbursement obligations with
respect thereto, such cash shall be promptly remitted to the Borrower.
(k) Issuing Lender Agreements. Unless otherwise requested by the
Administrative Agent, each Issuing Lender shall report in writing to the
Administrative Agent (i) on the first Business Day of each week, the daily
activity (set forth by day) in respect of Letters of Credit during the
immediately preceding week, including all issuances, extensions, amendments and
renewals, all expirations and cancellations and all disbursements and
reimbursements, (ii) on or prior to each Business Day on which such Issuing
Lender expects to issue, amend, renew or extend any Letter of Credit, the date
of such issuance, amendment, renewal or extension, and the aggregate face amount
of the Letters of Credit to be issued, amended, renewed, or extended by it and
outstanding after giving effect to such issuance, amendment, renewal or
extension occurred (and whether the amount thereof changed), it being understood
that such Issuing Lender shall not permit any issuance, renewal, extension or
amendment resulting in an increase in the amount of any Letter of Credit to
occur if such Issuing Lender has received notice from the Administrative Agent
or the Required Lenders that the conditions to such issuance, extension or
amendment have not been met, (iii) on each Business
35
Day on which such Issuing Lender makes any LC Disbursement, the date of such LC
Disbursement and the amount of such LC Disbursement, (iv) on any Business Day on
which the Borrower fails to reimburse an LC Disbursement required to be
reimbursed to such Issuing Lender on such day, the date of such failure, the
Borrower and the amount of such LC Disbursement and (v) on any other Business
Day, such other information as the Administrative Agent shall reasonably
request.
SECTION 2.04 REQUESTS FOR BORROWINGS.
(a) Tranche A Loans. Unless otherwise agreed to by the Administrative
Agent in connection with making the initial Loans, to request a Borrowing of
Tranche A Loans, the Borrower shall notify the Administrative Agent of such
request by telephone (a) in the case of a Eurodollar Borrowing, not later than
1:00 p.m., New York City time, three (3) Business Days before the date of the
proposed Borrowing and (b) in the case of an ABR Borrowing, not later than 12:00
p.m., New York City time, on the date of the proposed Borrowing; provided, that
any such notice of an ABR Borrowing to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.03(e) may be given not later than
11:00 a.m., New York City time, on the date of the proposed Borrowing. Each such
telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery, courier or telecopy to the Administrative Agent of a
written Borrowing Request in a form reasonably acceptable to the Administrative
Agent and signed by the Borrower. Each such telephonic and written Borrowing
Request shall specify the following information in compliance with Section
2.01(a):
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period".
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Borrowing, then the Borrower shall be deemed
to have selected an Interest Period of one month's duration. Promptly following
receipt of a Borrowing Request in accordance with this Section 2.04(a), the
Administrative Agent shall advise each Tranche A Lender of the details thereof
and of the amount of such Tranche A Lender's Tranche A Loan to be made as part
of the requested Borrowing.
(b) Tranche B Loan. To request the Borrowing of the Tranche B Loan,
the Borrower shall notify the Administrative Agent of such request by telephone
(a) in the case of a Eurodollar Borrowing, not later than 1:00 p.m., New York
City time, three (3) Business Days before the date of the proposed Borrowing and
(a) in the case of an ABR Borrowing, not later than 12:00 noon, New York City
time on the date of the proposed Borrowing. Such telephonic notice shall be
irrevocable and shall be confirmed promptly by hand delivery, courier or
telecopy
36
to the Administrative Agent of a written Borrowing Request in a form reasonably
acceptable to the Administrative Agent and signed by the Borrower. Such
telephone and written Borrowing Request shall specify the following information
in compliance with Section 2.01:
(i) the aggregate amount of the requested Borrowing (which shall
be the amount of the Total Tranche B Commitment);
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) the portion of the Tranche B Loan that is to initially be
an ABR Borrowing and that is to initially be a Eurodollar Borrowing; and
(iv) in the case of such portion of the Tranche B Loan that is a
Eurodollar Borrowing, the initial Interest Period applicable thereto, which
shall be a period contemplated by the definition of the term "Interest
Period".
If no election as to the Type of Borrowing is specified, then the Tranche B Loan
shall initially be an ABR Borrowing. If no Interest Period is specified with
respect to any portion of the Tranche B Loan that is to initially be a
Eurodollar Borrowing, then the Borrower shall be deemed to have selected an
Interest Period of one month's duration. Promptly following receipt of the
Borrowing Request in accordance with this Section 2.04(b), the Administrative
Agent shall advise each Tranche B Lender of the details thereof and of the
amount of such Tranche B Lender's Loan to be made as part of the requested
Borrowing (which shall be equal to such Tranche B Lender's Tranche B
Commitment).
SECTION 2.05 FUNDING OF BORROWINGS. (a) Each Lender shall make each Loan to
be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 2:00 p.m., New York City time, to the account of
the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders. The Administrative Agent will make such Loans available
to the Borrower by promptly crediting the amounts so received, in like funds, to
an account of the Borrower maintained with the Administrative Agent and
designated by the Borrower in the applicable Borrowing Request; provided that
ABR Loans made to finance the reimbursement of an LC Disbursement as provided in
Section 2.03(e) shall be remitted by the Administrative Agent to the Issuing
Lender.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry
37
rules on interbank compensation or (ii) in the case of the Borrower, the
interest rate applicable to ABR Loans. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing.
SECTION 2.06 INTEREST ELECTIONS. (a) Each Borrowing of Tranche A Loans and
the Borrowing of the Tranche B Loan initially shall be of the Type or, in the
case of the Tranche B Loan, Types specified in the applicable Borrowing Request
and, in the case of a Eurodollar Borrowing, shall have an initial Interest
Period as specified in such Borrowing Request. Thereafter, the Borrower may
elect to convert such Borrowings to a different Type or to continue such
Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest Periods
therefor, all as provided in this Section. The Borrower may elect different
options with respect to different portions of the affected Borrowing, in which
case each such portion shall be allocated ratably among the Lenders holding the
Tranche A Loans or Tranche B Loan, as the case may be, comprising such
Borrowing, and the Tranche A Loans and Tranche B Loan, as the case may be,
comprising each such Type shall be considered a separate Borrowing.
(b) To make an Interest Election Request pursuant to this Section, the
Borrower shall notify the Administrative Agent of such election by telephone by
the time that a Borrowing Request would be required under Section 2.04(a) or
Section 2.04(b) if the Borrower were requesting a Borrowing of the Type
resulting from such election to be made on the effective date of such election.
Each such telephonic Interest Election Request shall be irrevocable and shall be
confirmed promptly by hand delivery, courier or telecopy to the Administrative
Agent of a written Interest Election Request in a form reasonably acceptable to
the Administrative Agent and signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.01:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing
or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
38
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Borrowing prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as provided
herein, at the end of such Interest Period such Borrowing shall be continued as
a Eurodollar Borrowing having an Interest Period of one month. Notwithstanding
any contrary provision hereof, if an Event of Default has occurred and is
continuing, then, so long as an Event of Default is continuing (i) no
outstanding Borrowing may be converted to or continued as a Eurodollar Borrowing
and (ii) unless repaid, each Eurodollar Borrowing shall be converted to an ABR
Borrowing at the end of the Interest Period applicable thereto.
SECTION 2.07 [RESERVED]
SECTION 2.08 INTEREST ON LOANS.
(a) Subject to the provisions of Section 2.09, each ABR Loan shall
bear interest (computed on the basis of the actual number of days elapsed over a
year of 360 days or, when the Alternate Base Rate is based on the Prime Rate, a
year with 365 days or 366 days in a leap year) at a rate per annum equal to the
Alternate Base Rate plus 1.75%.
(b) Subject to the provisions of Section 2.09, each Eurodollar Loan
shall bear interest (computed on the basis of the actual number of days elapsed
over a year of 360 days) at a rate per annum equal, during each Interest Period
applicable thereto, to the Adjusted LIBO Rate for such Interest Period in effect
for such Borrowing plus 2.75%.
(c) Accrued interest on all Loans shall be payable in arrears on each
Interest Payment Date applicable thereto, on the Termination Date and after the
Termination Date on demand and (with respect to Eurodollar Loans) upon any
repayment or prepayment thereof (on the amount prepaid).
SECTION 2.09 DEFAULT INTEREST. If the Borrower or any Guarantor, as the
case may be, shall default in the payment of the principal of or interest on any
Loan or in the payment of any other amount becoming due hereunder (including the
reimbursement pursuant to Section 2.03(e) of any LC Disbursements), whether at
stated maturity, by acceleration or otherwise, the Borrower or such Guarantor,
as the case may be, shall on demand from time to time pay interest, to the
extent permitted by law, on all Loans and overdue amounts up to (but not
including) the date of actual payment (after as well as before judgment) at a
rate per annum (computed on the basis of the actual number of days elapsed over
a year of 360 days or when the Alternate Base Rate is applicable and is based on
the Prime Rate, a year with 365 days or 366 days in a leap year) equal to (x)
the rate then applicable for such Borrowings plus 2.0% and (y) in the case of
all other amounts, the rate applicable for Alternate Base Rate plus 2.0%.
SECTION 2.10 ALTERNATE RATE OF INTEREST. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurodollar Loan, the Administrative Agent shall have
determined (which determination shall be conclusive
39
and binding upon the Borrower absent manifest error) that reasonable means do
not exist for ascertaining the applicable Adjusted LIBO Rate, the Administrative
Agent shall, as soon as practicable thereafter, give written, facsimile or
telegraphic notice of such determination to the Borrower and the Lenders, and
any request by the Borrower for a Borrowing of Eurodollar Loans (including
pursuant to a refinancing with Eurodollar Loans) pursuant to Section 2.04 shall
be deemed a request for a Borrowing of ABR Loans. After such notice shall have
been given and until the circumstances giving rise to such notice no longer
exist, each request for a Borrowing of Eurodollar Loans shall be deemed to be a
request for a Borrowing of ABR Loans.
SECTION 2.11 REPAYMENT OF LOANS; EVIDENCE OF DEBT.
(a) The Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Loan on the Termination Date.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Type thereof and the
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder for the account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph
(b) or (c) of this Section shall be prima facie evidence of the existence and
amounts of the obligations recorded therein; provided that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a
promissory note. In such event, the Borrower shall execute and deliver to such
Lender a promissory note payable to the order of such Lender (or, if requested
by such Lender, to such Lender and its registered assigns) in a form furnished
by the Administrative Agent and reasonably acceptable to the Borrower.
Thereafter, the Loans evidenced by such promissory note and interest thereon
shall at all times (including after assignment pursuant to Section 10.03 to the
extent requested by the Lender assignee) be represented by one or more
promissory notes in such form payable to the order of the payee named therein
(or, if such promissory note is a registered note, to such payee and its
registered assigns).
SECTION 2.12 OPTIONAL TERMINATION OR REDUCTION OF COMMITMENT. Upon at least
one Business Day's prior written notice to the Administrative Agent. the
Borrower may at any time in whole permanently terminate, or from time to time in
part permanently reduce, the Unused Total Tranche A Commitment and the Total
Tranche B Commitment. Each such
40
reduction of the Commitments shall be in the principal amount of $1,000,000 or
any integral multiple thereof. Simultaneously with each reduction or termination
of the Tranche A Commitment, the Borrower shall pay to the Administrative Agent
for the account of each Tranche A Lender the Commitment Fee accrued and unpaid
on the amount of the Tranche A Commitment of such Tranche A Lender so terminated
or reduced through the date thereof. Any reduction of any Commitment pursuant to
this Section shall be applied pro rata to reduce the applicable Commitment of
each Tranche A Lender or Tranche B Lender, as the case may be.
SECTION 2.13 MANDATORY PREPAYMENT; COMMITMENT TERMINATION.
(a) If at any time the aggregate principal amount of the outstanding
Tranche A Loans plus the aggregate principal amount of the outstanding Tranche B
Loans plus the LC Exposure exceeds the lesser of (x) the Total Commitment at
such time and (y) (A) prior to the entry of the Final Order, the amount
permitted by the Interim Order and (B) from and after the entry of the Final
Order, the Borrowing Base (the "Lesser Amount"), the Borrower will within one
Business Day (i) make a prepayment in an amount necessary to cause the aggregate
principal amount of the outstanding Tranche A Loans plus the aggregate principal
amount of the outstanding Tranche B Loans plus the LC Exposure to be equal to or
less than the Lesser Amount, such prepayment to be applied to repay Tranche A
Loans (with no corresponding commitment reduction) and/or Tranche B Loans as
directed by the Borrower, and (ii) if, after giving effect to the prepayment in
full of the Tranche A Loans and the Tranche B Loans, the Uncollateralized LC
Exposure exceeds the Lesser Amount, deposit into the Letter of Credit Account an
amount equal to 105% of the amount by which the Uncollateralized LC Exposure so
exceeds the Lesser Amount, provided that, if on any date thereafter, the Lesser
Amount (as recalculated on such date) exceeds the LC Exposure plus the
outstanding Tranche A Loans plus the outstanding Tranche B Loans on such date,
any amount deposited into the Letter of Credit Account pursuant to subclause
(ii) above shall be returned to the Borrower.
(b) If on any date the Borrower or any Guarantor shall receive Net
Cash Proceeds from (i) any Asset Sale or (ii) any Recovery Event (except to the
extent that Net Cash Proceeds received in connection with such Recovery Event
are applied within 180 days of receipt thereof to the replacement or repair of
the assets giving rise thereto), and in each case, the aggregate amount of all
Net Cash Proceeds from Asset Sales and Recovery Events received by the Borrower
and the Guarantors from Asset Sales and Recovery Events occurring on and after
the Closing Date exceeds $125,000,000 then (without duplication of any reduction
to the Borrowing Base as a result of such Asset Sale or Recovery Event), an
amount equal to 66-2/3% of such excess Net Cash Proceeds received on such date
shall be promptly, and in any event, within 10 days after such date either (i)
first, applied to the prepayment of the Tranche B Loans (with a corresponding
permanent reduction of the Total Tranche B Commitments) and second, applied to
the prepayment of the Tranche A Loans (with a corresponding permanent reduction
of the Total Tranche A Commitments) or (ii) deposited into a cash collateral
account maintained with the Administrative Agent for the benefit of the holders
of Liens and claims granted under the Final Order in the order of priority set
forth therein; provided that the Borrower shall be permitted to request approval
of the Bankruptcy Court to use such proceeds in accordance with Section 363 of
the Bankruptcy Code so long as such uses are permitted under this Agreement and
subject to the rights of parties in interest to contest such request.
41
(c) Upon the Termination Date, the Total Commitment shall be
terminated in full and the Borrower shall repay the Loans in full.
SECTION 2.14 OPTIONAL PREPAYMENT OF LOANS.
(a) The Borrower shall have the right at any time and from time to
time to prepay any Loans, in whole or in part, (x) with respect to Eurodollar
Loans, upon written or facsimile notice received by 1:00 p.m. New York City time
three Business Days' prior to the proposed date of prepayment and (y) with
respect to ABR Loans on the same Business Day upon written or facsimile notice
by 12:00 noon New York City time on the proposed date of prepayment; provided,
however, that (i) each such partial prepayment (other than a prepayment of all
outstanding Tranche A Loans or all outstanding Tranche B Loans) shall be in
multiples of $1,000,000 and (ii) no prepayment of Eurodollar Loans shall be
permitted pursuant to this Section 2.14(a) other than on the last day of an
Interest Period applicable thereto unless such prepayment is accompanied by the
payment of the amounts required by Section 2.17. Any prepayments under this
Section 2.14(a) shall be applied, at the Borrower's option, to (x) repay the
outstanding Tranche A Loans of the Tranche A Lenders (with no corresponding
reduction in the Total Tranche A Commitments) and (y) repay the Tranche B Loans
of the Tranche B Lenders.
(b) Each notice of prepayment shall specify the prepayment date, the
principal amount of the Loans to be prepaid and in the case of Eurodollar Loans,
the Borrowing or Borrowings pursuant to which made, and, subject to the last
sentence of this Section 2.14(b), shall be irrevocable and shall commit the
Borrower to prepay such Loan by the amount and on the date stated therein. The
Administrative Agent shall, promptly after receiving notice from the Borrower
hereunder, notify each Lender of the principal amount of the Loans held by such
Lender which are to be prepaid, the prepayment date and the manner of
application of the prepayment. Notwithstanding anything in this Section 2.14 to
the contrary, if the Borrower delivers a notice of prepayment of all (but not
less than all) of the outstanding Loans and other Obligations and the
termination of all commitments hereunder, such notice may state that it is
conditioned upon the effectiveness of other credit facilities or the occurrence
of a Change of Control, and in either case, (i) such notice may be revoked by
the Borrower by written notice to the Administrative Agent no later than 12 noon
New York City time on the specified prepayment date if such condition is not
satisfied, and (ii) such prepayment shall be accompanied by the payment of the
amounts required by Section 2.17.
SECTION 2.15 RESERVED.
SECTION 2.16 INCREASED COSTS. (a) If any Change in Law (except in respect
of Taxes (as to which Section 2.18 shall govern)) shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender (except any such reserve
requirement reflected in the Adjusted LIBO Rate) or the Issuing Lender; or
42
(ii) impose on any Lender or the Issuing Lender or the London
interbank market any other condition affecting this Agreement or Eurodollar
Loans made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or the
Issuing Lender of participating in, issuing or maintaining any Letter of Credit
or to reduce the amount of any sum received or receivable by such Lender or the
Issuing Lender hereunder (whether of principal, interest or otherwise), then the
Borrower will pay to such Lender or the Issuing Lender, as the case may be, such
additional amount or amounts as will compensate such Lender or the Issuing
Lender, as the case may be, for such additional costs incurred or reduction
suffered.
(b) If any Lender or the Issuing Lender reasonably determines that any
Change in Law regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's or the Issuing Lender's capital or
on the capital of such Lender's or the Issuing Lender's holding company, if any,
as a consequence of this Agreement or the Loans made by, or participations in
Letters of Credit held by, such Lender, or the Letters of Credit issued by the
Issuing Lender, to a level below that which such Lender or the Issuing Lender or
such Lender's or the Issuing Lender's holding company could have achieved but
for such Change in Law (taking into consideration such Lender's or the Issuing
Lender's policies and the policies of such Lender's or the Issuing Lender's
holding company with respect to capital adequacy), then from time to time the
Borrower will pay to such Lender or the Issuing Lender, as the case may be, such
additional amount or amounts as will compensate such Lender or the Issuing
Lender or such Lender's or the Issuing Lender's holding company for any such
reduction suffered.
(c) A certificate of a Lender or the Issuing Lender setting forth the
amount or amounts necessary to compensate such Lender or the Issuing Lender or
its holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered to the Borrower and shall be prima facie
evidence of the obligations of the Borrower hereunder. The Borrower shall pay
such Lender or the Issuing Lender, as the case may be, the amount shown as due
on any such certificate within 10 Business Days after receipt thereof; provided
that the failure of the Borrower to pay any amount owing to any Lender or
Issuing Lender, as the case may be, pursuant to this Section 2.16 shall not be
deemed to constitute a Default or an Event of Default hereunder to the extent
that the Borrower is contesting in good faith its obligation to pay such amount
by ongoing discussion diligently pursued with such Lender or Issuing Lender or
by appropriate proceedings.
