EXHIBIT 4.1
EXECUTION COPY
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AMENDED AND RESTATED FIRST LIEN CREDIT AGREEMENT
dated as of April 20, 2007
among
THE GOODYEAR TIRE & RUBBER COMPANY,
as Borrower,
The LENDERS Party Hereto,
The ISSUING BANKS Party Hereto,
CITICORP USA, INC.,
as Syndication Agent,
BANK OF AMERICA, N.A.,
BNP PARIBAS,
THE CIT GROUP/BUSINESS CREDIT, INC.,
GENERAL ELECTRIC CAPITAL CORPORATION,
GMAC COMMERCIAL FINANCE LLC,
▇▇▇▇▇ FARGO FOOTHILL
as Documentation Agents
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent and Collateral Agent
▇.▇. ▇▇▇▇▇▇ SECURITIES INC., CITIGROUP GLOBAL MARKETS INC.,
as Joint Lead Arranger as Joint Lead Arranger
and Joint Bookrunner and Joint Bookrunner
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[CS&M 6701-315]
IMPORTANT NOTE:
EACH PARTY HERETO MUST EXECUTE THIS CREDIT AGREEMENT OUTSIDE THE REPUBLIC OF
AUSTRIA AND EACH LENDER MUST BOOK ITS LOAN AND RECEIVE ALL PAYMENTS OUTSIDE THE
REPUBLIC OF AUSTRIA. TRANSPORTING OR SENDING THE ORIGINAL OR ANY CERTIFIED COPY
OF THIS CREDIT AGREEMENT OR ANY OTHER CREDIT DOCUMENT OR ANY NOTICE OR OTHER
COMMUNICATION (INCLUDING BY EMAIL OR OTHER ELECTRONIC TRANSMISSION) INTO OR FROM
THE REPUBLIC OF AUSTRIA MAY RESULT IN THE IMPOSITION OF AN AUSTRIAN STAMP DUTY
ON THE CREDIT FACILITY PROVIDED FOR HEREIN, WHICH MAY BE FOR THE ACCOUNT OF THE
PARTY WHOSE ACTIONS RESULT IN SUCH IMPOSITION. COMMUNICATIONS REFERENCING THIS
CREDIT AGREEMENT SHOULD NOT BE ADDRESSED TO RECIPIENTS IN, OR SENT BY PERSONS
LOCATED IN, THE REPUBLIC OF AUSTRIA AND PAYMENTS SHOULD NOT BE MADE TO BANK
ACCOUNTS IN THE REPUBLIC OF AUSTRIA. SEE ALSO SECTION 9.18 AND A MEMORANDUM FROM
AUSTRIAN COUNSEL FOR THE GOODYEAR TIRE & RUBBER COMPANY WHICH IS AVAILABLE UPON
REQUEST FROM THE ADMINISTRATIVE AGENT.
Table of Contents
Page
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ARTICLE I
Definitions
SECTION 1.01. Defined Terms ............................................. 1
SECTION 1.02. Classification of Loans and Borrowings .................... 56
SECTION 1.03. Foreign Currency Translation .............................. 56
SECTION 1.04. Terms Generally ........................................... 56
SECTION 1.05. Accounting Terms; GAAP .................................... 57
ARTICLE II
The Credits
SECTION 2.01. Loans and Borrowings ...................................... 57
SECTION 2.02. Requests for Borrowing .................................... 58
SECTION 2.03. Letters of Credit ......................................... 58
SECTION 2.04. Funding of Borrowings ..................................... 65
SECTION 2.05. Interest Elections ........................................ 66
SECTION 2.06. Reductions of Commitments ................................. 67
SECTION 2.07. Repayment of Loans; Evidence of Debt ...................... 68
SECTION 2.08. Prepayment of Loans ....................................... 68
SECTION 2.09. Fees ...................................................... 70
SECTION 2.10. Interest .................................................. 71
SECTION 2.11. Alternate Rate of Interest ................................ 72
SECTION 2.12. Increased Costs ........................................... 72
SECTION 2.13. Break Funding Payments .................................... 73
SECTION 2.14. Taxes ..................................................... 74
SECTION 2.15. Payments Generally; Pro Rata Treatment; Sharing of
Setoffs ................................................... 75
SECTION 2.16. Mitigation Obligations; Replacement of Lenders ............ 77
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers ...................................... 78
SECTION 3.02. Authorization; Enforceability ............................. 78
SECTION 3.03. Governmental Approvals; No Conflicts ...................... 78
SECTION 3.04. Financial Statements; No Material Adverse Change .......... 79
SECTION 3.05. Litigation and Environmental Matters ...................... 79
SECTION 3.06. Compliance with Laws and Agreements ....................... 80
SECTION 3.07. Investment Company Status ................................. 80
SECTION 3.08. ERISA and Canadian Pension Plans .......................... 80
SECTION 3.09. Disclosure ................................................ 80
SECTION 3.10. Security Interests ........................................ 80
SECTION 3.11. Use of Proceeds and Letters of Credit ..................... 82
ARTICLE IV
Conditions
SECTION 4.01. Restatement Date .......................................... 82
SECTION 4.02. Each Credit Event ......................................... 85
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements and Other Information ................ 86
SECTION 5.02. Notices of Defaults ....................................... 88
SECTION 5.03. Existence; Conduct of Business ............................ 88
SECTION 5.04. Maintenance of Properties ................................. 89
SECTION 5.05. Books and Records; Inspection and Audit Rights ............ 89
SECTION 5.06. Compliance with Laws ...................................... 90
SECTION 5.07. Insurance ................................................. 90
SECTION 5.08. Guarantees and Collateral ................................. 90
SECTION 5.09. Borrowing Base Certificate ................................ 92
ARTICLE VI
Negative Covenants
SECTION 6.01. Limitation on Indebtedness ................................ 93
SECTION 6.02. Limitation on Restricted Payments ......................... 97
SECTION 6.03. Limitation on Restrictions on Distributions from
Restricted Subsidiaries ................................... 101
SECTION 6.04. Limitation on Sales of Assets and Subsidiary Stock ........ 103
SECTION 6.05. Limitation on Transactions with Affiliates ................ 104
SECTION 6.06. Limitation on Liens ....................................... 106
SECTION 6.07. Limitation on Sale/Leaseback Transactions ................. 109
SECTION 6.08. Fundamental Changes ....................................... 110
SECTION 6.09. Consolidated Coverage Ratio ............................... 110
ii
ARTICLE VII
Events of Default
SECTION 7.01. Events of Default ......................................... 110
ARTICLE VIII
The Agents
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices ................................................... 116
SECTION 9.02. Waivers; Amendments ....................................... 117
SECTION 9.03. Expenses; Indemnity; Damage Waiver ........................ 119
SECTION 9.04. Successors and Assigns .................................... 121
SECTION 9.05. Survival .................................................. 124
SECTION 9.06. Counterparts; Integration; Effectiveness; Issuing Banks ... 125
SECTION 9.07. Severability .............................................. 125
SECTION 9.08. Right of Setoff ........................................... 126
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of
Process ................................................... 126
SECTION 9.10. WAIVER OF JURY TRIAL ...................................... 126
SECTION 9.11. Headings .................................................. 127
SECTION 9.12. Confidentiality ........................................... 127
SECTION 9.13. Interest Rate Limitation .................................. 127
SECTION 9.14. Security Documents ........................................ 128
SECTION 9.15. Additional Financial Covenants ............................ 128
SECTION 9.16. Effect of Restatement ..................................... 129
SECTION 9.17. USA Patriot Act Notice .................................... 129
SECTION 9.18. Austrian Matters .......................................... 129
iii
SCHEDULES:
Schedule 1.01A -- Consent Subsidiaries
Schedule 1.01B -- Mortgaged Properties
Schedule 1.01C -- Senior Subordinated-Lien Indebtedness
Schedule 1.01D -- Specified Account Debtor
Schedule 2.01 -- Commitments
Schedule 2.03 -- Existing Letters of Credit
Schedule 3.10(b) -- Mortgaged Properties
Schedule 3.10(c) -- Material Intellectual Property
Schedule 4.01 -- Post Restatement Date Delivery Requirements
Schedule 6.06 -- Existing Liens on the Restatement Date
EXHIBITS:
Exhibit A -- Form of Borrowing Request
Exhibit B -- Form of Interest Election Request
Exhibit C -- Form of Promissory Note
Exhibit D -- Form of Assignment and Assumption
Exhibit E-1 -- Form of Opinion of Borrower's Outside Counsel
Exhibit E-2 -- Form of Opinion of the General Counsel, the Associate General
Counsel or an Assistant General Counsel of the Borrower
Exhibit F -- Form of Borrowing Base Certificate
Exhibit G -- Form of Restatement Date Perfection Certificate
Exhibit H -- Form of Reaffirmation Agreement
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AMENDED AND RESTATED FIRST LIEN CREDIT AGREEMENT dated as of
April 20, 2007 (this "Agreement"), among THE GOODYEAR TIRE &
RUBBER COMPANY; the LENDERS party hereto; the ISSUING BANKS party
hereto; CITICORP USA, INC., as Syndication Agent; BANK OF
AMERICA, N.A., as Documentation Agent; BNP PARIBAS, as
Documentation Agent; THE CIT GROUP/BUSINESS CREDIT, INC., as
Documentation Agent; GENERAL ELECTRIC CAPITAL CORPORATION, as
Documentation Agent; GMAC COMMERCIAL FINANCE LLC, as
Documentation Agent, ▇▇▇▇▇ FARGO FOOTHILL, as Documentation
Agent, and JPMORGAN CHASE BANK, N.A., as Administrative Agent and
Collateral Agent.
The Borrower has requested that the Lenders agree to amend and restate
the Existing Credit Agreement (such term and each other capitalized term used
but not otherwise defined herein having the meaning assigned to it in Article I)
in order to continue the revolving credit facility provided for therein and to
extend credit in the form of revolving Loans and Letters of Credit in an
aggregate principal or stated amount not in excess of $1,500,000,000 at any time
outstanding. The Lenders are willing to continue such revolving credit facility,
and to amend and restate the Existing Credit Agreement in the form hereof, upon
the terms and subject to the conditions set forth herein. The proceeds of
Borrowings hereunder will be used for working capital and general corporate
purposes of the Borrower and the Subsidiaries. Letters of Credit will be used
for general corporate purposes of the Borrower and the Subsidiaries.
Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following
terms have the meanings specified below:
"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.
"Access Agreement" means a written agreement granting access rights
with respect to any Accounts or Inventory of the Borrower or any of the other
Grantors located at any third party location, in form and substance reasonably
satisfactory to the Administrative Agent.
"Account" has the meaning specified in the UCC.
"Account Debtor" means the Person who is primarily obligated under,
with respect to or on account of an Account.
2
"Accounts Receivable Reserves" means, on any date, an amount
(calculated in accordance with the current and historical accounting practices
of the Borrower) equal to the sum of reserves for volume rebates, cash
discounts, Federal excise taxes and warranties maintained on the Borrower's
general ledger with respect to Eligible Accounts Receivable, in each case
without duplication of any amounts that are included in the Dilution Factors for
such period or excluded from the value of Eligible Accounts Receivable pursuant
to the definition thereof, and each such reserve to be subject to adjustment by
the Administrative Agent or the Majority Lenders in their discretion (not to be
exercised unreasonably) based on the results of collateral and borrowing base
evaluations and monitoring conducted by the Administrative Agent and its
designated representatives. Any such adjustment by the Administrative Agent or
the Majority Lenders shall be made by written notice to the Borrower setting
forth in reasonable detail the basis for such adjustment, and shall become
effective for purposes of the first Borrowing Base Certificate that is delivered
pursuant to Section 5.09 at least five Business Days after the date of receipt
by the Borrower of such written notice.
"Additional Assets" means:
(a) any property or assets (other than Indebtedness and Capital Stock)
to be used by the Borrower or a Restricted Subsidiary;
(b) the Capital Stock of a Person that becomes a Restricted Subsidiary
as a result of the acquisition of such Capital Stock by the Borrower or
another Restricted Subsidiary; or
(c) Capital Stock constituting a minority interest in any Person that
at such time is a Restricted Subsidiary;
provided, however, that any such Restricted Subsidiary described in clauses (b)
or (c) above is primarily engaged in a Permitted Business.
"Additional Inventory Reserves" means, on any date, an amount equal to
the sum of the following reserves established by the Administrative Agent with
respect to Eligible Inventory, without duplication of any deductions made
pursuant to the definitions of "Eligible Inventory", "Inventory Reserves" and
"Inventory Value":
(a) a reserve for "slow moving" Eligible Inventory equal to 75% of the
amount in excess of a 12 month supply on hand;
(b) a reserve for (i) private label Eligible Inventory relating to the
North America Tire Division and (ii) private label Eligible Inventory
relating to the Engineered Products Division;
(c) a reserve for freight, duties and insurance for Eligible Inventory
representing in transit Inventory equal to $5,000,000;
(d) a reserve for shrink or discrepancies that arise pertaining to
Eligible Inventory quantities on hand between the Borrower's perpetual
accounting system
3
and physical counts of the Eligible Inventory which will be equal to the
amount of any such discrepancy, if any, that is in excess of 2.0%; and
(e) any other reserve as deemed appropriate by the Administrative
Agent or the Majority Lenders in their discretion (not to be exercised
unreasonably) based on the results of collateral and borrowing base
evaluations and monitoring conducted by the Administrative Agent and its
designated representatives.
The reserves described in clauses (a), (b), (c), (d) and (e) above
shall be subject to adjustment (and, in the case of clause (e), establishment)
by the Administrative Agent or the Majority Lenders in their discretion (not to
be exercised unreasonably) based on the results of collateral and borrowing base
evaluations and monitoring conducted by the Administrative Agent and its
designated representatives. Any such adjustment or the establishment of a
reserve pursuant to clause (e) by the Administrative Agent or the Majority
Lenders shall be made by written notice to the Borrower setting forth in
reasonable detail the basis for such adjustment or reserve, and shall become
effective for purposes of the first Borrowing Base Certificate that is delivered
pursuant to Section 5.09 at least five Business Days after the date of receipt
by the Borrower of such written notice.
"Adjusted Eligible Accounts Receivable" means, on any date, an amount
equal to (a) Eligible Accounts Receivable minus (b) the sum of, without
duplication, (i) the Dilution Reserve and (ii) the Accounts Receivable Reserves.
"Adjusted Eligible Finished Goods" means, on any date and with respect
to any division of the Borrower, an amount equal to (a) Eligible Finished Goods
relating to such division minus (b) the Inventory Reserves with respect to the
Eligible Inventory included in such Eligible Finished Goods minus (c) the
Additional Inventory Reserves with respect to the Eligible Inventory included in
such Eligible Finished Goods.
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/100 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means JPMCB, in its capacity as administrative
agent for the Lenders hereunder, and its successors in such capacity.
"Administrative Questionnaire" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Affiliate Transaction" has the meaning set forth in Section 6.05(a).
"Agents" means the Administrative Agent and the Collateral Agent.
4
"Alternate Base Rate" means, 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.
"Applicable Percentage" means, with respect to any Lender, the
percentage of the Total Commitment represented by such Lender's Commitment. If
the Commitments have been reduced to zero, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Applicable Rate" shall mean, for any day, with respect to (a) any
Loan or (b) the Commitments, the applicable rate per annum set forth under the
appropriate caption in the table below, in each case based upon the Reference
Availability (as defined below) then in effect, except (x) on or prior to the
date that is 270 days after the Restatement Date, the Applicable Rate for any
Loan shall be determined by reference to Category 1 and (y) that,
notwithstanding clause (x), if an Event of Default shall have occurred under
clause (a), (b), (h) or (i) of Section 7.01 or as a result of a breach of
Section 5.09(a) (for so long as a new Borrowing Base Certificate has not been
delivered), or 6.09 and shall then be continuing, the Applicable Rate shall be
determined by reference to Category 2 in the table below:
EURODOLLAR ABR
REFERENCE AVAILABILITY: SPREAD SPREAD COMMITMENT FEE
----------------------- ---------- ------ --------------
CATEGORY 1
>$400,000,000 1.250% 0.250% 0.375%
CATEGORY 2
< or =$400,000,000 1.500% 0.500% 0.250%
The "Reference Availability" for each day shall be the amount determined by the
Administrative Agent as of the second Business Day (the "Applicable Delivery
Date") following the then most recent delivery of a Borrowing Base Certificate
to be the average of the Available Commitments as of the end of each of the 30
consecutive days immediately preceding the Applicable Delivery Date. Solely for
purposes of determining the Reference Availability, Available Cash for any day
during any applicable period shall be the Available Cash specified on the most
recent certificate delivered under Section 5.09(a) or (b) specifying Available
Cash.
5
"Approved Fund" means (a) with respect to any Lender, a CLO managed by
such Lender or by an Affiliate of such Lender and (b) with respect to any Lender
that is a fund which invests in bank loans and similar extensions of credit, any
other fund that invests in bank loans and similar extensions of credit and is
managed by the same investment advisor as such Lender or by an Affiliate of such
investment advisor.
"Arrangers" means ▇.▇. ▇▇▇▇▇▇ Securities Inc., as Joint Lead Arranger
and Joint Bookrunner, and Citigroup Global Markets Inc., as Joint Lead Arranger
and Joint Bookrunner, for the credit facilities established by this Agreement.
"Asset Disposition" means any sale, lease, transfer or other
disposition (or series of sales, leases, transfers or dispositions that are part
of a common plan) by the Borrower or any Restricted Subsidiary, including any
disposition by means of a merger, consolidation or similar transaction (each
referred to for the purposes of this definition as a "disposition"), of:
(a) any shares of Capital Stock of a Restricted Subsidiary (other than
directors' qualifying shares or shares required by applicable law to be
held by a Person other than the Borrower or a Restricted Subsidiary);
(b) all or substantially all the assets of any division or line of
business of the Borrower or any Restricted Subsidiary; or
(c) any other assets of the Borrower or any Restricted Subsidiary
outside of the ordinary course of business of the Borrower or such
Restricted Subsidiary;
other than, in the case of clauses (a), (b) and (c) above,
(1) a disposition by a Restricted Subsidiary to the Borrower or
by the Borrower or a Restricted Subsidiary to a Restricted Subsidiary;
(2) for purposes of Section 6.04 only, a disposition subject to
Section 6.02;
(3) a disposition of assets with a Fair Market Value of less than
$10,000,000;
(4) a sale of accounts receivable and related assets of the type
specified in the definition of "Qualified Receivables Transaction" to
a Receivables Entity;
(5) a transfer of accounts receivable and related assets of the
type specified in the definition of "Qualified Receivables
Transaction" (or a fractional undivided interest therein) by a
Receivables Entity in a Qualified Receivables Transaction; and
(6) any Specified Asset Sale.
6
"Assignment and Assumption" means an assignment and assumption entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in the form
of Exhibit D or any other form approved by the Administrative Agent.
"Attributable Debt" means, with respect to any Sale/Leaseback
Transaction that does not result in a Capitalized Lease Obligation, the present
value (computed in accordance with GAAP) of the total obligations of the lessee
for rental payments during the remaining term of the lease included in such
Sale/Leaseback Transaction (including any period for which such lease has been
extended). In the case of any lease which is terminable by the lessee upon
payment of a penalty, the Attributable Debt shall be the lesser of (i) the
Attributable Debt determined assuming termination upon the first date such lease
may be terminated (in which case the Attributable Debt shall also include the
amount of the penalty, but no rent shall be considered as required to be paid
under such lease subsequent to the first date upon which it may be so
terminated) and (ii) the Attributable Debt determined assuming no such
termination.
"Availability Period" means the period from and including the
Restatement Date to but excluding the earlier of (a) the Commitment Termination
Date and (b) any other date on which the Commitments have been reduced to zero.
"Available Cash" means, with respect to any date, the aggregate amount
of cash and Temporary Cash Investments held on such date by the Borrower and the
Subsidiary Guarantors, other than cash and Temporary Cash Investments (a) held
in accounts outside the United States of America or (b) to the extent subject to
any Lien (other than Liens permitted pursuant to Section 6.06(t)) securing
Indebtedness or other obligations or to any other restriction on availability.
"Available Commitments" means, at the time of any determination, an
amount equal to Available Cash plus the difference between (a) the lesser of (i)
the Borrowing Base and (ii) the aggregate amount of the Commitments in effect at
such time minus (b) the aggregate amount of the Credit Exposures at such time.
"Average Life" means, as of the date of determination, with respect to
any Indebtedness or Preferred Stock, the quotient obtained by dividing (a) the
sum of the products of the number of years from the date of determination to the
dates of each successive scheduled principal payment of such Indebtedness or
scheduled redemption or similar payment with respect to such Preferred Stock
multiplied by the amount of such payment by (b) the sum of all such payments.
"Bank Indebtedness" means all obligations under the U.S. Bank
Indebtedness and European Bank Indebtedness.
"Board" means the Board of Governors of the Federal Reserve System of
the United States of America.
7
"Board of Directors" means the board of directors of the Borrower or
any committee thereof duly authorized to act on behalf of the board of directors
of the Borrower.
"Borrower" means The Goodyear Tire & Rubber Company, an Ohio
corporation.
"Borrowing" means Loans of the same Type made, converted or continued
on the same date and, in the case of Eurodollar Loans, as to which a single
Interest Period is in effect.
"Borrowing Base" means, at the time of any determination, an amount
equal to the sum of, without duplication, (a) 85% of Adjusted Eligible Accounts
Receivable and (b) (i) if the Effective Advance Rate is equal to or greater than
the percentage equal to 85% of the Recovery Rate, 85% multiplied by the Recovery
Rate multiplied by the Inventory Value of all Inventory of the Borrower and each
other Grantor or (ii) if the Effective Advance Rate is less than the percentage
equal to 85% of the Recovery Rate, (A) the sum of (x) 40% of Eligible Raw
Materials plus (y) 70% of Adjusted Eligible Finished Goods relating to the North
American Tire Division, the Retail Division, the Engineered Products Division
and Wingfoot, respectively, plus (z) 40% of Eligible Work in Process minus (B)
the Rent Reserve, minus (C) the Priority Payables Reserve (the amount in clause
(ii) collectively, the "Inventory Advance Amount"). The Borrowing Base at any
time shall be determined by reference to the most recent Borrowing Base
Certificate delivered to the Administrative Agent on the Restatement Date or
pursuant to Section 5.09, as applicable. Subject to the provisions of Section
9.02(b)(viii), standards of eligibility and reserves relating to the components
of the Borrowing Base may be revised and adjusted from time to time by the
Administrative Agent or the Majority Lenders in their discretion (not to be
exercised unreasonably) based on the results of collateral and borrowing base
evaluations and monitoring conducted by the Administrative Agent and its
designated representatives. Any such revision or adjustment by the
Administrative Agent or the Majority Lenders shall be made by written notice to
the Borrower setting forth in reasonable detail the basis for such revision or
adjustment, and shall become effective for purposes of the first Borrowing Base
Certificate that is delivered pursuant to Section 5.09 at least five Business
Days after the date of receipt by the Borrower of such written notice.
"Borrowing Base Availability" means, at the time of any determination,
an amount equal to the lesser of the Borrowing Base at such time and the
aggregate amount of the Commitments at such time.
"Borrowing Base Certificate" means a certificate substantially in the
form of Exhibit F hereto (with such changes therein as may be reasonably
requested by the Administrative Agent from time to time to reflect the
components of and reserves against the Borrowing Base as provided for hereunder
from time to time), executed and certified on behalf of the Borrower as accurate
and complete in all material respects by a Financial Officer of the Borrower,
which shall include appropriate exhibits, schedules, supporting
8
documentation and additional reports as (a) outlined in Exhibit F hereto, (b)
reasonably requested by the Administrative Agent and (c) provided for in Section
5.09.
"Borrowing Request" means a request by the Borrower for a Borrowing in
accordance with Section 2.02 in substantially the form of Exhibit A hereto.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to remain closed; provided 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 in the London interbank market.
"Canadian Benefit Plans" means all material employee benefit plans of
any nature or kind whatsoever that are not Canadian Pension Plans and are
maintained or contributed to by any Credit Party having employees in Canada.
"Canadian Dollars" refers to lawful money of Canada.
"Canadian Pension Plans" means each plan which is a registered pension
plan within the meaning of the Income Tax Act (Canada).
"Canadian Security Agreements" has the meaning assigned to such term
in the Guarantee and Collateral Agreement.
"Capitalized Lease Obligations" means an obligation that is required
to be classified and accounted for as a capitalized lease for financial
reporting purposes in accordance with GAAP, and the amount of Indebtedness
represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with GAAP.
"Capital Stock" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including any Preferred
Stock, but excluding any debt securities convertible into such entity.
"Change in Control" means (a) 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, as amended, and the rules of the
United States Securities and Exchange Commission thereunder as in effect on the
date hereof), of Capital Stock representing more than 50% of the aggregate
ordinary voting power represented by the issued and outstanding Capital Stock of
the Borrower; or (b) occupation of a majority of the seats (other than vacant
seats) on the board of directors of the Borrower by Persons who were neither (i)
directors on the date hereof or nominated by the board of directors of the
Borrower nor (ii) appointed by directors so nominated.
"Change in Law" means (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
9
Agreement or (c) compliance by any Lender or any Issuing Bank (or, for purposes
of Section 2.12(b), by any lending office of such Lender or by such Lender's or
such Issuing Bank'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.
"CLO" means any entity (whether a corporation, partnership, trust or
otherwise) that is engaged in making, purchasing, holding or otherwise investing
in bank loans and similar extensions of credit in the ordinary course and is
administered or managed by a Lender or an Affiliate of such Lender.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Collateral" means all the assets and rights that secure any of the
Obligations pursuant to the Security Documents.
"Collateral Agent" means JPMCB, in its capacity as collateral agent
for the Lenders under the Guarantee and Collateral Agreement and the other
Security Documents.
"Commitment" means, with respect to each Lender, the commitment of
such Lender to make Loans and to acquire participations in Letters of Credit
hereunder, expressed as an amount representing the maximum permitted aggregate
amount of such Lender's Credit Exposure hereunder, as such commitment may be (a)
reduced from time to time pursuant to Section 2.06 or increased from time to
time pursuant to Section 9.02(c) and (b) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section 9.04. The
initial amount of each Lender's Commitment is set forth on Schedule 2.01 or in
the Assignment and Assumption pursuant to which such Lender shall have assumed
its Commitment, as applicable. The initial aggregate amount of the Lenders'
Commitments is $1,500,000,000.
"Commitment Termination Date" means April 30, 2013.
"Consent Subsidiary" means (a) any Subsidiary listed on Schedule 1.01A
and (b) any Subsidiary not on Schedule 1.01A or formed or acquired after the
Restatement Date, in respect of which (A) the consent of any Person other than
the Borrower or any Wholly Owned Subsidiary is required by applicable law or the
terms of any organizational document of such Subsidiary or other agreement of
such Subsidiary or any Affiliate of such Subsidiary in order for such Subsidiary
to execute the Guarantee and Collateral Agreement as a Grantor or a Subsidiary
Guarantor and perform its obligations thereunder, or in order for Capital Stock
of such Subsidiary to be pledged under the Security Documents, as the case may
be, and (B) the Borrower endeavored in good faith to obtain such consents, and
such consents shall not have been obtained. Notwithstanding the foregoing, no
Subsidiary shall be a Consent Subsidiary at any time that it is a guarantor of,
or has provided any collateral to secure, Indebtedness for borrowed money of the
Borrower, and any Consent Subsidiary (including a Consent
10
Subsidiary listed in Schedule 1.01A) that at any time ceases to meet the test
set forth in clause (A) shall cease to be a Consent Subsidiary. No Subsidiary
shall be a Consent Subsidiary if it is a Guarantor or a Grantor under the Second
Lien Guarantee and Collateral Agreement or the Third Lien Collateral Agreement,
a US Guarantor under the European Guarantee and Collateral Agreement or a
Subsidiary Guarantor or Grantor Subsidiary Guarantor under the Junior Lien
Indenture or the 2006 Indenture.
"Consolidated Coverage Ratio" as of any date of determination means
the ratio of:
(1) the aggregate amount of EBITDA for the period of the most
recent four consecutive fiscal quarters ending prior to the date of
such determination for which financial statements have been filed with
the SEC to
(2) Consolidated Interest Expense for such four fiscal quarters;
provided, however, that:
(A) if the Borrower or any Restricted Subsidiary has
Incurred any Indebtedness since the beginning of such period that
remains outstanding on such date of determination or if the
transaction giving rise to the need to calculate the Consolidated
Coverage Ratio is an Incurrence of Indebtedness, EBITDA and
Consolidated Interest Expense for such period shall be calculated
after giving effect on a pro forma basis to such Indebtedness as
if such Indebtedness had been Incurred on the first day of such
period and the discharge of any other Indebtedness repaid,
repurchased, defeased or otherwise discharged with the proceeds
of such new Indebtedness as if such discharge had occurred on the
first day of such period,
(B) if the Borrower or any Restricted Subsidiary has repaid,
repurchased, defeased or otherwise discharged any Indebtedness
since the beginning of such period or if any Indebtedness is to
be repaid, repurchased, defeased or otherwise discharged (in each
case other than Indebtedness Incurred under any revolving credit
facility unless such Indebtedness has been permanently repaid and
has not been replaced) on the date of the transaction giving rise
to the need to calculate the Consolidated Coverage Ratio, EBITDA
and Consolidated Interest Expense for such period shall be
calculated on a pro forma basis as if such discharge had occurred
on the first day of such period and as if the Borrower or such
Restricted Subsidiary had not earned the interest income actually
earned during such period in respect of cash or Temporary Cash
Investments used to repay, repurchase, defease or otherwise
discharge such Indebtedness,
11
(C) if since the beginning of such period the Borrower or
any Restricted Subsidiary shall have made any Asset Disposition,
the EBITDA for such period shall be reduced by an amount equal to
the EBITDA (if positive) directly attributable to the assets that
are the subject of such Asset Disposition for such period or
increased by an amount equal to the EBITDA (if negative) directly
attributable thereto for such period and Consolidated Interest
Expense for such period shall be reduced by an amount equal to
the Consolidated Interest Expense directly attributable to any
Indebtedness of the Borrower or any Restricted Subsidiary repaid,
repurchased, defeased or otherwise discharged with respect to the
Borrower and its Restricted Subsidiaries in connection with such
Asset Disposition for such period (or, if the Capital Stock of
any Restricted Subsidiary is sold, the Consolidated Interest
Expense for such period directly attributable to the Indebtedness
of such Restricted Subsidiary to the extent the Borrower and its
continuing Restricted Subsidiaries are no longer liable for such
Indebtedness after such sale),
(D) if since the beginning of such period the Borrower or
any Restricted Subsidiary (by merger or otherwise) shall have
made an Investment in any Restricted Subsidiary (or any Person
that becomes a Restricted Subsidiary) or an acquisition of
assets, including any acquisition of assets occurring in
connection with a transaction causing a calculation to be made
hereunder, which constitutes all or substantially all of an
operating unit, division or line of a business, EBITDA and
Consolidated Interest Expense for such period shall be calculated
after giving pro forma effect thereto (including the Incurrence
of any Indebtedness) as if such Investment or acquisition
occurred on the first day of such period, and
(E) if since the beginning of such period any Person that
subsequently became a Restricted Subsidiary or was merged with or
into the Borrower or any Restricted Subsidiary since the
beginning of such period shall have made any Asset Disposition or
any Investment or acquisition of assets that would have required
an adjustment pursuant to clause (C) or (D) above if made by the
Borrower or a Restricted Subsidiary during such period, EBITDA
and Consolidated Interest Expense for such period shall be
calculated after giving pro forma effect thereto as if such Asset
Disposition, Investment or acquisition of assets occurred on the
first day of such period.
For purposes of this definition, whenever pro forma effect is to be
given to an acquisition of assets, Asset Disposition or other Investment, the
amount of income, EBITDA or earnings relating thereto and the amount of
Consolidated Interest Expense associated with any Indebtedness Incurred in
connection therewith, the pro forma calculations shall be determined in good
faith by a responsible Financial Officer of the
12
Borrower and shall comply with the requirements of Rule 11-02 of Regulation S-X,
as it may be amended or replaced from time to time, promulgated by the SEC.
If any Indebtedness bears a floating rate of interest and is being
given pro forma effect, the interest expense on such Indebtedness shall be
calculated as if the rate in effect on the date of determination had been the
applicable rate for the entire period (taking into account any Interest Rate
Agreement applicable to such Indebtedness if such Interest Rate Agreement has a
remaining term as at the date of determination in excess of 12 months). If any
Indebtedness is Incurred or repaid under a revolving credit facility and is
being given pro forma effect, the interest on such Indebtedness shall be
calculated based on the average daily balance of such Indebtedness for the four
fiscal quarters subject to the pro forma calculation.
"Consolidated Interest Expense" means, for any period, the total
interest expense of the Borrower and its Consolidated Restricted Subsidiaries,
plus, to the extent Incurred by the Borrower and its Consolidated Restricted
Subsidiaries in such period but not included in such interest expense, without
duplication:
(1) interest expense attributable to Capitalized Lease
Obligations and the interest expense attributable to leases
constituting part of a Sale/Leaseback Transaction that does not result
in a Capitalized Lease Obligation;
(2) amortization of debt discount and debt issuance costs;
(3) capitalized interest;
(4) noncash interest expense;
(5) commissions, discounts and other fees and charges
attributable to letters of credit and bankers' acceptance financing,
(6) interest accruing on any Indebtedness of any other Person to
the extent such Indebtedness is Guaranteed by (or secured by the
assets of) the Borrower or any Restricted Subsidiary and such
Indebtedness is in default under its terms or any payment is actually
made in respect of such Guarantee;
(7) net payments made pursuant to Hedging Obligations (including
amortization of fees);
(8) dividends paid in cash or Disqualified Stock in respect of
(A) all Preferred Stock of Restricted Subsidiaries and (B) all
Disqualified Stock of the Borrower, in each case held by Persons other
than the Borrower or a Restricted Subsidiary;
(9) interest Incurred in connection with investments in
discontinued operations; and
13
(10) the cash contributions to any employee stock ownership plan
or similar trust to the extent such contributions are used by such
plan or trust to pay interest or fees to any Person (other than the
Borrower) in connection with Indebtedness Incurred by such plan or
trust;
and less, to the extent included in such total interest expense, (A) any
breakage costs of Hedging Obligations terminated in connection with the
Incurrence of Indebtedness on the 2006 Indenture Closing Date and the
application of the net proceeds therefrom and (B) the amortization during such
period of capitalized financing costs; provided, however, that for any financing
consummated after the Restatement Date, the aggregate amount of amortization
relating to any such capitalized financing costs deducted in calculating
Consolidated Interest Expense shall not exceed 5% of the aggregate amount of the
financing giving rise to such capitalized financing costs.
