Exhibit 10.2
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$800,000,000
CREDIT AGREEMENT
among
VISTEON CORPORATION,
as Borrower,
The Several Lenders from Time to Time Parties Hereto,
CREDIT SUISSE SECURITIES (USA) LLC
and SUMITOMO MITSUI BANKING CORPORATION,
as Co-Documentation Agents,
CITICORP USA, INC.,
as Syndication Agent,
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
Dated as of June 13, 2006
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X.X. XXXXXX SECURITIES INC. and
CITIGROUP GLOBAL MARKETS INC.,
as Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
Page
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SECTION 1. DEFINITIONS 1
1.1 Defined Terms.................................................... 1
1.2 Other Definitional Provisions.................................... 21
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS 22
2.1 Term Commitments................................................. 22
2.2 Procedure for Term Loan Borrowing................................ 22
2.3 Repayment of Term Loans.......................................... 22
2.4 Optional Prepayments............................................. 22
2.5 Mandatory Prepayments............................................ 23
2.6 Conversion and Continuation Options.............................. 24
2.7 Limitations on Eurodollar Tranches............................... 24
2.8 Interest Rates and Payment Dates................................. 24
2.9 Computation of Interest and Fees................................. 25
2.10 Inability to Determine Interest Rate............................. 25
2.11 Pro Rata Treatment and Payments.................................. 26
2.12 Requirements of Law.............................................. 27
2.13 Taxes............................................................ 28
2.14 Indemnity........................................................ 29
2.15 Change of Lending Office......................................... 30
2.16 Replacement of Lenders........................................... 30
2.17 Additional Term Loans............................................ 30
SECTION 3. REPRESENTATIONS AND WARRANTIES 31
3.1 Financial Condition.............................................. 31
3.2 No Change........................................................ 32
3.3 Existence; Compliance with Law................................... 32
3.4 Power; Authorization; Enforceable Obligations.................... 32
3.5 No Legal Bar..................................................... 32
3.6 Litigation....................................................... 33
3.7 No Default....................................................... 33
3.8 Ownership of Property; Liens..................................... 33
3.9 Intellectual Property............................................ 33
3.10 Taxes............................................................ 33
3.11 Federal Regulations.............................................. 33
3.12 Labor Matters.................................................... 33
3.13 ERISA............................................................ 34
3.14 Investment Company Act; Other Regulations........................ 34
3.15 Subsidiaries..................................................... 34
3.16 Use of Proceeds.................................................. 34
3.17 Environmental Matters............................................ 34
3.18 Accuracy of Information, etc..................................... 35
3.19 Security Documents............................................... 36
SECTION 4. CONDITIONS PRECEDENT 36
SECTION 5. AFFIRMATIVE COVENANTS 39
5.1 Financial Statements............................................. 39
5.2 Certificates; Other Information.................................. 40
5.3 Payment of Obligations........................................... 41
5.4 Maintenance of Existence; Compliance............................. 41
5.5 Maintenance of Property; Insurance............................... 41
5.6 Inspection of Property; Books and Records; Discussions........... 41
5.7 Notices.......................................................... 42
5.8 Environmental Laws............................................... 42
5.9 Additional Collateral, etc....................................... 42
5.10 Stock of First-Tier Foreign Subsidiaries......................... 44
5.11 Post-Closing Matters............................................. 44
SECTION 6. NEGATIVE COVENANTS 45
6.1 Indebtedness..................................................... 45
6.2 Liens............................................................ 48
6.3 Fundamental Changes.............................................. 51
6.4 Disposition of Property.......................................... 51
6.5 Restricted Payments.............................................. 53
6.6 Capital Expenditures............................................. 54
6.7 Investments...................................................... 54
6.8 Optional Payments and Modifications of Certain Debt
Instruments; Modifications of Organizational Documents........... 57
6.9 Transactions with Affiliates..................................... 57
6.10 Swap Agreements.................................................. 57
6.11 Changes in Fiscal Periods........................................ 58
6.12 Negative Pledge Clauses.......................................... 58
6.13 Clauses Restricting Subsidiary Distributions..................... 58
6.14 Lines of Business................................................ 59
6.15 Business of VIHI and Foreign Stock Holding Companies............. 59
6.16 Indebtedness Under CNTA Exception................................ 59
6.17 Liabilities of Oasis Holdings Statutory Trust.................... 59
SECTION 7. EVENTS OF DEFAULT 59
SECTION 8. THE AGENTS 62
8.1 Appointment...................................................... 62
8.2 Delegation of Duties............................................. 62
8.3 Exculpatory Provisions........................................... 62
8.4 Reliance by Administrative Agent................................. 62
8.5 Notice of Default................................................ 63
8.6 Non-Reliance on Agents and Other Lenders......................... 63
8.7 Indemnification.................................................. 63
8.8 Agent in Its Individual Capacity................................. 64
8.9 Successor Administrative Agent................................... 64
8.10 Documentation Agent and Syndication Agent........................ 64
SECTION 9. MISCELLANEOUS 64
9.1 Amendments and Waivers........................................... 64
9.2 Notices.......................................................... 65
9.3 No Waiver; Cumulative Remedies................................... 66
9.4 Survival of Representations and Warranties....................... 66
9.5 Payment of Expenses and Taxes.................................... 66
9.6 Successors and Assigns; Participations and Assignments........... 68
9.7 Adjustments; Set-off............................................. 70
9.8 Counterparts..................................................... 71
9.9 Severability..................................................... 71
9.10 Integration...................................................... 71
9.11 GOVERNING LAW.................................................... 71
9.12 Submission To Jurisdiction; Waivers.............................. 71
9.13 Acknowledgements................................................. 72
9.14 Releases of Guarantees and Liens................................. 72
9.15 Confidentiality.................................................. 72
9.16 Intercreditor Agreement.......................................... 73
9.17 WAIVERS OF JURY TRIAL............................................ 73
SCHEDULES:
1.1A Commitments
1.1B Mortgaged Property
1.1C Specified Assets
3.4 Consents, Authorizations, Filings and Notices
3.6 Litigation
3.15 Subsidiaries
3.19(a) UCC Filing Jurisdictions
3.19(b) Mortgage Filing Jurisdictions
6.1(f) Existing Indebtedness
6.1(g) Existing Credit Facilities of Foreign Subsidiaries
6.1(h) Existing Factoring Programs
6.2(f) Existing Liens
6.5(e) Employee Programs
6.7(o) Existing Investments
6.13 Existing Restrictive Agreements
EXHIBITS:
A Form of Guarantee and Collateral Agreement
B Form of Compliance Certificate
C Form of Closing Certificate
D Form of Mortgage
E Form of Assignment and Assumption
F Form of Legal Opinion of Xxxxxxxx & Xxxxx LLP
G Form of Prepayment Option Notice
H Form of Exemption Certificate
I Form of Solvency Certificate
CREDIT AGREEMENT dated as of June 13, 2006 (this "Agreement"), among
Visteon Corporation, a Delaware corporation (the "Borrower"), the several banks
and other financial institutions or entities from time to time parties to this
Agreement (the "Lenders"), Credit Suisse Securities (USA) LLC and Sumitomo
Mitsui Banking Corporation, as co-documentation agents (in such capacities, the
"Co-Documentation Agent"), Citicorp USA, Inc., as syndication agent (in such
capacity, the "Syndication Agent"), and JPMorgan Chase Bank, N.A., as
administrative agent (in such capacity, the "Administrative Agent").
WITNESSETH:
WHEREAS, the Borrower has requested a term loan facility in an
aggregate amount of $800,000,000 to refinance certain of its existing
indebtedness, for working capital and for general corporate purposes; and
WHEREAS, the Lenders are willing to extend such credit to the Borrower
on the terms and subject to the conditions set forth herein;
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms listed in this
Section 1.1 shall have the respective meanings set forth in this Section 1.1.
"ABR": for any day, a rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) 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%. For purposes hereof: "Prime Rate" shall mean the rate of interest per
annum publicly announced from time to time by the Administrative Agent as its
prime rate in effect at its principal office in New York City (the Prime Rate
not being intended to be the lowest rate of interest charged by the
Administrative Agent in connection with extensions of credit to debtors). Any
change in the ABR due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective as of the opening of business on the effective
day of such change in the Prime Rate or the Federal Funds Effective Rate,
respectively.
"ABR Loans": Loans the rate of interest applicable to which is based
upon the ABR.
"Acquired Non-Core Assets": any assets acquired in a Permitted
Acquisition and designated as "non-core assets" by notice from the Borrower to
the Administrative Agent within 30 days after the consummation thereof so long
as such assets do not constitute more than 25% of the assets acquired in any
such Permitted Acquisition.
"Acquisition": with respect to any Person, (a) the acquisition by such
Person of the Capital Stock of any other Person resulting in such other Person
becoming a Subsidiary of such Person, (b) the acquisition by such Person of all
or substantially all of the assets of any other Person, or (c) any merger or
consolidation of a Subsidiary of such Person with any other Person so long as
the surviving entity of such merger or consolidation is a Subsidiary of such
Person.
"Additional Lender: as defined in Section 2.17.
"Adjusted EBITDA": at any date of determination, an amount equal to
(a) Consolidated EBITDA for the period from the first day of the first full
quarter after the Closing Date to the last day of
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the most recent quarter ending prior to such date of determination for which
financial statements have been delivered (treated as one accounting period)
minus (b) the sum of (i) Capital Expenditures for such period and (ii) the cash
interest expense of the Borrower and its Subsidiaries for such period as
determined on a consolidated basis in accordance with GAAP.
"Administrative Agent": JPMorgan Chase Bank, N.A., as the
administrative agent for the Lenders under this Agreement and the other Loan
Documents, together with any of its successors and replacements appointed in
accordance with Section 8.9.
"Affiliate": as to any Person, any other Person that, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. For purposes of this definition, "control" of a Person means the
power, directly or indirectly, either to (a) vote 10% or more of the securities
having ordinary voting power for the election of directors (or persons
performing similar functions) of such Person or (b) direct or cause the
direction of the management and policies of such Person, whether by contract or
otherwise.
"Agents": the collective reference to the Syndication Agent and the
Administrative Agent.
"Aggregate Exposure": with respect to any Lender at any time, an
amount equal to (a) until the Closing Date, the aggregate amount of such
Lender's Commitments at such time and (b) the aggregate then unpaid principal
amount of such Lender's Term Loans.
"Aggregate Exposure Percentage": with respect to any Lender at any
time, the ratio (expressed as a percentage) of such Lender's Aggregate Exposure
at such time to the Aggregate Exposure of all Lenders at such time.
"Agreement": as defined in the preamble hereto.
"Applicable Margin": in the case of ABR Loans, 2.00% and, in the case
of Eurodollar Loans, 3.00%.
"Approved Fund": as defined in Section 9.6(b).
"Asset Sale": any Disposition of property or series of related
Dispositions of property (excluding any such Disposition permitted by Section
6.4 other than pursuant to paragraphs (e), (j), (k), (l), (m) and (s) thereof)
that yields gross proceeds to any Group Member (valued at the initial principal
amount thereof in the case of non-cash proceeds consisting of notes or other
debt securities and valued at fair market value in the case of other non-cash
proceeds) in excess of $2,500,000.
"Asset Sale Proceeds Deferred Amount": with respect to any Asset Sale
Proceeds Event, the aggregate Net Cash Proceeds received by any Group Member in
connection therewith that are not applied to prepay the Term Loans pursuant to
Section 2.5(b) as a result of the delivery of a Note Repurchase Notice and/or a
Reinvestment Notice, as the case may be.
"Asset Sale Proceeds Event": (a) any Asset Sale permitted under
Section 6.4(j), 6.4(k) or 6.4(l) in respect of which the Borrower has delivered
a Note Repurchase Notice and (b) any Asset Sale or Recovery Event in respect of
which the Borrower has delivered a Reinvestment Notice.
"Asset Sale Proceeds Prepayment Amount": with respect to any Asset
Sale Proceeds Event, the Asset Sale Proceeds Deferred Amount relating thereto
less any amount expended prior to the
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relevant Asset Sale Proceeds Prepayment Date (a) in the case of an Asset Sale
Proceeds Event for which a Reinvestment Notice has been delivered, to finance a
Permitted Acquisition or to acquire or repair assets useful in its business or
to (other than, except in the case of a Recovery Event relating thereto, the
acquisition of inventory and other current assets in the ordinary course of
business) and/or (b) in the case of an Asset Sale Proceeds Event for which a
Note Repurchase Notice has been delivered, to repurchase or redeem the 2010
Notes (or, to the extent the 2010 Notes have been repurchased or redeemed in
full, the 2014 Notes).
"Asset Sale Proceeds Prepayment Date": (a) with respect to any Asset
Sale Proceeds Event for which a Reinvestment Notice has been delivered, the
earlier of (i) the date occurring twelve months after such Asset Sale Proceeds
Event and (ii) the date on which the Borrower shall have notified the
Administrative Agent in writing of its determination not to finance a Permitted
Acquisition or to acquire or repair assets useful in the business of the
Borrower or its Subsidiaries (other than, except in the case of a Recovery Event
relating thereto, the acquisition of inventory and other current assets in the
ordinary course of business) with all or any portion of the relevant Asset Sale
Proceeds Deferred Amount and (b) with respect to any Asset Sale Proceeds Event
for which a Note Repurchase Notice has been delivered, the earlier of (i) the
date occurring six months after such Asset Sale Proceeds Event and (ii) the date
on which the Borrower shall have determined not to repurchase or redeem the 2010
Notes (or, to the extent the 2010 Notes have been repurchased or redeemed in
full, the 2014 Notes) with all or a portion of the relevant Asset Sale Proceeds
Deferred Amount.
"Assignee": as defined in Section 9.6(b).
"Assignment and Assumption": an Assignment and Assumption,
substantially in the form of Exhibit E.
"Benefitted Lender": as defined in Section 9.7(a).
"Board": the Board of Governors of the Federal Reserve System of the
United States (or any successor).
"Borrower": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified by the Borrower as a date
on which the Borrower requests the relevant Lenders to make Loans hereunder.
"Business": as defined in Section 3.17(b).
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law to
close, provided, that with respect to notices and determinations in connection
with, and payments of principal and interest on, Eurodollar Loans, such day is
also a day for trading by and between banks in Dollar deposits in the London
interbank eurodollar market.
"Capital Expenditures": for any period, with respect to any Person,
the aggregate of all expenditures by such Person and its Subsidiaries for the
acquisition or leasing (pursuant to a capital lease) of fixed or capital assets
or additions to equipment (including replacements, capitalized repairs and
improvements during such period) that should be capitalized under GAAP on a
consolidated balance sheet of such Person and its Subsidiaries. Notwithstanding
the foregoing, Capital Expenditures shall not include, without duplication: (a)
the consideration for any Permitted Acquisition or Investments (other than
Investments pursuant to Section 6.7(x)); (b) capital expenditures recorded as
result of the
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consummation of any sale-leaseback transaction permitted hereunder; (c) capital
expenditures financed with the net cash proceeds of any issuance of Capital
Stock by the Borrower after the Closing Date; (d) capital expenditures in
respect of the purchase price of equipment to the extent the consideration
therefor consists of any combination of (i) equipment traded in at the time of
such purchase pursuant to a Disposition permitted under Section 6.4(a) and (ii)
the proceeds of a concurrent Disposition pursuant to Section 6.4(a) of
equipment, in each case, in the ordinary course of business; (e) capital
expenditures funded with any Asset Sale Proceeds Deferred Amount; (f) interest
capitalized in respect of capital expenditures and (g) expenditures that are
accounted for as capital expenditures of such Person and that actually are paid
for by a third party (excluding any Group Member) and for which no Group Member
has provided or is required to provide or incur, directly or indirectly, any
consideration or obligation to such third party or any other Person (whether
before, during or after such period), provided that the amount of capital
expenditures excluded pursuant to this clause (g) shall not exceed $50,000,000
for all periods.
"Capital Lease Obligations": as to any Person, the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP and, for the purposes of
this Agreement, the amount of such obligations at any time shall be the
capitalized amount thereof at such time determined in accordance with GAAP.
"Capital Stock": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants, rights or options to purchase any of the foregoing.
"Cash Equivalents": (a) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition or, with respect
to any Foreign Subsidiary, an equivalent obligation of the government of the
country in which such Foreign Subsidiary, an equivalent obligation of the
government of the country in which such Foreign Subsidiary transacts business,
in each case maturing within one year from the date of acquisition; (b)
certificates of deposit, time deposits, eurodollar time deposits or overnight
bank deposits having maturities of twelve months or less from the date of
acquisition issued by any Lender or by any commercial bank organized under the
laws of the United States or any state thereof having combined capital and
surplus of not less than $250,000,000, and, with respect to any Foreign
Subsidiary, time deposits, certificates of deposits, overnight bank deposits or
bankers acceptances in the currency of any country in which such Foreign
Subsidiary transacts business having maturities of twelve months or less from
the date of acquisition issued by any commercial bank organized in the United
States having capital and surplus in excess of $100,000,000 or, with respect to
any Foreign Subsidiary, a commercial bank organized under the laws of another
country in which such Foreign Subsidiary transacts business having total assets
in excess of $100,000,000 (or its foreign currency equivalent); (c) commercial
paper of an issuer rated at least A-1 (or the equivalent thereof) by Standard &
Poor's Ratings Services ("S&P") or P-1 (or the equivalent thereof) by Xxxxx'x
Investors Service, Inc. ("Moody's"), or carrying an equivalent rating by a
nationally recognized rating agency, if both of the two named rating agencies
cease publishing ratings of commercial paper issuers generally, and maturing
within twelve months from the date of acquisition; (d) repurchase obligations of
any Lender or of any commercial bank satisfying the requirements of clause (b)
of this definition with respect to securities issued or fully guaranteed or
insured by the United States government; (e) securities with maturities of one
year or less from the date of acquisition issued or fully guaranteed by any
state, commonwealth or territory of the United States, by any political
subdivision or taxing authority of any such state, commonwealth or territory or
by any foreign government, the securities of which state, commonwealth,
territory, political subdivision, taxing
5
authority or foreign government (as the case may be) are rated at least A by S&P
or A by Moody's; (f) securities with maturities of twelve months or less from
the date of acquisition backed by standby letters of credit issued by any Lender
or any commercial bank satisfying the requirements of clause (b) of this
definition; (g) deposits available for withdrawal on demand with commercial
banks organized in the Untied States having capital and surplus in excess of
$100,000,000 or, with respect to any Foreign Subsidiary, a commercial bank
organized under the laws of any other country in which such Foreign Subsidiary
transacts business having total assets in excess of $100,000,000 (or its foreign
currency equivalent), (h) money market mutual or similar funds that invest
exclusively in assets satisfying the requirements of clauses (a) through (g) of
this definition; or (h) money market funds that (i) comply with the criteria set
forth in SEC Rule 2a-7 under the Investment Company Act of 1940, as amended,
(ii) are rated AAA by S&P and Aaa by Moody's and (iii) have portfolio assets of
at least $5,000,000,000.
"Change of Control": (i) any "person" or "group" (as such terms are
used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) shall become, or obtain rights (whether by means
of warrants, options or otherwise) to become, the "beneficial owner" (as defined
in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly, of
more than 50% of the outstanding common stock of the Borrower, or (ii) the board
of directors of the Borrower shall cease to consist of a majority of Continuing
Directors.
"Closing Date": the date on which the conditions precedent set forth
in Section 4.1 shall have been satisfied (or waived), which date is June 13,
2006.
"CNTA Exception": the exception set forth in Section 3.06 of the
Existing Indenture providing that the Borrower and certain of its Domestic
Subsidiaries may issue or assume certain Debt (as defined in the Existing
Indenture) and Attributable Debt (as defined in the Existing Indenture) which is
secured by a Mortgage (as defined in the Existing Indenture) on certain assets
of the Borrower and certain of its Domestic Subsidiaries without requiring the
Securities (as defined in the Existing Indenture) to be equally and ratably
secured so long as such Debt and Attributable Debt does not exceed 15% of
Consolidated Net Tangible Assets as reflected in the audited consolidated
financial statements for the most recently completed fiscal year prior to the
date such secured Debt or Attributable Debt is issued or assumed.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral": all property of the Loan Parties, now owned or hereafter
acquired, upon which a Lien is purported to be created by any Security Document.
"Commitment": as to any Lender, the sum of the Term Commitment of such
Lender.
"Commitment Quarter": each of the respective three-month periods
during the term of this Agreement ending on September 30, December 31, March 31
and June 30.
"Commonly Controlled Entity": an entity, whether or not incorporated,
that is under common control with the Borrower within the meaning of Section
4001 of ERISA or is part of a group that includes the Borrower and that is
treated as a single employer under Section 414 of the Code.
"Compliance Certificate": a certificate duly executed by a Responsible
Officer substantially in the form of Exhibit B.
"Conduit Lender": any special purpose corporation organized and
administered by any Lender for the purpose of making Loans otherwise required to
be made by such Lender and designated by
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such Lender in a written instrument; provided, that the designation by any
Lender of a Conduit Lender shall not relieve the designating Lender of any of
its obligations to fund a Loan under this Agreement if, for any reason, its
Conduit Lender fails to fund any such Loan, and the designating Lender (and not
the Conduit Lender) shall have the sole right and responsibility to deliver all
consents and waivers required or requested under this Agreement with respect to
its Conduit Lender, and provided, further, that no Conduit Lender shall (a) be
entitled to receive any greater amount pursuant to Section 2.12, 2.13, 2.14 or
9.5 than the designating Lender would have been entitled to receive in respect
of the extensions of credit made by such Conduit Lender or (b) be deemed to have
any Commitment.
"Confidential Information Memorandum": the Confidential Information
Memorandum dated May 2006 and furnished to certain Lenders.
"Consolidated EBIT": for any period, as to any person, the
consolidated net income (or loss) of such Person for such period determined in
accordance with GAAP, plus, without duplication and to the extent reflected as a
charge in the statement of such consolidated net income for such period, the sum
of (a) income, withholding, franchise and similar tax expense and (b) interest
expense.
"Consolidated EBITDA": means for any period, Consolidated Net Income
for such period plus, without duplication and to the extent reflected as a
charge in the statement of such Consolidated Net Income for such period, the sum
of (a) income, withholding, franchise and similar tax expense, (b) interest
expense, (c) amortization or write-off of debt discount or deferred financing
costs and debt issuance costs and commissions, discounts and other fees, costs,
expenses and charges associated with Indebtedness (including the Loans) and
letters of credit, (d) depreciation and amortization expense, (e) amortization
of intangibles (including, but not limited to, goodwill) and organization costs,
(f) any Permitted Non-Recurring Expenses or Losses, (g) charges subject to
Pending Reimbursements from Ford which have not yet been reimbursed prior to the
end of such period, (h) non-cash compensation charges, including any such
charges arising from stock options, restricted stock grants or other
equity-incentive programs, (i) with respect to any discontinued operation, any
loss resulting therefrom, (j) any one-time non-cash expenses or losses resulting
from the closing of the Outsourcing Initiative, (k) non-recurring fees, costs
and expenses associated with the transactions contemplated by this Agreement,
including the amendment to the Existing Second Amended and Restated Credit
Agreement and incurrence of the Term Loans, the Proposed ABL Financing and the
Proposed European Financing so long as such fees, costs and expenses are paid on
or prior to September 30, 2006, (l) to the extent actually reimbursed, expenses
incurred to the extent covered by indemnification provisions in any agreement in
connection with a Permitted Acquisition or other Investment, (m) any
extraordinary charges in accordance with GAAP, (n) any unusual or non-recurring
non-cash charges (including, whether or not otherwise includable as a separate
item in the statement of such Consolidated Net Income for such period, non-cash
losses on sales of assets outside of the ordinary course of business and
non-cash asset impairment charges but excluding non-cash charges incurred in the
ordinary course of business that represent an accrual of, or reserve, for cash
charges in a future period) and (o) cash restructuring charges related to
Dispositions permitted under Sections 6.4(j) through (m), including, without
limitation, those related to plant closures, severance costs and OPEB
liabilities; provided that the aggregate amount of all such cash restructuring
charges added pursuant to this clause (o) shall not exceed $75,000,000; and
provided further that the aggregate amount of all such charges added during the
first four quarters following the Closing Date shall not exceed $37,500,000 and
the aggregate amount of all such charges during each subsequent four quarter
period thereafter shall not exceed 50% of the amount equal to $75,000,000 less
all such charges added pursuant to this clause (o) during the prior periods, and
minus, to the extent included in the statement of such Consolidated Net Income
for such period, the sum of (i) any unusual or non-recurring non-cash income or
gains, (ii) with respect to any discontinued operation, any gain resulting
therefrom, (iii) any one-time income or gains from the closing of the
Outsourcing Initiative and (iv) any cash payments made during such period in
respect of items described in clause (n) above, all
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as determined on a consolidated basis. For the purposes of calculating
Consolidated EBITDA during any four quarter period in which a Material
Acquisition or a Material Disposition has occurred (each, a "Reference Period"),
(i) if at any time during such Reference Period the Borrower or any Subsidiary
shall have made any Material Disposition, the Consolidated EBITDA for such
Reference Period shall be reduced by an amount equal to the Consolidated EBITDA
(if positive) attributable to the property that is the subject of such Material
Disposition for such Reference Period or increased by an amount equal to the
Consolidated EBITDA (if negative) attributable thereto for such Reference Period
and (ii) if during such Reference Period the Borrower or any Subsidiary shall
have made a Material Acquisition, Consolidated EBITDA for such Reference Period
shall be calculated after giving pro forma effect thereto as if such Material
Acquisition occurred on the first day of such Reference Period. The pro forma
calculations pursuant to the immediately preceding sentence shall be made in
accordance with Regulation S-X under the Securities Act of 1933, as amended, and
may include pro forma adjustments in respect of cost savings (x) made in
compliance with such Regulation S-X or (y) otherwise acceptable to the
Administrative Agent in its discretion (but not exceeding, in the case of this
clause (y), 10% of the Consolidated EBITDA attributable to the relevant Material
Acquisition).
"Consolidated EBITDA Disposition Percentage": with respect to any
Disposition, the percentage of Consolidated EBITDA for the most recent period of
four consecutive fiscal quarters for which financial statements have been
delivered attributable to the property to be Disposed of in such Disposition.
"Consolidated Leverage Ratio": as of the end of any fiscal quarter,
the ratio of (a) Consolidated Total Debt as of such date to (b) Consolidated
EBITDA for the period of four fiscal quarters ending as of such date.