(d) Failure or delay on the part of any Lender or the Issuing Lender
to demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or the Issuing Lender's right to demand such compensation;
provided, that the Borrower shall not be required to compensate a Lender or the
Issuing Lender pursuant to this Section for any increased costs or reductions
incurred more than 270 days prior to the date that such Lender or the Issuing
Lender, as the case may be, notifies the Borrower of the Change in Law giving
rise to such increased costs or reductions and of such Lender's or the Issuing
Lender's intention to claim compensation therefor; provided further that, if the
Change in Law giving rise to such increased
43
costs or reductions is retroactive, then the 270-day period referred to above
shall be extended to include the period of retroactive effect thereof.
SECTION 2.17 BREAK FUNDING PAYMENTS. In the event of (a) the payment of any
principal of any Eurodollar Loan other than on the last day of an Interest
Period applicable thereto (including as a result of an Event of Default), (b)
the conversion of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto (including as a result of an Event of Default), (c)
the failure to borrow, convert, continue or prepay any Eurodollar Loan on the
date specified in any notice delivered pursuant hereto or as provided in the
first sentence of Section 2.06(e), or (d) the assignment of any Eurodollar Loan
other than on the last day of the Interest Period applicable thereto as a result
of a request by the Borrower pursuant to Section 2.20, then, in any such event,
the Borrower shall compensate each Lender for the loss, cost and expense
attributable to such event. In the case of a Eurodollar Loan, such loss, cost or
expense to any Lender shall be deemed to include an amount determined by such
Lender to be the excess, if any, of (i) the amount of interest which would have
accrued on the principal amount of such Loan had such event not occurred, at the
Adjusted LIBO Rate that would have been applicable to such Loan, for the period
from the date of such event to the last day of the then current Interest Period
therefor (or, in the case of a failure to borrow, convert or continue, for the
period that would have been the Interest Period for such Loan), over (ii) the
amount of interest which would accrue on such principal amount for such period
at the interest rate which such Lender would bid were it to bid, at the
commencement of such period, for dollar deposits of a comparable amount and
period from other banks in the eurodollar market. A certificate of any Lender
setting forth any amount or amounts that such Lender is entitled to receive
pursuant to this Section shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such Lender the amount
shown as due on any such certificate within 10 Business Days after receipt
thereof.
SECTION 2.18 TAXES. (a) Any and all payments by or on account of any
obligation of the Borrower hereunder shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes. If the Borrower shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments, then
(i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section) the Administrative Agent, Lender or Issuing Lender (as the
case may be) receives an amount equal to the sum it would have received had no
such deductions been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law; provided, however,
that the Borrower shall not be required to increase any such amounts payable to
any Administrative Agent, Lender or Issuing Lender with respect to Indemnified
Taxes or Other Taxes (i) that are attributable to a Lender's failure to comply
with the requirements of paragraph (e) or (f) of this Section or (ii) that are
withholding taxes that would have been imposed had such payment been made to
such Lender at the time such Lender became a party to this Agreement, except to
the extent that such Lender's assignor (if any) was entitled, at the time of
assignment, to receive additional amounts from the Borrower with respect to such
Indemnified Taxes or Other Taxes pursuant to this paragraph.
(b) In addition but without duplication of any Taxes to be paid
pursuant to Section 2.18(a), the Borrower shall pay any Other Taxes to the
relevant Governmental Authority
44
(other than Other Taxes resulting solely from as assignment pursuant to Section
10.03(b) hereof) in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each Lender
and the Issuing Lender, within 10 days after written demand therefor, for the
full amount of any Indemnified Taxes or Other Taxes paid by the Administrative
Agent, such Lender or the Issuing Lender, as the case may be, on or with respect
to any payment by or on account of any obligation of the Borrower hereunder
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any penalties, interest
and reasonable expenses arising therefrom or with respect thereto, whether or
not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment or liability delivered to the Borrower by a Lender or the
Issuing Lender, or by the Administrative Agent on its own behalf or on behalf of
a Lender or the Issuing Lender, shall be conclusive absent manifest error.
Without limiting the Borrower's obligation to indemnify the Administrative
Agent, each Lender and each Issuing Lender (for purposes of this sentence, each
such party is a "cooperating party") for Indemnified Taxes and Other Taxes
hereunder (including in accordance with any time deadlines for such
indemnification set forth herein), in the event that the Borrower makes any
payment under Section 2.18(a), (b) or (c) with respect to any Tax, the Borrower
may, at its own expense, contest the imposition of such Tax with the relevant
Governmental Authority in order to obtain a refund thereof, and the relevant
cooperating party shall use commercially reasonably efforts to cooperate with
the Borrower in its pursuit of any such refund, provided that (i) prior to the
Borrower commencing the pursuit of any such refund or any cooperation on the
part of the relevant cooperating party, the Borrower has received an opinion of
counsel to the effect that there is a substantial likelihood of success in
obtaining such refund (such opinion of counsel to be issued by counsel, and in
form and substance, satisfactory to the relevant cooperating party) and (ii) no
relevant cooperating party shall (x) be required to disclose any confidential
information (including tax returns), (y) incur any unreimbursed cost or expense
or (z) be otherwise disadvantaged, in each case in connection with such
cooperation.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent, for its own account or for the account of
the relevant Lender as the case may be, the original or a certified copy of a
receipt received by the Borrower evidencing such payment or other evidence of
payment reasonably satisfactory to the Administrative Agent. Each Lender
represents as of the date such Lender becomes a party to this Agreement that, to
the best of its knowledge without having conducted any investigation, except for
Other Taxes that may be imposed under the federal, state or local laws of the
United States, it is not aware of any Other Taxes with respect to this Agreement
or any other Loan Document.
(e) (i) Each Foreign Lender shall deliver to the Borrower and the
Administrative Agent (or, in the case of a Participant, to the Lender from which
the related participation shall have been purchased) two copies of either U.S.
Internal Revenue Service Form W-8BEN, Form W-8ECI or Form W-8EXP, or, in the
case of a Foreign Lender claiming exemption from U.S. federal withholding tax
under Section 871(h) or 881(c) of the Code with respect to payments of
"portfolio interest", a true and accurate statement substantially in the form of
Exhibit D and a Form W-8BEN, or any subsequent versions thereof or successors
thereto, that the Borrower has
45
no knowledge or reason to know is untrue, properly completed and duly executed
by such Foreign Lender claiming complete exemption from, or a reduced rate of,
U.S. federal withholding tax on all payments by the Borrower under this
Agreement and the other Loan Documents.
(ii) Each Lender and Administrative Agent that is a "United
States Person", as defined in Section 7701(a)(30) of the Code (other than
Persons that are exempt from United States backup withholding tax) shall
deliver, at the time(s) and in the manner(s) prescribed by applicable law,
to the Borrower and the Administrative Agent (or, in the case of a
Participant, to the Lender from which the related participation shall have
been purchased) two copies of a properly completed and duly executed United
States Internal Revenue Form W-9 or any subsequent version thereof or
successor thereto, certifying that such Lender is exempt from United States
backup withholding tax on payments made hereunder.
Such forms shall be delivered by each Lender and the Administrative Agent on or
before the date it becomes a party to this Agreement (or, in the case of any
Participant, on or before the date such Participant purchases the related
participation). In addition, each Lender and the Administrative Agent shall
deliver such forms promptly upon the obsolescence or invalidity of any form
previously delivered by such Lender or the Administrative Agent. Each Lender and
the Administrative Agent shall promptly notify the Borrower at any time it
determines that it is no longer in a position to provide any previously
delivered certificate to the Borrower (or any other form of certification
adopted by the U.S. taxing authorities for such purpose). Notwithstanding any
other provision of this paragraph, a Lender or the Administrative Agent shall
not be required to deliver any form pursuant to this paragraph that such Lender
is not legally able to deliver.
(f) Any Lender that is entitled to an exemption from or reduction of
withholding tax under the law of the jurisdiction in which the Borrower is
located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall deliver to the Borrower and to the
Administrative Agent, at the time or times prescribed by applicable law or
reasonably requested by the Borrower, two copies of such properly completed and
executed documentation prescribed by applicable law or reasonably requested by
the Borrower as will permit such payments to be made without withholding or at a
reduced rate; provided that such Lender is legally entitled to complete, execute
and deliver such documentation in such Lender's judgment and such completion,
execution or submission would not materially prejudice the legal position of
such Lender.
(g) If the Administrative Agent or a Lender determines, in its sole
discretion, that it has received a refund or the equivalent from the relevant
Taxing Authority of any Taxes or Other Taxes as to which it has been indemnified
by the Borrower or with respect to which the Borrower has paid additional
amounts pursuant to this Section 2.18, it shall pay over such refund or
equivalent to the Borrower (but only to the extent of indemnity payments made,
or additional amounts paid, by the Borrower under this Section 2.18 with respect
to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Administrative Agent or such Lender and without
interest (other than any interest paid by the relevant Governmental Authority
with respect to such refund or equivalent); provided, that the Borrower, upon
the request of the
46
Administrative Agent or such Lender, agrees to repay the amount paid over to the
Borrower (plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) to the Administrative Agent or such Lender in the event
the Administrative Agent or such Lender is required to repay such refund or
equivalent to such Governmental Authority. This Section shall not be construed
to require the Administrative Agent or any Lender to make available its tax
returns (or any other information relating to its taxes which it deems
confidential) to the Borrower or any other Person.
SECTION 2.19 PAYMENTS GENERALLY; PRO RATA TREATMENT.
(a) The Borrower shall make each payment or prepayment required to be
made by it hereunder (whether of principal, interest, fees or reimbursement of
LC Disbursements, or of amounts payable under Section 2.16, 2.17 or 2.18, or
otherwise) prior to 2:00 p.m., New York City time, on the date when due, in
immediately available funds, without set-off or counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, except payments to be made directly to the Issuing Lender as
expressly provided herein and except that payments pursuant to Sections 2.16,
2.17, 2.18 and 10.05 shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest
thereon shall be payable for the period of such extension. All payments
hereunder shall be made in Dollars.
(b) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest, fees and expenses then due hereunder, such funds shall
be applied (i) first, towards payment of fees and expenses then due under
Sections 2.21 and 10.05, ratably among the parties entitled thereto in
accordance with the amounts of fees and expenses then due to such parties, (ii)
second, towards payment of interest, Commitment Fees and Letter of Credit Fees
then due on account of Tranche A Loans, Tranche B Loans, unreimbursed LC
Disbursements and Letters of Credit (including any interest payable pursuant to
Section 2.09), ratably among the parties entitled thereto in accordance with the
amounts of such interest and fees then due to such parties, (iii) third, towards
payment of principal of the Tranche A Loans, Tranche B Loans, and unreimbursed
LC Disbursements then due hereunder, ratably among the parties entitled thereto
in accordance with the amounts of principal and unreimbursed LC Disbursements
then due to such parties and (iv) fourth, towards the Cash Collateralization of
Letters of Credit then outstanding in an aggregate amount equal to 105% of the
Uncollateralized LC Exposure, provided, however, that the proceeds from the
foreclosure of any Collateral shall be applied as set forth in the Security and
Pledge Agreement.
(c) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or the Issuing Lender hereunder that the
Borrower will not make such
47
payment, the Administrative Agent may assume that the Borrower has made such
payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders or the Issuing Lender, as the case may be,
the amount due. In such event, if the Borrower has not in fact made such
payment, then each of the Lenders or the Issuing Lender, as the case may be,
severally agrees to repay to the Administrative Agent forthwith on demand the
amount so distributed to such Lender or Issuing Lender with interest thereon,
for each day from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation.
(d) If any Lender shall fail to make any payment required to be made
by it pursuant to Sections 2.03(d) and (e), 2.05(b) and 2.19(c), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender's obligations under
such Sections until all such unsatisfied obligations are fully paid.
SECTION 2.20 MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS. (a) If any
Lender requests compensation under Section 2.16, or if the Borrower is
reasonably anticipated to be required to pay any additional amount to any Lender
or any Governmental Authority for the account of any Lender pursuant to Section
2.18, then such Lender shall use reasonable efforts to designate a different
lending office for funding or booking its Loans hereunder or to assign its
rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the reasonable judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant to Section
2.16 or 2.18, as the case may be, in the future and (ii) would not subject such
Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable
costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) If any Lender requests compensation under Section 2.16, or if the
Borrower is reasonably anticipated to be required to pay any additional amount
to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.18, or if any Lender defaults in its obligation to fund
Loans hereunder, then the Borrower may, at its sole expense and effort, upon
notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 10.03), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided, that (i) the Borrower shall have received the prior
written consent of the Administrative Agent (and if a Tranche A Commitment is
being assigned, the Issuing Lender), which consent shall not unreasonably be
withheld or delayed, (ii) such Lender shall have received payment of an amount
equal to the outstanding principal of its Loans and participations in LC
Disbursements, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder, from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Borrower (in the case of all
other amounts) and (iii) in the case of any such assignment resulting from a
claim for compensation under Section 2.16 or payments reasonably anticipated to
be required to be made pursuant to Section 2.18, such assignment will result in
a reduction in such compensation or payments. A Lender shall not be required to
make any such
48
assignment and delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Borrower to require such
assignment and delegation cease to apply.
SECTION 2.21 CERTAIN FEES. The Borrower shall pay the fees set forth in
that certain Second Amended and Restated Fee Letter dated as of October 27, 2005
among JPMCB, JPMorgan, CGMI and the Borrower, to the Persons set forth therein.
SECTION 2.22 COMMITMENT FEES. The Borrower shall pay to the Tranche A
Lenders a commitment fee (the "Commitment Fee") for the period commencing on the
Amendment and Restatement Effective Date to the Termination Date or the earlier
date of termination of the Tranche A Commitment, computed (on the basis of the
actual number of days elapsed over a year of 360 days) at the rate of
three-eighths of one percent (3/8%) per annum on the average daily Unused Total
Tranche A Commitment. Such Commitment Fee, to the extent then accrued, shall be
payable (x) monthly, in arrears, on the last calendar day of each month, (y) on
the Termination Date and (z) as provided in Section 2.12 hereof, upon any
reduction or termination in whole or in part of the Total Tranche A Commitment.
SECTION 2.23 LETTER OF CREDIT FEES. The Borrower shall pay with respect to
each Letter of Credit (i) to the Administrative Agent on behalf of the Tranche A
Lenders a fee calculated (on the basis of the actual number of days elapsed over
a year of 360 days) at the rate of (x) two and three-quarters percent (2.75%)
per annum on the daily average LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) and (ii) to the Issuing Lender
such Issuing Lender's customary fees for issuance, amendments and processing
referred to in Section 2.03. In addition, the Borrower agrees to pay each
Issuing Lender for its account a fronting fee of one quarter of one percent
(1/4%) per annum in respect of each Letter of Credit issued by such Issuing
Lender, for the period from and including the date of issuance of such Letter of
Credit to and including the date of termination of such Letter of Credit.
Accrued fees described in this paragraph in respect of each Letter of Credit
shall be due and payable monthly in arrears on the last calendar day of each
month and on the Termination Date.
SECTION 2.24 NATURE OF FEES. All Fees shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for the respective
accounts of the Administrative Agent and the Lenders, as provided herein and in
the fee letter described in Section 2.21. Once paid, none of the Fees shall be
refundable under any circumstances.
SECTION 2.25 PRIORITY AND LIENS.
(a) Subject to the Orders and the Security and Pledge Agreement, the
Borrower and each of the Guarantors hereby covenants, represents and warrants
that, upon entry of the Interim Order (and the Final Order, as applicable), the
Obligations and the other Secured Obligations (including the obligations of the
Borrower and the Guarantors in respect of any hedging obligations permitted
hereunder and Indebtedness permitted by Section 6.03(viii), in each case owing
to JPMCB, any other Lender or any of their respective banking Affiliates) and
subject, in each of clauses (i) through (iv) below, to the Carve-Out:
49
(i) pursuant to Section 364(c)(1) of the Bankruptcy Code, shall
at all times constitute allowed claims in the Cases having priority over
any and all administrative expenses, diminution claims (including the
Superpriority Claims granted to the Existing Lenders) and all other claims
against the Borrower and the Guarantors, now existing or hereafter arising,
of any kind whatsoever, including all administrative expenses of the kind
specified in Sections 503(b) or 507(b) of the Bankruptcy Code;
(ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, shall
at all times be secured by a valid, binding, continuing, enforceable and
fully-perfected first priority senior security interest in and Lien on all
tangible and intangible property of the Borrower's and the Guarantors'
respective estates in the Cases that is not subject to valid, perfected,
non-avoidable and enforceable Liens in existence as of the Filing Date or
valid Liens in existence on the Filing Date that are perfected subsequent
to such date to the extent permitted by Section 546(b) of the Bankruptcy
Code, including all present and future accounts receivable, inventory,
general intangibles, chattel paper, real property, leaseholds, fixtures,
machinery and equipment, deposit accounts, patents, copyrights, trademarks,
tradenames, rights under license agreements and other intellectual
property, capital stock of any Subsidiaries of the Borrower and Guarantors
and on all cash and investments maintained in the Letter of Credit Account
(but excluding (x) the Borrower's and the Guarantors' rights in respect of
avoidance actions under the Bankruptcy Code and (y) joint venture interests
with respect to which a valid prohibition on pledging such interests or
granting Liens thereon exists, it being understood that, notwithstanding
such exclusion of such interests, the proceeds of such interests shall be
subject to such liens under Section 364(c)(2) of the Bankruptcy Code and
available to satisfy the Obligations and the other Secured Obligations);
(iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall
be secured by valid, binding, continuing, enforceable and fully-perfected
security interests in and Liens upon all tangible and intangible property
of the Borrower and the Guarantors (provided that as set forth in clause
(iv) of this sentence, the existing Liens that presently secure the
obligations of the Borrower and the Existing Guarantors under the Existing
Agreement will be primed by the Lien in favor of the Administrative Agent
and the Lenders as described in clause (iv) of this sentence) that is
subject to valid, perfected and non-avoidable Liens in existence on the
Filing Date or that is subject to valid Liens in existence on the Filing
Date that are perfected subsequent to the Filing Date as permitted by
Section 546(b) of the Bankruptcy Code (other than the property referred to
in clause (iv) below that is subject to the existing Liens described in
clause (iv) below, as to which the Lien in favor of the Administrative
Agent and the Lenders will be as described in clause (iv) below), junior to
such valid, perfected and non-avoidable Liens; and
(iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall
be secured by a valid, binding, continuing, enforceable and fully-perfected
first priority senior priming security interest in and senior priming Lien
on all of the tangible and intangible property of the Borrower and the
Guarantors that is subject to existing Liens that presently secure
Borrower's and the Existing Guarantors' pre-petition Indebtedness under the
Existing Agreement (but subject and subordinate to (A) the Carve-Out and
(B) any Liens in existence on the Filing Date to which the Liens being
primed hereby are
50
subject or become subject subsequent to the Filing Date as permitted by
Section 546(b) of the Bankruptcy Code), senior to all of such Liens;
provided, however, that (w) the Borrower and the Guarantors shall not be
required to pledge to the Administrative Agent in excess of 65% of the voting
capital stock of its direct Foreign Subsidiaries or any of the capital stock or
interests of its indirect Foreign Subsidiaries (if, in the good faith judgment
of the Borrower, adverse tax consequences would result to the Borrower), (x) no
portion of the Carve-Out may be utilized to fund prosecution or assertion of any
claims against the Administrative Agent, the Lenders or the Issuing Lenders, (y)
following the Termination Date, amounts in the Letter of Credit Account shall
not be subject to the Carve-Out and (z) except as otherwise provided in the
Orders, no portion of the Carve-Out shall be utilized for the payment of
professional fees and disbursements incurred in connection with any challenge to
the amount, extent, priority, validity, perfection or enforcement of the
indebtedness of the Borrower and the Guarantors owing to the Existing Lenders or
to the collateral securing such indebtedness. The Lenders agree that so long as
no Event of Default shall have occurred and be continuing, the Borrower and the
Guarantors shall be permitted to pay compensation and reimbursement of expenses
allowed and payable under Sections 330 and 331 of title 11 of the United States
Code, as the same may be due and payable, and the same shall not reduce the
Carve-Out.
