Exhibit 10.3
AMENDED AND RESTATED FIVE-YEAR TERM LOAN
CREDIT AGREEMENT
DATED AS OF JUNE 24, 2005
AMONG
VISTEON CORPORATION, AS BORROWER,
OASIS HOLDINGS STATUTORY TRUST,
AS SPECIAL PURPOSE BORROWER
THE SEVERAL BANKS
FROM TIME TO TIME PARTIES HERETO,
JPMORGAN CHASE BANK, N.A.
AS ADMINISTRATIVE AGENT,
AND
CITICORP USA, INC.,
AS SYNDICATION AGENT
---------------------
X.X. XXXXXX SECURITIES INC. AND
CITIGROUP GLOBAL MARKETS INC.,
AS JOINT LEAD ARRANGERS AND JOINT BOOKRUNNERS
TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS...................................................................................... 1
SECTION 2. THE LOANS........................................................................................ 22
2.1 The Commitment; Commitment Termination Date...................................................... 22
2.2 Proceeds of Loans................................................................................ 22
2.3 Commitment Fee................................................................................... 22
2.4 Exchange Rates................................................................................... 23
2.5 Optional Termination or Reduction of Commitments................................................. 23
2.6 Notice of Borrowing; Procedure................................................................... 23
2.7 Extension of Term of Loans; Conversion of Loans.................................................. 24
2.8 Register......................................................................................... 26
2.9 Interest Rates................................................................................... 27
2.10 Interest Payment Dates.......................................................................... 27
2.11 Overdue Principal and Interest.................................................................. 27
2.12 Dates for Payment or Optional Prepayment of Principal........................................... 28
2.13 Optional and Mandatory Prepayments; Reimbursement for Certain Costs............................. 28
2.14 Method of Payment............................................................................... 30
2.15 Pro Rata Treatment and Payments................................................................. 30
2.16 Indemnity....................................................................................... 31
SECTION 3. GUARANTEE OF LOANS TO AFFILIATES AND THE SPECIAL PURPOSE BORROWER................................ 32
SECTION 4. CONDITIONS TO LOANS.............................................................................. 33
4.1 Each Loan to the Company, an Affiliate or the Special Purpose Borrower........................... 33
4.2 Effectiveness of this Agreement; Loans to the Company, an Affiliate or the Special
Purpose Borrower................................................................................. 35
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.................................................... 39
5.1 Financial Condition.............................................................................. 39
5.2 No Change........................................................................................ 40
5.3 Existence; Compliance with Law................................................................... 40
5.4 Power; Authorization; Enforceable Obligations.................................................... 40
5.5 No Legal Bar..................................................................................... 41
5.6 Litigation....................................................................................... 41
5.7 No Default....................................................................................... 41
5.8 Ownership of Property; Liens..................................................................... 41
5.9 Intellectual Property............................................................................ 42
PAGE
----
5.10 Taxes........................................................................................... 42
5.11 Federal Regulations............................................................................. 42
5.12 Labor Matters................................................................................... 42
5.13 ERISA........................................................................................... 43
5.14 Investment Company Act; Other Regulations....................................................... 43
5.15 Subsidiaries.................................................................................... 43
5.16 Use of Proceeds................................................................................. 43
5.17 Environmental Matters........................................................................... 44
5.18 Accuracy of Information, etc.................................................................... 45
5.19 Security Documents.............................................................................. 45
5.20 Copyrights...................................................................................... 46
SECTION 6. AFFIRMATIVE COVENANTS............................................................................ 46
6.1 Financial Statements............................................................................. 46
6.2 Certificates; Other Information.................................................................. 47
6.3 Payment of Obligations........................................................................... 48
6.4 Maintenance of Existence; Compliance............................................................. 48
6.5 Maintenance of Property; Insurance............................................................... 49