"Consolidated Net Income": for any period, the consolidated net income
(or loss) of the Borrower and its Subsidiaries, determined on a consolidated
basis in accordance with GAAP, provided that Consolidated Net Income for any
such period shall exclude, without duplication, (i) the cumulative effect of a
change in accounting principles during such period, (ii) the income or loss of
any Subsidiary (other than a Loan Party) to the extent that the declaration or
payment of dividends or similar distributions by such Subsidiary of that income
is not at the time permitted without any prior governmental approval (which has
not been obtained) or, directly or indirectly, by the operation of the terms of
its charter or any agreement, instrument, judgment, decree, statute, rule or
governmental regulation applicable to such Subsidiary or its stockholders (which
has not been legally waived), (iii) the income or loss of any Person (other than
a Subsidiary) in which the Borrower and its Subsidiaries have an ownership
interest, except to the extent of the amount of dividends or other distributions
actually paid in cash to the Borrower or one of its Subsidiaries by such Person
during such period, and (iv) except as contemplated in the definition of
Consolidated EBITDA, the income or loss of any Person accrued prior to the date
it becomes a Subsidiary or is merged into or consolidated with the Borrower or
any of its Subsidiaries. There shall be excluded in determining Consolidated Net
Income unrealized losses or gains in respect of Swap Agreements and other
embedded derivatives or similar contracts that require the same accounting
treatment as Swap Agreements.
"Consolidated Net Tangible Assets": as calculated in accordance with
GAAP, as of the date of determination, all amounts that would be set forth under
the caption "total assets" (or any like caption) on a consolidated balance sheet
of the Borrower and its consolidated Subsidiaries less (i) all current
liabilities and (ii) goodwill, trade names, patents, unamortized debt discount,
organization expenses and other like intangibles of the Borrower and its
consolidated Subsidiaries.
"Consolidated Total Debt": as of any date and without duplication, the
aggregate principal amount of all Debt of the Company and its Subsidiaries on a
consolidated basis.
8
"Continuing Directors": the directors of the Borrower on the Closing
Date and each other director, if, in each case, such other director's nomination
for election to the board of directors of the Borrower is recommended by the
committee of the board of directors designated to make such recommendations;
provided that such committee has been appointed by 51% of the then Continuing
Directors.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Core Assets": assets used to manufacture or produce goods for sale in
climate control, interiors and electronics (including lighting) lines of
business.
"Debt": as of any date, as to any Person, the sum of, without
duplication (a) the amount outstanding on such date under notes, bonds,
debentures, commercial paper, or other similar evidences of indebtedness for
money borrowed of such Person and (b) all other amounts that would appear as
debt on a consolidated balance sheet of such Person and its Subsidiaries as of
such date in accordance with GAAP (excluding items which appear in the footnotes
only).
"Default": any of the events specified in Section 7, whether or not
any requirement for the giving of notice, the lapse of time, or both, has been
satisfied.
"Designated Foreign Assets": at any date of determination, an amount
equal to the sum of (a) 85% of the accounts receivable reflected in accordance
with GAAP on the consolidated balance sheet of the Borrower as of the most
recent date for which financial statements have been delivered which are
attributable to Foreign Subsidiaries (other than Halla Climate Control
Corporation and its Subsidiaries) and (b) 65% of the inventory reflected on such
balance sheet in accordance with GAAP which are attributable to such Foreign
Subsidiaries.
"Disposition": with respect to any property, any sale, lease, sale and
leaseback, assignment, conveyance, transfer or other disposition thereof. The
terms "Dispose" and "Disposed of" shall have correlative meanings.
"Documentation Agent": as defined in the preamble hereto.
"Dollars" and "$": dollars in lawful currency of the United States.
"Domestic Subsidiary": any Subsidiary of the Borrower organized under
the laws of any jurisdiction within the United States.
"Environmental Laws": any and all foreign, Federal, state, local or
municipal laws, rules having the force and effect of law, orders, regulations,
statutes, ordinances, codes, decrees, requirements of any Governmental Authority
or other Requirements of Law (including common law) regulating, relating to or
imposing liability or standards of conduct concerning protection of human health
or the environment, as now or may at any time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the maximum rates
(expressed as a decimal fraction) of reserve
9
requirements in effect on such day (including basic, supplemental, marginal and
emergency reserves) under any regulations of the Board or other Governmental
Authority having jurisdiction with respect thereto dealing with reserve
requirements prescribed for eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D of the Board) maintained by a member
bank of the Federal Reserve System.
"Eurodollar Base Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, the rate per annum determined on the
basis of the rate for deposits in Dollars for a period equal to such Interest
Period commencing on the first day of such Interest Period appearing on Page
3750 of the Telerate screen as of 11:00 A.M., London time, two Business Days
prior to the beginning of such Interest Period. In the event that such rate does
not appear on Page 3750 of the Telerate screen (or otherwise on such screen),
the "Eurodollar Base Rate" shall be determined by reference to such other
comparable publicly available service for displaying eurodollar rates as may be
selected by the Administrative Agent or, in the absence of such availability, by
reference to the rate at which the Administrative Agent is offered Dollar
deposits at or about 11:00 A.M., New York City time, two Business Days prior to
the beginning of such Interest Period in the interbank eurodollar market where
its eurodollar and foreign currency and exchange operations are then being
conducted for delivery on the first day of such Interest Period for the number
of days comprised therein.
"Eurodollar Loans": Loans the rate of interest applicable to which is
based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined for such day
in accordance with the following formula (rounded upward to the nearest 1/100th
of 1%):
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Eurodollar Tranche": the collective reference to Eurodollar Loans
under the Facility the then current Interest Periods with respect to all of
which begin on the same date and end on the same later date (whether or not such
Loans shall originally have been made on the same day).
"Event of Default": any of the events specified in Section 7, provided
that any requirement for the giving of notice, the lapse of time, or both, has
been satisfied.
"Excepted Secured Debt Amount": on any date, an amount equal to 15% of
Consolidated Net Tangible Assets, determined based on the most recent audited
consolidated financial statements of the Borrower available to the
Administrative Agent.
"Excluded Entities": Atlantic Automotive Components, LLC, GCM/Visteon
Automotive Systems, LLC, GCM/Visteon Automotive Leasing, LLC, AutoNeural
Systems, LLC and MIG-Visteon Automotive Systems, LLC, any other Subsidiary
created after the Closing Date in connection with the establishment of a Joint
Venture with any Person (other than a Group Member) which Subsidiary is not, and
was never, a Wholly Owned Subsidiary and the TMD Entities.
"Excluded Foreign Subsidiary": any Foreign Subsidiary in respect of
which either (a) the pledge of more than 65% of the Capital Stock of such
Subsidiary as Collateral or (b) the guaranteeing by such Subsidiary of the
Obligations, would, in the good faith judgment of the Borrower, result in
adverse tax consequences to the Borrower or its Subsidiaries.
10
"Existing Five-Year Term Loan Agreement": the Amended and Restated
Five-Year Term Loan Credit Agreement dated as of June 24, 2005 among the
Borrower, Oasis Holdings Statutory Trust, as Special Purpose Borrower, the
several financial institutions from time to time party thereto, Citicorp USA, as
Syndication Agent and JPMorgan Chase Bank, N.A., as Administrative Agent, as
amended from time to time.
"Existing Indenture": the Amended and Restated Indenture between the
Borrower and X.X. Xxxxxx Trust Company, National Association, dated as of March
10, 2004, as in effect as of the date hereof.
"Existing Second Amended and Restated Credit Agreement": the Second
Amended and Restated Credit Agreement dated as of January 9, 2006 among the
Borrower, the several financial institutions from time to time party thereto,
Citicorp USA, as Syndication Agent and JPMorgan Chase Bank, N.A., as
Administrative Agent, as amended from time to time.
"Facility": each of Term Commitments and the Term Loans made
thereunder.
"Federal Funds Effective Rate": for any day, the weighted average of
the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published 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 of the
quotations for the day of such transactions received by the Administrative Agent
from three federal funds brokers of recognized standing selected by it.
"Ford": Ford Motor Company.
"Ford Documentation": the definitive documentation executed in
connection with the Ford Transactions.
"Ford Transactions": the collective reference to (i) the transfer of
the properties contemplated by the Ford Documentation and certain associated
assets from the Borrower to one or more separate entities that were acquired by
Ford, (ii) the termination of the leasing arrangements for approximately 17,400
Ford-UAW employees, (iii) the relief by Ford of the Borrower's liability,
including approximately $1,500,000,000 of previously deferred gains related to
Ford-UAW post-retirement health care and life insurance benefit obligations, for
former assigned employees and retirees and certain salaried retirees in an
aggregate amount of approximately $2,000,000,000, (iv) the transfer of all
assets in the Borrower's UAW Voluntary Employee Beneficiary Association to the
Ford-UAW Voluntary Employee Beneficiary Association, (v) the reimbursement by
Ford of up to $550,000,000 of additional restructuring actions by the Borrower,
(vi) the payment by Ford of certain transferred inventory based on net book
value at the time of the closing of the Ford Transactions, (vii) the loan by
Ford to the Borrower in an amount of up to $250,000,000 (it being understood
that such loan was terminated on September 30, 2005) and (viii) the issuance by
the Borrower to Ford of warrants to purchase 25,000,000 shares of the Borrower's
common stock at an exercise price of $6.90 per share and (ix) any other
transactions described in the Ford Documentation.
"Foreign Debt Base Amount": as of any date of determination, an amount
equal to the sum of (a) 85% of the accounts receivable reflected on the
consolidated balance sheet of the Borrower as of March 31, 2006 in accordance
with GAAP which are attributable to Foreign Subsidiaries (other than Halla
Climate Control Corporation and its Subsidiaries) and (b) 65% of inventory
reflected on such balance sheet in accordance with GAAP which are attributable
to such Foreign Subsidiaries.
11
"Foreign Stock Holding Company": any Domestic Subsidiary of the
Borrower created or acquired to hold the Capital Stock of first-tier Foreign
Subsidiaries, it being understood that each such Subsidiary shall be a passive
holding company (with the only assets of such Subsidiary being the Capital Stock
of first-tier Foreign Subsidiaries) and such Subsidiary shall be subject to the
requirements of Section 6.16.
"Foreign Subsidiary": any Subsidiary of the Borrower that is not a
Domestic Subsidiary.
"Funding Office": the office of the Administrative Agent specified in
Section 9.2 or such other office as may be specified from time to time by the
Administrative Agent as its funding office by written notice to the Borrower and
the Lenders.
"GAAP": generally accepted accounting principles in the United States
as in effect from time to time.
"Governmental Authority": any nation or government, any state or other
political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative functions of or
pertaining to government, any securities exchange and any self-regulatory
organization (including the National Association of Insurance Commissioners).
"Group Members": the collective reference to the Borrower and its
Subsidiaries.
"Guarantee and Collateral Agreement": the Guarantee and Collateral
Agreement to be executed and delivered by the Borrower and each Subsidiary
Guarantor, substantially in the form of Exhibit A.
"Guarantee Obligation": as to any Person (the "guaranteeing person"),
any obligation, including a reimbursement, counterindemnity or similar
obligation, of the guaranteeing Person that guarantees or in effect guarantees,
or which is given to induce the creation of a separate obligation by another
Person (including any bank under any letter of credit) that guarantees or in
effect guarantees, any Indebtedness, leases, dividends or other obligations (the
"primary obligations") of any other third Person (the "primary obligor") in any
manner, whether directly or indirectly, including any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such primary
obligation or any property constituting direct or indirect security therefor,
(ii) to advance or supply funds (1) for the purchase or payment of any such
primary obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation or
(iv) otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided, however, that the term
Guarantee Obligation shall not include endorsements of instruments for deposit
or collection or standard contractual indemnities, in each case in the ordinary
course of business. The amount of any Guarantee Obligation of any guaranteeing
person shall be deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such Guarantee
Obligation is made and (b) the maximum amount for which such guaranteeing person
may be liable pursuant to the terms of the instrument embodying such Guarantee
Obligation, unless such primary obligation and the maximum amount for which such
guaranteeing person may be liable are not stated or determinable, in which case
the amount of such Guarantee Obligation shall be such guaranteeing person's
maximum reasonably anticipated liability in respect thereof as determined by the
Borrower in good faith.
12
"Guarantors": each Domestic Subsidiary of the Borrower other than (a)
any of the Excluded Entities or (b) Oasis Holdings Statutory Trust.
"Immaterial Subsidiary": a Subsidiary other than a Material
Subsidiary.
"Incremental Term Loan": as defined in Section 2.17.
"Incremental Term Loan Amendment": as defined in Section 2.17.
"Indebtedness": of any Person at any date, without duplication, (a)
all indebtedness of such Person for borrowed money, (b) all obligations of such
Person for the deferred purchase price of property or services (other than trade
payables and accrued expenses, in each case in the ordinary course of such
Person's business), (c) all obligations of such Person evidenced by notes,
bonds, debentures or other similar instruments, (d) all indebtedness created or
arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and remedies
of the seller or lender under such agreement in the event of default are limited
to repossession or sale of such property), (e) all Capital Lease Obligations of
such Person, (f) all obligations of such Person, contingent or otherwise, as an
account party or applicant under or in respect of acceptances, letters of
credit, surety bonds or similar arrangements, (g) the liquidation value of all
mandatorily redeemable preferred Capital Stock of such Person, (h) all Guarantee
Obligations of such Person in respect of obligations of the kind referred to in
clauses (a) through (g) above, (i) all obligations of the kind referred to in
clauses (a) through (h) above secured by (or for which the holder of such
obligation has an existing right, contingent or otherwise, to be secured by) any
Lien on property (including accounts and contract rights) owned by such Person,
whether or not such Person has assumed or become liable for the payment of such
obligation, and (j) for the purposes of Section 7(e) only, the Termination Value
in respect of Swap Agreements of such Person. The Indebtedness of any Person
shall include the Indebtedness of any other entity (including any partnership in
which such Person is a general partner) to the extent such Person is liable
therefor as a result of such Person's ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness expressly provide that such Person is not liable therefor. The
amount of Indebtedness of any Person for purposes of clause (i) shall be deemed
to be equal to the lesser of (x) the aggregate unpaid amount of such
Indebtedness and (y) the fair market value of the property encumbered thereby as
determined by such Person in good faith. To the extent not otherwise included,
Indebtedness shall include an amount equal to the aggregate net outstanding
amount theretofore paid by lenders or purchasers under any Permitted Receivables
Financing in connection with their purchase of, or the making of loans secured
by the receivables subject to such Permitted Receivables Financing, as reduced
from time to time by collections received by such lenders or purchasers or any
discharge of the obligation to repay or repurchase such receivables.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": the collective reference to all rights,
priorities and privileges relating to intellectual property, whether arising
under United States, multinational or foreign laws or otherwise, including
copyrights, copyright licenses, patents, patent licenses, trademarks, trademark
licenses, technology, know-how and processes, and all rights to xxx at law or in
equity for any infringement or other impairment thereof, including the right to
receive all proceeds and damages therefrom.
13
"Intercreditor Agreement": the Intercreditor Agreement dated as of
June 13, 2006 among, the Borrower, each Guarantor, the Administrative Agent and
the administrative agent under the Existing Amended and Restated Credit
Agreement dated as of January 9, 2006 and any other Persons from time to time
parties thereto.
"Interest Payment Date": (a) as to any ABR Loan, the last day of each
March, June, September and December to occur while such Loan is outstanding and
the final maturity date of such Loan, (b) as to any Eurodollar Loan having an
Interest Period of three months or less, the last day of such Interest Period,
(c) as to any Eurodollar Loan having an Interest Period longer than three
months, each day that is three months, or a whole multiple thereof, after the
first day of such Interest Period and the last day of such Interest Period and
(d) as to any Loan, the date of any repayment or prepayment made in respect
thereof.
"Interest Period": as to any Eurodollar Loan, (a) initially, the
period commencing on the borrowing or conversion date, as the case may be, with
respect to such Eurodollar Loan and ending one, two, three or six (or, if
available to all Lenders under the Facility, nine or twelve) months thereafter,
as selected by the Borrower in its notice of borrowing or notice of conversion,
as the case may be, given with respect thereto; and (b) thereafter, each period
commencing on the last day of the next preceding Interest Period applicable to
such Eurodollar Loan and ending one, two, three or six (or, if available to all
Lenders under the Facility, nine or twelve) months thereafter, as selected by
the Borrower by irrevocable notice to the Administrative Agent not later than
11:00 A.M., New York City time, on the date that is three Business Days prior to
the last day of the then current Interest Period with respect thereto; provided
that, all of the foregoing provisions relating to Interest Periods are subject
to the following:
(i) if any Interest Period would otherwise end on a day that is not a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless the result of such extension would be to carry such
Interest Period into another calendar month in which event such Interest
Period shall end on the immediately preceding Business Day;
(ii) the Borrower may not select an Interest Period under the Facility
that would extend beyond the date final payment is due on the Term Loans;
and
(iii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on
the last Business Day of a calendar month.
"Investments": as defined in Section 6.7.
"Joint Lead Arrangers": X.X. Xxxxxx Securities Inc. and Citigroup
Global Markets Inc.
"Joint Venture": any Person a portion (but not all) of the Capital
Stock of which is owned by a Group Member but which is not a Wholly Owned
Subsidiary and which is engaged in a business which is similar to or
complementary with the business of the Group Member as permitted under Section
6.14 of this Agreement.
"Lenders": as defined in the preamble hereto; provided, that unless
the context otherwise requires, each reference herein to the Lenders shall be
deemed to include any Conduit Lender.
"Lien": any mortgage, pledge, hypothecation, assignment, encumbrance,
lien (statutory or other), charge or other security interest or any preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including any conditional sale or other title
14
retention agreement and any capital lease having substantially the same economic
effect as any of the foregoing).
"Loan": any loan made by any Lender pursuant to this Agreement.
"Loan Documents": this Agreement, the Security Documents, the
Intercreditor Agreement, the Notes and any amendment, waiver, supplement or
other modification to any of the foregoing.
"Loan Parties": each Group Member that is a party to a Loan Document.
"Material Acquisition": any one or more related acquisitions of any
business entity or entities, or of any operating unit or units of any business
entity or entities, that become consolidated with the Borrower in accordance
with GAAP and that involve the payment of consideration (including, without
limitation, the assumption of debt) by the Borrower and its Subsidiaries in
excess of $25,000,000 in the aggregate during any Commitment Quarter.
"Material Adverse Effect": a material adverse effect on (a) the
business, property, operations or financial condition of the Borrower and its
Subsidiaries taken as a whole or (b) the validity or enforceability of this
Agreement or any of the other Loan Documents or the rights or remedies of the
Administrative Agent or the Lenders hereunder or thereunder.
"Material Disposition": any one or more related dispositions by the
Borrower or a Subsidiary of any business entity or entities, or of any operating
unit or units of the Borrower or a Subsidiary, that become unconsolidated with
the Borrower in accordance with GAAP and that involve the receipt of
consideration by the Borrower and its Subsidiaries in excess of $25,000,000 in
the aggregate during any Commitment Quarter; provided that the dispositions made
in connection with the Ford Transactions shall not be considered Material
Dispositions.
"Material Group Members": all Group Members other than Immaterial
Subsidiaries.
"Material Subsidiary": any Subsidiary of the Borrower with revenues of
more than 10% of the consolidated revenues of the Borrower and its Subsidiaries
and Consolidated EBIT of more than 0 as of the last fiscal year for which
financial statements have been delivered to the Administrative Agent under
Section 5.1(a).
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as such
in or under any Environmental Law, including asbestos, polychlorinated biphenyls
and urea-formaldehyde insulation.
"Maturity Date": the seventh anniversary of the Closing Date.
"Mortgaged Properties": the real properties listed on Schedule 1.1B,
as to which the Administrative Agent for the benefit of the Lenders shall be
granted a Lien pursuant to the Mortgages.
"Mortgages": each of the mortgages and deeds of trust made by any Loan
Party in favor of, or for the benefit of, the Administrative Agent for the
benefit of the Lenders, substantially in the form of Exhibit D (with such
changes thereto as shall be advisable under the law of the jurisdiction in which
such mortgage or deed of trust is to be recorded).
15
"Multiemployer Plan": a Plan that is a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": (a) in connection with any Asset Sale or any
Recovery Event, the proceeds thereof in the form of cash and Cash Equivalents
(including any such proceeds received by way of deferred payment of principal
pursuant to a note or installment receivable or purchase price adjustment
receivable or otherwise, but only as and when received), net of attorneys' fees,
accountants' fees, investment banking fees, amounts required to be applied to
the repayment of Indebtedness secured by a Lien expressly permitted hereunder on
any asset that is the subject of such Asset Sale or Recovery Event (other than
any Lien pursuant to a Security Document), pension or OPEB liabilities paid or
reserved with respect to any such assets and other customary fees and expenses
actually incurred in connection therewith and net of taxes paid or reasonably
estimated to be payable as a result thereof (after taking into account any
available tax credits or deductions and any tax sharing arrangements) and any
reserve established in accordance with GAAP with respect to liabilities
associated with such Asset Sale (provided that "Net Cash Proceeds" shall include
any such amounts received upon the reversal of any such reserve) and (b) in
connection with any incurrence of Indebtedness, the cash proceeds received from
such incurrence, net of attorneys' fees, investment banking fees, accountants'
fees, underwriting discounts and commissions and other customary fees and
expenses actually incurred in connection therewith.
"Non-Excluded Taxes": as defined in Section 2.13(a).
"Non-Loan Party Intercompany Debt Basket": as defined in Section
6.7(h).
"Non-Recourse Debt": all Indebtedness which, in accordance with GAAP,
is not required to be recognized on a consolidated balance sheet of the Borrower
as a liability.
"Non-U.S. Lender": as defined in Section 2.13(d).
"Note Repurchase Notice": a written notice executed by a Responsible
Officer stating that no Event of Default has occurred and is continuing and that
the Borrower intends or expects to use all or a portion of the Net Cash Proceeds
of an Asset Sale permitted under Sections 6.4(j), 6.4(k) or 6.4(l) to repurchase
or redeem the 2010 Notes, or to the extent the 2010 Notes have been repurchased
or redeemed in full, the 2014 Notes.
"Notes": the collective reference to any promissory note evidencing
Loans.
"Obligations": the unpaid principal of and interest on (including
interest accruing after the maturity of the Loans and interest accruing after
the filing of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Borrower, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding)
the Loans and all other obligations and liabilities of the Borrower to the
Administrative Agent or to any Lender, whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred, which
may arise under, out of, or in connection with, this Agreement or any other Loan
Document, whether on account of principal, interest, reimbursement obligations,
fees, indemnities, costs, expenses (including all fees, charges and
disbursements of counsel to the Administrative Agent or to any Lender that are
required to be paid by the Borrower pursuant hereto) or otherwise.
"Other Securitization Assets": with respect to any Receivable subject
to a Permitted Receivables Financing, all collections relating to such
Receivable and all lock-boxes and similar arrangements and collection accounts
into which the proceeds of such Receivable or a Related Security with respect to
such Receivable are collected or deposited, all rights of the Borrower or any
Subsidiary in,
16
to and under the related purchase and sale agreements, and all other rights and
payments relating to such Receivable.
"Other Taxes": any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement or any other Loan Document.
"Outsourcing Initiative": collectively (a) any sale or transfer for
fair market value (taking into account the terms and conditions of the purchase
agreement described in clause (b) below) by the Borrower or any Subsidiary of
Core Assets related to a particular line of business (or a portion thereof) to
any Person; provided that the book value of such Core Assets shall not exceed
$250,000,000, and (b) an agreement by the Borrower or any Subsidiary to purchase
parts relating to such line of business (or a portion thereof) from such Person.
"Participant": as defined in Section 9.6(c).
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA (or any successor).
"Pending Reimbursement": reimbursements for restructuring charges
taken by the Borrower which are eligible for reimbursement by Ford pursuant to
the Ford Documentation (with eligibility determined as of the date of delivery
of the Compliance Certificate for the relevant period pursuant to Section
5.2(a)) but which have not yet been reimbursed by Ford as of the last day of the
relevant period; provided that such Pending Reimbursements shall not exceed
$200,000,000 in the aggregate for any period. The Compliance Certificate
delivered in connection with the relevant financial statements shall include all
information and calculations with respect to the Pending Reimbursements.
"Permitted Acquisition": any Acquisition with respect to which each of
the following conditions have been satisfied:
(a) No Default or Event of Default then exists or would arise from the
consummation of such Acquisition;
(b) Such Acquisition shall have been approved by the board of
directors of the Person (or similar governing body if such Person is not a
corporation) which is the subject of such Acquisition and such Person shall not
have announced that it will oppose such Acquisition and shall not have commenced
any action which alleges that any such Acquisition will violate any Requirement
of Law;
(c) The consideration for such Acquisition shall consist exclusively
of (i) newly issued shares of Capital Stock of the Borrower, (ii) consideration
permitted under Section 6.7(i) or (iii) the reinvestment of Net Cash Proceeds of
Asset Sales to the extent permitted under Section 2.5; and
(d) The Borrower shall, upon consummation of such Acquisition, be in
compliance with the requirements of Section 5.9 with respect to the assets and
Capital Stock acquired in such Acquisition.
"Permitted Additional Debt": Permitted Debt that (a) issued by the
Borrower that is not Guaranteed by any Person that is not a Loan Party and (b)
has terms and conditions (other than interest rates, which shall be market rates
for debt securities with comparable terms) that are customary for high-yield
debt securities of the same type as such Permitted Debt.
17
"Permitted Encumbrances": the liens permitted under Sections 6.2(a)
through (e) of this Agreement.
"Permitted Debt": Indebtedness for borrowed money in respect of debt
securities issued in a capital markets transaction that is (a) unsecured, (b)
matures no earlier than, and does not require any scheduled principal payments
until after the Maturity Date and (c) does not include any mandatory redemption,
sinking fund or similar provisions (including the rights on the part of any
holder to require the redemption or repurchase of any such Indebtedness or to
convert any such Indebtedness), in each case that could require any payment of
or on account of principal in respect thereof until after the Maturity Date,
other than pursuant to change of control or asset sale provisions customary for
high-yield debt securities of the same type as such Indebtedness.
"Permitted Non-Recurring Expenses or Losses": non-recurring non-cash
expenses or losses and non-recurring cash expenses or losses relating to the
Ford Transactions and identified prior to the Closing Date in an amount not to
exceed $350,000,000 in the aggregate.
"Permitted Receivables Financing": at any date of determination, the
aggregate amount of (i) any Non-Recourse Debt outstanding on such date relating
to the sale or financing of Receivables and any Related Security or (ii) other
sales (in connection with financings of) and financings of Receivables and any
Related Security of the Borrower or any of its Subsidiaries (it being understood
that Standard Securitization Undertakings shall be permitted in connection with
such financings).