(b) Subject to the priorities set forth in subsection (a) above and to
the Carve-Out, as to all real property the title to which is held by the
Borrower or any of the Guarantors, or the possession of which is held by the
Borrower or any of the Guarantors pursuant to leasehold interests and which
secures the Existing Indebtedness, the Borrower and each Guarantor hereby
assigns and conveys as security, grants a security interest in, hypothecates,
mortgages, pledges and sets over unto the Administrative Agent on behalf of the
Lenders all of the right, title and interest of the Borrower and such Guarantor
in all of such owned real property and in all such leasehold interests, together
in each case with all of the right, title and interest of the Borrower and such
Guarantor in and to all buildings, improvements, and fixtures related thereto,
any lease or sublease thereof, all general intangibles relating thereto and all
proceeds thereof. The Borrower and each Guarantor acknowledges that, pursuant to
the Orders, the Liens in favor of the Administrative Agent on behalf of the
Lenders in all of such real property and leasehold instruments shall be
perfected without the recordation of any instruments of mortgage or assignment.
The Borrower and each Guarantor further agrees that, upon the request of the
Administrative Agent following the occurrence of an Event of Default (regardless
of whether such Event of Default is continuing), the Borrower and such Guarantor
shall enter into separate fee or leasehold mortgages in recordable form with
respect to such properties on terms reasonably satisfactory to the
Administrative Agent.
SECTION 2.26 RIGHT OF SET-OFF. Subject to the provisions of Section 7.01,
upon the occurrence and during the continuance of any Event of Default, the
Administrative Agent and each Lender is hereby authorized at any time and from
time to time, to the fullest extent permitted by law and without further order
of or application to the Bankruptcy Court, to set off and apply any and all
deposits (general or special, time or demand, provisional or final but excluding
deposits designated as payroll accounts and any trust accounts) at any time held
and other indebtedness at any time owing by the Administrative Agent and each
such Lender to or for the credit or the account of the Borrower or any Guarantor
against any and all of the
51
obligations of such Borrower or Guarantor now or hereafter existing under the
Loan Documents, irrespective of whether or not such Lender shall have made any
demand under any Loan Document and although such obligations may not have been
accelerated. Each Lender and the Administrative Agent agrees to notify the
Borrower and Guarantors in accordance with Section 7.01 prior to any such
set-off and application made by such Lender or by the Administrative Agent, as
the case may be. The rights of each Lender and the Administrative Agent under
this Section are in addition to other rights and remedies which such Lender and
the Administrative Agent may have upon the occurrence and during the continuance
of any Event of Default.
SECTION 2.27 SECURITY INTEREST IN LETTER OF CREDIT ACCOUNT. Pursuant to
Section 364(c)(2) of the Bankruptcy Code, the Borrower and the Guarantors hereby
assign and pledge to the Administrative Agent, for its benefit and for the
ratable benefit of the Lenders, and hereby grant to the Administrative Agent,
for its benefit and for the ratable benefit of the Lenders, a first priority
security interest, senior to all other Liens, if any, in all of the Borrower's
and the Guarantors' right, title and interest in and to the Letter of Credit
Account and any direct investment of the funds contained therein. Cash held in
the Letter of Credit Account shall not be available for use by the Borrower,
whether pursuant to Section 363 of the Bankruptcy Code or otherwise, and shall
be released to the Borrower only as described in clause (ii)(y) of Section
2.03(j).
SECTION 2.28 PAYMENT OF OBLIGATIONS. Subject to the provisions of Section
7.01, 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 Lenders shall be entitled to immediate payment
of such Obligations without further application to or order of the Bankruptcy
Court.
SECTION 2.29 NO DISCHARGE; SURVIVAL OF CLAIMS. Each of the Borrower and the
Guarantors agrees that (i) its obligations hereunder shall not be discharged by
the entry of an order confirming a Reorganization Plan (and each of the Borrower
and the Guarantors, pursuant to Section 1141(d)(4) of the Bankruptcy Code,
hereby waives any such discharge) and (ii) the Superpriority Claim granted to
the Administrative Agent and the Lenders pursuant to the Orders and described in
Section 2.25 and the Liens granted to the Administrative Agent pursuant to the
Orders and described in Sections 2.25 and 2.27 shall not be affected in any
manner by the entry of an order confirming a Reorganization Plan.
SECTION 2.30 USE OF CASH COLLATERAL. Notwithstanding anything to the
contrary contained herein, the Borrower shall not be permitted to request a
Borrowing under Section 2.04 or request the issuance of a Letter of Credit under
2.03 unless the Bankruptcy Court shall have entered the Interim Order and shall
at that time have granted to the Borrower use of all cash collateral, subject to
the Orders, for the purposes described in Section 3.09.
SECTION 3. REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders to make Loans and issue and/or
participate in Letters of Credit hereunder, the Borrower and each of the
Guarantors jointly and severally represent and warrant as follows:
52
SECTION 3.01 ORGANIZATION AND AUTHORITY. Each of the Borrower and the
Guarantors (i) is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, (ii) is duly qualified as a
foreign corporation or other organization and in good standing in each
jurisdiction where the conduct of its business requires such qualification,
except to the extent that all failures to be duly qualified and in good standing
could not, in the aggregate, reasonably be expected to have a Material Adverse
Effect, (iii) subject to the entry by the Bankruptcy Court of the Interim Order
(or the Final Order, when applicable) has the requisite power and authority to
effect the transactions contemplated hereby, and by the other Loan Documents to
which it is a party, and (iv) subject to the entry by the Bankruptcy Court of
the Interim Order (or the Final Order, when applicable) has all requisite power
and authority and the legal right to own, pledge, mortgage and operate its
properties, and to conduct its business as now or currently proposed to be
conducted, except where the failure thereof could not reasonably be expected to
have a Material Adverse Effect.
SECTION 3.02 DUE EXECUTION. Upon the entry by the Bankruptcy Court of the
Interim Order (or the Final Order, when applicable), the execution, delivery and
performance by each of the Borrower and the Guarantors of each of the Loan
Documents to which it is a party (i) are within the respective powers of each of
the Borrower and the Guarantors, have been duly authorized by all necessary
action including the consent of shareholders where required, and do not (A)
contravene the charter or by-laws of any of the Borrower or the Guarantors, (B)
violate any law (including the Securities Exchange Act of 1934) or regulation
(including Regulations T, U or X of the Board), or any order or decree of any
court or Governmental Authority, conflict with or result in a breach of, or
constitute a default under, any material contractual obligation entered into
prior to the Filing Date binding on the Borrower or the Guarantors or any of
their properties except to the extent that all such violations, conflicts or
breaches could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect, (C) conflict with or result in a breach of, or constitute a
default under, any material contractual obligation entered into after the Filing
Date binding on the Borrower or the Guarantors or any of their properties, or
(D) result in or require the creation or imposition of any Lien upon any of the
property of any of the Borrower or the Guarantors other than the Liens granted
pursuant to this Agreement, the other Loan Documents or the Orders; and (ii) do
not require the consent, authorization by or approval of or notice to or filing
or registration with any Governmental Authority other than (A) the entry of the
Orders and (B) other consents, authorizations, approvals, notices, filings or
registrations the failure to obtain or make which could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect. Upon the entry by the
Bankruptcy Court of the Interim Order (or the Final Order, when applicable),
this Agreement has been duly executed and delivered by each of the Borrower and
the Guarantors. This Agreement is, and each of the other Loan Documents to which
the Borrower and each of the Guarantors is or will be a party, when delivered
hereunder or thereunder, will be, a legal, valid and binding obligation of the
Borrower and each Guarantor, as the case may be, enforceable against the
Borrower and the Guarantors, as the case may be, in accordance with its terms
and the Orders.
SECTION 3.03 STATEMENTS MADE. The information that has been prepared by or
at the request of the Borrower or any Guarantor and delivered in writing by the
Borrower or any of the Guarantors to the Agents or to the Bankruptcy Court in
connection with any Loan Document, any confidential information memorandum
relating to the syndication of the credit facilities provided for herein, and
any financial statement delivered pursuant hereto or thereto (other than
53
to the extent that any such statements constitute projections), taken as a whole
and in light of the circumstances in which made, contains no untrue statement of
a material fact and does not omit to state a material fact necessary to make
such statements not misleading in any material respect; and, to the extent that
any such information constitutes projections, such projections were prepared in
good faith based on assumptions believed by the Borrower or such Guarantor to be
reasonable at the time such projections were furnished (it being understood that
projections are inherently uncertain and that actual results may differ from the
projections and such difference may be material).
SECTION 3.04 FINANCIAL STATEMENTS. The Borrower has furnished the Lenders
with copies of (a) the audited consolidated financial statements of the Global
Entities for the fiscal year ended December 31, 2004, and (b) the unaudited
consolidated financial statements of the Global Entities for the fiscal quarter
and six month period ended June 30, 2005. Such financial statements present
fairly in all material respects, in accordance with GAAP, the financial
condition and results of operations of the Global Entities on a consolidated
basis as of such date and for such period; such balance sheets and the notes
thereto disclose all liabilities, direct or contingent, of the Global Entities
as of the date thereof required to be disclosed by GAAP; such financial
statements were prepared in a manner consistent with GAAP (subject, in the case
if the financials described in clause (b) above, to normal year-end adjustments
and the absence of footnotes). Since the audited financial statements for the
fiscal year ended December 31, 2004 delivered to the Lenders prior to the
Closing Date, no development or event has occurred that has had or is reasonably
expected to have a Material Adverse Effect.
SECTION 3.05 OWNERSHIP. Other than as set forth on part A Schedule 3.05 (as
such Schedule may be updated from time to time by written notice from the
Borrower to the Administrative Agent to reflect transactions permitted by this
Agreement), (i) each of the Persons listed on Schedule 3.05 is a wholly-owned,
direct or indirect Subsidiary of the Borrower, (ii) the Borrower owns no other
Subsidiaries, whether directly or indirectly and (iii) each of the Borrower's
domestic Subsidiaries is a Guarantor. Each Existing Guarantor is listed on part
B of Schedule 3.05.
SECTION 3.06 LIENS. There are no Liens on any assets of the Domestic
Entities or any of the Global Entities other than Liens permitted pursuant to
Section 6.01.
SECTION 3.07 COMPLIANCE WITH LAW. Except for matters which could not, in
the aggregate, reasonably be expected to have a Material Adverse Effect:
(i) the operations of the Domestic Entities and the Global
Entities comply in all material respects with all applicable environmental,
health and safety statutes and regulations, including regulations
promulgated under the Resource Conservation and Recovery Act (42 U.S.C.
Sections 6901 et seq.);
(ii) to the Borrower's and each of the Guarantor's knowledge,
none of the operations of the Borrower or the Guarantors is the subject of
any Federal or state investigation evaluating whether any remedial action
involving a material expenditure by the Domestic Entities is needed to
respond to a release of any Hazardous Waste or
54
Hazardous Substance (as such terms are defined in any applicable state or
Federal environmental law or regulations) into the environment;
(iii) to the Borrower's and each of the Guarantor's knowledge,
the Domestic Entities do not have any material contingent liability in
connection with any release of any Hazardous Waste or Hazardous Substance
into the environment; and
(iv) to the Borrower's and each of the Guarantor's best
knowledge, none of the Domestic Entities and none of the Global Entities
are in violation of any law, rule or regulation, or in default with respect
to any judgment, writ, injunction or decree of any Governmental Authority.
SECTION 3.08 INSURANCE. The Borrower and the Guarantors have in full force
and effect insurance policies of a nature and providing such coverage as is
consistent with sound business practice and customarily carried by companies of
the size and character of the Borrower and the Guarantors.
SECTION 3.09 USE OF PROCEEDS. The Letters of Credit and the proceeds of the
Tranche A Loans and the Tranche B Loans shall be used for working capital and
for other general corporate purposes of the Borrower and its Subsidiaries
including the making of pension contributions, adequate protection payments to
the Existing Lenders, the payment of transaction costs, fees and expenses in
respect of the Transactions and the Cases and the payment of Restructuring
Costs.
SECTION 3.10 LITIGATION. Other than as set forth on Schedule 3.10, there
are no unstayed actions, suits or proceedings pending or, to the knowledge of
the Borrower or the Guarantors, threatened against or affecting the Domestic
Entities or the Global Entities or any of their respective properties, before
any court or governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, with respect to this Agreement or any
other Loan Documents or the transactions contemplated hereby or thereby, or
otherwise as is, in the aggregate, reasonably expected to have a Material
Adverse Effect.
SECTION 3.11 ERISA No ERISA Event has occurred that, when taken together
with all other ERISA Events, could reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.12 THE ORDERS. On the date of the making of the initial Loans
hereunder or the issuance of the initial Letters of Credit hereunder, the
Interim Order will have been entered and will not have been reversed, stayed,
vacated or, without the Agents' consent, amended, supplemented or modified. On
the date of the making of any Loan or the issuance of any Letter of Credit, the
Interim Order or the Final Order, as the case may be, shall have been entered
and shall not have been reversed, stayed, vacated or, without the Administrative
Agent's consent, amended, supplemented or modified. Upon the maturity (whether
by the acceleration or otherwise) of any of the Obligations of the Borrower and
the Guarantor hereunder and under the other Loan Documents, the Lenders shall,
subject to the provisions of Section 7.01, be entitled to immediate payment of
such obligations, and to enforce the remedies provided for hereunder, without
further application to or order by the Bankruptcy Court.
55
SECTION 3.13 PROPERTIES.
(a) Each of the Borrower and the Guarantors has good title to, or
valid leasehold interests in, all its real and personal property, except for
such failures to have good title or valid leasehold interests as could not, in
the aggregate, reasonably be expected to have a Material Adverse Effect.
(b) Each of the Borrower and the Guarantors owns, or is licensed to
use, all trademarks, tradenames, copyrights, patents and other intellectual
property necessary, in the aggregate, for the conduct of its business as
currently conducted, and the use thereof by the Borrower and the Guarantors does
not infringe upon the rights of any other Person, except for any such
infringement that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 4. CONDITIONS OF LENDING
SECTION 4.01 CONDITIONS PRECEDENT TO INITIAL LOANS AND INITIAL LETTERS OF
CREDIT. The obligation of the Lenders to make the initial Loans or the Issuing
Lender to issue the initial Letter of Credit, whichever may occur first, is
subject to the satisfaction (or waiver in accordance with Section 10.09) of the
following conditions precedent:
(a) Supporting Documents. The Agents shall have received for each of
the Borrower and the Guarantors:
(i) a copy of such entity's articles or certificate of
incorporation or formation, as amended, certified as of a recent date by
the Secretary of State of the state of its incorporation or formation;
(ii) a certificate of such Secretary of State, dated as of a
recent date, as to the good standing of that entity and as to the charter
documents on file in the office of such Secretary of State; and
(iii) a certificate of the Secretary or an Assistant Secretary of
that entity dated the date of the initial Loans or the initial Letter of
Credit hereunder, whichever first occurs, and certifying (A) that attached
thereto is a true and complete copy of the by-laws or limited liability
company agreement of that entity as in effect on the date of such
certification, (B) that attached thereto is a true and complete copy of
resolutions adopted by the Board of Directors or managers of that entity
authorizing the Borrowings and Letter of Credit extensions hereunder, the
execution, delivery and performance in accordance with their respective
terms of this Agreement, the Loan Documents and any other documents
required or contemplated hereunder or thereunder and the granting of the
security interest in the Letter of Credit Account and other Liens
contemplated hereby, (C) that the articles or certificate of incorporation
or formation of that entity has not been amended since the date of the last
amendment thereto indicated on the certificate of the Secretary of State
furnished pursuant to clause (i) above and (D) as to the incumbency and
specimen signature of each officer of that entity executing this Agreement
and the Loan Documents or any other document delivered by it in connection
herewith or therewith (such certificate to contain a certification by
another officer of that entity as to
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the incumbency and signature of the officer signing the certificate
referred to in this clause (iii)).
(b) Interim Order. At the time of the making of the initial Loans or
at the time of the issuance of the initial Letters of Credit, whichever first
occurs, the Agents and the Lenders shall have received satisfactory evidence of
the entry of an order of the Bankruptcy Court in the form of Exhibit A-1 (the
"Interim Order") approving the Loan Documents and granting the Superpriority
Claim status and senior priming and other Liens described in Section 2.25 which
Interim Order (i) shall authorize extensions of credit in amounts not in excess
of $950,000,000, (ii) shall authorize the payment by the Borrower of all fees
provided for herein and in the fee letter described in Section 2.21, (iii) shall
be in form and substance reasonably satisfactory to the Agents, (iv) shall have
been entered not later than fifteen (15) days following the Filing Date, (v)
shall have authorized the use by the Borrower and the Guarantors of any cash
collateral in which any Existing Lender under the Existing Agreement may have an
interest and shall have provided, as adequate protection for the use of such
cash collateral and the priming contemplated hereby, for (A) the monthly payment
of current interest and letter of credit fees (including the payment on the
Closing Date of any such interest and fees that are accrued and unpaid as of the
Filing Date) at the applicable non-default rates applicable on the Filing Date
(including LIBOR pricing options) pursuant to the Existing Agreement (the
payments described in this clause to be without prejudice to the rights of any
Existing Lender to assert a claim for the payment of additional interest and
letters of credit fees calculated at any other applicable rates of interest
(including at any default rates), or on any other basis, set forth in the
Existing Agreement or to the rights of the Borrower or any other Person to
contest such assertion), (B) a superpriority claim as contemplated by Section
507(b) of the Bankruptcy Code, limited in amount to the aggregate diminution in
value of the Existing Collateral, including any such diminution resulting from
the sale, lease or use by the Borrower and the Guarantors (or other decline in
value) of cash collateral and any other Existing Collateral, the priming of the
Existing Agent's security interests and liens in the Existing Collateral by the
Agent and the Lenders pursuant to the Loan Documents and the Interim Order, and
the imposition of the automatic stay pursuant to Section 362 of the Bankruptcy
Code, immediately junior to the claims under Section 364(c)(1) of the Bankruptcy
Code held by the Administrative Agent and the Lenders (without the requirement
to file any motion or pleading or to make any demand) and subject, only in the
event of the occurrence and during the continuance of an Event of Default, to
the payment of the Carve-Out, (C) a Lien on substantially all of the assets of
the Borrower and the Guarantors having a priority immediately junior to the
priming and other Liens granted in favor of the Administrative Agent and the
Lenders hereunder and under the other Loan Documents and (D) the payment on a
current basis of the reasonable fees and disbursements of respective
professionals (including, but not limited to, the reasonable fees and
disbursements of counsel and internal and third-party consultants, including
financial consultants, and auditors) for the Existing Agent (including the
payment on the Closing Date or as soon thereafter as is practicable of any
unpaid pre-petition fees and expenses) and the continuation of the payment to
the Existing Agent on a current basis of the administration fees that are
provided for under the Existing Agreement and (vi) shall not have been vacated,
stayed, reversed, modified or amended in any respect; and, if the Interim Order
is the subject of a pending appeal in any respect, neither the making of such
Loans nor the issuance of such Letter of Credit nor the performance by the
Borrower or any of the Guarantors of any of their respective obligations
hereunder or under the Loan Documents or under any other
57
instrument or agreement referred to herein shall be the subject of a presently
effective stay pending appeal.