"Consolidated Net Income" means, for any period, the net income of the
Borrower and its Consolidated Subsidiaries for such period; provided, however,
that there shall not be included in such Consolidated Net Income:
(a) any net income of any Person (other than the Borrower) if such
Person is not a Restricted Subsidiary, except that:
(1) subject to the limitations contained in clause (d) below, the
Borrower's equity in the net income of any such Person for such period
shall be included in such Consolidated Net Income up to the aggregate
amount of cash actually distributed by such Person during such period
to the Borrower or a Restricted Subsidiary as a dividend or other
distribution (subject, in the case of a dividend or other distribution
made to a Restricted Subsidiary, to the limitations contained in
clause (c) below);
(2) the Borrower's equity in a net loss of any such Person for
such period shall be included in determining such Consolidated Net
Income to the extent such loss has been funded with cash from the
Borrower or a Restricted Subsidiary;
(b) any net income (or loss) of any Person acquired by the Borrower or
a Subsidiary of the Borrower in a pooling of interests transaction for any
period prior to the date of such acquisition;
(c) any net income of any Restricted Subsidiary if such Restricted
Subsidiary is subject to restrictions on the payment of dividends or the
making of distributions by such Restricted Subsidiary, directly or
indirectly, to the Borrower (but, in the case of any Foreign Restricted
Subsidiary, only to the extent cash equal to such net income (or a portion
thereof) for such period is not readily procurable by the Borrower from
such Foreign Restricted Subsidiary (with the amount of cash readily
procurable from such Foreign Restricted Subsidiary being determined in good
faith by a Financial Officer of the Borrower) pursuant to intercompany
loans, repurchases of Capital Stock or otherwise), except that:
14
(1) subject to the limitations contained in clause (d) below, the
Borrower's equity in the net income of any such Restricted Subsidiary
for such period shall be included in such Consolidated Net Income up
to the aggregate amount of cash actually distributed by such
Restricted Subsidiary during such period to the Borrower or another
Restricted Subsidiary as a dividend or other distribution (subject, in
the case of a dividend or other distribution made to another
Restricted Subsidiary, to the limitation contained in this clause);
and
(2) the net loss of any such Restricted Subsidiary for such
period shall not be excluded in determining such Consolidated Net
Income;
(d) any gain (or loss) realized upon the sale or other disposition of
any asset of the Borrower or its Consolidated Subsidiaries (including
pursuant to any Sale/Leaseback Transaction) that is not sold or otherwise
disposed of in the ordinary course of business and any gain (or loss)
realized upon the sale or other disposition of any Capital Stock of any
Person;
(e) any extraordinary gain or loss;
(f) the effect of the 2006 strike, as disclosed in the Borrower's
filings with the SEC, which for purposes of determining Consolidated Net
Income shall be deemed to be (i) for the fiscal quarter ended December 31,
2006, a loss of operating income of $363,000,000, and (ii) for each fiscal
quarter thereafter, a loss of operating income in an amount determined by
the Borrower, provided that the aggregate amount of all such losses of
operating income for such fiscal quarters ended after December 31, 2006,
shall not exceed $250,000,000; and
(g) the cumulative effect of a change in accounting principles.
Notwithstanding the foregoing, for the purpose of Section 6.02 only,
there shall be excluded from Consolidated Net Income any dividends, repayments
of loans or advances or other transfers of assets from Unrestricted Subsidiaries
to the Borrower or a Restricted Subsidiary to the extent such dividends,
repayments or transfers increase the amount of Restricted Payments permitted
under Section 6.02(a)(3)(iv).
"Consolidated Revenue" means, for any period, the revenues for such
period, determined in accordance with GAAP, of the Borrower and the Subsidiaries
the accounts of which would be consolidated with those of the Borrower in the
Borrower's consolidated financial statements in accordance with GAAP.
"Consolidated Total Assets" means, at any date, the total assets,
determined in accordance with GAAP, of the Borrower and the Subsidiaries the
accounts of which would be consolidated with those of the Borrower in the
Borrower's consolidated financial statements in accordance with GAAP.
"Consolidation" means, unless the context otherwise requires, the
consolidation of (1) in the case of the Borrower, the accounts of each of the
Restricted
15
Subsidiaries with those of the Borrower and (2) in the case of a Restricted
Subsidiary, the accounts of each Subsidiary of such Restricted Subsidiary that
is a Restricted Subsidiary with those of such Restricted Subsidiary, in each
case in accordance with GAAP consistently applied; provided, however, that
"Consolidation" will not include consolidation of the accounts of any
Unrestricted Subsidiary, but the interest of the Borrower or any Restricted
Subsidiary in an Unrestricted Subsidiary will be accounted for as an investment.
The term "Consolidated" has a correlative meaning.
"Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Credit Documents" means this Agreement, the Issuing Bank Agreements,
any letter of credit applications referred to in Section 2.03(a), any promissory
notes delivered pursuant to Section 2.07(e), the Security Documents, the Lenders
Lien Subordination and Intercreditor Agreement and the Lien Subordination and
Intercreditor Agreement.
"Credit Exposure" means, with respect to any Lender at any time, the
sum of the outstanding principal amount of such Lender's Loans and such Lender's
LC Exposure at such time.
"Credit Facilities Agreements" means this Agreement, the Second Lien
Agreement and the European Facilities Agreement.
"Credit Party" means the Borrower, each Subsidiary Guarantor and each
Grantor.
"Currency Agreement" means with respect to any Person any foreign
exchange contract, currency swap agreement or other similar agreement or
arrangement to which such Person is a party or of which it is a beneficiary.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Designated Noncash Consideration" means noncash consideration
received by the Borrower or one of its Restricted Subsidiaries in connection
with an Asset Disposition that is designated by the Borrower as Designated
Noncash Consideration, less the amount of cash or cash equivalents received in
connection with a subsequent sale of such Designated Noncash Consideration,
which cash and cash equivalents shall be considered Net Available Cash received
as of such date and shall be applied pursuant to Section 6.04.
"Dilution Factors" means, with respect to any period, the aggregate
amount recorded (in a manner consistent with current and historical accounting
practices of the Borrower) to reduce Eligible Accounts Receivable on account of
deductions, credit
16
memos (net of related re-bills), returns, incorrect ▇▇▇▇▇▇▇▇, adjustments,
allowances, bad debt write-offs and other non-cash credits, in each case without
duplication of any amounts relating to reserves for volume rebates or cash
discounts or any other items that are included in the Accounts Receivable
Reserves for such period or excluded from the value of Eligible Accounts
Receivable pursuant to the definition thereof.
"Dilution Ratio" means, on any date, the amount (expressed as a
percentage) equal to (a) the aggregate amount of the applicable Dilution Factors
for the 12 most recently ended fiscal months divided by (b) total gross sales
for the 12 most recently ended fiscal months.
"Dilution Reserve" means, on any date, (a) the applicable Dilution
Ratio on such date minus 5% multiplied by (b) (i) Eligible Accounts Receivable
on such date minus (ii) the Accounts Receivable Reserves on such date.
"Disclosure Documents" means reports of the Borrower on Forms 10-K,
10-Q and 8-K, and any amendments thereto, that shall have been (i) filed with
the SEC on or prior to April 5, 2007, or (ii) filed with the SEC after such date
and prior to the Restatement Date and delivered to the Administrative Agent
prior to the date hereof.
"Disqualified Stock" means, with respect to any Person, any Capital
Stock which by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable or exercisable) or upon the
happening of any event:
(a) matures or is mandatorily redeemable pursuant to a sinking fund
obligation or otherwise;
(b) is convertible or exchangeable for Indebtedness or Disqualified
Stock (excluding Capital Stock convertible or exchangeable solely at the
option of the Borrower or a Restricted Subsidiary; provided, however, that
any such conversion or exchange shall be deemed an Incurrence of
Indebtedness or Disqualified Stock, as applicable); or
(c) is redeemable at the option of the holder thereof, in whole or in
part;
in the case of each of clauses (a), (b) and (c), on or prior to 180 days after
the Commitment Termination Date; provided, however, that any Capital Stock that
would not constitute Disqualified Stock but for provisions thereof giving
holders thereof the right to require such Person to repurchase or redeem such
Capital Stock upon the occurrence of an "asset sale" or "change of control"
occurring prior to the first anniversary of the Commitment Termination Date
shall not constitute Disqualified Stock if the "asset sale" or "change of
control" provisions applicable to such Capital Stock are not more favorable in
any material respect to the holders of such Capital Stock than the provisions of
Section 4.06 and Section 4.08 of the ▇▇▇▇ ▇▇▇▇▇▇▇▇▇; provided further, however,
that if such Capital Stock is issued to any employee or to any plan for the
benefit of employees of the Borrower or its Subsidiaries or by any such plan to
such employees, such Capital Stock shall not constitute Disqualified Stock
solely because it may be required to be repurchased by the Borrower in order to
satisfy applicable statutory
17
or regulatory obligations or as a result of such employee's termination, death
or disability.
The amount of any Disqualified Stock that does not have a fixed
redemption, repayment or repurchase price will be calculated in accordance with
the terms of such Disqualified Stock as if such Disqualified Stock were
redeemed, repaid or repurchased on any date on which the amount of such
Disqualified Stock is to be determined pursuant to this Agreement; provided,
however, that if such Disqualified Stock could not be required to be redeemed,
repaid or repurchased at the time of such determination, the redemption,
repayment or repurchase price will be the book value of such Disqualified Stock
as reflected in the most recent financial statements of such Person.
"Documentation Agent" means each of Bank of America, N.A., BNP
Paribas, The CIT Group/Business Credit, Inc., General Electric Capital
Corporation, GMAC Commercial Finance LLC and ▇▇▇▇▇ Fargo Foothill, in its
capacity as documentation agent hereunder.
"Dollar Equivalent" means, on any date of determination, (a) with
respect to any amount in dollars, such amount, and (b) with respect to any
amount in Canadian Dollars, Euros or Pounds Sterling, the equivalent in dollars
of such amount, determined by the Administrative Agent using the Exchange Rate
or the LC Exchange Rate, as applicable, with respect to Canadian Dollars, Euros
or Pounds Sterling, as the case may be, in effect for such amount on such date.
The Dollar Equivalent amount at any time of any Letter of Credit or LC
Disbursement denominated in Canadian Dollars, Euros or Pounds Sterling shall be
the amount most recently determined as provided in Section 1.03.
"dollars" or "$" refers to lawful money of the United States of
America.
"Domestic Subsidiary" means any Subsidiary that is not a Foreign
Subsidiary.
"EBITDA" means, for any period, the Consolidated Net Income for such
period, plus, without duplication, the following, to the extent deducted in
calculating such Consolidated Net Income:
(a) income tax expense of the Borrower and its Consolidated Restricted
Subsidiaries;
(b) Consolidated Interest Expense;
(c) depreciation expense of the Borrower and its Consolidated
Restricted Subsidiaries;
(d) amortization expense of the Borrower and its Consolidated
Restricted Subsidiaries (excluding amortization expense attributable to a
prepaid cash item that was paid in a prior period);
18
(e) cash restructuring charges; provided that the aggregate amount of
such cash restructuring charges incurred on or after the Restatement Date
that may be added back in determining EBITDA pursuant to this clause (e)
for all periods reported on during the term of this Agreement shall not
exceed $120,000,000; and
(f) all other noncash charges of the Borrower and its Consolidated
Restricted Subsidiaries (excluding any such noncash charge to the extent it
represents an accrual of or reserve for cash expenditures in any future
period) less all noncash items of income of the Borrower and its Restricted
Subsidiaries in each case for such period (other than normal accruals in
the ordinary course of business).
Notwithstanding the foregoing, the provision for taxes based on the income or
profits of, and the depreciation and amortization and noncash charges of, a
Restricted Subsidiary of the Borrower shall be added to Consolidated Net Income
to compute EBITDA only to the extent (and in the same proportion) that the net
income of such Restricted Subsidiary was included in calculating Consolidated
Net Income and only if (A) a corresponding amount would be permitted at the date
of determination to be dividended to the Borrower by such Restricted Subsidiary
without prior approval (that has not been obtained), pursuant to the terms of
its charter and all agreements, instruments, judgments, decrees, orders,
statutes, rules and governmental regulations applicable to such Restricted
Subsidiary or its shareholders or (B) in the case of any Foreign Restricted
Subsidiary, a corresponding amount of cash is readily procurable by the Borrower
from such Foreign Restricted Subsidiary (as determined in good faith by a
Financial Officer of the Borrower) pursuant to intercompany loans, repurchases
of Capital Stock or otherwise, provided that to the extent cash of such Foreign
Restricted Subsidiary provided the basis for including the net income of such
Foreign Subsidiary in Consolidated Net Income pursuant to clause (c) of the
definition of "Consolidated Net Income," such cash shall not be taken into
account for the purposes of determining readily procurable cash under this
clause (B).
"EEMEA Subsidiary" means a Subsidiary (other than any Subsidiary of
the European JV) organized under the laws of any jurisdiction in Africa, Eastern
Europe (including each of Albania, Belarus, Bosnia and Herzegovina, Bulgaria,
Croatia, Czech Republic, Estonia, Hungary, Latvia, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ and Montenegro, Slovakia, Slovenia, and
Ukraine) and the Middle East (including each of Bahrain, Egypt, Iran, Iraq,
Israel, Jordan, Kuwait, Lebanon, Palestine, Oman, Qatar, Saudi Arabia, Syria,
Turkey, the United Arab Emirates, and Yemen).
"Effective Advance Rate" means, on any date, the percentage equal to
the Inventory Advance Amount (as defined in the definition of "Borrowing Base")
on such date divided by the Inventory Value of all Inventory of the Borrower and
each other Grantor on such date.
"Effective Date" means April 8, 2005.
"Eligible Accounts Receivable" means, at the time of any
determination, each Account that satisfies the following criteria at the time of
such determination: such
19
Account (a) has been invoiced to, and represents the bona fide amounts due to
the Borrower or another Grantor from, the purchaser of goods or services, in
each case originated in the ordinary course of business of the Borrower or such
Grantor and (b) is not ineligible for inclusion in the calculation of the
Borrowing Base pursuant to any of clauses (i) through (xxii) below or otherwise
deemed by the Administrative Agent or the Majority Lenders in their discretion
(not to be exercised unreasonably) to be ineligible for inclusion in the
calculation of the Borrowing Base based on the results of collateral and
borrowing base evaluations and monitoring conducted by the Administrative Agent
and its designated representatives; any such decision by the Administrative
Agent or the Majority Lenders shall be made by written notice to the Borrower
setting forth in reasonable detail the basis for such decision, and shall become
effective for purposes of the first Borrowing Base Certificate that is delivered
pursuant to Section 5.09 at least five Business Days after the date of receipt
by the Borrower of such written notice. Without limiting the generality of the
foregoing, to qualify as Eligible Accounts Receivable an Account shall indicate
no Person other than the Borrower or another Grantor 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 the Borrower or
another Grantor could reasonably be expected to be obligated to rebate to a
customer pursuant to the terms of any agreement or understanding (written or
oral)), in each case without duplication of any amounts that are included in the
Accounts Receivable Reserves or the Dilution Factors for such period, (b) the
aggregate amount of all limits and deductions provided for in this definition
and (c) the aggregate amount of all cash received in respect of such Account but
not yet applied by the Borrower or another Grantor to reduce the amount of such
Account. Standards of eligibility may be fixed from time to time by the
Administrative Agent or the Majority Lenders in their discretion (not to be
exercised unreasonably) based on the results of collateral and borrowing base
evaluations and monitoring conducted by the Administrative Agent and its
designated representatives. Any changes to such standards by the Administrative
Agent or the Majority Lenders shall be made by written notice to the Borrower
setting forth in reasonable detail the basis for such change, and shall become
effective for purposes of the first Borrowing Base Certificate that is delivered
pursuant to Section 5.09 at least five Business Days after the date of receipt
by the Borrower of such written notice. Unless otherwise approved from time to
time in writing by the Administrative Agent, an Account shall not be an Eligible
Account Receivable (or, in the case of clauses (vii) and (xv) below, the
affected portion of such Account shall be deemed not to be an Eligible Account
Receivable) if, without duplication:
(i) the Borrower or another Grantor does not have good and valid title
to such Account; or
(ii) such Account (x) is unpaid more than 60 days from the original
due date or (y) has been written off the books of the Borrower or another
Grantor or has been otherwise designated on such books as uncollectible; or
20
(iii) more than 50% in face amount of all Accounts of the same Account
Debtor (x) are unpaid more than 60 days from the original due date or (y)
have been written off the books of the Borrower or another Grantor or have
been otherwise designated on such books as uncollectible; or
(iv) the Account Debtor is insolvent or the subject of any bankruptcy
case or insolvency proceeding of any kind; or
(v) such Account is not payable in dollars and/or Canadian Dollars,
the Account Debtor is not located (or, for purposes of the Quebec Civil
Code, if applicable, its principal place of business or domicile is not
located) inside the United States or Canada, the Account Debtor does not
have significant assets inside the United States or Canada or the
enforceability of such Account is not governed by the laws of the United
States or Canada or any of their respective states, provinces, territories
or possessions or any political subdivision of any thereof; or
(vi) the Account Debtor is the United States of America or Canada or
any department, agency or instrumentality thereof, unless the Borrower or
the other applicable Grantor duly assigns its rights to payment of such
Account to the Administrative Agent pursuant to the Assignment of Claims
Act of 1940, as amended, or the Financial Administration Act (Canada), as
amended, as applicable, which assignment and related documents and filings
shall be in form and substance satisfactory to the Administrative Agent; or
(vii) to the extent of any security deposit, progress payment,
retainage or other similar advance made by or for the benefit of the
applicable Account Debtor to which such Account is subject; or
(viii) such Account (x) is not subject to a valid and perfected first
priority Lien in favor of the Administrative Agent for the benefit of the
Secured Parties to the extent that such a Lien may be perfected by filing
UCC financing statements or making such other personal property security
filings or registrations as may be required under the laws of the
applicable jurisdiction in which such Account Debtor is located or has its
principal place of business or domicile (for the purposes of the Quebec
Civil Code, if applicable), subject to no other Liens other than Permitted
Encumbrances or (y) does not otherwise conform in all material respects to
the applicable representations and warranties contained in the Credit
Documents; or
(ix) (x) such Account was invoiced or payment was received thereon (A)
in advance of goods or services provided or (B) more than once or (y) the
associated income has not been earned; or
(x) such Account is a note receivable or non-trade Account or relates
to payments for rent or interest; or
21
(xi) the sale to the Account Debtor is on a ▇▇▇▇-and-hold, sale on
approval or consignment (it being understood and agreed that an Account
that arises in connection with a sale of such goods by the consignee
thereof shall not be deemed to be ineligible by reason of this clause (xi))
or other similar basis or made pursuant to any other agreement (other than
an ordinary course customer warranty) providing for repurchases or return
of any merchandise which has been claimed to be defective or otherwise
unsatisfactory; or
(xii) the goods giving rise to such Account have not been shipped and
title has not been transferred to the Account Debtor or such Account
represents a progress-billing; 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 Borrower's or the other applicable
Grantor's completion of any further performance under such contract or
agreement; or
(xiii) such Account arises out of a sale made by the Borrower or
another Grantor to an Affiliate (other than an Eligible Affiliate) of the
Borrower or such Grantor; or
(xiv) such Account was created by the Borrower or another Grantor as a
new receivable for the unpaid portion of an outstanding Account; or
(xv) the Account Debtor (x) is a creditor, (y) has or has asserted a
right of set-off against the Borrower or another Grantor with respect to
such Account (unless such Account Debtor has entered into a written
agreement reasonably acceptable to the Administrative Agent to waive such
set-off rights) or (z) has disputed its liability (whether by chargeback,
dispute or otherwise) or made any asserted or unasserted claim with respect
to such Account or any other Account of the Borrower or such other Grantor
(as applicable) which has not been resolved, in each case, without
duplication, to the extent of the amount owed by the Borrower or such other
Grantor (as applicable) to the Account Debtor, the amount of such actual or
asserted right of set-off or the amount of such dispute or claim, as the
case may be; or
(xvi) such Account does not comply in all material respects with the
requirements of all applicable laws and regulations, whether Federal,
State, provincial, territorial or local, including the Federal Consumer
Credit Protection Act, the Federal Truth in Lending Act and Regulation Z of
the Board and applicable Canadian provincial consumer protection/cost of
credit disclosure legislation; or
(xvii) such Account is for goods that 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
the Borrower or another Grantor has or has had or has purported to have or
have had an ownership interest in such goods and in the Account resulting
from the sale of such goods; or
22
(xviii) such Account is an extended terms account, which is not due
and payable within 180 days from the original date of invoice; or
(xix) such Account is created on cash on delivery terms or is payment
for freight claims; or
(xx) to the extent that such Account has been reclassified, as a
result of a workout or other similar situation relating to the credit
worthiness of the applicable Account Debtor, from an account receivable to
a note receivable; or
(xxi) the Account Debtor has not been instructed by the Borrower or
any of the other Grantors to pay such Account directly into a Lockbox
Deposit Account in the Lockbox System; or
(xxii) such Account relates to the Retail Division, unless such
Account meets certain criteria and is deemed eligible by the Administrative
Agent in its sole discretion.
Notwithstanding the foregoing, at the time of any determination of
Eligible Accounts Receivable, an amount equal to all Eligible Accounts
Receivable of any single Account Debtor and its Affiliates which in the
aggregate exceed (a) 20% in respect of an Account Debtor that is rated
Investment Grade by either ▇▇▇▇▇'▇ or Standard & Poor's or (b) 12% (15% in the
case of the company identified on Schedule 1.01D) in respect of any other
Account Debtor, in each case of the total amount of all Eligible Accounts
Receivable at such time of determination shall be deemed not to be Eligible
Accounts Receivable to the extent of such excess. In determining the aggregate
amount of Accounts from all Account Debtors that are unpaid more than 60 days
from the due date pursuant to clause (ii) above, any net credit balances
relating to Accounts of any Account Debtor that are unpaid for more than 60 days
from the due date shall not be included, to the extent such net credit balances
do not exceed the total Accounts (excluding any Accounts that are included in
the calculation of such net credit balances) that are unpaid from such Account
Debtor.
"Eligible Affiliate" means any Affiliate of the Borrower, provided
that (a) the Borrower or any of its other Affiliates does not Control such
Affiliate, (b) the Borrower and the Subsidiaries do not own, control or hold,
directly or indirectly, individually or in the aggregate, Capital Stock of such
Affiliate representing 50% or more of the equity or 50% or more of the voting
power or, in the case of a partnership, 50% or more of the general partnership
interests of such Affiliate, (c) the accounts of such Affiliate are not
consolidated with those of the Borrower in the Borrower's consolidated financial
statements (and are not required to be so consolidated in accordance with GAAP),
(d) each Account due to the Borrower or another Grantor from such Affiliate
requires payment for the goods sold or leased or the services rendered to such
Affiliate in cash and on terms that are no less favorable to the Borrower or
such Grantor, as the case may be, than those that could be obtained at such time
in arm's-length dealings with a Person who is not such an Affiliate and (e) such
Affiliate meets any other eligibility standard or requirement that is imposed by
the Administrative Agent or the Majority
23
Lenders in their discretion (not to be exercised unreasonably) based on the
results of collateral and borrowing base evaluations and monitoring conducted by
the Administrative Agent and its designated representatives; any changes to such
standards or requirements or the imposition of any additional standard or
requirement by the Administrative Agent or the Majority Lenders shall be made by
written notice to the Borrower setting forth in reasonable detail the basis for
such change or addition, and shall become effective for purposes of the first
Borrowing Base Certificate that is delivered pursuant to Section 5.09 at least
five Business Days after the date of receipt by the Borrower of such written
notice.
"Eligible Finished Goods" means, on any date, the Inventory Value of
all Eligible Inventory of the Borrower and each other Grantor defined as
Finished Goods by the Borrower on such date as shown on the Borrower's perpetual
inventory records in accordance with its current and historical accounting
practices.
"Eligible Inventory" means, at the time of any determination thereof,
without duplication, the Inventory Value of the Inventory of the Borrower and
each other Grantor at the time of such determination that is not ineligible for
inclusion in the calculation of the Borrowing Base pursuant to any of clauses
(a) through (n) below or otherwise deemed by the Administrative Agent or the
Majority Lenders in their discretion (not to be exercised unreasonably) to be
ineligible for inclusion in the calculation of the Borrowing Base based on the
results of collateral and borrowing base evaluations and monitoring conducted by
the Administrative Agent and its designated representatives; any such decision
by the Administrative Agent or the Majority Lenders shall be made by written
notice to the Borrower setting forth in reasonable detail the basis for such
decision, and shall become effective for purposes of the first Borrowing Base
Certificate that is delivered pursuant to Section 5.09 at least five Business
Days after the date of receipt by the Borrower of such written notice. Without
limiting the generality of the foregoing, to qualify as "Eligible Inventory" no
Person other than the Borrower or another Grantor shall have any direct or
indirect ownership, interest or title to such Inventory and no Person other than
the Borrower or another Grantor shall be indicated on any purchase order or
invoice with respect to such Inventory as having or purporting to have an
interest therein. Unless otherwise approved from time to time in writing by the
Administrative Agent, no Inventory shall be deemed Eligible Inventory to the
extent that such Inventory is accounted for in the Borrower's perpetual
inventory balance and, without duplication:
(a) it is not owned solely by the Borrower or another Grantor or the
Borrower or another Grantor does not have good and valid title thereto; or
(b) it is not located in the United States or Canada; or
(c) it (i) is not either (x) located on a Permitted Inventory Location
or (y) in transit from a Permitted Inventory Location to another Permitted
Inventory Location or (ii) is located at a dormant facility that is no
longer operated by the Borrower or another Grantor; or
24
(d) it is (i) goods returned or rejected by the Borrower's or another
Grantor's customers and is not saleable in the ordinary course of business
of the Borrower or another Grantor, (ii) Inventory in transit on the water
via ship or other marine vessel to the Borrower or another Grantor (outside
the United States or Canada), (iii) goods in transit from the Borrower or
another Grantor to customers of the Borrower or another Grantor, or (iv)
Inventory in transit to the Borrower or another Grantor from a third party
vendor; or
(e) it is Inventory (other than Raw Materials or Work in Process) not
sold in the ordinary course of business of the Borrower or another Grantor,
including engineering stores, miscellaneous supplies, packaging or shipping
materials, cartons, repair parts, fuel, labels, miscellaneous spare parts,
samples, prototypes, displays or display items; or
(f) it is not subject to a valid and perfected first priority Lien in
favor of the Administrative Agent for the benefit of the Secured Parties to
the extent that such a Lien may be perfected by filing UCC financing
statements or such other personal property security filings or
registrations as may be required under the laws of the applicable
jurisdiction in which such Inventory is located, subject to no other Liens
other than Permitted Encumbrances; or
(g) it is Work in Process, other than steel cord, that will be
reclassified as Raw Material prior to becoming Finished Goods; or
(h) it is consigned or at a customer location (other than Inventory
consigned to original equipment manufacturers at no more than 20 locations
in total, each of which has Inventory of the Borrower and the other
Grantors with an Inventory Value in excess of $300,000 and with respect to
which an Access Agreement has been obtained); or
(i) it is (i) being processed offsite at a third party processor at
premises neither reflected in the Rent Reserve nor subject to a Lien Waiver
or (ii) in transit to or from any such third party processor; or
(j) it is classified by the Borrower or another Grantor as "obsolete",
"unmerchantable" or "off spec without a ready market", or does not
otherwise conform in all material respects to the applicable
representations and warranties contained in the Credit Documents; or
(k) it is marked for return by the Borrower or another Grantor to the
vendor of such Inventory; or
(l) it does not meet in all material respects all materials standards
imposed by any Governmental Authority having regulatory authority over it;
or
(m) it is classified by the Borrower or another Grantor as casings
used for the retreading of commercial truck tires; or
25
(n) it is classified by the Borrower or another Grantor as "shipped
but not billed".
"Eligible Raw Materials" means, on any date, the Inventory Value of
all Eligible Inventory of the Borrower and each Grantor defined as Raw Materials
on such date as shown on the Borrower's perpetual inventory records in
accordance with its current and historical accounting practices.
"Eligible Work in Process" means, on any date, the Inventory Value of
all Eligible Inventory of the Borrower and each Grantor defined as Work in
Process on such date as shown on the Borrower's perpetual inventory records in
accordance with its current and historical accounting practices.
"Engineered Products Division" means those standard business units of
the Borrower and the other Grantors classified as "Engineered Products Division"
on the Borrower's perpetual inventory records.
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the presence, the management or release of, or exposure to, any
Hazardous Materials or to health and safety matters.
"Environmental Liability" means all liabilities, obligations, damages,
losses, claims, actions, suits, judgments, orders, fines, penalties, fees,
expenses and costs (including administrative oversight costs, natural resource
damages and remediation costs), whether contingent or otherwise, arising out of
or relating to (a) compliance or non-compliance with 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 of any Hazardous Materials or (e) any contract, agreement or other
consensual arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower or any Subsidiary, 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" means (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder, with respect to any Plan
(other than an event for which the 30-day notice period is waived or an event
described in Section 4043.33 of Title 29 of the Code of Federal Regulations);
(b) the existence with respect to any Plan of an "accumulated funding
deficiency" (as defined in Section 412 of
26
the Code or Section 302 of ERISA) as to which a waiver has not been obtained;
(c) the incurrence by the Borrower, a Subsidiary or any ERISA Affiliate of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(d) the treatment of a Plan amendment as a termination under Section 4041 of
ERISA; (e) any event or condition, other than the Transactions, that would be
materially likely to result in the termination of, or the appointment of a
trustee to administer, any Plan or Multiemployer Plan under Section 4042 of
ERISA; (f) the receipt by the Borrower, a Subsidiary or any ERISA Affiliate from
the PBGC or a plan administrator of any notice of an intention to terminate any
Plan or to appoint a trustee to administer any Plan; (g) the incurrence by the
Borrower, any Subsidiary or any ERISA Affiliate of any liability under Title IV
of ERISA with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (h) the receipt by the Borrower, any Subsidiary or any
ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the
Borrower, any Subsidiary 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.
"Euro" or "E" means the lawful currency of the member states of the
European Union that have adopted a single currency in accordance with applicable
law or treaty.
"Euro Equivalent" means with respect to any monetary amount in a
currency other than Euros, at any time of determination thereof, the amount of
Euros obtained by converting such foreign currency involved in such computation
into Euros at the spot rate for the purchase of Euros with the applicable
foreign currency as published in The Wall Street Journal in the "Exchange Rates"
column under the heading "Currency Trading" on the date two Business Days prior
to such determination.
"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.
"European Bank Indebtedness" means any and all amounts payable under
or in respect of the European Facilities Agreement and any Refinancing
Indebtedness with respect thereto or with respect to such Refinancing
Indebtedness, as amended from time to time, including principal, premium (if
any), interest (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Borrower, whether
or not a claim for post-filing interest is allowed in such proceedings), fees,
charges, expenses, reimbursement obligations and all other amounts payable
thereunder or in respect thereof.
"European Facilities Agreement" means the Amended and Restated Term
Loan and Revolving Credit Agreement dated as of the date hereof, among the
European JV, the other borrowers thereunder, certain lenders, certain issuing
banks, ▇.▇. ▇▇▇▇▇▇ Europe Limited, as administrative agent, and JPMCB, as
collateral agent, as amended, restated, supplemented, waived, replaced (whether
or not upon termination, and whether with the original lenders or otherwise),
refinanced, restructured or otherwise modified
27
from time to time (except to the extent that any such amendment, restatement,
supplement, waiver, replacement, refinancing, restructuring or other
modification thereto would be prohibited by the terms of this Agreement, unless
otherwise agreed to by the Majority Lenders).
"European Guarantee and Collateral Agreement" means the amended and
restated Master Guarantee and Collateral Agreement among the Borrower, the
Subsidiaries party thereto and JPMCB, in its capacity as collateral agent under
the credit agreements described therein, dated as of April 8, 2005, as from time
to time amended, supplemented or otherwise modified (subject to any restrictions
on such amendments, supplements or modifications set forth herein).
"European JV" means Goodyear Dunlop Tires Europe B.V.
"Event of Default" has the meaning assigned to such term in Article
VII.
"Exchange Rate" means, on any day, with respect to Canadian Dollars,
Euros or Pounds Sterling in relation to dollars, the rate at which such currency
may be exchanged into dollars, as set forth at approximately 12:00 noon, New
York City time, on such day on the Reuters World Currency Page for Canadian
Dollars, Euros or Pounds Sterling, as applicable. In the event that any such
rate does not appear on the applicable Reuters World Currency Page, the Exchange
Rate shall be determined by reference to such other publicly available service
for displaying exchange rates as may be agreed upon by the Administrative Agent
and the Borrower or, in the absence of such agreement, such Exchange Rate shall
instead be the arithmetic average of the spot rates of exchange of the
Administrative Agent, at or about 11:00 a.m., New York City time, on such date
for the purchase of dollars with Canadian Dollars, Euros or Pounds Sterling, as
the case may be, for delivery two Business Days later; provided that if at the
time of any such determination, for any reason, no such spot rate is being
quoted, the Administrative Agent, after consultation with the Borrower, may use
any reasonable method it deems appropriate to determine such rate, and such
determination shall be conclusive absent manifest error.
"Excluded Subsidiary" means any Subsidiary with only nominal assets
and no operations. No Subsidiary shall be an Excluded Subsidiary if it is a
Guarantor or a Grantor under the Second Lien Guarantee and Collateral Agreement
or the Third Lien Collateral Agreement or a US Guarantor under the European
Guarantee and Collateral Agreement or a Subsidiary Guarantor or Grantor
Subsidiary Guarantor under the Junior Lien Indenture or the 2006 Indenture.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, any Issuing Bank or any other recipient of any payment to be made by or
on account of any obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States or by the
jurisdiction under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits taxes imposed by
the United States or any similar tax imposed by
28
any other jurisdiction described in clause (a) above and (c) (i) any withholding
tax that is imposed by the United States on amounts payable to a Foreign Lender
(other than an assignee pursuant to a request by the Borrower under Section
2.16(b)) at the time such Foreign Lender first becomes a party to this Agreement
(or designates a new lending office), except to the extent that such Foreign
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 2.14(a) or
(ii) any withholding tax that is imposed by the United States on amounts payable
to a Foreign Lender that is attributable to such Foreign Lender's failure to
comply with Section 2.14(e).
"Existing Credit Agreement" means the First Lien Credit Agreement
dated as of April 8, 2005, among the Borrower, the lenders party thereto, the
issuing banks party thereto, the documentation agents party thereto, Citicorp
USA, Inc., as syndication agent, and JPMCB, as administrative agent and
collateral agent.
"Existing Letters of Credit" means each letter of credit outstanding
as a "Letter of Credit" as of the Restatement Date under the Existing Credit
Agreement, each of which is set forth on Schedule 2.03.
"Fair Market Value" means, with respect to any asset or property, the
price which could be negotiated in an arm's-length, free market transaction, for
cash, between a willing seller and a willing and able buyer, neither of whom is
under undue pressure or compulsion to complete the transaction, as such price
is, unless specified otherwise in this Agreement, determined in good faith by a
Financial Officer of the Borrower or by the Board of Directors. Fair Market
Value (other than of any asset with a public trading market) of any asset or
property (or group of assets or property subject to an event giving rise to a
requirement under this Agreement that "Fair Market Value" be determined) in
excess of $25,000,000 shall be determined by the Board of Directors or a duly
authorized committee thereof.
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds 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.
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or any assistant treasurer of the Borrower, or any
senior vice president or higher ranking executive to whom any of the foregoing
report.
"Finished Goods" means completed goods that require no additional
processing or manufacturing to be sold by the Borrower or another Grantor in the
ordinary course of business.
29
"First Lien Agreement" means this Agreement, the Amended and Restated
First Lien Credit Agreement dated as of the date hereof, among the Borrower,
certain lenders, certain issuing banks, Citicorp USA, Inc., as syndication
agent, and JPMCB, as administrative agent, as amended, restated, supplemented,
waived, replaced (whether or not upon termination, and whether with the original
lenders or otherwise), refinanced, restructured or otherwise modified from time
to time.
"Foreign Lender" means any Lender that is organized under the laws of
a jurisdiction other than that in which the Borrower is located. For purposes of
this definition, the United States, each State thereof and the District of
Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Pledge Agreement" means a pledge agreement securing the
Obligations or any of them that is governed by the law of a jurisdiction other
than the United States and reasonably satisfactory in form and substance to the
Collateral Agent.
"Foreign Restricted Subsidiary" means any Restricted Subsidiary that
is not organized under the laws of the United States or any State thereof or the
District of Columbia, other than Goodyear Canada.
"Foreign Subsidiary" means any Subsidiary organized under the laws of
a jurisdiction other than the United States or any of its territories or
possessions or any political subdivision thereof.
"GAAP" means generally accepted accounting principles in the United
States.
"Goodyear Canada" means Goodyear Canada Inc., an Ontario corporation,
and its successors and permitted assigns.
"Governmental Authority" means the government of the United States,
Canada, any other nation or any political subdivision thereof, whether state,
provincial, territorial 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.
"Grantors" means the Borrower and each North American Subsidiary that
is, or is required pursuant to Section 5.08 to become, a Grantor (as defined in
the Guarantee and Collateral Agreement) and, if applicable, a party to any
Canadian Security Agreement.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness of any other Person
and any obligation, direct or indirect, contingent or otherwise, of such Person:
(1) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness of such other Person
(whether arising by virtue of partnership arrangements, or by
agreement to keep-well, to
30
purchase assets, goods, securities or services, to take-or-pay, or to
maintain financial statement conditions or otherwise) or
(2) entered into for purposes of assuring in any other manner the
obligee of such Indebtedness of the payment thereof or to protect such
obligee against loss in respect thereof (in whole or in part);
provided, however, that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning. The term "Guarantor" shall mean any
Person Guaranteeing any obligation.