6.6 Inspection of Property; Books and Records; Discussions........................................... 49
6.7 Notices.......................................................................................... 49
6.8 Environmental Laws............................................................................... 50
6.9 Additional Collateral, etc....................................................................... 50
6.10 Post-Closing Matters............................................................................ 52
SECTION 7. NEGATIVE COVENANTS............................................................................... 53
7.1 Consolidated Leverage Ratio...................................................................... 53
7.2 Indebtedness..................................................................................... 54
7.3 Liens............................................................................................ 55
7.4 Fundamental Changes.............................................................................. 56
7.5 Disposition of Property.......................................................................... 57
7.6 Restricted Payments.............................................................................. 58
7.7 Capital Expenditures............................................................................. 58
7.8 Investments...................................................................................... 58
7.9 Optional Payments and Modifications of Certain Debt Instruments.................................. 60
7.10 Transactions with Affiliates.................................................................... 61
7.11 Sales and Leasebacks............................................................................ 61
7.12 Swap Agreements................................................................................. 61
7.13 Changes in Fiscal Periods....................................................................... 61
7.14 Negative Pledge Clauses......................................................................... 61
7.15 Clauses Restricting Subsidiary Distributions.................................................... 62
7.16 Modifications to the MOU; Ford Loan............................................................. 62
7.17 Business of Visteon International Holdings, Inc................................................. 62
7.18 Cash Management................................................................................. 63
- ii -
PAGE
----
SECTION 8. DEFAULT.......................................................................................... 63
8.1 Defaults Relating to the Group Members........................................................... 63
8.2 Defaults Relating to Bankruptcy of the Group Members............................................. 65
SECTION 9. ASSIGNMENT; PARTICIPATIONS....................................................................... 67
9.1 Successors and Assigns; Participations and Assignments........................................... 67
9.2 Assignment by the Company, Affiliates or Special Purpose Borrower................................ 70
SECTION 10. CHANGE IN CIRCUMSTANCES.......................................................................... 70
10.1 Basis for Determining Interest Rate Inadequate or Unfair......................................... 70
10.2 Illegality....................................................................................... 71
10.3 Increased Cost................................................................................... 71
10.4 Taxes............................................................................................ 73
10.5 Replacement of Banks............................................................................. 75
SECTION 11. THE AGENTS....................................................................................... 76
11.1 Appointment...................................................................................... 76
11.2 Delegation of Duties............................................................................. 76
11.3 Exculpatory Provisions........................................................................... 76
11.4 Reliance by Administrative Agent................................................................. 77
11.5 Notice of Default................................................................................ 77
11.6 Non-Reliance on Agents and Other Banks........................................................... 77
11.7 Indemnification.................................................................................. 78
11.8 Agent in Its Individual Capacity................................................................. 78
11.9 Successor Administrative Agent................................................................... 79
11.10 Syndication Agent................................................................................ 79
SECTION 12. MISCELLANEOUS.................................................................................... 79
12.1 Notices.......................................................................................... 79
12.2 Term of Agreement................................................................................ 80
12.3 No Waivers....................................................................................... 80
12.4 New York Law and Jurisdiction.................................................................... 80
12.5 Entire Agreement................................................................................. 81