(c) Security and Pledge Agreement. The Borrower and each of the
Guarantors shall have duly executed and delivered to the Agents the Security and
Pledge Agreement.
(d) First Day Orders. All of the "first day orders" (including the
cash management order) entered by the Bankruptcy Court at the time of the
commencement of the Cases shall be reasonably satisfactory in form and substance
to the Agents.
(e) Opinion of Counsel. The Agents and the Lenders shall have received
the favorable written opinion of (i) Shearman & Sterling, LLP, counsel to the
Borrower and the Guarantors, and (ii) in-house counsel to the Borrower, in each
case dated the Closing Date (or such other date as the Administrative Agent may
agree in its reasonable discretion), and in form and substance reasonably
satisfactory to the Arrangers and their counsel.
(f) Payment of Fees and Expenses. The Borrower shall have paid to the
Agents the then unpaid balance of all accrued and unpaid Fees due under and
pursuant to this Agreement and the letter referred to in Section 2.21 and the
reasonable fees and out-of-pocket expenses of counsel to the Administrative
Agent and the Arrangers as to which invoices have been issued, and to the extent
reasonably requested by the Borrower, together with back-up documentation
supporting such invoices.
(g) Corporate and Judicial Proceedings. All corporate and judicial
proceedings and all instruments and agreements in connection with the
transactions among the Borrower, the Guarantors, the Administrative Agent and
the Lenders contemplated by this Agreement shall be reasonably satisfactory in
form and substance to the Administrative Agent, and the Administrative Agent
shall have received all information and copies of all documents and papers,
including records of corporate and judicial proceedings, which the
Administrative Agent may have reasonably requested in connection therewith, such
documents and papers where appropriate to be certified by proper corporate,
governmental or judicial authorities.
(h) Access; Compliance with Laws. The Agents have the right to
undertake reasonable due diligence on environmental matters, and shall be
reasonably satisfied that the Borrower and its Subsidiaries are in compliance in
all material respects with all applicable Environmental Laws and shall be
reasonably satisfied with the costs of maintaining such compliance and with any
other costs relating to actual or potential claims or liabilities relating to
any environmental matters.
(i) UCC Searches. The Agents shall have received such UCC searches
(including tax liens and judgments) conducted in the jurisdictions of
organization of each of the Borrower and each Guarantor and the jurisdictions in
which the Borrower and the Guarantors conduct business as the Agents may
reasonably request and as may be reasonably obtained (dated as of a date
reasonably satisfactory to the Agents), reflecting the absence of Liens and
encumbrances on the assets of the Borrower and the Guarantors other than Liens
permitted under Section 6.01 and as may otherwise be reasonably satisfactory to
the Agents.
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(j) Closing Documents. The Agents shall have received all documents
required by this Section 4.01 reasonably satisfactory in form and substance to
the Agents.
The initial Tranche A Loan was made on October 14, 2005.
SECTION 4.02 CONDITIONS PRECEDENT TO EACH LOAN AND EACH LETTER OF CREDIT.
The obligation of the Lenders to make each Loan and of the Issuing Lender to
issue each Letter of Credit, including the initial Loan and the initial Letter
of Credit, is subject to the satisfaction (or waiver in accordance with Section
10.09) of the following conditions precedent:
(a) Notice. The Administrative Agent shall have received a notice with
respect to such borrowing or issuance, as the case may be, as required by
Section 2.
(b) Representations and Warranties. All representations and warranties
contained in this Agreement and the other Loan Documents shall be true and
correct in all material respects on and as of the date of each Borrowing or the
issuance of each Letter of Credit hereunder with the same effect as if made on
and as of such date except to the extent such representations and warranties
expressly relate to an earlier date.
(c) No Default. On the date of each Borrowing hereunder or the
issuance of each Letter of Credit, no Event of Default or event which upon
notice or lapse of time or both would constitute an Event of Default shall have
occurred and be continuing.
(d) Orders. The Interim Order shall be in full force and effect and
shall not have been stayed, reversed, modified or amended in any respect that
the Agents reasonably determine to be adverse to the interests of the Agents and
the Lenders without the prior written consent of the Administrative Agent and
the Required Lenders, provided, that at the time of the making of any Loan or
the issuance of any Letter of Credit the aggregate amount of either of which,
when added to the sum of the principal amount of all Loans then outstanding and
the LC Exposure, would exceed the amount authorized by the Interim Order
(collectively, the "Additional Credit"), the Administrative Agent and each of
the Lenders shall have received satisfactory evidence of the entry of an order
of the Bankruptcy Court in substantially the form of the Interim Order (with
only such modifications thereto as are reasonably satisfactory in form and
substance to the Administrative Agent) (the "Final Order"), which, in any event,
shall have been executed and delivered and entered by the Bankruptcy Court no
later than forty-five (45) days after the 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 Tranche
A Loans in the aggregate amount up to $1,750,000,000 and in respect of the
Tranche B Loan in the amount up to $250,000,000 and shall not have been vacated,
stayed, reversed, modified or amended in any respect that the Administrative
Agent and the Required Lenders reasonably determine to be adverse to their
interests without the prior written consent of the Administrative Agent and the
Required 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 the Loans nor
the issuance of any Letter of Credit nor the performance by the Borrower or any
Guarantor of any of their respective obligations under any of the Loan Documents
shall be the subject of a presently effective stay pending appeal.
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(e) Payment of Fees and Expenses. The Borrower shall have paid to the
Administrative Agent the then unpaid balance of all accrued and unpaid Fees due
under and pursuant to this Agreement, the Orders and the letter referred to in
Section 2.21 and the reasonable fees and out-of-pocket expenses of counsel to
the Administrative Agent and the Arrangers as to which invoices have been
issued, and to the extent reasonably requested by the Borrower, together with
back-up documentation supporting such invoices.
(f) Borrowing Base Certificate. From and after the entry by the Court
of the Final Order, the Administrative Agent shall have received the most recent
Borrowing Base Certificate (dated no more than 30 days (seven (7) days during a
Reduced Availability Period) prior to the making of any Loan or the issuance of
any Letter of Credit; provided that in the case of the making of any Loan or the
issuance of any Letter of Credit prior to November 20, 2005, the most recent
Borrowing Base Certificate shall be the most recent Borrowing Base Certificate
required to be delivered pursuant to Section 5.08).
The request by the Borrower for, and the acceptance by the Borrower of, each
extension of credit hereunder shall be deemed to be a representation and
warranty by the Borrower that the conditions specified in this Section have been
satisfied or waived at that time.
SECTION 4.03 CONDITIONS PRECEDENT TO THE TRANCHE B LOAN. The obligation of
the Tranche B Lenders to make the Tranche B Loan is subject to the satisfaction
(or waiver in accordance with Section 10.09) of the following conditions
precedent:
(a) Notice. The Administrative Agent shall have received a notice with
respect to such borrowing as required by Section 2.
(b) Final Order. The Final Order shall have been entered by the
Bankruptcy Court.
(c) Payment of Fees and Expenses. The Borrower shall have paid to the
Administrative Agent the then unpaid balance of all accrued and unpaid Fees then
payable under and pursuant to this Agreement, the Orders and the letter referred
to in Section 2.21 and the reasonable fees and out-of-pocket expenses of counsel
to the Administrative Agent and the Arrangers as to which invoices have been
issued, and to the extent reasonably requested by the Borrower, together with
back-up documentation supporting such invoices.
(d) Other Conditions. The conditions to each Loan set forth in
Sections 4.01 and 4.02 shall have been satisfied or waived.
The request by the Borrower for, and the acceptance by the Borrower of, the
Tranche B Loan shall be deemed to be a representation and warranty by the
Borrower that the conditions specified in this Section have been satisfied or
waived at that time.
SECTION 4.04 CONDITIONS PRECEDENT TO THE AMENDMENT AND RESTATEMENT
EFFECTIVE DATE; EFFECT OF AMENDMENT AND RESTATEMENT. (a) This Agreement shall
become effective upon the date (the "Amendment and Restatement Effective Date")
that the following conditions precedent are satisfied (or waived in accordance
with Section 10.09):
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(i) The Administrative Agent shall have received from each party
hereto a counterpart of this Agreement signed on its behalf (which
counterpart may be a facsimile of an original counterpart).
(ii) The Administrative Agent shall have received from the
Borrower and each of the Guarantors a counterpart of the Security and
Pledge Agreement signed on its behalf (which counterpart may be a facsimile
of an original counterpart).
(iii) The Borrower shall have paid to JPMCB and CUSA all
Commitment Fees and Letter of Credit Fees (each as defined in the Existing
Credit Agreement) that have accrued under the Existing DIP Credit Agreement
for the period commencing on the Filing Date to the Amendment and
Restatement Effective Date.
(b) On the Amendment and Restatement Effective Date, each Existing
Letter of Credit shall be deemed, without further action by any party hereto, to
be a Letter of Credit issued under this Agreement for all purposes of this
Agreement and the other Loan Documents.
SECTION 5. AFFIRMATIVE COVENANTS
From the Closing Date and for so long as any Commitment shall be in
effect or any Letter of Credit shall remain outstanding (for which Cash
Collateralization at the rate of 105% has not been made in accordance with
Section 2.03(j)), or any amount shall remain outstanding or unpaid under this
Agreement, the Borrower and each of the Guarantors agree that they will, and
will cause each of their respective Subsidiaries to:
SECTION 5.01 FINANCIAL STATEMENTS, REPORTS, ETC. Deliver to the
Administrative Agent (for delivery to each Lender):
(a) within 110 days after the end of each fiscal year (or such shorter
period as the United States Securities and Exchange Commission may specify for
the filing of annual reports on Form 10-K), consolidated balance sheets and
related consolidated statements of income and consolidated cash flows for the
Domestic Entities and the Global Entities, showing the financial condition of
such entities on a consolidated basis as of the close of such fiscal year and
the results of their respective operations during such year, the consolidated
statements of the Global Entities to be audited by Deloitte & Touche LLP or
other independent public accountants of recognized national standing and
accompanied by an opinion of such accountants with respect to the financial
statements and arising out of the scope of the audit (which opinion shall not be
qualified in any material respect other than a going concern qualification as a
result of the Cases or as a result of the Maturity Date falling less than one
year from the date of such financial statements), all such consolidated
financial statements to be certified by a Financial Officer of the Borrower to
the effect that such financial statements fairly present in all material
respects the financial condition and results of operations of the Domestic
Entities or the Global Entities, as the case may be, on a consolidated basis in
accordance with GAAP;
(b) within 60 days after the end of each of the first three fiscal
quarters (or such shorter period as the United States Securities and Exchange
Commission may specify for the filing of quarterly reports on Form 10-Q), or,
with respect to the fiscal quarter ending September 30, 2005, no later than
December 31, 2005, the consolidated balance sheets and related
61
consolidated statements of income and consolidated cash flows of the Domestic
Entities and the Global Entities, showing the financial condition of such
entities on a consolidated basis as of the close of such fiscal quarter and the
results of their operations during such fiscal quarter and the then elapsed
portion of the fiscal year, each certified by a Financial Officer of the
Borrower as fairly presenting in all material respects the financial condition
and results of operations of the Domestic Entities and the Global Entities, as
the case may be, on a consolidated basis in accordance with GAAP, subject to
normal year-end audit adjustments and the absence of footnotes;
(c) as soon as practicable, but in no event later than December 31,
2005, with respect to the October and November 2005 fiscal months, and 30 days
after the end of each fiscal month of the Borrower thereafter, (i) monthly
unaudited consolidated balance sheets of the Domestic Entities and the Global
Entities and related consolidated statements of income and consolidated cash
flows of such entities for the prior fiscal month (in the case of Domestic
Entities, in a form consistent with the form provided to the Lenders prior to
the Closing Date), each certified by a Financial Officer of the Borrower and
(ii) a monthly report, consistent with the form required to be filed with the
Bankruptcy Court, detailing professional fees and expenses that have been billed
and paid or billed but unpaid to date and the accumulated "hold-back" of
professional fees and expenses to date;
(d) commencing with the first fiscal month following the Closing Date,
as soon as practicable, but (i) in no event later than 30 days after the end of
each fiscal month of the Borrower, monthly financial projections and variance
reports of the Domestic Entities and the Global Entities for the period from the
date of such projections through the Termination Date in a form consistent with
the form of projections provided to the Administrative Agent prior to the
Closing Date, such projections to be updated and delivered to the Administrative
Agent (x) no later than December 15, 2006, and (y) at such other times as such
projections are updated by the Borrower and (ii) in no event later than 10
Business Days after the end of each fiscal month of the Borrower, a statement of
projected cash receipts and cash disbursements for the Domestic Entities for
each week in the period of thirteen continuous weeks commencing with the
immediately following week, in a form consistent with the form provided to the
Administrative Agent prior to the Closing Date, and in each case of new or
updated projections furnished pursuant to clause (i) and any statements of
projected cash receipts and cash disbursements pursuant to clause (ii),
certified by a Financial Officer of the Borrower (it being understood that such
certification in respect of projections shall be consistent with the
representation and warranty as to projections in Section 3.03);
(e) concurrently with any delivery of financial statements under
clauses (a), (b) and (c) above, a certificate of the Financial Officer of the
Borrower certifying such statements (i) certifying that no Event of Default or
event which upon notice or lapse of time or both would constitute an Event of
Default has occurred, or, if such an Event of Default or event has occurred,
specifying the nature and extent thereof and any corrective action taken or
proposed to be taken with respect thereto and (ii) setting forth computations in
reasonable detail satisfactory to the Administrative Agent demonstrating
compliance with the provisions of Section 6.04;
(f) as soon as possible, and in any event when the Borrower's and the
Guarantor's statement of financial affairs and schedules of assets and
liabilities are required to be
62
filed with the Bankruptcy Court (but no later than 45 days after the Closing
Date or such later date to which the Bankruptcy Court extends the filing
thereof);
(g) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by it
with the Securities and Exchange Commission, or any governmental authority
succeeding to any of or all the functions of said commission, or with any
national securities exchange, as the case may be;
(h) as soon as available and in any event (a) within 30 days after the
Borrower or any of its ERISA Affiliates knows or has reason to know that any
Termination Event described in clause (i) of the definition of Termination Event
with respect to any Single Employer Plan of the Borrower or such ERISA Affiliate
has occurred and (b) within 10 days after the Borrower or any of its ERISA
Affiliates knows or has reason to know that any other Termination Event with
respect to any such Plan has occurred, a statement of a Financial Officer of the
Borrower describing the full details of such Termination Event;
(i) promptly and in any event within 10 days after receipt thereof by
the Borrower or any of its ERISA Affiliates from the PBGC, copies of each notice
received by the Borrower or any such ERISA Affiliate of the PBGC's intention to
terminate any Single Employer Plan of the Borrower or such ERISA Affiliate or to
have a trustee appointed to administer any such Plan;
(j) if requested by the Agent, promptly and in any event within 30
days after the filing thereof with the Internal Revenue Service, copies of each
Schedule B (Actuarial Information) to the annual report (Form 5500 Series) with
respect to each Single Employer Plan of the Borrower or any of its ERISA
Affiliates;
(k) within 10 days after notice is given or required to be given to
the PBGC under Section 302(f)(4)(A) of ERISA of the failure of the Borrower or
any of its ERISA Affiliates to make timely payments to a Plan, a copy of any
such notice filed;
(l) promptly and in any event within 10 days after receipt thereof by
the Borrower or any ERISA Affiliate from a Multiemployer Plan sponsor, a copy of
each notice received by the Borrower or any ERISA Affiliate concerning the (i)
imposition of Withdrawal Liability by a Multiemployer Plan, (ii) the
determination that a Multiemployer Plan is, or is expected to be, in
reorganization within the meaning of Title IV of ERISA, (iii) the termination of
a Multiemployer Plan within the meaning of Title IV of ERISA, or (iv) the amount
of liability incurred, or which may be incurred, by the Borrower or any ERISA
Affiliate in connection with any event described in clause (i), (ii) or (iii)
above;
(m) promptly and in any event within 10 days after the Borrower or any
Subsidiary knows or has reason to know of the occurrence thereof, notice of (i)
any material adverse event or change to the business, financial condition,
operations or assets of the Domestic Entities taken as a whole or the Global
Entities taken as a whole and (ii) material litigation (if any), or any material
adverse developments in previously disclosed material litigation (other than any
of the foregoing that have been disclosed to the Administrative Agent pursuant
to Section
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5.01(o)), in each case since the Closing Date or such later date as of which the
Borrower has furnished a report pursuant to this Section 5.01(m);
(n) promptly, from time to time, such other information regarding the
operations, business affairs and financial condition of the Domestic Entities or
the Global Entities, or compliance with the terms of any material loan or
financing agreements as the Administrative Agent, at the request of any Lender,
may reasonably request; and
(o) furnish to the Administrative Agent and its counsel 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
the Borrower or any of the Guarantors with the Bankruptcy Court in the Cases, or
distributed by or on behalf of the Borrower or any of the Guarantors to any
official committee appointed in the Cases.
SECTION 5.02 EXISTENCE. Preserve and maintain in full force and effect all
governmental rights, privileges, qualifications, permits, licenses and
franchises necessary in the normal conduct of its business except (i) (A) if in
the reasonable business judgment of the Borrower it is no longer necessary for
the Borrower and the Guarantors to preserve and maintain such rights,
privileges, qualifications, permits, licenses and franchises, 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 in connection
with sales of assets permitted by Section 6.10.