"Guarantee and Collateral Agreement" means the Guarantee and
Collateral Agreement among the Borrower, the Subsidiary Guarantors, the
Grantors, certain other Subsidiaries and the Collateral Agent, dated as of April
8, 2005, as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein).
"Hazardous Materials" means (a) petroleum products and byproducts,
asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls, radon
gas, chlorofluorocarbons and all other ozone-depleting substances; and (b) any
pollutant or contaminant or any hazardous, toxic, radioactive or otherwise
regulated chemical, material, substance or waste that is prohibited, limited or
regulated pursuant to any applicable Environmental Law.
"Hedging Obligations" of any Person means the obligations of such
Person pursuant to any Interest Rate Agreement, Currency Agreement or raw
materials hedge agreement.
"Incur" means issue, assume, Guarantee, incur or otherwise become
liable for; provided, however, that any Indebtedness or Capital Stock of a
Person existing at the time such Person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be Incurred by such
Person at the time it becomes a Subsidiary. The term "Incurrence" when used as a
noun shall have a correlative meaning. The accretion of principal of a
non-interest bearing or other discount security shall not be deemed the
Incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person on any date of
determination, without duplication:
(1) the principal of and premium (if any) in respect of
indebtedness of such Person for borrowed money;
(2) the principal of and premium (if any) in respect of
obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments;
31
(3) all obligations of such Person for the reimbursement of any
obligor on any letter of credit, bankers' acceptance, bank guarantee
or similar credit transaction (other than obligations with respect to
letters of credit or bank guarantees securing obligations (other than
obligations described in clauses (1), (2) and (5)) entered into in the
ordinary course of business of such Person to the extent such letters
of credit or bank guarantees are not drawn upon or, if and to the
extent drawn upon, such drawing is reimbursed no later than the tenth
Business Day following payment on the letter of credit or bank
guarantee);
(4) all obligations of such Person to pay the deferred and unpaid
purchase price of property or services (except Trade Payables), which
purchase price is due more than six months after the date of placing
such property in service or taking delivery and title thereto or the
completion of such services;
(5) all Capitalized Lease Obligations and all Attributable Debt
of such Person;
(6) the amount of all obligations of such Person with respect to
the redemption, repayment or other repurchase of any Disqualified
Stock or, with respect to any Subsidiary of such Person, any Preferred
Stock (but excluding, in each case, any accrued and unpaid dividends);
(7) all Indebtedness of other Persons secured by a Lien on any
asset of such Person, whether or not such Indebtedness is assumed by
such Person; provided, however, that the amount of Indebtedness of
such Person shall be the lesser of:
(A) the Fair Market Value of such asset at such date of
determination and
(B) the amount of such Indebtedness of such other Persons;
(8) Hedging Obligations of such Person; and
(9) all obligations of the type referred to in clauses (1)
through (8) of other Persons for the payment of which such Person is
responsible or liable, directly or indirectly, as obligor, guarantor
or otherwise, including by means of any Guarantee.
Notwithstanding the foregoing, in connection with the purchase by the
Borrower or any Restricted Subsidiary of any business, the term "Indebtedness"
shall exclude post-closing payment adjustments to which the seller may become
entitled to the extent such payment is determined by a final closing balance
sheet or such payment depends on the performance of such business after the
closing; provided, however, that, at the time of closing, the amount of any such
payment is not determinable and, to the
32
extent such payment thereafter becomes fixed and determined, the amount is paid
within 30 days thereafter.
The amount of Indebtedness of any Person at any date shall be the
outstanding balance at such date of all unconditional obligations as described
above; provided, however, that in the case of Indebtedness sold at a discount,
the amount of such Indebtedness at any time will be the accreted value thereof
at such time.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitee" has the meaning set forth in Section 9.03.
"Information" has the meaning set forth in Section 9.12.
"Intellectual Property" has the meaning set forth in the Guarantee and
Collateral Agreement.
"Intercompany Items" means obligations owed by the Borrower or any
Subsidiary to the Borrower or any other Subsidiary.
"Interest Election Request" means a request by the Borrower to convert
or continue a Borrowing in accordance with Section 2.05 in substantially the
form of Exhibit B hereto.
"Interest Payment Date" means (a) with respect to any ABR Loan, the
last day of each March, June, September and December and (b) with respect to any
Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing
of which such Loan is a part and, in the case of a Eurodollar Borrowing with an
Interest Period of more than three months' duration, each day prior to the last
day of such Interest Period that occurs at intervals of three months' duration
after the first day of such Interest Period.
"Interest Period" means, with respect to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
thereafter or ending on the same day of the week that is one, two or three weeks
thereafter, as the Borrower may elect; provided that (i) if any Interest Period
would end on a day other than 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) any Interest Period
pertaining to a Eurodollar Borrowing that commences on the last Business Day of
a calendar month (or on a day for which there is no numerically corresponding
day in the last calendar month of such Interest Period) shall end on the last
Business Day of the last calendar month of such Interest Period. For purposes
hereof, the date of a Borrowing initially shall be the date on which such
Borrowing is made and, in the case of a Borrowing, thereafter shall be the
effective date of the most recent conversion or continuation of such Borrowing.
33
"Interest Rate Agreement" means, with respect to any Person, any
interest rate protection agreement, interest rate future agreement, interest
rate option agreement, interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedge agreement or
other similar agreement or arrangement to which such Person is a party or of
which it is a beneficiary.
"Inventory" has the meaning specified in the UCC.
"Inventory Reserves" means, on any date, an amount equal to the sum of
the following reserves maintained on the Borrower's general ledger (calculated
in each case in accordance with the current and historical accounting practices
of the Borrower) with respect to Eligible Inventory, without duplication of any
deductions made pursuant to the definitions of "Additional Inventory Reserves,"
"Eligible Inventory" and "Inventory Value":
(a) a reserve for Inventory that is damaged;
(b) a revaluation reserve to reflect capitalized manufacturing
variances whereby aggregate net variances (if favorable) shall be deducted
from Eligible Inventory and aggregate net variances (if unfavorable) shall
not be added to Eligible Inventory;
(c) a reserve equal to the aggregate Inventory Value of Eligible
Inventory attributable to intercompany or intracompany profit among the
Borrower and its Affiliates (other than Eligible Affiliates); and
(d) a lower of cost or market reserve for any differences between the
Borrower's actual cost to produce versus the Borrower's sale price to third
parties, determined on a product line basis.
"Inventory Value" means, with respect to any Inventory of the Borrower
or any other Grantor at the time of any determination thereof, an amount equal
to such Inventory carried on the perpetual inventory records of the Borrower
stated on a basis consistent with its current and historical accounting
practices, in dollars, determined in accordance with the standard cost method of
accounting, which shall be, in the case of Inventory imported by the Borrower or
another Grantor into the United States of America or Canada, the acquisition
cost thereof plus transportation and freight charges plus import duties.
"Investment" in any Person means any direct or indirect advance, loan
or other extension of credit (including by way of Guarantee or similar
arrangement) or capital contribution to (by means of any transfer of cash or
other property to others or any payment for property or services for the account
or use of others), or any purchase or acquisition of Capital Stock, Indebtedness
or other similar instruments issued by, such Person. For purposes of the
definition of "Unrestricted Subsidiary" and Section 6.02:
(1) "Investment" shall include the portion (proportionate to the
Borrower's equity interest in such Subsidiary) of the Fair Market
Value of
34
the net assets of any Subsidiary of the Borrower at the time that such
Subsidiary is designated an Unrestricted Subsidiary; provided,
however, that upon a redesignation of such Subsidiary as a Restricted
Subsidiary, the Borrower shall be deemed to continue to have a
permanent "Investment" in an Unrestricted Subsidiary in an amount (if
positive) equal to:
(A) the Borrower's "Investment" in such Subsidiary at the
time of such redesignation less
(B) the portion (proportionate to the Borrower's equity
interest in such Subsidiary) of the Fair Market Value of the net
assets of such Subsidiary at the time of such redesignation; and
(2) any property transferred to or from an Unrestricted
Subsidiary shall be valued at its Fair Market Value at the time of
such transfer.
In the event that the Borrower sells Capital Stock of a Restricted
Subsidiary such that after giving effect to such sale, such Restricted
Subsidiary would no longer constitute a Restricted Subsidiary, any Investment in
such Person remaining after giving effect to such sale shall be deemed to
constitute an Investment made on the date of such sale of Capital Stock.
"Investment Grade" means, in the case of ▇▇▇▇▇'▇, a credit rating of
Baa3 or better and, in the case of Standard & Poor's, a credit rating of BBB- or
better.
"Issuing Bank" means JPMCB, Bank of America, BNP Paribas, Citicorp
USA, Inc., Deutsche Bank AG, New York Branch, and any other financial
institution that has entered into an Issuing Bank Agreement, each in its
capacity as an issuer of Letters of Credit hereunder, and its successors in such
capacity as provided in Section 2.03(i). Each Issuing Bank may, in its
discretion, arrange for one or more Letters of Credit to be issued by Affiliates
or branches of such Issuing Bank, in which case the term "Issuing Bank" shall
include any such Affiliate or branch with respect to Letters of Credit issued by
such Affiliate or branch.
"Issuing Bank Agreement" means an agreement in form reasonably
satisfactory to the Borrower, the Administrative Agent and a financial
institution pursuant to which such financial institution agrees to act as an
Issuing Bank hereunder.
"JPMCB" means JPMorgan Chase Bank, N.A., and its successors.
"Junior Lien Indenture" means the Indenture dated as of March 12,
2004, among the Borrower, the subsidiary guarantors party thereto and ▇▇▇▇▇
Fargo Bank, N.A., as trustee.
"LC Commitment" means, as to any Issuing Bank, the maximum permitted
amount of the LC Exposure that may be attributable to Letters of Credit issued
by such Issuing Bank, as set forth in such Issuing Bank's Issuing Bank
Agreement.
35
"LC Disbursement" means a payment made by any Issuing Bank pursuant to
a Letter of Credit. The amount of any LC Disbursement made by an Issuing Bank in
Canadian Dollars, Euros or Pounds Sterling and not reimbursed by the Borrower
shall be determined as set forth in paragraph (e) or (l) of Section 2.03, as
applicable.
"LC Exchange Rate" means, on any day, with respect to dollars in
relation to Canadian Dollars, Euros or Pounds Sterling, the rate at which
dollars may be exchanged into such currency, as set forth at approximately 12:00
noon, New York City time, on such day on the applicable Reuters World Currency
Page. In the event that any such rate does not appear on the applicable Reuters
World Currency Page, the LC Exchange Rate shall be determined by reference to
such other publicly available service for displaying exchange rates as may be
agreed upon by the Administrative Agent and the Borrower or, in the absence of
such agreement, such LC Exchange Rate shall instead be the arithmetic average of
the spot rates of exchange of the Administrative Agent, at or about 11:00 a.m.,
New York City time, on such date for the purchase of Canadian Dollars, Euros or
Pounds Sterling, as the case may be, with dollars for delivery two Business Days
later; provided that if at the time of any such determination, for any reason,
no such spot rate is being quoted, the Administrative Agent, after consultation
with the Borrower, may use any reasonable method it deems appropriate to
determine such rate, and such determination shall be conclusive absent manifest
error.
"LC Exposure" means, at any time, the sum of (a) the aggregate amount
of the Dollar Equivalents of the undrawn amounts of all outstanding Letters of
Credit at such time plus (b) the aggregate amount of the Dollar Equivalents of
all LC Disbursements that have not yet been reimbursed by or on behalf of the
Borrower at such time (by the borrowing of Loans or otherwise). The LC Exposure
of any Lender at any time shall be its Applicable Percentage of the total LC
Exposure at such time.
"LC Participation Calculation Date" means, with respect to any LC
Disbursement made in a currency other than dollars, (a) the date on which the
Issuing Bank shall advise the Administrative Agent that it purchased with
dollars the currency used to make such LC Disbursement, or (b) if the Issuing
Bank shall not advise the Administrative Agent that it made such a purchase, the
date on which such LC Disbursement is made.
"Lenders" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Assumption, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Assumption.
"Lenders Lien Subordination and Intercreditor Agreement" means the
Lenders Lien Subordination and Intercreditor Agreement between the Collateral
Agent and the collateral agent under the Second Lien Agreement, dated as of
April 8, 2005, as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein).
36
"Letter of Credit" means each Existing Letter of Credit and any letter
of credit issued pursuant to this Agreement.
"LIBO Rate" means, 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 with respect to any Eurodollar Borrowing,
then the "LIBO Rate" with respect to such Eurodollar Borrowing for such Interest
Period shall be the rate (rounded upwards, if necessary, to the next 1/100 of
1%) 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" means, with respect to any asset, (a) any mortgage, deed of
trust, French delegation of claims, lien, pledge, hypothecation, encumbrance,
charge or security interest in, on or of such asset, and (b) the interest of a
vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same
economic effect as any of the foregoing) relating to such asset.
"Lien Subordination and Intercreditor Agreement" means the Lien
Subordination and Intercreditor Agreement dated as of March 12, 2004, among the
Collateral Agent, Wilmington Trust Company, the Borrower and the Subsidiary
Guarantors.
"Lien Waiver" means a written waiver of statutory or contractual Liens
on Inventory for unpaid rent or charges of a warehouseman or bailee in form and
substance reasonably satisfactory to the Administrative Agent.
"Loan" means a Loan made pursuant to Section 2.01(a).
"Loans" means the loans made by the Lenders to the Borrower pursuant
to this Agreement.
"Lockbox Agreements" has the meaning assigned to such term in the
Guarantee and Collateral Agreement.
"Lockbox Deposit Account" has the meaning assigned to such term in the
Guarantee and Collateral Agreement.
37
"Lockbox Deposit Account Institution" has the meaning assigned to such
term in the Guarantee and Collateral Agreement.
"Lockbox System" has the meaning assigned to such term in the
Guarantee and Collateral Agreement.
"Majority Lenders" means, at any time, Lenders having aggregate Credit
Exposures and unused Commitments representing at least a majority of the sum of
the total Credit Exposures and unused Commitments at such time.
"Material Adverse Change" means a material adverse change in or effect
on (a) the business, operations, properties, assets or financial condition
(including as a result of the effects of any contingent liabilities thereon) of
the Borrower and the Subsidiaries, taken as a whole, (b) the ability of the
Credit Parties, taken as a whole, to perform obligations under this Agreement
and the other Credit Documents that are material to the rights or interests of
the Lenders or (c) the rights of or benefits available to the Lenders or the
Issuing Banks under this Agreement and the other Credit Documents that are
material to the interests of the Lenders or the Issuing Banks.
"Material Foreign Subsidiary" means, at any time, each Foreign
Subsidiary that had Total Assets with an aggregate book value in excess of
$50,000,000 as of December 31, 2006, or if later, as of the end of the most
recent fiscal quarter for which financial statements have been delivered (or
deemed delivered) pursuant to Section 5.01(a) or (b).
"Material Indebtedness" means Indebtedness (other than the Loans and
Letters of Credit), or obligations in respect of one or more Swap Agreements, of
any one or more of the Borrower and the Subsidiaries in an aggregate principal
amount exceeding $100,000,000. For purposes of determining Material
Indebtedness, the "principal amount" of the obligations of the Borrower or any
Subsidiary in respect of any Swap Agreement at any time shall be the maximum
aggregate amount (giving effect to any netting agreements) that the Borrower or
such Subsidiary would be required to pay if such Swap Agreement were terminated
at such time, calculated in accordance with the terms of such Swap Agreement.
"Material Intellectual Property" means all Intellectual Property of
the Borrower and the Grantors, other than Intellectual Property that in the
aggregate is not material to the business of the Borrower and the Subsidiaries,
taken as a whole.
"Material Subsidiary" means, at any time, each Subsidiary other than
Subsidiaries that do not represent more than 5% for any such individual
Subsidiary, or more than 10% in the aggregate for all such Subsidiaries, of
either (a) Consolidated Total Assets or (b) Consolidated Revenue for the period
of four fiscal quarters most recently ended.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., or any successor
thereto.
38
"Mortgage" means a mortgage or deed of trust, assignment of leases and
rents, or other security documents reasonably satisfactory in form and substance
to the Collateral Agent granting a Lien on any Mortgaged Property to secure the
Obligations, and shall include each amendment and restatement of any existing
Mortgage in connection with the amendment and restatement of the Existing Credit
Agreement.
"Mortgaged Property" means, at any time, each parcel of real property
listed in Schedule 1.01B and the improvements thereto.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"NAIC" means the National Association of Insurance Commissioners.
"Net Available Cash" from an Asset Disposition means cash payments
received (including any cash payments received by way of deferred payment of
principal pursuant to a note or installment receivable or otherwise and proceeds
from the sale or other disposition of any securities received as consideration,
in each case only as and when received, but excluding any other consideration
received in the form of assumption by the acquiring Person of Indebtedness or
other obligations relating to the properties or assets that are the subject of
such Asset Disposition or received in any other noncash form) therefrom, in each
case net of:
(1) all legal, accounting, investment banking, title and
recording tax expenses, commissions and other fees and expenses
incurred, and all Federal, state, provincial, foreign and local taxes
required to be paid or accrued as a liability under GAAP, as a
consequence of such Asset Disposition;
(2) all payments made on any Indebtedness which is secured by any
assets subject to such Asset Disposition, in accordance with the terms
of any Lien upon or other security agreement of any kind with respect
to such assets, or which must by its terms, or in order to obtain a
necessary consent to such Asset Disposition, or by applicable law be
repaid out of the proceeds from such Asset Disposition;
(3) all distributions and other payments required to be made to
minority interest holders in Subsidiaries or joint ventures as a
result of such Asset Disposition; and
(4) appropriate amounts to be provided by the seller as a
reserve, in accordance with GAAP, against any liabilities associated
with the property or other assets disposed of in such Asset
Disposition and retained by the Borrower or any Restricted Subsidiary
after such Asset Disposition (but only for so long as such reserve is
maintained).
"Net Cash Proceeds" means, with respect to any issuance or sale of
Capital Stock, the cash proceeds of such issuance or sale net of attorneys'
fees,
39
accountants' fees, underwriters' or placement agents' fees, listing fees,
discounts or commissions and brokerage, consultant and other fees actually
incurred in connection with such issuance or sale and net of taxes paid or
payable as a result thereof.
"Net Intercompany Items" means, in the case of any Subsidiary, (a) the
aggregate amount of the Intercompany Items owed by the Borrower or any other
Subsidiary to such Subsidiary minus (b) the aggregate amount of the Intercompany
Items owed by such Subsidiary to the Borrower or any other Subsidiary.
"North American Subsidiary" means any Subsidiary organized under the
laws of the United States or Canada or any of their respective states,
provinces, territories or possessions or any political subdivision of any
thereof.
"North American Tire Division" means those standard business units of
the Borrower and the other Grantors classified as "North American Tire Division"
on the Borrower's perpetual inventory records.
"Obligations" means (a) the due and punctual payment of (i) the
principal of and interest (including interest accruing during the pendency of
any bankruptcy, insolvency, receivership or other similar proceeding, regardless
of whether allowed or allowable in such proceeding) on the Loans, when and as
due, whether at maturity, by acceleration, upon one or more dates set for
prepayment or otherwise, (ii) each payment required to be made by the Borrower
under this Agreement in respect of any Letter of Credit, when and as due,
including payments in respect of reimbursements of LC Disbursements and interest
thereon and (iii) all other monetary obligations of the Credit Parties to any of
the Secured Parties under this Agreement and each of the other Credit Documents,
including fees, costs, expenses and indemnities, whether primary, secondary,
direct, contingent, fixed or otherwise (including monetary obligations incurred
during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding), and
(b) the due and punctual performance of all other obligations of the Credit
Parties to any of the Secured Parties under this Agreement and the other Credit
Documents.
"Other Taxes" means any and all present or future stamp, documentary,
excise, recording, transfer, sales, property or similar taxes, charges or levies
arising from any payment made under any Credit Document or from the execution,
delivery or enforcement of, or otherwise with respect to, any Credit Document.
"Participant" has the meaning assigned to such term in Section 9.04.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Permitted Business" means any business engaged in by the Borrower or
any Restricted Subsidiary on the Restatement Date and any Related Business.
40
"Permitted Encumbrances" means:
(a) (i) Liens imposed by law for taxes that are not yet due or are
being contested and (ii) deemed trusts and Liens to which the Priority
Payables Reserve relates for taxes, assessments or other charges or levies
that are not yet due and payable;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
and other Liens imposed by law, arising in the ordinary course of business
and securing obligations that are not overdue by more than 30 days (or any
longer grace period available under the terms of the applicable underlying
obligation) or are being contested;
(c) Liens created and pledges and deposits made (including cash
deposits to secure obligations in respect of letters of credit provided) in
the ordinary course of business in compliance with workers' compensation,
unemployment insurance and other social security laws or regulations;
(d) Liens created and deposits made to secure the performance of bids,
trade contracts, leases, statutory obligations, appeal bonds, performance
bonds and other obligations of a like nature, in each case in the ordinary
course of business, and Liens created and deposits made prior to March 31,
2003 in the ordinary course of business to secure the performance of surety
bonds;
(e) judgment liens; and
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property and other Liens incidental to the conduct of
business or ownership of property that arise automatically by operation of
law or arise in the ordinary course of business and that do not materially
detract from the value of the property of the Borrower and the Subsidiaries
or of the Collateral, in each case taken as a whole, or materially
interfere with the ordinary conduct of business of the Borrower and the
Subsidiaries, taken as a whole, or otherwise adversely affect in any
material respect the rights or interests of the Lenders;
provided that (except as provided in clause (d) above) the term "Permitted
Encumbrances" shall not include any Lien securing Indebtedness for borrowed
money.
"Permitted Inventory Location" means (a) property owned or leased by
the Borrower or a Grantor in the United States of America or Canada or (b) a
third party warehouse or dock in the United States of America or Canada where
Inventory of the Borrower or any Grantor is stored.
"Permitted Investment" means an Investment by the Borrower or any
Restricted Subsidiary in:
(1) the Borrower, a Restricted Subsidiary or a Person that will,
upon the making of such Investment, become a Restricted Subsidiary;
41
(2) another Person if as a result of such Investment such other
Person is merged or consolidated with or into, or transfers or conveys
all or substantially all its assets to, the Borrower or a Restricted
Subsidiary;
(3) Temporary Cash Investments;
(4) receivables owing to the Borrower or any Restricted
Subsidiary if created or acquired in the ordinary course of business
and payable or dischargeable in accordance with customary trade terms;
provided, however, that such trade terms may include such
concessionary trade terms as the Borrower or any such Restricted
Subsidiary deems reasonable under the circumstances;
(5) payroll, travel and similar advances to cover matters that
are expected at the time of such advances ultimately to be treated as
expenses for accounting purposes and that are made in the ordinary
course of business;
(6) loans or advances to employees made in the ordinary course of
business of the Borrower or such Restricted Subsidiary;
(7) stock, obligations or securities received in settlement of
disputes with customers or suppliers or debts (including pursuant to
any plan of reorganization or similar arrangement upon insolvency of a
debtor) created in the ordinary course of business and owing to the
Borrower or any Restricted Subsidiary or in satisfaction of judgments;
(8) any Person to the extent such Investment represents the non
cash portion of the consideration received for an Asset Disposition
that was made pursuant to and in compliance with Section 6.04;
(9) a Receivables Entity or any Investment by a Receivables
Entity in any other Person in connection with a Qualified Receivables
Transaction, including Investments of funds held in accounts permitted
or required by the arrangements governing such Qualified Receivables
Transaction or any related Indebtedness; provided, however, that any
Investment in a Receivables Entity is in the form of a Purchase Money
Note, contribution of additional receivables or an equity interest;
(10) any Person to the extent such Investments consist of prepaid
expenses, negotiable instruments held for collection and lease,
utility and workers' compensation, performance and other similar
deposits made in the ordinary course of business by the Borrower or
any Restricted Subsidiary;
(11) any Person to the extent such Investments consist of Hedging
Obligations otherwise permitted under Section 6.01;
42
(12) any Person to the extent such Investment in such Person
existed on the Restatement Date and any Investment that replaces,
refinances or refunds such an Investment, provided that the new
Investment is in an amount that does not exceed that amount replaced,
refinanced or refunded and is made in the same Person as the
Investment replaced, refinanced or refunded;
(13) advances to, and Guarantees for the benefit of, customers,
dealers or suppliers made in the ordinary course of business and
consistent with past practice; and
(14) any Person to the extent such Investment, when taken
together with all other Investments made pursuant to this clause (14)
and then outstanding on the date such Investment is made, does not
exceed the greater of (A) the sum of (i) $500,000,000 and (ii) any
amounts under Section 6.02(a)(3)(iv)(x) that were excluded by
operation of the proviso in Section 6.02(a)(3)(iv) and which excluded
amounts are not otherwise included in Consolidated Net Income or
intended to be permitted under any of clauses (1) through (13) of this
definition and (B) 5.0% of Consolidated assets of the Borrower as of
the end of the most recent fiscal quarter for which financial
statements of the Borrower have been filed with the SEC.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV or Section 302 of
ERISA or Section 412 of the Code, and in respect of which the Borrower, any
Subsidiary or any ERISA Affiliate is (or, if such plan were terminated, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in Section
3(5) of ERISA.
"Pounds Sterling" or "L" means the lawful currency of the United
Kingdom.
"Preferred Stock," as applied to the Capital Stock of any Person,
means Capital Stock of any class or classes (however designated) that is
preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such Person,
over shares of Capital Stock of any other class of such Person.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by JPMCB (or any successor Administrative Agent appointed or
chosen pursuant to Article VIII hereof) 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.
43
"Principal Issuing Bank" means JPMCB and any other Issuing Bank whom
the Borrower and JPMCB agree will be a Principal Issuing Bank (or any of their
Affiliates that shall act as Issuing Banks hereunder).
"Priority Payables Reserve" means, at any time, the sum of, without
duplication of any deductions made pursuant to the definitions of "Additional
Inventory Reserves", "Inventory Reserves", "Eligible Inventory" and "Inventory
Value", and the full amount of the liabilities at such time which have a trust
imposed to provide for payment thereof or a security interest, Lien or charge
ranking or capable of ranking, in each case senior to or pari passu with the
Liens created under the Security Documents under Canadian federal, provincial,
territorial, county, municipal or local law with respect to claims for goods and
services taxes, sales tax, income tax, workers' compensation obligations,
vacation pay or pension fund obligations.
"Purchase Money Indebtedness" means Indebtedness:
(1) consisting of the deferred purchase price of property, plant
and equipment, conditional sale obligations, obligations under any
title retention agreement and other obligations Incurred in connection
with the acquisition, construction or improvement of such asset, in
each case where the amount of such Indebtedness does not exceed the
greater of (A) the cost of the asset being financed and (B) the Fair
Market Value of such asset; and
(2) Incurred to finance such acquisition, construction or
improvement by the Borrower or a Restricted Subsidiary of such asset;
provided, however, that such Indebtedness is Incurred within 180 days after such
acquisition or the completion of such construction or improvement.
"Purchase Money Note" means a promissory note of a Receivables Entity
evidencing a line of credit, which may be irrevocable, from the Borrower or any
Subsidiary of the Borrower to a Receivables Entity in connection with a
Qualified Receivables Transaction, which note:
(1) shall be repaid from cash available to the Receivables
Entity, other than:
(A) amounts required to be established as reserves;
(B) amounts paid to investors in respect of interest;
(C) principal and other amounts owing to such investors; and
(D) amounts paid in connection with the purchase of newly
generated receivables; and
(2) may be subordinated to the payments described in clause (A).
44
"Qualified Receivables Transaction" means any transaction or series of
transactions that may be entered into by the Borrower or any of its Subsidiaries
pursuant to which the Borrower or any of its Subsidiaries may sell, convey or
otherwise transfer to:
(1) a Receivables Entity (in the case of a transfer by the
Borrower or any of its Subsidiaries); or
(2) any other Person (in the case of a transfer by a Receivables
Entity);
or may grant a security interest in, any accounts receivable (whether now
existing or arising in the future) of the Borrower or any of its Subsidiaries,
and any assets related thereto including, without limitation, all collateral
securing such accounts receivable, all contracts and all Guarantees or other
obligations in respect of such accounts receivable, proceeds of such accounts
receivable and other assets which are customarily transferred or in respect of
which security interests are customarily granted in connection with asset
securitization transactions involving accounts receivable; provided, however,
that the financing terms, covenants, termination events and other provisions
thereof shall be market terms (as determined in good faith by a Financial
Officer of the Borrower); and provided further, however, that no such
transaction or series of transactions shall be a Qualified Receivables
Transaction if any of the accounts receivable subject thereto is or would absent
such transaction or series of transactions otherwise be subject to a Lien
securing any U.S. Bank Indebtedness.
The grant of a security interest in any accounts receivable of the
Borrower or any of its Restricted Subsidiaries to secure Bank Indebtedness shall
not be deemed a Qualified Receivables Transaction.
"Raw Material" means Inventory used or consumed in the manufacturing
or processing of goods to be sold by the Borrower or another Grantor in the
ordinary course of business that is not yet included in Work in Process.
"Reaffirmation Agreement" shall mean the Reaffirmation of Guarantee
and Security Documents substantially in the form of Exhibit H, among the Credit
Parties and the Collateral Agent, pursuant to which the Credit Parties shall
reaffirm their obligations under the Guarantee and Collateral Agreement and the
Security Documents to which they are a party.
"Receivables Entity" means a (a) Wholly Owned Subsidiary of the
Borrower which is a Restricted Subsidiary and which is designated by the Board
of Directors (as provided below) as a Receivables Entity or (b) another Person
engaging in a Qualified Receivables Transaction with the Borrower which Person
engages in the business of the financing of accounts receivable, and in either
of clause (a) or (b):
(1) no portion of the Indebtedness or any other obligations
(contingent or otherwise) of which
45
(A) is Guaranteed by the Borrower or any Subsidiary of the
Borrower (excluding Guarantees of obligations (other than the
principal of, and interest on, Indebtedness) pursuant to Standard
Securitization Undertakings);
(B) is recourse to or obligates the Borrower or any
Subsidiary of the Borrower in any way other than pursuant to
Standard Securitization Undertakings; or
(C) subjects any property or asset of the Borrower or any
Subsidiary of the Borrower, directly or indirectly, contingently
or otherwise, to the satisfaction thereof, other than pursuant to
Standard Securitization Undertakings;
(2) which is not an Affiliate of the Borrower or with which
neither the Borrower nor any Subsidiary of the Borrower has any
material contract, agreement, arrangement or understanding other than
on terms which the Borrower reasonably believes to be no less
favorable to the Borrower or such Subsidiary than those that might be
obtained at the time from Persons that are not Affiliates of the
Borrower; and
(3) to which neither the Borrower nor any Subsidiary of the
Borrower has any obligation to maintain or preserve such entity's
financial condition or cause such entity to achieve certain levels of
operating results.
Any such designation by the Board of Directors shall be evidenced to
the Administrative Agent by filing with the Administrative Agent a certified
copy of the resolution of the Board of Directors giving effect to such
designation and a certificate of a Financial Officer certifying that such
designation complied with the foregoing conditions.
"Recovery Rate" means (a) the estimated net recovery of all Inventory
of the Borrower and the other Grantors stated in dollars as determined on a net
orderly liquidation basis by the most recent analysis conducted by outside
inventory consultants/appraisers retained or approved by the Administrative
Agent and disclosed to the Borrower divided by (b) the Inventory Value of all
Inventory of the Borrower and each other Grantor as of the date of such most
recent analysis.
"Reference Date" means March 12, 2004.
"Refinance" means, in respect of any Indebtedness, to refinance,
extend, renew, refund, repay, prepay, redeem, defease or retire, or to issue
other Indebtedness in exchange or replacement for, such Indebtedness, including,
in any such case from time to time, after the discharge of the Indebtedness
being Refinanced. "Refinanced" and "Refinancing" shall have correlative
meanings.
"Refinancing Indebtedness" means Indebtedness that is Incurred to
Refinance (including pursuant to any defeasance or discharge mechanism) any
46
Indebtedness of the Borrower or any Restricted Subsidiary existing on the
Restatement Date or Incurred in compliance with this Agreement (including
Indebtedness of the Borrower that Refinances Refinancing Indebtedness);
provided, however, that:
(1) the Refinancing Indebtedness has a Stated Maturity no earlier
than the Stated Maturity of the Indebtedness being Refinanced;
(2) the Refinancing Indebtedness has an Average Life at the time
such Refinancing Indebtedness is Incurred that is equal to or greater
than the Average Life of the Indebtedness being refinanced;
(3) such Refinancing Indebtedness is Incurred in an aggregate
principal amount (or if Incurred with original issue discount, an
aggregate issue price) that is equal to or less than the aggregate
principal amount of the Indebtedness being refinanced (or if issued
with original issue discount, the aggregate accreted value) then
outstanding (or that would be outstanding if the entire committed
amount of any credit facility being Refinanced were fully drawn (other
than any such amount that would have been prohibited from being drawn
pursuant to Section 6.01) (plus fees and expenses, including any
premium and defeasance costs);
(4) if the Indebtedness being Refinanced is subordinated in right
of payment to the Obligations, such Refinancing Indebtedness is
subordinated in right of payment to the Obligations at least to the
same extent as the Indebtedness being Refinanced; and
(5) if Incurred by the Borrower or any Domestic Subsidiary, the
Refinancing Indebtedness is not secured by Liens on any assets other
than the assets that secured the Indebtedness being refinanced, and
any such Liens have no greater priority than the Liens securing the
Indebtedness being refinanced;
provided further, however, that Refinancing Indebtedness shall not
include:
(A) Indebtedness of a Restricted Subsidiary that is not a
Subsidiary Guarantor that Refinances Indebtedness of the
Borrower; or
(B) Indebtedness of the Borrower or a Restricted Subsidiary
that Refinances Indebtedness of an Unrestricted Subsidiary.
"Register" has the meaning set forth in Section 9.04.
"Related Business" means any business reasonably related, ancillary or
complementary to the business of the Borrower and its Restricted Subsidiaries on
the Restatement Date.
47
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents,
counsel, trustees and other advisors of such Person and such Person's
Affiliates.
"Rent Reserve" means, on any date, with respect to any retail store,
distribution center, warehouse, manufacturing facility or other Permitted
Inventory Location where any Eligible Inventory that is subject to Liens arising
by operation of law is located and with respect to which no Lien Waiver is in
effect, a reserve equal to three months' rent and charges at such retail store,
distribution center, warehouse, manufacturing facility or other Permitted
Inventory Location.
"Restatement Date" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"Restatement Date Perfection Certificate" means a certificate in the
form of Exhibit G or any other form approved by the Collateral Agent.
"Restricted Payment" in respect of any Person means:
(1) the declaration or payment of any dividend, any distribution
on or in respect of its Capital Stock or any similar payment
(including any payment in connection with any merger or consolidation
involving the Borrower or any Restricted Subsidiary) to the direct or
indirect holders of its Capital Stock in their capacity as such,
except (A) dividends or distributions payable solely in its Capital
Stock (other than Disqualified Stock or, in the case of a Restricted
Subsidiary, Preferred Stock) and (B) dividends or distributions
payable to the Borrower or a Restricted Subsidiary (and, if such
Restricted Subsidiary has Capital Stock held by Persons other than the
Borrower or other Restricted Subsidiaries, to such other Persons on no
more than a pro rata basis);
(2) the purchase, repurchase, redemption, retirement or other
acquisition ("Purchase") for value of any Capital Stock of the
Borrower held by any Person (other than the Borrower or a Restricted
Subsidiary) or any Capital Stock of a Restricted Subsidiary held by
any affiliate of such Person (other than by a Restricted Subsidiary)
(other than in exchange for Capital Stock of the Borrower that is not
Disqualified Stock);
(3) the Purchase for value, prior to scheduled maturity, any
scheduled repayment or any scheduled sinking fund payment, of any
Subordinated Obligations (other than the Purchase for value of
Subordinated Obligations acquired in anticipation of satisfying a
sinking fund obligation, principal installment or final maturity, in
each case due within one year of the date of such Purchase); or
(4) any Investment (other than a Permitted Investment) in any
Person.