"Permitted Restructuring Transaction": the sale, contribution or other
transfer by the Borrower or any Subsidiary (the "Assignor") of its ownership
interest in a newly created Domestic Subsidiary (created for the purpose of
holding intercompany loans or other receivables from Foreign Subsidiaries and
which engages in no other business or activities) or a Foreign Subsidiary to
another Foreign Subsidiary (which transferee Foreign Subsidiary may have dual
incorporation in the United States and a foreign jurisdiction (it being
understood that any such entity shall not be a Domestic Subsidiary for purposes
of this Agreement and shall be treated as a Foreign Subsidiary for all purposes)
of the Borrower (the "Acquiring Subsidiary") for cash or non-cash consideration
with any cash consideration to be paid by the Acquiring Subsidiary from (i) an
intercompany loan from the Borrower or another Subsidiary to the Acquiring
Subsidiary otherwise permitted hereunder or (ii) cash or Cash Equivalents of the
Acquiring Subsidiary (not representing proceeds described in clause (i) above).
"Person": an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated association,
joint venture, Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan that is
covered by ERISA and in respect of which the Borrower or a Commonly Controlled
Entity is (or, if such plan were terminated at such time, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Prepayment Amount": as defined in Section 2.5(e)).
"Pro Forma Balance Sheet": as defined in Section 3.1(a).
"Projections": as defined in Section 5.2(c).
"Properties": as defined in Section 3.17(a).
18
"Proposed ABL Financing": the proposed asset based revolving credit
facility to be entered into by the Borrower as described in the Confidential
Information Memorandum.
"Proposed European Financing": the proposed financing of Receivables
and any Related Security (it being understood that Standard Securitization
Undertakings shall be permitted in connection with such financing) to be entered
into by certain Foreign Subsidiaries organized under the laws of one or more
jurisdictions in Europe and with respect to Portuguese Receivables, Bermuda, as
described in the Confidential Information Memorandum.
"Receivables": any indebtedness and other obligations owed to the
Borrower or any relevant Subsidiary, or in which such party has a security
interest or other interest, or any right of the Borrower or such Subsidiary to
payment from or on behalf of an obligor, whether constituting an account,
chattel paper, instrument or general intangible, arising in connection with the
sale or lease of goods or the rendering of services by the Borrower or such
Subsidiary, including, without limitation, the obligation to pay any finance
charges, fees and other charges with respect thereto.
"Recovery Event": any settlement of or payment in respect of any
property or casualty insurance claim or any condemnation proceeding relating to
any asset of any Group Member.
"Register": as defined in Section 9.6(b).
"Regulation U": Regulation U of the Board as in effect from time to
time.
"Reinvestment Notice": a written notice executed by a Responsible
Officer stating that the Borrower (directly or indirectly through a Subsidiary)
intends and expects to use all or a specified portion of the Net Cash Proceeds
of an Asset Sale or Recovery Event to finance a Permitted Acquisition or to
acquire or repair assets useful in its business (other than, except in the case
of a Recovery Event relating thereto, the acquisition of inventory and other
current assets in the ordinary course of business).
"Related Security": with respect to any Receivable, (a) all of the
Borrower's (or the relevant Subsidiary's) interest, in any inventory and goods
(including returned or repossessed inventory and goods), and documentation or
title evidencing the shipment or storage of any inventory and goods (including
returned or repossessed inventory and goods), relating to any sale giving rise
to such Receivable, and all insurance contracts with respect thereto; (b) all
other security interests or liens and property subject thereto from time to time
purporting to secure payment of such Receivable, together with all UCC financing
statements or similar filings and security agreements describing any collateral
relating thereto; (c) all guaranties, letters of credit, letter of credit
rights, supporting obligations, indemnities, insurance and other agreements or
arrangements of whatever character from time to time supporting or securing
payment of such Receivable or otherwise relating to such Receivable; (d) all
service contracts and other contracts, agreements, instruments and other
writings associated with such Receivable; (e) all records related to such
Receivable or any of the foregoing; (f) all of the Borrower's or relevant
Subsidiary's right, title and interest in, to and under the sales agreement and
related performance guaranty and the like in respect of such Receivable; and (g)
all proceeds of any of the foregoing.
"Remaining Present Value": as of any date with respect to any lease,
the present value as of such date of the scheduled future lease payments with
respect to such lease, determined at a discount rate equal to a market rate of
interest for such lease reasonably determined at the time such lease was entered
into.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.
19
"Reportable Event": any of the events set forth in Section 4043(c) of
ERISA, other than those events as to which the thirty day notice period is
waived under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of PBGC Reg.
Section 4043.
"Required Lenders": at any time, the holders of more than 50% of (a)
until the Closing Date, the Commitments then in effect and (b) thereafter, the
sum of the aggregate unpaid principal amount of the Term Loans then outstanding.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Responsible Officer": the chief executive officer, president, chief
financial officer, chief accounting officer, treasurer, assistant treasurer,
secretary or assistant secretary of the Borrower, but in any event, with respect
to financial matters, the chief financial officer, chief accounting officer,
treasurer or assistant treasurer of the Borrower.
"Restricted Payments": as defined in Section 6.5.
"Revolving Credit Facility Amendment": the First Amendment dated as of
the date hereof to the Existing Second Amended and Restated Credit Agreement.
"SEC": the Securities and Exchange Commission, any successor thereto
and any analogous Governmental Authority.
"Security Documents": the collective reference to the Guarantee and
Collateral Agreement, the Mortgages and all other security documents hereafter
delivered to the Administrative Agent granting a Lien on any property of any
Person to secure the obligations and liabilities of any Loan Party under any
Loan Document.
"Single Employer Plan": any Plan that is covered by Title IV of ERISA,
but that is not a Multiemployer Plan.
"Specified Assets": the assets described on Schedule 1.1C.
"Standard Securitization Undertakings": representations, warranties,
covenants and indemnities entered into by the Borrower or any Subsidiary which
are reasonably customary in a securitization or other sales (in connection with
financings of) and financings of Receivables and any Related Security,
including, without limitation, those relating to the servicing of assets of such
securitization or financing; provided that, other than in connection with the
Proposed European Financing, in no event shall Standard Securitization
Undertakings include any guarantee of indebtedness incurred in connection with
the such securitization or such financing (other than (i) in the case of Section
6.1(i), guarantees of obligations of participating Foreign Subsidiaries in
respect thereof by other Foreign Subsidiaries and (ii) in the case of 6.1(h),
guarantees of obligations of participating Domestic Subsidiaries in respect
thereof by the participating Domestic Subsidiaries).
"Subsidiary": as to any Person, a corporation, partnership, limited
liability company or other entity of which shares of stock or other ownership
interests having more than 50% of the ordinary voting power (other than stock or
such other ownership interests having such power only by reason of the happening
of a contingency) to elect a majority of the board of directors or other
managers of such
20
corporation, partnership or other entity are at the time owned directly or
indirectly through one or more intermediaries, or both, by such Person. Unless
otherwise qualified, all references to a "Subsidiary" or to "Subsidiaries" in
this Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower.
"Swap Agreement": (a) any agreement with respect to any swap, forward,
future or derivative transaction or option or similar agreement involving, or
settled by reference to, one or more rates, currencies, commodities, equity or
debt instruments or securities, or economic, financial or pricing indices or
measures of economic, financial or pricing risk or value or any similar
transaction or any combination of these transactions; provided that no phantom
stock or similar plan providing for payments only on account of services
provided by current or former directors, officers, employees or consultants of
the Borrower or any of its Subsidiaries shall be a "Swap Agreement" and (b) any
agreement with respect to any transactions (together with any related
confirmations) which are subject to the terms and conditions of, or are governed
by, any master agreement published by the International Swaps and Derivatives
Association, Inc., any International Foreign Exchange Master Agreement or any
other similar master agreement.
"Syndication Agent": as defined in the preamble hereto.
"Term Lender": each Lender that has a Term Commitment or that holds a
Term Loan; collectively, the "Term Lenders."
"Term Loans": as defined in Section 2.1. To the extent any Incremental
Term Loans are made under Section 2.17 of this Agreement, "Term Loans" shall, to
the extent appropriate, include such Incremental Term Loans.
"Term Commitment": as to any Lender, the obligation of such Lender, if
any, to make a Term Loan to the Borrower in a principal amount not to exceed the
amount set forth under the heading "Term Commitment" opposite such Lender's name
on Schedule 1.1A. The original aggregate amount of the Tranche A Term
Commitments is $800,000,000.
"Term Percentage": as to any Term Lender at any time, the percentage
which such Lender's Term Commitment then constitutes of the aggregate Term
Commitments (or, at any time after the Closing Date, the percentage which the
aggregate principal amount of such Lender's Term Loans then outstanding
constitutes of the aggregate principal amount of the Term Loans then
outstanding).
"Termination Value": on any date in respect of any Swap Agreement,
after taking into account the effect of any legally enforceable netting
agreement relating to such Swap Agreement, (a) if such Swap Agreement has been
terminated as of such date, an amount equal to the termination value determined
in accordance with such Swap Agreement and (b) if such Swap Agreement has not
been terminated as of such date, an amount equal to the xxxx-to-market value for
such Swap Agreement, which xxxx-to-market value shall be determined by reference
to one or more mid-market or other readily available quotations provided by any
recognized dealer (including any Lender or an Affiliate of any Lender) of such
Swap Agreements.
"TMD Entities": Toledo Mold & Die, Inc., any Subsidiary thereof and
any Person the assets of which consist principally of the Capital Stock of
Toledo Mold & Die, Inc. and created for the principal purpose of holding such
Capital Stock.
"Transferee": any Assignee or Participant.
"2010 Notes": the 8.25% notes due 2010 issued pursuant to the Existing
Indenture.
21
"2014 Notes": the 7.00% notes due 2014 issued pursuant to the Existing
Indenture.
"Type": as to any Loan, its nature as an ABR Loan or a Eurodollar
Loan.
"Uncertificated Foreign Jurisdiction": the jurisdiction of
organization of a Foreign Subsidiary to the extent the Capital Stock of such
Foreign Subsidiary is uncertificated.
"United States": the United States of America.
"Utilized Secured Debt Amount": on any date, the aggregate amount of
(i) Debt (as defined in the Existing Indenture) of the Borrower or any
Manufacturing Subsidiary (as defined in the Existing Indenture) secured by a
Mortgage (as defined in the Existing Indenture) upon any Domestic Manufacturing
Property (as defined in the Existing Indenture) of the Borrower or any
Manufacturing Subsidiary or upon any shares of stock or indebtedness of any
Manufacturing Subsidiary as of such date and (ii) Attributable Debt (as defined
in the Existing Indenture) of the Borrower and its Manufacturing Subsidiaries in
respect of sale and leaseback transactions as of such date.
"Visteon Village": as defined in Section 6.1(p).
"Visteon Village Lease": the Master Lease dated as of October 31, 2002
between Oasis Holdings Statutory Trust, as Lessor, and the Borrower, as Lessee,
as amended.
"VIHI": Visteon International Holdings, Inc., a Delaware corporation.
"Wholly Owned Foreign Subsidiary": any Wholly Owned Subsidiary of the
Borrower which is not a Domestic Subsidiary.
"Wholly Owned Subsidiary": as to any Person, any other Person all of
the Capital Stock of which (other than directors' qualifying shares or other de
minimis shares held by any Person, each as required by law) is owned by such
Person directly and/or through other Wholly Owned Subsidiaries.
"Wholly Owned Subsidiary Guarantor": any Guarantor that is a Wholly
Owned Subsidiary of the Borrower.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in the other Loan Documents or any certificate or other document made
or delivered pursuant hereto or thereto.
(b) As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto or thereto, (i)
accounting terms relating to any Group Member not defined in Section 1.1 and
accounting terms partly defined in Section 1.1, to the extent not defined, shall
have the respective meanings given to them under GAAP, (ii) the words "include",
"includes" and "including" shall be deemed to be followed by the phrase "without
limitation", (iii) the word "incur" shall be construed to mean incur, create,
issue, assume, become liable in respect of or suffer to exist (and the words
"incurred" and "incurrence" shall have correlative meanings), (iv) 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, Capital Stock, securities, revenues, accounts, leasehold
interests and contract rights, and (v) references to agreements or other
Contractual Obligations shall, unless otherwise specified, be deemed to refer to
such agreements or Contractual Obligations as amended, supplemented, restated or
otherwise modified from time to time.
22
(c) Except as otherwise expressly provided herein, all terms of an
accounting or financial nature shall be construed in accordance with GAAP;
provided that, if either the Borrower notifies the Administrative Agent that
such 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 Borrowers that the Required Lenders request an amendment to
any provision hereof for such purpose), regardless of whether any such notice is
given before or after such change in GAAP or in the application thereof, then
such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until such
notice shall have been withdrawn or such provision amended in accordance
herewith.
(d) The words "hereof", "herein" and "hereunder" and words of similar
import, when used in this Agreement, shall refer to this Agreement as a whole
and not to any particular provision of this Agreement, and Section, Schedule and
Exhibit references are to this Agreement unless otherwise specified.
(e) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Term Commitments. Subject to the terms and conditions hereof, each
Term Lender severally agrees to make a term loan (a "Term Loan") to the Borrower
on the Closing Date in an amount not to exceed the amount of the Term Commitment
of such Lender. The Term Loans may from time to time be Eurodollar Loans or ABR
Loans, as determined by the Borrower and notified to the Administrative Agent in
accordance with Sections 2.2 and 2.6.
2.2 Procedure for Term Loan Borrowing. The Borrower shall give the
Administrative Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to 11:00 A.M., New York City time, three Business
Days prior to the anticipated Closing Date) requesting that the Term Lenders
make the Term Loans on the Closing Date and specifying the amount to be
borrowed. The Term Loans made on the Closing Date shall initially be Eurodollar
Loans having an Interest Period of at least one month. Upon receipt of such
notice the Administrative Agent shall promptly notify each Term Lender thereof.
Not later than 12:00 Noon, New York City time, on the Closing Date each Term
Lender shall make available to the Administrative Agent at the Funding Office an
amount in immediately available funds equal to the Term Loan or Term Loans to be
made by such Lender. The Administrative Agent shall credit the account of the
Borrower on the books of such office of the Administrative Agent with the
aggregate of the amounts made available to the Administrative Agent by the Term
Lenders in immediately available funds.
2.3 Repayment of Term Loans. The Borrower hereby unconditionally
promises to pay to the Administrative Agent for the account of each Lender the
aggregate unpaid principal amount of the Term Loans on the Maturity Date.
2.4 Optional Prepayments. The Borrower may at any time and from time
to time prepay the Loans, in whole or in part, without premium or penalty, upon
irrevocable notice delivered to the Administrative Agent no later than 11:00
A.M., New York City time, three Business Days prior thereto, in the case of
Eurodollar Loans, and no later than 11:00 A.M., New York City time, on the
Business Day on which such prepayment is to be made, in the case of ABR Loans,
which notice shall specify the date and amount of prepayment and whether the
prepayment is of Eurodollar Loans or ABR Loans; provided, that if a Eurodollar
Loan is prepaid on any day other than the last day of the Interest
23
Period applicable thereto, the Borrower shall also pay any amounts owing
pursuant to Section 2.14. Upon receipt of any such notice the Administrative
Agent shall promptly notify each relevant Lender thereof. If any such notice is
given, the amount specified in such notice shall be due and payable on the date
specified therein, together with accrued interest to such date on the amount
prepaid. Partial prepayments of Term Loans shall be in an aggregate principal
amount of $1,000,000 or a whole multiple thereof. Notwithstanding the foregoing
(a) any optional prepayment of Term Loans during the period from the Closing
Date to the first anniversary of the Closing Date shall be subject to a
prepayment premium of 2%, (b) any optional payment of Term Loans during the
period from the first anniversary of the Closing Date through the second
anniversary of the Closing Date shall be subject to a prepayment premium of 1%
and (c) any optional payments of Term Loans thereafter shall not be subject to
any prepayment premium; provided that any prepayment pursuant to Section 2.5(a)
shall be deemed to be an optional prepayment for purposes of this sentence. Any
prepayment which is made as a result of any Default or Event of Default shall
not constitute an optional prepayment for purposes of this Section 2.4. Any
optional prepayment shall be subject to the terms of the Intercreditor
Agreement.
2.5 Mandatory Prepayments. (a) If any Indebtedness shall be incurred
by any Group Member (excluding any Indebtedness incurred in accordance with
Section 6.1, other than paragraphs (m) and (p) thereof), an amount equal to 100%
of the Net Cash Proceeds thereof shall be applied on the date of such incurrence
toward the prepayment of the Term Loans as set forth in Section 2.5(d); provided
that the Borrower shall not be required to prepay the Term Loans pursuant to
this Section 2.5 with the Net Cash Proceeds of Indebtedness incurred in
accordance with Section 6.1(m) so long as such Net Cash Proceeds are applied by
the Borrower, at its option, to prepay the 2010 Notes (or, to the extent the
2010 Notes have been prepaid in full, the 2014 Notes).
(b) Subject to Section 2.5(c) below, if on any date any Group Member
shall receive Net Cash Proceeds from any Asset Sale (other than an Asset Sale
permitted under Section 6.4(m)) or Recovery Event then, unless a Reinvestment
Notice or a Note Repurchase Notice, as the case may be, shall be delivered in
respect thereof, such Net Cash Proceeds shall be applied on such date toward the
prepayment of the Term Loans as set forth in Section 2.5(d); provided, that,
notwithstanding the foregoing, on each Asset Sale Proceeds Prepayment Date, an
amount equal to the Asset Sale Proceeds Prepayment Amount with respect to the
relevant Asset Sale Proceeds Event shall be applied toward the prepayment of the
Term Loans as set forth in Section 2.5(d).
(c) If on any date any Group Member shall receive Net Cash Proceeds
from any Asset Sale permitted under Section 6.4(m), an amount equal to 50% of
such Net Cash Proceeds shall be applied on the date of such Asset Sale toward
the prepayment of the Term Loans as set forth in Section 2.5(d).
(d) The application of any prepayment pursuant to Section 2.5 shall be
made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of
the Loans under Section 2.5 shall be accompanied by accrued interest to the date
of such prepayment on the amount prepaid. Any mandatory prepayment hereunder
shall be subject to the terms of the Intercreditor Agreement.
(e) Notwithstanding anything to the contrary in Section 2.5(c) and (d)
or Section 2.11, with respect to the amount of any mandatory prepayment
described in Section 2.5 (the "Prepayment Amount"), the Borrower will, in lieu
of applying such amount to the prepayment of Loans as provided in paragraph (e)
above, on the date specified in Section 2.5 for such prepayment, give the
Administrative Agent telephonic notice (promptly confirmed in writing)
requesting that the Administrative Agent prepare and provide to each Lender a
notice (each, a "Prepayment Option Notice") as described below (it being
understood that, in the case of any prepayment pursuant to Section 2.5(a) as a
result of the incurrence of Indebtedness permitted under Section 6.1(m), the
Borrower may make the offer in advance of the incurrence of such Indebtedness in
a manner reasonably satisfactory to the Administrative Agent to
24
facilitate the incurrence of Indebtedness only in an amount equal to the Term
Loans to be prepaid). As promptly as practicable after receiving such notice
from the Borrower, the Administrative Agent will send to each Lender a
Prepayment Option Notice, which shall be substantially in the form of Exhibit G,
and shall include an offer by the Borrower to prepay on the date (each a
"Mandatory Prepayment Date") that is 10 Business Days after the date of the
Prepayment Option Notice, the relevant Loans of such Lender by an amount equal
to the portion of the Prepayment Amount indicated in such Lender's Prepayment
Option Notice as being applicable to such Lender's Loans. On the Mandatory
Prepayment Date, (i) the Borrower shall pay to the relevant Lenders the
aggregate amount necessary to prepay that portion of the outstanding relevant
Term Loans in respect of which such Lenders have accepted prepayment as
described above, and (ii) the Borrower shall be entitled to retain the portion
of the Prepayment Amount not accepted by the relevant Lenders.
2.6 Conversion and Continuation Options. (a) The Borrower may elect
from time to time to convert Eurodollar Loans to ABR Loans by giving the
Administrative Agent prior irrevocable notice of such election no later than
11:00 A.M., New York City time, on the Business Day preceding the proposed
conversion date, provided that any such conversion of Eurodollar Loans may only
be made on the last day of an Interest Period with respect thereto. The Borrower
may elect from time to time to convert ABR Loans to Eurodollar Loans by giving
the Administrative Agent prior irrevocable (except in the event of circumstances
arising under Sections 2.10 or 2.12) notice of such election no later than 11:00
A.M., New York City time, on the third Business Day preceding the proposed
conversion date (which notice shall specify the length of the initial Interest
Period therefor), provided that no ABR Loan under the Facility may be converted
into a Eurodollar Loan when any Event of Default has occurred and is continuing
and the Administrative Agent or the Required Lenders have determined in its or
their sole discretion not to permit such conversions. Upon receipt of any such
notice the Administrative Agent shall promptly notify each relevant Lender
thereof.
(b) Any Eurodollar Loan may be continued as such upon the expiration
of the then current Interest Period with respect thereto by the Borrower giving
irrevocable notice to the Administrative Agent, in accordance with the
applicable provisions of the term "Interest Period" set forth in Section 1.1, of
the length of the next Interest Period to be applicable to such Loans, provided
that no Eurodollar Loan under the Facility may be continued as such when any
Event of Default has occurred and is continuing and the Administrative Agent has
or the Required Lenders have determined in its or their sole discretion not to
permit such continuations, and provided, further, that if the Borrower shall
fail to give any required notice as described above in this paragraph or if such
continuation is not permitted pursuant to the preceding proviso such Loans shall
be automatically converted to ABR Loans on the last day of such then expiring
Interest Period. Upon receipt of any such notice the Administrative Agent shall
promptly notify each relevant Lender thereof.
2.7 Limitations on Eurodollar Tranches. Notwithstanding anything to
the contrary in this Agreement, all borrowings, conversions and continuations of
Eurodollar Loans and all selections of Interest Periods shall be in such amounts
and be made pursuant to such elections so that, (a) after giving effect thereto,
the aggregate principal amount of the Eurodollar Loans comprising each
Eurodollar Tranche shall be equal to $5,000,000 or a whole multiple of
$1,000,000 in excess thereof and (b) no more than ten Eurodollar Tranches shall
be outstanding at any one time.
2.8 Interest Rates and Payment Dates. (a) Each Eurodollar Loan shall
bear interest for each day during each Interest Period with respect thereto at a
rate per annum equal to the Eurodollar Rate determined for such day plus the
Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum equal to the
ABR plus the Applicable Margin.
25
(c) (i) If all or a portion of the principal amount of any Loan shall
not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall bear interest at a rate per annum equal to
the rate that would otherwise be applicable thereto pursuant to the foregoing
provisions of this Section plus 2% and (ii) if all or a portion of any interest
payable on any Loan or other amount payable hereunder shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise), such overdue
amount shall bear interest at a rate per annum equal to the rate then applicable
to ABR Loans under the Facility plus 2%, in each case, with respect to clauses
(i) and (ii) above, from the date of such non-payment until such amount is paid
in full (as well after as before judgment).
(d) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (c) of this Section
shall be payable from time to time on demand.
2.9 Computation of Interest and Fees. (a) Interest and fees payable
pursuant hereto shall be calculated on the basis of a 360-day year for the
actual days elapsed, except that, with respect to ABR Loans the rate of interest
on which is calculated on the basis of the Prime Rate, the interest thereon
shall be calculated on the basis of a 365- (or 366-, as the case may be) day
year for the actual days elapsed. The Administrative Agent shall as soon as
practicable notify the Borrower and the relevant Lenders of each determination
of a Eurodollar Rate. Any change in the interest rate on a Loan resulting from a
change in the ABR or the Eurocurrency Reserve Requirements shall become
effective as of the opening of business on the day on which such change becomes
effective. The Administrative Agent shall as soon as practicable notify the
Borrower and the relevant Lenders of the effective date and the amount of each
such change in interest rate.
(b) Each determination of an interest rate by the Administrative Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
the Borrower and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Borrower, deliver to the
Borrower a statement showing the quotations used by the Administrative Agent in
determining any interest rate pursuant to Section 2.8(a).
2.10 Inability to Determine Interest Rate. If prior to the first day
of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by
reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for such
Interest Period, or
(b) the Administrative Agent shall have received notice from the
Required Lenders that the Eurodollar Rate determined or to be determined
for such Interest Period will not adequately and fairly reflect the cost to
such Lenders (as conclusively certified by such Lenders) of making or
maintaining their affected Loans during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the relevant Lenders as soon as practicable thereafter. If such
notice is given (x) any Eurodollar Loans under the Facility requested to be made
on the first day of such Interest Period shall be made as ABR Loans, (y) any
Loans under the Facility that were to have been converted on the first day of
such Interest Period to Eurodollar Loans shall be continued as ABR Loans and (z)
any outstanding Eurodollar Loans under the Facility shall be converted, on the
last day of the then-current Interest Period, to ABR Loans. Until such notice
has been withdrawn by the Administrative Agent, no further Eurodollar Loans
under the Facility shall be made or continued as such, nor shall the Borrower
have the right to convert Loans under the Facility to Eurodollar Loans.
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2.11 Pro Rata Treatment and Payments. (a) Each borrowing by the
Borrower from the Lenders hereunder shall be made pro rata according to the
respective Term Percentages of the relevant Lenders; provided that any borrowing
of Incremental Term Loans by the Borrower shall be made pro rata according to
the commitment percentage of each Lender or each Additional Lender, as the case
may be, as set forth in the Incremental Term Loan Amendment.
(b) Each payment (including each prepayment) by the Borrower on
account of principal of and interest on the Term Loans shall be made pro rata
according to the respective outstanding principal amounts of the Term Loans then
held by the Term Lenders. The amount of each principal prepayment of the Term
Loans shall be applied to reduce the then remaining installments of the Term
Loans, pro rata based upon the respective then remaining principal amounts
thereof. Amounts prepaid on account of the Term Loans may not be reborrowed.
(c) All payments (including prepayments) to be made by the Borrower
hereunder, whether on account of principal, interest, fees or otherwise, shall
be made without setoff or counterclaim and shall be made prior to 12:00 Noon,
New York City time, on the due date thereof to the Administrative Agent, for the
account of the Lenders, at the Funding Office, in Dollars and in immediately
available funds. The Administrative Agent shall distribute such payments to the
Lenders promptly upon receipt in like funds as received. If any payment
hereunder (other than payments on the Eurodollar Loans) becomes due and payable
on a day other than a Business Day, such payment shall be extended to the next
succeeding Business Day. If any payment on a Eurodollar Loan becomes due and
payable on a day other than a Business Day, the maturity thereof shall be
extended to the next succeeding Business Day unless the result of such extension
would be to extend such payment into another calendar month, in which event such
payment shall be made on the immediately preceding Business Day. In the case of
any extension of any payment of principal pursuant to the preceding two
sentences, interest thereon shall be payable at the then applicable rate during
such extension.