12.6 Payment of Certain Expenses...................................................................... 81
12.7 [Reserved]....................................................................................... 82
12.8 Changes, Waivers, etc.; Adjustments.............................................................. 82
12.9 Severability..................................................................................... 83
12.10 Successors and Assigns.......................................................................... 84
12.11 Counterparts.................................................................................... 84
12.12 Third Party Beneficiaries....................................................................... 84
12.13 Electronic Recording............................................................................ 84
12.14 USA Patriot Act................................................................................. 84
12.15 Intercreditor Agreement......................................................................... 84
12.16 Reserved........................................................................................ 84
- iii -
PAGE
----
12.17 Waiver of Jury Trial............................................................................ 84
12.18 Effect of Amendment and Restatement of the Existing Five-Year Term Loan Agreement............... 85
12.19 Release of Guarantees and Liens................................................................. 85
12.20 Nature of Special Purpose Borrower's Obligations; Limitation on Liability; Survival............. 85
Schedule 1.1A Commitments
Schedule 1.1B Mortgaged Properties
Schedule 1.1C MOU Properties
Schedule 1.1D Subsidiary Guarantors
Schedule 5.1 Restatement Issues
Schedule 5.4 Consents
Schedule 5.6 Litigation
Schedule 5.15 Subsidiaries
Schedule 5.19(a) UCC Filings
Schedule 5.19(b) Mortgage Filings
Schedule 6.10(a) Post-Closing Matters - Pledged Stock
Schedule 7.2(d) Existing Guarantee Obligations
Schedule 7.2(e) Existing Indebtedness of Foreign Subsidiaries
Schedule 7.2(h) Existing Permitted Receivables Financings of Foreign Subsidiaries
Schedule 7.2(o) Existing Indebtedness of Non-Wholly Owned Subsidiaries
Schedule 7.3(n) Existing Liens
Schedule 7.6(d) Share Repurchases Pursuant to Employee Programs
Schedule 7.8(l) Existing Investments
Schedule 7.15 Existing Restrictions
Exhibit A Form of Accession Memorandum
Exhibit B Form of Assignment and Acceptance
Exhibit C Form of Compliance Certificate
Exhibit D Notices
Exhibit E Form of Guarantee and Collateral Agreement
Exhibit F Form of Mortgage
Exhibit G Form of Notice of Borrowing
Exhibit H Form of Closing Certificate
Exhibit I-1 Form of Legal Opinion of Xxxxxxxxx Xxxxxx PLLC
Exhibit I-2 Form of Legal Opinion of Xxxxxxx Xxxx LLP
- iv -
AMENDED AND RESTATED FIVE-YEAR TERM LOAN CREDIT AGREEMENT
This AMENDED AND RESTATED FIVE-YEAR TERM LOAN CREDIT AGREEMENT, dated as
of June 24, 2005, is among VISTEON CORPORATION, a Delaware corporation (the
"Company"), Oasis Holdings Statutory Trust ("Oasis"), the several banks and
other financial institutions or entities from time to time parties to this
Agreement (the "Banks"), JPMORGAN CHASE BANK, N.A., as administrative agent (the
"Administrative Agent"), and CITICORP USA, INC., as syndication agent (the
"Syndication Agent").
WHEREAS, the Company has entered into a Memorandum of Understanding (the
"MOU") with Ford Motor Company ("Ford") pursuant to which, among other things,
(a) the Company and Ford set forth certain agreements with respect to the
ongoing business relationship between the Company and Ford and their respective
subsidiaries, including the timing for the payment of receivables to the Company
and its subsidiaries, (b) Ford agreed to purchase certain assets and assume
certain liabilities from the Company and (c) Ford agreed to make available a
loan to the Company in the amount of up to $250,000,000 upon the execution of
final documentation with respect to the MOU;
WHEREAS, the Company, certain of the Banks, the Administrative Agent and
Bank of America N.A., as syndication agent are parties to the Five-Year Term
Loan Agreement dated June 25, 2002 (as amended, the "Existing Five-Year Term
Loan Agreement");
WHEREAS, Oasis became party to the Existing Five-Year Term Loan Agreement
through an Accession Memorandum dated as of October 31, 2002;
WHEREAS, pursuant to the Existing Five-Year Term Loan Agreement, certain
of the Banks have made loans to Oasis as a Special Purpose Borrower;
WHEREAS, in connection with the transactions contemplated by the MOU, the
Company has requested that the Existing Five-Year Term Loan Agreement be amended
and restated in the manner provided for herein; and
WHEREAS, the parties hereto hereby agree that, subject to the satisfaction
of the conditions set forth in Section 4, the Existing Five-Year Term Loan
Agreement is hereby amended and restated in its entirety to read as follows;
NOW THEREFORE, the parties hereto hereby agree that, subject to Section 4,
the Existing Five-Year Term Loan Agreement is hereby amended and restated in its
entirety as follows:
SECTION 1. DEFINITIONS
The following terms, as used herein, have the following respective
meanings:
"Accession Memorandum" means a memorandum of any Affiliate or a Special
Purpose Borrower substantially in the form of Exhibit A hereto evidencing the
agreement of the Affiliate or Special Purpose Borrower to be bound by the terms
of this Agreement; provided that such a
2
memorandum shall contain such changes or additional provisions as may be deemed
necessary by mutual agreement of the Administrative Agent, Company, and the
Affiliate or Special Purpose Borrower, as applicable.
"Adjusted Balance Sheet" has the meaning set forth in Section 4.2(d).