48
"Restricted Subsidiary" means any Subsidiary of the Borrower other
than an Unrestricted Subsidiary.
"Retail Division" means those standard business units of the Borrower
and the other Grantors classified as "Retail Division" on the Borrower's
perpetual inventory records.
"Sale/Leaseback Transaction" means an arrangement relating to
property, plant and equipment now owned or hereafter acquired by the Borrower or
a Restricted Subsidiary whereby the Borrower or a Restricted Subsidiary
transfers such property to a Person and the Borrower or such Restricted
Subsidiary leases it from such Person, other than (i) leases between the
Borrower and a Restricted Subsidiary or between Restricted Subsidiaries or (ii)
any such transaction entered into with respect to any property, plant and
equipment or any improvements thereto at the time of, or within 180 days after,
the acquisition or completion of construction of such property, plant and
equipment or such improvements (or, if later, the commencement of commercial
operation of any such property, plant and equipment), as the case may be, to
finance the cost of such property, plant and equipment or such improvements, as
the case may be.
"SEC" means the Securities and Exchange Commission.
"Second Lien Agreement" means the Amended and Restated Second Lien
Credit Agreement dated as of the date hereof, among the Borrower, certain
lenders and JPMCB, as administrative agent, as amended, restated, supplemented,
waived, replaced (whether or not upon termination, and whether with the original
lenders or otherwise), refinanced, restructured or otherwise modified from time
to time (except to the extent that any such amendment, restatement, supplement,
waiver, replacement, refinancing, restructuring or other modification thereto
would be prohibited by the terms of this Agreement, unless otherwise agreed to
by the Majority Lenders).
"Second Lien Guarantee and Collateral Agreement" means the Guarantee
and Collateral Agreement among the Borrower, the Subsidiary Guarantors, the
Grantors, certain other Subsidiaries and the collateral agent under the Second
Lien Agreement, dated as of April 8, 2005, as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein).
"Second Lien Indebtedness" means any and all amounts payable under or
in respect of the Second Lien Agreement and any Refinancing Indebtedness with
respect thereto or with respect to such Refinancing Indebtedness, as amended
from time to time, including principal, premium (if any), interest (including
interest accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Borrower whether or not a claim for post-filing
interest is allowed in such proceedings), fees, charges, expenses, reimbursement
obligations and all other amounts payable thereunder or in respect thereof.
49
"Secured Indebtedness" means any Indebtedness of the Borrower secured
by a Lien. "Secured Indebtedness" of a Subsidiary has a correlative meaning.
"Secured Parties" means the Administrative Agent, each Issuing Bank,
the Collateral Agent and each Lender.
"Security Documents" means the Reaffirmation Agreement, the Guarantee
and Collateral Agreement, the Foreign Pledge Agreements, the Canadian Security
Agreements, the Mortgages and each other instrument or document delivered in
connection with the cash collateralization of Letters of Credit or pursuant to
Section 5.08, in each case to secure any of the Obligations.
"Senior Indebtedness" of the Borrower or any Subsidiary Guarantor, as
the case may be, means the principal of, premium (if any) and accrued and unpaid
interest on (including interest accruing on or after the filing of any petition
in bankruptcy or for reorganization of the Borrower or any Subsidiary Guarantor,
as applicable, regardless of whether or not a claim for post-filing interest is
allowed in such proceedings), and fees and other amounts owing in respect of
Bank Indebtedness, Indebtedness under the 2006 Indenture (in the case of the
Borrower) and Guarantees thereof (in the case of the Subsidiary Guarantors) and
all other Indebtedness of the Borrower or any Subsidiary Guarantor, as
applicable, whether outstanding on the 2006 Indenture Closing Date or thereafter
Incurred, unless in the instrument creating or evidencing the same or pursuant
to which the same is outstanding it is provided that such obligations are
subordinated in right of payment to the Indebtedness under the 2006 Indenture or
such Subsidiary Guarantor's Guarantee thereof, as applicable; provided, however,
that Senior Indebtedness of the Borrower or any Subsidiary Guarantor shall not
include: (a) any obligation of the Borrower to any Subsidiary of the Borrower or
of such Subsidiary Guarantor to the Borrower or any other Subsidiary of the
Borrower; (b) any liability for Federal, state, local or other taxes owed or
owing by the Borrower or such Subsidiary Guarantor, as applicable; (c) any
accounts payable or other liability to trade creditors arising in the ordinary
course of business (including Guarantees thereof or instruments evidencing such
liabilities); (d) any Indebtedness or obligation of the Borrower (and any
accrued and unpaid interest in respect thereof) that by its terms is subordinate
or junior in right of payment to any other Indebtedness or obligation of the
Borrower or such Subsidiary Guarantor, as applicable, including any Subordinated
Obligations (as defined in the 2006 Indenture) of the Borrower or such
Subsidiary Guarantor, as applicable; (e) any obligations with respect to Capital
Stock; or (f) any Indebtedness Incurred in violation of this Agreement.
"Senior Subordinated-Lien Collateral Agent" means, as to any Senior
Subordinated-Lien Indebtedness, the collateral agent under the applicable Senior
Subordinated-Lien Indebtedness Security Documents.
"Senior Subordinated-Lien Governing Documents" means each Indenture or
other agreement or instrument providing for the issuance or setting forth the
terms of any Senior Subordinated-Lien Indebtedness.
50
"Senior Subordinated-Lien Indebtedness" means Indebtedness of the
Borrower that (a) is secured by Liens permitted under Section 6.06(b), but that
is not secured by Liens on any additional assets, (b) constitutes Initial Junior
Indebtedness or Designated Junior Obligations under and as defined in the Lien
Subordination and Intercreditor Agreement, and the Liens securing which are
subordinated under the Lien Subordination and Intercreditor Agreement to the
Liens securing the Obligations and (c) does not contain provisions inconsistent
with the restrictions of Schedule 1.01C. Each of the Borrower's 11% Senior
Secured Notes due 2011 and its Senior Secured Floating Rate Notes due 2011
issued on March 12, 2004, and the Indebtedness under the Third Lien Agreement
are Senior Subordinated-Lien Indebtedness.
"Senior Subordinated-Lien Indebtedness Security Documents" means, as
to any Senior Subordinated-Lien Indebtedness, the security agreements, pledge
agreements, mortgages and other documents creating Liens on assets of the
Borrower and the Subsidiary Guarantors to secure the applicable Senior
Subordinated-Lien Obligations.
"Senior Subordinated-Lien Obligations" means, as to any Senior
Subordinated-Lien Indebtedness, (a) the principal of and all premium or
make-whole amounts, if any, and interest payable in respect of such Senior
Subordinated-Lien Indebtedness, (b) any amounts payable under Guarantees of such
Senior Subordinated-Lien Indebtedness by Subsidiaries and (c) all other amounts
payable by the Borrower or any Subsidiary under such Senior Subordinated-Lien
Indebtedness, the applicable Senior Subordinated-Lien Indebtedness Security
Documents (to the extent such amounts relate to such Senior Subordinated-Lien
Indebtedness) or the applicable Senior Subordinated-Lien Governing Documents.
"Specified Asset Sale" means (i) the sale of all or a substantial
portion of the assets and liabilities of the Borrower's Engineered Products
Division or (ii) the sale of all or a portion of the Borrower's properties in
Akron, Summit County, Ohio.
"Specified Jurisdiction" means The United States of America and
Canada.
"Standard & Poor's" means Standard & Poor's Ratings Services, a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or any successor thereto.
"Standard Securitization Undertakings" means representations,
warranties, covenants and indemnities entered into by the Borrower or any
Subsidiary of the Borrower which, taken as a whole, are customary in an accounts
receivable transaction.
"Stated Maturity" means, with respect to any Indebtedness, the date
specified in the documentation governing such Indebtedness as the fixed date on
which the final payment of principal of such Indebtedness is due and payable,
including pursuant to any mandatory redemption provision (but excluding any
provision providing for the repurchase of such Indebtedness at the option of the
holder thereof upon the happening of any contingency beyond the control of the
Borrower unless such contingency has occurred). The "Stated Maturity" of the
Obligations means the Commitment Termination Date.
51
"Statutory Reserve Rate" means 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, with
respect to the Adjusted LIBO Rate, 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.
"Subordinated Obligation" means any Indebtedness of the Borrower
(whether outstanding on the Restatement Date or thereafter Incurred) (a) that by
its terms is subordinate or junior in right of payment to the Obligations or (b)
that is not Secured Indebtedness or (c) that is secured subject to an agreement
subordinating its Liens to those securing the Obligations. For the avoidance of
doubt, "Subordinated Obligations" shall include the Second Lien Indebtedness,
the Senior Subordinated-Lien Obligations and any unsecured Indebtedness of the
Borrower and the Subsidiary Guarantors (including the Borrower's 4% Convertible
Senior Notes due 2034 and Floating Rate Notes due 2009). "Subordinated
Obligation" of a Subsidiary Guarantor has a correlative meaning.
"subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which are consolidated with those of the parent in
the parent's consolidated financial statements in accordance with GAAP as of
such date, as well as any other corporation, limited liability company,
partnership, association or other entity of which securities or other ownership
interests representing more than 50% of the equity or more than 50% of the
ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, controlled or held by
the parent or one or more subsidiaries of the parent or by the parent and one or
more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Borrower (other than Tire &
Wheel Assemblies, Inc. at any time when not more than 50% of the Capital Stock
or 50% of the voting power are, as of such date, owned or Controlled by the
Borrower).
"Subsidiary Guarantor" means any Subsidiary that is, or is required
pursuant to Section 5.08 to become, a Guarantor (as defined in the Guarantee and
Collateral Agreement).
"Swap Agreement" means any agreement in respect of any Hedging
Obligations.
52
"Syndication Agent" means Citicorp USA, Inc., in its capacity as
syndication agent hereunder.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Temporary Cash Investments" means any of the following:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed
by the full faith and credit of the United States of America), in each case
maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the
date of acquisition thereof, and having, at such date of acquisition,
ratings of A2 or higher from Standard & Poor's and P2 or higher from
Moody's;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 180 days from the date of acquisition thereof
and issued or guaranteed by or placed with, and money market deposit
accounts issued or offered by any commercial bank organized under the laws
of the United States of America or any state thereof which has a short-term
deposit rating of A1 from Standard & Poor's and P1 from Moody's and has a
combined capital and surplus and undivided profits of not less than
$500,000,000;
(d) fully collateralized repurchase agreements with a term of not more
than 30 days for securities described in clause (a) above and entered into
with a financial institution described in clause (c) above;
(e) money market funds that (i) comply with the criteria set forth in
SEC Rule 2a-7 under the Investment Company Act of 1940, (ii) are rated AAA
by Standard & Poor's and Aaa by Moody's and (iii) have portfolio assets of
at least $3,000,000,000;
(f) investments of the type and maturity described in clauses (b)
through (e) of foreign obligors, which investments or obligor have ratings
described in such clauses or equivalent ratings from comparable foreign
rating agencies (and with respect to clause (e), are not required to comply
with the Rule 2a-7 criteria);
(g) investments of the type and maturity described in clause (c) in
any obligor organized under the laws of a jurisdiction other than the
United States that (A) is a branch or subsidiary of a Lender or the
ultimate parent company of a Lender under any of the Credit Facilities
Agreements (but only if such Lender meets the ratings and capital, surplus
and undivided profits requirements of such clause (c)) or (B) carries a
rating at least equivalent to the rating of the sovereign nation in which
it is located; and
53
(h) in the case of any Foreign Subsidiary, (i) marketable direct
obligations issued or unconditionally guaranteed by the sovereign nation in
which such Foreign Subsidiary is organized and is conducting business or
issued by an agency of such sovereign nation and backed by the full faith
and credit of such sovereign nation, in each case maturing within one year
from the date of acquisition, so long as the indebtedness of such sovereign
nation is rated at least A by Standard & Poor's or A2 by Moody's or carries
an equivalent rating from a comparable foreign rating agency, and (ii)
other investments of the type and maturity described in clause (c) in
obligors organized under the laws of a jurisdiction other than the United
States in any country in which such Subsidiary is located, provided,
however, that the investments permitted under this subclause (ii) shall be
made in amounts and jurisdictions consistent with the Borrower's policies
governing short-term investments.
"Third Lien Agreement" means the Third Lien Credit Agreement dated as
of April 8, 2005, among the Borrower, certain Subsidiaries of the Borrower party
thereto, certain lenders and JPMCB, as administrative agent, as amended,
restated, supplemented, waived, replaced (whether or not upon termination, and
whether with the original lenders or otherwise), refinanced, restructured or
otherwise modified from time to time (except to the extent that any such
amendment, restatement, supplement, waiver, replacement, refinancing,
restructuring or other modification thereto would be prohibited by the terms of
this Agreement, unless otherwise agreed to by the Majority Lenders).
"Third Lien Collateral Agreement" means the Collateral Agreement dated
as of March 12, 2004, among the Borrower, the Subsidiaries of the Borrower
identified therein and Wilmington Trust Company, as collateral agent, as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein).
"Total Assets" of any Subsidiary means (a) in the case of any
Subsidiary organized in a Specified Jurisdiction, (i) the total assets of such
Subsidiary, excluding Intercompany Items, plus (ii) if the Net Intercompany
Items of such Subsidiary shall be positive, the amount of such Net Intercompany
Items; and (b) in the case of any other Subsidiary, the total assets of such
Subsidiary, excluding Intercompany Items.
"Total Commitment" means, at any time, the aggregate amount of all the
Commitments at such time.
"Trade Payables" means, with respect to any Person, any accounts
payable or any indebtedness or monetary obligation to trade creditors created,
assumed or Guaranteed by such Person arising in the ordinary course of business
in connection with the acquisition of goods or services.
"Transactions" means the execution, delivery and performance by the
Borrower of this Agreement and by the Borrower, the Subsidiary Guarantors and
the Grantors, as applicable, of the Reaffirmation Agreement and the other Credit
Documents, the borrowing of the Loans, the obtaining and use of the Letters of
Credit, the creation
54
and the continuation of the Liens and Guarantees provided for in the Security
Documents and the other transactions contemplated hereby.
"2003 MGCA" means the Master Guarantee and Collateral Agreement dated
as of March 31, 2003, among the Borrower, the subsidiary guarantors thereunder,
the subsidiary grantors thereunder, certain other Subsidiaries, certain
financial institutions, and the Collateral Agent thereunder.
"2006 Indenture Closing Date" means November 21, 2006.
"2006 Indenture" means the Indenture dated as of November 21, 2006,
between the Borrower and ▇▇▇▇▇ Fargo Bank, N.A., as Trustee.
"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" means Article 9 of the Uniform Commercial Code as from time to
time in effect in the State of New York.
"Unrestricted Subsidiary" means:
(a) any Subsidiary of the Borrower that at the time of determination
shall be designated an Unrestricted Subsidiary by the Board of Directors in
the manner provided below and
(b) any Subsidiary of an Unrestricted Subsidiary.
The Board of Directors may designate any Subsidiary of the Borrower
(including any newly acquired or newly formed Subsidiary of the Borrower) to be
an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries
owns any Capital Stock or Indebtedness of, or owns or holds any Lien on any
property of, the Borrower or any other Subsidiary of the Borrower that is not a
Subsidiary of the Subsidiary to be so designated; provided, however, that
either:
(A) the Subsidiary to be so designated has total Consolidated
assets of $1,000 or less; or
(B) if such Subsidiary has total Consolidated assets greater than
$1,000, then such designation would be permitted under Section 6.02.
The Board of Directors may designate any Unrestricted Subsidiary to be a
Restricted Subsidiary; provided, however, that immediately after giving effect
to such designation:
(x) (1) the Borrower could Incur $1.00 of additional Indebtedness
under Section 6.01(a) or (2) the Consolidated Coverage Ratio for the Borrower
and its Restricted Subsidiaries would be greater after giving effect to such
designation than before such designation and
55
(2) no Default shall have occurred and be continuing.
Any such designation of a Subsidiary as a Restricted Subsidiary or Unrestricted
Subsidiary by the Board of Directors shall be evidenced to the Administrative
Agent by promptly filing the Administrative Agent a copy of the resolution of
the Board of Directors giving effect to such designation and a certificate of a
Financial Officer certifying that such designation complied with the foregoing
provisions.
"U.S. Bank Indebtedness" means any and all amounts payable under or in
respect of the U.S. Credit Agreements and any Refinancing Indebtedness with
respect thereto or with respect to such Refinancing Indebtedness, as amended
from time to time, including principal, premium (if any), interest (including
interest accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Borrower whether or not a claim for post-filing
interest is allowed in such proceedings), fees, charges, expenses, reimbursement
obligations and all other amounts payable thereunder or in respect thereof.
"U.S. Credit Agreements" means (i) the First Lien Agreement and (ii)
the Second Lien Agreement, each as amended, restated, supplemented, waived,
replaced (whether or not upon termination, and whether with the original lenders
or otherwise), refinanced, restructured or otherwise modified from time to time
(except to the extent that any such amendment, restatement, supplement, waiver,
replacement, refinancing, restructuring or other modification thereto would be
prohibited by the terms of this Agreement, unless otherwise agreed to by the
Majority Lenders).
"U.S. Dollar Equivalent" means with respect to any monetary amount in
a currency other than dollars, at any time for determination thereof, the amount
of dollars obtained by converting such foreign currency involved in such
computation into dollars at the spot rate for the purchase of dollars with the
applicable foreign currency as published in The Wall Street Journal in the
"Exchange Rates" column under the heading "Currency Trading" on the date two
Business Days prior to such determination.
"Wholly Owned Subsidiary" of any Person shall mean a subsidiary of
such Person of which securities (except for directors' qualifying shares) or
other ownership interests representing 100% of the Capital Stock are, at the
time any determination is being made, owned, controlled or held by such Person
or one or more wholly owned Subsidiaries of such Person or by such Person and
one or more wholly owned Subsidiaries of such Person.
"Wingfoot" means Wingfoot Commercial Systems LLC.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
"Work in Process" means Inventory used or consumed in the
manufacturing or processing of goods to be sold by the Borrower or another
Grantor in the ordinary course of business consisting of parts and subassemblies
in the process of
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becoming completed assembly components that are no longer included in Raw
Materials but are not yet included in Finished Goods.
SECTION 1.02. Classification of Loans and Borrowings. For purposes of
this Agreement, Loans may be classified and referred to by Type (e.g., a
"Eurodollar Loan"). Borrowings also may be classified and referred to by Type
(e.g., a "Eurodollar Borrowing").
SECTION 1.03. Foreign Currency Translation. The Administrative Agent
shall determine the Dollar Equivalent of any Letter of Credit denominated in
Canadian Dollars, Euros or Pounds Sterling (i) as of the date of the issuance
thereof, (ii) as of each subsequent date on which such Letter of Credit shall be
renewed or extended or the stated amount of such Letter of Credit shall be
increased, (iii) as of the last Business day of each calendar month and (iv) as
of each date on which any Issuing Bank shall have requested such determination
due to fluctuations in applicable currency exchange rates (which shall not be
requested by an Issuing Bank unreasonably), in each case using the Exchange Rate
for the applicable currency in relation to dollars in effect on the date of
determination, and each such amount shall be the Dollar Equivalent of such
Letter of Credit until the next required calculation thereof. The Dollar
Equivalent of any LC Disbursement made by any Issuing Bank in Canadian Dollars,
Euros or Pounds Sterling and not reimbursed by the Borrower shall be determined
as set forth in paragraphs (e) or (l) of Section 2.03, as applicable. In
addition, the Dollar Equivalent of the LC Exposures shall be determined as set
forth in paragraph (j) of Section 2.03, at the time and in the circumstances
specified therein. The Administrative Agent shall notify the Borrower, the
applicable Lenders and the applicable Issuing Bank of each calculation of the
Dollar Equivalent of each Letter of Credit and LC Disbursement.
SECTION 1.04. Terms Generally. 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 (a) 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), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, but shall not be deemed to include the subsidiaries of such Person
unless express reference is made to such subsidiaries, (c) 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, (d) all references herein to Articles, Sections, Exhibits and Schedules
shall be construed to refer to Articles and Sections of, and Exhibits and
Schedules to, this Agreement, and (e) the words "asset" and "property" shall be
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.
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SECTION 1.05. 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 date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Majority 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 have been
withdrawn or such provision amended in accordance herewith.
ARTICLE II
The Credits
SECTION 2.01. Loans and Borrowings. (a) Subject to the terms and
conditions set forth herein, each Lender agrees to make Loans to the Borrower
from time to time during the Availability Period in dollars in an aggregate
principal amount that will not result in (x) such Lender's Credit Exposure
exceeding such Lender's Commitment or (y) the aggregate Credit Exposure
exceeding the Borrowing Base Availability then in effect. Each Loan shall be
part of a Borrowing consisting of Loans of the same Type held by the Lenders
ratably in accordance with their respective Applicable Percentages. The failure
of any Lender to make any Loan required to be made by it shall not relieve any
other Lender of its obligations hereunder; provided that the Commitments of the
Lenders are several and no Lender shall be responsible for any other Lender's
failure to make Loans as required. Within the foregoing limits and subject to
the terms and conditions set forth herein, the Borrower may borrow, prepay and
reborrow Loans.
(b) Subject to Section 2.11, 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, convert or continue any
Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make, convert or continue such 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.
(c) At the commencement of each Interest Period for any Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount that is 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 $1,000,000 and not less than $5,000,000; provided that an
ABR Borrowing may be in an aggregate amount that is equal to the entire unused
balance of the Total 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; provided
that there shall not at any time be more than a total of 30 Eurodollar
Borrowings outstanding.
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(d) 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 Commitment Termination Date.
SECTION 2.02. Requests for Borrowing. To request a Borrowing, the
Borrower shall notify the Administrative Agent of such request by telephone (a)
in the case of a Eurodollar Borrowing, not later than 3:00 p.m., New York City
time, three Business Days before the date of the proposed Borrowing or (b) in
the case of an ABR Borrowing, not later than 10:30 a.m., New York City time, on
the day of the proposed Borrowing; provided that if at any time an LC
Disbursement denominated in dollars shall be made in an amount at least equal to
the applicable minimum borrowing amount, a notice of an ABR Borrowing to finance
the reimbursement of such LC Disbursement shall be deemed to have been timely
given as contemplated by Section 2.03(e) unless the Borrower shall have given
notice to the contrary to the Administrative Agent not later than 10:00 a.m.,
New York City time, on the Business Day next following the date on which the
Borrower shall have been notified of such LC Disbursement. Each such telephonic
Borrowing Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Borrowing Request
signed by the Borrower. Each such telephonic and written Borrowing Request shall
specify the following information in compliance with Section 2.01:
(1) the aggregate amount of the requested Borrowing;
(2) the date of such Borrowing, which shall be a Business Day;
(3) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(4) 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"; and
(5) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.04.
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, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Loan to be made as part of the requested Borrowing.
SECTION 2.03. Letters of Credit. (a) General.
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(i) Subject to the terms and conditions set forth herein, the
Borrower may request the issuance (or the amendment, renewal or
extension) of Letters of Credit denominated in dollars, Canadian
Dollars, Euros or Pounds Sterling for its own account, in a form
reasonably acceptable to the Administrative Agent and the applicable
Issuing Bank, 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, any Issuing
Bank relating to any Letter of Credit, the terms and conditions of
this Agreement shall control.
(ii) On the Restatement Date, each Issuing Bank that has issued
an Existing Letter of Credit shall be deemed, without further action
by any party hereto, to have granted in accordance with paragraph (d)
below to each Lender, and each Lender shall be deemed to have
purchased from such Issuing Bank, a participation in each such Letter
of Credit. The Issuing Banks and Lenders that are also party to the
Existing Credit Agreement agree that, concurrently with such grant,
the participations in the Existing Letters of Credit granted to the
lenders under the Existing Credit Agreement shall be automatically
canceled without further action by any of the parties thereto. On and
after the Restatement Date each Existing Letter of Credit shall
constitute a Letter of Credit for all purposes hereof. Any Lender that
issued an Existing Letter of Credit but shall not have entered into an
Issuing Bank Agreement shall have the rights of an Issuing Bank as to
such Letter of Credit for purposes of this Section 2.03.
(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 applicable Issuing Bank) to
an Issuing Bank 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 and currency of such Letter of Credit, the name and address
of the beneficiary thereof and such other information as shall be necessary to
prepare, amend, renew or extend such Letter of Credit. If requested by any
Issuing Bank, the Borrower also shall submit a letter of credit application on
such Issuing Bank's standard form in connection with any request for a Letter of
Credit; provided that any provisions in any such letter of credit application
that create Liens securing the obligations of the Borrower thereunder or that
are inconsistent with the provisions of this Agreement shall be of no force or
effect. 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,
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renewal or extension, (i) the aggregate amount of the Credit Exposures shall not
exceed the Total Commitment, (ii) the aggregate amount of the LC Exposures shall
not exceed $800,000,000, (iii) the aggregate Credit Exposure shall not exceed
the Borrowing Base Availability then in effect and (iv) the portion of the LC
Exposure attributable to Letters of Credit issued by any Issuing Bank shall not
exceed the LC Commitment of such Issuing Bank. Each Issuing Bank shall be
entitled to rely on such representation and warranty. The Administrative Agent
agrees, at the request of any Issuing Bank, to provide information to such
Issuing Bank as to the aggregate amount of the Credit Exposures, the Credit
Exposures, the LC Exposures, the Total Commitment and the Borrowing Base
Availability.
(c) Expiration Date. Each Letter of Credit shall have an expiration
date at or prior to the close of business on the earlier of (i) the date 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) the date that is five Business Days prior to the Commitment Termination
Date. Any Letter of Credit may provide by its terms that it may be extended for
additional successive one-year periods on terms reasonably acceptable to the
applicable Issuing Bank (but subject to the proviso in the next sentence). Any
Letter of Credit providing for automatic extension shall be extended upon the
then current expiration date without any further action by any Person unless the
applicable Issuing Bank shall have given notice to the applicable beneficiary
(with a copy to the applicable Borrower) of the election by such Issuing Bank
not to extend such Letter of Credit, such notice to be given not fewer than 60
days prior to the then current expiration date of such Letter of Credit;
provided that no Letter of Credit may be extended automatically or otherwise
beyond the date that is five Business Days prior to the Commitment Termination
Date.
(d) Participations. Effective with respect to the Existing Letters of
Credit upon the occurrence of the Restatement Date, and effective with respect
to each other Letter of Credit (and each amendment to a Letter of Credit
increasing the amount thereof) upon the issuance (or increase) thereof, and
without any further action on the part of the applicable Issuing Bank or the
Lenders, each Issuing Bank hereby grants to each Lender, and each Lender hereby
acquires from such Issuing Bank, a participation in each Letter of Credit equal
to such Lender's Applicable Percentage of the aggregate amount available to be
drawn under such Letter of Credit. In consideration and in furtherance of the
foregoing, each Lender hereby absolutely and unconditionally agrees to pay to
the Administrative Agent, for the account of the applicable Issuing Bank, such
Lender's Applicable Percentage of each LC Disbursement made by such Issuing Bank
and not reimbursed by the Borrower on the date due as provided in paragraph (e)
of this Section, or such Lender's Applicable Percentage of any reimbursement
payment in respect of an LC Disbursement required to be refunded to the Borrower
for any reason (or if such LC Disbursement or reimbursement payment was made in
Canadian Dollars, Euros or Pounds Sterling, the Dollar Equivalent thereof using
the LC Exchange Rate in effect on the applicable LC Participation Calculation
Date). Each 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
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of Credit or the occurrence and continuance of a Default or any reduction of its
Commitment, or the Total Commitment.
(e) Reimbursement. If any Issuing Bank shall make any LC Disbursement
in respect of a Letter of Credit, the Borrower shall reimburse such LC
Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement, in the currency in which such LC Disbursement is made, not later
than 1:30 p.m., New York City time, on the second Business Day following the
date on which the Borrower shall have received notice of such LC Disbursement
(or, in the case of an LC Disbursement denominated in a currency other than
dollars, on the third Business Day following such date if the Borrower shall not
have received notice of such LC Disbursement until after 10:00 a.m., New York
City time, on such date); provided that, if such LC Disbursement is denominated
in dollars and is at least equal to the applicable minimum borrowing amount,
unless the Borrower shall have notified the Administrative Agent to the contrary
not later than 10:00 a.m., New York City time, on the Business Day next
following the date on which the Borrower shall have been notified of such LC
Disbursement, the Borrower will be deemed to have requested in accordance with
Section 2.02 that such payment be financed with an ABR Borrowing on such
Business Day in an equivalent amount and, to the extent the Borrower satisfies
the condition precedent to such ABR Borrowing set forth in Section 4.02(b), the
Borrower's obligation to make such payment shall be discharged with the proceeds
of the requested ABR Borrowing. If the Borrower fails to make such payment when
due and the Borrower is not entitled to make a Borrowing in the amount of such
payment, (A) if such payment relates to a Letter of Credit denominated in
Canadian Dollars, Euros or Pounds Sterling, automatically and with no further
action required, the obligation of the Borrower to reimburse the applicable LC
Disbursement shall be permanently converted into an obligation to reimburse the
Dollar Equivalent, calculated using the LC Exchange Rates on the applicable LC
Participation Calculation Date, of such LC Disbursement and (B) in the case of
each LC Disbursement, the Administrative Agent shall notify each Lender of such
LC Disbursement, the Dollar Equivalent of the payment then due from the Borrower
in respect thereof and such Lender's Applicable Percentage thereof, and each
Lender shall pay to the Administrative Agent on the date such notice is
received, its Applicable Percentage of the payment then due from the Borrower,
in the same manner as provided in Section 2.04 with respect to Loans made by
such Lender (and Section 2.04 shall apply, mutatis mutandis, to the payment
obligations of the Lenders), and the Administrative Agent shall promptly pay to
the applicable Issuing Bank the amounts so received by it from the 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 applicable Issuing Bank or, to the extent that Lenders have
made payments pursuant to this paragraph to reimburse such Issuing Bank, then to
such Lenders and such Issuing Bank as their interests may appear. No payment
made by a Lender pursuant to this paragraph to reimburse any Issuing Bank for
any LC Disbursement (other than the funding of ABR Loans as contemplated above)
shall constitute a Loan or relieve the Borrower of its obligation to reimburse
such LC Disbursement. If the reimbursement by the Borrower of, or obligation to
reimburse, any amounts in Canadian Dollars, Euros or Pounds Sterling would
subject the Administrative Agent, the applicable Issuing Bank or any Lender to
any stamp duty, ad valorem charge
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or similar tax that would not be payable if such reimbursement were made or
required to be made in dollars, the Borrower shall, at its option, either (x)
pay the amount of any such tax requested by the Administrative Agent, the
applicable Issuing Bank or Lender or (y) reimburse in dollars each LC
Disbursement made in Canadian Dollars, Euros or Pounds Sterling, in an amount
equal to the Dollar Equivalent, calculated using the applicable LC Exchange Rate
on the date such LC Disbursement is reimbursed (or on the applicable LC
Participation Calculation Date, if such date shall have occurred), of 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 any Issuing Bank 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, (iv) any claim or defense against the
beneficiary of any Letter of Credit, any transferee of any Letter of Credit, the
Administrative Agent, any Lender or any other Person, whether in connection with
this Agreement, any Letter of Credit, the transactions contemplated hereby or
any unrelated transactions (including the underlying transaction between the
Borrower or any Subsidiary and the beneficiary of any Letter of Credit), (v) the
occurrence of any Default or (vi) 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
defense against, or provide a right of setoff against, the Borrower's
obligations hereunder. None of the Administrative Agent, the Lenders or the
Issuing Banks, or 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 (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 Banks; provided that the foregoing
shall not be construed to excuse any Issuing Bank from liability to the Borrower
to the extent of any damages suffered by the Borrower or any Lender that are
caused by such Issuing Bank's gross negligence or willful misconduct. 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
applicable Issuing Bank may, acting in good faith, either accept and make
payment upon such documents without responsibility for further investigation 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.
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(g) Disbursement Procedures. Each Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. Each Issuing Bank shall promptly
notify the Administrative Agent and the Borrower by telephone (confirmed by
telecopy) of such demand for payment and whether such Issuing Bank has made or
will make an LC Disbursement thereunder; provided that any failure to give or
delay in giving such notice shall not (i) relieve the Borrower of its obligation
to reimburse such Issuing Bank and the Lenders with respect to any such LC
Disbursement or (ii) relieve any Lender's obligation to acquire participations
as required pursuant to paragraph (d) of this Section 2.03.
(h) Interim Interest. If any Issuing Bank 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, (i) in the case of any LC Disbursement denominated in dollars, and
at all times following the conversion to dollars of an LC Disbursement made in
Canadian Dollars, Euros or Pounds Sterling pursuant to paragraph (e) or (l) of
this Section, at the rate per annum then applicable to ABR Loans, and (ii) in
the case of any LC Disbursement denominated in Canadian Dollars, Euros or Pounds
Sterling, at all times prior to its conversion to dollars pursuant to paragraph
(e) or (l) of this Section, a rate per annum reasonably determined by the
applicable Issuing Bank (which determination will be conclusive absent manifest
error) to represent its cost of funds plus the Applicable Rate used to determine
interest applicable to Eurodollar Loans; provided that, if the Borrower fails to
reimburse such LC Disbursement when due pursuant to paragraph (e) of this
Section, then Section 2.10(c) shall apply. Interest accrued pursuant to this
paragraph shall be for the account of such Issuing Bank, except that interest
accrued on and after the date of payment pursuant to paragraph (e) of this
Section to reimburse such Issuing Bank shall be for the account of the Lenders
to the extent of such payment.
(i) Replacement of the Issuing Bank. Each Issuing Bank may be replaced
at any time by written agreement among the Borrower, the Administrative Agent,
the replaced Issuing Bank and the successor Issuing Bank. The Administrative
Agent shall notify the Lenders of any such replacement of such Issuing Bank. At
the time any such replacement shall become effective, the Borrower shall pay all
unpaid fees accrued for the account of the replaced Issuing Bank pursuant to
Section 2.09(b). From and after the effective date of any such replacement, (i)
the successor Issuing Bank shall have all the rights and obligations of such
Issuing Bank under this Agreement with respect to Letters of Credit to be issued
thereafter and (ii) references herein to the term "Issuing Bank" shall be deemed
to refer to such successor or to any previous Issuing Bank, or to such successor
and all previous Issuing Banks, as the context shall require. After the
replacement of any Issuing Bank hereunder, the replaced Issuing Bank shall
remain a party hereto and shall continue to have all the rights and obligations
of an Issuing Bank 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.
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(j) Cash Collateralization. If any Event of Default shall occur and be
continuing, on the earlier of (i) the third Business Day after the Borrower
shall receive notice from the Administrative Agent or the Majority Lenders
demanding the deposit of cash collateral pursuant to this paragraph and (ii) the
date on which the maturity of the Loans shall be accelerated or the Total
Commitment reduced to zero, the Borrower shall deposit in an account or accounts
with the Administrative Agent, in the name of the Administrative Agent and for
the benefit of the Lenders, an amount in cash equal to the sum of (i) the
aggregate undrawn amount of all outstanding Letters of Credit and (ii) the
aggregate amount of all unreimbursed LC Disbursements and all interest accrued
and unpaid thereon. Amounts payable under the preceding sentence in respect of
any Letter of Credit or LC Disbursement shall be payable in the currency of such
Letter of Credit or LC Disbursement, except that LC Disbursements in Canadian
Dollars, Euros or Pounds Sterling in respect of which the Borrower's
reimbursement obligations have been converted to obligations in dollars as
provided in paragraph (e) above, and interest accrued thereon, shall be payable
in dollars. The obligation to deposit such cash collateral shall become
effective immediately, and such deposit shall become immediately due and
payable, without demand or other notice of any kind, upon the occurrence of any
Event of Default with respect to the Borrower described in clause (h) or (i) of
Article VII. Such deposit shall be held by the Administrative Agent as
collateral for the payment and performance of the obligations of the Borrower
under this Agreement. The Administrative Agent shall have exclusive dominion and
control, including the exclusive right of withdrawal, over such account or
accounts. Other than any interest earned on the investment of such deposits,
which investment shall be in Temporary Cash Investments and shall be made in the
discretion of the Administrative Agent and at the Borrower's risk and expense,
such deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account or accounts. Moneys in such account
or accounts shall be applied by the Administrative Agent to reimburse each
Issuing Bank 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 or,
if the maturity of the Loans has been accelerated (but subject to the consent of
Lenders with LC Exposures representing more than 50% of the LC Exposures and the
Issuing Banks with outstanding Letters of Credit), be applied to satisfy other
obligations of the Borrower under this Agreement. If the Borrower is required to
provide an amount of cash collateral under this paragraph, then (1) if the
maturity of the Loans has not been accelerated and the LC Exposure shall be
reduced to an amount below the amount so deposited, the Administrative Agent
will return to the Borrower any excess of the amount so deposited over the LC
Exposure and (2) such amount (to the extent not applied as provided above in
this paragraph) shall be returned to the Borrower within three Business Days
after all Events of Default have been cured or waived.