(d) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is not made available to the Administrative
Agent by the required time on the Borrowing Date therefor, such Lender shall pay
to the Administrative Agent, on demand, such amount with interest thereon, at a
rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a
rate determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation, for the period until such Lender makes such
amount immediately available to the Administrative Agent. A certificate of the
Administrative Agent submitted to any Lender with respect to any amounts owing
under this paragraph shall be conclusive in the absence of manifest error. If
such Lender's share of such borrowing is not made available to the
Administrative Agent by such Lender within three Business Days after such
Borrowing Date, the Administrative Agent shall also be entitled to recover such
amount with interest thereon at the rate per annum applicable to ABR Loans under
the Facility, on demand, from the Borrower. If such Lender pays such amount to
the Administrative Agent, then such amount shall constitute such Lender's Loan
and the Administrative Agent shall promptly return to the Borrower any amount
(including interest) paid by the Borrower to the Administrative Agent pursuant
to the immediately preceding sentence, together with any interest thereon paid
by such Lender for any day not covered by the Borrower's payment.
(e) Unless the Administrative Agent shall have been notified in
writing by the Borrower prior to the date of any payment due to be made by the
Borrower hereunder that the Borrower will not make such payment to the
Administrative Agent, the Administrative Agent may assume that the Borrower
27
is making such payment, and the Administrative Agent may, but shall not be
required to, in reliance upon such assumption, make available to the Lenders
their respective pro rata shares of a corresponding amount. If such payment is
not made to the Administrative Agent by the Borrower within three Business Days
after such due date, the Administrative Agent shall be entitled to recover, upon
written demand, from each Lender to which any amount which was made available
pursuant to the preceding sentence, such amount with interest thereon at the
rate per annum equal to the daily average Federal Funds Effective Rate. Nothing
herein shall be deemed to limit the rights of the Administrative Agent or any
Lender against the Borrower.
2.12 Requirements of Law. (a) If the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof or compliance
by any Lender with any request or directive (whether or not having the force of
law) from any central bank or other Governmental Authority made subsequent to
the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever
with respect to this Agreement or any Eurodollar Loan made by it, or change
the basis of taxation of payments to such Lender in respect thereof (except
for Non-Excluded Taxes covered by Section 2.13 and changes in the rate of
tax on the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Lender that is not otherwise included in the determination
of the Eurodollar Rate; or
(iii) shall impose on such Lender any other condition (except for
Non-Excluded Taxes covered by Section 2.13 and changes in the rate of tax
on the overall net income of such Lender);
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount that such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans, or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, the Borrower shall
promptly pay such Lender, upon its written demand (together with reasonably
detailed supporting documentation), any additional amounts necessary to
compensate such Lender for such increased cost or reduced amount receivable. If
any Lender becomes entitled to claim any additional amounts pursuant to this
paragraph, it shall promptly notify the Borrower in writing (with a copy to the
Administrative Agent) of the event by reason of which it has become so entitled.
(b) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder to a level below that which such Lender
or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) by an amount deemed by such Lender to
be material, then from time to time, after submission by such Lender to the
Borrower (with a copy to the Administrative Agent) of a written request
therefore (together with reasonably detailed supporting documentation), the
Borrower shall pay to such Lender such additional amount or amounts as will
compensate such Lender or such corporation for such reduction.
28
(c) A certificate as to any additional amounts payable pursuant to
this Section submitted by any Lender to the Borrower (with a copy to the
Administrative Agent) shall be conclusive in the absence of manifest error.
Notwithstanding anything to the contrary in this Section, the Borrower shall not
be required to compensate a Lender pursuant to this Section for any amounts
incurred more than six months prior to the date that such Lender notifies the
Borrower of such Lender's intention to claim compensation therefor; provided
that, if the circumstances giving rise to such claim have a retroactive effect,
then such six-month period shall be extended to include the period of such
retroactive effect. The obligations of the Borrower pursuant to this Section
shall survive the termination of this Agreement and the payment of the Loans and
all other amounts payable hereunder.
2.13 Taxes. (a) All payments made by the Borrower under this Agreement
shall be made free and clear of, and without deduction or withholding for or on
account of, any present or future income, stamp or other taxes, levies, imposts,
duties, charges, fees, deductions or withholdings, now or hereafter imposed,
levied, collected, withheld or assessed by any Governmental Authority, excluding
net income taxes and franchise taxes (imposed in lieu of net income taxes)
imposed on the Administrative Agent or any Lender as a result of a present or
former connection between the Administrative Agent or such Lender and the
jurisdiction of the Governmental Authority imposing such tax or any political
subdivision or taxing authority thereof or therein (other than any such
connection arising solely from the Administrative Agent or such Lender having
executed, delivered or performed its obligations or received a payment under, or
enforced, this Agreement or any other Loan Document), including, but not limited
to, 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, and (b) any branch profits taxes
imposed by the United States of America or any similar tax imposed by any other
jurisdiction in which the Borrower is located. If any such non-excluded taxes,
levies, imposts, duties, charges, fees, deductions or withholdings
("Non-Excluded Taxes") or Other Taxes are required to be withheld from any
amounts payable to the Administrative Agent or any Lender hereunder, the amounts
so payable to the Administrative Agent or such Lender shall be increased to the
extent necessary to yield to the Administrative Agent or such Lender (after
payment of all Non-Excluded Taxes and Other Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement, provided, however, that the Borrower shall not be required to
increase any such amounts payable to any Lender with respect to any Non-Excluded
Taxes (i) that are attributable to such Lender's failure to comply with the
requirements of paragraph (d) or (e) of this Section or (ii) that are United
States withholding taxes imposed on amounts payable to such Lender at the time
such Lender becomes a party to this Agreement, except to the extent that such
Lender's assignor (if any) was entitled, at the time of assignment, to receive
additional amounts from the Borrower with respect to such Non-Excluded Taxes
pursuant to this paragraph.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable by the
Borrower, as promptly as possible thereafter the Borrower shall send to the
Administrative Agent for its own account or for the account of the relevant
Lender, as the case may be, a certified copy of an original official receipt
received by the Borrower showing payment thereof. If the Borrower fails to pay
any Non-Excluded Taxes or Other Taxes when due to the appropriate taxing
authority or fails to remit to the Administrative Agent the required receipts or
other required documentary evidence, the Borrower shall indemnify the
Administrative Agent and the Lenders for any incremental taxes, interest or
penalties that may become payable by the Administrative Agent or any Lender as a
result of any such failure.
(d) Each Lender (or Transferee) that is not a "U.S. Person" as defined
in Section 7701(a)(30) of the Code (a "Non-U.S. Lender") shall deliver to the
Borrower and the Administrative
29
Agent (or, in the case of a Participant, to the Lender from which the related
participation shall have been purchased) two copies of either U.S. Internal
Revenue Service Form W-8BEN or Form W-8ECI, or, in the case of a Non-U.S. Lender
claiming exemption from U.S. federal withholding tax under Section 871(h) or
881(c) of the Code with respect to payments of "portfolio interest", a statement
substantially in the form of Exhibit H and a Form W-8BEN, or any subsequent
versions thereof or successors thereto, properly completed and duly executed by
such Non-U.S. Lender claiming complete exemption from, or a reduced rate of,
U.S. federal withholding tax on all payments by the Borrower under this
Agreement and the other Loan Documents. Such forms shall be delivered by each
Non-U.S. Lender on or before the date it becomes a party to this Agreement (or,
in the case of any Participant, on or before the date such Participant purchases
the related participation). In addition, each Non-U.S. Lender shall deliver the
appropriate forms promptly upon the obsolescence or invalidity of any form
previously delivered by such Non-U.S. Lender. Each Non-U.S. Lender shall
promptly notify the Borrower at any time it determines that it is no longer in a
position to provide any previously delivered certificate to the Borrower (or any
other form of certification adopted by the U.S. taxing authorities for such
purpose). Notwithstanding any other provision of this paragraph, a Non-U.S.
Lender shall not be required to deliver any form pursuant to this paragraph that
such Non-U.S. Lender is not legally able to deliver.
(e) A Lender that is entitled to an exemption from or reduction of
non-U.S. 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 or times prescribed by applicable law or
reasonably requested by the Borrower, such properly completed and executed
documentation prescribed by applicable law as will permit such payments to be
made without withholding or at a reduced rate, provided that such Lender is
legally entitled to complete, execute and deliver such documentation and in such
Lender's judgment such completion, execution or submission would not materially
prejudice the legal position of such Lender.
(f) If the Administrative Agent or any Lender determines, in its sole
discretion, that it has received a refund of any Non-Excluded Taxes or Other
Taxes as to which it has been indemnified by the Borrower or with respect to
which the Borrower has paid additional amounts pursuant to this Section 2.13, it
shall pay over such refund to the Borrower (but only to the extent of indemnity
payments made, or additional amounts paid, by the Borrower under this Section
2.13 with respect to the Non-Excluded Taxes or Other Taxes giving rise to such
refund), net of all out-of-pocket expenses of the Administrative Agent or such
Lender and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund); provided, that the
Borrower, upon the written request of the Administrative Agent or such Lender,
agrees to repay the amount paid over to the Borrower (plus any penalties,
interest or other charges imposed by the relevant Governmental Authority) to the
Administrative Agent or such Lender in the event the Administrative Agent or
such Lender is required to repay such refund to such Governmental Authority.
This paragraph shall not be construed to require the Administrative Agent or any
Lender to make available its tax returns (or any other information relating to
its taxes which it deems confidential) to the Borrower or any other Person.
(g) The agreements in this Section shall survive the termination of
this Agreement and the payment of the Loans and all other amounts payable
hereunder.
2.14 Indemnity. The Borrower agrees to indemnify each Lender for, and
to hold each Lender harmless from, any loss or expense (but excluding in any
event loss of anticipated profit) that such Lender may sustain or incur as a
consequence of (a) default by the Borrower in making a borrowing of, conversion
into or continuation of Eurodollar Loans after the Borrower has given a notice
requesting the same in accordance with the provisions of this Agreement, (b)
default by the Borrower in making any prepayment of or conversion from
Eurodollar Loans after the Borrower has given a notice thereof in
30
accordance with the provisions of this Agreement or (c) the making of a
prepayment of Eurodollar Loans on a day that is not the last day of an Interest
Period with respect thereto. Such indemnification may include an amount equal to
the excess, if any, of (i) the amount of interest that would have accrued on the
amount so prepaid, or not so borrowed, converted or continued, for the period
from the date of such prepayment or of such failure to borrow, convert or
continue to the last day of such Interest Period (or, in the case of a failure
to borrow, convert or continue, the Interest Period that would have commenced on
the date of such failure) in each case at the applicable rate of interest for
such Loans provided for herein (excluding, however, the Applicable Margin
included therein, if any) over (ii) the amount of interest (as reasonably
determined by such Lender) that would have accrued to such Lender on such amount
by placing such amount on deposit for a comparable period with leading banks in
the interbank eurodollar market. A certificate as to any amounts payable
pursuant to this Section submitted to the Borrower by any Lender shall be
conclusive in the absence of manifest error. This covenant shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
2.15 Change of Lending Office. Each Lender agrees that, upon the
occurrence of any event giving rise to the operation of Section 2.12 or 2.13(a)
with respect to such Lender, it will, if requested by the Borrower, use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans affected by such event with the
object of avoiding the consequences of such event; provided, that such
designation is made on terms that, in the sole judgment of such Lender, cause
such Lender and its lending office(s) to suffer no economic, legal or regulatory
disadvantage, and provided, further, that nothing in this Section shall affect
or postpone any of the obligations of the Borrower or the rights of any Lender
pursuant to Section 2.12 or 2.13(a).
2.16 Replacement of Lenders. The Borrower shall be permitted to
replace any Lender that (a) requests reimbursement for amounts owing pursuant to
Section 2.12 or 2.13(a), (b) fails to consent to any amendment to this Agreement
requested by the Borrower which requires the consent of all of the Lenders and
which is consented to by the Required Lenders or (c) defaults in its obligation
to make Loans hereunder (a "Defaulting Lender"), with a replacement financial
institution; provided that (i) such replacement does not conflict with any
Requirement of Law, (ii) no Event of Default shall have occurred and be
continuing at the time of such replacement, (iii) prior to any such replacement,
such Lender shall have taken no action under Section 2.15 so as to eliminate the
continued need for payment of amounts owing pursuant to Section 2.12 or 2.13(a),
(iv) the replacement financial institution shall purchase, at par, all Loans and
other amounts owing to such replaced Lender on or prior to the date of
replacement, (v) to the extent the Borrower is making a replacement pursuant to
clause (b) above, the replacement financial institution shall consent to the
requested amendment, (vi) the Borrower shall be liable to such replaced Lender
(other than a Defaulting Lender) under Section 2.14 if any Eurodollar Loan owing
to such replaced Lender shall be purchased other than on the last day of the
Interest Period relating thereto, (vii) the replacement financial institution
shall be reasonably satisfactory to the Administrative Agent, (viii) the
replaced Lender shall be obligated to make such replacement in accordance with
the provisions of Section 9.6, (ix) until such time as such replacement shall be
consummated, the Borrower shall pay all additional amounts (if any) required
pursuant to Section 2.12 or 2.13(a), as the case may be, and (x) any such
replacement shall not be deemed to be a waiver of any rights that the Borrower,
the Administrative Agent or any other Lender shall have against the replaced
Lender.
2.17 Additional Term Loans. The Borrower may on any date after the
Closing Date, by notice to the Administrative Agent (whereupon the
Administrative Agent shall promptly deliver a copy to each of the Lenders),
increase the Term Loans hereunder with additional term loans (the "Incremental
Term Loans") in an amount not to exceed $100,000,000; provided that at the time
of the effectiveness of any Incremental Term Loan Amendment referred to below,
the conditions set forth in paragraphs (q) and (r) of Section 4 shall be
satisfied or waived by the Required Lenders and the Administrative Agent shall
have received a certificate to that effect dated such date and executed by a
Financial Officer of the
31
Borrower. Incremental Term Loans may be made by any existing Lender or by any
other financial institution or any fund that regularly invests in bank loans
selected by the Borrower (any such other financial institution or fund being
called an "Additional Lender"), provided that the Administrative Agent shall
have consented (not to be unreasonably withheld) to such Lender's or Additional
Lender's making such Incremental Term Loans if such consent would be required
under Section for an assignment of Loans to such Lender or Additional Lender.
Commitments in respect of Incremental Term Loans shall be made pursuant to an
amendment (an "Incremental Term Loan Amendment") to this Agreement and, as
appropriate, the other Loan Documents, executed by the Borrower, each Lender
agreeing to provide such Incremental Term Loans, if any, each Additional Lender,
if any, and the Administrative Agent. Any Incremental Term Loans made hereunder
shall be deemed "Term Loans" hereunder and shall be subject to the same terms
and conditions applicable to the existing Term Loans. No Lender shall be
obligated to provide any Incremental Term Loans, unless it so agrees. On the
date of any borrowing of Incremental Term Loans, the Borrower shall be deemed to
have repaid and reborrowed all outstanding Loans as of such date (with such
reborrowing to consist of the Types of Loans, with related Interest Periods if
applicable, specified in a notice to the Administrative Agent (which notice must
be received by the Administrative Agent in accordance with the terms of this
Agreement). The deemed payments made pursuant to the immediately preceding
sentence in respect of each Eurodollar Loan shall be subject to indemnification
by the Borrower pursuant to the provisions of Section 2.14 if the deemed payment
occurs other than on the last day of the related Interest Periods.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into this
Agreement and to make the Loans, the Borrower hereby represents and warrants to
the Administrative Agent and each Lender that:
3.1 Financial Condition. (a) The unaudited pro forma consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as at March 31,
2006 (the "Pro Forma Balance Sheet"), copies of which have heretofore been
furnished to each Lender, has been prepared giving effect (as if such events had
occurred on such date) to (i) the Loans to be made on the Closing Date and the
use of proceeds thereof and (ii) the payment of fees and expenses due and
payable in connection with the foregoing. The Pro Forma Balance Sheet has been
prepared based on the best information available to the Borrower as of the date
of delivery thereof, and presents fairly in all material respects on a pro forma
basis the estimated financial position of Borrower and its consolidated
Subsidiaries as at March 31, 2006, assuming that the events specified in the
preceding sentence had actually occurred at such date.
(b) The audited consolidated balance sheets of the Borrower as at
December 31, 2004 and December 31, 2005, and the related consolidated statements
of income and of cash flows for the fiscal years ended on such dates, reported
on by and accompanied by an unqualified report with respect to such financial
statements from PricewaterhouseCoopers LLP, present fairly in all material
respects the consolidated financial condition of the Borrower as at such date,
and the consolidated results of its operations and its consolidated cash flows
for the respective fiscal years then ended. The unaudited consolidated balance
sheet of the Borrower as at March 31, 2006, and the related unaudited
consolidated statements of income and cash flows for the three-month period
ended on such date, present fairly in all material respects the consolidated
financial condition of the Borrower as at such date, and the consolidated
results of its operations and its consolidated cash flows for the three-month
period then ended (subject to normal year-end audit adjustments and the absence
of footnotes). All such financial statements, including the related schedules
and notes thereto, have been prepared in accordance with GAAP applied
consistently throughout the periods involved (except as approved by the
aforementioned firm of accountants and disclosed therein). No Group Member has
any material Guarantee Obligations, contingent liabilities and liabilities for
taxes, or any long-term leases or unusual forward or long-term
32
commitments, including any interest rate or foreign currency swap or exchange
transaction or other obligation in respect of derivatives, that are not
reflected in the most recent financial statements referred to in this paragraph.
During the period from March 31, 2006 to and including the date hereof there has
been no Disposition by any Group Member of any material part of its business or
property.
3.2 No Change. Since December 31, 2005, there has been no development
or event that has had or could reasonably be expected to have a Material Adverse
Effect.
3.3 Existence; Compliance with Law. Each Group Member (a) is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, except, in the case of a Group Member which is
not a Loan Party, to the extent the failure to be so organized, existing and in
good standing could not reasonably be expected to have a Material Adverse
Effect, (b) has the power and authority, and the legal right, to own and operate
its property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged except to the extent the failure to do
so could not reasonably be expected to have a Material Adverse Effect, (c) is
duly qualified as a foreign corporation or other organization and in good
standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such
qualification, except to the extent that all failures to be duly qualified and
in good standing could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect and (d) is in compliance with all Requirements of Law
except to the extent that the failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
3.4 Power; Authorization; Enforceable Obligations. Each Loan Party has
the power and authority, and the legal right, to make, deliver and perform the
Loan Documents to which it is a party and, in the case of the Borrower, to
obtain extensions of credit hereunder. Each Loan Party has taken all necessary
organizational action to authorize the execution, delivery and performance of
the Loan Documents to which it is a party and, in the case of the Borrower, to
authorize the extensions of credit on the terms and conditions of this
Agreement. No consent or authorization of, filing with, notice to or other act
by or in respect of, any Governmental Authority or any other Person is required
in connection with the extensions of credit hereunder or with the execution,
delivery, performance, validity or enforceability of this Agreement or any of
the Loan Documents, except (i) consents, authorizations, filings and notices
described in Schedule 3.4, which consents, authorizations, filings and notices
have been obtained or made and are in full force and effect and (ii) the filings
referred to in Section 3.19 and consents, authorizations, filings and notices
obtained or made in the ordinary course of business. Each Loan Document has been
duly executed and delivered on behalf of each Loan Party party thereto. This
Agreement constitutes, and each other Loan Document upon execution will
constitute, a legal, valid and binding obligation of each Loan Party party
thereto, enforceable against each such Loan Party in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
3.5 No Legal Bar. The execution, delivery and performance of this
Agreement and the other Loan Documents, the borrowings hereunder and the use of
the proceeds thereof will not violate any Requirement of Law or any Contractual
Obligation of any Group Member, except to the extent that all such violations
could not reasonably be expected to have a Material Adverse Effect or as could
not reasonably be expected to materially adversely affect the interests of the
Agents or the Lenders and will not result in, or require, the creation or
imposition of any Lien on any of their respective properties or revenues
pursuant to any Requirement of Law or any such Contractual Obligation (other
than the Liens created by the Security Documents). No Requirement of Law
applicable to the Borrower or any of its Subsidiaries could reasonably be
expected to have a Material Adverse Effect.
33
3.6 Litigation. Except as described in Schedule 3.6, no litigation,
investigation or proceeding of or before any arbitrator or Governmental
Authority is pending or, to the knowledge of the Borrower, threatened by or
against any Group Member or against any of their respective properties or
revenues (a) with respect to any of the Loan Documents or any of the
transactions contemplated hereby or thereby or (b) that could reasonably be
expected to have a Material Adverse Effect.
3.7 No Default. No Group Member is in default under or with respect to
any of its Contractual Obligations in any respect that could reasonably be
expected to have a Material Adverse Effect. No Default or Event of Default has
occurred and is continuing.
3.8 Ownership of Property; Liens. Each Group Member has title in fee
simple to, or a valid leasehold interest in, all its real property, and good
title to, or a valid leasehold interest in, all its other property, and none of
such property is subject to any Lien except as permitted by Section 6.2.
3.9 Intellectual Property. Except as could not reasonably be expected
to have a Material Adverse Effect, each Group Member owns, or is licensed to
use, all Intellectual Property necessary for the conduct of its business as
currently conducted and material to the business of the Group Members, taken as
a whole. Except as described on Schedule 3.9, no claim has been asserted and is
pending by any Person challenging or questioning the use of any Intellectual
Property by any Group Member or the validity or effectiveness of any
Intellectual Property owned or used by any Group Member that could reasonably be
expected to result in a Material Adverse Effect, nor does the Borrower know of
any valid basis for any such claim. The use of Intellectual Property by each
Group Member does not infringe on the rights of any Person in any respect that
could reasonably be expected to have a Material Adverse Effect.
3.10 Taxes. Each Group Member has filed or caused to be filed all
Federal, state and other material tax returns that are required to be filed
(after giving effect to any extension periods) and has paid all taxes shown to
be due and payable on said returns or on any assessments made against it or any
of its property and all other taxes, fees or other charges imposed on it or any
of its property by any Governmental Authority (other than any the amount or
validity of which are currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have been
provided on the books of the relevant Group Member) except to the extent that
the failure to file such tax returns or pay such taxes, fees or other charges
could not reasonably be expected to have a Material Adverse Effect; no material
tax Lien has been filed, and, to the knowledge of the Borrower, no claim is
being asserted in writing, with respect to any such tax, fee or other charge.
3.11 Federal Regulations. No part of the proceeds of any Loans, and no
other extensions of credit hereunder, will be used (a) for "buying" or
"carrying" any "margin stock" within the respective meanings of each of the
quoted terms under Regulation U as now and from time to time hereafter in effect
for any purpose that violates the provisions of the Regulations of the Board or
(b) for any purpose that violates the provisions of the Regulations of the
Board. If requested by any Lender or the Administrative Agent, the Borrower will
furnish to the Administrative Agent and each Lender a statement to the foregoing
effect in conformity with the requirements of FR Form G-3 or FR Form U-1, as
applicable, referred to in Regulation U.
3.12 Labor Matters. Except as, in the aggregate, could not reasonably
be expected to have a Material Adverse Effect: (a) there are no strikes or other
labor disputes against any Group Member pending or, to the knowledge of the
Borrower, threatened; (b) hours worked by and payment made to employees of each
Group Member have not been in violation of the Fair Labor Standards Act or any
other applicable Requirement of Law dealing with such matters; and (c) all
payments due from any
34
Group Member on account of employee health and welfare insurance have been paid
or accrued as a liability on the books of the relevant Group Member.
3.13 ERISA. Except as set forth on Schedule 3.13, neither a Reportable
Event nor an "accumulated funding deficiency" (within the meaning of Section 412
of the Code or Section 302 of ERISA) has occurred during the five-year period
prior to the date on which this representation is made or deemed made with
respect to any Single Employer Plan or, to the knowledge of the Borrower, with
respect to any Multiemployer Plan, and each Plan has complied in all material
respects with the applicable provisions of ERISA and the Code. No termination of
a Single Employer Plan has occurred, and no Lien in favor of the PBGC or a Plan
has arisen, during such five-year period. Except as disclosed in the Borrower's
Form 10-K for the year ended December 31, 2005, as of December 31, 2005, the
present value of all accrued benefits under each Single Employer Plan (based on
those assumptions used to fund such Plans) did not, as of the last annual
valuation date prior to the date on which this representation is made or deemed
made, exceed the value of the assets of such Plan allocable to such accrued
benefits by a material amount. Neither the Borrower nor any Commonly Controlled
Entity has had a complete or partial withdrawal from any Multiemployer Plan that
has resulted or could reasonably be expected to result in a liability under
ERISA that could reasonably be expected to have Material Adverse Effect, and
neither the Borrower nor any Commonly Controlled Entity would become subject to
any liability under ERISA if the Borrower or any such Commonly Controlled Entity
were to withdraw completely from all Multiemployer Plans as of the valuation
date most closely preceding the date on which this representation is made or
deemed made except as could not reasonably be expected to have a Material
Adverse Effect. As of the Closing Date, to the knowledge of the Borrower, no
such Multiemployer Plan is in Reorganization or Insolvent.
3.14 Investment Company Act; Other Regulations. No Loan Party is an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. No Loan
Party is subject to regulation under any Requirement of Law (other than
Regulation X of the Board) that limits its ability to incur Indebtedness.
3.15 Subsidiaries. As of the Closing Date, (a) Schedule 3.15 sets
forth the name and jurisdiction of incorporation of each Subsidiary and, as to
each such Subsidiary, the percentage of each class of Capital Stock owned by any
Loan Party and (b) there are no outstanding subscriptions, options, warrants,
calls, rights or other agreements or commitments (other than stock options
granted to employees or directors and directors' qualifying shares) of any
nature relating to any Capital Stock of the Borrower or any Subsidiary, except
as created by the Loan Documents.
3.16 Use of Proceeds. The proceeds of the Term Loans shall be used to
repay in full the loans under the Existing Five-Year Term Loan Agreement and the
term loans under the Existing Second Amended and Restated Credit Agreement and
for working capital and general corporate purposes.