SECTION 5.03 INSURANCE. (a) Keep its insurable properties insured at all
times, against such risks, including fire and other risks insured against by
extended coverage, as is consistent with sound business practice and customary
with companies of the same or similar size in the same or similar businesses;
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 of its Subsidiaries, as the case may be, in such amounts (giving
effect to self-insurance) and with such deductibles as are customary with
companies of the same or similar size in the same or similar businesses; and (b)
maintain such other insurance or self insurance as may be required by law.
SECTION 5.04 OBLIGATIONS AND TAXES. Timely pay all material obligations
arising after the Filing Date promptly and in accordance with their terms and
timely pay and discharge promptly all material taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits or
in respect of its property arising after the Filing Date, as well as all
material lawful claims for labor, materials and supplies or otherwise arising
after the Filing Date which, if unpaid, would become a Lien or charge upon such
properties or any part thereof, before the same shall become in default;
provided, however, that the Borrower and each of its Subsidiaries shall not be
required to pay and discharge or to cause to be paid and discharged (i) any such
obligation, tax, assessment, charge, levy or claim so long as the validity or
amount thereof shall be contested in good faith by appropriate proceedings (if
the Borrower or its Subsidiaries shall have set aside on their books adequate
reserves therefor) or (ii) with respect to obligations and claims related to a
Plan, any such obligations or claims that could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
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SECTION 5.05 NOTICE OF EVENT OF DEFAULT, ETC. Promptly give to the
Administrative Agent notice in writing of any Event of Default or the occurrence
of any event or circumstance which with the passage of time or giving of notice
or both would constitute an Event of Default.
SECTION 5.06 ACCESS TO BOOKS AND RECORDS. (a) Maintain or cause to be
maintained at all times true and complete books and records in a manner
consistent with GAAP of the financial operations of the Borrower and its
Subsidiaries; and provide the Administrative Agent and its representatives, upon
their reasonable request, access to all such books and records during regular
business hours, in order that the Administrative Agent may upon reasonable prior
notice examine and make abstracts from such books, accounts, records and other
papers for the purpose of verifying the accuracy of the various reports,
including the Borrowing Base computations and supporting documentation,
delivered by the Borrower or the Guarantors to the Administrative Agent or the
Lenders pursuant to this Agreement or for otherwise ascertaining compliance with
this Agreement.
(b) In the event that historical accounting practices, accounting
systems or accounting reserves relating to the components of the Borrowing Base
are modified in a manner that is adverse to the Lenders in any material respect,
maintain such additional reserves (for purposes of computing the Borrowing Base)
in respect to the components of the Borrowing Base and make such other
adjustments (which may include maintaining additional reserves, modifying the
advance rates or modifying the eligibility criteria for the components of the
Borrowing Base) to its parameters for including the components of the Borrowing
Base as the Administrative Agent shall reasonably require based upon such
modifications.
(c) Upon the request of the Administrative Agent, provide (i) evidence
reasonably satisfactory to the Administrative Agent that the Borrower and its
Subsidiaries are in compliance in all material respects with all applicable
Environmental Laws, (ii) information reasonably satisfactory to the
Administrative Agent regarding the costs of maintaining such compliance and any
other costs relating to Environmental Liabilities and (iii) the Administrative
Agent or its designees with access to the properties, facilities, personnel,
books and records of the Borrower and its Subsidiaries to permit the
performance, at the sole cost of the Borrower, of reasonable environmental due
diligence.
SECTION 5.07 MAINTENANCE OF CONCENTRATION ACCOUNT. Continue to maintain
with JPMCB or any of its Affiliates, an account or accounts to be used by the
Borrower and the Guarantors as their principal concentration account for
day-to-day operations conducted by the Borrower and the Guarantors.
SECTION 5.08 BORROWING BASE CERTIFICATE. From and after the entry of the
Final Order, furnish to the Administrative Agent as soon as available and in any
event (a) on or before the first issuance of Additional Credit, a Borrowing Base
Certificate as of August 31, 2005 (the "Initial Borrowing Base Certificate"),
(b) no later than November 15, 2005, a Borrowing Base Certificate setting forth
the contents of the Initial Borrowing Base Certificate and updating such
certificate with the applicable gross balances as of September 30, 2005 and
other updated information reasonably satisfactory in form and substance to the
Administrative Agent (it being understood that such Borrowing Base Certificate
shall not include any documents that would otherwise be required to be delivered
pursuant to the schedule to the Borrowing Base
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Certificate), (c) on or before the twentieth (20th) day of November 2005 and
each month thereafter, a monthly Borrowing Base Certificate, as of the last day
of the immediately preceding month (which monthly Borrowing Base Certificate
shall be furnished regardless of whether weekly Borrowing Base Certificates are
required to be furnished pursuant to the immediately succeeding clause (d)), (d)
within five (5) Business Days after the end of each calendar week (each calendar
week deemed, for purposes hereof, to end on a Friday) that ends during a Reduced
Availability Period, a weekly Borrowing Base Certificate (it being understood
that certain Borrowing Base Certificate items (to be identified in the form of
Borrowing Base Certificate) shall be updated only monthly) and (e) if requested
by the Administrative Agent at any other time when the Administrative Agent
reasonably believes that the then existing Borrowing Base Certificate is
materially inaccurate, as soon as reasonably available but in no event later
than five (5) Business Days after such request, a Borrowing Base Certificate
showing the Borrowing Base as of the date so requested, in each case with
supporting documentation and additional reports with respect to the Borrowing
Base as the Administrative Agent shall reasonably request. As used herein,
"Reduced Availability Period" means a period beginning on each day when the
Available Amount is less than $500,000,000, and ending on the earliest
succeeding day on which the Available Amount has been equal to or greater than
$500,000,000 for thirty (30) consecutive days. As used herein, "Available
Amount" means, at any time, an amount equal to (A) the lesser of (i) the Total
Commitment at such time and (ii) the Borrowing Base, minus (B) the sum of the
aggregate principal amount of the outstanding Tranche A Loans, plus the
aggregate principal amount of the outstanding Tranche B Loans, plus the LC
Exposure.
SECTION 5.09 COLLATERAL MONITORING AND REVIEW. At any reasonable time upon
reasonable notice and upon the reasonable request of the Administrative Agent,
permit the Administrative Agent or any of its agents or representatives or
professionals (including internal and third party consultants, accountants and
appraisers) retained by the Administrative Agent or its professionals to visit
the properties of the Borrower and its Subsidiaries, to confer with officers and
representatives of the Borrower and the Guarantors, to conduct evaluations and
appraisals of and to monitor (i) the Collateral, (ii) the Borrower's practices
in the computation of the Borrowing Base and (iii) the assets included in the
Borrowing Base, and pay the reasonable fees and expenses in connection therewith
(including the reasonable and customary fees and expenses associated with
JPMorgan and CUSA, as forth in Section 10.05). In connection with any collateral
monitoring or review and appraisal relating to the computation of the Borrowing
Base, the Borrower shall make such modifications and adjustments to the
Borrowing Base or the computation thereof as the Administrative Agent shall
reasonably require upon at least 10 days written notice (it being understood
that no such notice is required during the continuance of an Event of Default)
based upon the terms of this Agreement and results of such collateral
monitoring, review or appraisal (which modifications and adjustments may include
maintaining additional reserves, modifying the advance rates or modifying the
eligibility criteria for components of the Borrowing Base to the extent
reasonably required by the Administrative Agent).
SECTION 5.10 PUBLIC RATING. Use their best efforts to obtain a rating from
S&P and ▇▇▇▇▇'▇ on the Tranche A Loans and Tranche B Loan as promptly as
practicable.
SECTION 5.11 SUBSEQUENTLY FILED DOMESTIC ENTITIES. Within ten (10) days
after any Non-Filed Domestic Entity becomes a debtor in a case under the
Bankruptcy Code (a
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"Subsequently Filed Entity"), cause (x) such Subsequently Filed Entity to become
a Guarantor party to this Agreement and (y) cause such Subsequently Filed Entity
to become a party to the Security and Pledge Agreement and its assets to be
subject to the Lien created thereby in favor of the Administrative Agent (which
guarantees and Liens shall be Superpriority Claims) to the extent permitted
under applicable law.
SECTION 5.12 POST-CLOSING DELIVERIES. As soon as practicable, but in no
event later than December 15, 2005 (or such later date as may be agreed by the
Administrative Agent in its reasonable discretion), deliver or cause to be
delivered to the Administrative Agent an environmental diligence report with
respect to Eligible Real Estate in form and substance, and performed by an
independent appraisal firm, reasonably satisfactory to the Administrative Agent.
SECTION 6. NEGATIVE COVENANTS
From the Closing Date and for so long as any Commitment shall be in
effect or any Letter of Credit shall remain outstanding (for which Cash
Collateralization at the rate of 105% has not been made in accordance with
Section 2.03(j)) or any amount shall remain outstanding or unpaid under this
Agreement, the Borrower and each of the Guarantors will not, and will not permit
any of their respective Subsidiaries to (and will not apply, unless in
connection with an amendment to the Agreement that is reasonably likely to be
approved by the Lenders required to approve such amendment, to the Bankruptcy
Court for authority to):
SECTION 6.01 LIENS. Incur, create, assume or suffer to exist any Lien on
any asset of the Borrower or any of its Subsidiaries, whether now owned or
hereafter acquired, other than:
(i) (x) Liens in existence on the Filing Date as reflected on
Schedule 6.01 and (y) replacement Liens that secure only refinancing of
Indebtedness permitted under Section 6.03(xii), so long as such replacement
Liens do not extend to or cover any property other than the property
covered by the original Lien;
(ii) Liens in existence on the Filing Date securing the Existing
Indebtedness;
(iii) Liens securing the Existing Indebtedness granted as
adequate protection pursuant to the Orders and subject to the terms of the
Orders which Liens are junior to the Liens contemplated hereby in favor of
the Administrative Agent and the Lenders, provided that the Interim Order
and Final Order provide that the holder of such junior Liens shall not be
permitted to take any action to foreclose with respect to such junior Liens
so long as any amounts shall remain outstanding hereunder or any Commitment
shall be in effect;
(iv) Liens created under the Loan Documents in favor of the
Administrative Agent and the Lenders and other holders of Secured
Obligations;
(v) Liens for taxes not yet due or that are being contested in
good faith by appropriate proceedings, provided that adequate reserves with
respect thereto are maintained on the books of the Borrower or its
Subsidiaries in conformity with GAAP;
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(vi) carriers', warehousemen's, mechanics', materialmen's,
repair-men's, lessor's or other like Liens arising in the ordinary course
of business that are not overdue for a period of more than 30 days or that
are being contested in good faith by appropriate proceedings;
(vii) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security legislation;
(viii) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business;
(ix) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business that, in the
aggregate, are not substantial in amount and that do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Borrower or any of its Subsidiaries;
(x) any interest or title of a lessor under any lease entered
into by the Borrower or any Subsidiary in the ordinary course of its
business and covering only the assets so leased;
(xi) Liens arising solely from precautionary filings of financing
statements under the Uniform Commercial Code of the applicable
jurisdictions in respect of consignments or operating leases entered into
by the Borrower or any of its Subsidiaries in the ordinary course of
business;
(xii) customary rights of setoff and similar Liens in favor of
depositary institutions;
(xiii) Liens for judgments that have not yet become an Event of
Default under Section 7.01(k);
(xiv) Liens securing Indebtedness of the Borrower or any
Subsidiary incurred pursuant to Section 6.03(vii) to finance the
acquisition of fixed or capital assets, provided that (A) such Liens shall
be created substantially simultaneously with the acquisition of such fixed
or capital assets, (B) such Liens do not at any time encumber any property
other than the property financed by such Indebtedness and (C) the amount of
Indebtedness secured thereby is not increased;
(xv) Liens on the assets of Foreign Subsidiaries securing
Indebtedness and other obligations of any Foreign Subsidiary in an
aggregate amount not to exceed $1,500,000,000;
(xvi) Liens upon any of the property and assets existing at the
time such property or asset is purchased or otherwise acquired by the
Borrower or any of its Subsidiaries; provided that any such Lien was not
created in contemplation of such
68
purchase or other acquisition and does not extend to or cover any property
or assets other than the property or asset being so purchased or otherwise
acquired and the products and proceeds thereof; and provided further that
any Indebtedness or other obligations secured by such Liens shall otherwise
be permitted under Section 6.03 or this Section 6.01;
(xvii) Liens securing Indebtedness in respect of Hedging
Agreements, which Indebtedness is permitted by Section 6.03(x), so long as
the aggregate amount of Indebtedness so secured (determined on a
marked-to-market basis) does not exceed $150,000,000 (and such Liens shall
rank pari passu with the Liens in favor of the Administrative Agent and the
Lenders and the other holders of Secured Obligations created under the Loan
Documents);
(xviii) Liens on assets of the Domestic Entities that arise
pursuant to Section 412(n) of the Code or Section 4068 of ERISA; provided
that such Liens do not otherwise give rise to an Event of Default;
(xix) Liens on assets of the Foreign Subsidiaries that arise
pursuant to Section 412(n) of the Code or Section 4068 of ERISA, unless
such Liens would otherwise give rise to an Event of Default, or unless any
Person has taken steps to commence enforcement of one or more judgments,
orders or enforceable mandates relating thereto, if the aggregate amount of
assets in respect of which such enforcement has commenced exceeds ten
percent (10%) of the aggregate amount of all assets of the Foreign
Subsidiaries; and
(xx) Liens not otherwise permitted hereunder securing
Indebtedness and other obligations in an aggregate amount not to exceed
$10,000,000.
SECTION 6.02 MERGER, ETC. Merge, consolidate or amalgamate with any other
Person, or liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution), or dispose of all or substantially all of its property or
business, except that (i) any Guarantor may merge or consolidate with any other
Guarantor, (ii) any Guarantor may merge or consolidate with the Borrower if the
Borrower is the surviving entity, (iii) any Foreign Subsidiary may merge or
consolidate with any other Foreign Subsidiary, provided that if either such
Foreign Subsidiary is a Wholly-Owned Subsidiary, the surviving entity must be a
Wholly-Owned Subsidiary, (iv) any Guarantor may dispose of any or all of its
assets to the Borrower or any other Guarantor (upon voluntary liquidation or
otherwise), provided that any such disposition by a Wholly-Owned Guarantor must
be to another Wholly-Owned Guarantor or to the Borrower, (v) any Foreign
Subsidiary may dispose of any or all of its assets to another Foreign
Subsidiary; provided that any such disposition by a Wholly-Owned Foreign
Subsidiary must be to a Wholly-Owned Subsidiary and any such disposition by a
first-tier Foreign Subsidiary must be to a first-tier Foreign Subsidiary;
provided, however, that compliance with the restrictions set forth in this
Section 6.02 shall not be required if, after giving effect to any transaction or
activity otherwise subject to this Section 6.02, the Facility Availability
Amount would be equal to or greater than $500,000,000.
SECTION 6.03 INDEBTEDNESS. Contract, create, incur, assume or suffer to
exist any Indebtedness, except for (i) Indebtedness under the Loan Documents;
(ii) Indebtedness incurred
69
prior to the Filing Date (including existing Capitalized Leases) and outstanding
on the Filing Date; (iii) intercompany Indebtedness among the Borrower and the
Guarantors; (iv) guarantees by the Borrower or any Guarantor of Indebtedness of
the Borrower or any Guarantor otherwise permitted by this Section 6.03; (v)
intercompany Indebtedness of any Foreign Subsidiary owing to another Global
Entity, provided that (A) the incurrence of such indebtedness by such Foreign
Subsidiary, and the making of the related loan or advance by the relevant Global
Entity, is otherwise permitted under Section 6.09 and (B) in the case of
intercompany Indebtedness owing from a Foreign Subsidiary to a Domestic Entity,
such Indebtedness is evidenced by one or more promissory notes in form and
substance reasonably satisfactory to the Administrative Agent and is subject to
the Lien created by the Security and Pledge Agreement to the extent required by
the Security and Pledge Agreement; (vi) other Indebtedness incurred after the
Filing Date by any Foreign Subsidiary which, taken together with all other then
outstanding Indebtedness of all Foreign Subsidiaries (excluding intercompany
indebtedness described in clause (v) hereof, but including any then outstanding
Indebtedness of the Foreign Subsidiaries incurred prior to the Filing Date and
described in clause (ii) hereof and any Indebtedness in connection with Foreign
Receivables Financings, sale-leaseback transactions and Hedging Agreements),
does not exceed an aggregate amount of $1,500,000,000 (the "Foreign Subsidiary
Debt Limit") at any time outstanding; (vii) Capitalized Leases and Indebtedness
secured by purchase money Liens, in each case incurred after the Filing Date in
an aggregate amount not to exceed $20,000,000 at any time outstanding; (viii)
Indebtedness owed to JPMCB, CUSA, any other Lender or any of their respective
banking Affiliates (or any Person that was a Lender or a banking Affiliate of a
Lender at the time such Indebtedness was incurred) 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;
(ix) Indebtedness (other than Indebtedness described in clause (viii)) owed to
any bank 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; (x) Indebtedness incurred after the
Filing Date by the Borrower or any Guarantor in connection with Hedging
Agreements, in each case to the extent that (A) the counterparty to such
agreement is a Lender or a banking Affiliate of a Lender (or was a Lender or a
banking Affiliate of a Lender at the time such Indebtedness was incurred) and
(B) such agreement or contract is entered into in the ordinary course of
business and not for speculative purposes; (xi) intercompany Indebtedness of any
Domestic Entity owing to any Foreign Subsidiary so long as such Indebtedness is
subordinated (on terms reasonably satisfactory to the Administrative Agent) to
the Secured Obligations and the Existing Indebtedness; (xii) refinancings or
replacements of Indebtedness described in clause (ii) hereof in respect of
Capitalized Leases and purchase money debt obligations incurred in the ordinary
course of business and, to the extent required, with the approval of the
Bankruptcy Court, provided that the Liens securing such Indebtedness do not
extend to or cover any additional property; and (xiii) other unsecured
indebtedness of the Global Entities in an aggregate amount not to exceed
$25,000,000.
SECTION 6.04 EBITDAR.
(a) Permit cumulative Global EBITDAR for the Global Entities for each
period beginning on January 1, 2006 and ending on the last day of each fiscal
month set forth below to be less than the amount appearing opposite such month
for such entity:
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Global Entities
Period Ending Global EBITDAR
------------- -----------------
January 31, 2006 $(125,000,000.00)
February 28, 2006 $(100,000,000.00)
March 31, 2006 $ (75,000,000.00)
April 30, 2006 $ (50,000,000.00)
May 31, 2006 $ (25,000,000.00)
June 30, 2006 $ (25,000,000.00)
July 31, 2006 $ (50,000,000.00)
August 31, 2006 $ (25,000,000.00)
September 20, 2006 $ 50,000,000.00
October 31, 2006 $ 100,000,000.00
November 30, 2006 $ 150,000,000.00
(b) Permit cumulative Global EBITDAR for the Global Entities for each
rolling twelve (12) fiscal month period ending on the last day of each fiscal
month set forth below to be less than the amount appearing opposite such month
for such entity:
Global Entities
Period Ending Global EBITDAR
------------- ---------------
December 31, 2006 $165,000,000.00
January 31, 2007 $200,000,000.00
February 28, 2007 $250,000,000.00
March 31, 2007 $300,000,000.00
April 30, 2007 $350,000,000.00
May 31, 2007 $400,000,000.00
June 30, 2007 $500,000,000.00
July 31, 2007 $550,000,000.00
August 31, 2007 $600,000,000.00
September 30, 2007 $650,000,000.00
October 31, 2007 $700,000,000.00
SECTION 6.05 [RESERVED].