(k) Issuing Bank Reports. Unless otherwise agreed by the
Administrative Agent, each Issuing Bank shall report in writing to the
Administrative Agent (i) on or prior to each Business Day on which such Issuing
Bank issues, amends, renews or extends any Letter of Credit, the date of such
issuance, amendment, renewal or extension, and the currency and aggregate face
amount of the Letters of Credit issued, amended, renewed or extended by it and
outstanding after giving effect to such issuance,
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amendment, renewal or extension (and whether the amount thereof shall have
changed), it being understood that such Issuing Bank shall not effect any
issuance, renewal, extension or amendment resulting in an increase in the amount
of any Letter of Credit without first obtaining written confirmation from the
Administrative Agent that such increase is then permitted under this Agreement,
(ii) on each Business Day on which such Issuing Bank makes any LC Disbursement,
the date, currency and amount of such LC Disbursement, (iii) on any Business Day
on which the Borrower fails to reimburse an LC Disbursement required to be
reimbursed to such Issuing Bank on such day, the date of such failure and the
currency and amount of such LC Disbursement and (iv) on any other Business Day,
such other information as the Administrative Agent shall reasonably request as
to the Letters of Credit issued by such Issuing Bank.
(l) Conversion. In the event that the Loans become immediately due and
payable on any date pursuant to Article VII, all amounts (i) that the Borrower
is at the time or becomes thereafter required to reimburse or otherwise pay to
the Administrative Agent in respect of LC Disbursements made under any Letter of
Credit denominated in Canadian Dollars, Euros or Pounds Sterling (other than
amounts in respect of which the Borrower has deposited cash collateral, if such
cash collateral was deposited in the applicable currency), (ii) that the Lenders
are at the time or become thereafter required to pay to the Administrative Agent
(and the Administrative Agent is at the time or becomes thereafter required to
distribute to the applicable Issuing Bank) pursuant to paragraph (e) of this
Section in respect of unreimbursed LC Disbursements made under any Letter of
Credit denominated in Canadian Dollars, Euros or Pounds Sterling and (iii) of
each Lender's participation in any Letter of Credit denominated in Canadian
Dollars, Euros or Pounds Sterling under which an LC Disbursement has been made
shall, automatically and with no further action required, be converted into the
Dollar Equivalent, calculated using the LC Exchange Rates on such date (or in
the case of any LC Disbursement made after such date, on the date such LC
Disbursement is made), of such amounts. On and after such conversion, all
amounts accruing and owed to the Administrative Agent, any Issuing Bank or any
Lender in respect of the obligations described in this paragraph shall accrue
and be payable in dollars at the rates otherwise applicable hereunder.
SECTION 2.04. 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 12:30 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 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 applicable Issuing Bank.
(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
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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 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. It
is agreed that no payment by the Borrower under this paragraph will be subject
to any break-funding payment under Section 2.13.
SECTION 2.05. Interest Elections. (a) Each Borrowing initially shall
be of the Type 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
Borrowing 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 Loans comprising such Borrowing,
and the Loans comprising each such portion shall be considered a separate
Borrowing.
(b) To make an election 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 2.02 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 or
telecopy to the Administrative Agent of a written Interest Election Request
signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.01:
(1) 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 (3) and (4) below shall be specified for each
resulting Borrowing);
(2) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(3) whether the resulting Borrowing is to be an ABR Borrowing or
a Eurodollar Borrowing; and
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(4) 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.
(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 converted to
an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Administrative Agent, at the
request of the Majority Lenders, so notifies the Borrower, 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 2.06. Reductions of Commitments. (a) Unless previously reduced
to zero, the Total Commitment and each LC Commitment shall be reduced to zero on
the Commitment Termination Date.
(b) The Borrower may at any time or from time to time reduce the Total
Commitment; provided that (i) each reduction of the Total Commitment (other than
a reduction of the Total Commitment to zero) shall be in an amount that is an
integral multiple of $1,000,000 and not less than $5,000,000 and (ii) the
Borrower shall not reduce the Total Commitment if, after giving effect to any
concurrent prepayment of the Loans in accordance with Section 2.08, the
aggregate Credit Exposures would exceed the Total Commitment.
(c) The Borrower shall notify the Administrative Agent of any election
to reduce the Total Commitment under paragraph (b) of this Section at least
three Business Days prior to the effective date of such reduction, specifying
such election and the effective date thereof. Promptly following receipt of any
such notice, the Administrative Agent shall advise the Lenders of the contents
thereof. Each notice delivered by the Borrower pursuant to this Section shall be
irrevocable; provided that a notice of reduction of the Total Commitment to zero
delivered by the Borrower may state that such notice is conditioned upon the
effectiveness of other credit facilities or financings, in which case such
notice may be revoked by the Borrower (by notice to the Administrative Agent on
or prior to the specified effective date) if such condition is not satisfied.
Any reduction of
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the Total Commitment shall be permanent. Each reduction of the Commitments shall
be made ratably among the Lenders in accordance with their respective
Commitments.
SECTION 2.07. Repayment of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay on the Commitment Termination Date to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Loan of such Lender.
(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 or held 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 (including any failure to record the making or repayment of any Loan)
shall not in any manner affect the obligation of the Borrower to repay the Loans
in accordance with the terms of this Agreement or prevent the Borrower's
obligations in respect of Loans from being discharged to the extent of amounts
actually paid in respect thereof.
(e) Any Lender may request that Loans made by it be evidenced by a
promissory note. In such event, the Borrower shall prepare, 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
substantially the form set forth in Exhibit C hereto. Thereafter, the Loans
evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 9.04) 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 2.08. Prepayment of Loans. (a) The Borrower shall have the
right at any time and from time to time to prepay any Borrowing in whole or in
part, subject to paragraph (c) of this Section.
(b) The Borrower shall in the event and on each occasion that (i) the
aggregate Credit Exposures exceed the Total Commitments or (ii) the aggregate
Credit Exposures exceed the Borrowing Base then in effect, not later than the
next Business Day, prepay Borrowings in an aggregate amount equal to such
excess, and in the event
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that after such prepayment of Borrowings any such excess shall remain, the
Borrower shall deposit cash in an amount equal to such excess as collateral for
the reimbursement obligations of the Borrower in respect of Letters of Credit;
provided that in the case of any such excess that results from any determination
under Section 1.03 of the Dollar Equivalent of any Letter of Credit denominated
in Canadian Dollars, Euros or Pounds Sterling (i) no prepayment or redesignation
shall be required until the Business Day next succeeding the day on which the
Borrower shall have received notice of such determination under Section 1.03
from the Administrative Agent, and (ii) any such prepayment required in respect
of any excess of the aggregate Credit Exposures over the Borrowing Base then in
effect may, if such excess is in an amount less than $10,000,000, be deferred
until last day of the nearest maturing Interest Period(s) then in effect with
respect to Loan(s) required to be so repaid except to the extent of any excess
of the Credit Exposures over the Total Commitments. Any cash so deposited (and
any cash previously deposited pursuant to this paragraph) with the
Administrative Agent shall be held in an account over which the Administrative
Agent shall have dominion and control to the exclusion of the Borrower and its
Subsidiaries, including the exclusive right of withdrawal. Other than any
interest earned on the investment of such deposits, which investment shall be in
Temporary Cash Investments and shall be made in the discretion of the
Administrative Agent (or, at any time when no Default or Event of Default has
occurred and is continuing, shall be made at the direction of the Borrower) and
at the Borrower's risk and 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 each Issuing Bank 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 or, if the maturity of the Loans has been accelerated (but subject to the
consent of the Majority Lenders), be applied to satisfy other obligations of the
Borrower under this Agreement. If the Borrower has provided cash collateral to
secure the reimbursement obligations of the Borrower in respect of Letters of
Credit hereunder, then, so long as no Event of Default shall exist, such cash
collateral shall be released to the Borrower if so requested by the Borrower at
any time if and to the extent that, after giving effect to such release, the
aggregate amount of the Credit Exposures would not exceed the Total Commitment
and the aggregate Credit Exposures would not exceed the Borrowing Base then in
effect.
(c) The Borrower shall notify the Administrative Agent by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 3:00 p.m., New York City
time, three Business Days before the date of prepayment or (ii) in the case of
prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time,
one Business Day before the date of prepayment; provided that if the Borrower
shall be required to make any prepayment hereunder by reason of Section 2.08(b),
such notice shall be delivered not later than the time at which such prepayment
is made. Each such notice shall be irrevocable and shall specify the prepayment
date and the principal amount of each Borrowing or portion thereof to be
prepaid; provided that, if a notice of prepayment is given in connection with a
conditional notice of reduction of the Total Commitment to zero as contemplated
by Section 2.06(c), then such notice of prepayment may be revoked if such notice
of
70
termination is revoked in accordance with Section 2.06(c). Promptly following
receipt of any such notice relating to a Borrowing, the Administrative Agent
shall advise the Lenders of the contents thereof. Each partial prepayment of any
Borrowing (other than pursuant to Section 2.08(b)) shall be in an amount that
would be permitted in the case of an advance of a Borrowing of the same Type as
provided in Section 2.01. Each prepayment of a Borrowing shall be applied
ratably to the Loans included in the prepaid Borrowing. Prepayments shall be
accompanied by accrued interest to the extent required by Section 2.10.
SECTION 2.09. Fees. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee, accruing
at the Applicable Rate on the daily unused amount of the Commitment of such
Lender during the period from and including the date hereof to but excluding the
date on which such Commitment is reduced to zero. Commitment fees accrued
through and including the last day of March, June, September and December of
each year shall be payable on the third Business Day following such date and on
the date on which the Commitments are reduced to zero, commencing on the first
such date to occur after the date hereof. All commitment fees shall be computed
on the basis of a year of 360 days and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day).
(b) The Borrower agrees to pay (i) to the Administrative Agent, for
the account of each Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at the Applicable Rate
for Eurodollar Borrowings on the average daily amount of such Lender's LC
Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Restatement Date to but
excluding the later of the date on which such Lender's Commitment is reduced to
zero and the date on which such Lender ceases to have any LC Exposure, and (ii)
to each Issuing Bank a fronting fee, which shall accrue at the rate or rates per
annum separately agreed upon between the Borrower and the applicable Issuing
Bank (on the date hereof or any later date on which such Issuing Bank shall have
become an Issuing Bank), on the daily amount of the LC Exposure attributable to
Letters of Credit issued by such Issuing Bank (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and
including the Restatement Date to but excluding the later of the date each LC
Commitment of such Issuing Bank is reduced to zero and the date on which there
ceases to be any LC Exposure attributable to Letters of Credit issued by such
Issuing Bank, as well as such Issuing Bank's standard fees with respect to the
issuance, amendment, renewal or extension of any Letter of Credit or processing
of drawings thereunder. Participation and fronting fees accrued through and
including the last day of March, June, September and December of each year shall
be payable on the third Business Day following such last day, commencing on the
first such date to occur after the Restatement Date; provided that all such
accrued fees shall be payable in respect of LC Exposures on the date on which
the Total Commitment is reduced to zero and any such fees accruing in respect of
LC Exposures after the date on which the Total Commitment is reduced to zero
shall be payable on demand. Any other fees payable to the Issuing Banks pursuant
to this paragraph shall be payable within 10 days after demand. All
participation and fronting fees shall be computed on the basis
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of a year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
(c) The Borrower agrees to pay to the Administrative Agent, for its
own account, fees in the amounts and at the times separately agreed upon between
the Borrower and the Administrative Agent.
(d) All fees and other amounts payable hereunder shall be paid on the
dates due, in immediately available funds, to the Administrative Agent (or to
the Issuing Banks, in the case of fees payable to them) for distribution, where
applicable, to the Lenders. Fees paid shall not be refundable under any
circumstances.
SECTION 2.10. Interest. (a) The Loans comprising each ABR Borrowing
shall bear interest at the Alternate Base Rate plus the Applicable Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest
at the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing
plus the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or interest on
any Loan or any fee or other amount payable by the Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2.00% plus
the rate otherwise applicable to such Loan as provided in the preceding
paragraphs of this Section or (ii) in the case of any other amount, 2.00% plus
the rate applicable to ABR Loans as provided in paragraph (a) of this Section.
(d) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and shall be payable for each Loan upon
reduction of the Total Commitment to zero; provided that (i) interest accrued
pursuant to paragraph (c) of this Section shall be payable on demand, (ii) in
the event of any repayment or prepayment of any Loan (other than a prepayment of
an ABR Loan prior to the end of the Availability Period), accrued interest on
the principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (iii) in the event of any conversion of any
Eurodollar Loan prior to the end of the current Interest Period therefor,
accrued interest on such Loan shall be payable on the effective date of such
conversion.
(e) All interest hereunder shall be computed on the basis of a year of
360 days, except that interest computed by reference to the Alternate Base Rate
at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate or
Adjusted LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
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SECTION 2.11. Alternate Rate of Interest. If prior to the commencement
of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate for such Interest Period; or
(b) the Administrative Agent is advised by the Majority Lenders that
the Adjusted LIBO Rate for such Interest Period will not adequately and
fairly reflect the cost to such Lenders (or any Lender) of making or
maintaining their Loans (or its Loan) included in such Borrowing for such
Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing. Each determination by the
Administrative Agent hereunder shall be conclusive absent manifest error.
SECTION 2.12. Increased Costs. (a) If any Change in Law shall:
(1) 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 any
Issuing Bank; or
(2) impose on any Lender or any Issuing Bank or the London
interbank market any other condition (other than Taxes) 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 the
Commitment of such Lender) or to increase the cost to such Lender or such
Issuing Bank 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 such
Issuing Bank hereunder (whether of principal, interest or otherwise), in each
case by an amount deemed by such Lender or Issuing Bank, as the case may be, to
be material, then the Borrower will pay to such Lender or such Issuing Bank such
additional amount or amounts as will compensate such Lender or such Issuing
Bank, as the case may be, for such additional costs incurred or reduction
suffered.
(b) If any Lender or any Issuing Bank determines that any Change in
Law regarding capital requirements has had or would have the effect of reducing
the rate of return on such Lender's or such Issuing Bank's capital or on the
capital of such Lender's or such Issuing Bank's holding company, if any, in each
case by an amount deemed by
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such Lender or such Issuing Bank to be material, as a consequence of this
Agreement or the Commitment of such Lender or the Loans or participations in
Letters of Credit held by such Lender, or the Letters of Credit issued by such
Issuing Bank, to a level below that which such Lender or such Issuing Bank or
such Lender's or such Issuing Bank's holding company would have achieved but for
such Change in Law (taking into consideration such Lender's or such Issuing
Bank's policies and the policies of such Lender's or such Issuing Bank's holding
company with respect to capital adequacy), then from time to time the Borrower
will pay to such Lender or such Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or such Issuing Bank
or such Lender's or such Issuing Bank's holding company for any such reduction
suffered.
(c) A certificate of a Lender or an Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or such Issuing Bank 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. The Borrower shall pay such
Lender or such Issuing Bank, as the case may be, the amount shown as due on any
such certificate within 10 days after receipt thereof, unless such amount is
being contested by the Borrower in good faith.
(d) Failure or delay on the part of any Lender or Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or such Issuing Bank's right to demand such compensation; provided
that the Borrower shall not be required to compensate a Lender or an Issuing
Bank pursuant to this Section for any increased costs or reductions incurred
more than 180 days prior to the date that such Lender or such Issuing Bank
notifies the Borrower of the Change in Law giving rise to such increased costs
or reductions and of such Lender's or such Issuing Bank's intention to claim
compensation therefor; provided further that, if the Change in Law giving rise
to such increased costs or reductions is retroactive, then the 180-day period
referred to above shall be extended to include the period of retroactive effect
thereof.
SECTION 2.13. 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, (c) the failure to borrow, continue
or prepay any Eurodollar Loan, or to convert any Loan to a Eurodollar Loan, on
the date specified in any notice delivered pursuant hereto (regardless of
whether such notice may be revoked under Section 2.08(c) and is revoked in
accordance therewith), 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 2.16, 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
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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. The Borrower shall pay such Lender
the amount shown as due on any such certificate within 10 days after receipt
thereof, unless such amount is being contested by the Borrower in good faith.
SECTION 2.14. Taxes. (a) Any and all payments by or on account of any
obligation of the Borrower or any other Credit Party hereunder or under any
other Credit Document shall be made free and clear of and without deduction for
any Indemnified Taxes or Other Taxes; provided that if the Borrower or any other
Credit Party 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 of such Taxes (including deductions
applicable to additional sums payable under this Section) the Administrative
Agent, Issuing Bank or Lender (as the case may be) receives an amount equal to
the sum it would have received had no such deductions been made (and the
Borrower shall pay or cause such Credit Party to pay such increased amount),
(ii) the Borrower or such other Credit Party shall make such deductions and
(iii) the Borrower or such other Credit Party shall pay the full amount deducted
to the relevant Governmental Authority in accordance with applicable law.
(b) The Borrower shall indemnify the Administrative Agent, each
Issuing Bank and each 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 Issuing Bank or such Lender, as the case may be, on
or with respect to any payment by or on account of any obligation of the
Borrower or any other Credit Party hereunder or under any other Credit Document
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any penalties, interest
and reasonable out-of-pocket 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 applicable Issuing Bank or by the Administrative Agent on its own behalf
or on behalf of the applicable Issuing Bank or a Lender, shall be conclusive
absent manifest error.
(c) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower or any other Credit Party to a Governmental
Authority, the Borrower shall deliver to the Administrative Agent the original
or a certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such payment or other
evidence of such payment reasonably satisfactory to the Administrative Agent.
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(e) Any Foreign 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 (with a
copy to the Administrative Agent), at the time such Foreign Lender first becomes
a party to this Agreement and at the time or times prescribed by applicable law,
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 Foreign Lender has
received written notice from the Borrower advising it of the availability of
such exemption or reduction and supplying all applicable documentation; and
provided further that no such written notice shall be required with respect to
the applicable IRS Form W-8 a Foreign Lender is required to deliver to the
Borrower to permit payments to be made without withholding of U.S. Federal
income tax (or at a reduced rate of U.S. withholding tax).
SECTION 2.15. Payments Generally; Pro Rata Treatment; Sharing of
Setoffs. (a) Except as required or permitted under Section 2.02, 2.03, 2.12,
2.13, 2.14, 2.16 or 9.03, each Borrowing, each payment or prepayment of
principal of any Borrowing or of any LC Disbursement, each payment of interest
on the Loans or the LC Disbursements, each payment of fees (other than fees
payable to the Issuing Banks), each reduction of the Total Commitment and each
refinancing of any Borrowing with a Borrowing of any Type, shall be allocated
pro rata among the Lenders in accordance with their respective Commitments (or,
if such Commitments shall have expired or been reduced to zero, in accordance
with the respective principal amounts of their outstanding Loans or LC
Exposures, as applicable). Each Lender agrees that in computing such Lender's
portion of any Borrowing to be made hereunder, the Administrative Agent may, in
its discretion, round each Lender's percentage of such Borrowing to the next
higher or lower whole dollar amount.
(b) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees or reimbursement of LC
Disbursements, or of amounts payable under Section 2.12, 2.13 or 2.14 or
otherwise) prior to 1:00 p.m., New York City time, on the date when due, in
immediately available funds, without setoff, counterclaim or other deduction.
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 to the applicable account specified by
the Administrative Agent for the account of the applicable Lenders or, in any
such case, to such other account as the Administrative Agent shall from time to
time specify in a notice delivered to the Borrower, except payments to be made
directly to an Issuing Bank as expressly provided herein and except that
payments pursuant to Sections 2.12, 2.13, 2.14, 2.16 and 9.03 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
in appropriate ratable shares to the appropriate recipient or recipients
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
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thereon shall be payable for the period of such extension. All payments
hereunder shall be made in dollars, except as otherwise expressly provided. Any
payment required to be made by the Administrative Agent hereunder shall be
deemed to have been made by the time required if the Administrative Agent shall,
at or before such time, have taken the necessary steps to make such payment in
accordance with the regulations or operating procedures of the clearing or
settlement system used by the Administrative Agent to make such payment.
(c) 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 and fees then due hereunder, such funds shall be applied
(i) first, towards payment of interest and fees then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, towards payment of principal
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.
(d) If any Lender shall, by exercising any right of setoff or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Loans or participations in LC Disbursements resulting in
such Lender receiving payment of a greater proportion of the aggregate amount of
its Loans, participations in LC Disbursements and accrued interest thereon than
the proportion received by any other Lender, then the Lender receiving such
greater proportion shall purchase (for cash at face value) participations in the
Loans and participations in LC Disbursements of other Lenders to the extent
necessary so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Loans and participations in LC
Disbursements. If any participations are purchased pursuant to the preceding
sentence and all or any portion of the payments giving rise thereto are
recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest. The provisions of
this paragraph shall not be construed to apply to any payment made by the
Borrower pursuant to and in accordance with the express terms of this Agreement
or any payment obtained by a Lender as consideration for the assignment of or
sale of a participation in its Commitment or any of its Loans or participations
in LC Disbursements to any assignee or participant, other than to the Borrower
or any Affiliate thereof (as to which the provisions of this paragraph shall
apply). The Borrower consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law and under this Agreement, that any Lender
acquiring a participation pursuant to the foregoing arrangements may exercise
against the Borrower rights of setoff and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the Borrower
in the amount of such participation.
(e) 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 any Issuing Bank hereunder that the
Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made
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such payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders or the Issuing Banks, 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 Banks, 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 Bank, and to pay interest
thereon for each day from and including the date such amount shall have been
distributed to it to but excluding the date of payment to or recovery by 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.
(f) If any Lender shall fail to make any payment required to be made
by it hereunder for the account of the Administrative Agent, any Issuing Bank or
any Lender, 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 in respect of such payment until all such unsatisfied
obligations are fully paid.
SECTION 2.16. Mitigation Obligations; Replacement of Lenders. (a) If
any Lender requests compensation under Section 2.12 or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.14, 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 judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.12 or 2.14, 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 2.12, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.14,
or if any Lender shall become the subject of any insolvency or similar
proceeding or filing or default 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 9.04), 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, which
consent shall not unreasonably be withheld, (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 or the Borrower, as
the case may be, and (iii) in the case of any such assignment resulting from a
claim for compensation under Section 2.12 or payments required to be
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made pursuant to Section 2.14, such assignment will result in a reduction in
such compensation or payments. If any Lender shall become the subject of any
insolvency or similar proceeding or filing, then the Borrower, if requested to
do so by any Issuing Bank, shall use commercially reasonable efforts (which
shall not include the payment of any compensation) to identify an assignee
willing to purchase and assume the interests, rights and obligations of such
Lender under this Agreement and to require such Lender to assign and delegate
all such interests, rights and obligations to such assignee in accordance with
the preceding sentence.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Administrative Agent, the
Lenders and the Issuing Banks that:
SECTION 3.01. Organization; Powers. The Borrower and each of the other
Credit Parties is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, would not be reasonably
likely to result in a Material Adverse Change, is qualified to do business, and
is in good standing, in every jurisdiction where such qualification is required.
Each Subsidiary of the Borrower other than the Credit Parties is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite power and authority to carry on its business as
now conducted and is qualified to do business, and is in good standing, in every
jurisdiction where such qualification is required, except for failures that,
individually or in the aggregate, would not be materially likely to result in a
Material Adverse Change.
SECTION 3.02. Authorization; Enforceability. The Transactions to be
entered into by each Credit Party are within such Credit Party's powers and have
been duly authorized. This Agreement has been duly executed and delivered by the
Borrower and constitutes, and each other Credit Document to which any Credit
Party is or is to be a party constitutes or, when executed and delivered by such
Credit Party, will constitute, a legal, valid and binding obligation of the
Borrower or such Credit Party, as the case may be, enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors' rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding
in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. (a) Except to the
extent that no Material Adverse Change would be materially likely to result, the
Transactions (i) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except such as
are required to perfect Liens created under the Security Documents and such as
have been obtained or made and are in full force and effect, (ii) do not and
will not violate any applicable law or regulation or the charter, by-laws or
other organizational documents of the Borrower or
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any of the Subsidiaries or any order of any Governmental Authority, (iii) do not
and will not violate or result in a default under any indenture, agreement or
other instrument binding upon the Borrower or any of the Subsidiaries or any of
their assets, and (iv) do not and will not result in the creation or imposition
of any Lien on any asset of the Borrower or any of the Subsidiaries, except
Liens created under the Credit Documents.
(b) The incurrence of each Loan, Letter of Credit and LC Disbursement,
each Guarantee thereof under the Credit Documents and each Lien securing any of
the Obligations, is permitted under the Junior Lien Indenture and each other
indenture or other agreement governing any Senior Subordinated-Lien Indebtedness
in effect at the time of such incurrence, and the Loans, Letters of Credit, LC
Disbursements and Guarantees thereof under the Credit Documents constitute
Designated Senior Obligations under the Lien Subordination and Intercreditor
Agreement.
SECTION 3.04. Financial Statements; No Material Adverse Change. (a)
The Borrower has heretofore furnished to the Lenders its consolidated balance
sheet and statements of income, stockholders' equity and cash flows as of and
for the fiscal year ended December 31, 2006. Such financial statements present
fairly, in all material respects, the consolidated financial position and
consolidated results of operations and cash flows of the Borrower and its
Consolidated Subsidiaries as of such date and for such fiscal year in accordance
with GAAP.
(b) Except as disclosed in the Disclosure Documents, since December
31, 2006, there has been no event or condition that constitutes or would be
materially likely to result in a Material Adverse Change, it being agreed that a
reduction in any rating relating to the Borrower issued by any rating agency
shall not, in and of itself, be an event or condition that constitutes or would
be materially likely to result in a Material Adverse Change (but that events or
conditions underlying or resulting from any such reduction may constitute or be
materially likely to result in a Material Adverse Change).
SECTION 3.05. Litigation and Environmental Matters. (a) Except as set
forth in the Disclosure Documents, there are no actions, suits or proceedings by
or before any arbitrator or Governmental Authority pending or, to the knowledge
of the Borrower, threatened against or affecting the Borrower or any of the
Subsidiaries (i) as to which there is a reasonable possibility of an adverse
determination and that if adversely determined would be materially likely,
individually or in the aggregate, to result in a Material Adverse Change or (ii)
as of the Restatement Date, that involve the Credit Documents or the
Transactions.
(b) Except as set forth in the Disclosure Documents, and except with
respect to matters that, individually or in the aggregate, would not be
materially likely to result in a Material Adverse Change, neither the Borrower
nor any of the Subsidiaries (i) has failed to comply with any Environmental Law
or to obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) has become subject to any
Environmental Liability, (iii) has received notice of any claim with respect to
any Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
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SECTION 3.06. Compliance with Laws and Agreements. The Borrower and
each of the Subsidiaries is in compliance with all laws, regulations and orders
of any Governmental Authority applicable to it or its property and all
indentures, agreements and other instruments binding upon it or its property,
except where the failure to be in compliance, individually or in the aggregate,
would not be materially likely to result in a Material Adverse Change. No Event
of Default has occurred and is continuing.
SECTION 3.07. Investment Company Status. Neither the Borrower nor any
of the Subsidiaries is an "investment company" as defined in, or subject to
regulation under, the Investment Company Act of 1940, as amended.
SECTION 3.08. ERISA and Canadian Pension Plans. (a) Except as
disclosed in the Disclosure Documents, no ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other ERISA
Events that have occurred or are reasonably expected to occur, would be
materially likely to result in a Material Adverse Change.
(b) Except as would not be materially likely to result in a Material
Adverse Change, (i) the Canadian Pension Plans are duly registered under the
Income Tax Act (Canada) and all other applicable laws which require registration
and no event has occurred which is reasonably likely to cause the loss of such
registered status; (ii) all material obligations of each Credit Party (including
fiduciary, funding, investment and administration obligations) required to be
performed in connection with the Canadian Pension Plans and the funding
agreements therefor have been performed in a timely fashion; (iii) to the
knowledge of the Credit Parties there have been no improper withdrawals of the
assets of the Canadian Pension Plans or the Canadian Benefit Plans; (iv) there
are no outstanding material disputes concerning the assets of the Canadian
Pension Plans or the Canadian Benefit Plans; and (v) each of the Canadian
Pension Plans is being funded in accordance with the actuarial valuation reports
last filed with the applicable Governmental Authorities and which are consistent
with generally accepted actuarial principles.
SECTION 3.09. Disclosure. None of the reports, financial statements,
certificates or other written information referred to in Section 3.04 or
delivered after the date hereof by or on behalf of any Credit Party to the
Administrative Agent, the Collateral Agent or any Lender pursuant to Section
5.01 (taken together with all other information so furnished and as modified or
supplemented by other information so furnished) contained or will contain, in
each case as of the date delivered, any material misstatement of fact or omitted
or will omit to state, in each case as of the date delivered, any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that, with respect to
projected financial information or other forward looking information, the
Borrower represents only that such information was prepared in good faith based
upon assumptions believed to be reasonable at the time.
SECTION 3.10. Security Interests. (a) Each of the Guarantee and
Collateral Agreement, the Reaffirmation Agreement and the Canadian Security
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Agreements is or, when executed and delivered, will be, effective to create or
continue in favor of the Collateral Agent for the benefit of the Secured Parties
a valid and enforceable security interest in the Collateral, to the extent
contemplated by the Guarantee and Collateral Agreement, the Reaffirmation
Agreement or the Canadian Security Agreements, as the case may be, and (i) when
the Collateral constituting certificated securities (as defined in the
applicable Uniform Commercial Code) was or is delivered to the Collateral Agent
thereunder, together with instruments of transfer duly endorsed in blank, the
Guarantee and Collateral Agreement created or will create, to the extent
contemplated by the Guarantee and Collateral Agreement, a perfected security
interest in all right, title and interest of the Grantors in such certificated
securities to the extent perfection is governed by the applicable Uniform
Commercial Code as in effect in any applicable jurisdiction, subject to no other
Lien other than Liens permitted under Section 6.06 that take priority over
security interests in certificated securities perfected by the possession of
such securities under the Uniform Commercial Code as in effect in the applicable
jurisdiction, and (ii) when financing statements in appropriate form were or are
filed, and any other applicable registrations were or are made, in the offices
specified in the Restatement Date Perfection Certificate, the Guarantee and
Collateral Agreement, the Reaffirmation Agreement and the Canadian Security
Agreements created or will create or continue a perfected security interest (or
hypothec, as applicable) in all right, title and interest of the Grantors in the
remaining Collateral to the extent perfection can be obtained by filing Uniform
Commercial Code financing statements and making such other applicable filings
and registrations in such jurisdictions, subject to no other Lien other than
Liens permitted under Section 6.06. The exclusion of the Consent Assets (as
defined in the Guarantee and Collateral Agreement) from the Collateral does not
materially reduce the aggregate value of the Collateral.
(b) Each Mortgage creates or, upon execution and delivery by the
parties thereto, will create in favor of the Collateral Agent, for the benefit
of the Secured Parties, a legal, valid and enforceable Lien on all the
applicable mortgagor's right, title and interest in and to the Mortgaged
Properties subject thereto and the proceeds thereof, and the Mortgages create
or, when the Mortgages have been filed or registered in the counties specified
in Schedule 3.10(b), will create perfected Liens on all right, title and
interest of the mortgagors in the Mortgaged Properties and the proceeds thereof,
prior and superior in right to Liens in favor of any other Person (other than
Liens or other encumbrances for which exceptions are taken in the policies of
title insurance delivered in respect of the Mortgaged Properties on or prior to
the Restatement Date and Liens permitted under Section 6.06).
(c) The Guarantee and Collateral Agreement currently on file with the
United States Patent and Trademark Office and the Canadian Security Agreements
currently on file with the Canadian Intellectual Property Office, create in
favor of the Collateral Agent, for the benefit of the Secured Parties, a
perfected Lien on all right, title and interest of the Grantors in the Material
Intellectual Property in which a security interest may be perfected by such
recordation in the United States Patent and Trademark Office or the Canadian
Intellectual Property Office, as the case may be, in each case (i) prior and
superior in right to any other Person and (ii) subject to no other Lien other
than, in the case of (i) and (ii), Liens permitted under Section 6.06 (it being
understood
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that subsequent recordings in the United States Patent and Trademark Office or
the Canadian Intellectual Property Office, as the case may be, may be necessary
to perfect a Lien on registered trademarks and trademark applications acquired
by the Grantors after the Restatement Date). As of the Restatement Date,
Schedule 3.10(c) sets forth all the Material Intellectual Property.
(d) The Guarantee and Collateral Agreement currently on file with the
Federal Aviation Administration creates in favor of the Collateral Agent, for
the benefit of the Secured Parties, a perfected Lien on all right, title and
interest of the Grantors in the Aircraft Collateral (as defined in the Guarantee
and Collateral Agreement) in which a security interest may be perfected by such
recordation with the Federal Aviation Administration, in each case prior and
superior in right to any other Person, subject to no other Lien other than Liens
permitted under Section 6.06.
(e) None of the Restatement Date Perfection Certificate or any other
written information relating to the Collateral delivered after the date hereof
by or on behalf of any Credit Party to the Administrative Agent, the Collateral
Agent or any Lender pursuant to any provision of any Credit Document is or will
be incorrect when delivered in any respect material to the rights or interests
of the Lenders under the Credit Documents.
SECTION 3.11. Use of Proceeds and Letters of Credit. The proceeds of
the Loans and the Letters of Credit will be used only for the purposes referred
to in the preamble to this Agreement. No part of the proceeds of any Loan will
be used, whether directly or indirectly, for any purpose that entails a
violation of any of the Regulations of the Board, including Regulations T, U and
X.
ARTICLE IV
Conditions
SECTION 4.01. Restatement Date. This Agreement shall not become
effective until the date on which each of the following conditions is satisfied
(or waived or deferred in accordance with Section 9.02 or the penultimate
paragraph of this Section 4.01):
(a) The Administrative Agent shall have received favorable written
opinions (addressed to the Administrative Agent, the Lenders and the
Issuing Banks and dated the Restatement Date) of (i) ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
LLP, counsel for the Borrower, substantially in the form of Exhibit E-1,
and (ii) the General Counsel, the Associate General Counsel or an Assistant
General Counsel of the Borrower, substantially in the form of Exhibit E-2,
and covering such other matters relating to the Credit Parties, the Credit
Documents or the Transactions as the Administrative Agent or the Majority
Lenders shall reasonably request.
(b) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably
request
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relating to the organization, existence and good standing of each Credit
Party, the authorization by the Credit Parties of the Transactions and any
other legal matters relating to the Borrower, the other Credit Parties, the
Credit Documents or the Transactions, all in form and substance reasonably
satisfactory to the Administrative Agent and its counsel.
(c) The DF Commitments (as defined in the Existing Credit Agreement)
shall have terminated, all DF Loans (as defined in the Existing Credit
Agreement) shall have been repaid, all other amounts outstanding or accrued
for the accounts of or owing to the DF Lenders (as defined in the Existing
Credit Agreement), including their Deposits (as defined in the Existing
Credit Agreement) shall have been paid and all DF Letters of Credit (as
defined in the Existing Credit Agreement) shall have been canceled or
returned or continued hereunder as Existing Letters of Credit.