"Administrative Agent" has the meaning set forth in the preamble.
"Affiliate" means any direct or indirect majority-owned subsidiary of the
Company and any partnership of which the Company or a direct or indirect
majority-owned subsidiary of the Company is a general or unlimited partner. For
purposes of this definition, "majority-owned" means ownership of more than 50%
of the capital stock of or other equity interest in, or more than 50% of the
voting power with respect to, an entity.
"Agents" means the Administrative Agent and the Syndication Agent
collectively.
"Aggregate Exposure" means, with respect to any Bank at any time, an
amount equal to the principal amount of such Bank's Loans then outstanding plus
the amount of such Bank's Available Commitment then in effect or, if the
Commitments have been terminated, the principal amount of the Loans held by such
Bank then outstanding.
"Aggregate Exposure Percentage" means, with respect to any Bank at any
time, the ratio (expressed as a percentage) of such Bank's Aggregate Exposure at
such time to the Aggregate Exposure of all Banks at such time.
"Aggregate Loans" means the total principal amount of all outstanding
Loans.
"Agreement" means this Amended and Restated Five-Year Term Loan Credit
Agreement, together with the exhibits hereto, as amended from time to time.
"Amended and Restated Five-Year Revolving Credit Agreement" means the
Amended and Restated Five-Year Revolving Loan Credit Agreement dated as of the
date hereof among the Company, the several banks from time to time parties
thereto, JPMorgan Chase Bank, N.A., as administrative agent, and Citicorp USA,
Inc., as syndication agent, as amended from time to time.
"Approved Fund" has the meaning set forth in Section 9.1.
"Arrangers" means the collective reference to X.X. Xxxxxx Securities Inc.
and Citigroup Global Markets Inc.
"Asset Sale" means any Disposition of property or series of related
Dispositions of property (excluding any such Disposition permitted by clauses
(a) through (e) and (g) of Section 7.5) 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 $1,000,000.
3
"Assignment and Acceptance" means an Assignment and Acceptance,
substantially in the form of Exhibit B.
"Availability Period" means the period from and including the Effective
Date to the Commitment Termination Date.
"Available Commitment" means as to any Bank at any time during the
Availability Period, an amount equal to the excess, if any, of (a) such Bank's
Commitment then in effect over (b) the aggregate principal amount of such Bank's
Loans then outstanding.
"Bank Facilities Secured Parties" has the meaning set forth in the
Intercreditor Agreement.
"Banks" has the meaning provided in the preamble hereto; provided, that
unless the context otherwise requires, each reference herein to the Banks shall
be deemed to include any Conduit Bank.
"Bank's Actual Reserve Cost" has the meaning set forth in Section 10.3(b).
"Base Rate" means for any day the greater of (i) an annual rate of
interest equal to that announced generally from time to time by the
Administrative Agent at its Domestic Lending Office as its prime rate, base rate
or equivalent rate and in effect on such day and (ii) the Federal Funds
Effective Rate plus 0.50%.
"Base Rate Loan" means any Loan hereunder denominated in United States
dollars which the Company (on behalf of itself or an Affiliate) or the Special
Purpose Borrower specifies pursuant to Section 2.6 or Section 2.7 as a Base Rate
Loan.
"Base Rate Margin" means 3.50%.
"Benefitted Bank" has the meaning set forth in Section 12.8(b).
"Borrowing" means a borrowing hereunder consisting of a Loan made to the
Company, any Affiliate or the Special Purpose Borrower by any Bank. A Borrowing
is a "Domestic Borrowing" if such Loan is a Domestic Loan or a "Eurodollar
Borrowing" if such Loan is a Eurodollar Loan.
"Business" has the meaning set forth in Section 5.17(b).
"Calculation Date" means, with respect to any monetary limitations set
forth in Section 7 (other than Section 7.1), the date of any action taken
pursuant to Section 7 (other than Section 7.1) which is subject to such monetary
limitations but solely for purposes of Section 8.1(c).
"Capital Expenditures" means 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.