SECTION 6.06 CHAPTER 11 CLAIMS. Incur, create, assume, suffer to exist or
permit any other Superpriority Claim which is pari passu with or senior to the
claims of the Administrative Agent and the Lenders against the Borrower and the
Guarantors hereunder, except for the Carve-Out.
SECTION 6.07 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 membership
interests (or any options, warrants, rights or other equity securities or
agreements relating to any capital stock or membership interests), or set apart
any sum for the aforesaid purposes; provided that this Section 6.07 shall not
restrict dividends and distributions from the Guarantors or the Foreign
Subsidiaries directly or indirectly to the Borrower or any Guarantor or from any
Foreign Subsidiary to any other Foreign Subsidiary.
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SECTION 6.08 TRANSACTIONS WITH AFFILIATES. Sell or transfer any property or
assets to, or otherwise engage in any other material transactions with, any of
its Affiliates (other than (A) the Borrower, (B) any of the Guarantors or (C) so
long as such transaction is on commercially reasonable terms consistent with
past practice, any other Subsidiary of the Borrower pursuant to joint venture
arrangements of such Subsidiary) or its shareholders, except for (i)
transactions that are entered into in good faith, and at prices and on terms and
conditions not less favorable to such Person than would be obtained on an
arm's-length basis from unrelated third parties, (ii) transactions solely among
the Foreign Subsidiaries, (iii) transactions among the Global Entities that are
entered into in the ordinary course of the relevant Global Entities' business,
(iv) other transactions among the Global Entities to the extent otherwise
expressly permitted under this Agreement, and (v) transactions described on
Schedule 6.08.
SECTION 6.09 INVESTMENTS, LOANS AND ADVANCES. Purchase, hold or acquire any
capital stock, evidences of indebtedness or other securities of, make or permit
to exist any loans or advances to, or make or permit to exist any investment in,
any other Person (all of the foregoing, "Investments"), except for: (i)
ownership by the Borrower or such Subsidiary, as the case may be, of the capital
stock of each of the Subsidiaries listed on Schedule 3.05; (ii) Permitted
Investments; (iii) advances and loans among the Borrower and the Guarantors in
the ordinary course of business; (iv) advances and loans made by any Foreign
Subsidiary to any other Foreign Subsidiary; (v) Investments in existence on the
Filing Date; (vi) investments by Wholly-Owned Foreign Subsidiaries in other
Wholly-Owned Foreign Subsidiaries; (vii) extensions of trade credit in the
ordinary course of business; (viii) advances and loans by any Global Entity to
the employees of any Global Entity in the ordinary course of business consistent
with past practices for travel and entertainment expenses, relocation costs and
similar purposes in an aggregate amount for all Global Entities not exceeding
$25,000,000 at any one time outstanding; (ix) investments in (including the
contribution of assets to) Foreign Subsidiaries and joint ventures, in an
aggregate amount (net of the Investment Credit) not to exceed $30,000,000 at any
one time outstanding; (x) to the extent constituting Investments, any
Indebtedness owed to a Global Entity or any contribution of assets, issuance of
Equity Interests or disposition to a Global Entity permitted to be made under
Section 6.02, 6.03 or 6.10 and (xi) Investments in Equity Interests of account
debtors or other assets received (and in the amount so received) pursuant to any
reorganization or similar arrangement upon bankruptcy or insolvency of, or other
settlement with, such account debtors; provided, however, that compliance with
the restrictions set forth in this Section 6.09 shall not be required if, after
giving effect to any transaction or activity otherwise subject to this Section
6.09, the Facility Availability Amount would be equal to or greater than
$500,000,000, except that in no event may the Borrower or any Guarantor make any
Investment in a Non-Filed Domestic Entity if, after giving effect to such
Investment, the aggregate amount (calculated net of the Investment Credit) of
all Investments made by the Borrower and the Guarantors in Non-Filed Domestic
Entities during the term of this Agreement would exceed $25,000,000. For the
avoidance of doubt, this Section 6.09 prohibits (x) the making of advances or
loans from a Domestic Entity to any Foreign Subsidiary and (y) the making of any
investment by a Domestic Entity in a Foreign Subsidiary and the creation of and
making of any investment in a joint venture in an aggregate amount (net of the
Investment Credit) for all such investments greater than $30,000,000 at any one
time outstanding, in each case at any time when the Facility Availability Amount
is (or, after giving effect to the relevant transaction, would be) less than
$500,000,000; provided that any such transaction (other than Investments by the
Borrower or any Guarantor in a Non-Filed Domestic Entity, which shall
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continue to be subject to the aforementioned $25,000,000 cap) shall be permitted
without restriction under this Section 6.09 (but subject always to the
limitations set forth in Section 6.03 in the case of any transaction pursuant to
which a Foreign Subsidiary will incur Indebtedness) if, after giving effect
thereto, the Facility Availability Amount would be equal to or greater than
$500,000,000); provided further that each Global Entity shall be permitted to
hold any Investment made at a time when such Investment was permitted to be
made.
SECTION 6.10 DISPOSITION OF ASSETS. Sell or otherwise dispose of any assets
(including the sale or issuance of any capital stock of any Subsidiary), whether
now owned or hereafter acquired, except for (i) the sale or other disposition of
obsolete or worn out property in the ordinary course of business; (ii) the sale
of inventory in the ordinary course of business; (iii) sales or other
dispositions permitted by clauses (iv) and (v) of Section 6.02; (iv) sale or
disposition of assets constituting all or a portion of the Automotive Holdings
Group (but not including any related foreign assets except for de minimis
foreign assets ); (v) the sale, issuance or contribution of any Subsidiary's
capital stock to the Borrower or to any Wholly-Owned Guarantor or, in the case
of a sale, issuance or contribution of capital stock of a Foreign Subsidiary
that is not a first-tier Foreign Subsidiary, to any Wholly-Owned Subsidiary of
the Borrower; (vi) sales or other dispositions consisting of the transfer of
rights in Intellectual Property to third parties and/or routine patent portfolio
deletions, in each case in the ordinary course of business consistent with past
practice; (vii) sales or other dispositions of accounts receivables and other
related assets in connection with any Foreign Receivables Financing, so long as
such Foreign Receivables Financing is otherwise permitted under this Agreement
(including pursuant to Section 6.01 and Section 6.03); (viii) intercompany sales
or contributions among the Borrower and the Guarantors; (ix) dispositions
described on Schedule 6.10; and (x) any other sale or disposition of property
not otherwise expressly permitted by this Section 6.10 (A) having a fair market
value of less than $500,000 or (B) having a fair market value of $500,000 or
more, in which case such dispositions shall not exceed $100,000,000 in the
aggregate for any fiscal year of the Borrower; provided that compliance with the
restrictions set forth in this Section 6.10 shall not be required if, after
giving effect to any transaction or activity otherwise subject to this Section
6.10, the Facility Availability Amount would be equal to or greater than
$500,000,000, except that in no event may the Borrower or any Guarantor sell or
otherwise transfer any assets, whether now owned or hereafter acquired, to a
Non-Filed Domestic Entity if, after giving effect thereto, the aggregate fair
market value of all assets sold or transferred by the Borrower and the
Guarantors to Non-Filed Domestic Entities would exceed $15,000,000 during the
term of this Agreement.
SECTION 6.11 NATURE OF BUSINESS. Modify or alter in any material manner the
nature and type of its business as conducted at or prior to the Filing Date or
the manner in which such business is conducted (except, in the case of the
Borrower and the Guarantors, as required by the Bankruptcy Code), it being
understood that asset sales permitted by Section 6.10 shall not constitute such
a material modification or alteration.
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SECTION 7. EVENTS OF DEFAULT
SECTION 7.01 EVENTS OF DEFAULT. In the case of the happening of any of the
following events and the continuance thereof beyond the applicable grace period,
if any (each, an "Event of Default"):
(a) any material representation or warranty made by the Borrower or
any Guarantor in this Agreement or in any Loan Document or in connection with
this Agreement or the credit extensions hereunder or any material statement or
representation made in any report, financial statement, certificate or other
document furnished by the Borrower or any Guarantor to the Lenders under or in
connection with this Agreement, shall prove to have been false or misleading in
any material respect when made; or
(b) default shall be made in the payment of any (i) Fees, interest on
the Loans or other amounts payable hereunder when due (other than amounts set
forth in clause (ii) hereof), and such default shall continue unremedied for
more than two (2) Business Days or (ii) principal of the Loans or reimbursement
obligations or cash collateralization in respect of Letters of Credit, when and
as the same shall become due and payable, whether at the due date thereof
(including the Prepayment Date) or at a date fixed for prepayment thereof or by
acceleration thereof or otherwise; or
(c) default shall be made by the Borrower or any Guarantor in the due
observance or performance of any covenant, condition or agreement contained in
Section 5.02 (with respect to the Borrower), Section 5.05 or Section 6 hereof,
or
(d) default shall be made by the Borrower or any Guarantor in the due
observance or performance of any other covenant, condition or agreement (other
than those covered by clauses (b) and (c) above and clause (h) below) to be
observed or performed pursuant to the terms of this Agreement, any of the Orders
or any of the other Loan Documents and such default shall continue unremedied
for more than ten (10) days; or
(e) any of the Cases shall be dismissed or converted to a case under
Chapter 7 of the Bankruptcy Code or the Borrower or any Guarantor shall file a
motion or other pleading seeking the dismissal of any of the Cases 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 Super Priority Claim or the Bankruptcy
Court shall enter an order terminating the use of cash collateral under the
Existing Agreement; or
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(f) 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 the
Borrower or any of the Guarantors which have a value in excess of $20,000,000 in
the aggregate; or
(g) a Change of Control shall occur; or
(h) the Borrower shall fail to deliver a certified Borrowing Base
Certificate when due and such default shall continue unremedied for more than
three (3) Business Days; or
(i) any material provision of any Loan Document shall, for any reason,
cease to be valid and binding on the Borrower or any of the Guarantors, or the
Borrower or any of the Guarantors shall so assert in any pleading filed in any
court; or
(j) an order of the Bankruptcy Court shall be entered (i) reversing,
staying for a period in excess of 10 days, or vacating any of the Orders or (ii)
without the written consent of the Administrative Agent and the Required
Lenders, otherwise amending, supplementing or modifying any of the Orders in a
manner that is reasonably determined by the Agents 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 Orders; or
(k) any judgment or order in excess of $20,000,000 as to any
post-petition obligation shall be rendered against any Global Entity and the
enforcement thereof shall not have been stayed; or
(l) any non-monetary judgment or order with respect to a post-petition
event shall be rendered against any Global Entity which does or would reasonably
be expected to have a Material Adverse Effect; or
(m) except as permitted by the Orders, the Borrower or the Guarantors
shall make any Pre-Petition Payment other than (i) Pre-Petition Payments
authorized by the Bankruptcy Court (w) in accordance with "first day" orders
reasonably satisfactory to the Administrative Agent (including not in excess of
the amount set forth in the essential supplier order), (x) in connection with
the assumption of executory contracts and unexpired leases, (y) payments in
respect of reclamation claims authorized by the Bankruptcy Court and (z) in
respect of accrued payroll and related expenses and employee benefits as of the
Filing Date (excluding any Pre-Petition Payment in respect of or in connection
with any Termination Event), (ii) Pre-Petition Payments of Indebtedness
permitted under Section 6.03(ii) made with proceeds of dispositions of assets
that secure the Indebtedness so repaid, so long as (1) the Liens securing such
repaid Indebtedness are not primed by the Liens of the Security and Pledge
Agreement in favor of the Administrative Agent and (2) such asset dispositions
are otherwise permitted under this Agreement and (iii) other Pre-Petition
Payments (excluding any Pre-Petition Payments that are refunded or otherwise
returned to the Borrower or the Guarantors within fifteen (15) days of the
making of such payments) in an aggregate amount not to exceed $15,000,000; or
(n)(i) any Termination Event described in clauses (iii) or (iv) of the
definition of such term shall have occurred and any Lien shall arise as a result
of such Termination Event or
75
(ii) any Lien shall arise under Section 412(n) of the Code, and in each case,
(x) such Lien has been perfected or (y) any Person shall have obtained relief
from the automatic stay to enforce such Lien or any Insufficiency; provided that
the perfection of any Liens described in clauses (i) or (ii) above shall not
constitute an Event of Default so long as such perfected Liens could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect or an adverse effect on the Liens in favor of the Administrative
Agent on behalf of the Lenders (including the priority of such Liens or the
ability of the Administrative Agent and Lenders to exercise remedies in respect
thereof); or
(o) (i) any ERISA Event shall have occurred with respect to a Plan,
(ii) the Borrower or any Guarantor or any ERISA Affiliate shall have been
notified by the sponsor or trustee of a Multiemployer Plan that it has incurred
Withdrawal Liability to such Multiemployer Plan or (iii) the Borrower or any
Guarantor or any ERISA Affiliate shall have been notified by the sponsor or
trustee of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of ERISA,
and, in any such case, such event does or would reasonably be expected to have a
Material Adverse Effect; or
(p) it shall be determined (whether by the Bankruptcy Court or by any
other judicial or administrative forum) that the Borrower or any Guarantor is
liable for the payment of claims arising out of any failure to comply (or to
have complied) with applicable environmental laws or regulations the payment of
which will have a Material Adverse Effect;
then, and in every such event and at any time thereafter during the continuance
of such event, and without further order of or application to the Bankruptcy
Court, the Administrative Agent may, and at the request of the Required Lenders,
shall, by notice to the Borrower (with a copy to counsel for the Official
Creditors' Committee appointed in the Cases, to counsel for the Existing Agent
and to the United States Trustee for the Southern District of New York), take
one or more of the following actions, at the same or different times (provided,
that with respect to clause (iv) below and the enforcement of Liens or other
remedies with respect to the Collateral under clause (v) below, the
Administrative Agent shall provide the Borrower (with a copy to counsel for the
Official Creditors' Committee in the Cases, to counsel for the Existing Agent
and to the United States Trustee Southern District of New York) with five (5)
Business Days' written notice prior to taking the action contemplated thereby
and provided, further, that upon receipt of notice referred to in the
immediately preceding clause with respect to the accounts referred to in clause
(iv) below, the Borrower may continue to make ordinary course disbursements from
such accounts (other than the Letter of Credit Account) but may not withdraw or
disburse any other amounts from such accounts): (i) terminate or suspend
forthwith the Total Commitment; (ii) declare the Loans or any portion thereof
then outstanding to be forthwith due and payable, whereupon the principal of
such Loans together with accrued interest thereon and any unpaid accrued Fees
and all other liabilities of the Borrower accrued hereunder and under any other
Loan Document, shall become forthwith due and payable, without presentment,
demand, protest or any other notice of any kind, all of which are hereby
expressly waived by the Borrower and the Guarantors, anything contained herein
or in any other Loan Document to the contrary notwithstanding; (iii) require the
Borrower and the Guarantors upon demand to forthwith deposit in the Letter of
Credit Account cash in an amount which, together with any amounts then held in
the Letter of Credit Account, is equal to the sum of 105% of the then
Uncollateralized LC Exposure (and to the extent the Borrower and the Guarantors
shall fail to furnish such funds as
76
demanded by the Administrative Agent, the Administrative Agent shall be
authorized to debit the accounts of the Borrower and the Guarantors maintained
with the Administrative Agent in such amount five (5) Business Days after the
giving of the notice referred to above); (iv) set-off amounts in the Letter of
Credit Account or any other accounts maintained with the Administrative Agent
and apply such amounts to the obligations of the Borrower and the Guarantors
hereunder and in the other Loan Documents; and (v) exercise any and all remedies
under the Loan Documents and under applicable law available to the
Administrative Agent and the Lenders. Any payment received as a result of the
exercise of remedies hereunder shall be applied in accordance with Section
2.19(b).
SECTION 8. THE AGENTS
SECTION 8.01 APPOINTMENTS; ADMINISTRATION BY ADMINISTRATIVE AGENT; NO
DUTIES FOR SYNDICATION AGENT. (a) Each of the Lenders and the Issuing Lender
hereby irrevocably appoints each Agent as its agent and authorizes such Agent to
take such actions on its behalf and to exercise such powers as are delegated to
such Agent by the terms hereof, together with such actions and powers as are
reasonably incidental thereto.
(b) The general administration of the Loan Documents shall be by the
Administrative Agent.
(c) CUSA, in its capacity as Syndication Agent, shall not have any
duties or obligations of any kind under this Agreement.
(d) Each Person listed as a Co-Documentation Agent on the cover page
hereof shall not have any rights, duties or obligations of any kind under this
Agreement.
SECTION 8.02 RIGHTS OF AGENTS. Each institution serving as an Agent
hereunder shall have the same rights and powers in its capacity as a Lender as
any other Lender and may exercise the same as though it were not an Agent, and
such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any Subsidiary or
other Affiliate thereof as if it were not an Agent hereunder.
SECTION 8.03 LIABILITY OF AGENTS.
(a) No Agent shall have any duties or obligations except those
expressly set forth herein. Without limiting the generality of the foregoing,
(i) no Agent shall be subject to any fiduciary or other implied duties,
regardless of whether an Event of Default has occurred and is continuing, (ii)
no Agent shall have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated hereby that the Administrative Agent is required to exercise in
writing as directed by the Required Lenders (or such other number or percentage
of the Lenders as shall be necessary under the circumstances as provided in
Section 10.09), and (iii) except as expressly set forth herein, no Agent shall
have any duty to disclose, and no Agent shall be liable for the failure to
disclose, any information relating to the Borrower or any of its Subsidiaries
that is communicated to or obtained by any bank serving as an Agent or any of
its Affiliates in any capacity. No Agent shall be liable for any action taken or
not taken by it with the consent or at the request of the Required Lenders (or
such other number or percentage of the Lenders as shall be necessary under the
77
circumstances as provided in Section 10.09) or in the absence of its own gross
negligence or willful misconduct. Each Agent shall be deemed not to have
knowledge of any Event of Default unless and until written notice thereof is
given to such Agent by the Borrower or a Lender, and no Agent shall be
responsible for or have any duty to ascertain or inquire into (A) any statement,
warranty or representation made in or in connection with this Agreement, (B) the
contents of any certificate, report or other document delivered hereunder or in
connection herewith, (C) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein, (D) the validity,
enforceability, effectiveness or genuineness of this Agreement or any other
agreement, instrument or document, or (E) the satisfaction of any condition set
forth in Section 4 or elsewhere herein, other than to confirm receipt of items
expressly required to be delivered to such Agent.
(b) Each Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. Each Agent also may rely
upon any statement made to it orally or by telephone and believed by it to be
made by the proper Person, and shall not incur any liability for relying
thereon. Each Agent may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.