(d) The Obligations shall have been designated by the Borrower as, and
shall be, "Designated Senior Obligations" under the Lien Subordination and
Intercreditor Agreement.
(e) The amendment and restatement of the Second Lien Agreement shall
have become effective or shall concurrently become effective in
substantially the form thereof most recently posted to IntraLinks prior to
the date hereof with only such changes thereto as shall not be adverse to
the Lenders in any material respect and shall have been approved by the
Administrative Agent. All conditions to the effectiveness of the amendment
and restatement of the Second Lien Agreement shall have been satisfied. The
Collateral Agent and the collateral agent for the Second Lien Agreement
shall have reaffirmed application of the Lenders Lien Subordination
Agreement in respect of the Obligations and the obligations under the
amended and restated Second Lien Agreement.
(f) The representations and warranties set forth in Article III shall
be true and correct in all material respects on the Restatement Date and
the Administrative Agent shall have received a certificate signed by a
Financial Officer to that effect.
(g) The Borrower and the other Credit Parties shall be in compliance
with all the terms and provisions set forth herein and in the other Credit
Documents in all material respects on their part to be observed or
performed, and at the time of and immediately after the Restatement Date,
no Default shall have occurred and be continuing, and the Administrative
Agent shall have received a certificate signed by a Financial Officer to
that effect.
(h) The Administrative Agent shall have received all fees and other
amounts due and payable or accrued on or prior to the Restatement Date
hereunder or under the Existing Credit Agreement, including, to the extent
invoiced, reimbursement or payment of all out-of-pocket expenses required
to be reimbursed or paid by the Borrower.
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(i) The Administrative Agent shall have received (i) a completed
Restatement Date Perfection Certificate dated the Restatement Date and
signed by a Financial Officer, together with all attachments contemplated
thereby, and (ii) the results of a search of the Uniform Commercial Code
(or equivalent) filings or registrations made with respect to the Credit
Parties in the jurisdictions referred to in paragraph 1 of the Restatement
Date Perfection Certificate and copies of the financing statements (or
similar documents) disclosed by such search.
(j) The Administrative Agent shall have received from the Borrower and
each Subsidiary Guarantor (other than the Excluded Subsidiaries and the
Consent Subsidiaries) a counterpart of the Reaffirmation Agreement duly
executed and delivered on behalf of the Borrower or such Subsidiary as a
Guarantor and (in the case of each Subsidiary that is a Grantor under the
Guarantee and Collateral Agreement or a Canadian Grantor under any Canadian
Security Agreement) a Grantor.
(k) The Collateral Agent shall have received certificates representing
all Capital Stock (other than any uncertificated Capital Stock) pledged
pursuant to the Guarantee and Collateral Agreement, together with undated
stock powers or other instruments of transfer with respect thereto endorsed
in blank.
(l) All Uniform Commercial Code financing statements or other personal
property security filings and recordations with the United States Patent
and Trademark Office, the Canadian Intellectual Property Office and the
Federal Aviation Administration required by law or reasonably requested by
the Collateral Agent to be filed or recorded to perfect or continue the
Liens intended to be created on the Collateral (to the extent such Liens
may be perfected or continued by filings under the Uniform Commercial Code
as in effect in any applicable jurisdiction or by filings or registrations
under applicable Canadian personal property security legislation or by
filings with the United States Patent and Trademark Office or the Federal
Aviation Administration) shall have been filed or recorded or delivered to
the Collateral Agent for filing or recording.
(m) The Collateral Agent shall have received (i) counterparts of an
amended and restated Mortgage with respect to each Mortgaged Property, duly
executed and delivered by the record owner of such Mortgaged Property, (ii)
endorsements issued by the applicable nationally recognized title insurance
company to each applicable policy of title insurance insuring the Lien of
each such Mortgage as amended and restated as a valid first Lien on the
Mortgaged Property described therein, free of any other Liens (other than
Liens referred to in such policies of title insurance and acceptable to the
Administrative Agent and Liens permitted by Section 6.06), together with
such other endorsements as the Collateral Agent or the Majority Lenders may
reasonably request, and (iii) such legal opinions and other documents as
shall reasonably have been requested by the Collateral Agent with respect
to any such amended and restated Mortgage or Mortgaged Property.
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(n) The Administrative Agent shall have received from each "Deposit
Account Institution" that is required to be party to a "Lockbox Agreement"
(as such terms are defined in the Guarantee and Collateral Agreement)
evidence that such agreement has been duly executed by all requisite
parties and has become effective.
(o) The Administrative Agent shall have received a Borrowing Base
Certificate and the related certificate of a Financial Officer in
accordance with the provisions of Section 5.09 of this Agreement after
giving effect to the amendment and restatement hereof on the Restatement
Date in replacement of the last monthly Borrowing Base Certificate
delivered prior to the Restatement Date.
The Collateral Agent may enter into agreements with the Borrower to
grant extensions of time for the perfection of security interests in or the
delivery of surveys, title insurance, legal opinions or other documents with
respect to particular assets where it determines that perfection cannot be
accomplished or such documents cannot be delivered without undue effort or
expense by the Restatement Date or any later date on which they are required to
be accomplished or delivered under this Agreement or the Security Documents. Any
failure of the Borrower to satisfy a requirement of any such agreement by the
date specified therein (or any later date to which the Collateral Agent may
agree) shall constitute a breach of the provision of this Agreement or the
Security Document under which the original requirement was applicable. Without
limiting the foregoing, it is anticipated that the actions listed on Schedule
4.01 will not have been completed by the Restatement Date, and the Borrower
covenants and agrees that each of such actions will be completed by the date
specified for such action in such Schedule 4.01 (or any later date to which the
Collateral Agent may agree) and that the Borrower will comply with all of the
undertakings set forth in Schedule 4.01.
The Administrative Agent shall notify the Borrower and the Lenders of
the Restatement Date in writing, and such notice shall be conclusive and
binding. Notwithstanding the foregoing, the obligations of the Lenders to make
Loans and the Issuing Banks to issue Letters of Credit hereunder shall not
become effective unless each of the foregoing conditions shall have been
satisfied (or waived pursuant to Section 9.02) at or prior to 5:00 p.m., New
York City time, on April 30, 2007 (and, in the event such conditions are not so
satisfied or waived, the Total Commitment shall be reduced to zero at such
time).
SECTION 4.02. Each Credit Event. (a) The obligation of each Lender to
make a Loan on the occasion of any Borrowing (other than a conversion or
continuation of an outstanding Borrowing and other than a Borrowing to reimburse
an LC Disbursement made pursuant to Section 2.03(e)) and of each Issuing Bank to
issue, amend, renew or extend any Letter of Credit, shall be subject to the
satisfaction of the following conditions:
(1) The representations and warranties of the Borrower set forth
in this Agreement and in the other Credit Documents (insofar as the
representations and warranties in such other Credit Documents relate
to
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the transactions provided for herein or to the Collateral securing the
Obligations) shall be true and correct in all respects material to the
rights or interests of the Lenders or the Issuing Banks under the
Credit Documents on and as of the date of such Borrowing or the date
of issuance, amendment, renewal or extension of such Letter of Credit,
as applicable, with the same effect as though made on and as of such
date, except to the extent such representations and warranties
expressly relate to an earlier date.
(2) After giving effect to such Borrowing or the issuance,
amendment, renewal or extension of such Letter of Credit, as
applicable, the aggregate Credit Exposure shall not exceed the
Borrowing Base Availability then in effect.
(3) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such
Letter of Credit, as applicable, no Default or Event of Default shall
have occurred and be continuing and no breach of the delivery
requirements of Section 5.01(a) or (b) shall have occurred and be
continuing.
(b) The obligation of each Lender to make a Loan on the occasion of
any Borrowing deemed to have been requested by the Borrower to reimburse an LC
Disbursement pursuant to Section 2.03(e) shall be subject to the satisfaction of
the conditions that (i) at the time of and immediately after giving effect to
such Borrowing, no Event of Default shall have occurred and be continuing, and
(ii) after giving effect to such Borrowing, the aggregate Credit Exposure shall
not exceed the Borrowing Base Availability then in effect.
(c) Each Borrowing and each issuance, amendment, renewal or extension
of a Letter of Credit shall be deemed to constitute a representation and
warranty by the Borrower on the date thereof as to the matters specified in
clauses (1), (2) and (3) of paragraph (a) above or in paragraph (b) above, as
the case may be.
ARTICLE V
Affirmative Covenants
Until the Commitments shall have been reduced to zero and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed, the Borrower covenants and
agrees with the Administrative Agent, the Lenders and the Issuing Banks that:
SECTION 5.01. Financial Statements and Other Information. The Borrower
will furnish to the Administrative Agent and each Lender and Issuing Bank:
(a) as soon as available and in any event within 110 days after the
end of each fiscal year of the Borrower, its audited consolidated balance
sheet and
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related statements of income, stockholders' equity and cash flows as of the
end of and for such year, setting forth in each case in comparative form
the figures for the previous fiscal year, all reported on by
PricewaterhouseCoopers or other independent public accountants of
recognized national standing (without any qualification or exception as to
the scope of such audit) to the effect that such consolidated financial
statements present fairly in all material respects the financial condition
and results of operations of the Borrower and its Consolidated Subsidiaries
in accordance with GAAP consistently applied;
(b) as soon as available and in any event within 60 days after the end
of each of the first three fiscal quarters of each fiscal year of the
Borrower, its consolidated balance sheet and related statements of income,
stockholders' equity and cash flows as of the end of and for such fiscal
quarter and the then elapsed portion of the fiscal year, setting forth in
each case in comparative form the figures for the corresponding period or
periods of (or, in the case of the balance sheet, as of the end of) the
previous fiscal year, all certified by one of its Financial Officers as
presenting fairly in all material respects the financial condition and
results of operations of the Borrower and its Consolidated Subsidiaries in
accordance with GAAP consistently applied, subject to normal year-end audit
adjustments and the absence of footnotes;
(c) other than in connection with the delivery of financial statements
for the fiscal period ended March 31, 2007, not later than one Business Day
after each delivery of financial statements under clause (a) or (b) above,
a certificate of a Financial Officer (i) certifying as to whether a Default
has occurred and, if a Default has occurred, specifying the details thereof
and any action taken or proposed to be taken with respect thereto, (ii)
demonstrating compliance with Section 6.09 at the end of the period to
which such financial statements relate and for each applicable period then
ended, and (iii) stating whether any change in GAAP or in the application
thereof has occurred since the date of the most recent audited financial
statements delivered under clause (a) above (or, prior to the delivery of
any such financial statements, since December 31, 2006) and, if any such
change has occurred, specifying the effect of such change on the financial
statements accompanying such certificate;
(d) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
the Borrower or any Subsidiary with the SEC, or any Governmental Authority
succeeding to any or all of the functions of the SEC, or with any national
securities exchange, or distributed by the Borrower to its shareholders
generally, as the case may be;
(e) other than in connection with the delivery of financial statements
for the fiscal period ended March 31, 2007, not later than one Business Day
after each delivery of financial statements under clause (a) or (b) above,
and at such other times as the Borrower may determine, a certificate of a
Financial Officer identifying each Domestic Subsidiary formed or acquired
after the Restatement
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Date and not previously identified in a certificate delivered pursuant to
this paragraph, stating whether each such Domestic Subsidiary is a Consent
Subsidiary and describing the factors that shall have led to the
identification of any such Domestic Subsidiary as a Consent Subsidiary;
(f) from time to time, all information and documentation required to
be delivered under Section 4.04 of the Guarantee and Collateral Agreement;
(g) other than in connection with the delivery of financial statements
for the fiscal period ended March 31, 2007, not later than one Business Day
after each delivery of financial statements under clause (a) or (b) above,
a certificate of a Financial Officer of the Borrower certifying that the
requirements of Section 5.08 have been satisfied in all material respects;
and
(h) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Borrower or any Subsidiary, or compliance with the terms of this Agreement
or the other Credit Documents, or the perfection of the security interests
created by the Security Documents, as the Administrative Agent or any
Lender may reasonably request.
Information required to be delivered pursuant to this Section 5.01
shall be deemed to have been delivered if such information, or one or more
annual or quarterly reports containing such information, shall have been posted
by the Administrative Agent on an IntraLinks or similar site to which the
Lenders have been granted access or shall be available on the website of the SEC
at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇; provided that the Borrower shall deliver paper copies of
such information to any Lender that requests such delivery. Information required
to be delivered pursuant to this Section 5.01 may also be delivered by
electronic communications pursuant to procedures approved by the Administrative
Agent.
SECTION 5.02. Notices of Defaults. The Borrower will furnish to the
Administrative Agent, each Issuing Bank and each Lender prompt written notice of
the occurrence of any Default, together with a statement of a Financial Officer
or other executive officer of the Borrower setting forth the details of the
event or development requiring such notice and any action taken or proposed to
be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. The Borrower will, and
will cause each of the Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of its business, except to the extent that failures to keep in
effect such rights, licenses, permits, privileges and franchises would not be
materially likely, individually or in the aggregate for all such failures, to
result in a Material Adverse Change; provided that the foregoing shall not
prohibit any merger, consolidation, liquidation or dissolution permitted under
Section 6.08.
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SECTION 5.04. Maintenance of Properties. The Borrower will, and will
cause each of the Subsidiaries to, keep and maintain all its property in good
working order and condition, ordinary wear and tear excepted, except to the
extent any failure to do so would not, individually or in the aggregate, be
materially likely to result in a Material Adverse Change (it being understood
that the foregoing shall not prohibit any sale of any assets permitted by
Section 6.04).
SECTION 5.05. Books and Records; Inspection and Audit Rights. (a) The
Borrower will, and will cause each of the Subsidiaries to, keep books of record
and account sufficient to enable the Borrower to prepare the financial
statements and other information required to be delivered under Section 5.01.
The Borrower will, and will cause each of the Subsidiaries to, permit any
representatives designated by the Administrative Agent (or by any Lender acting
through the Administrative Agent), upon reasonable prior notice, to visit and
inspect its properties (accompanied by a representative of the Borrower) and to
discuss its affairs, finances and condition with its officers, all at such
reasonable times and as often as reasonably requested.
(b) The Borrower will, and will cause each of the other Grantors to,
permit any representatives designated by the Administrative Agent (including any
consultants, accountants, lawyers and appraisers retained by the Administrative
Agent) (or by any Lender acting through the Administrative Agent) to conduct one
evaluation and one appraisal in any fiscal year of the Borrower's computation of
the Borrowing Base and the assets included in the Borrowing Base and such other
assets and properties of the Borrower or the Subsidiaries as the Administrative
Agent or Majority Lenders may reasonably require, all at reasonable times and
upon reasonable advance notice to the Borrower and, if reasonably requested at
any time when Available Commitments shall be less than $150,000,000 or when a
Default or Event of Default shall have occurred and shall be continuing, up to
one additional evaluation and up to one additional appraisal in any fiscal year.
The Borrower shall pay the reasonable fees (including reasonable and customary
internally allocated fees and expenses of employees of the Administrative Agent
as to which invoices have been furnished) and expenses of any third party
representatives retained by the Administrative Agent as to which invoices have
been furnished to conduct any such evaluation or appraisal, including the
reasonable fees and expenses associated with collateral monitoring services
performed by the IB ABL Portfolio Management Group of the Administrative Agent
to the extent not otherwise agreed in writing by the Borrower and the
Administrative Agent. Upon the request of any Lender, the Administrative Agent
shall share the results of any such evaluation or appraisal with such Lender. To
the extent required by the Administrative Agent or the Majority Lenders in their
discretion (not to be exercised unreasonably) as a result of any such
evaluation, appraisal or monitoring, the Borrower also agrees to modify or
adjust the computation of the Borrowing Base (which may include maintaining
additional reserves or modifying the eligibility criteria for the components of
the Borrowing Base, but not modifying the specifically enumerated advance rates
specified in the definition of the "Borrowing Base"). Any such modification or
adjustment required by the Administrative Agent or the Majority Lenders shall be
made by written notice to the Borrower setting forth in reasonable detail the
basis for such modification or adjustment, and shall become effective for
purposes of the first Borrowing Base Certificate that is delivered pursuant to
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Section 5.09 at least five Business Days after the date of receipt by the
Borrower of such written notice.
(c) In the event that historical accounting practices, systems or
reserves relating to the components of the Borrowing Base are modified in a
manner that is adverse to the Lenders in any material respect, the Borrower will
agree to maintain such additional reserves (for purposes of computing the
Borrowing Base) in respect of the components of the Borrowing Base and make such
other adjustments to its parameters for including the components of the
Borrowing Base as the Administrative Agent or the Majority Lenders in their
discretion (not to be exercised unreasonably) shall reasonably require based
upon such modifications.
SECTION 5.06. Compliance with Laws. The Borrower will, and will cause
each of the Subsidiaries to, comply with all laws, including Environmental Laws,
rules, regulations and orders of any Governmental Authority applicable to it or
its property, except where the failure to do so, individually or in the
aggregate, would not be materially likely to result in a Material Adverse
Change.
SECTION 5.07. Insurance. The Borrower will, and will cause each of the
Subsidiaries to, maintain, with financially sound and reputable insurance
companies, insurance in such amounts and against such risks as are customary
among companies of established reputation engaged in the same or similar
businesses and operating in the same or similar locations, except to the extent
the failure to do so would not be materially likely to result in a Material
Adverse Change. The Borrower will furnish to the Administrative Agent or any
Lender, upon request, information in reasonable detail as to the insurance so
maintained.
SECTION 5.08. Guarantees and Collateral. (a) In the event that there
shall at any time exist any North American Subsidiary (other than an Excluded
Subsidiary or Consent Subsidiary) that shall not be a party to the Guarantee and
Collateral Agreement or the Canadian Security Agreements, as the case may be,
the Borrower will promptly notify the Collateral Agent (including in such notice
the information that would have been required to be set forth with respect to
such Subsidiary in the Restatement Date Perfection Certificate if such
Subsidiary had been one of the Grantors listed therein) and will, within 30 days
(or such longer period as may be reasonable under the circumstances) after such
notification, deliver to the Collateral Agent a supplement to the Guarantee and
Collateral Agreement or the Canadian Security Agreements, as the case may be, in
substantially the form specified therein, duly executed and delivered on behalf
of such North American Subsidiary, pursuant to which such North American
Subsidiary will become a party to the Guarantee and Collateral Agreement and a
Subsidiary Guarantor and, if it elects to become a Grantor or if its Total
Assets are greater than $10,000,000 as of December 31, 2006, or if later, as of
the end of the most recent fiscal quarter for which financial statements have
been delivered pursuant to Section 5.01(a) or (b), a Grantor, in each case as
defined in the Guarantee and Collateral Agreement.
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(b) In the event that the Borrower or any other Grantor shall at any
time directly own any Capital Stock of any Subsidiary (other than (i) Capital
Stock in any Subsidiary with Total Assets not greater than $10,000,000 as of
December 31, 2006, or if later, as of the end of the most recent fiscal quarter
for which financial statements have been delivered pursuant to Section 5.01(a)
or (b), (ii) Capital Stock in any Excluded Subsidiary or Consent Subsidiary and
(iii) Capital Stock already pledged in accordance with this paragraph or Section
4.01(k)), the Borrower will promptly notify the Collateral Agent and will,
within 30 days (or such longer period as may be reasonable under the
circumstances) after such notification, cause such Capital Stock to be pledged
under the Guarantee and Collateral Agreement and cause to be delivered to the
Collateral Agent any certificates representing such Capital Stock, together with
undated stock powers or other instruments of transfer with respect thereto
endorsed in blank; provided, that (A) no Grantor shall be required to pledge
more than 65% of outstanding voting Capital Stock of any Foreign Subsidiary and
(B) no Grantor shall be required to pledge any Capital Stock in any Foreign
Subsidiary if a Financial Officer shall have delivered a certificate to the
Administrative Agent certifying that the Borrower has determined, on the basis
of reasonable inquiries in the jurisdiction of such Person, that such pledge
would affect materially and adversely the ability of such Person to conduct its
business in such jurisdiction.
(c) In the event that the Borrower or any other Grantor shall at any
time directly own any Capital Stock of any Material Foreign Subsidiary (other
than Capital Stock already pledged in accordance with this paragraph and Capital
Stock in any Consent Subsidiary), the Borrower will promptly notify the
Collateral Agent and will take all such actions as the Collateral Agent shall
reasonably request and as shall be available under applicable law to cause such
Capital Stock to be pledged under a Foreign Pledge Agreement and cause to be
delivered to the Collateral Agent any certificates representing such Capital
Stock, together with undated stock powers or other instruments of transfer with
respect thereto endorsed in blank; provided, that (A) no Grantor shall be
required to pledge more than 65% of outstanding voting Capital Stock of any
Foreign Subsidiary and (B) no Grantor shall be required to pledge any Capital
Stock in any Person if a Financial Officer shall have delivered a certificate to
the Administrative Agent certifying that the Borrower has determined, on the
basis of reasonable inquiries in the jurisdiction of such Person, that such
pledge would affect materially and adversely the ability of such Person to
conduct its business in such jurisdiction.
(d) In the event that the Borrower or any other Grantor shall at any
time own any Material Intellectual Property (other than Material Intellectual
Property as to which the actions required by this paragraph have already been
taken), the Borrower will promptly notify the Collateral Agent and will file all
Uniform Commercial Code financing statements or other applicable personal
property security law filings and recordations with the Patent and Trademark
Office or the Canadian Intellectual Property Office as shall be required by law
or reasonably requested by the Collateral Agent to be filed or recorded to
perfect the Liens intended to be created on the Collateral (to the extent such
Liens may be perfected by filings under the Uniform Commercial Code or other
personal property security legislation as in effect in any applicable
jurisdiction or by filings with the United States Patent and Trademark Office or
the Canadian
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Intellectual Property Office); provided, that if the consents of Persons other
than the Borrower and the Wholly Owned Subsidiaries would be required under
applicable law or the terms of any agreement in order for a security interest to
be created in any Material Intellectual Property under the Guarantee and
Collateral Agreement or the Canadian Security Agreements, as the case may be, a
security interest shall not be required to be created in such Material
Intellectual Property prior to the obtaining of such consents. The Borrower will
endeavor in good faith to obtain any consents required to permit any security
interest in Material Intellectual Property to be created under the Guarantee and
Collateral Agreement or the Canadian Security Agreements, as the case may be.
(e) The Borrower will, and will cause each Subsidiary to, execute any
and all further documents, financing statements, agreements and instruments, and
take all such further actions, as may be reasonably requested by the Collateral
Agent in order to cause the security interests purported to be created by the
Security Documents or required to be created under the terms of this Agreement
to constitute valid security interests, perfected in accordance with this
Agreement.
SECTION 5.09. Borrowing Base Certificate. (a) The Borrower will
furnish to the Administrative Agent, no later than (i) 15 days following the end
of each fiscal month (or, if such day is not a Business Day, the next succeeding
Business Day), a completed Borrowing Base Certificate showing the Borrowing Base
as of the close of business on the last day of such immediately preceding fiscal
month as outlined in Exhibit F, (ii) if Available Commitments shall be
$150,000,000 or less for each of five consecutive Business Days, on the
Wednesday (or if such Wednesday is not a Business Day, on the next succeeding
Business Day) of the next succeeding week following the last day of such five
consecutive Business Day period a Borrowing Base Certificate calculating
"Available accounts receivable" and Available Cash as of Saturday of the
immediately preceding week and showing "Available inventory" as of the most
recently delivered month-end Borrowing Base Certificate, and (iii) 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 practicable but in no event later
than five Business Days after such request, a completed Borrowing Base
Certificate showing the Borrowing Base and Available Cash as of the date so
requested, in each case with such supporting documentation and additional
reports with respect to the Borrowing Base as the Administrative Agent may
reasonably request.
(b) The Borrower will furnish to the Administrative Agent at the time
of each delivery of the Borrowing Base Certificate under clause (a) above (and
in any event not later than 15 days following the end of each fiscal month (or,
if such day is not a Business Day, the next succeeding Business day)), a
certificate of a Financial Officer in the form attached as Annex I to Exhibit F
hereto specifying, to the best of such Financial Officer's knowledge, as of the
date of the information reported in such Borrowing Base Certificate (i) the
aggregate cash and cash equivalents of the Borrower and its Subsidiaries held in
the United States, (ii) the aggregate cash and cash equivalents of the Borrower
and its Subsidiaries held other than in the United States, (iii) for each of
this Agreement and the European Facilities Agreement, the undrawn amount
available to be
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drawn hereunder and thereunder, respectively, (iv) the aggregate accounts
payable position of the Borrower and the Domestic Subsidiaries and (v) Available
Cash.
ARTICLE VI
Negative Covenants
Until the Commitments shall have been reduced to zero and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed, the Borrower covenants and
agrees with the Administrative Agent, the Lenders and the Issuing Banks that:
SECTION 6.01. Limitation on Indebtedness. (a) The Borrower shall not,
and shall not permit any Restricted Subsidiary to, Incur, directly or
indirectly, any Indebtedness; provided, however, that the Borrower or any
Subsidiary Guarantor may Incur Indebtedness if on the date of such Incurrence
and after giving effect thereto and the application of the proceeds therefrom
the Consolidated Coverage Ratio would be greater than 2.0:1.0.
(b) Notwithstanding the foregoing paragraph (a), the Borrower and its
Restricted Subsidiaries may Incur the following Indebtedness:
(1) (x) U.S. Bank Indebtedness in an aggregate principal amount
not to exceed the greater of (A) $3,000,000,000, less the aggregate
amount of all prepayments of principal applied to permanently reduce
any such Indebtedness in satisfaction of the Borrower's obligations
under Section 6.04 of the Second Lien Agreement (as in effect on the
date hereof), and (B) the sum of (i) 60% of the book value of the
inventory of the Borrower and its Restricted Subsidiaries plus (ii)
80% of the book value of the accounts receivable of the Borrower and
its Restricted Subsidiaries (other than any accounts receivable
pledged, sold or otherwise transferred or encumbered by the Borrower
or any Restricted Subsidiary in connection with a Qualified
Receivables Transaction), in each case, as of the end of the most
recent fiscal quarter for which financial statements have been filed
with the SEC; provided that not more than $1,750,000,000 of the
Indebtedness outstanding at any time under this clause (x) shall
benefit from first priority security interests in the Collateral, and
(y) European Bank Indebtedness in an aggregate principal amount not to
exceed E525,000,000; provided, however, that the amount of
Indebtedness that may be Incurred pursuant to this clause (1) shall be
reduced by any amount of Indebtedness Incurred and then outstanding
pursuant to the election provision of clause (10)(A)(ii) below;
(2) Indebtedness of the Borrower owed to and held by any
Restricted Subsidiary or Indebtedness of a Restricted Subsidiary owed
to and held by the Borrower or any Restricted Subsidiary; provided,
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however, that any subsequent event that results in any such Restricted
Subsidiary ceasing to be a Restricted Subsidiary or any subsequent
transfer of any such Indebtedness (except to the Borrower or a
Restricted Subsidiary) shall be deemed, in each case, to constitute
the Incurrence of such Indebtedness by the issuer thereof;
(3) Indebtedness (A) outstanding on the Restatement Date (other
than the Indebtedness described in clauses (1) and (2) above and
clause (12) below), and (B) consisting of Refinancing Indebtedness
Incurred in respect of any Indebtedness described in this clause (3)
(including Indebtedness that is Refinancing Indebtedness) or the
foregoing paragraph (a);
(4) (A) Indebtedness of a Restricted Subsidiary Incurred and
outstanding on or prior to the date on which such Restricted
Subsidiary was acquired by the Borrower or a Restricted Subsidiary
(other than Indebtedness Incurred in contemplation of, in connection
with, as consideration in, or to provide all or any portion of the
funds or credit support utilized to consummate, the transaction or
series of related transactions pursuant to which such Restricted
Subsidiary became a Subsidiary of or was otherwise acquired by the
Borrower); provided, however, that on the date that such Restricted
Subsidiary is acquired by the Borrower, (i) the Borrower would have
been able to Incur $1.00 of additional Indebtedness pursuant to the
foregoing paragraph (a) after giving effect to the Incurrence of such
Indebtedness pursuant to this clause (4) or (ii) the Consolidated
Coverage Ratio immediately after giving effect to such Incurrence and
acquisition would be greater than such ratio immediately prior to such
transaction and (B) Refinancing Indebtedness Incurred by a Restricted
Subsidiary in respect of Indebtedness Incurred by such Restricted
Subsidiary pursuant to this clause (4);
(5) Indebtedness (A) in respect of performance bonds, bankers'
acceptances, letters of credit and surety or appeal bonds entered into
by the Borrower or any Restricted Subsidiary in the ordinary course of
business, and (B) Hedging Obligations entered into in the ordinary
course of business to hedge risks with respect to the Borrower's or a
Restricted Subsidiary's interest rate, currency or raw materials
pricing exposure and not entered into for speculative purposes;
(6) Purchase Money Indebtedness, Capitalized Lease Obligations
and Attributable Debt and Refinancing Indebtedness in respect thereof
in an aggregate principal amount on the date of Incurrence that, when
added to all other Indebtedness Incurred pursuant to this clause (6)
and then outstanding, will not exceed the greater of (A) $600,000,000
and (B) 5.0% of Consolidated assets of the Borrower as of the end of
the most recent fiscal quarter for which financial statements have
been filed with the SEC;
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(7) Indebtedness Incurred by a Receivables Entity in a Qualified
Receivables Transaction;
(8) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument drawn
against insufficient funds in the ordinary course of business;
provided, however, that such Indebtedness is extinguished within five
Business Days of a Financial Officer's becoming aware of its
Incurrence;
(9) any Guarantee by the Borrower or a Restricted Subsidiary of
Indebtedness or other obligations of the Borrower or any of its
Restricted Subsidiaries so long as the Incurrence of such Indebtedness
or other obligations by the Borrower or such Restricted Subsidiary is
permitted under the terms of this Agreement (other than Indebtedness
Incurred pursuant to clause (4) above);
(10) (A) Indebtedness of Foreign Restricted Subsidiaries in an
aggregate principal amount that, when added to all other Indebtedness
Incurred pursuant to this clause (10)(A) and then outstanding, will
not exceed (i) $900,000,000 plus (ii) any amount then permitted to be
Incurred pursuant to clause (1) above that the Borrower instead elects
to Incur pursuant to this clause (10)(A);
(B) Indebtedness of EEMEA Subsidiaries in an aggregate
principal amount not to exceed $500,000,000; and
(C) Indebtedness of Foreign Restricted Subsidiaries Incurred
in connection with a Qualified Receivables Transaction in an
amount not to exceed E350,000,000 at any one time
outstanding;
(11) Indebtedness constituting unsecured Indebtedness or Secured
Indebtedness in an amount not to exceed $850,000,000 and Refinancing
Indebtedness in respect thereof; provided that any such Secured
Indebtedness may be secured solely with assets that do not constitute
Collateral;
(12) Senior Subordinated-Lien Indebtedness and the related
Guarantees by Subsidiaries of the Borrower and Refinancing
Indebtedness in respect thereof; and
(13) Indebtedness of the Borrower and the Restricted Subsidiaries
in an aggregate principal amount on the date of Incurrence that, when
added to all other Indebtedness Incurred pursuant to this clause (13)
and then outstanding, will not exceed $150,000,000.
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(c) For purposes of determining the outstanding principal amount of
any particular Indebtedness Incurred pursuant to this Section 6.01:
(1) Outstanding Indebtedness Incurred pursuant to this Agreement,
the Second Lien Agreement or the European Facilities Agreement prior
to or on the Restatement Date shall be deemed to have been Incurred
pursuant to clause (1) of paragraph (b) above;
(2) Indebtedness permitted by this Section 6.01 need not be
permitted solely by reference to one provision permitting such
Indebtedness but may be permitted in part by one such provision and in
part by one or more other provisions of this covenant permitting such
Indebtedness; and
(3) in the event that Indebtedness meets the criteria of more
than one of the types of Indebtedness described in this Section 6.01,
the Borrower, in its sole discretion, shall classify such Indebtedness
(or any portion thereof) as of the time of Incurrence and will only be
required to include the amount of such Indebtedness in one of such
clauses (provided that any Indebtedness originally classified as
Incurred pursuant to Sections 6.01(b)(2) through (b)(13) may later be
reclassified as having been Incurred pursuant to Section 6.01(a) or
any other of Sections 6.01(b)(2) through (b)(13) to the extent that
such reclassified Indebtedness could be Incurred pursuant to Section
6.01(a) or one of Sections 6.01(b)(2) through (b)(13), as the case may
be, if it were Incurred at the time of such reclassification).
(d) For purposes of determining compliance as of any date with any
dollar or Euro denominated restriction on the Incurrence of Indebtedness where
the Indebtedness Incurred is denominated in a different currency, the amount of
such Indebtedness will be the U.S. Dollar Equivalent or Euro Equivalent, as the
case may be, determined on the date of the Incurrence of such Indebtedness;
provided, however, that if any such Indebtedness denominated in a different
currency is subject to a Currency Agreement with respect to dollars or Euros, as
the case may be, covering all principal, premium, if any, and interest payable
on such Indebtedness, the amount of such Indebtedness expressed in dollars or
Euros will be as provided in such Currency Agreement. The principal amount of
any Refinancing Indebtedness Incurred in the same currency as the Indebtedness
being Refinanced will be the U.S. Dollar Equivalent or Euro Equivalent, as
appropriate, of the Indebtedness Refinanced determined on the date of the
Incurrence of such Indebtedness, except to the extent that (i) such U.S. Dollar
Equivalent or Euro Equivalent was determined based on a Currency Agreement, in
which case the Refinancing Indebtedness will be determined in accordance with
the immediately preceding sentence, and (ii) the principal amount of the
Refinancing Indebtedness exceeds the principal amount of the Indebtedness being
Refinanced, in which case the U.S. Dollar Equivalent or Euro Equivalent, as
appropriate, of such excess will be determined on the date such Refinancing
Indebtedness is Incurred.
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SECTION 6.02. Limitation on Restricted Payments. (a) The Borrower
shall not, and shall not permit any Restricted Subsidiary, directly or
indirectly, to make any Restricted Payment if at the time the Borrower or such
Restricted Subsidiary makes any Restricted Payment:
(1) a Default will have occurred and be continuing (or would
result therefrom);
(2) the Borrower could not Incur at least $1.00 of additional
Indebtedness under Section 6.01(a); or
(3) the aggregate amount of such Restricted Payment and all other
Restricted Payments (the amount so expended, if other than in cash, to
be determined in good faith by a Financial Officer of the Borrower,
whose determination will be conclusive; provided, however, that with
respect to any noncash Restricted Payment in excess of $25,000,000,
the amount so expended shall be determined in accordance with the
provisions of the definition of Fair Market Value) declared or made
subsequent to the Reference Date would exceed the sum, without
duplication, of:
(i) 50% of the Consolidated Net Income accrued during the
period (treated as one accounting period) from the beginning of
the fiscal quarter immediately following the fiscal quarter
during which the Reference Date occurs to the end of the most
recent fiscal quarter for which financial statements have been
filed with the SEC prior to the date of such Restricted Payment
(or, in case such Consolidated Net Income will be a deficit,
minus 100% of such deficit);
(ii) 100% of the aggregate Net Cash Proceeds received by the
Borrower from the issuance or sale of its Capital Stock (other
than Disqualified Stock) subsequent to the Reference Date (other
than an issuance or sale to a Subsidiary of the Borrower and
other than an issuance or sale to an employee stock ownership
plan or to a trust established by the Borrower or any of its
Subsidiaries for the benefit of their employees) and 100% of any
cash capital contribution received by the Borrower from its
shareholders subsequent to the Reference Date;
(iii) the amount by which Indebtedness of the Borrower or
its Restricted Subsidiaries is reduced on the Borrower's
Consolidated balance sheet upon the conversion or exchange (other
than by a Subsidiary of the Borrower) subsequent to the Reference
Date of any Indebtedness of the Borrower or its Restricted
Subsidiaries issued after the Reference Date which is convertible
or exchangeable for capital stock (other than Disqualified Stock)
of the Borrower (less the amount of any cash or the Fair Market
98
Value of other property distributed by the Borrower or any
Restricted Subsidiary upon such conversion or exchange); and
(iv) an amount equal to the sum of (x) the net reduction in
the Investments (other than Permitted Investments) made by the
Borrower or any Restricted Subsidiary in any Person resulting
from repurchases, repayments or redemptions of such Investments
by such Person, proceeds realized on the sale of such Investments
and proceeds representing the return of capital (excluding
dividends and distributions), in each case realized by the
Borrower or any Restricted Subsidiary, and (y) to the extent such
Person is an Unrestricted Subsidiary, the portion (proportionate
to the Borrower's Capital Stock in such Subsidiary) of the fair
market value of the net assets of such Unrestricted Subsidiary at
the time such Unrestricted Subsidiary is designated a Restricted
Subsidiary; provided, however, that the foregoing sum shall not
exceed, in the case of any such Person or Unrestricted
Subsidiary, the amount of Investments (excluding Permitted
Investments) previously made (and treated as a Restricted
Payment) by the Borrower or any Restricted Subsidiary in such
Person or Unrestricted Subsidiary.