3.17 Environmental Matters. Except as, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect:
(a) the facilities and properties owned, leased or operated by any
Group Member (the "Properties") do not contain, and have not previously
contained, any Materials of Environmental Concern in amounts or concentrations
or under circumstances that constitute or constituted a violation of, or could
reasonably be expected to result in liability under, any Environmental Law;
(b) no Group Member has received or is aware of any notice of
violation, alleged violation, non-compliance, liability or potential liability
regarding environmental matters or compliance with Environmental Laws with
regard to any of the Properties or the business operated by any Group
35
Member (the "Business"), nor does the Borrower have knowledge or reason to
believe that any such notice will be received or is being threatened;
(c) Materials of Environmental Concern have not been transported or
disposed of from the Properties in violation of, or in a manner or to a location
that could reasonably be expected to result in liability under, any
Environmental Law, nor have any Materials of Environmental Concern been
generated, treated, stored or disposed of at, on or under any of the Properties
in violation of, or in a manner that could give rise to liability under, any
applicable Environmental Law;
(d) no judicial proceeding or governmental or administrative action is
pending or, to the knowledge of the Borrower, threatened, under any
Environmental Law to which any Group Member is or will be named as a party with
respect to the Properties or the Business, nor are there any consent decrees or
other decrees, consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any Environmental Law
with respect to the Properties or the Business;
(e) there has been no release or to the knowledge of the Borrower
threat of release of Materials of Environmental Concern at or from the
Properties, or arising from or related to the operations of any Group Member in
connection with the Properties or otherwise in connection with the Business, in
violation of or in amounts or in a manner that could reasonably be expected to
result in liability under Environmental Laws;
(f) the Properties and all operations at the Properties are in
compliance, and have in the last five years been in compliance, with all
applicable Environmental Laws, and there is no contamination at, under or about
the Properties or violation of any Environmental Law with respect to the
Properties or the Business; and
(g) no Group Member has assumed any liability of any other Person
under Environmental Laws.
3.18 Accuracy of Information, etc. No statement or information
contained in this Agreement, any other Loan Document, the Confidential
Information Memorandum or any other document or certificate furnished by or on
behalf of any Loan Party to the Administrative Agent or the Lenders, or any of
them, for use in connection with the transactions contemplated by this Agreement
or the other Loan Documents, contained as of the date such statement,
information, document or certificate was so furnished, and taken as a whole (or,
in the case of the Confidential Information Memorandum (as supplemented through
the date of this Agreement), as of the date of this Agreement), any untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements contained herein or therein not materially misleading in
light of the circumstances under which such statements are made. The projections
and pro forma financial information contained in the materials referenced above
are based upon good faith estimates and assumptions believed by management of
the Borrower to be reasonable at the time made, it being acknowledged and agreed
by the Lenders that (a) such financial information as it relates to future
events is not to be viewed as fact and that actual results during the period or
periods covered by such financial information may differ from the projected
results set forth therein by a material amount, (b) the financial and business
projections furnished to the Administrative Agent or the Lenders are subject to
significant uncertainties and contingencies, which may be beyond the control of
the Borrower and its Subsidiaries, (c) no assurances are given by any of the
Borrower or its Subsidiaries that the results forecasted in the projections will
be realized and (d) the actual results may differ from the forecasted results in
such projections and such differences may be material. There is no fact known to
any Loan Party that could reasonably be expected to have a Material Adverse
Effect that has not been expressly disclosed herein, in the other Loan
Documents, in the Confidential Information Memorandum
36
or in any other documents or certificates furnished to the Administrative Agent
and the Lenders for use in connection with the transactions contemplated hereby
and by the other Loan Documents.
3.19 Security Documents. (a) The Guarantee and Collateral Agreement is
effective to create in favor of the Administrative Agent, for the benefit of the
Lenders, a legal, valid and enforceable security interest in the Collateral
described therein and proceeds thereof. In the case of the Pledged Stock
described in the Guarantee and Collateral Agreement, when stock certificates
representing such Pledged Stock are delivered to the Administrative Agent, and
in the case of the other Collateral described in the Guarantee and Collateral
Agreement, when financing statements and other filings specified on Schedule
3.19(a) in appropriate form are filed in the offices specified on Schedule
3.19(a), the Guarantee and Collateral Agreement shall constitute a fully
perfected Lien on, and security interest in, all right, title and interest of
the Loan Parties in such Collateral and the proceeds thereof (to the extent such
Liens may be perfected by filing and/or possession in accordance with the
applicable requirements of the Uniform Commercial Code and/or applicable Federal
laws relating to trademarks, copyrights and patents), as security for the
Obligations (as defined in the Guarantee and Collateral Agreement), in each case
prior and superior in right to any other Person (except, in the case of
Collateral other than Pledged Stock, Liens permitted by Section 6.2 and, in the
case of Pledged Stock, Permitted Encumbrances arising after the Closing Date,
which do not have priority over the Lien in favor of the Administrative Agent
for the benefit of the Lenders), subject to the terms of the Intercreditor
Agreement.
(b) Each of the Mortgages is effective to create in favor of the
Administrative Agent, for the benefit of the Lenders, a legal, valid and
enforceable Lien on the Mortgaged Properties described therein and proceeds
thereof, and when the Mortgages are filed in the offices specified on Schedule
3.19(b), each such Mortgage shall constitute a fully perfected Lien on, and
security interest in, all right, title and interest of the Loan Parties in the
Mortgaged Properties and the proceeds thereof, as security for the Obligations
(as defined in the relevant Mortgage), in each case prior and superior in right
to any other Person (other than applicable Liens permitted by Section 6.2 and
listed as exceptions in the applicable title insurance policy with respect
thereto), subject to the terms of the Intercreditor Agreement. Schedule 1.1B
lists, as of the Closing Date, each parcel of owned real property and each
leasehold interest in real property located in the United States and held by the
Borrower or any of its Subsidiaries that has a value, in the reasonable opinion
of the Borrower, in excess of $5,000,000.
SECTION 4. CONDITIONS PRECEDENT
The agreement of each Lender to make the Term Loans requested to be
made by it is subject to the satisfaction (or waiver), prior to or concurrently
with the making of such extension of credit on the Closing Date, of the
following conditions precedent:
(a) Credit Agreement; Guarantee and Collateral Agreement;
Intercreditor Agreement. The Administrative Agent shall have received (i)
this Agreement, executed and delivered by the Administrative Agent, the
Borrower and each Person listed on Schedule 1.1A, (ii) the Guarantee and
Collateral Agreement, executed and delivered by the Borrower and each
Guarantor, (iii) an Acknowledgement and Consent in the form attached to the
Guarantee and Collateral Agreement, executed and delivered by each Issuer
(as defined therein), if any, that is not a Loan Party and (iv) the
Intercreditor Agreement, executed and delivered by the Administrative
Agent, the Borrower, the Guarantors and the administrative agent under the
Existing Second Amended and Restated Credit Agreement.
(b) Amendment to Existing Second Amended and Restated Credit
Agreement. The Administrative Agent, the requisite lenders under the
Existing Second Amended and Restated
37
Credit Agreement and each relevant Loan Party shall have executed and
delivered the Revolving Credit Facility Amendment in form and substance
reasonably satisfactory to the Arrangers.
(c) Termination of Existing Credit Facilities. On the Closing Date and
simultaneously with the funding of the Term Loans hereunder, (i) all
amounts due and payable under the Existing Five-Year Term Loan Agreement
shall be repaid in full, (ii) the term loans under the Existing Second
Amended and Restated Credit Agreement shall be paid in full and (iii) the
revolving commitments under the Existing Second Amended and Restated Credit
Agreement shall have been permanently reduced to $500,000,000.
(d) Pro Forma Balance Sheet; Financial Statements. The Lenders shall
have received (i) the Pro Forma Balance Sheet, (ii) audited consolidated
financial statements of the Borrower for the 2004 and 2005 fiscal years and
(iii) unaudited interim consolidated financial statements of the Borrower
for each fiscal quarter ended after the date of the latest applicable
financial statements delivered pursuant to clause (ii) of this paragraph as
to which such financial statements are available, and such financial
statements shall not, in the reasonable judgment of the Lenders, reflect
any material adverse change in the consolidated financial condition of the
Borrower, as reflected in the financial statements or projections contained
in the Confidential Information Memorandum.
(e) Projections. The Lenders shall have received reasonably
satisfactory projections for the period from January 1, 2006 through
December 31, 2008.
(f) Approvals. All governmental and third party approvals (including
landlords' and other consents) necessary in connection with the continuing
operations of the Group Members and the transactions contemplated hereby
shall have been obtained and be in full force and effect, and all
applicable waiting periods shall have expired without any action being
taken or threatened by any competent authority that would restrain, prevent
or otherwise impose materially adverse conditions on the financing
contemplated hereby.
(g) Lien Searches. The Administrative Agent shall have received the
results of a recent lien search in each of the jurisdictions where assets
of the Loan Parties are located, and such search shall reveal no liens on
any of the assets of the Loan Parties except for liens permitted by Section
6.2 or discharged on or prior to the Closing Date pursuant to documentation
reasonably satisfactory to the Administrative Agent.
(h) Fees. The Lenders and the Administrative Agent shall have received
all fees required to be paid, and all expenses for which invoices have been
presented (including the reasonable fees and reasonable out-of-pocket
expenses of legal counsel), on or before the Closing Date. All such amounts
will be paid with proceeds of Loans made on the Closing Date and will be
reflected in the funding instructions given by the Borrower to the
Administrative Agent on or before the Closing Date.
(i) Closing Certificate; Certified Certificate of Incorporation; Good
Standing Certificates. The Administrative Agent shall have received (i) a
certificate of each Loan Party, dated the Closing Date, substantially in
the form of Exhibit C, with appropriate insertions and attachments,
including the certificate of incorporation of each Loan Party that is a
corporation certified by the relevant authority of the jurisdiction of
organization of such Loan Party, and (ii) a long form good standing
certificate for each Loan Party from its jurisdiction of organization.
38
(j) Legal Opinions. The Administrative Agent shall have received the
following executed legal opinions:
(i) the legal opinion of Xxxxxxxx & Xxxxx LLP, special counsel to
the Borrower and its Subsidiaries, substantially in the form of
Exhibit F; and
(ii) the legal opinion of local counsel in each of Alabama,
Indiana and Michigan and of such other special and local counsel as
may be required by the Administrative Agent.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Administrative Agent may
reasonably require.
(k) Pledged Stock; Stock Powers; Pledged Notes. The Administrative
Agent shall have received (i) the certificates representing the shares of
Capital Stock pledged pursuant to the Guarantee and Collateral Agreement,
together with an undated stock power for each such certificate executed in
blank by a duly authorized officer of the pledgor thereof and (ii) each
promissory note (if any) pledged to the Administrative Agent pursuant to
the Guarantee and Collateral Agreement endorsed (without recourse) in blank
(or accompanied by an executed transfer form in blank) by the pledgor
thereof.
(l) Filings, Registrations and Recordings. Each document (including
any Uniform Commercial Code financing statement and all necessary
documentation with respect to intellectual property filings with the U.S.
Patent and Trademark Office and, if applicable, the U.S. Copyright Office)
required by the Security Documents or under law or reasonably requested by
the Administrative Agent to be filed, registered or recorded in order to
create in favor of the Administrative Agent, for the benefit of the
Lenders, a perfected Lien on the Collateral described therein, prior and
superior in right to any other Person (other than with respect to Liens
expressly permitted by Section 6.2 and subject to the Intercreditor
Agreement), shall be in proper form for filing, registration or
recordation.
(m) Mortgages, etc. (i) The Administrative Agent shall have received a
Mortgage with respect to each Mortgaged Property, executed and delivered by
a duly authorized officer of each party thereto.
(ii) If requested by the Administrative Agent, the Administrative
Agent shall have received, and the title insurance company issuing the
policy referred to in clause (iii) below (the "Title Insurance Company")
shall have received surveys of the Mortgaged Properties certified to the
Administrative Agent and the Title Insurance Company in a manner
satisfactory to them, dated a date reasonably satisfactory to the
Administrative Agent and the Title Insurance Company by an independent
professional licensed land surveyor satisfactory to the Administrative
Agent and the Title Insurance Company.
(iii) The Administrative Agent shall have received in respect of each
Mortgaged Property a mortgagee's title insurance policy (or policies) or
marked up unconditional binder for such insurance, in each case in form and
substance reasonably satisfactory to the Administrative Agent. The
Administrative Agent shall have received evidence reasonably satisfactory
to it that all premiums in respect of each such policy, all charges for
mortgage recording tax, and all related expenses, if any, have been paid.
39
(iv) If requested by the Administrative Agent, the Administrative
Agent shall have received (A) a policy of flood insurance that (1) covers
any parcel of improved real property that is encumbered by any Mortgage (2)
is written in an amount not less than the outstanding principal amount of
the indebtedness secured by such Mortgage that is reasonably allocable to
such real property or the maximum limit of coverage made available with
respect to the particular type of property under the National Flood
Insurance Act of 1968, whichever is less, and (3) has a term ending not
later than the maturity of the Indebtedness secured by such Mortgage and
(B) confirmation that the Borrower has received the notice required
pursuant to Section 208(e)(3) of Regulation H of the Board.
(v) The Administrative Agent shall have received a copy of all
recorded documents referred to, or listed as exceptions to title in, the
title policy or policies referred to in clause (iii) above and a copy of
all other material documents affecting the Mortgaged Properties.
(n) Solvency Certificate. The Administrative Agent shall have received
a solvency certificate dated as of the Closing Date, substantially in the
form of Exhibit I.
(o) Insurance. The Administrative Agent shall have received insurance
certificates satisfying the requirements of Section 5.2(b) of the Guarantee
and Collateral Agreement.
(p) Ratings. The Facility shall have received a rating from each of
S&P and Xxxxx'x.
(q) Representations and Warranties. Each of the representations and
warranties made by any Loan Party in or pursuant to the Loan Documents
shall be true and correct in all material respects on and as of such date
as if made on and as of such date.
(r) No Default. No Default or Event of Default shall have occurred and
be continuing on such date or after giving effect to the extensions of
credit requested to be made on such date.
The borrowing by the Borrower on the Closing Date shall constitute a
representation and warranty by the Borrower that the conditions contained in
this Section 4 have been satisfied.
SECTION 5. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in
effect or any Loan or other amount is owing to any Lender or the Administrative
Agent hereunder (other than unasserted contingent indemnification obligations
not due and payable), the Borrower shall and shall cause each of its
Subsidiaries to:
5.1 Financial Statements. Furnish to the Administrative Agent (to be
made available by the Administrative Agent to each Lender):
(a) within 90 days after the end of each fiscal year of the Borrower
(or such shorter period as the U.S. Securities and Exchange Commission may
specify for the filing of annual reports on Form 10-K), a copy of the
audited consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such year and the related audited
consolidated statements of income and of cash flows for such year, setting
forth in each case in comparative form the figures for the previous year,
reported on without a "going concern" or like qualification or exception,
or qualification arising out of the scope of the audit, by
PricewaterhouseCoopers LLP or other independent certified public
accountants of nationally recognized standing; and
40
(b) within 45 days after the end of each of the first three quarterly
periods of each fiscal year of the Borrower (or such shorter period as the
U.S. Securities and Exchange Commission may specify for the filing of
quarterly reports on Form 10-Q), the unaudited consolidated balance sheet
of the Borrower and its consolidated Subsidiaries as at the end of such
quarter and the related unaudited consolidated statements of income and of
cash flows for such quarter and the portion of the fiscal year through the
end of such quarter, setting forth in each case in comparative form the
figures for the previous year, certified by a Responsible Officer as being
fairly stated in all material respects (subject to normal year-end audit
adjustments and the absence of footnote disclosure).
All such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied (except as approved by such accountants or officer, as the case may be,
and disclosed in reasonable detail therein) consistently throughout the periods
reflected therein and with prior periods. Information required to be delivered
pursuant to this Section 5.1 shall be deemed to have been delivered to the
Administrative Agent on the date on which the Borrower provides written notice
to the Administrative Agent that such information has been posted on the
Borrower's website on the Internet at xxxx://xxx.xxxxxxx.xxx or is available via
the XXXXX system of the U.S. Securities and Exchange Commission on the Internet
(to the extent such information has been posted or is available as described in
such notice). Information required to be delivered pursuant to this Section 5.1
may also be delivered by electronic communication pursuant to procedures
approved by the Administrative Agent pursuant to Section 9.2.
5.2 Certificates; Other Information. Furnish to the Administrative
Agent (to be made available by the Administrative Agent to each Lender) or, in
the case of clause (e), to the relevant Lender:
(a) concurrently with the delivery of the financial statements
referred to in Section 5.1(a), (i) a certificate of a Responsible Officer
stating that, to the best of such Responsible Officer's knowledge, that
such Responsible Officer has obtained no knowledge of any Default or Event
of Default except as specified in such certificate and (ii) to the extent
not previously disclosed to the Administrative Agent, (A) a description of
any change in the jurisdiction of organization of any Loan Party, (B) an
updated list of Subsidiaries of the Borrower and (C) the then applicable
Excepted Secured Debt Amount and the Utilized Secured Debt Amount as of the
date of delivery of such certificate;
(b) concurrently with the delivery of any financial statements
pursuant to Section 5.1, (i) a certificate of a Responsible Officer stating
that such Responsible Officer has obtained no knowledge of any Default or
Event of Default except as specified in such certificate and (ii) in the
case of quarterly or annual financial statements, to the extent not
previously disclosed to the Administrative Agent, a description of any
change in the jurisdiction of organization of any Loan Party and a list of
any Intellectual Property acquired by any Loan Party (other than
intellectual property rights acquired in the ordinary course of business
such as rights in respect of software programs) since the date of the most
recent report delivered pursuant to this clause (ii) (or, in the case of
the first such report so delivered, since the Closing Date);
(c) no later than 45 days after the end of each fiscal year of the
Borrower, detailed consolidated projections for the following fiscal year
prepared on a quarterly basis (including a projected consolidated balance
sheet of the Borrower and its Subsidiaries, consolidated statements of
projected cash flow and projected income and a description of the
underlying assumptions applicable thereto), and, as soon as available,
significant revisions, if any, of such projections with respect to such
fiscal year (collectively, the "Projections"), setting forth in each case
in comparative form the budget figures for the previous year, which
Projections shall in each
41
case be accompanied by a certificate of a Responsible Officer stating that
such Projections are based on estimates, information and assumptions
believed by the management of the Borrower to be reasonable at the time
made and that such Responsible Officer has no reason to believe that such
Projections, taken as a whole, are incorrect or misleading in any material
respect, it being acknowledged and agreed by the Agents and the Lenders
that (i) such Projections as they relate to future events are not to be
considered as fact and that actual results for the period or periods
covered by such Projections may differ from the results set forth therein
by a material amount, (ii) the Projections are subject to significant
uncertainties and contingencies, which may be beyond the control of the
Borrower and its Subsidiaries and (iii) no assurances are given by the
Borrower or any of its Subsidiaries that the results forecasted in the
Projections will be realized and such differences may be material;
(d) within five days after the same are sent, copies of all financial
statements and reports that the Borrower sends to the holders of any class
of its debt securities or public equity securities and, within five days
after the same are filed, copies of all financial statements and reports
that the Borrower may make to, or file with, the SEC; provided that such
delivery shall be deemed to have been made upon delivery of notice to the
Administrative Agent that such statements or reports are available via the
XXXXX system of the U.S. Securities and Exchange Commission on the
Internet; and
(e) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
5.3 Payment of Obligations. Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all its
obligations of whatever nature, except where the amount or validity thereof is
currently being contested in good faith by appropriate proceedings and reserves
in conformity with GAAP with respect thereto have been provided on the books of
the relevant Group Member or except as could not reasonably be expected to have
a Material Adverse Effect.
5.4 Maintenance of Existence; Compliance. (a)(i) Preserve, renew and
keep in full force and effect its legal existence and (ii) take all reasonable
action to maintain all rights, privileges and franchises necessary in the normal
conduct of its business, except, in each case, as otherwise permitted by Section
6.3 and except to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect; and (b) comply with all Contractual
Obligations and Requirements of Law except to the extent that failure to comply
therewith could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
5.5 Maintenance of Property; Insurance. (a) Except where the failure
to do so could not reasonably be expected to have a Material Adverse Effect,
keep all property necessary in the business of the Group Members, taken as a
whole, in good working order and condition, ordinary wear and tear, casualty
and condemnation excepted and (b) maintain with financially sound and reputable
insurance companies insurance on all its property in at least such amounts and
against at least such risks (but including in any event public liability,
product liability and business interruption) as are usually insured against in
the same general area by companies engaged in the same or a similar business.
5.6 Inspection of Property; Books and Records; Discussions. (a) Keep
proper books of records and account in which full, true and correct in all
material respects entries in conformity with GAAP and all Requirements of Law
shall be made of all dealings and transactions in relation to its business and
activities and (b) permit representatives of any Lender (coordinated through the
Administrative Agent) to visit and inspect during normal business hours upon
reasonable notice any of its properties and examine and make abstracts from any
of its books and records at any reasonable time and
42
as often as may reasonably be desired (it being understood that, unless a
Default or an Event of Default has occurred and is continuing, the Borrower
shall only be responsible for the reasonable costs of one such visit during each
fiscal year) and to discuss the business, operations, properties and financial
and other condition of the Group Members with officers and employees of the
Group Members (so long as senior management of the Borrower is notified of any
such discussion and is permitted to be present) and with their independent
certified public accountants (so long as the Borrower is present).
5.7 Notices. Promptly give notice to the Administrative Agent and each
Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of any Group Member or (ii) litigation, investigation or
proceeding that may exist at any time between any Group Member and any
Governmental Authority, that in either case, if not cured or if adversely
determined, as the case may be, could reasonably be expected to have a
Material Adverse Effect;
(c) any litigation or proceeding affecting any Group Member (i) that
could reasonably be expected to have a Material Adverse Effect or (ii)
which relates to any Loan Document;
(d) the following events, as soon as possible and in any event within
30 days after the Borrower knows or has reason to know thereof: (i) the
occurrence of any Reportable Event with respect to any Single Employer
Plan, a failure to make any required contribution to a Plan, the creation
of any Lien in favor of the PBGC or a Plan or any withdrawal from, or the
termination, Reorganization or Insolvency of, any Multiemployer Plan or
(ii) the institution of proceedings or the taking of any other action by
the PBGC or the Borrower or any Commonly Controlled Entity or any
Multiemployer Plan with respect to the withdrawal from, or the termination,
Reorganization or Insolvency of, any Plan; and
(e) any development or event that has had or could reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this Section 5.7 shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the relevant Group Member proposes to take with
respect thereto.
5.8 Environmental Laws. (a) Except to the extent the failure to do so
could not in the aggregate reasonably be expected to result in a Material
Adverse Effect, comply in all material respects with, and ensure compliance in
all material respects by all tenants and subtenants, if any, with, all
applicable Environmental Laws, and obtain and comply in all material respects
with and maintain, and use commercially reasonable efforts to ensure that all
tenants and subtenants obtain and comply in all material respects with and
maintain, any and all licenses, approvals, notifications, registrations or
permits required by applicable Environmental Laws.
(b) Except to the extent the failure to do so could not in the
aggregate reasonably be expected to result in a Material Adverse Effect, conduct
and complete all investigations, studies, sampling and testing, and all
remedial, removal and other actions required under Environmental Laws and
promptly comply in all material respects with all lawful orders and directives
of all Governmental Authorities regarding Environmental Laws.
5.9 Additional Collateral, etc. (a) With respect to any property
acquired after the Closing Date by any Loan Party (other than (x) any property
described in paragraph (b), (c) or (d) below,
43
(y) any property subject to a Lien expressly permitted by Section 6.2(g) and (z)
property acquired by any Excluded Foreign Subsidiary or Excluded Entity) as to
which the Administrative Agent, for the benefit of the Lenders, does not have a
perfected Lien, promptly (i) execute and deliver to the Administrative Agent
such amendments to the Guarantee and Collateral Agreement or such other
documents as the Administrative Agent reasonably deems necessary to grant to the
Administrative Agent, for the benefit of the Lenders, a security interest in
such property and (ii) take all commercially reasonable actions necessary to
grant to the Administrative Agent, for the benefit of the Lenders, a perfected
security interest in such property with the priority specified in the
Intercreditor Agreement.
(b) With respect to any fee interest in any real property having a
value (together with improvements thereof) of at least $5,000,000 acquired after
the Closing Date by any Loan Party (other than (x) any such real property
subject to a Lien expressly permitted by Section 6.2(g) and (z) real property
acquired by any Excluded Foreign Subsidiary or an Excluded Entity), promptly (i)
execute and deliver a Mortgage with the priority specified in the Intercreditor
Agreement, in favor of the Administrative Agent, for the benefit of the Lenders,
covering such real property, (ii) if requested by the Administrative Agent,
provide the Lenders with (x) title and extended coverage insurance covering such
real property in an amount at least equal to the purchase price of such real
property (or such other amount as shall be reasonably specified by the
Administrative Agent) as well as a current ALTA survey thereof, together with a
surveyor's certificate and (y) any consents or estoppels reasonably deemed
necessary by the Administrative Agent in connection with such Mortgage, each of
the foregoing in form and substance reasonably satisfactory to the
Administrative Agent and (iii) if reasonably requested by the Administrative
Agent, deliver to the Administrative Agent customary legal opinions relating to
the matters described above, which opinions shall be in form and substance, and
from counsel, reasonably satisfactory to the Administrative Agent.
(c) With respect to any new Subsidiary (other than an Excluded Foreign
Subsidiary or an Excluded Entity) created or acquired after the Closing Date by
any Group Member (which, for the purposes of this paragraph (c), shall include
any existing Subsidiary that ceases to be an Excluded Foreign Subsidiary) and
with respect to any Excluded Entity (other than any of the TMD Entities) that
becomes a Wholly Owned Subsidiary of any Group Member after the Closing Date,
promptly (i) execute and deliver to the Administrative Agent such amendments to
the Guarantee and Collateral Agreement as the Administrative Agent reasonably
deems necessary to grant to the Administrative Agent, for the benefit of the
Lenders, a perfected security interest in the Capital Stock of such new
Subsidiary or such Wholly Owned Subsidiary that is owned by any Group Member
with the priority set forth in the Intercreditor Agreement, (ii) deliver to the
Administrative Agent the certificates representing such Capital Stock, together
with undated stock powers, in blank, executed and delivered by a duly authorized
officer of the relevant Group Member, (iii) cause such new Subsidiary or such
Wholly Owned Subsidiary (A) to become a party to the Guarantee and Collateral
Agreement, (B) to take such actions necessary to grant to the Administrative
Agent for the benefit of the Lenders a perfected security interest in the
Collateral described in the Guarantee and Collateral Agreement with respect to
such new Subsidiary or such Wholly Owned Subsidiary with the priority specified
in the Intercreditor Agreement, including the filing of Uniform Commercial Code
financing statements in such jurisdictions as may be required by the Guarantee
and Collateral Agreement or by law or as may be requested by the Administrative
Agent and (C) to deliver to the Administrative Agent a certificate of such
Subsidiary or such Wholly Owned Subsidiary, substantially in the form of Exhibit
C, with appropriate insertions and attachments, and (iv) if requested by the
Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described above, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative
Agent.