(c) Each Agent may perform any and all its duties and exercise its
rights and powers by or through any one or more sub-agents appointed by the
Agent. Each Agent and any such sub-agent may perform any and all of its duties
and exercise its rights and powers through their respective Related Parties. The
exculpatory provisions of the preceding paragraphs shall apply to any such
sub-agent and to the Related Parties of each Agent and any such sub-agent, and
shall apply to their respective activities in connection with the syndication of
the credit facilities provided for herein as well as activities as an Agent
hereunder.
SECTION 8.04 REIMBURSEMENT AND INDEMNIFICATION. Each Lender agrees (i) to
reimburse the Administrative Agent for such Lender's Tranche A Commitment
Percentage or Tranche B Commitment Percentage of any expenses and fees incurred
for the benefit of the Lenders under this Agreement and any of the Loan
Documents, including counsel fees and compensation of agents and employees paid
for services rendered on behalf of the Lenders, and any other expense incurred
in connection with the operations or enforcement thereof, not reimbursed by the
Borrower or the Guarantors and (ii) to indemnify and hold harmless the
Administrative Agent. each Issuing Lender and any of their directors, officers,
employees, agents or Affiliates, on demand, in the amount of its proportionate
share, from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses, or disbursements of any
kind or nature whatsoever which may be imposed on, incurred by, or asserted
against it or any of them in any way relating to or arising out of this
Agreement or any of the Loan Documents or any action taken or omitted by it or
any of them under this Agreement or any of the Loan Documents to the extent not
reimbursed by the Borrower or the Guarantors (except such as shall result from
their respective gross negligence or willful misconduct).
SECTION 8.05 SUCCESSOR ADMINISTRATIVE AGENT. Subject to the appointment and
acceptance of a successor Administrative Agent as provided in this paragraph,
the
78
Administrative Agent may resign at any time by notifying the Lenders, the
Issuing Lender and the Borrower. Upon any such resignation, the Required Lenders
shall have the right, to appoint a successor, which successor agent shall
(unless an Event of Default under Section 7.01(b) shall have occurred and be
continuing) be subject to approval by the Borrower (which approval shall not be
unreasonably withheld or delayed). If no successor shall have been so appointed
by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then
the retiring Administrative Agent may, on behalf of the Lenders and the Issuing
Lender, appoint a successor Administrative Agent which shall be a bank with an
office in New York, New York, or an Affiliate of any such bank. Upon the
acceptance of its appointment as Administrative Agent hereunder by a successor,
such successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder. The fees
payable by the Borrower to a successor Administrative Agent shall be the same as
those payable to its predecessor unless otherwise agreed between the Borrower
and such successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 10.05 shall continue in effect for the
benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while it was acting as Agent.
SECTION 8.06 INDEPENDENT LENDERS. Each Lender acknowledges that it has,
independently and without reliance upon any Agent or any other Lender and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon any Agent or
any other Lender and based on such documents and information as it shall from
time to time deem appropriate, continue to make its own decisions in taking or
not taking action under or based upon this Agreement, any related agreement or
any document furnished hereunder or thereunder.
SECTION 8.07 ADVANCES AND PAYMENTS.
(a) On the date of each Loan, the Administrative Agent shall be
authorized (but not obligated) to advance, for the account of each of the
Lenders, the amount of the Loan to be made by it in accordance with its Tranche
A Commitment or Tranche B Commitment, as the case may be, hereunder. Should the
Administrative Agent do so, each of the Lenders agrees forthwith to reimburse
the Administrative Agent in immediately available funds for the amount so
advanced on its behalf by the Administrative Agent. together with interest at
the Federal Funds Effective Rate if not so reimbursed on the date due from and
including such date but not including the date of reimbursement.
(b) Any amounts received by the Administrative Agent in connection
with this Agreement (other than amounts to which the Administrative Agent is
entitled pursuant to Sections 2.20, 8.04 and 10.05), the application of which is
not otherwise provided for in this Agreement shall be applied in accordance with
Section 2.19(b). All amounts to be paid to a Lender by the Administrative Agent
shall be credited to that Lender, after collection by the Administrative Agent.
in immediately available funds either by wire transfer or deposit in that
Lender's correspondent account with the Administrative Agent. as such Lender and
the Administrative Agent shall from time to time agree.
79
SECTION 8.08 SHARING OF SETOFFS. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
the Borrower or a Guarantor, including, but not limited to, a secured claim
under Section 506 of the Bankruptcy Code or other security or interest arising
from, or in lieu of, such secured claim and received by such Lender under any
applicable bankruptcy, insolvency or other similar law, or otherwise, obtain
payment in respect of its Loans or unreimbursed drafts drawn under Letters of
Credit as a result of which the unpaid portion of its Loans or unreimbursed
drafts drawn under Letters of Credit is proportionately less than the unpaid
portion of the Loans or unreimbursed drafts drawn under Letters of Credit of any
other Lender (a) it shall promptly purchase at par (and shall be deemed to have
thereupon purchased) from such other Lender a participation in the Loans or
unreimbursed drafts drawn under Letters of Credit of such other Lender, so that
the aggregate unpaid principal amount of each Lender's Loans and unreimbursed
drafts drawn under Letters of Credit and its participation in Loans and
unreimbursed drafts drawn under Letters of Credit of the other Lenders shall be
in the same proportion to the aggregate unpaid principal amount of all Loans
then outstanding and unreimbursed drafts drawn under Letters of Credit as the
principal amount of its Loans and unreimbursed drafts drawn under Letters of
Credit prior to the obtaining of such payment was to the principal amount of all
Loans outstanding and unreimbursed drafts drawn under Letters of Credit prior to
the obtaining of such payment and (b) such other adjustments shall be made from
time to time as shall be equitable to ensure that the Lenders share such payment
pro-rata, provided, that if any such non-pro-rata payment is thereafter
recovered or otherwise set aside such purchase of participations shall be
rescinded (without interest). The Borrower expressly consents to the foregoing
arrangements and agrees that any Lender holding (or deemed to be holding) a
participation in a Loan or unreimbursed drafts drawn under Letters of Credit may
exercise any and all rights of banker's lien, setoff (in each case, subject to
the same notice requirements as pertain to clause (iv) of the remedial
provisions of Section 7.01) or counterclaim with respect to any and all moneys
owing by the Borrower to such Lender as fully as if such Lender was the original
obligee thereon, in the amount of such participation.
SECTION 9. GUARANTY
SECTION 9.01 GUARANTY.
(a) Each of the Guarantors unconditionally and irrevocably guarantees
the due and punctual payment by the Borrower of the Obligations. Each of the
Guarantors further agrees that the Obligations may be extended or renewed, in
whole or in part, without notice to or further assent from it, and it will
remain bound upon this guaranty notwithstanding any extension or renewal of any
of the Obligations. The Obligations of the Guarantors shall be joint and
several.
(b) Each of the Guarantors waives presentation to, demand for payment
from and protest to the Borrower or any other Guarantor, and also waives notice
of protest for nonpayment. The Obligations of the Guarantors hereunder shall not
be affected by (i) the failure of the Administrative Agent or a Lender to assert
any claim or demand or to enforce any right or remedy against the Borrower or
any other Guarantor under the provisions of this Agreement or any other Loan
Document or otherwise; (ii) any extension or renewal of any provision hereof or
thereof, (iii) any rescission, waiver, compromise, acceleration, amendment or
modification of any of the terms or provisions of any of the Loan Documents;
(iv) the release, exchange, waiver
80
or foreclosure of any security held by the Administrative Agent for the
Obligations or any of them; (v) the failure of the Administrative Agent or a
Lender to exercise any right or remedy against any other Guarantor; or (vi) the
release or substitution of the Borrower or any other Guarantor.
(c) Each of the Guarantors further agrees that this guaranty
constitutes a guaranty of payment when due and not just of collection, and
waives any right to require that any resort be had by the Administrative Agent
or a Lender to any security held for payment of the Obligations or to any
balance of any deposit, account or credit on the books of the Administrative
Agent or a Lender in favor of the Borrower or any other Guarantor, or to any
other Person.
(d) Each of the Guarantors hereby waives any defense that it might
have based on a failure to remain informed of the financial condition of the
Borrower and of any other Guarantor and any circumstances affecting the ability
of the Borrower to perform under this Agreement.
(e) Each Guarantor's guaranty shall not be affected by the
genuineness, validity, regularity or enforceability of the Obligations or any
other instrument evidencing any Obligations, or by the existence, validity,
enforceability, perfection, or extent of any collateral therefor or by any other
circumstance relating to the Obligations which might otherwise constitute a
defense to this Guaranty. Neither of the Agents nor any of the Lenders makes any
representation or warranty in respect to any such circumstances or shall have
any duty or responsibility whatsoever to any Guarantor in respect of the
management and maintenance of the Obligations.
(f) Subject to the provisions of Section 7.01, upon the Obligations
becoming due and payable (by acceleration or otherwise), the Lenders shall be
entitled to immediate payment of such Obligations by the Guarantors upon written
demand by the Administrative Agent. without further application to or order of
the Bankruptcy Court.
SECTION 9.02 NO IMPAIRMENT OF GUARANTY. The obligations of the Guarantors
hereunder shall not be subject to any reduction, limitation, impairment or
termination for any reason, including any claim of waiver, release, surrender,
alteration or compromise, and shall not be subject to any defense or set-off,
counterclaim, recoupment or termination whatsoever by reason of the invalidity,
illegality or unenforceability of the Obligations. Without limiting the
generality of the foregoing, the obligations of the Guarantors hereunder shall
not be discharged or impaired or otherwise affected by the failure of the
Administrative Agent or a Lender to assert any claim or demand or to enforce any
remedy under this Agreement or any other agreement, by any waiver or
modification of any provision thereof, by any default, failure or delay, willful
or otherwise, in the performance of the Obligations, or by any other act or
thing or omission or delay to do any other act or thing which may or might in
any manner or to any extent vary the risk of the Guarantors or would otherwise
operate as a discharge of the Guarantors as a matter of law, unless and until
the Obligations are paid in full.
SECTION 9.03 SUBROGATION. Upon payment by any Guarantor of any sums to the
Administrative Agent or a Lender hereunder, all rights of such Guarantor against
the Borrower
81
arising as a result thereof by way of right of subrogation or otherwise, shall
in all respects be subordinate and junior in right of payment to the prior final
and indefeasible payment in full of all the Obligations. If any amount shall be
paid to such Guarantor for the account of the Borrower, such amount shall be
held in trust for the benefit of the Administrative Agent and the Lenders and
shall forthwith be paid to the Administrative Agent and the Lenders to be
credited and applied to the Obligations, whether matured or unmatured.
SECTION 10. MISCELLANEOUS
SECTION 10.01 NOTICES. (a) Except in the case of notices and other
communications expressly permitted to be given by telephone (and subject to
paragraph (b) below), all notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by telecopy, as follows:
(i) if to the Borrower, to it at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of Treasurer (Telecopy No. ▇▇▇-▇▇▇-▇▇▇▇;
Telephone No. ▇▇▇-▇▇▇-▇▇▇▇; with a copy to Assistant General Counsel,
Commercial and Transactions (Telecopy No. ▇▇▇-▇▇▇-▇▇▇▇; Telephone No.
▇▇▇-▇▇▇-▇▇▇▇);
(ii) if to JPMCB (in its capacity as the Administrative Agent or
as a Lender), to JPMorgan Chase Bank, N.A., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention of: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (Telecopy No. ▇▇▇-▇▇▇-▇▇▇▇;
Telephone No. ▇▇▇-▇▇▇-▇▇▇▇), ▇▇▇▇▇▇▇ ▇▇▇▇▇ (Telecopy No. ▇▇▇-▇▇▇-▇▇▇▇;
Telephone No. ▇▇▇-▇▇▇-▇▇▇▇) and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, (Telecopy
No.:▇▇▇-▇▇▇-▇▇▇▇; Telephone No. ▇▇▇-▇▇▇-▇▇▇▇) with a copy to JPMorgan Chase
Bank, N.A., Loan and Agency Services Group, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention of: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, (Telecopy No.
▇▇▇-▇▇▇-▇▇▇▇ ; Telephone No. ▇▇▇-▇▇▇-▇▇▇▇);
(iii) if to the Issuing Lender, to it at the address most
recently specified by it in notice delivered by it to the Administrative
Agent and the Borrower, with a copy to the Administrative Agent as provided
in clause (ii) above;
(iv) if to CUSA (in its capacity as Syndication Agent or as a
Lender), to Citicorp USA, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇▇ ▇▇▇▇ (Telecopy No. ▇▇▇-▇▇▇-▇▇▇▇;
Telephone No. ▇▇▇-▇▇▇-▇▇▇▇); and
(v) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
(b) Notices and other communications to the Lenders hereunder may be
delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent; provided, that the foregoing shall not
apply to notices pursuant to Section 2 unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent or the
Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved
82
by it; provided, that approval of such procedures may be limited to particular
notices or communications.
(c) Any party hereto may change its address or telecopy number for
notices and other communications hereunder by notice to the other parties
hereto. All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt.
SECTION 10.02 SURVIVAL OF AGREEMENT, REPRESENTATIONS AND WARRANTIES, ETC.
All warranties, representations and covenants made by the Borrower or any
Guarantor herein or in any certificate or other instrument delivered by it or on
its behalf in connection with this Agreement shall be considered to have been
relied upon by the Lenders and shall survive the making of the Loans herein
contemplated regardless of any investigation made by any Lender or on its behalf
and shall continue in full force and effect (in the case of any representations
and warranties, as of the date when made or deemed to be made) so long as any
amount due or to become due hereunder is outstanding and unpaid and so long as
the Total Commitment has not been terminated.
SECTION 10.03 SUCCESSORS AND ASSIGNS. (a) The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby (including any Affiliate of
the Issuing Lender that issues any Letter of Credit), except that (i) the
Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and
void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section. Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby (including any Affiliate of the Issuing Lender that issues any
Letter of Credit), Participants (to the extent provided in paragraph (d) of this
Section) and, to the extent expressly contemplated hereby, the Related Parties
of each of the Administrative Agent. the Issuing Lender and the Lenders) any
legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii)
below, any Lender may assign to one or more assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Total Commitment and the Loans at the time owing to it) with the prior written
consent (such consent not to be unreasonably withheld) of:
(A) the Agent; and
(B) the Issuing Lender, provided that no consent of the Issuing
Lender shall be required for an assignment of all or any portion
of a Tranche B Loan; and
(C) the Borrower; provided that no consent of the Borrower shall
be required for an assignment if, after giving effect thereto,
the aggregate amount of the assignee's Tranche A Commitment and
Tranche B
83
Commitment and Loans would be less than ten percent (10%) of the
Total Commitment in effect at such time; and provided further
that no consent of the Borrower shall be required if an Event of
Default has occurred and is continuing.
(ii) Assignments shall be subject to the following additional
conditions:
(A) any assignment of any portion of the Total Tranche A
Commitment and Tranche A Loans and LC Exposure shall be made to
an Eligible Assignee;
(B) except in the case of an assignment to a Lender or an
Affiliate of a Lender or an Approved Fund or an assignment of the
entire remaining amount of the assigning Lender's Tranche A
Commitment, Tranche B Commitment or Loans, the amount of the such
commitment or Loans of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the
Agent) shall not be less than $1,000,000 unless the
Administrative Agent otherwise consents;
(C) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and
obligations under this Agreement, provided that if such assigning
Lender is both a Tranche A Lender and a Tranche B Lender, this
clause shall not be construed to prohibit the assignment of a
proportionate part of all the assigning Lender's rights and
obligations in respect of either (1) the Tranche A Commitment,
Tranche A Loans and LC Exposure or (2) the Tranche B Commitment
and Tranche B Loans, as the case may be;
(D) the parties to each assignment shall execute and deliver to
the Administrative Agent an Assignment and Acceptance, together
with a processing and recordation fee of $3,500;
(E) the assignee, if it was not a Lender immediately prior to
such assignment, shall deliver to the Administrative Agent an
Administrative Questionnaire; and
(F) except in the case of (x) any assignment in connection with
the primary syndication of the credit facilities provided for
herein and (y) any assignment to a Lender or an Affiliate of a
Lender or an Approved Fund, each assignment shall be made in
consultation with the Borrower.
For the purposes of this Section 10.03(b), the term "Approved Fund"
means any Person (other than a natural person) that is engaged in making,
purchasing, holding or investing in bank loans and similar extensions of credit
in the ordinary course of its business and 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.
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(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section, from and after the effective date
specified in each Assignment and Acceptance the assignee thereunder shall
be a party hereto and, to the extent of the interest assigned by such
Assignment and Acceptance, have the rights and obligations of a Tranche A
Lender or Tranche B Lender (or both), as the case may be, under this
Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party hereto but
shall continue to be entitled to the benefits (and, in the case of Section
2.18, subject to the obligations) of Sections 2.16, 2.17, 2.18 and 10.05).
Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this Section 10.03 shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with paragraph (d) of this
Section.
(iv) The Administrative Agent, acting for this purpose as an
agent of the Borrower, shall maintain at one of its offices a copy of each
Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment
of, and principal and interest amount of the Loans and LC Disbursements
owing to, each Lender pursuant to the terms hereof from time to time (the
"Register"). The entries in the Register shall be conclusive, and the
Borrower, the Administrative Agent, the Issuing Lender and the Lenders
shall treat each Person whose name is recorded in the Register pursuant to
the terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower, the Issuing Lender and any Lender, at any
reasonable time and from time to time upon reasonable prior notice. This
Section 10.03(b)(iv) shall be construed so that the Loans and LC
Disbursements are at all times maintained in "registered form" within the
meaning of Sections 163(f), 871(h)(2), and 881(c)(2) of the Code.
(c) Upon its receipt of a duly completed Assignment and Assumption
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Assumption and record the information contained therein in the Register;
provided, that if either the assigning Lender or the assignee shall have failed
to make any payment required to be made by it pursuant to Section 2.03(d) or
(e), 2.05(b), 2.19(d) or 8.04, the Administrative Agent shall have no obligation
to accept such Assignment and Assumption and record the information therein in
the Register unless and until such payment shall have been made in full,
together with all accrued interest thereon. No assignment shall be effective for
purposes of this Agreement unless it has been recorded in the Register as
provided in this paragraph.
(d) (i) Any Lender may, without the consent of the Borrower, the
Administrative Agent or the Issuing Lender, and without consulting the Borrower,
sell participations to one or more banks or other entities (a "Participant") in
all or a portion of such Lender's rights and
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obligations under this Agreement (including all or a portion of its Commitment
and the Loans owing to it); provided, that (A) such Lender's obligations under
this Agreement shall remain unchanged, (B) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (C) the Borrower, the Administrative Agent, the Issuing Lender and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided, that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver described in the first proviso to Section
10.09(a) that affects such Participant. Subject to paragraph (d)(ii) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.16, 2.17 and 2.18 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 2.26 as though it were a Lender, provided
such Participant agrees to be subject to Section 8.08 as though it were a
Lender.