(b) The provisions of Section 6.02(a) shall not prohibit:
(1) any Restricted Payment made out of the Net Cash Proceeds of
the substantially concurrent sale of, or made by exchange for, Capital
Stock of the Borrower (other than Disqualified Stock and other than
Capital Stock issued or sold to a Subsidiary of the Borrower or an
employee stock ownership plan or to a trust established by the
Borrower or any of its Subsidiaries for the benefit of their employees
to the extent such sale to such an employee stock ownership plan or
trust is financed by loans from or guaranteed by the Borrower or any
Restricted Subsidiary unless such loans have been repaid with cash on
or prior to the date of determination) or a substantially concurrent
cash capital contribution received by the Borrower from its
shareholders; provided, however, that:
(A) such Restricted Payment shall be excluded in the
calculation of the amount of Restricted Payments under Section
6.02(a)(3), and
(B) the Net Cash Proceeds from such sale applied in the
manner set forth in Section 6.02(b)(1) shall be excluded from the
calculation of amounts under Section 6.02(a)(3)(ii);
(2) any prepayment, repayment or Purchase for value of
Subordinated Obligations (i) that are made by exchange for, or out of
the proceeds of the sale of, other Subordinated Obligations (which (x)
satisfy each of clauses (4) and (5) of the definition of Refinancing
Indebtedness in
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respect of the Subordinated Obligations being prepaid, repaid or
Purchased and (y) may include Indebtedness Incurred under Section
6.01(a)) or the Net Cash Proceeds of a sale of Capital Stock of the
Borrower; provided, in each case, that the public announcement of the
launch of such prepayment, repayment or Purchase for value is made
within three months of such sale of Subordinated Obligations or
Capital Stock, or (ii) if, at the time thereof, the Borrower shall, on
a pro forma basis after giving effect to such prepayment, repayment or
Purchase for value, have $150,000,000 or more of Available
Commitments; provided, however, that each such prepayment, repayment
or Purchase for value under this paragraph (2) shall be excluded in
the calculation of the amount of Restricted Payments under Section
6.02(a)(3);
(3) dividends paid within 60 days after the date of declaration
thereof if at such date of declaration such dividends would have
complied with this covenant; provided, however, that such dividends
shall be included in the calculation of the amount of Restricted
Payments under Section 6.02(a)(3);
(4) any Purchase for value of Capital Stock of the Borrower or
any of its Subsidiaries from employees, former employees, directors or
former directors of the Borrower or any of its Subsidiaries (or
permitted transferees of such employees, former employees, directors
or former directors), pursuant to the terms of agreements (including
employment agreements) or plans (or amendments thereto) approved by
the Board of Directors under which such individuals purchase or sell
or are granted the option to purchase or sell, shares of such Capital
Stock; provided, however, that the aggregate amount of such Purchases
for value will not exceed $10,000,000 in any calendar year; provided
further, however, that any of the $10,000,000 permitted to be applied
for Purchases under this Section 6.02(b)(4) in a calendar year (and
not so applied) may be carried forward for use in the following two
calendar years; provided further, however, that such Purchases for
value shall be excluded in the calculation of the amount of Restricted
Payments under Section 6.02(a)(3);
(5) so long as no Default has occurred and is continuing,
payments of dividends on Disqualified Stock issued after the Reference
Date pursuant to Section 6.01; provided, however, that such dividends
shall be included in the calculation of the amount of Restricted
Payments under Section 6.02(a)(3);
(6) repurchases of Capital Stock deemed to occur upon exercise of
stock options if such Capital Stock represents a portion of the
exercise price of such options; provided, however, that such
Restricted Payments shall be excluded in the calculation of the amount
of Restricted Payments under Section 6.02(a)(3);
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(7) so long as no Default has occurred and is continuing, any
prepayment, repayment or Purchase for value of Subordinated
Obligations from Net Available Cash; provided, however, that such
prepayment, repayment or Purchase for value shall be excluded in the
calculation of the amount of Restricted Payments under Section
6.02(a)(3);
(8) so long as no Default has occurred and is continuing, any
prepayment, repayment or Purchase for value of Subordinated
Obligations from Net Available Cash (assuming for purposes of the
definition of Net Available Cash as used in this clause (8) that the
Specified Asset Sale was an Asset Disposition) from the Specified
Asset Sale set forth in clause (i) of the definition thereof within
180 days after the receipt of such proceeds; provided, however, that
such prepayment, repayment or Purchase for value shall be excluded in
the calculation of the amount of Restricted Payments under Section
6.02(a)(3);
(9) so long as no Default has occurred and is continuing, any
prepayment, repayment or Purchase for value of any Indebtedness within
365 days of the Stated Maturity of such Indebtedness; provided,
however, that such prepayment, repayment or Purchase for value shall
be excluded in the calculation of the amount of Restricted Payments
under Section 6.02(a)(3);
(10) payments to holders of Capital Stock (or to the holders of
Indebtedness that is convertible into or exchangeable for Capital
Stock upon such conversion or exchange) in lieu of the issuance of
fractional shares; provided, however, that such payments shall be
excluded in the calculation of the amount of Restricted Payments under
Section 6.02(a)(3);
(11) so long as no Default has occurred and is continuing, any
prepayment, repayment or Purchase for value of Second Lien
Indebtedness or Indebtedness under or in respect of the Third Lien
Agreement or the Borrower's 11% Senior Secured Notes due 2011, Senior
Secured Floating Rate Notes due 2011, 4% Convertible Senior Notes due
2034 or Floating Rate Notes due 2009; provided, however, that such
prepayment, repayment or Purchase for value shall be excluded in the
calculation of the amount of Restricted Payments under Section
6.02(a)(3); or
(12) any Restricted Payment in an amount which, when taken
together with all Restricted Payments made after the Reference Date
pursuant to this Section 6.02(b)(12), does not exceed $50,000,000;
provided, however, that
(A) at the time of each such Restricted Payment, no Default
shall have occurred and be continuing (or result therefrom); and
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(B) such Restricted Payments shall be included in the
calculation of the amount of Restricted Payments under Section
6.02(a)(3).
SECTION 6.03. Limitation on Restrictions on Distributions from
Restricted Subsidiaries. The Borrower shall not, and shall not permit any
Restricted Subsidiary to, create or otherwise cause or permit to exist or become
effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock
or pay any Indebtedness or other obligations owed to the Borrower;
(2) make any loans or advances to the Borrower; or
(3) transfer any of its property or assets to the Borrower, except:
(A) any encumbrance or restriction pursuant to applicable law,
rule, regulation or order or an agreement in effect at or entered into
on the Restatement Date;
(B) any encumbrance or restriction with respect to a Restricted
Subsidiary pursuant to an agreement relating to any Indebtedness
Incurred by such Restricted Subsidiary prior to the date on which such
Restricted Subsidiary was acquired by the Borrower (other than
Indebtedness Incurred as consideration in, in contemplation of, or to
provide all or any portion of the funds or credit support utilized to
consummate the transaction or series of related transactions pursuant
to which such Restricted Subsidiary became a Restricted Subsidiary or
was otherwise acquired by the Borrower) and outstanding on such date;
(C) any encumbrance or restriction pursuant to an agreement
effecting a Refinancing of Indebtedness Incurred pursuant to an
agreement referred to in Section 6.03(3)(A) or Section 6.03(3)(B) or
this Section 6.03(3)(C) or contained in any amendment to an agreement
referred to in Section 6.03(3)(A) or Section 6.03(3)(B) or this
Section 6.03(3)(C); provided, however, that the encumbrances and
restrictions contained in any such Refinancing agreement or amendment
are no less favorable in any material respect to the Lenders than the
encumbrances and restrictions contained in such predecessor
agreements;
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(D) in the case of Section 6.03(3), any encumbrance or
restriction:
(i) that restricts in a customary manner the subletting,
assignment or transfer of any property or asset that is subject to a
lease, license or similar contract, or the assignment or transfer of
any such lease, license or other contract; or
(ii) contained in mortgages, pledges and other security
agreements securing Indebtedness of a Restricted Subsidiary to the
extent such encumbrance or restriction restricts the transfer of the
property subject to such security agreements;
(E) with respect to a Restricted Subsidiary, any restriction
imposed pursuant to an agreement entered into for the sale or
disposition of all or substantially all the Capital Stock or assets of
such Restricted Subsidiary pending the closing of such sale or
disposition;
(F) any encumbrance or restriction existing under or by reason of
Indebtedness or other contractual requirements of a Receivables Entity
in connection with a Qualified Receivables Transaction; provided,
however, that such restrictions apply only to such Receivables Entity;
(G) purchase money obligations for property acquired in the
ordinary course of business and Capitalized Lease Obligations that
impose restrictions on the property purchased or leased of the nature
described in Section 6.03(3);
(H) provisions with respect to the disposition or distribution of
assets or property in joint venture agreements, asset sale agreements,
stock sale agreements and other similar agreements;
(I) restrictions on cash or other deposits or net worth imposed
by customers, suppliers or, in the ordinary course of business, other
third parties; and
(J) with respect to any Foreign Restricted Subsidiary, any
encumbrance or restriction contained in the terms of any Indebtedness,
or any agreement pursuant to which such Indebtedness was issued, if:
(i) the encumbrance or restriction applies only in the event of a
payment default or a default with respect to a financial covenant
contained in such Indebtedness or agreement; or
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(ii) at the time such Indebtedness is Incurred, such encumbrance
or restriction is not expected to materially affect the Borrower's
ability to make principal or interest payments on the Obligations, as
determined in good faith by a Financial Officer of the Borrower, whose
determination shall be conclusive.
SECTION 6.04. Limitation on Sales of Assets and Subsidiary Stock. (a)
The Borrower shall not, and shall not permit any Restricted Subsidiary to, make
any Asset Disposition unless:
(1) the Borrower or such Restricted Subsidiary receives
consideration (including by way of relief from, or by any other Person
assuming sole responsibility for, any liabilities, contingent or
otherwise) at the time of such Asset Disposition at least equal to the
Fair Market Value of the shares and assets subject to such Asset
Disposition; and
(2) at least 75% of the consideration therefor received by the
Borrower or such Restricted Subsidiary is in the form of cash or
Additional Assets.
(b) For the purposes of this covenant, the following are deemed to be
cash:
(1) the assumption of Indebtedness or other obligations of the
Borrower (other than obligations in respect of Disqualified Stock of
the Borrower) or any Restricted Subsidiary (other than obligations in
respect of Disqualified Stock and Preferred Stock of a Restricted
Subsidiary that is a Subsidiary Guarantor) and the release of the
Borrower or such Restricted Subsidiary from all liability on such
Indebtedness or obligations in connection with such Asset Disposition;
(2) any Designated Noncash Consideration having an aggregate Fair
Market Value that, when taken together with all other Designated
Noncash Consideration received pursuant to this clause and then
outstanding, does not exceed at the time of the receipt of such
Designated Noncash Consideration (with the Fair Market Value of each
item of Designated Noncash Consideration being measured at the time
received and without giving effect to subsequent changes in value) the
greater of (1) $200,000,000 and (2) 1.5% of the total Consolidated
assets of the Borrower as shown on the most recent balance sheet of
the Borrower filed with the SEC;
(3) securities, notes or similar obligations received by the
Borrower or any Restricted Subsidiary from the transferee that are
promptly converted by the Borrower or such Restricted Subsidiary into
cash; and
(4) Temporary Cash Investments.
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(c) Upon receipt of written notice from the Borrower to the Collateral
Agent, the Collateral Agent is hereby authorized and directed to release any
security interest under any Security Document in any Capital Stock of any
Foreign Subsidiary transferred, for tax planning or other business purposes,
consistent with the Borrower's past practices, to any Foreign Subsidiary whose
Capital Stock has been pledged under any of the Security Documents if either (i)
the transferor of such Capital Stock is the Borrower or a Domestic Subsidiary
and such release is required in order to obtain the desired amount of
consideration from such transfer, or (ii) after giving effect to such transfer,
the aggregate fair value of all such Capital Stock (other than Capital Stock
transferred in a transaction described in the immediately preceding clause (i)),
determined as of the date of each respective transfer, does not exceed, for all
such transfers, $250,000,000.
SECTION 6.05. Limitation on Transactions with Affiliates. (a) The
Borrower shall not, and shall not permit any Restricted Subsidiary to, directly
or indirectly, enter into or conduct any transaction or series of related
transactions (including the purchase, sale, lease or exchange of any property or
the rendering of any service) with any Affiliate of the Borrower (an "Affiliate
Transaction") unless such transaction is on terms:
(1) that are no less favorable to the Borrower or such Restricted
Subsidiary, as the case may be, than those that could be obtained at
the time of such transaction in arm's-length dealings with a Person
who is not such an Affiliate,
(2) that, in the event such Affiliate Transaction involves an
aggregate amount in excess of $25,000,000,
(A) are set forth in writing, and
(B) have been approved by a majority of the members of the
Board of Directors having no personal stake in such Affiliate
Transaction; and
(3) that, in the event such Affiliate Transaction involves an
amount in excess of $75,000,000, have been determined by a nationally
recognized appraisal, accounting or investment banking firm to be
fair, from a financial standpoint, to the Borrower and its Restricted
Subsidiaries.
(b) The provisions of Section 6.05(a) will not prohibit:
(1) any Restricted Payment permitted to be paid pursuant to
Section 6.02;
(2) any issuance of securities, or other payments, awards or
grants in cash, securities or otherwise pursuant to, or the funding
of, employment
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arrangements, stock options and stock ownership plans approved by the
Board of Directors;
(3) the grant of stock options or similar rights to employees and
directors of the Borrower pursuant to plans approved by the Board of
Directors,
(4) loans or advances to employees in the ordinary course of
business of the Borrower;
(5) the payment of reasonable fees and compensation to, or the
provision of employee benefit arrangements and indemnity for the
benefit of, directors, officers and employees of the Borrower and its
Restricted Subsidiaries in the ordinary course of business;
(6) any transaction between or among any of the Borrower, any
Restricted Subsidiary or any joint venture or similar entity which
would constitute an Affiliate Transaction solely because the Borrower
or a Restricted Subsidiary owns an equity interest in or otherwise
controls such Restricted Subsidiary, joint venture or similar entity;
(7) the issuance or sale of any Capital Stock (other than
Disqualified Stock) of the Borrower;
(8) any agreement as in effect on the Restatement Date described
in the Borrower's SEC filings as filed on or prior to the Restatement
Date, or any renewals, extensions or amendments of any such agreement
(so long as such renewals, extensions or amendments are not less
favorable in any material respect to the Borrower or its Restricted
Subsidiaries) and the transactions evidenced thereby;
(9) transactions with customers, clients, suppliers or purchasers
or sellers of goods or services in each case in the ordinary course of
business and otherwise in compliance with the terms of this Agreement
which are fair to the Borrower or its Restricted Subsidiaries, in the
reasonable determination of the Board of Directors or the senior
management thereof, or are on terms at least as favorable as could
reasonably have been obtained at such time from an unaffiliated party;
or
(10) any transaction effected as part of a Qualified Receivables
Transaction.
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SECTION 6.06. Limitation on Liens. The Borrower shall not, and shall
not permit any Restricted Subsidiary to, directly or indirectly, Incur or permit
to exist any Lien of any nature whatsoever on any of its property or assets
(including Capital Stock of a Restricted Subsidiary), whether owned at the
Restatement Date or thereafter acquired, securing any Indebtedness, except:
(a) Liens to secure Indebtedness permitted pursuant to Section
6.01(b)(1); provided that any collateral securing Second Lien Indebtedness shall
also constitute Collateral and any Lien securing Second Lien Indebtedness shall
be subordinated to the Liens securing the Obligations, on the terms set forth in
the Lenders Lien Subordination and Intercreditor Agreement;
(b) Liens to secure Indebtedness permitted pursuant to Section
6.01(b)(12); provided that any Liens to secure Indebtedness permitted pursuant
to Section 6.01(b)(12) shall be subordinate and junior to the Liens securing the
Obligations on the terms set forth in the Lien Subordination and Intercreditor
Agreement;
(c) pledges or deposits by such Person under workers' compensation
laws, unemployment insurance laws or similar legislation, or good faith deposits
in connection with bids, tenders, contracts (other than for the payment of
Indebtedness) or leases to which such Person is a party, or deposits to secure
public or statutory obligations of such Person or deposits of cash or United
States government bonds to secure surety or appeal bonds to which such Person is
a party, or deposits as security for contested taxes or import duties or for the
payment of rent, in each case Incurred in the ordinary course of business;
(d) Liens imposed by law, such as carriers', warehousemen's and
mechanics' Liens, in each case for sums not yet due or being contested in good
faith by appropriate proceedings or other Liens arising out of judgments or
awards against such Person with respect to which such Person shall then be
proceeding with an appeal or other proceedings for review;
(e) Liens for taxes, assessments or other governmental charges not yet
due or payable or subject to penalties for non-payment or which are being
contested in good faith by appropriate proceedings;
(f) Liens on assets not constituting Collateral under this Agreement
which secure obligations under undrawn letters of credit and bank guarantees or
are in favor of issuers of surety or performance bonds issued pursuant to the
request of and for the account of such Person in the ordinary course of its
business; provided, however, that such letters of credit and bank guarantees do
not constitute Indebtedness;
(g) survey exceptions, encumbrances, easements or reservations of, or
rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph
and telephone lines and other similar purposes, or zoning or other restrictions
as to the use of real property or Liens incidental to the conduct of the
business of such Person or to the ownership of its properties which were not
Incurred in connection with Indebtedness for
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borrowed money and which do not in the aggregate materially adversely affect the
value of said properties or materially impair their use in the operation of the
business of such Person;
(h) Liens securing Indebtedness Incurred to finance the construction,
purchase or lease of, or repairs, improvements or additions to, property of such
Person (including Indebtedness Incurred under Section 6.01(b)(6)); provided,
however, that the Lien may not extend to any other property (other than property
related to the property being financed) owned by such Person or any of its
Subsidiaries at the time the Lien is Incurred, and the Indebtedness (other than
any interest thereon) secured by the Lien may not be Incurred more than 180 days
after the later of the acquisition, completion of construction, repair,
improvement, addition or commencement of full operation of the property subject
to the Lien;
(i) Liens existing on the Restatement Date and set forth in Schedule
6.06; provided that (x) such Lien shall not apply to any other property or asset
of the Borrower or any Restricted Subsidiary and (y) such Lien shall secure only
those obligations which it secured on the date hereof and extensions, renewals
and replacements thereof that do not increase the outstanding principal amount
hereof (other than Liens referred to in the foregoing clauses (a) and (b));
(j) Liens on property or shares of stock of another Person at the time
such other Person becomes a Subsidiary of such Person; provided, however, that
such Liens are not created, Incurred or assumed in connection with, or in
contemplation of, such other Person becoming such a Subsidiary; provided
further, however, that such Liens do not extend to any other property owned by
such Person or any of its Subsidiaries, except pursuant to after-acquired
property clauses existing in the applicable agreements at the time such Person
becomes a Subsidiary which do not extend to property transferred to such Person
by the Borrower or a Restricted Subsidiary;
(k) Liens on property at the time such Person or any of its
Subsidiaries acquires the property, including any acquisition by means of a
merger or consolidation with or into such Person or any Subsidiary of such
Person; provided, however, that such Liens are not created, Incurred or assumed
in connection with, or in contemplation of, such acquisition; provided further,
however, that the Liens do not extend to any other property owned by such Person
or any of its Subsidiaries;
(l) Liens securing Indebtedness or other obligations of a Subsidiary
of such Person owing to such Person or a Restricted Subsidiary of such Person;
(m) Liens securing Hedging Obligations so long as such Hedging
Obligations are permitted to be Incurred under this Agreement;
(n) Liens on assets not constituting Collateral under this Agreement
which secure Indebtedness of any Foreign Restricted Subsidiary Incurred under
Section 6.01(b)(10);
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(o) Liens to secure any Refinancing (or successive Refinancings) as a
whole, or in part, of any Indebtedness secured by any Lien referred in the
foregoing clauses (h), (i), (j) and (k); provided, however, that:
(1) such new Lien shall be limited to all or part of the same
property that secured the original Lien (plus improvements,
accessions, proceeds, dividends or distributions in respect thereof);
and
(2) the Indebtedness secured by such Lien at such time is not
increased to any amount greater than the sum of:
(A) the outstanding principal amount or, if greater,
committed amount of the Indebtedness secured by Liens described
under clauses (h), (i), (j) or (k) at the time the original Lien
became a permitted Lien under this Agreement; and
(B) an amount necessary to pay any fees and expenses,
including premiums, related to such Refinancings;
(p) Liens on accounts receivables and related assets of the type
specified in the definition of "Qualified Receivables Transaction" not
constituting Collateral under this Agreement Incurred in connection with a
Qualified Receivables Transaction;
(q) judgment Liens not giving rise to an Event of Default so long as
any appropriate legal proceedings which may have been duly initiated for the
review of such judgment have not been finally terminated or the period within
which such proceedings may be initiated has not expired;
(r) Liens arising from Uniform Commercial Code financing statement
filings regarding leases that do not otherwise constitute Indebtedness entered
into in the ordinary course of business;
(s) leases and subleases of real property which do not materially
interfere with the ordinary conduct of the business of the Borrower and its
Subsidiaries;
(t) Liens which constitute bankers' Liens, rights of set-off or
similar rights and remedies as to deposit accounts or other funds maintained
with any bank or other financial institution, whether arising by operation of
law or pursuant to contract;
(u) Liens on specific items of inventory or other goods and proceeds
of any Person securing such Person's obligations in respect of bankers'
acceptances issued or created for the account of such Person to facilitate the
purchase, shipment or storage of such inventory or other goods;
(v) Liens on specific items of inventory or other goods and related
documentation (and proceeds thereof) securing reimbursement obligations in
respect of trade letters of credit issued to ensure payment of the purchase
price for such items of inventory or other goods;
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(w) Liens on assets not constituting Collateral under this Agreement
which secure Indebtedness Incurred under Section 6.01(b)(11) or (13);
(x) Liens on assets subject to Sale/Leaseback Transactions; provided
that the aggregate outstanding Attributable Debt in respect thereof shall not at
any time exceed $125,000,000; and
(y) other Liens on assets that do not constitute Collateral to secure
Indebtedness as long as the amount of outstanding Indebtedness secured by Liens
Incurred pursuant to this clause (x) does not exceed 5.0% of Consolidated assets
of the Borrower, as determined based on the consolidated balance sheet of the
Borrower as of the end of the most recent fiscal quarter for which financial
statements have been filed with the SEC; provided, however, that notwithstanding
whether this clause (y) would otherwise be available to secure Indebtedness,
Liens securing Indebtedness originally secured pursuant to this clause (y) may
secure Refinancing Indebtedness in respect of such Indebtedness and such
Refinancing Indebtedness shall be deemed to have been secured pursuant to this
clause (y).
For the avoidance of doubt, each reference in this Section or any
other provision of this Agreement to "assets not constituting Collateral" (or
any similar phrase) means assets that (a) are not subject to any Lien securing
the Obligations and (b) are not and (absent a change in facts) will not be
required under the terms of this Agreement or the Security Documents to be made
subject to any Lien securing the Obligations by reason of the nature of, or the
identity of the Subsidiary owning, such assets (and not as a result of the
existence of any other Lien or any legal or contractual provision preventing
such assets from being made subject to Liens securing the Obligations).
SECTION 6.07. Limitation on Sale/Leaseback Transactions. The Borrower
shall not, and shall not permit any Restricted Subsidiary to, enter into any
Sale/Leaseback Transaction with respect to any property unless:
(a) the Borrower or such Restricted Subsidiary would be entitled to:
(i) Incur Indebtedness with respect to such Sale/Leaseback
Transaction pursuant to Section 6.01; and
(ii) create a Lien on such property securing such Indebtedness
pursuant to Section 6.06(x) or, to the extent the assets subject to
such Sale/Leaseback do not constitute Collateral under this Agreement,
create a Lien on such property pursuant to the provisions of Section
6.06;
(iii) the gross proceeds payable to the Borrower or such
Restricted Subsidiary in connection with such Sale/Leaseback
Transaction are at least equal to the Fair Market Value of such
property; and
(iv) the transfer of such property is permitted by, and, if
applicable, the Borrower applies the proceeds of such transaction in
compliance with, Section 6.04; or
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(b) the Sale/Leaseback Transaction is with respect to all or a portion
of the Borrower's properties in Akron, Summit County, Ohio.
SECTION 6.08. Fundamental Changes. The Borrower will not, and will not
permit any Restricted Subsidiary to, merge into, amalgamate or consolidate with
any other Person, or permit any other Person to merge into, amalgamate or
consolidate with it, or sell, transfer, lease or otherwise dispose of (in one
transaction or in a series of transactions) assets (including Capital Stock of
Subsidiaries) constituting all or substantially all the assets of the Borrower
and its Consolidated Subsidiaries, taken as a whole, or, in the case of the
Borrower, liquidate or dissolve, except that, if at the time thereof and
immediately after giving effect thereto no Default shall have occurred and be
continuing (i) any Restricted Subsidiary may merge into the Borrower in a
transaction in which the Borrower is the surviving corporation, (ii) any
Restricted Subsidiary may merge into any other Restricted Subsidiary in a
transaction in which the surviving entity is a Restricted Subsidiary; except
that no Domestic Subsidiary may merge into a Foreign Subsidiary, (iii) any sale
of a Restricted Subsidiary made in accordance with Section 6.04 may be effected
by a merger of such Restricted Subsidiary and (iv) any Restricted Subsidiary may
sell, transfer, lease or otherwise dispose of its assets to the Borrower or to
another Restricted Subsidiary; provided that any Investment that takes the form
of a merger, amalgamation or consolidation (other than any merger, amalgamation
or consolidation involving the Borrower) that is expressly permitted by Section
6.02 shall be permitted under this Section 6.08.
SECTION 6.09. Consolidated Coverage Ratio. The Borrower will not at
any time when the requirements of this Section 6.09 apply permit the
Consolidated Coverage Ratio for the most recent period of four consecutive
fiscal quarters ending on the last day of the most recent fiscal quarter for
which financial statements have been filed with the SEC prior to such time to be
less than 2.00 to 1.00. On each occasion that the Available Commitments shall
for five consecutive Business Days be less than $150,000,000, the requirements
of this Section 6.09 shall apply from such fifth Business Day to the first day
thereafter as of which Available Commitments shall for 10 consecutive Business
Days have been equal to or greater than $150,000,000.
ARTICLE VII
Events of Default
SECTION 7.01. Events of Default. If any of the following events
("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as the same
shall become due and payable, whether at the due date thereof or at a date fixed
for prepayment thereof or otherwise;
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(b) the Borrower shall fail to pay any interest on any Loan or any fee
or any other amount (other than an amount referred to in clause (a) of this
Article) payable under this Agreement or any other Credit Document, when and as
the same shall become due and payable, and such failure shall continue
unremedied for a period of (i) in the case of fees and interest payable under
Sections 2.09 and 2.10, respectively, five Business Days, and (ii) in the case
of any other fees, interest or other amounts (other than those referred to in
paragraph (a) above), five Business Days after the earlier of (A) the day on
which a Financial Officer first obtains knowledge of such failure and (B) the
day on which written notice of such failure shall have been given to the
Borrower by the Administrative Agent or any Lender or Issuing Bank;
(c) any representation or warranty made or deemed made by or on behalf
of any Credit Party in any Credit Document or any amendment or modification
thereof or waiver thereunder shall prove to have been incorrect when made or
deemed made in any respect material to the rights or interests of the Lenders
under the Credit Documents;
(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.02, 5.03 (with respect to the
Borrower's existence) or 5.08 or in Article VI;
(e) any Credit Party shall fail to observe or perform any covenant,
condition or agreement contained in any Credit Document (other than those
specified in clauses (a), (b) and (d) of this Article), and such failure shall
continue unremedied for a period of 30 days after written notice thereof from
the Administrative Agent to the Borrower (which notice will be given at the
request of any Lender); provided that the failure of any Credit Party to perform
any covenant, condition or agreement made in any Credit Document (other than
this Agreement) shall not constitute an Event of Default unless such failure
shall be (i) wilful or (ii) material to the rights or interests of the Lenders
under the Credit Documents;
(f) the Borrower or any Consolidated Subsidiary shall fail to make any
payment of principal in respect of any Material Indebtedness at the scheduled
due date thereof and such failure shall continue beyond any applicable grace
period, or any event or condition occurs that results in any Material
Indebtedness (other than any Qualified Receivables Transaction existing on March
31, 2003) becoming due or being required to be prepaid, repurchased, redeemed,
defeased or terminated prior to its scheduled maturity (other than, in the case
of any Qualified Receivables Transaction, any event or condition not caused by
an act or omission of the Borrower or any Subsidiary, if the Borrower shall
furnish to the Administrative Agent a certificate to the effect that after the
termination of such Qualified Receivables Transaction the Borrower and the
Subsidiaries that are a party thereto have sufficient liquidity to operate their
businesses in the ordinary course); provided that this clause (f) shall not
apply to (i) secured Indebtedness that becomes due as a result of the voluntary
sale or transfer of the property or assets securing such Indebtedness in
accordance with the terms and conditions of this Agreement or (ii) Material
Indebtedness of any Foreign Subsidiary if the Borrower is unable, due to
applicable law restricting Investments in such Foreign Subsidiary, to make an
Investment in such Foreign Subsidiary to fund the payment of such Material
Indebtedness;
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(g) any event or condition occurs that continues beyond any applicable
grace period and enables or permits the holder or holders of any Material
Indebtedness (other than any Qualified Receivables Transaction existing on March
31, 2003) or any trustee or agent on its or their behalf to cause such Material
Indebtedness to become due, or to require the prepayment, repurchase,
redemption, defeasance or termination thereof, prior to its scheduled maturity;
provided, that (i) no Event of Default shall occur under this paragraph (g) as a
result of any event or condition relating to any Qualified Receivables
Transaction, other than any default in the payment of principal or interest
thereunder and (ii) this clause (g) shall not apply to (A) secured Indebtedness
that becomes due as a result of the voluntary sale or transfer of the property
or assets securing such Indebtedness in accordance with the terms and conditions
of this Agreement or (B) Material Indebtedness of any Foreign Subsidiary if the
Borrower is unable, due to applicable law restricting Investments in such
Foreign Subsidiary, to make an Investment in such Foreign Subsidiary to fund the
payment of such Material Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization, moratorium,
suspension of payment or other relief in respect of the Borrower or any Material
Subsidiary or its debts, or of a substantial part of its assets, under any
Federal, state or foreign bankruptcy, insolvency, receivership or similar law
now or hereafter in effect or (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Borrower or any
Material Subsidiary or for a substantial part of its assets, and, in any such
case, such proceeding or petition shall continue undismissed for 90 days or an
order or decree approving or ordering any of the foregoing shall be entered;
(i) the Borrower or any Material Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation,
reorganization, bankruptcy, moratorium, suspension of payment or other relief
under any Federal, state or foreign bankruptcy, insolvency, receivership or
similar law now or hereafter in effect, (ii) consent to the institution of, or
fail to contest in a timely and appropriate manner, any proceeding or petition
described in clause (h) of this Article, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Borrower or any Material Subsidiary or for a
substantial part of its assets, (iv) make a general assignment for the benefit
of creditors or (v) take any action for the purpose of effecting any of the
foregoing;
(j) the Borrower or any Material Subsidiary shall admit in writing its
inability or fail generally to pay its debts as they become due;
(k) an ERISA Event shall have occurred that, when taken together with
all other ERISA Events that have occurred, would be materially likely to result
in a Material Adverse Change;
(l) Liens created under the Security Documents shall not be valid and
perfected Liens on a material portion of the Collateral;
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(m) any Guarantee of the Obligations under the Guarantee and
Collateral Agreement or the Canadian Security Documents shall fail to be a
valid, binding and enforceable Guarantee of one or more Subsidiary Guarantors
where such failure would constitute or be materially likely to result in a
Material Adverse Change; or
(n) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Majority Lenders shall, by notice to the Borrower, take any or
all of the following actions, at the same or different times: (i) reduce the
Commitments to zero, and thereupon the Commitments and each LC Commitment shall
immediately be reduced to zero, (ii) declare the Loans then outstanding to be
due and payable in whole (or in part, in which case any principal not so
declared to be due and payable may thereafter be declared to be due and
payable), and thereupon the principal of the Loans so declared to be due and
payable, together with accrued interest thereon and all fees and other
obligations of the Borrower accrued hereunder, shall become due and payable
immediately, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower, and (iii) demand cash collateral
with respect to any Letter of Credit pursuant to Section 2.03(j) (it being
agreed that such demand will be deemed to have been made with respect to all
Letters of Credit if any Loans are declared to be due and payable as provided in
the preceding clause (ii)); and in case of any event with respect to the
Borrower described in clause (h) or (i) of this Article, the Commitments shall
automatically be reduced to zero, and the principal of the Loans then
outstanding, together with accrued interest thereon and all fees and other
obligations of the Borrower accrued hereunder, shall automatically become due
and payable, and the Borrower's obligation to provide cash collateral for
Letters of Credit shall become effective, in each case without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower.
ARTICLE VIII
The Agents
Each of the Lenders and Issuing Banks hereby irrevocably appoints the
Agents as its agents and authorizes the Agents to take such actions on its
behalf and to exercise such powers as are delegated to the Agents by the terms
hereof and of the other Credit Documents, together with such actions and powers
as are reasonably incidental thereto.
The bank or banks serving as the Agents hereunder shall have the same
rights and powers in their capacity as Lenders or Issuing Banks as any other
Lender or Issuing Bank and may exercise the same as though they were not Agents,
and such bank or banks and their 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 they were not Agents hereunder.
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The Agents shall not have any duties or obligations except those
expressly set forth herein. Without limiting the generality of the foregoing (a)
the Agents shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing, (b) the Agents
shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated hereby that the Agents are required to exercise in writing by the
Majority Lenders, and (c) except as expressly set forth herein, the Agents shall
not have any duty to disclose, and shall not be liable for the failure to
disclose, any information communicated to the Agents by or relating to the
Borrower or any Subsidiary. The Agents shall not be liable for any action taken
or not taken by them with the consent or at the request of the Majority Lenders
or the Lenders, as the case may be, or in the absence of their own gross
negligence or wilful misconduct. In addition, the Agents shall be deemed not to
have knowledge of any Default unless and until written notice thereof is given
to the Agents by the Borrower or a Lender or Issuing Bank, and the Agents shall
not be responsible for or have any duty to ascertain or inquire into (i) any
statement, warranty or representation made in or in connection with any Credit
Document, (ii) the contents of any certificate, report or other document
delivered hereunder or thereunder or in connection herewith or therewith, (iii)
the performance or observance of any of the covenants, agreements or other terms
or conditions set forth herein or therein, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement or any other agreement,
instrument or document or (v) the satisfaction of any condition set forth in
Article IV or elsewhere herein or therein, other than to confirm receipt of
items expressly required to be delivered to the Agents.
The Agents 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 them to be genuine
and to have been signed or sent by the proper Person. The Agents also may rely
upon any statement made to them orally or by telephone and believed by them to
be made by the proper Person, and shall not incur any liability for relying
thereon. The Agents may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by them with
reasonable care, and shall not be liable for any action taken or not taken by
them in accordance with the advice of any such counsel, accountants or experts.