(d) With respect to any new Excluded Foreign Subsidiary created or
acquired after the Closing Date by any Group Member (other than by any Group
Member that is an Excluded Foreign
44
Subsidiary), use its commercially reasonable efforts to promptly (i) execute and
deliver to the Administrative Agent such amendments to the Guarantee and
Collateral Agreement as the Administrative Agent deems necessary to grant to the
Administrative Agent, for the benefit of the Lenders, a perfected first priority
security interest in the Capital Stock of such new Subsidiary that is owned by
any such Group Member (provided that in no event shall more than 65% of the
total outstanding voting Capital Stock of any such new Subsidiary be required to
be so pledged), (ii) deliver to the Administrative Agent the certificates
representing such Capital Stock, together with undated stock powers, in blank,
executed and delivered by a duly authorized officer of the relevant Group
Member, and take such other action as may be necessary to perfect the
Administrative Agent's security interest therein, and (iii) if reasonably
requested by the Administrative Agent, deliver to the Administrative Agent
customary legal opinions relating to the matters described above, which opinions
shall be in form and substance, and from counsel, reasonably satisfactory to the
Administrative Agent.
(e) With respect to Halla Climate Control Corporation or any other
Foreign Subsidiary which is not a Wholly Owned Foreign Subsidiary and which
becomes a Wholly Owned Foreign Subsidiary after the Closing Date (it being
understood that the Capital Stock of such Wholly Owned Foreign Subsidiary shall
be held by VIHI or a Foreign Stock Holding Company), promptly (i) execute and
deliver to the Administrative Agent such amendments to the Guarantee and
Collateral Agreement as the Administrative Agent deems necessary to grant to the
Administrative Agent, for the benefit of the Lenders, a perfected first priority
security interest in the Capital Stock of such new Subsidiary that is owned by
any such Group Member (provided that in no event shall more than 65% of the
total outstanding voting Capital Stock of any such new Subsidiary be required to
be so pledged), (ii) deliver to the Administrative Agent the certificates
representing such Capital Stock, together with undated stock powers, in blank,
executed and delivered by a duly authorized officer of the relevant Group
Member, and take such other action as may be necessary or, in the opinion of the
Administrative Agent, desirable to perfect the Administrative Agent's security
interest therein, and (iii) if reasonably requested by the Administrative Agent,
deliver to the Administrative Agent customary legal opinions relating to the
matters described above, which opinions shall be in form and substance, and from
counsel, reasonably satisfactory to the Administrative Agent.
(f) With respect to any material Intellectual Property registered with
the U.S. Patent and Trademark Office or the U.S. Copyright Office after the
Closing Date, promptly (i) execute and deliver to the Administrative Agent such
amendments to the Guarantee and Collateral Agreement or such other documents as
the Administrative Agent reasonably deems necessary to grant to the
Administrative Agent, for the benefit of the Lenders, a security interest in
such property and (ii) take all commercially reasonable actions necessary to
grant to the Administrative Agent, for the benefit of the Lenders, a perfected
first priority security interest in such property, including filings with the
U.S. Patent and Trademark Office or the U.S. Copyright Office, as applicable,
and any other filings required by law, in each case, as may be reasonably
requested by the Administrative Agent.
5.10 Stock of First-Tier Foreign Subsidiaries. Cause the Capital Stock
of each Foreign Subsidiary directly owned by the Borrower or a Domestic
Subsidiary (other than Excluded Foreign Subsidiaries) now existing or hereafter
created or acquired to be held by VIHI or a Foreign Stock Holding Company at all
times.
5.11 Post-Closing Matters. (a) Within 60 days of the Closing Date (or
such later date as may be agreed to by the Administrative Agent from time to
time), to the extent not completed as of the Closing Date, obtain the
deliverables and take all actions with respect to each of the Mortgaged
Properties that are required by, and in accordance with Section 4(m) and
4(j)(ii) of this Agreement.
45
(b) Within 90 days of the Closing Date (or such later date as may be
agreed to by the Administrative Agent from time to time), (i) use its
commercially reasonable efforts to execute and deliver to the Administrative
Agent such security documents as the Administrative Agent reasonably deems
necessary to grant (under the laws of the applicable Uncertificated Foreign
Jurisdictions) to the Administrative Agent, for the benefit of the Lenders, a
perfected first priority security interest (to the extent "first priority" liens
are possible under the laws of such Uncertificated Foreign Jurisdiction) in the
Capital Stock of Foreign Subsidiaries (other than Excluded Foreign Subsidiaries)
organized under the laws of an Uncertificated Foreign Jurisdiction, (ii) take
such other actions necessary to grant (under the laws of the applicable
Uncertificated Foreign Jurisdiction) to the Administrative Agent, for the
benefit of the Lenders, a perfected first priority security interest in the
Capital Stock of such Foreign Subsidiaries, (iii) deliver to the Administrative
Agent all other customary certificates and supporting documentation as may be
reasonably requested by the Administrative Agent and (iv) if requested by the
Administrative Agent, deliver to the Administrative Agent customary legal
opinions relating to the matters described above, which opinions shall be in
form and substance, and from local counsel in such jurisdiction, reasonably
satisfactory to the Administrative Agent.
(c) Within 30 days of the Closing Date (or such later date as may be
agreed to by the Administrative Agent from time to time) deliver one or more
master intercompany notes required to be delivered pursuant to Section 4(k) of
this Agreement.
SECTION 6. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in
effect or any Loan or other amount is owing to any Lender or the Administrative
Agent hereunder other than unasserted contingent indemnification obligations not
due and payable), the Borrower shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly:
6.1 Indebtedness. Create, issue, incur, assume, become liable in
respect of or suffer to exist any Indebtedness, except:
(a) Indebtedness of any Loan Party pursuant to any Loan Document;
(b) Indebtedness of any Loan Party under the Existing Second Amended
and Restated Credit Agreement and Indebtedness of any Loan Party (other
than VIHI or any Foreign Stock Holding Company) under any replacement
thereof (including the Proposed ABL Financing); provided that the aggregate
amount of Indebtedness outstanding under the Existing Second Amended and
Restated Credit Agreement (and any replacement thereof) shall not exceed
$500,000,000 in the aggregate at any time;
(c) unsecured Indebtedness of any Loan Party owed to any other Loan
Party or to any Subsidiary which is not a Loan Party;
(d) Indebtedness of any Foreign Subsidiary owed to any other Foreign
Subsidiary;
(e) Guarantee Obligations incurred in the ordinary course of business
by the Borrower and its Subsidiaries in an aggregate amount, together with
any Guarantee Obligations outstanding under Section 6.7(u), not to exceed
$100,000,000 at any one time outstanding;
(f) Indebtedness outstanding on the date hereof and listed on Schedule
6.1(f) and any refinancings, refundings, renewals or extensions thereof
(without shortening the maturity of, or increasing the principal amount of
all Indebtedness listed thereon);
46
(g) Indebtedness of any Foreign Subsidiaries (other than Halla Climate
Control and its Subsidiaries) outstanding under any of the credit
facilities listed on Schedule 6.1(g) up to an aggregate amount under all
such credit facilities as set forth on Schedule 6.1(g) (the "Schedule
6.1(g) Aggregate Amount") and any refinancings, refundings, renewals,
reallocations or extensions thereof; provided that any new credit facility
refinancing or replacing any such Indebtedness does not cause the aggregate
amount available under all such credit facilities to exceed the Schedule
6.1(g) Aggregate Amount;
(h) Indebtedness of the Borrower and its Subsidiaries under factoring
programs and Permitted Receivables Financings, in each case, existing as of
the Closing Date and listed on Schedule 6.1(h);
(i) Indebtedness of Foreign Subsidiaries under the Proposed European
Securitization, factoring programs and Permitted Receivables Financings
incurred after the Closing Date in an aggregate amount not to exceed
$550,000,000 at any one time outstanding; provided that (a) the aggregate
amount of such Indebtedness for Foreign Subsidiaries organized under the
laws of any European country (or, in the case of Portuguese Receivables,
Bermuda) shall not exceed $425,000,000, (b) the aggregate amount of such
Indebtedness for all other Foreign Subsidiaries shall not exceed
$200,000,000 and (c) such Indebtedness is not subject to any Guarantee
Obligation or Lien issued or created by the Borrower or any of its Domestic
Subsidiaries;
(j) Indebtedness under letters of credit issued on behalf of Foreign
Subsidiaries in an aggregate amount not to exceed $50,000,000 at any one
time outstanding;
(k) Indebtedness of Foreign Subsidiaries in an aggregate outstanding
principal amount not to exceed $75,000,000 at any one time outstanding;
(l) Indebtedness of the Borrower in respect of 2010 Notes and the 2014
Notes;
(m) so long as no Default or Event of Default shall have occurred and
be continuing or would result therefrom, Permitted Additional Debt so long
as the Net Cash Proceeds of such Permitted Additional Debt are used to
prepay the 2010 Notes (or, to the extent the 2010 Notes have been prepaid
in full, the 2014 Notes) or to prepay the Loans in accordance with Section
2.5(a);
(n) Indebtedness of Halla Climate Control Corporation and its
Subsidiaries in an amount not to exceed, when combined with all other
outstanding Indebtedness of Halla Climate Control Corporation and its
Subsidiaries, $250,000,000 at any one time outstanding;
(o) Indebtedness secured by a Lien on the real property known as
"Visteon Village" ("Visteon Village") on terms reasonably satisfactory to
the Administrative Agent in an aggregate amount not less than 75% of the
fair market value of such property at the time of the incurrence of such
Indebtedness; provided that (i) no Event of Default shall have occurred and
be continuing or would result therefrom and (ii) 100% of the Net Cash
Proceeds of such Indebtedness shall be used, subject to the Intercreditor
Agreement, to prepay the Loans as set forth in Section 2.5(a);
(p) Indebtedness incurred in the ordinary course of business in
connection with cash pooling, netting and cash management arrangements
consisting of overdrafts or similar arrangements; provided that any such
Indebtedness does not consist of Indebtedness for borrowed money and is
owed to the financial institutions providing such arrangements and such
Indebtedness is extinguished in accordance with customary practices with
respect thereto;
47
(q) Capital Lease Obligations and purchase money Indebtedness of the
Borrower or any of its Domestic Subsidiaries related to property located in
the United States in an aggregate amount not to exceed $50,000,000 at any
one time outstanding;
(r) Indebtedness in respect of Swap Agreements permitted under Section
6.10;
(s) Indebtedness of the Borrower consisting of (x) repurchase
obligation with respect to Capital Stock of the Borrower issued to
directors, consultants, managers, officers and employees of the Borrower
and its Subsidiaries arising upon the death, disability or termination of
employment of such director, consultant, manager, officer or employee to
the extent such repurchase is permitted under Section 6.5 and (y)
promissory notes issued by the Borrower to directors, consultants,
managers, officers and employees (or their spouses or estates) of the
Borrower and its Subsidiaries to purchase or redeem Capital Stock of the
Borrower issued to such director, consultant, manager, officer or employee
to the extent such purchase or redemption is permitted under Section 6.5;
(t) Indebtedness acquired or assumed in a Permitted Acquisition
consummated pursuant to Section 6.7(i); provided that such Indebtedness was
not incurred in contemplation of the consummation of such Permitted
Acquisition;
(u) Indebtedness consisting of take-or-pay obligations arising out of
the Outsourcing Initiative or under supply agreements entered into in the
ordinary course of business consistent with past practice;
(v) Indebtedness arising out of Permitted Acquisitions and consisting
of obligations of any Group Member under provisions relating to
indemnification, adjustment of purchase price with respect thereto based on
changes in working capital and earn-outs based on the income generated by
the assets acquired in any such Permitted Acquisition after the
consummation thereof;
(w) Indebtedness arising out of the issuance of surety, stay, customs
or appeal bonds, performance bonds and performance bonds and performance
and completion guarantees, in each case incurred in the ordinary course of
business;
(x) Guarantee Obligations in respect of the Indebtedness of Joint
Ventures (other than Halla Climate Control Corporation and its Subsidiaries
and the TMD Entities); provided that the aggregate principal amount of such
Indebtedness shall not exceed $50,000,000 (or the equivalent thereof) at
any one time outstanding;
(y) Indebtedness of Joint Ventures which are Subsidiaries of the
Borrower (other than Halla Climate Control Corporation and its Subsidiaries
and the TMD Entities), provided that (i) the aggregate principal of such
Indebtedness shall not exceed $50,000,000 (or the equivalent thereof) at
any one time outstanding and (ii) such Indebtedness shall not be subject to
any Lien or Guarantee Obligation granted or incurred by the Borrower or any
other Subsidiary (other than a Subsidiary of such Joint Venture) except as
permitted in Section 6.1(x);
(z) Indebtedness consisting of the financing of insurance premiums in
the ordinary course of business with the providers of such insurance or
their Affiliates;
(aa) Indebtedness of the TMD Entities; provided that (i) the aggregate
principal amount of such Indebtedness shall not exceed $40,000,000 (or the
equivalent thereof) at any time and (ii)
48
such Indebtedness shall not be subject to any Lien or Guarantee Obligation
granted or incurred by the Borrower or any other Subsidiary (other than the
TMD Entities);
(bb) Indebtedness of Foreign Subsidiaries (other than Halla Climate
Control and its Subsidiaries) not to exceed in the aggregate, at any one
time outstanding, the lesser of (i) $250,000,000 and (ii) the excess (if
any) of (x) the amount of Designated Foreign Assets at such time over (y)
the Foreign Debt Base Amount; and
(cc) additional unsecured Indebtedness not otherwise permitted
hereunder not exceeding an aggregate principal amount of $25,000,000 at any
one time outstanding.
6.2 Liens. Create, incur, assume or suffer to exist any Lien upon any
of its property, whether now owned or hereafter acquired, except:
(a) Liens for taxes, assessments or governmental charges not yet due
or that are being contested in good faith by appropriate proceedings,
provided that adequate reserves with respect thereto are maintained on the
books of the Borrower or its Subsidiaries, as the case may be, in
conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's,
landlord's or other like Liens arising in the ordinary course of business
that are not overdue for a period of more than 30 days or that are being
contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation;
(d) deposits to secure the performance of bids, trade contracts (other
than for borrowed money), leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature incurred in
the ordinary course of business;
(e) easements, rights-of-way, covenants, conditions, restrictions and
other similar encumbrances or minor title or survey defects incurred in the
ordinary course of business that, in the aggregate, are not substantial in
amount and that do not in any case materially detract from the value of the
property subject thereto or materially interfere with the ordinary conduct
of the business of the Borrower or any of its Subsidiaries;
(f) Liens in existence on the date hereof listed on Schedule 6.2(f)
and any modification, replacement, renewal or extension thereof, securing
Indebtedness permitted by Section 6.1(f), provided that no such Lien is
spread to cover any additional property (other than the proceeds or
products thereof and accessions thereto) after the Closing Date and that
the amount of Indebtedness secured thereby is not increased;
(g) Liens securing Indebtedness of the Borrower or any other
Subsidiary incurred pursuant to Section 6.1(r) to finance the acquisition,
repair, replacement, construction or improvement of fixed or capital
assets, provided that (i) such Liens shall be created substantially
simultaneously with or within 180 days of such acquisition, repair,
replacement, construction or improvement of such fixed or capital assets,
(ii) such Liens do not at any time encumber any property other than the
property financed by such Indebtedness (and the proceeds and products
thereof and accessions thereto) and (iii) the amount of Indebtedness
secured thereby is not increased;
49
(h) Liens created pursuant to the Security Documents;
(i) (i) leases, licenses, subleases or sublicenses granted to other
Persons in the ordinary course of business which do not (A) interfere in
any material respect with the business of any Borrower or any Subsidiary or
(B) secure any Indebtedness or (ii) the rights reserved or vested in any
Person by the terms of any lease, license, franchise, grant or permit held
by any Borrower or any of its Subsidiaries or by a statutory provision, to
terminate any such lease, license, franchise, grant or permit, or to
require annual or periodic payments as a condition to the continuance
thereof;
(j) Subject to the Intercreditor Agreement, Liens to secure
Indebtedness permitted under Section 6.1(b);
(k) Liens on assets of Foreign Subsidiaries securing Indebtedness of
such Foreign Subsidiaries (i) permitted by Section 6.1(g); provided that
the aggregate outstanding principal amount of such Indebtedness secured by
such Liens shall not exceed the secured Indebtedness set forth on Schedule
6.1(g) as of the Closing Date, or (ii) permitted by Section 6.1(bb);
(l) Liens securing Indebtedness of the Borrower or any Subsidiary
incurred pursuant to Sections 6.1(j) and 6.1(k); provided that no Lien may
be granted on the Collateral to secure such Indebtedness and the aggregate
fair market value of the assets subject to such Liens shall not exceed 100%
of the amount of any such Indebtedness so secured;
(m) Liens on Receivables, any Related Security and the Other
Securitization Assets of the Borrower and any Subsidiary to the extent that
such Receivables, Related Security or Other Securitization Assets are
subject to the relevant factoring programs and any Permitted Receivables
Financing permitted under Section 6.1(h) and (i);
(n) Liens on assets of Halla Climate Control Corporation and its
Subsidiaries securing Indebtedness permitted by Section 6.1(n); provided
that the aggregate outstanding principal amount of such Indebtedness
secured by such Liens shall not exceed $250,000,000; and
(o) Liens securing Indebtedness permitted by Section 6.1(p); provided
that such Liens shall only cover Visteon Village and any proceeds and
products thereof and are created in connection with the incurrence of such
Indebtedness;
(p) Liens securing judgments, decrees or attachments not constituting
an Event of Default under Section 7.1(h) so long as such Liens are released
or satisfied within 60 days after entry thereof (upon the issuance of an
appeal bond or otherwise);
(q) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods in the ordinary course of business;
(r) Liens (i) of a collection bank arising under Section 4-210 of the
Uniform Commercial Code on items in the course of collection, or (ii) in
favor of a banking institution arising as a matter of law encumbering
deposits (including the right of set-off) and which are within the general
parameters customary in the banking industry;
(s) Liens existing on property at the time of its acquisition or
existing on the property of any Person at the time such Person becomes a
Subsidiary, in each case after the date hereof (other
50
than Liens on the equity interests of any Person that becomes a Subsidiary)
and any modifications, replacements, renewals or extensions thereof;
provided that (i) such Lien was not created in contemplation of such
acquisition or such Person becoming a Subsidiary, (ii) such Lien does not
extend to or cover any other assets or property (other than the proceeds or
products thereof and accessions thereto), and (iii) the Indebtedness
secured thereby (or, as applicable, any modifications, replacements,
renewals or extension thereof) is permitted under Section 6.1;
(t) Liens arising from precautionary Uniform Commercial Code financing
statement filings (or similar filings) regarding leases entered into by any
Borrower or any of its Subsidiaries in the ordinary course of business;
(u) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for sale of goods entered into by any
Borrower or any of its Subsidiaries in the ordinary course of business and
not prohibited by this Agreement; provided that such Liens only cover the
property subject to such arrangements;
(v) Liens that are contractual rights of set-off (i) relating to the
establishment of depository relations with banks not given in connection
with the issuance of Indebtedness, (ii) relating to pooled deposit or sweep
accounts of any Borrower or any Subsidiary to permit satisfaction of
overdraft or similar obligations incurred in the ordinary course of
business of the Borrower and its Subsidiaries or (iii) relating to purchase
orders and other agreements entered into with customers or suppliers of any
Borrower or any Subsidiary in the ordinary course of business;
(w) ground leases in respect of real property on which facilities
owned or leased by the Borrower or any of its Subsidiaries are located;
(x) Liens arising by operation of law under Article 2 of the Uniform
Commercial Code in favor of a reclaiming seller of goods or buyer of goods;
(y) security given to a public or private utility or any Governmental
Authority as required in the ordinary course of business;
(z) pledges or deposits of cash and Cash Equivalents securing
deductibles, self-insurance, co-payment, co-insurance, retentions and
similar obligations to providers of insurance on the ordinary course of
business;
(aa) Liens on securities which are subject to repurchase agreements as
contemplated in the definition of "Cash Equivalents";
(bb) Liens on goods and the proceeds thereof and title documents
relating thereto to secure drawings under letters of credit permitted under
Section 6.1(j) used to finance the purchase of such goods;
(cc) Liens on (i) incurred premiums, dividends and rebates which may
become payable under insurance policies and loss payments which reduce the
incurred premiums on such insurance policies and (ii) rights which may
arise under State insurance guarantee funds relating to any such insurance
policy, in each case to secure Indebtedness permitted under Section 6.1(z);
(dd) Liens not otherwise permitted by this Section so long as (i) the
aggregate outstanding principal amount of the obligations secured thereby
shall not exceed $10,000,000 at
51
any time and (ii) the aggregate fair market value (determined as of the
date such Lien is incurred) of the assets subject thereto exceeds (as to
the Borrower and all Subsidiaries) shall not exceed $20,000,000 at any one
time outstanding; and
(ee) Liens on xxxxxxx money deposits of cash or Cash Equivalents made
by the Borrower or its Subsidiaries in connection with any Permitted
Acquisition.
6.3 Fundamental Changes. Enter into any merger, consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), or Dispose of all or substantially all of its
property or business, except that:
(a) any Subsidiary of the Borrower may be merged or consolidated with
or into the Borrower (provided that the Borrower shall be the continuing or
surviving corporation) or with or into any Subsidiary Guarantor (provided
that the Subsidiary Guarantor shall be the continuing or surviving
corporation);
(b) any Subsidiary of the Borrower that is not a Subsidiary Guarantor
may be merged or consolidated with or into any other Subsidiary of the
Borrower that is not a Subsidiary Guarantor; provided that if one
Subsidiary to such merger or consolidation is a Wholly Owned Subsidiary,
the Wholly Owned Subsidiary shall be the continuing or surviving
corporation;
(c) any Subsidiary of the Borrower may Dispose of any or all of its
assets (i) to the Borrower or any Subsidiary Guarantor (upon voluntary
liquidation or otherwise), (ii) to a Subsidiary that is not a Subsidiary
Guarantor if the Subsidiary making the Disposition is not a Subsidiary
Guarantor; provided that any such Disposition by a Wholly Owned Subsidiary
must be to a Wholly Owned Subsidiary, or (iii) pursuant to a Disposition
permitted by Section 6.4;
(d) any Investment expressly permitted by Section 6.7 may be
structured as a merger, consolidation or amalgamation;
(e) any Subsidiary may be dissolved or liquidated so long as any
Dispositions in connection with any such liquidation or dissolution are
permitted under Section 6.3(c); and
(f) any Permitted Restructuring Transaction shall be permitted.
6.4 Disposition of Property. Dispose of any of its property, whether
now owned or hereafter acquired, or, in the case of any Subsidiary, issue or
sell any shares of such Subsidiary's Capital Stock to any Person, except:
(a) the Disposition (including the abandonment of intellectual
property) of obsolete, uneconomic, negligible or worn out property in the
ordinary course of business;
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions permitted by clause (i) of Section 6.3(b);
(d) (i) the sale or issuance of any Subsidiary's Capital Stock to the
Borrower or any Subsidiary Guarantor and (ii) sale or issuance of Capital
Stock of the Borrower to any employee, director or officer under any
employment or compensation plans; and
52
(e) the sale by the Borrower or its Subsidiaries to Halla Climate
Control Corporation of their ownership interests in Halla Climate Control
(Dalian) Co. Ltd. and Visteon Automotive Systems India Private Limited;
(f) Permitted Restructuring Transactions;
(g) the sale or disposition of Receivables, any Related Security and
any Other Securitization Assets pursuant to the Proposed European Financing
or Permitted Receivables Financings;
(h) any sale or disposition of assets pursuant to the Outsourcing
Initiative;
(i) Dispositions of the assets of any Foreign Subsidiary which is an
Immaterial Subsidiary (and with respect to which the Board of Directors of
the Borrower shall have determined that a liquidation, dissolution or
insolvency proceeding is in the best interests of the Borrower and its
Subsidiaries) in connection with the liquidation or dissolution of such
Subsidiary or in connection with any proceeding of the type described in
Section 7.1(f) so long as the Net Cash Proceeds of such Disposition are
used to pay the liabilities of such Subsidiary or are otherwise transferred
to a Group Member;
(j) so long as no Event of Default shall have occurred and be
continuing or would result therefrom, the sale by the Borrower or its
Subsidiaries of the Specified Assets;
(k) so long as no Event of Default shall have occurred and be
continuing or would result therefrom, the sale of the Capital Stock of
Halla Climate Control Corporation so long as after giving effect to any
such sale, the Borrower continues to hold, directly or indirectly, at least
51% of the equity interests of Halla Climate Control; provided that the Net
Cash Proceeds of any such sale are applied as required by Section 2.5(b);
(l) so long as no Event of Default shall have occurred and be
continuing or would result therefrom, the Disposition of other property not
otherwise expressly permitted by this Section so long as (i) the
Consolidated EBITDA Disposition Percentage attributable to the assets to be
Disposed of, together with the Consolidated EBITDA Disposition Percentage
attributable to any other assets Disposed of pursuant to this Section
6.4(l) during the same fiscal year, does not exceed 15% in the aggregate
and (ii) the aggregate Consolidated EBITDA Disposition Percentage of all
such assets Disposed of subsequent to the Closing Date pursuant to this
Section 6.4(l) does not exceed 25%;
(m) so long as no Event of Default shall have occurred and be
continuing or would result therefrom, the sale of assets with an aggregate
fair market value not to exceed $175,000,000 (net of taxes, expenses,
indebtedness, pension or OPEB liabilities paid or reserved for in
connection with any such sale);
(n) Dispositions of Cash Equivalents in the ordinary course of
business in connection with the cash management activities of the Borrower
and its Subsidiaries;
(o) Dispositions of accounts receivable in connection with compromise,
write down or collection thereof in the ordinary course of business and
consistent with past practice;
53
(p) leases, subleases, licenses or sublicenses of property in the
ordinary course of business and which do not materially interfere with the
business of the Borrower and its Subsidiaries;
(q) transfer of property subject to a Recovery Event (i) upon receipt
of Net Cash Proceeds of such Recovery Event or (ii) to a Governmental
Authority as a result of condemnation;
(r) Dispositions of Capital Stock to qualify directors where required
by applicable Requirements of Law or to satisfy other requirements of
applicable Requirements of Law with respect to the ownership of Capital
Stock of Foreign Subsidiaries;
(s) Dispositions of Acquired Non-Core Assets;
(t) Dispositions of the Capital Stock of any Joint Venture to the
extent required by the terms of customary buy/sell type arrangements
entered into in connection with the formation of such Joint Venture; and
(u) Dispositions of assets to effect Investments permitted under
Section 6.7.