4
"Capital Lease Obligations" means 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" means 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" means (a) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition; (b)
certificates of deposit, time deposits, eurodollar time deposits or overnight
bank deposits having maturities of six months or less from the date of
acquisition issued by any Bank 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 $500,000,000; (c) commercial paper of an issuer rated
at least A-1 by S&P or P-1 by Xxxxx'x, or carrying an equivalent rating by a
nationally recognized rating agency, if both of the two named rating agencies
cease publishing ratings of commercial paper issuers generally, and maturing
within six months from the date of acquisition; (d) repurchase obligations of
any Bank or of any commercial bank satisfying the requirements of clause (b) of
this definition, having a term of not more than 30 days, with respect to
securities issued or fully guaranteed or insured by the United States
government; (e) securities with maturities of one year or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or territory
of the United States, by any political subdivision or taxing authority of any
such state, commonwealth or territory or by any foreign government, the
securities of which state, commonwealth, territory, political subdivision,
taxing authority or foreign government (as the case may be) are rated at least A
by S&P or A by Xxxxx'x; (f) securities with maturities of six months or less
from the date of acquisition backed by standby letters of credit issued by any
Bank or any commercial bank satisfying the requirements of clause (b) of this
definition; (g) money market mutual or similar funds that invest exclusively in
assets satisfying the requirements of clauses (a) through (f) of this
definition; 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 Xxxxx'x and (iii) have portfolio assets of
at least $5,000,000,000.
"Change of Control" means (i) more than 50% in voting power of the voting
securities of the Company shall be held by any person or persons who "act as a
partnership, limited partnership, syndicate or other group for the purpose of
acquiring, holding or disposing of securities" of the Company within the meaning
of Section 13(d)(3) of the Securities Exchange Act of 1934, or (ii) persons
whose election to the Board of Directors shall not have been recommended by the
committee of the Board of Directors charged with such recommendations shall
constitute a majority of the members of the Board of Directors of the Company.
5
"CNTA Exception" means the exception set forth in Section 4.06 of the
Existing Indenture providing that the Company and certain of its Subsidiaries
may issue or assume 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 Company and certain
of its 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.
"Collateral" means all property of the Loan Parties, now owned or
hereafter acquired, upon which a Lien is purported to be created by any Security
Document.
"Collateral Agent" means JPMorgan Chase Bank, N.A. and its successors and
assigns in its capacity as Collateral Agent under the Intercreditor Agreement.
"Commitment" means, as to any Bank, the obligation of such Bank, if any,
to make Loans during the Availability Period in an aggregate principal amount
not to exceed the amount set forth under the heading "Commitment" opposite such
Bank's name on Schedule 1.1A or in the Assignment and Acceptance pursuant to
which such Bank became a party hereto, as the same may be changed from time to
time pursuant to the terms hereof.
"Commitment Fee" has the meaning set forth in Section 2.3(a).
"Commitment Quarter" means each three-month period ending on September 30,
December 31, March 31 and June 30 which falls (in whole or in part) within the
Availability Period.
"Commitment Termination Date" has the meaning set forth in Section 2.1(b).
"Commonly Controlled Entity" means an entity, whether or not incorporated,
that is under common control with the Company within the meaning of Section 4001
of ERISA or is part of a group that includes the Company and that is treated as
a single employer under Section 414 of the Code.
"Compliance Certificate" means a certificate duly executed by a
Responsible Officer substantially in the form of Exhibit C.
"Conduit Bank" means any special purpose corporation organized and
administered by any Bank for the purpose of making Loans otherwise required to
be made by such Bank and designated by such Bank in a written instrument;
provided, that the designation by any Bank of a Conduit Bank shall not relieve
the designating Bank of any of its obligations to fund a Loan under this
Agreement if, for any reason, its Conduit Bank fails to fund any such Loan, and
the designating Bank (and not the Conduit Bank) shall have the sole right and
responsibility to deliver all consents and waivers required or requested under
this Agreement with respect to its Conduit Bank, and provided, further, that no
Conduit Bank shall (a) be entitled to receive any greater amount pursuant to
Section 2.13, 10.3, 10.4 or 12.6 than the designating Bank would
6
have been entitled to receive in respect of the extensions of credit made by
such Conduit Bank or (b) be deemed to have any Commitment.
"Confidential Information Memorandum" means the Confidential Information
Memorandum dated June 2005 and furnished to certain Banks.