The Agents may perform any and all their duties and exercise their
rights and powers by or through any one or more sub-agents appointed by the
Agents. The Agents and any such sub-agent may perform any and all their duties
and exercise their rights and powers through their respective Affiliates. The
exculpatory provisions of the preceding paragraphs shall apply to any such
sub-agent and to the Affiliates of the Agents and any such sub-agent.
Subject to the appointment and acceptance of a successor Agent as
provided below, either Agent may resign at any time by notifying the Lenders and
the Borrower. Upon any such resignation, the Majority Lenders shall have the
right to appoint a successor with the Borrower's written consent (which shall
not be unreasonably withheld or delayed and shall not be required from the
Borrower if an Event of Default has occurred and is continuing). If no successor
shall have been so appointed by the
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Majority Lenders and shall have accepted such appointment within 30 days after
the retiring Agent gives notice of its resignation, then the retiring Agent may,
on behalf of the Lenders, with the Borrower's written consent (which shall not
be unreasonably withheld or delayed and shall not be required if an Event of
Default has occurred and is continuing), appoint a successor Agent which shall
be a bank or an Affiliate thereof, in each case with a net worth of at least
$1,000,000,000 and an office in New York, New York. Upon the acceptance of its
appointment as 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 Agent shall be discharged from its duties and
obligations hereunder. After an Agent's resignation hereunder, the provisions of
this Article and Section 9.03 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
Agent.
Each Lender and Issuing Bank acknowledges that it has, independently
and without reliance upon the Agents or any other Lender or Issuing Bank 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 and
Issuing Bank also acknowledges that it will, independently and without reliance
upon the Agents or any other Lender or Issuing Bank 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.
Notwithstanding any other provision contained herein, (a) each Lender
and each Issuing Bank acknowledges that the Administrative Agent is not acting
as an agent of the Borrower and that the Borrower will not be responsible for
acts or failures to act on the part of the Administrative Agent and (b) neither
the Syndication Agent nor any of the Documentation Agents shall, in its capacity
as such, have any responsibilities under this Agreement or the other Credit
Documents.
Without prejudice to the provisions of this Article VIII, each Lender
and Issuing Bank hereby irrevocably appoints and authorizes the Collateral Agent
(and any successor acting as Collateral Agent) to act as the Person holding the
power of attorney (in such capacity, the "fonde de pouvoir") of the Lenders and
Issuing Banks as contemplated under Article 2692 of the Civil Code of Quebec,
and to enter into, to take and to hold on their behalf, and for their benefit,
any hypothec, and to exercise such powers and duties which are conferred upon
the fonde de pouvoir under any hypothec. Moreover, without prejudice to such
appointment and authorization to act as the Person holding the power of attorney
as aforesaid, each Lender and Issuing Bank hereby irrevocably appoints and
authorizes the Collateral Agent (and any successor acting as Collateral Agent)
(in such capacity, the "Custodian") to act as agent and custodian for and on
behalf of the Lenders and Issuing Banks to hold and to be the sole registered
holder of any debenture which may be issued under any hypothec, the whole
notwithstanding Section 32 of the Act Respecting the Special Powers of Legal
Persons (Quebec) or any other applicable law. In this respect, (i) the Custodian
shall keep a record indicating the names and addresses of, and the pro rata
portion of the obligations and indebtedness secured by any pledge of any such
debenture and owing to each Lender
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and Issuing Bank and (ii) each Lender and Issuing Bank will be entitled to the
benefits of any charged property covered by any hypothec and will participate in
the proceeds of realization of any such charged property, the whole in
accordance with the terms hereof.
Each of the fonde de pouvoir and the Custodian shall (a) have the sole
and exclusive right and authority to exercise, except as may be otherwise
specifically restricted by the terms hereof, all rights and remedies given to
fonde de pouvoir and the Custodian (as applicable) with respect to the charged
property under any hypothec, any debenture or pledge thereof relating to any
hypothec, applicable laws or otherwise, (b) benefit from and be subject to all
provisions hereof with respect to the Collateral Agent mutatis mutandis,
including, without limitation, all such provisions with respect to the liability
or responsibility to and indemnification by the Lenders or the Issuing Banks,
and (c) be entitled to delegate from time to time any of its powers or duties
under any hypothec, any debenture or pledge thereof relating to any hypothec,
applicable laws or otherwise and on such terms and conditions as it may
determine from time to time. Any Person who becomes a Lender or an Issuing Bank
shall be deemed to have consented to and confirmed: (y) the fonde de pouvoir as
the Person holding the power of attorney as aforesaid and to have ratified, as
of the date it becomes a Lender or Issuing Bank, all actions taken by the fonde
de pouvoir in such capacity, (z) the Custodian as the agent and custodian as
aforesaid and to have ratified, as of the date it becomes a Lender or Issuing
Bank, all actions taken by the Custodian in such capacity.
ARTICLE IX
Miscellaneous
SECTION 9.01. 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 or e-mail, as
follows:
(i) if to the Borrower, to it at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇,
▇▇▇▇▇-▇▇▇▇, Attention of the Treasurer (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(ii) if to the Administrative Agent, to JPMorgan Chase Bank, Loan &
Agency Services Group, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
Attention of ▇▇▇▇▇ ▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to
JPMorgan Chase Bank, N.A., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention
of ▇▇▇▇▇▇ ▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(iii) if to a Lender, to it at its address (or telecopy number or
e-mail address) set forth in Schedule 2.01 or its Administrative
Questionnaire; and
(iv) if to any Issuing Bank, to it at the address most recently
specified by it in a notice delivered to the Administrative Agent and the
Borrower.
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(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 Article II 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 by it; provided that approval of such procedures may be
limited to particular notices or communications.
(c) Any party hereto may change its address, telecopy number or e-mail
address 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 9.02. Waivers; Amendments. (a) No failure or delay by any of
the Agents, any Issuing Bank or any Lender in exercising any right or power
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of
the Agents, the Issuing Banks and the Lenders hereunder are cumulative and are
not exclusive of any rights or remedies that they would otherwise have. No
waiver of any provision of this Agreement or consent to any departure by the
Borrower therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) below, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan or
issuance of a Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether any Agent, any Issuing Bank or any Lender may
have had notice or knowledge of such Default at the time.
(b) No Credit Document (other than any Issuing Bank Agreement or any
letter of credit application referred to in Section 2.03(a) or (b)) or any
provision thereof may be waived, amended or modified except pursuant to an
agreement or agreements in writing entered into by the Credit Parties party
thereto and the Administrative Agent or Collateral Agent, as the case may be,
with the consent of the Majority Lenders; provided, that no such agreement shall
(i) increase the Commitment of any Lender or extend the Commitment Termination
Date with respect to any Lender without the written consent of such Lender, (ii)
reduce or forgive all or part of the principal amount of any Loan or LC
Disbursement or reduce the rate of interest thereon, or reduce any fee payable
hereunder, without the prior written consent of each Lender affected thereby,
(iii) postpone the scheduled date of payment of the principal amount of any
Loan, or the required date of reimbursement of any LC Disbursement, or date for
the payment of any interest on any Loan or any fee, or reduce the amount of,
waive or excuse any such payment, without the prior written consent of each
Lender adversely affected thereby, (iv) release all or substantially all the
Subsidiary Guarantors from their Guarantees under the Guarantee and Collateral
Agreement, or release all or substantially all the Collateral from the Liens of
the Security Documents, without the written consent of each Lender, (v) change
any
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provision of the Guarantee and Collateral Agreement or any other Security
Document to alter the amount or allocation of any payment to be made to the
Secured Parties, without the written consent of each adversely affected Lender,
(vi) change Section 2.15 in a manner that would alter the pro rata sharing of
any payment without the written consent of each Lender adversely affected
thereby, (vii) change any of the provisions of this Section or the definition of
"Majority Lenders" or any other provision hereof specifying the number or
percentage of Lenders required to waive, amend or modify any rights hereunder or
make any determination or grant any consent hereunder, without the written
consent of each Lender or (viii) at any time amend, modify or otherwise alter in
a manner which would increase the amount of the Borrowing Base Availability (A)
the advance rates used in determining the Borrowing Base, without the prior
written consent of Lenders having aggregate Credit Exposures and unused
Commitments representing at least 66-2/3% of the sum of the total Credit
Exposures and unused Commitments at such time or (B) the eligibility standards
used in determining the Borrowing Base, without the prior written consent of
Lenders having aggregate Credit Exposures and unused Commitments representing at
least 66-2/3% of the sum of the total Credit Exposures and unused Commitments at
such time; provided, further that no such agreement shall amend, modify or
otherwise affect the rights or duties of any Agent or Issuing Bank under any
Credit Document, or any provision of any Credit Document providing for payments
by or to the Administrative Agent or any Issuing Bank (or, in the case of any
Issuing Bank, any provision of Section 2.03 affecting such Issuing Bank or any
provision relating to the purchase of participations in Letters of Credit), in
each case without the prior written consent of such Agent or Issuing Bank, as
the case may be; provided further, that so long as the rights or interests of
any Lender shall not be adversely affected in any material respect, the
Guarantee and Collateral Agreement or any other Security Document may be amended
without the consent of the Majority Lenders (A) to cure any ambiguity, omission,
defect or inconsistency, or (B) to provide for the addition of any assets or
classes of assets to the Collateral. Notwithstanding the foregoing, any
provision of this Agreement may be amended by an agreement in writing entered
into by the Borrower, the Administrative Agent (and, if their rights or
obligations are affected thereby or if their consent would be required under the
preceding provisions of this paragraph, the Issuing Banks) and the Lenders that
will remain parties hereto after giving effect to such amendment if (1) by the
terms of such agreement the Commitments of each Lender not consenting to the
amendment provided for therein shall be reduced to zero upon the effectiveness
of such amendment and (2) at the time such amendment becomes effective, each
Lender not consenting thereto receives payment in full of the principal of and
interest accrued on each Loan made by it and all other amounts owing to it or
accrued for its account under this Agreement.
(c) Notwithstanding anything in paragraph (b) of this Section to the
contrary, this Agreement and the other Credit Documents may be amended at any
time and from time to time to increase the aggregate Commitments by an agreement
in writing entered into by the Borrower, the Administrative Agent, the
Collateral Agent and each Person (including any Lender) that shall agree to
provide any such additional Commitment (but without the consent of any other
Lender), and each such Person that shall not already be a Lender shall, at the
time such agreement becomes effective, become a Lender with the same effect as
if it had originally been a Lender under this
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Agreement with the Commitment set forth in such agreement; provided, however,
that: (i) the aggregate amount of such additional Commitments established
pursuant to this paragraph shall not exceed $250,000,000; (ii) no Default or
Event of Default shall exist at the time such amendment becomes effective; (iii)
in the case of any additional Commitment that is to be provided by a Person that
is not a Lender immediately prior to the effectiveness of such amendment, each
Principal Issuing Bank shall have consented to such Person becoming a Lender,
and (iv) the Administrative Agent shall have received a favorable written
opinion (addressed to the Administrative Agent, the Lenders and the Issuing
Banks) of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Borrower (or other counsel
for the Borrower reasonably satisfactory to the Administrative Agent) in a form
reasonably acceptable to the Administrative Agent but in substance to the effect
that the incurrence of each Loan, Letter of Credit and LC Disbursement under
such additional Commitments, and each Lien securing them, will be permitted
under the Junior Lien Indenture and each other indenture or other agreement
governing any Material Indebtedness in effect at the time of the effectiveness
of such amendment, and such Loans, Letters of Credit and LC Disbursements will
constitute Designated Senior Obligations under the Lien Subordination and
Intercreditor Agreement and First Lien Obligations under the Lenders Lien
Subordination and Intercreditor Agreement. Each Loan, Letter of Credit and LC
Disbursement under such additional Commitments established pursuant to this
paragraph shall constitute Loans, Letters of Credit and LC Disbursements under,
and shall be entitled to all the benefits afforded by, this Agreement and the
other Credit Documents, and shall, without limiting the foregoing, benefit
equally and ratably from the Guarantees and security interests and Liens created
by the Guarantee and Collateral Agreement and the other Security Documents. The
Borrower shall take any actions reasonably required by the Administrative Agent
to ensure and/or demonstrate that all requirements under the Credit Documents in
respect of the provision and maintenance of Collateral continue to be satisfied
after the establishment of any such additional Commitments. In the event that
the Borrower elects to establish any additional Commitments pursuant to this
paragraph, the Borrower will afford the then existing Lenders an opportunity to
provide such additional Commitments.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower
shall pay (i) all reasonable out-of-pocket expenses incurred by the Agents, the
Arrangers and their Affiliates (including the reasonable fees, charges and
disbursements of Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Agents and the
Arrangers, and other local and foreign counsel for the Agents and Arrangers,
limited to one per jurisdiction, in connection with the Security Documents and
the creation and perfection of the Liens created thereby and other local and
foreign law matters) in connection with the arrangement and syndication of the
credit facilities provided for herein, the preparation, execution, delivery and
administration of this Agreement and the other Credit Documents or any
amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by any Issuing
Bank in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or demand for payment thereunder and (iii) all reasonable
out-of-pocket expenses incurred by the Agents, any Issuing Bank or any Lender,
including the fees, charges and disbursements of any counsel for the Agents, any
Issuing Bank or any Lender, in connection with the
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enforcement or protection of its rights in connection with this Agreement,
including its rights under this Section, or in connection with the Loans made or
Letters of Credit issued hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or similar negotiations in respect of
such Loans or Letters of Credit. The Borrower also shall pay all out-of-pocket
expenses incurred by the Collateral Agent in connection with the creation and
perfection of the security interests contemplated by this Agreement, including
all filing, recording and similar fees and, as more specifically set forth
above, the reasonable fees and disbursements of counsel (including foreign
counsel in connection with Foreign Pledge Agreements).
(b) The Borrower shall indemnify each Agent, each Arranger, each
Issuing Bank 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), incurred by or asserted against any Indemnitee
and arising out of (i) the execution or delivery of this Agreement or any other
Credit Document or other agreement or instrument contemplated hereby, the
syndication and arrangement of the credit facilities provided for herein, the
performance by the parties hereto of their respective obligations or the
exercise by the parties hereto of their rights hereunder or thereunder or the
consummation of the Transactions or any other transactions contemplated hereby
or thereby, (ii) any Loan or Letter of Credit or the use of the proceeds thereof
(including any refusal by any Issuing Bank to honor a demand for payment under a
Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit), (iii) any actual
or alleged presence or release of Hazardous Materials on or from any property
currently or formerly owned or operated by the Borrower or any of the
Subsidiaries, or any Environmental Liability related in any way to the Borrower
or any of the Subsidiaries, or (iv) any 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
shall have resulted from the gross negligence or wilful misconduct of such
Indemnitee or the breach by such Indemnitee of obligations set forth herein or
in any other Credit Document.
(c) To the extent that the Borrower fails to pay any amount required
to be paid by it to any Agent, any Arranger or any Issuing Bank under paragraph
(a) or (b) of this Section, each Lender severally agrees to pay to such Agent,
Arranger or Issuing Bank, as the case may be, such Lender's percentage
(determined as of the time that the applicable unreimbursed expense or indemnity
payment is sought based on the outstanding Loans and LC Exposures and unused
Commitments of such Lender and the other Lenders (or, if the Commitments shall
have been reduced to zero and there shall be no outstanding Loans or LC
Exposures of such Class, based on the Loans and LC Exposures and unused
Commitments most recently in effect)) of such unpaid amount; provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or
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related expense, as the case may be, was incurred by or asserted against such
Agent, Arranger or Issuing Bank in its capacity as such.
SECTION 9.04. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto,
the Indemnitees and their respective successors and assigns permitted hereby
(including any Affiliate of any Issuing Bank 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, Indemnitees, their respective successors
and assigns permitted hereby (including any Affiliate of any Issuing Bank that
issues any Letter of Credit), Participants (to the extent provided in paragraph
(c) of this Section) and, to the extent expressly contemplated hereby, the
Related Parties of each of the Agents, the Arrangers, the Issuing Banks 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
Commitments and the Loans at the time owing to it) with the prior written
consent (such consent not to be unreasonably withheld or delayed) of:
(A) the Borrower; provided that no consent of the Borrower
shall be required for an assignment to a Lender or a Federal
Reserve Bank;
(B) the Administrative Agent; provided that no consent of
the Administrative Agent shall be required for an assignment to
an assignee that is a Lender or a Federal Reserve Bank; and
(C) each Principal Issuing Bank; provided that no consent of
any Principal Issuing Bank shall be required for an assignment to
an assignee that is a Federal Reserve Bank.
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender or an
Affiliate of a Lender, the amount of the Commitment of the
assigning Lender subject to each such assignment (determined as
of the date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent) shall not be
less than $1,000,000 or, if smaller, the entire remaining amount
of the assigning Lender's applicable Commitment unless each of
the Borrower and the Administrative Agent shall otherwise
consent,
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provided (i) that no such consent of the Borrower shall be
required if an Event of Default has occurred and is continuing
and (ii) in the event of concurrent assignments to two or more
assignees that are Affiliates of one another, or to two or more
Approved Funds managed by the same investment advisor or by
affiliated investment advisors, all such concurrent assignments
shall be aggregated in determining compliance with this
subsection;
(B) 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;
(C) the parties to each assignment shall execute and deliver
to the Administrative Agent an Assignment and Assumption,
together with a processing and recordation fee of $3,500;
provided that in the event of concurrent assignments to two or
more assignees that are Affiliates of one another, or to two or
more Approved Funds managed by the same investment advisor or by
affiliated investment advisors, only one such fee shall be
payable; and
(D) the assignee, if it shall not be a Lender, shall deliver
to the Administrative Agent an Administrative Questionnaire.
(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 Assumption the assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations
under this Agreement (and, in the case of an Assignment and Assumption 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 of Sections 2.12, 2.13, 2.14 and 9.03). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this Section 9.04 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 (c) of this Section. Each assignment hereunder shall be deemed to be
an assignment of the related rights under the Guarantee and Collateral Agreement
and each other applicable Security Document.
(iv) The Administrative Agent 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 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 Banks and the Lenders may treat
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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
and any Issuing Bank or Lender, at any reasonable time and from time to time
upon reasonable prior notice.
(v) 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. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(vi) By executing and delivering an Assignment and Assumption, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim; (ii)
except as set forth in clause (i) above, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or any other Credit Document or any other instrument or document
furnished pursuant hereto or thereto, or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of any of the foregoing, or
the financial condition of the Credit Parties or the performance or observance
by the Credit Parties of any of their obligations under this Agreement or under
any other Credit Document or any other instrument or document furnished pursuant
hereto or thereto; (iii) each of the assignee and the assignor represents and
warrants that it is legally authorized to enter into such Assignment and
Assumption; (iv) such assignee confirms that it has received a copy of this
Agreement, together with copies of any amendments or consents entered into prior
to the date of such Assignment and Assumption and copies of the most recent
financial statements delivered pursuant to Section 5.01 and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Assumption; (v) such assignee will
independently and without reliance upon the Agents, such assigning Lender or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (vi) such assignee appoints and
authorizes the Agents to take such action as agents on its behalf and to
exercise such powers under this Agreement and the other Credit Documents as are
delegated to them by the terms hereof and thereof, together with such powers as
are reasonably incidental thereto; (vii) such assignee agrees that it will not
book any Loan or hold any participation in any Letter of Credit or LC
Disbursement at an Austrian branch or through an Austrian Affiliate and will
comply with Section 9.18 of this Agreement; and (viii) such assignee agrees that
it will perform in accordance with their terms all the
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obligations that by the terms of this Agreement are required to be performed by
it as a Lender.
(c) (i) Any Lender may, without the consent of the Borrower or the
Administrative Agent or any Issuing Bank, sell participations to one or more
banks or other entities (each a "Participant") in all or a portion of such
Lender's rights and/or obligations under this Agreement (including all or a
portion of its Commitment and the Loans); 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
Banks 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 that affects such Participant and that,
under Section 9.02, would require the consent of each affected Lender. Subject
to paragraph (c)(ii) of this Section, the Borrower agrees that each Participant
shall be entitled to the benefits of Sections 2.12, 2.13 and 2.14 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 9.08 as though it
were a Lender, provided such Participant agrees to be subject to Section 2.15(d)
as though it were a Lender.
(ii) A Participant shall not be entitled to receive any greater
payment under Section 2.12 or 2.14 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, which consent shall specifically refer to this
exception. A Participant that would be a Foreign Lender if it were a Lender
shall not be entitled to the benefits of Section 2.14 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 2.14(f) as
though it were a Lender.
(d) 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.
SECTION 9.05. 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
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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 any Agent, any Issuing Bank or any Lender may
have had notice or knowledge of any 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 Total
Commitment has not been reduced to zero. The provisions of Sections 2.12, 2.13,
2.14 and 9.03 and Article VIII shall survive and remain in full force and effect
regardless of the consummation of the transactions contemplated hereby, the
repayment of the Loans, the reduction of the Total Commitment to zero, the
expiration or termination of the Letters of Credit or the termination of this
Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness; Issuing Banks.
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,
the other Credit Documents, the Issuing Bank Agreements and any separate letter
agreements with respect to fees payable to the Administrative Agent or the
Arrangers 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
(or its counsel) shall have received counterparts hereof which, when taken
together, bear the signatures of each of the other parties hereto (or written
evidence satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement) that each such party
has signed a counterpart of this Agreement), 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. Each financial institution that shall be
party to an Issuing Bank Agreement executed by the Borrower and the
Administrative Agent shall be a party to and an Issuing Bank under this
Agreement, and shall have all the rights and duties of an Issuing Bank hereunder
and under its Issuing Bank Agreement. Each Lender hereby authorizes the
Administrative Agent to enter into Issuing Bank Agreements.
SECTION 9.07. 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. No failure to obtain any approval required for the effectiveness
of any provision of this Agreement shall affect the validity or enforceability
of any other provision of this Agreement.
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SECTION 9.08. Right of Setoff. If an Event of Default shall have
occurred and be continuing and the Loans shall have become due and payable
pursuant to Article VII, each Lender, each Issuing Bank and each Affiliate of
any of the foregoing is hereby authorized at any time and from time to time, to
the fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other obligations at any time owing by such Lender, Issuing Bank or Affiliate to
or for the credit or the account of the Borrower against any of and all the
obligations of the Borrower now or hereafter existing under this Agreement held
by such Lender or such Issuing Bank, irrespective of whether or not such Lender
or such Issuing Bank shall have made any demand under this Agreement and
although such obligations may be unmatured. The rights of each of the Lenders
and the Issuing Banks under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Person may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of
Process. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) Each party hereto hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of the Supreme
Court of the State of New York sitting in New York County and of the United
States District Court of the Southern District of New York, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Agreement, or for recognition or enforcement of any judgment, and each
of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in such New York State or, to the extent permitted by law, in such Federal
court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that any party hereto may
otherwise have to bring any action or proceeding relating to this Agreement in
the courts of any jurisdiction.
(c) Each party hereto hereby irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection which
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court referred to
in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
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LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY
OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Agents, the Issuing Banks
and the Lenders agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees and agents, including accountants,
legal counsel and other advisors who have been informed of the confidential
nature of such Information and instructed to keep such Information confidential,
(b) to the extent requested by any regulatory or self-regulatory authority
(including the NAIC), (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party
to this Agreement, (e) to the extent necessary or advisable in connection with
the exercise of any remedies hereunder or any suit, action or proceeding
relating to this Agreement or the enforcement of rights hereunder, (f) subject
to an agreement containing provisions substantially the same as those of this
Section, to (i) any assignee of or Participant in, or any prospective assignee
of or Participant in, any of its rights or obligations under this Agreement or
(ii) any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to the Borrower and its obligations, (g) with
the written consent of the Borrower or (h) to the extent such Information (i)
becomes publicly available other than as a result of a breach of this Section or
(ii) becomes available to any Agent, any Issuing Bank or any Lender on a
nonconfidential basis from a source other than the Borrower. For the purposes of
this Section, "Information" means all information received from the Borrower or
Persons acting on its behalf relating to the Borrower or its business, other
than any such information that is available to any Agent, any Issuing Bank or
any Lender prior to disclosure by the Borrower on a nonconfidential basis from a
source other than the Borrower that is not known by the recipient to be bound by
a confidentiality agreement or other obligation of confidentiality with respect
to such information.
SECTION 9.13. Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively, the "Charges"), shall exceed
the maximum lawful rate (the
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"Maximum Rate") which may be contracted for, charged, taken, received or
reserved by the Lender holding such Loan in accordance with applicable law, the
rate of interest payable in respect of such Loan hereunder, together with all
Charges payable in respect thereof, shall be limited to the Maximum Rate and, to
the extent lawful, the interest and Charges that would have been payable in
respect of such Loan but were not payable as a result of the operation of this
Section shall be cumulated and the interest and Charges payable to such Lender
in respect of other Loans or periods shall be increased (but not above the
Maximum Rate therefor) until such cumulated amount, together with interest
thereon at the Alternate Base Rate to the date of repayment, shall have been
received by such Lender.
SECTION 9.14. Security Documents. Each Lender hereby irrevocably
authorizes and directs the Collateral Agent to execute and deliver the
Reaffirmation Agreement, the Guarantee and Collateral Agreement, the Lenders
Lien Subordination and Intercreditor Agreement (and any reaffirmation thereof),
each other Security Document and the European Guarantee and Collateral Agreement
and to carry out the provisions thereof. Each Lender, by executing and
delivering this Agreement, acknowledges receipt of a copy of the Reaffirmation
Agreement, the Guarantee and Collateral Agreement and the European Guarantee and
Collateral Agreement and approves and agrees to be bound by and to act in
accordance with the terms and conditions of the Reaffirmation Agreement, the
Guarantee and Collateral Agreement and each other Security Document insofar as
they relate to or require performance by the Lenders, specifically including (i)
the provisions of Article III of the Guarantee and Collateral Agreement
(providing for the continuation of the Liens securing the "US Miscellaneous
Obligations", as defined in the 2003 MGCA, as Liens ranking pari passu with the
Liens securing the Obligations), (ii) the provisions of Article VII of the
Guarantee and Collateral Agreement (governing the exercise of remedies under the
Security Documents and the distribution of the proceeds realized from such
exercise), (iii) the provisions of Articles IX and X of the Guarantee and
Collateral Agreement (relating to the duties and responsibilities of the
Collateral Agent thereunder and providing for the indemnification and the
reimbursement of expenses of the Collateral Agent thereunder by the Lenders),
and (iv) the provisions of Section 12.13 of the Guarantee and Collateral
Agreement (providing for releases of Guarantees of and Collateral securing the
Obligations). Each party hereto further agrees that the foregoing provisions of
the Guarantee and Collateral Agreement shall apply to each other Security
Document. In the event that the Borrower shall incur Indebtedness to refinance
or replace Indebtedness under the Second Lien Agreement in compliance with
Sections 6.01 and 6.06, each Lender hereby irrevocably authorizes and directs
the Collateral Agent to enter into an intercreditor agreement on substantially
the same terms as those of the Lenders Lien Subordination and Intercreditor
Agreement (as in effect at the time of such refinancing or replacement) with the
holders of such Indebtedness or their representative.
SECTION 9.15. Additional Financial Covenants. Notwithstanding anything
else contained herein to the contrary, in the event that any maintenance
financial covenant other than the financial covenant set forth in Section 6.09
is included in the Second Lien Agreement, the Third Lien Agreement or any SSLI
Documentation (as
129
defined in Schedule 1.01C), such covenant will be deemed to be added to Article
VI of this Agreement automatically, without the need for any further action
whatsoever.
SECTION 9.16. Effect of Restatement. This Agreement shall supersede
the Existing Credit Agreement from and after the Restatement Date with respect
to the transactions hereunder and with respect to the loans and letters of
credit outstanding under the Existing Credit Agreement as of the Restatement
Date. The parties hereto acknowledge and agree, however, that (a) this Agreement
and all other Credit Documents executed and delivered herewith do not constitute
a novation, payment and reborrowing or termination of the Obligations under the
Existing Credit Agreement and the other Credit Documents as in effect prior to
the Restatement Date, (b) such Obligations are in all respects continuing with
only the terms being modified as provided in this Agreement and the other Credit
Documents, (c) the liens and security interests in favor of the Collateral Agent
for the benefit of the Credit Parties securing payment of such Obligations are
in all respects continuing and in full force and effect with respect to all
Obligations and (d) all references in the other Credit Documents to the Credit
Agreement shall be deemed to refer without further amendment to this Agreement.
SECTION 9.17. USA Patriot Act Notice. Each Lender and Issuing Bank and
the Administrative Agent (for itself and not on behalf of any Lender or Issuing
Bank) hereby notifies the Borrower that pursuant to the requirements of the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001))
(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 or the Administrative
Agent, as applicable, to identify the Borrower in accordance with the Act.
SECTION 9.18. Austrian Matters.
(a) Notices with respect to Austria. Each party to this Agreement
agrees that it will (i) only send notices and other written references to this
Agreement or any other Credit Document (the Agreement, the Credit Documents and
any notices or other written references to the Agreement or any other Credit
Document, each, a "Stamp Duty Sensitive Document") to or from Austria by email
which do not contain the signature of any party (whether manuscript or
electronic, including, for the avoidance of doubt, the name of an individual or
other entity) and (ii) not send fax or scanned copies of a signed Stamp Duty
Sensitive Document to or from Austria.
(b) Agreement to be Kept Outside Austria. No party to this Agreement
shall bring or send to or otherwise produce in Austria (x) an original copy,
notarised copy or certified copy of any Stamp Duty Sensitive Document, or (y) a
copy of any Stamp Duty Sensitive Document signed or endorsed by one or more
parties other than in the event that:
(1) this does not cause a liability of a party to this Agreement
to pay stamp duty in Austria;
130
(2) a party to this Agreement wishes to enforce any of its rights
under or in connection with such Stamp Duty Sensitive Document in
Austria and is only able to do so by bringing, sending to or otherwise
producing in Austria (x) an original copy, notarised copy or certified
copy of the relevant Stamp Duty Sensitive Document or (y) a copy of
any Stamp Duty Sensitive Document signed or endorsed by one or more
parties and it would not be sufficient for that party to bring, send
to or otherwise produce in Austria a simple copy (i.e. a copy which is
not an original copy, notarised copy or certified copy) of the
relevant Stamp Duty Sensitive Document for the purposes of such
enforcement. In connection with the foregoing, each party to this
Agreement agrees that in any form of proceedings in Austria simple
copies may be submitted by either party to this Agreement and
undertakes to refrain from (I) objecting to the introduction into
evidence of a simple copy of any Stamp Duty Sensitive Document or
raising a defence to any action or to the exercise of any remedy for
the reason of an original or certified copy of any Stamp Duty
Sensitive Document not having been introduced into evidence, unless
such simple copy actually introduced into evidence does not accurately
reflect the content of the original document and (II) contesting the
authenticity (Echtheit) of a simple copy of any such Stamp Duty
Sensitive Document before an Austrian court or authority, unless such
simple copy does not accurately reflect the content of the original
document; or
(3) a party to this Agreement is required by law, governmental
body, court, authority or agency pursuant to any law or legal
requirement (whether for the purposes of initiating, prosecuting,
enforcing or executing any claim or remedy or enforcing any judgment
or otherwise), to bring an original, notarised copy or certified copy
of any Stamp Duty Sensitive Document into Austria.
(c) Austrian Stamp Duty. Notwithstanding any other provisions in any
of the Credit Documents, if any liability to pay Austrian stamp duties is
triggered:
(1) as a result of a party to this Agreement (i) breaching its
obligations under paragraph (a), (b) or (d) of this Section, or (ii)
booking its Loans or making or accepting performance of any rights or
obligations under this Agreement or any of the other Credit Documents
through an entity organized under the laws of the Republic of Austria
or a branch or an Affiliate, located or organized in the Republic of
Austria, of an entity organized under the laws of a jurisdiction other
than the Republic of Austria, that party shall pay such stamp duties;
and
(2) in circumstances other than those described in clause (1) of
this paragraph (c), the Borrower shall be liable for the payment of
all such stamp duties.
131
(d) Place of Performance Outside Austria. Each of the parties hereto
agrees that the exclusive place of performance (Erfullungsort) for all rights
and obligations under this Agreement and the other Credit Documents shall be
outside the Republic of Austria, and the payment of amounts under this Agreement
must be made to a bank account outside the Republic of Austria. The
Administrative Agent, the Collateral Agent and each Lender agrees to designate
and maintain one or more accounts at one or more lending offices located outside
the Republic of Austria to which all amounts payable to such party under this
Agreement and the other Credit Documents shall be made.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
THE GOODYEAR TIRE & RUBBER COMPANY,
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Treasurer
JPMORGAN CHASE BANK, N.A.,
individually and as Administrative Agent
and Collateral Agent,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
THE GOODYEAR TIRE & RUBBER COMPANY
AMENDED AND RESTATED
FIRST LIEN CREDIT AGREEMENT
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
ALLIED IRISH BANKS, P.L.C.
by /s/ ▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Senior Vice President
by /s/ ▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, ▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, N.A.
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
BNP PARIBAS
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, ▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇ FINANCIAL LIMITED
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Director
by /s/ ▇.▇. ▇▇▇▇
-------------------------------------
Name: ▇.▇. ▇▇▇▇
Title: Director
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, ▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ BRANCH
by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
CHARTER ONE BANK, N.A.
by /s/ G. ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇
-------------------------------------
Name: G. ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇
Title: Vice President
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
THE CIT GROUP/ BUSINESS CREDIT, INC.
by /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
CITIBANK, N.A.
by /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Attorney
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
COMMERZBANK
by /s/ ▇▇▇▇▇▇ ▇. Warnine
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. Warnine
Title: Assistant Vice President
by /s/ ▇▇▇▇ Marlati
-------------------------------------
Name: ▇▇▇▇ Marlati
Title: Senior Vice President
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
DEUTSCHE BANK TRUST COMPANY AMERICAS
by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
GENERAL ELECTRIC CAPITAL CORPORATION
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Duly Authorized Signatory
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
GMAC COMMERCIAL FINANCE, LLC
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS, L.P.
by /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Signatory
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
GRUPO SANTANDER
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Director
by /s/ ▇▇▇▇▇▇ ▇. de ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. de ▇▇▇▇▇
Title: Executive Director
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
HSBC BUSINESS CREDIT (USA) INC.
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
KEYBANK NATIONAL ASSOCIATION
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
LASALLE BANK NATIONAL ASSOCIATION
by /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: First Vice President
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
LLOYDS TSB COMMERCIAL FINANCE LTD
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
NATIONAL CITY BUSINESS CREDIT, INC.
by /s/ ▇▇▇▇▇▇▇ ▇. Gutien
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Gutien
Title: Vice President
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, ▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ BRANCH
by /s/ Nicolas Regent
-------------------------------------
Name: Nicolas Regent
Title: Director
by /s/ PJ van Tuldey
-------------------------------------
Name: PJ van Tuldey
Title: Managing Director
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
NORTH FORK BUSINESS CAPITAL CORPORATION
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
PNC BANK, N.A.
by /s/ A. ▇▇▇▇▇ ▇▇▇▇▇, Jr.
-------------------------------------
Name: A. ▇▇▇▇▇ ▇▇▇▇▇, Jr.
Title: Vice President
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
REGIONS BANK
by /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Attorney
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
SIEMANS FINANCIAL SERVICES, INC.
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
UBS LOAN FINANCE LLC
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Associate Director
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, ▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, N.A.
by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
UPS CAPITAL CORPORATION
by /s/ ▇▇▇▇▇▇▇ ▇'▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇'▇▇▇▇
Title: Senior Credit Officer
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
WACHOVIA CAPITAL FINANCE COPORATION
(CENTRAL)
by /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
▇▇▇▇▇▇▇ BUSINESS CREDIT CORPORATION
by /s/ ▇▇▇▇▇▇ Zautla
-------------------------------------
Name: ▇▇▇▇▇▇ Zautla
Title: Senior Vice President
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to
The Goodyear Tire & Rubber Company's
Amended and Restated First Lien
Credit Agreement Dated as of
April 20, 2007
LENDER
▇▇▇▇▇ FARGO FOOTHILL, LLC
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
by
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------