(ii) A Participant shall not be entitled to receive any greater
payment under Section 2.16 or 2.18 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is
made with the Borrower's prior written consent. A Participant shall not be
entitled to the benefits of Section 2.18 unless the Borrower is notified of
the participation sold to such Participant and such Participant agrees, for
the benefit of the Borrower, to comply with Section 2.18 as though it were
a Lender.
(iii) A Participant shall not be entitled to any funds directly
from the Borrower in respect of the benefits under Section 2.16, 2.17, 2.18
or 2.26, pursuant to Section 10.03(d), until such Participant has provided
information to the Borrower sufficient to satisfy the requirements of
Section 10.03(b)(iv) as if such Participant had been a Lender.
(e) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided, that no such pledge or assignment
of a security interest shall release a Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.
(f) Any Lender may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 10.03, disclose
to the assignee or participant or proposed assignee or participant, any
information relating to the Borrower or any of the Guarantors furnished to such
Lender by or on behalf of the Borrower or any of the Guarantors; provided, that
prior to any such disclosure, each such assignee or participant or proposed
assignee or participant shall agree in writing to be bound by the provisions of
Section 10.04.
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(g) The Borrower hereby agrees, to the extent set forth in the
Commitment Letter, to actively assist and cooperate with the Agents in the
Agents' best efforts to sell participations herein (as described in Section
10.03(d)) and assign to one or more Lenders or assignees meeting the
requirements set forth in 10.03(b) a portion of its interests, rights and
obligations under this Agreement (as set forth in Section 10.03(b)).
SECTION 10.04 CONFIDENTIALITY. Each Lender agrees to keep any information
delivered or made available by the Borrower or any of its Subsidiaries to it
confidential from anyone other than persons employed or retained by such Lender
who are or are expected to become engaged in evaluating, approving, structuring
or administering the Loans; provided, that nothing herein shall prevent any
Lender from disclosing such information (i) to any of its Affiliates or to any
other Lender, provided such Affiliate agrees to keep such information
confidential to the same extent required by the Lenders hereunder, (ii) upon the
order of any court or administrative agency, (iii) upon the request or demand of
any regulatory agency or authority, (iv) which has been publicly disclosed other
than as a result of a disclosure by any Agent or any Lender which is not
permitted by this Agreement, (v) in connection with any litigation to which the
any Agent, any Lender, or their respective Affiliates may be a party solely to
the extent reasonably required, (vi) to the extent reasonably required in
connection with the exercise of any remedy hereunder, (vii) to such Lender's
legal counsel and independent auditors, and (viii) to any actual or proposed
participant or assignee of all or part of its rights hereunder subject to the
proviso in Section 10.03(f). Each Lender shall use reasonable efforts to notify
the Borrower of any required disclosure under clauses (ii) and (v) of this
Section.
SECTION 10.05 EXPENSES; INDEMNITY; DAMAGE WAIVER. (a)(i) The Borrower shall
pay or reimburse: (A) all reasonable fees and reasonable out-of-pocket expenses
of the Agents, ▇.▇. ▇▇▇▇▇▇ Securities Inc. ("JPMorgan") and Citigroup Global
Markets, Inc. ("CGMI"; together, CGMI and JPMorgan, the "Arrangers") (including
the reasonable fees, disbursements and other charges of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇
("DPW"), special counsel to the Administrative Agent and the Arrangers, and any
local counsel retained by DPW or the Administrative Agent or the Arrangers)
associated with the syndication of the credit facilities provided for herein,
and the preparation, execution, delivery and administration of the Loan
Documents and any amendments, modifications or waivers of the provisions hereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated); and (B) all fees and expenses of the Agents and the Arrangers
(including the fees, disbursements and other charges of DPW, special counsel to
the Administrative Agent and the Arrangers, and any local counsel retained by
DPW or the Administrative Agent or the Arrangers) and the Lenders in connection
with the enforcement of the Loan Documents. In connection with the foregoing, it
is understood that, subject to customary exceptions for conflicts of interest,
special counsel and local counsel, the Agents and the Arrangers shall be
represented by a single lead counsel.
(ii) The Borrower shall pay or reimburse (A) all reasonable fees
and reasonable expenses of the Agents and the Arrangers and their internal
and third-party auditors, appraisers and consultants incurred in connection
with the Agents' (1) initial and ongoing Borrowing Base examinations, (2)
analyses of the systems and processes of the Borrower and analyses and
valuations of the Borrowing Base assets, (3) periodic field examinations
and appraisals and (4) monthly and other monitoring of assets; and (B) all
reasonable fees and reasonable out-of-pocket expenses of the Issuing
Lenders in
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connection with the issuance, amendment, renewal or extension of any Letter
of Credit or any demand or any payment thereunder.
All payments or reimbursements pursuant to the foregoing clauses
(a)(i) and (ii) shall be payable promptly upon written demand together with
back-up documentation supporting such reimbursement request.
(b) The Borrower shall indemnify the Agents, the Arrangers, the
Issuing Lenders and each Lender, and each Related Party of any of the foregoing
Persons (each such Person being called an "Indemnitee") against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including the reasonable fees, charges and disbursements of
any counsel for any Indemnitee (it being understood that claims for expense
reimbursement hereunder shall be accompanied by back-up documentation supporting
such request), incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or delivery of this
Agreement or any agreement or instrument contemplated hereby, the performance by
the parties hereto of their respective obligations hereunder or the consummation
of the Transactions or any other transactions contemplated hereby, (ii) any Loan
or Letter of Credit or the use of the proceeds therefrom (including any refusal
by the Issuing Lender 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 owned or operated by
the Borrower or any of its Subsidiaries, or any Environmental Liability related
in any way to the Borrower or any of its Subsidiaries, 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 and
regardless of whether any Indemnitee is a party thereto; provided, that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses are determined by a
court of competent jurisdiction by final and nonappealable judgment to have
resulted from the bad faith, gross negligence or willful misconduct of such
Indemnitee (or such Indemnitee's officers, directors, employees or affiliates).
(c) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
Transactions, any Loan or Letter of Credit or the use of the proceeds thereof
SECTION 10.06 CHOICE OF LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
SHALL IN ALL RESPECTS BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS
OF THE STATE OF NEW YORK AND (TO THE EXTENT APPLICABLE) THE BANKRUPTCY CODE.
SECTION 10.07 NO WAIVER. No failure on the part of the Administrative Agent
or any of the Lenders to exercise, and no delay in exercising, any right, power
or remedy hereunder or any of the other Loan Documents shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the
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exercise of any other right, power or remedy. All remedies hereunder are
cumulative and are not exclusive of any other remedies provided by law.
SECTION 10.08 EXTENSION OF MATURITY. Should any payment of principal of or
interest or any other amount due hereunder become due and payable on a day other
than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day and, in the case of principal, interest shall be payable
thereon at the rate herein specified during such extension.
SECTION 10.09 AMENDMENTS, ETC.
(a) No modification, amendment or waiver of any provision of this
Agreement or the Security and Pledge Agreement, and no consent to any departure
by the Borrower or any Guarantor therefrom, shall in any event be effective
unless the same shall be in writing and signed by the Required Lenders, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given; provided, however, that no such modification or
amendment shall without the written consent of (i) the Super-majority Lenders
(A) increase the advance rates set forth in the definition of the term
"Borrowing Base", add new asset categories to the Borrowing Base or otherwise
cause the Borrowing Base or availability under the credit facilities provided
for herein to be increased, (B) release any of the Liens granted to the
Administrative Agent hereunder, under the Orders or under any other Loan
Document, other than Liens on assets that are sold or otherwise disposed of in
transactions permitted pursuant to the Loan Documents, or (C) release any of the
Guarantors, other than as expressly permitted pursuant to the Loan Documents,
(ii) the Lender affected thereby (A) increase the Commitment of a Lender (it
being understood that a waiver of an Event of Default shall not constitute an
increase in the Commitment of a Lender), or (B) reduce the principal amount of
any Loan or the rate of interest payable thereon, or extend any date for the
scheduled payment of interest hereunder or reduce any Fees payable hereunder or
extend any date for the scheduled payment of any such Fees, or extend the final
maturity of the Borrower's obligations hereunder or (iii) all of the Lenders (A)
amend or modify any provision of this Agreement which provides for the unanimous
consent or approval of the Lenders, (B) amend this Section 10.09, the definition
of Required Lenders or the definition of Super-majority Lenders, (C) amend or
modify the Superpriority Claim status of the Lenders contemplated by Section
2.25, (D) release all or substantially all of the Liens granted to the
Administrative Agent hereunder, under the Orders or under any other Loan
Document, or release all or substantially all of the Guarantors or (E) amend any
provision that sets forth the priority of payment as between the Tranche A
Lenders and the Tranche B Lenders. No such amendment or modification may
adversely affect the rights and obligations of the Administrative Agent or any
Issuing Lender hereunder or either JPMCB or CUSA in the capacity referred to in
Section 6.03(viii) without its prior written consent. No notice to or demand on
the Borrower or any Guarantor shall entitle the Borrower or any Guarantor to any
other or further notice or demand in the same, similar or other circumstances.
Each assignee under Section 10.03(b) shall be bound by any amendment,
modification, waiver, or consent authorized as provided herein, and any consent
by a Lender shall bind any Person subsequently acquiring an interest on the
Loans held by such Lender. No amendment to this Agreement shall be effective
against the Borrower or any Guarantor unless signed by the Borrower or such
Guarantor, as the case may be.
89
Notwithstanding anything to the contrary contained in Section 10.09(a), in the
event that the Borrower requests that this Agreement be modified or amended in a
manner which would require the unanimous consent of all of the Lenders and such
modification or amendment is agreed to by the Super-majority Lenders, then with
the consent of the Borrower and the Super-majority Lenders, the Borrower and the
Super-majority Lenders shall be permitted to amend the Agreement without the
consent of the Lender or Lenders which did not agree to the modification or
amendment requested by the Borrower (such Lender or Lenders, collectively the
"Minority Lenders") to provide for (i) the termination of the Commitment of each
of the Minority Lenders, (ii) the addition to this Agreement of one or more
other financial institutions (each of which shall meet the requirements of
Section 10.03(b)), or an increase in the Commitment of one or more of the
Super-majority Lenders, so that the Total Commitment after giving effect to such
amendment shall be in the same amount as the Total Commitment immediately before
giving effect to such amendment, (iii) if any Loans are outstanding at the time
of such amendment, the making of such additional Loans by such new financial
institutions or Super-majority Lender or Lenders, as the case may be, as may be
necessary to repay in full the outstanding Loans of the Minority Lenders
immediately before giving effect to such amendment and (iv) such other
modifications to this Agreement as may be appropriate. As used herein, the term
"Super-majority Lenders" shall mean, at any time, Lenders having Tranche A
Commitments at such time (or, if the Total Tranche A Commitment has been
terminated, Lenders holding Tranche A Loans and LC Exposure at such time) and
Lenders holding Tranche B Loans at such time (or, if the Tranche B Loan is not
outstanding, Lenders holding Tranche B Commitments at such time) representing in
excess of 66-2/3% of the sum of the Total Tranche A Commitment at such time (or,
if the Total Tranche A Commitment has been terminated, the Tranche A Total
Commitment Usage at such time) plus the Total Tranche B Commitment at such time.
Notwithstanding anything to the contrary contained herein or in any other Loan
Document, Collateral shall be released automatically from the Lien of the
Security and Pledge Agreement, and Guarantors shall be released automatically
from their guarantee obligations hereunder, in each case to the extent necessary
to effect the consummation of any transaction permitted by the Loan Documents
(including any transaction that has been approved by the requisite Lenders in
accordance with Section 10.09). Each Lender hereby irrevocably authorizes the
Administrative Agent to take, and the Administrative Agent hereby agrees to
take, at the Borrower's expense, any action reasonably requested by the Borrower
to evidence any such release of Collateral or guarantee obligations, so long as
the Borrower certifies to the Administrative Agent that the transaction
necessitating such release has been consummated in compliance with the terms of
this Agreement (and the Administrative Agent may rely conclusively on such
certificate, without further inquiry).
SECTION 10.10 SEVERABILITY. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof, and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 10.11 HEADINGS. Section headings used herein are for convenience
only and are not to affect the construction of or be taken into consideration in
interpreting this Agreement.
90
SECTION 10.12 SURVIVAL. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any Loans
and issuance of any Letters of Credit, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that the
Administrative Agent. the Issuing Lender or any Lender may have had notice or
knowledge of any Event of Default or incorrect representation or warranty at the
time any credit is extended hereunder, and shall continue in full force and
effect as long as the principal of or any accrued interest on any Loan or any
fee or any other amount payable under this Agreement is outstanding and unpaid
or any Letter of Credit is outstanding and so long as the Commitments have not
expired or terminated. The provisions of Sections 2.16, 2.17, 2.18 and 10.05 and
Section 8 shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof
SECTION 10.13 EXECUTION IN COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement and
any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract among the parties relating
to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof Except as
provided in Section 4.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 10.14 PRIOR AGREEMENTS. This Agreement represents the entire
agreement of the parties with regard to the subject matter hereof and the terms
of any letters and other documentation entered into between the Borrower or a
Guarantor and any Lender or the Administrative Agent prior to the execution of
this Agreement which relate to Loans to be made hereunder shall be replaced by
the terms of this Agreement (except as otherwise expressly provided herein with
respect to the Commitment Letter and the fee letter referred to therein,
including the Borrower's agreements to actively assist the Administrative Agent
in syndication efforts and with respect to interest rates, Commitment Fees and
the fees referenced in Section 2.21).
SECTION 10.15 FURTHER ASSURANCES. Whenever and so often as reasonably
requested by the Administrative Agent. the Borrower and the Guarantors will
promptly execute and deliver or cause to be executed and delivered all such
other and further instruments, documents or assurances, and promptly do or cause
to be done all such other and further things as may be necessary and reasonably
required in order to further and more fully vest in the Administrative
91
Agent all rights, interests, powers, benefits, privileges and advantages
conferred or intended to be conferred by this Agreement and the other Loan
Documents.
SECTION 10.16 USA PATRIOT ACT. Each Lender that is subject to the
requirements of the Patriot Act hereby notifies the Borrower that pursuant to
the requirements of the Act, it is required to obtain, verify and record
information that identifies the Borrower, which information includes the name
and address of the Borrower and other information that will allow such Lender to
identify the Borrower in accordance with the Patriot Act.
SECTION 10.17 WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE GUARANTORS,
THE AGENT AND EACH LENDER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY OF
THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and the year first written.
BORROWER:
DELPHI CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President, Chief Restructuring
Officer, Chief Accounting Officer
& Controller
GUARANTORS:
ASEC MANUFACTURING GENERAL PARTNERSHIP,
A DELAWARE GENERAL PARTNERSHIP
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Assistant Treasurer
ASEC SALES GENERAL PARTNERSHIP,
A DELAWARE GENERAL PARTNERSHIP
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Assistant Treasurer
ASPIRE, INC.,
A MICHIGAN CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
DELCO ELECTRONIC OVERSEAS CORPORATION,
A DELAWARE CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Assistant Treasurer
DELPHI AUTOMOTIVE SYSTEMS (HOLDING), INC.,
A DELAWARE CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
DELPHI AUTOMOTIVE SYSTEMS GLOBAL (HOLDING),
INC.,
A DELAWARE CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
DELPHI AUTOMOTIVE SYSTEMS HUMAN
RESOURCES LLC,
A DELAWARE LIMITED LIABILITY COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President & Treasurer
DELPHI AUTOMOTIVE SYSTEMS INTERNATIONAL,
INC.,
A DELAWARE CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
DELPHI AUTOMOTIVE SYSTEMS KOREA, INC.,
A DELAWARE CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇.▇▇▇▇
Title: Chief Executive Officer & President
DELPHI AUTOMOTIVE SYSTEMS LLC,
A DELAWARE LIMITED LIABILITY COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Acting Chief Financial Officer,
Chief Accounting Officer & Controller
DELPHI AUTOMOTIVE SYSTEMS OVERSEAS
CORPORATION,
A DELAWARE CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
DELPHI AUTOMOTIVE SYSTEMS RISK MANAGEMENT
CORP.,
A DELAWARE CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President & Treasurer
DELPHI AUTOMOTIVE SYSTEMS SERVICES LLC,
A DELAWARE LIMITED LIABILITY COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
DELPHI AUTOMOTIVE SYSTEMS TENNESSEE, INC.,
A DELAWARE CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
DELPHI AUTOMOTIVE SYSTEMS THAILAND, INC.,
A DELAWARE CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
DELPHI CHINA LLC,
A DELAWARE LIMITED LIABILITY COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Tax Officer
DELPHI CONNECTION SYSTEMS,
A CALIFORNIA CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
DELPHI DIESEL SYSTEMS CORP.,
A DELAWARE CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Tax Officer
DELPHI ELECTRONICS (HOLDING) LLC,
A DELAWARE LIMITED LIABILITY COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Assistant Treasurer
DELPHI FOREIGN SALES CORPORATION,
A VIRGIN ISLANDS CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Controller
DELPHI INTEGRATED SERVICE SOLUTIONS, INC.,
A MICHIGAN CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
DELPHI INTERNATIONAL HOLDINGS CORP.,
A DELAWARE CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
DELPHI INTERNATIONAL SERVICES, INC.,
A DELAWARE CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Chief Financial Officer & Treasurer
DELPHI LIQUIDATION HOLDING COMPANY,
A DELAWARE CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
DELPHI LLC,
A DELAWARE LIMITED LIABILITY COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
DELPHI MECHATRONIC SYSTEMS, INC.,
A DELAWARE CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
DELPHI MEDICAL SYSTEMS COLORADO CORPORATION,
A COLORADO CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President & Treasurer
DELPHI MEDICAL SYSTEMS CORPORATION,
A DELAWARE CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President & Treasurer
DELPHI MEDICAL SYSTEMS TEXAS CORPORATION,
A DELAWARE CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President & Treasurer
DELPHI NY HOLDING CORPORATION,
A NEW YORK CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
DELPHI SERVICES HOLDING CORPORATION,
A DELAWARE CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
DELPHI TECHNOLOGIES, INC.,
A DELAWARE CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President Intellectual Property
DREAL, INC.,
A DELAWARE CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
ENVIRONMENTAL CATALYSTS, LLC,
A DELAWARE LIMITED LIABILITY COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer
EXHAUST SYSTEMS CORPORATION,
A DELAWARE CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Assistant Treasurer
PACKARD ▇▇▇▇▇▇ INTERCONNECT COMPANY,
A DELAWARE CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Tax Officer
SPECIALTY ELECTRONICS INTERNATIONAL LTD.,
A VIRGIN ISLANDS CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer and Secretary
SPECIALTY ELECTRONICS, INC.,
A SOUTH CAROLINA CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Tax Officer
AGENTS AND LENDERS:
JPMORGAN CHASE BANK, N.A.
INDIVIDUALLY AND AS ADMINISTRATIVE AGENT
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
CITICORP USA, INC.
INDIVIDUALLY AND AS SYNDICATION AGENT
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Director
[signatures of lenders]