6.5 Restricted Payments. Declare or pay any dividend (other than
dividends payable solely in common stock of the Person making such dividend) on,
or make any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, defeasance, retirement or other
acquisition of, any Capital Stock of any Group Member, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either directly
or indirectly, whether in cash or property or in obligations of any Group Member
(collectively, "Restricted Payments"), except that:
(a) any Subsidiary may make Restricted Payments to the Borrower or any
Wholly Owned Subsidiary Guarantor;
(b) any Subsidiary may make Restricted Payments pro rata to the
holders of the equity of such Subsidiaries entitled to receive the same;
(c) the Borrower may make Restricted Payments in an aggregate amount
not to exceed $25,000,000 in the aggregate during the term of this
Agreement;
(d) the Borrower may settle for cash the warrants issued to Ford
pursuant to the Ford Documentation with (i) the net cash proceeds of a
substantially concurrent issuance of common stock by the Borrower and (ii)
at any time after the date which is the twelve month anniversary of the
closing of the Ford Transactions (other than the ongoing performance
obligations contemplated by the Ford Documentation), cash held by the
Borrower in an amount not to exceed $100,000,000 in the aggregate;
(e) the Borrower may make Restricted Payments in connection with the
share repurchases required by the director and employee compensation
programs as described on Schedule 6.5(e); and
(f) cash payments by the Borrower in lieu of the issuance of
fractional shares upon the exercise of options in the ordinary course of
business.
54
6.6 Capital Expenditures. (a) Make or commit to make any Capital
Expenditure, except Capital Expenditures of the Borrower and its Subsidiaries in
the ordinary course of business not exceeding $500,000,000 during fiscal year
2006, $475,000,000 during fiscal year 2007, $425,000,000 during fiscal year 2008
and $450,000,000 during each fiscal year thereafter; provided, that (i) up to
100% of any such amount referred to above, if not so expended in the fiscal year
for which it is permitted, may be carried over for expenditure in the next
succeeding fiscal year and (ii) Capital Expenditures made pursuant to this
Section during any fiscal year shall be deemed made, first, in respect of
amounts permitted for such fiscal year as provided above and, second, in respect
of amounts carried over from the prior fiscal year pursuant to clause (a) above.
Notwithstanding anything to the contrary with respect to any fiscal year of the
Borrower during which a Permitted Acquisition is consummated and for each fiscal
year subsequent thereto, the amount of Capital Expenditures permitted under the
preceding sentence applicable to each fiscal year shall be increased by an
amount equal to the quotient obtained by dividing (A) the amount of such Capital
Expenditures (determined in accordance with GAAP) made by the acquired entity or
business for the thirty-six month period immediately preceding the consummation
of such Permitted Acquisition, by (B) three (such amount, the "Acquired
Permitted Capital Expenditure Amount"); provided that, with respect to the
fiscal year during which any such Permitted Acquisition occurs, the amount of
Capital Expenditures permitted under the first sentence of this Section 6.6 with
respect to such fiscal year shall be increased by an amount equal to the product
of (x) the Acquired Permitted Capital Expenditure Amount and (y) a fraction, the
numerator of which is the number of days remaining in such fiscal year and the
denominator of which is 365 or 366, if applicable.
(b) Notwithstanding anything to the contrary contained in Section
6.6(a) above, for any fiscal year beginning with fiscal year 2008, the amount of
Capital Expenditures that would otherwise be permitted in such fiscal year
pursuant to this Section 6.6 (including as a result of the amount that is
carried forward pursuant to clause (i) of Section 6.6(a)) may be increased by
(i) an amount equal to 50% of Adjusted EBITDA (it being understood that the
calculation of the amount of Capital Expenditures permitted pursuant to this
clause (i) shall be made at the time the relevant Capital Expenditure is made
and include a deduction for any other Capital Expenditures made in reliance on
this clause (i), but no Default shall occur solely as a result of a decrease in
Adjusted EBITDA after the consummation of any such Capital Expenditure) less an
amount equal to any Investments made by the Loan Parties pursuant to Section
6.7(i)(v) and (ii) an amount not to exceed $100,000,000 (the "CapEx Pull-Forward
Amount"); provided that the CapEx Pull-Forward Amount shall reduce, on a
dollar-for-dollar basis, the amount of Capital Expenditures that would otherwise
have been permitted in the immediately succeeding fiscal year.
6.7 Investments. Make any advance, loan, extension of credit (by way
of guaranty or otherwise) or capital contribution to, or purchase any Capital
Stock, bonds, notes, debentures or other debt securities of, or any assets
constituting a business unit of, or make any other investment in, any Person
(all of the foregoing, "Investments"), except:
(a) extensions trade credit granted in the ordinary course of
business;
(b) investments in Cash Equivalents in the ordinary course of business
in connection with the cash management activities of the Borrower and its
Subsidiaries;
(c) Guarantee Obligations permitted by Section 6.1;
(d) loans and advances to employees of any Group Member in the
ordinary course of business (including for travel, entertainment and
relocation expenses) in an aggregate amount for all Group Members not to
exceed $2,000,000 at any one time outstanding;
55
(e) so long as no Default or Event of Default would result therefrom,
intercompany Investments among the Loan Parties;
(f) so long as no Default or Event of Default would result therefrom,
intercompany Investments by Subsidiaries which are not Loan Parties in Loan
Parties and intercompany Investments by Subsidiaries which are not Loan
Parties in other Subsidiaries which are not Loan Parties;
(g) intercompany Investments among Foreign Subsidiaries;
(h) intercompany loans from Loan Parties to Subsidiaries which are not
Loan Parties in an aggregate outstanding amount not to exceed the sum (such
sum, the "Non-Loan Party Intercompany Debt Basket") of (i) $100,000,000,
(ii) intercompany loans or cash dividends from Subsidiaries which are not
Loan Parties received by Loan Parties after the Closing Date and repayment
in cash by Subsidiaries which are not Loan Parties of intercompany loans
owing to any Loan Party (it being understood that such intercompany loans
may not be repaid or prepaid to the extent that such prepayment would cause
the Investment Basket to be a negative amount) and (iii) 50% of the Net
Cash Proceeds received by any Loan Party from any asset sale permitted
under Section 6.4(e); provided that the Non-Loan Party Intercompany Debt
Basket shall be reduced by an amount equal to any Investments made pursuant
to the Investment Basket in excess of the amount permitted pursuant to
clause (i) of the definition of Investment Basket;
(i) Investments in an aggregate outstanding amount (including assumed
Indebtedness) not to exceed the sum (such sum, the "Investment Basket") of
(i) $400,000,000 in the aggregate, (ii) intercompany loans or cash
dividends from non-Loan Parties received by Loan Parties after the Closing
Date and repayment in cash by non-Loan Parties of intercompany loans owing
to any Loan Party (it being understood that such intercompany loans may not
be repaid or prepaid to the extent that such prepayment would cause the
Investment Basket to be a negative amount), (iii) 50% of the Net Cash
Proceeds received by any Loan Party from any asset sale permitted under
Section 6.4(e) and (iv) an amount equal to 50% of Adjusted EBITDA (it being
understood that the calculation of the amount of Investments permitted
pursuant to this clause (v) shall be made at the time the relevant
Investment is made and include a deduction for any other outstanding
Investments made in reliance on this clause (v), but no Default shall occur
solely as a result of a decrease in Adjusted EBITDA after the consummation
of any such Investment) less an amount equal to any Capital Expenditures
made by the Loan Parties pursuant to Section 6.6(b)(i); provided that the
Investment Basket shall be reduced by an amount equal to any intercompany
loans made by the Loan Parties pursuant to the Non-Loan Party Intercompany
Debt Basket in excess of the amount permitted pursuant to the definition of
Non-Loan Party Intercompany Debt Basket in excess of $100,000,000;
(j) Investments resulting from (i) the write-off of intercompany loans
in connection with the liquidation of any Subsidiary permitted under
Section 6.3(c) and 6.4(i) and (ii) the forgiveness of intercompany loans
existing as of the Closing Date made by the Loan Parties to the UK
Subsidiaries to the extent the Borrower reasonably determines in its good
faith business judgment that the forgiveness of such intercompany loans is
necessary to maximize the value of such Investments to the Borrower and its
Subsidiaries;
(k) Investments in assets useful in the business of the Borrower and
its Subsidiaries made by the Borrower or any of its Subsidiaries with the
proceeds of any Asset Sale Proceeds Deferred Amount;
56
(l) the acquisition by the Borrower of the equity interests of Oasis
Holdings Statutory Trust, the lessor under the Visteon Village Lease,
pursuant to the terms of the declaration of trust governing such trust and
the Visteon Village Lease;
(m) the acquisition of (i) additional Capital Stock (other than newly
issued shares of Capital Stock) of Halla Climate Control Corporation and
(ii) additional Capital Stock (other than newly issued shares of Capital
Stock) of Toledo Mold & Die, Inc.; provided that the aggregate
consideration for acquisitions made pursuant to clause (ii) shall not
exceed $35,000,000;
(n) the acquisition of additional Capital Stock of Joint Ventures
(other than Halla Climate Control Corporation) pursuant to terms reasonably
satisfactory to the Administrative Agent in an amount not to exceed
$100,000,000 in the aggregate;
(o) Investments existing as of the Closing Date as set forth on
Schedule 6.7(o) and any modification, replacement, renewal or extension
thereof provided that the original amount of such Investments are not
increased except as otherwise permitted by this Section 6.7;
(p) Permitted Acquisitions;
(q) Investments resulting from entering into Swap Agreements permitted
by Section 6.10;
(r) Investments in the ordinary course of business consisting of
endorsements of instruments for collection or deposit;
(s) Investments received in connection with the bankruptcy or
reorganization of any Person or in settlement of obligations of, or
disputes with, any Person arising in the ordinary course of business and
upon foreclosure with respect to any secured Investment or other transfer
of title with respect to any secured Investment;
(t) advances of payroll payments to employees in the ordinary course
of business;
(u) Guarantees by any Borrower or any Subsidiary of leases, contracts,
or of other obligations that do not constitute Indebtedness, in each case
entered into in the ordinary course of business; provided that the
aggregate amount of the Guarantee Obligations in respect thereof, together
with any outstanding Guarantee Obligations outstanding under Section
6.1(e), shall not exceed $100,000,000 at any time;
(v) Investments arising out of the receipt by the Borrower or any of
its Subsidiaries of promissory notes and non-cash consideration for the
Disposition of assets permitted under Section 6.4(a), 6.4(j), 6.4(l) and
6.4(m), provided that (i) the aggregate amount of such Investments shall
not exceed $100,000,000 at any time and (ii) the non-cash consideration for
any such Disposition shall not exceed 20% of the total consideration
therefor;
(w) Investments the consideration for which consists of the issuance
of newly issued shares of the Borrower;
(x) Capital Expenditures permitted under Section 6.6;
(y) Guarantee Obligations permitted under 6.1(x); and
57
(z) Investments consisting of the retained interest (including,
without limitation, subordinated Indebtedness) of sellers of Receivables in
connection with the Proposed European Financing or any Permitted
Receivables Financing.
6.8 Optional Payments and Modifications of Certain Debt Instruments;
Modifications of Organizational Documents. (a) Make or offer to make any
optional or voluntary payment, prepayment, repurchase or redemption of or
otherwise optionally or voluntarily defease or segregate funds with respect to
the notes issued under the Existing Indenture or any Permitted Additional Debt
(other than (i) repurchases and redemptions of the 2010 Notes in an aggregate
principal amount up to $200,000,000, (ii) the repurchase or redemption of up to
$100,000,000 in aggregate principal amount of the 2010 Notes (or, after the 2010
Notes have been repurchased or redeemed in full, the 2014 Notes) following the
delivery of a Note Repurchase Notice with the Net Cash Proceeds of the Asset
Sales described in such Note Repurchase Notice, (iii) repurchases of the 2010
Notes (and, to the extent the offer required pursuant to Section 2.5(e) in
respect of the prepayment required under Section 2.5(c) shall have been made and
such offer shall have been declined, the 2010 Notes or the 2014 Notes up to the
amount of the prepayment so declined) with the Net Cash Proceeds of an Asset
Sale permitted under Section 6.4(m) (less any amount used to prepay the Loans
pursuant to Section 2.5(c)), (iv) repurchases and redemptions of the 2010 Notes
(or, after the 2010 Notes have been repurchased or redeemed in full, the 2014
Notes) with the Net Cash Proceeds of Permitted Additional Debt in accordance
with Section 6.1(m), (v) if the Consolidated Leverage Ratio is less than 2.0 to
1.0, prepayments, repurchases or redemptions of the 2010 Notes (or, after the
2010 have been repurchased or redeemed in full, the 2014 Notes) in an amount not
to exceed $200,000,000 in the aggregate and (vi) repurchases or redemptions of
the 2014 Notes in an aggregate principal amount not to exceed $35,000,000); (b)
amend, modify, waive or otherwise change, or consent or agree to any amendment,
modification, waiver or other change to, any of the terms of the Existing
Indenture, the notes issued thereunder or documentation governing any Permitted
Additional Debt (other than any such amendment, modification, waiver or other
change that (i) would extend the maturity or reduce the amount of any payment of
principal thereof or reduce the rate or extend any date for payment of interest
thereon and (ii) does not involve the payment of a consent fee other than
customary consent fees reasonably acceptable to the Administrative Agent); or
(c) amend or modify in any manner materially adverse to the Lenders, or grant
any waiver or release under or terminate in any manner (if such granting or
termination shall be materially adverse to the Lenders), the articles or
certificate of incorporation (or equivalent thereof) or by-laws or limited
liability company agreement (or equivalent thereof) of the Borrower or any of
its Subsidiaries.
6.9 Transactions with Affiliates. Enter into any transaction,
including any purchase, sale, lease or exchange of property, the rendering of
any service or the payment of any management, advisory or similar fees, with any
Affiliate (other than the Borrower or any Subsidiary Guarantor) unless such
transaction is (a) otherwise permitted under this Agreement, (b) in the ordinary
course of business of the relevant Group Member, and (c) upon fair and
reasonable terms no less favorable to the relevant Group Member than it would
obtain in a comparable arm's length transaction with a Person that is not an
Affiliate.
6.10 Swap Agreements. Enter into any Swap Agreement, except (a) Swap
Agreements entered into to hedge or mitigate risks (and not for speculative
purposes) of the Borrower or any Subsidiary (other than those in respect of
Capital Stock), including, but not limited to, foreign exchange rate and
commodity xxxxxx and (b) Swap Agreements entered into in order to effectively
cap, collar or exchange interest rates (from fixed to floating rates, from one
floating rate to another floating rate or otherwise) with respect to any
interest-bearing liability or investment of the Borrower or any Subsidiary.
58
6.11 Changes in Fiscal Periods. Permit the fiscal year of the Borrower
to end on a day other than December 31 or change the Borrower's method of
determining fiscal quarters.
6.12 Negative Pledge Clauses. Enter into or suffer to exist or become
effective any agreement that prohibits or limits the ability of any Group Member
to create, incur, assume or suffer to exist any Lien upon any of its property or
revenues, whether now owned or hereafter acquired, other than (a) applicable
law, (b) this Agreement and the other Loan Documents, (c) any agreements
governing any purchase money Liens or Capital Lease Obligations otherwise
permitted hereby (in which case, any prohibition or limitation shall only be
effective against the assets financed thereby), (d) the documentation governing
the Proposed ABL Financing (which shall not contain any restriction covered by
this Section which is materially more restrictive than this Agreement), (d) the
documentation governing the Proposed European Financing (with any restrictions
to apply only to the Subsidiaries which participate in the Proposed European
Financing), (e) the Existing Indenture, (f) any agreement with respect to
Indebtedness of a Foreign Subsidiary permitted pursuant to this Agreement so
long as such prohibitions or limitations are only with respect to the properties
and revenues of such Foreign Subsidiary or any Wholly Owned Subsidiary of such
Foreign Subsidiary, (g) any arrangement or agreement arising in connection with
a Disposition permitted under this Agreement so long as such restrictions apply
only to the asset to be Disposed of pending completion of such Disposition, (h)
any agreement with respect to the Indebtedness of any Person existing at the
time such Person becomes a Subsidiary after the date hereof so long as such
prohibitions or limitations are only with respect to the properties and revenues
of such Subsidiary, (i) customary restrictions in leases, subleases, licenses
and sublicenses, (j) restrictions applicable to Joint Ventures pursuant to the
joint venture agreements, (k) restrictions applicable to the TMD Entities under
their organizational documents and (l) for the period from the Closing Date
through the date which is 30 days following the Closing Date, the Visteon
Village Lease.
6.13 Clauses Restricting Subsidiary Distributions. Enter into or
suffer to exist or become effective any consensual encumbrance or restriction on
the ability of any Subsidiary of the Borrower to (a) make Restricted Payments in
respect of any Capital Stock of such Subsidiary held by, or pay any Indebtedness
owed to, the Borrower or any other Subsidiary of the Borrower, (b) make loans or
advances to, or other Investments in, the Borrower or any other Subsidiary of
the Borrower or (c) transfer any of its assets to the Borrower or any other
Subsidiary of the Borrower, except for such encumbrances or restrictions
existing under or by reason of (i) any restrictions existing under the Loan
Documents, (ii) any restrictions with respect to a Subsidiary imposed pursuant
to an agreement that has been entered into in connection with the Disposition of
all or substantially all of the Capital Stock or assets of such Subsidiary,
(iii) such encumbrances or restrictions required by applicable law, (iv) such
encumbrances or restrictions consisting of customary non-assignment provisions
in leases, subleases, licenses and sublicenses governing leasehold interests,
licenses or sublicenses to the extent such provisions restrict the transfer of
the lease, subleases, license, sublicenses or the property leased, subleased,
licensed or sublicensed thereunder, (v) such encumbrances or restrictions with
respect to Indebtedness of a Foreign Subsidiary permitted pursuant to this
Agreement and which encumbrances or restrictions are customary in agreements of
such type or are of the type existing under the agreements listed on Schedule
6.13 and which shall only apply to such Foreign Subsidiary subject thereto and
such Foreign Subsidiary's Wholly Owned Subsidiaries, (vi) restrictions under the
Proposed ABL Financing (which restrictions covered by this Section shall not be
materially more restrictive than this Agreement) or the Proposed European
Financing (which restrictions shall only apply to the Subsidiaries which
participate in the Proposed European Financing), (vii) restrictions under joint
venture agreements or other similar agreements entered into in the ordinary
course of business in connection with Joint Ventures, (viii) restrictions on any
Person existing at the time such Person becomes a Subsidiary after the date
hereof so long as such prohibitions or limitations are only with respect to such
Subsidiary, and (ix) restrictions applicable to the TMD Entities under their
organizational documents.
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6.14 Lines of Business. Enter into any business, either directly or
through any Subsidiary, except for those businesses in which the Borrower and
its Subsidiaries are engaged on the date of this Agreement or that are
reasonable extensions thereof or reasonably related, supportive, complementary
or ancillary thereto.
6.15 Business of VIHI and Foreign Stock Holding Companies. Permit VIHI
or any other Foreign Stock Holding Company to (a) engage at any time in any
business or business activity other than (i) ownership and acquisition of
Capital Stock in Halla Climate Control Corporation and other Foreign
Subsidiaries, (ii) performance of its obligations under and in connection with
the Loan Documents, (iii) actions required to maintain its existence and (iv)
activities incidental to its maintenance and continuance and to the foregoing
activities; (b) incur any Indebtedness; or (c) sell, dispose of, xxxxx x Xxxx on
or otherwise transfer the Capital Stock of Halla Climate Control Corporation or
any other Foreign Subsidiary except as permitted by Section 6.4.
6.16 Indebtedness Under CNTA Exception. Notwithstanding anything to
the contrary herein, incur any Indebtedness (other than the Obligations of the
Loan Parties pursuant to the Loan Documents and Indebtedness outstanding under
Section 6.1(b)) which constitutes Debt (as defined in the Existing Indenture) or
incur obligations under Sale-Leaseback Transactions (other than Sale-Leaseback
Transactions permitted under Section 6.10) which constitute "Attributable Debt"
as defined in the Existing Indenture, that, in either case, qualifies for the
CNTA Exception.
6.17 Liabilities of Oasis Holdings Statutory Trust. Consent to (a) the
incurrence by Oasis Holdings Statutory Trust of any Indebtedness or other
liabilities, (b) the Disposition by Oasis Holdings Statutory Trust of Visteon
Village or (c) the grant of any Lien on Visteon Village by Oasis Holdings
Statutory Trust.
SECTION 7. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) the Borrower shall fail to pay any principal of any Loan when due
in accordance with the terms hereof; or the Borrower shall fail to pay any
interest on any Loan, or any other amount payable hereunder or under any
other Loan Document, within five Business Days after any such interest or
other amount becomes due in accordance with the terms hereof; or
(b) any representation or warranty made or deemed made by any Loan
Party herein or in any other Loan Document or that is contained in any
certificate, document or financial statement furnished by it at any time
under or in connection with this Agreement or any such other Loan Document
shall prove to have been inaccurate in any material respect on or as of the
date made or deemed made; or
(c) (i) any Loan Party shall default in the observance or performance
of any agreement contained in clause (i) or (ii) of Section 5.4(a) (with
respect to the Borrower only), Section 5.7(a) or Section 6 of this
Agreement or Sections 5.5 and 5.7(b) of the Guarantee and Collateral
Agreement or (ii) an "Event of Default" under and as defined in any
Mortgage shall have occurred and be continuing; provided that (x) no
Default or Event of Default shall occur under Section 6 of this Agreement
with respect to the monetary limitations set forth therein expressed in
United States dollars solely as a result of changes in currency exchange
rates subsequent to the date of the taking of the actions permitted therein
and (y) compliance with such monetary limitations with respect to actions
taken in currencies other than United States dollars shall be
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determined on the date of such action based on the equivalent U.S. Dollar
amount thereof and of all other actions taken prior to such date which are
also subject to such limitation; or
(d) any Loan Party shall default in the observance or performance of
any other agreement contained in this Agreement or any other Loan Document
(other than as provided in paragraphs (a) through (c) of this Section), and
such default shall continue unremedied for a period of thirty days after
notice to the Borrower from the Administrative Agent or the Required
Lenders; or
(e) any Group Member shall (i) default in making any payment of any
principal of any Indebtedness (including any Guarantee Obligation, but
excluding the Loans) on the scheduled or original due date with respect
thereto; or (ii) default in making any payment of any interest on any such
Indebtedness beyond the period of grace, if any, provided in the instrument
or agreement under which such Indebtedness was created; (iii) default in
the observance or performance of any other agreement or condition relating
to any such Indebtedness or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event (including any
event of termination (or any event which prevents any further sales) under
the Proposed European Financing or any Permitted Receivables Financing)
shall occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or beneficiary of such
Indebtedness (or a trustee or agent on behalf of such holder or
beneficiary) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or (in the case of
any such Indebtedness constituting a Guarantee Obligation) to become
payable or (in the case of any event of termination under the European
Financing) to cause such agreement and any facilities under such agreement
to terminate; provided, that a default, event or condition described in
clause (i), (ii) or (iii) of this paragraph (e) shall not at any time
constitute an Event of Default unless, at such time, one or more defaults,
events or conditions of the type described in clauses (i), (ii) and (iii)
of this paragraph (e) shall have occurred and be continuing with respect to
Indebtedness the outstanding principal amount of which exceeds in the
aggregate $50,000,000; provided, further, that this Section 7(e) shall not
apply to intercompany Indebtedness of an Immaterial Subsidiary; or
(f) (i) any Material Group Member shall commence any case, proceeding
or other action (A) under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency, reorganization or
relief of debtors, seeking to have an order for relief entered with respect
to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts,
or (B) seeking appointment of a receiver, trustee, custodian, conservator
or other similar official for it or for all or any substantial part of its
assets, or any Material Group Member shall make a general assignment for
the benefit of its creditors; or (ii) there shall be commenced against any
Material Group Member any case, proceeding or other action of a nature
referred to in clause (i) above that (A) results in the entry of an order
for relief or any such adjudication or appointment or (B) remains
undismissed or undischarged for a period of sixty days; or (iii) there
shall be commenced against any Material Group Member any case, proceeding
or other action seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial part of its
assets that results in the entry of an order for any such relief that shall
not have been vacated, discharged, or stayed or bonded pending appeal
within sixty (60)days from the entry thereof; or (iv) any Material Group
Member shall take any action in furtherance of, or indicating its consent
to, approval of, or acquiescence in, any of the acts set forth in clause
(i), (ii), or (iii) above; or (v) any Material Group Member shall generally
not, or shall be unable to, or shall admit in writing its inability to, pay
its debts as they become due; or
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(g) (i) any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302
of ERISA), whether or not waived, shall exist with respect to any Plan or
any Lien in favor of the PBGC or a Plan shall arise on the assets of any
Group Member or any Commonly Controlled Entity, (iii) a Reportable Event
shall occur with respect to, or proceedings shall commence to have a
trustee appointed, or a trustee shall be appointed, to administer or to
terminate, any Single Employer Plan, which Reportable Event or commencement
of proceedings or appointment of a trustee is, in the reasonable opinion of
the Required Lenders, likely to result in the termination of such Plan for
purposes of Title IV of ERISA, (iv) any Single Employer Plan shall
terminate for purposes of Title IV of ERISA, (v) any Group Member or any
Commonly Controlled Entity shall, or in the reasonable opinion of the
Required Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer
Plan or (vi) any other event or condition shall occur or exist with respect
to a Plan; and in each case in clauses (i) through (vi) above, such event
or condition, together with all other such events or conditions, if any,
could, in the sole judgment of the Required Lenders, reasonably be expected
to have a Material Adverse Effect; or
(h) one or more judgments or decrees shall be entered against any
Group Member involving in the aggregate a liability (not paid or fully
covered by insurance as to which the relevant insurance company has
acknowledged coverage) of $50,000,000 or more, and all such judgments or
decrees shall not have been vacated, discharged, stayed or bonded pending
appeal within sixty days from the entry thereof; or
(i) any of the Security Documents or the Intercreditor Agreement shall
cease, for any reason, to be in full force and effect, or any Loan Party or
any Subsidiary of any Loan Party, or in the case of the Intercreditor
Agreement, any party to the Intercreditor Agreement, shall so assert, or
any Lien created by any of the Security Documents shall cease to be
enforceable and of the same effect and priority purported to be created
thereby (other than as a result of any action or inaction on the part of
the Administrative Agent or the Lenders); or
(j) the guarantee contained in Section 2 of the Guarantee and
Collateral Agreement shall cease, for any reason, to be in full force and
effect or any Loan Party or any Subsidiary of any Loan Party shall so
assert; or
(k) a Change of Control shall occur;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Borrower,
automatically the Commitments shall immediately terminate and the Loans (with
accrued interest thereon) and all other amounts owing under this Agreement and
the other Loan Documents shall immediately become due and payable, and (B) if
such event is any other Event of Default, either or both of the following
actions may be taken: with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrower, declare the Loans (with
accrued interest thereon) and all other amounts owing under this Agreement and
the other Loan Documents to be due and payable forthwith, whereupon the same
shall immediately become due and payable. Except as expressly provided above in
this Section, presentment, demand, protest and all other notices of any kind are
hereby expressly waived by the Borrower.
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SECTION 8. THE AGENTS
8.1 Appointment. Each Lender hereby irrevocably designates and
appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Loan Documents, and each such Lender irrevocably
authorizes the Administrative Agent, in such capacity, to take such action on
its behalf under the provisions of this Agreement and the other Loan Documents
and to exercise such powers and perform such duties as are expressly delegated
to the Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent.
8.2 Delegation of Duties. The Administrative Agent may execute any of
its duties under this Agreement and the other Loan Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or attorneys
in-fact selected by it with reasonable care.
8.3 Exculpatory Provisions. Neither any Agent nor any of their
respective officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except to the extent that any of the foregoing are found by
a final and nonappealable decision of a court of competent jurisdiction to have
resulted from its or such Person's own gross negligence or willful misconduct)
or (ii) responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by any Loan Party or any officer
thereof contained in this Agreement or any other Loan Document or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Agents under or in connection with, this Agreement or any
other Loan Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or
for any failure of any Loan Party a party thereto to perform its obligations
hereunder or thereunder. The Agents shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Loan Party.
8.4 Reliance by Administrative Agent. The Administrative Agent shall
be entitled to rely, and shall be fully protected in relying, upon any
instrument, writing, resolution, notice, consent, certificate, affidavit,
letter, telecopy, telex or teletype message, statement, order or other document
or conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including counsel to the Borrower), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Required Lenders (or, if so specified
by this Agreement, all Lenders) as it deems appropriate or it shall first be
indemnified to its satisfaction by the Lenders against any and all liability and
expense that may be incurred by it by reason of taking or continuing to take any
such action. The Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement and the other Loan
Documents in accordance with a request of the Required Lenders (or, if so
specified by this
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Agreement, all Lenders), and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders and all future holders of
the Loans.
8.5 Notice of Default. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default
unless the Administrative Agent has received notice from a Lender or the
Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event that
the Administrative Agent receives such a notice, the Administrative Agent shall
give notice thereof to the Lenders. The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders (or, if so specified by this Agreement, all
Lenders); provided that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interests of the Lenders.
8.6 Non-Reliance on Agents and Other Lenders. Each Lender expressly
acknowledges that neither the Agents nor any of their respective officers,
directors, employees, agents, attorneys-in-fact or Affiliates have made any
representations or warranties to it and that no act by any Agent hereafter
taken, including any review of the affairs of a Loan Party or any Affiliate of a
Loan Party, shall be deemed to constitute any representation or warranty by any
Agent to any Lender. Each Lender represents to the Agents that it has,
independently and without reliance upon any Agent or any other Lender, and based
on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties and their
Affiliates and made its own decision to make its Loans hereunder and enter into
this Agreement. Each Lender also represents that it will, independently and
without reliance upon any Agent or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement and the other Loan Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Loan Parties and their Affiliates. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of any Loan Party or any Affiliate of
a Loan Party that may come into the possession of the Administrative Agent or
any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates.
8.7 Indemnification. The Lenders agree to indemnify each Agent in its
capacity as such (to the extent not reimbursed by the Borrower and without
limiting the obligation of the Borrower to do so), ratably according to their
respective Aggregate Exposure Percentages in effect on the date on which
indemnification is sought under this Section (or, if indemnification is sought
after the date upon which the Commitments shall have terminated and the Loans
shall have been paid in full, ratably in accordance with such Aggregate Exposure
Percentages immediately prior to such date), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever that may at any time
(whether before or after the payment of the Loans) be imposed on, incurred by or
asserted against such Agent in any way relating to or arising out of, the
Commitments, this Agreement, any of the other Loan Documents or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by such Agent
under or in connection with any of the foregoing; provided that no Lender shall
be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements that are found by a final and nonappealable decision of a court of
competent jurisdiction to have resulted from such Agent's gross negligence or
willful
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misconduct. The agreements in this Section shall survive the payment of the
Loans and all other amounts payable hereunder.
8.8 Agent in Its Individual Capacity. Each Agent and its Affiliates
may make loans to, accept deposits from and generally engage in any kind of
business with any Loan Party as though such Agent were not an Agent. With
respect to its Loans made or renewed by it, each Agent shall have the same
rights and powers under this Agreement and the other Loan Documents as any
Lender and may exercise the same as though it were not an Agent, and the terms
"Lender" and "Lenders" shall include each Agent in its individual capacity.
8.9 Successor Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon 30 days' notice to the Lenders and the
Borrower. If the Administrative Agent shall resign as Administrative Agent under
this Agreement and the other Loan Documents, then the Required Lenders shall
appoint from among the Lenders a successor agent for the Lenders, which
successor agent shall (unless an Event of Default under Section 7(a) or Section
7(f) with respect to the Borrower shall have occurred and be continuing) be
subject to approval by the Borrower (which approval shall not be unreasonably
withheld or delayed), whereupon such successor agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent's rights, powers
and duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Loans. If no successor agent
has accepted appointment as Administrative Agent by the date that is 30 days
following a retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become
effective, and the Lenders shall assume and perform all of the duties of the
Administrative Agent hereunder until such time, if any, as the Required Lenders
appoint a successor agent as provided for above. After any retiring
Administrative Agent's resignation as Administrative Agent, the provisions of
this Section 8 shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Administrative Agent under this Agreement and the
other Loan Documents.
8.10 Documentation Agent and Syndication Agent. Neither the
Documentation Agent nor the Syndication Agent shall have any duties or
responsibilities hereunder in its capacity as such.
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers. Neither this Agreement, any other Loan
Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section 9.1. Except as
provided in Section 2.17, the Required Lenders (other than Defaulting Lenders)
and each Loan Party party to the relevant Loan Document may, or, with the
written consent of the Required Lenders (other than Defaulting Lenders), the
Administrative Agent and each Loan Party party to the relevant Loan Document
may, from time to time, (a) enter into written amendments, supplements or
modifications hereto and to the other Loan Documents for the purpose of adding
any provisions to this Agreement or the other Loan Documents or changing in any
manner the rights of the Lenders or of the Loan Parties hereunder or thereunder
or (b) waive, on such terms and conditions as the Required Lenders or the
Administrative Agent, as the case may be, may specify in such instrument, any of
the requirements of this Agreement or the other Loan Documents or any Default or
Event of Default and its consequences; provided, however, that no such waiver
and no such amendment, supplement or modification shall (i) forgive the
principal amount or extend the final scheduled date of maturity of any Loan,
extend the scheduled date of any amortization payment in respect of any Term
Loan, reduce the stated rate of any interest or fee payable hereunder (except
(x) a waiver of any Default or Event of Default shall not be deemed to be a
reduction in the rate of interest or any fee and (y) in
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connection with the waiver of applicability of any post-default increase in
interest rates) or extend the scheduled date of any payment thereof, in each
case without the written consent of each Lender directly affected thereby; (ii)
eliminate or reduce the voting rights of any Lender under this Section 9.1
without the written consent of such Lender; (iii) reduce any percentage
specified in the definition of Required Lenders, consent to the assignment or
transfer by the Borrower of any of its rights and obligations under this
Agreement and the other Loan Documents, subject to the terms of the
Intercreditor Agreement, release all or substantially all of the Collateral or
release all or substantially all of the Subsidiary Guarantors from their
obligations under the Guarantee and Collateral Agreement, in each case without
the written consent of all Lenders; or (iv) amend, modify or waive any provision
of Section 8 without the written consent of the Administrative Agent. Any such
waiver and any such amendment, supplement or modification shall apply equally to
each of the Lenders and shall be binding upon the Loan Parties, the Lenders, the
Administrative Agent and all future holders of the Loans. In the case of any
waiver, the Loan Parties, the Lenders and the Administrative Agent shall be
restored to their former position and rights hereunder and under the other Loan
Documents, and any Default or Event of Default waived shall be deemed to be
cured and not continuing; but no such waiver shall extend to any subsequent or
other Default or Event of Default, or impair any right consequent thereon.
Notwithstanding the foregoing, this Agreement may be amended (or
amended and restated) with the written consent of the Required Lenders, the
Administrative Agent and the Borrower (a) to add one or more additional credit
facilities to this Agreement and to permit the extensions of credit from time to
time outstanding thereunder and the accrued interest and fees in respect thereof
to share ratably in the benefits of this Agreement and the other Loan Documents
with the Term Loans and the accrued interest and fees in respect thereof and (b)
to include appropriately the Lenders holding such credit facilities in any
determination of the Required Lenders.
9.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows in the case of the Borrower and the
Administrative Agent, and as set forth in an administrative questionnaire
delivered to the Administrative Agent in the case of the Lenders, or to such
other address as may be hereafter notified by the respective parties hereto:
Borrower: Xxx Xxxxxxx Xxxxxx
Xxx Xxxxx Xxxxxxxx, Xxxxxxxx 00000
Attention: Treasurer
Telecopy: 000-000-0000
Telephone: _____________
with a copy to Xxxxxxxx & Xxxxx LLP
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx PC
Telecopy: 000-000-0000
Telephone: 000-000-0000
Administrative Agent: 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx
Telecopy: _____________
Telephone: 000-000-0000
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with a copy to: Loan and Agency Services
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xx. Xxxxx Xxxxxx
Telecopy: _____________
Telephone: _____________
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to Section 2.2 and 2.6 shall not be effective until
received.
Notices and other communications to the Lenders hereunder may be
delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent; provided that the foregoing shall not
apply to notices pursuant to Section 2 unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent or the
Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be
limited to particular notices or communications.
9.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Lender, any
right, remedy, power or privilege hereunder or under the other Loan Documents
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
9.4 Survival of Representations and Warranties. All representations
and warranties made hereunder, in the other Loan Documents and in any document
or certificate delivered pursuant hereto or in connection herewith shall survive
the execution and delivery of this Agreement and the making of the Loans and
other extensions of credit hereunder.
9.5 Payment of Expenses and Taxes. The Borrower agrees (a) to pay or
reimburse the Administrative Agent for all its reasonable documented
out-of-pocket costs and expenses incurred in connection with the development,
preparation and execution of, and any amendment, supplement or modification to,
this Agreement and the other Loan Documents and any other documents prepared in
connection herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including the reasonable
documented fees and disbursements of one counsel to the Administrative Agent
(and such other local and foreign local counsel as shall be reasonably required
by the Administrative Agent) and filing and recording fees and expenses, with
statements with respect to the foregoing to be submitted to the Borrower prior
to the Closing Date (in the case of amounts to be paid on the Closing Date) and
from time to time thereafter on a quarterly basis or such other periodic basis
as the Administrative Agent shall deem appropriate, (b) to pay or reimburse each
Lender and the Administrative Agent for all its out-of-pocket costs and expenses
incurred in connection with the enforcement or preservation of any rights under
this Agreement, the other Loan Documents and any such other documents, including
the fees and out-of-pocket disbursements of counsel (including the allocated
fees and expenses of in-house counsel) to each Lender and of counsel to the
Administrative Agent, (c) to pay, indemnify, and hold each Lender and the
Administrative Agent harmless from, any and all recording and filing fees and
any and all liabilities with respect to, or resulting from any delay in paying,
stamp, excise and other taxes, if any, that may be payable or determined to be
payable in connection with the
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execution and delivery of, or consummation or administration of any of the
transactions contemplated by, or any amendment, supplement or modification of,
or any waiver or consent under or in respect of, this Agreement, the other Loan
Documents and any such other documents, and (d) to pay, indemnify, and hold each
Lender and the Administrative Agent and their respective officers, directors,
employees, Affiliates, agents and controlling persons (each, an "Indemnitee")
harmless from and against any and all other liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of this Agreement, the other Loan
Documents and any such other documents, including any of the foregoing relating
to the use of proceeds of the Loans or the violation of, noncompliance with or
liability under, any Environmental Law applicable to the operations of any Group
Member or any of the Properties and the reasonable fees and reasonable
documented out-of-pocket expenses of legal counsel in connection with claims,
actions or proceedings by any Indemnitee against any Loan Party under any Loan
Document (all the foregoing in this clause (d), collectively, the "Indemnified
Liabilities"), provided, that the Borrower shall have no obligation hereunder to
any Indemnitee with respect to Indemnified Liabilities to the extent such
Indemnified Liabilities (i) have resulted from the gross negligence, bad faith
or willful misconduct of such Indemnitee, (ii) have resulted from the breach by
such Indemnitee in respect of such Indemnitee's obligations under the Facility
or (iii) have arisen from a dispute solely between Lenders and not involving the
Administrative Agent in its capacity as such or the Borrower; provided further
that such reimbursement obligations shall be limited to one counsel for the
Administrative Agent and one counsel for the Lenders (and, to the extent
necessary as determined by the Administrative Agent, one or more local counsel)
unless there is a conflict of interest with respect to a particular Indemnitee,
in which case such Indemnitee shall be reimbursed for its own counsel. Without
limiting the foregoing, and to the extent permitted by applicable law, the
Borrower agrees not to assert and to cause its Subsidiaries not to assert, and
hereby waives and agrees to cause its Subsidiaries to waive, all rights for
contribution or any other rights of recovery with respect to all claims,
demands, penalties, fines, liabilities, settlements, damages, costs and expenses
of whatever kind or nature, under or related to Environmental Laws, that any of
them might have by statute or otherwise against any Indemnitee. If any suit,
action, proceeding, claim or demand shall be brought or asserted against any
Indemnitee (other than the Agents) with respect to the matters covered by the
Borrower's indemnification in this Agreement, (i) such Indemnitee shall promptly
notify the Borrower thereof and (ii) to the extent not precluded by a conflict
of interest or other duties binding on it, such Indemnitee shall work
cooperatively with the Borrower with a view toward minimizing the legal and
other expenses associated with any defense and any potential settlement or
judgment, which cooperation shall include (A) the use of a single counsel
selected by such Indemnitee and reasonably acceptable to the Borrower (so long
as such Indemnitee, in its reasonable judgment, does not believe that the use of
a single counsel is not reasonably practicable or, based on the advice of
counsel, disadvantageous from a legal perspective and (B) regular consultation
with the Borrower (and, to the extent a single counsel is not used, its counsel)
upon the reasonable request of the Borrower with regard to the management of any
litigation and the negotiation of any potential settlement, in order to afford
the Borrower (and, to the extent a single counsel is not used, its counsel)
reasonable opportunities to participate in the consideration of material
decisions with respect thereto. All amounts due under this Section 9.5 shall be
payable not later than 30 days after written demand therefor (together with
reasonably detailed supporting documentation). Statements payable by the
Borrower pursuant to this Section 9.5 shall be submitted to
________________________ (Telephone No. _____________________) (Telecopy No.
______________________), at the address of the Borrower set forth in Section
9.2, or to such other Person or address as may be hereafter designated by the
Borrower in a written notice to the Administrative Agent. The agreements in this
Section 9.5 shall survive repayment of the Loans and all other amounts payable
hereunder. Notwithstanding the foregoing, any indemnification provided under
this Section 9.5 shall be without duplication of any amounts under Section 2.13
or otherwise.
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9.6 Successors and Assigns; Participations and Assignments. (a) The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns permitted hereby,
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.
(b)(i) Subject to the conditions set forth in paragraph (b)(ii) below,
any Lender may assign to one or more assignees (each, an "Assignee") 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 of:
(A) the Borrower (such consent not to be unreasonably withheld),
provided that no consent of the Borrower shall be required for an
assignment to a Lender, an Affiliate of a Lender, an Approved Fund (as
defined below) or, if an Event of Default under Section 7(a) or (f) has
occurred and is continuing, any other Person; and
(B) the Administrative Agent (such consent not to be unreasonably
withheld), provided that no consent of the Administrative Agent shall be
required for an assignment of all or any portion of a Term Loan to a
Lender, an Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a
Lender or an Approved Fund or an assignment of the entire remaining amount
of the assigning Lender's Commitments or Loans under any Facility, the
amount of the Commitments or Loans of the assigning Lender subject to each
such assignment shall not be less than $1,000,000 unless each of the
Borrower and the Administrative Agent otherwise consent, provided that (1)
no such consent of the Borrower shall be required if an Event of Default
under Section 7(a) or (f) has occurred and is continuing and (2) such
amounts shall be aggregated in respect of each Lender and its Affiliates or
Approved Funds, if any;
(B) 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, and the Borrower shall
acknowledge such Assignment and Assumption to the extent required under
Section 9.6(b)(i)(A); and
(C) the Assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an administrative questionnaire in which the Assignee
designates one or more credit contacts to whom all syndicate-level
information (which may contain material non-public information about the
Borrower and its Affiliates and their related parties or their respective
securities) will be made available and who may receive such information in
accordance with the assignee's compliance procedures and applicable laws,
including Federal and state securities law.
For the purposes of this Section 9.6, "Approved Fund" means any Person
(other than a natural person) that is engaged in making, purchasing, holding or
investing in bank loans and similar extensions of credit in the ordinary course
of its business and that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that
administers or manages a Lender.
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(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) below, 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 9.5). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section 9.6
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.
(iv) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitments of, and principal amount of the
Loans 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 and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary.
(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.
(c)(i) Any Lender may, without the consent of the Borrower or the
Administrative Agent, sell participations to one or more banks or other entities
(a "Participant") in all or a portion of such Lender's rights and obligations
under this Agreement (including all or a portion of its Commitments and the
Loans owing to it); provided that (A) such Lender's obligations under this
Agreement shall remain unchanged, (B) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (C) the Borrower, the Administrative Agent 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 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 may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver that (1) requires
the consent of each Lender directly affected thereby pursuant to the proviso to
the second sentence of Section 9.1 and (2) directly affects such Participant.
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 9.7(b)
as though it were a Lender, provided such Participant shall be subject to
Section 9.7(a) as though it were a Lender.
(ii) A Participant shall not be entitled to receive any greater
payment under Section 2.12 or 2.13 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
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Borrower's prior written consent. Any Participant that is a Non-U.S. Lender
shall not be entitled to the benefits of Section 2.13 unless such Participant
complies with Section 2.13(d) and (e).
(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.
(e) The Borrower, upon receipt of written notice from the relevant
Lender, agrees to issue Notes to any Lender requiring Notes to facilitate
transactions of the type described in paragraph (d) above.
(f) Notwithstanding the foregoing, any Conduit Lender may assign any
or all of the Loans it may have funded hereunder to its designating Lender
without the consent of the Borrower or the Administrative Agent and without
regard to the limitations set forth in Section 9.6(b). Each of the Borrower,
each Lender and the Administrative Agent hereby confirms that it will not
institute against a Conduit Lender or join any other Person in instituting
against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceeding under any state bankruptcy or similar law, for one
year and one day after the payment in full of the latest maturing commercial
paper note issued by such Conduit Lender; provided, however, that each Lender
designating any Conduit Lender hereby agrees to indemnify, save and hold
harmless each other party hereto for any loss, cost, damage or expense arising
out of its inability to institute such a proceeding against such Conduit Lender
during such period of forbearance.
9.7 Adjustments; Set-off. (a) Except to the extent that this Agreement
expressly provides for payments to be allocated to a particular Lender or to the
Lenders under the Facility, if any Lender (a "Benefitted Lender") shall, at any
time after the Loans and other amounts payable hereunder shall immediately
become due and payable pursuant to Section 7, receive any payment of all or part
of the Obligations owing to it, or receive any collateral in respect thereof
(whether voluntarily or involuntarily, by set-off, pursuant to events or
proceedings of the nature referred to in Section 7(f), or otherwise), in a
greater proportion than any such payment to or collateral received by any other
Lender, if any, in respect of the Obligations owing to such other Lender, such
Benefitted Lender shall purchase for cash from the other Lenders a participating
interest in such portion of the Obligations owing to each such other Lender, or
shall provide such other Lenders with the benefits of any such collateral, as
shall be necessary to cause such Benefitted Lender to share the excess payment
or benefits of such collateral ratably with each of the Lenders; provided,
however, that if all or any portion of such excess payment or benefits is
thereafter recovered from such Benefitted Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by
law, each Lender shall have the right, without prior notice to the Borrower, any
such notice being expressly waived by the Borrower to the extent permitted by
applicable law, upon any amount becoming due and payable by the Borrower
hereunder (whether at the stated maturity, by acceleration or otherwise), to set
off and appropriate and apply against such amount any and all deposits (general
or special, time or demand, provisional or final), in any currency, and any
other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Lender or any branch or agency thereof to or for the
credit or the account of the Borrower, as the case may be (other than amounts
held in payroll, trust and tax accounts). Each Lender agrees promptly to notify
the Borrower and the Administrative Agent after any such setoff and application
made
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by such Lender, provided that the failure to give such notice shall not affect
the validity of such setoff and application.
9.8 Counterparts. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. Delivery of an executed signature page of this Agreement by
facsimile transmission or a PDF by electronic mail shall be effective as
delivery of a manually executed counterpart hereof. A set of the copies of this
Agreement signed by all the parties shall be lodged with the Borrower and the
Administrative Agent.
9.9 Severability. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
9.10 Integration. This Agreement and the other Loan Documents
represent the entire agreement of the Borrower, the Administrative Agent and the
Lenders with respect to the subject matter hereof and thereof, and there are no
promises, undertakings, representations or warranties by the Administrative
Agent or any Lender relative to the subject matter hereof not expressly set
forth or referred to herein or in the other Loan Documents.
9.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
9.12 Submission To Jurisdiction; Waivers. The parties hereto hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which
it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the courts of
the State of New York, the courts of the United States for the Southern
District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to the
Borrower at its address set forth in Section 9.2 or at such other address
of which the Administrative Agent shall have been notified pursuant
thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to xxx in any other jurisdiction; and
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(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to
in this Section any special, exemplary, punitive or consequential damages.
9.13 Acknowledgements. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any fiduciary
relationship with or duty to the Borrower arising out of or in connection
with this Agreement or any of the other Loan Documents, and the
relationship between Administrative Agent and Lenders, on one hand, and the
Borrower, on the other hand, in connection herewith or therewith is solely
that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan Documents
or otherwise exists by virtue of the transactions contemplated hereby among
the Lenders or among the Borrower and the Lenders.
9.14 Releases of Guarantees and Liens. (a) Notwithstanding anything to
the contrary contained herein or in any other Loan Document but subject to the
Intercreditor Agreement, the Administrative Agent is hereby irrevocably
authorized by each Lender (without requirement of notice to or consent of any
Lender except as expressly required by Section 9.1) to take any action requested
by the Borrower having the effect of releasing any Collateral or guarantee
obligations (i) to the extent necessary to permit consummation of any
transaction not prohibited by any Loan Document or that has been consented to in
accordance with Section 9.1 or (ii) under the circumstances described in
paragraph (b) below.
(b) Subject to the Intercreditor Agreement, at such time as the Loans
and the other obligations under the Loan Documents (other than obligations under
or in respect of Swap Agreements) shall have been paid in full and the
Commitments have been terminated, the Collateral shall be released from the
Liens created by the Security Documents, and the Security Documents and all
obligations (other than those expressly stated to survive such termination) of
the Administrative Agent and each Loan Party under the Security Documents shall
terminate, all without delivery of any instrument or performance of any act by
any Person.
9.15 Confidentiality. Each of the Administrative Agent and each Lender
agrees to keep confidential all non-public information provided to it by any
Loan Party, the Administrative Agent or any Lender pursuant to or in connection
with this Agreement that is designated by the provider thereof as confidential;
provided that nothing herein shall prevent the Administrative Agent or any
Lender from disclosing any such information (a) to the Administrative Agent, any
other Lender or any Affiliate thereof, (b) subject to an agreement to comply
with the provisions of this Section, to any actual or prospective Transferee or
any direct or indirect counterparty to any Swap Agreement (or any professional
advisor to such counterparty), (c) to its employees, directors, agents,
attorneys, accountants and other professional advisors or those of any of its
Affiliates involved with this financing (it being understood that the
Administrative Agent, such Lender or such Affiliate, as the case may be, shall
be responsible for the compliance with the provisions hereof by their respective
officers, directors, employees and agents), (d) upon the request or demand of
any Governmental Authority, (e) in response to any order of any court or other
Governmental Authority or as may otherwise be required pursuant to any
Requirement of Law (it being understood that, to the extent permitted, the
Administrative Agent or such Lender shall give prompt notice to the Borrower of
such disclosure), (f) if requested or required to do so in connection with any
73
litigation or similar proceeding (it being understood that, to the extent
permitted, the Administrative Agent or such Lender shall give prompt notice to
the Borrower of such disclosure), (g) that has been publicly disclosed other
than as a result of a breach by the Administrative Agent or such Lender, as the
case may be, of this Section 9.15, (h) to the National Association of Insurance
Commissioners or any similar organization or any nationally recognized rating
agency that requires access to information about a Lender's investment portfolio
in connection with ratings issued with respect to such Lender, or (i) if
reasonably required in order to exercise any remedy hereunder or under any other
Loan Document.
Each Lender acknowledges that information furnished to it pursuant to
this Agreement may include material non-public information concerning the
Borrower and its Affiliates and their related parties or their respective
securities, and confirms that it has developed compliance procedures regarding
the use of material non-public information and that it will handle such material
non-public information in accordance with those procedures and applicable law,
including Federal and state securities laws.
All information, including requests for waivers and amendments,
furnished by the Borrower or the Administrative Agent pursuant to, or in the
course of administering, this Agreement will be syndicate-level information,
which may contain material non-public information about the Borrower and its
Affiliates and their related parties or their respective securities.
Accordingly, each Lender represents to the Borrower and the Administrative Agent
that it has identified in its administrative questionnaire a credit contact who
may receive information that may contain material non-public information in
accordance with its compliance procedures and applicable law, including Federal
and state securities laws.
9.16 Intercreditor Agreement. Each Lender acknowledges that it has
received and reviewed a copy of the Intercreditor Agreement and has agreed to
the terms thereof. Each Lender hereby authorizes and directs JPMorgan Chase
Bank, N.A. (in its capacity as Administrative Agent) to enter into the
Intercreditor Agreement on behalf of the Lender.
9.17 WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT AND
THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
AND FOR ANY COUNTERCLAIM THEREIN.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
VISTEON CORPORATION
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Treasurer
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent and as a Lender
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
CITICORP USA, INC.,
as Syndication Agent and as a Lender
By: /s/ Xxxxxxx Xxxx
------------------------------------
Name: Xxxxxxx Xxxx
Title: Director
Signature Page to the Credit Agreement