"Consolidated EBIT" means, 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 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 tax expense, (b) interest expense, (c) amortization or writeoff of debt
discount and debt issuance costs and commissions, discounts and other fees and
charges associated with Indebtedness (including the Loans), (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) an aggregate amount of up to $34,000,000 for, without
duplication, the reserve or the write-off of a receivable from an existing
customer currently in financial distress (net of any reserves taken for such
write-off), (h) charges subject to Pending Reimbursements from Ford which have
not yet been reimbursed prior to the end of such period and (i) with respect to
any discontinued operation, any loss resulting therefrom; and minus, to the
extent included in the statement of such Consolidated Net Income for such
period, the sum of (i) to the extent included in the statement of such
Consolidated Net Income for such period, any non-recurring income or gains or
(ii) with respect to any discontinued operation, any gain resulting therefrom,
all 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, Consolidated EBITDA for such
period shall be calculated after giving pro forma effect to such Material
Acquisition or Material Disposition as if such Material Acquisition or Material
Disposition occurred on the first day of such four quarter period.
"Consolidated Leverage Ratio" means 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" means for any period, the consolidated net
income (or loss) of the Company and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Tangible Assets" means, as calculated in accordance with
GAAP, as of the date of determination, all amounts that would be set forth the
caption "total assets" (or any like caption) on a consolidated balance sheet of
the Company 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 Company and its consolidated
Subsidiaries.
7
"Consolidated Total Debt" means, as of any date and without duplication,
(i) the aggregate principal amount of all Debt of the Company and its
Subsidiaries on a consolidated basis minus (ii) Consolidated Total Net Cash up
to an aggregate amount of $900,000,000 as of such date, minus (iii) any Pending
Reimbursement from Ford which has not yet been reimbursed as of such date.
"Consolidated Total Net Cash" means, as of any date, all amounts that
would, in conformity with GAAP, be set forth opposite the caption "cash and cash
equivalents" (or any like caption) on a consolidated balance sheet of the
Company and its Subsidiaries at such date.
"Contractual Obligation" means, 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" means assets used to manufacture or produce goods for sale
in climate control, interiors and electronics lines of business.
"Debt" means, 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" means any of the events set forth in Section 8.1 and 8.2,
whether or not any requirement for the giving of notice, the lapse of time, or
both, has been satisfied.
"Disposition" means, 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.
"Domestic Business Day" means any day, except a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or obligated by
law or regulation to close.
"Domestic Funding Office" means the office of the Administrative Agent
specified in Exhibit B hereto or such other office as may be specified from time
to time by the Administrative Agent by written notice to the Company, the
Special Purpose Borrower and the Banks as its funding office for the purpose of
funding or payment of Domestic Loans.
"Domestic Lending Office" means, as to any Bank, the office, branch or
affiliate of such Bank in the continental United States as it may from time to
time designate as the Domestic Lending Office by notice to the Administrative
Agent.
"Domestic Loan" means any Loan made pursuant to Section 2.1 which the
Company (on behalf of itself or an Affiliate) or the Special Purpose Borrower
specifies pursuant to Section 2.6 or Section 2.7 as a Base Rate Loan.
8
"Domestic Subsidiary" means any Subsidiary of the Company organized under
the laws of any jurisdiction within the United States.
"Effective Date" means June 24, 2005.
"Environmental Laws" means any and all foreign, Federal, state, local or
municipal laws, rules, 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, natural resources or
the environment, as now or may at any time hereafter be in effect.
"ERISA" means the Employee Retirement Income Security Act of 1974 of the
United States, as amended.
"Eurodollar Business Day" means any day, except a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or obligated
by law or regulation to close, on which commercial banks in New York City are
open for trading in United States dollar deposits in the interbank eurodollar
market.
"Eurodollar Funding Office" means the office of the Administrative Agent
specified in Exhibit D hereto or such other office as may be specified from time
to time by the Administrative Agent by written notice to the Company, the
Special Purpose Borrower and the Banks as its funding office for the purpose of
funding or payment of Eurodollar Loans.
"Eurodollar Lending Office" means, as to any Bank, the office, branch or
affiliate of such Bank office, branch or affiliate of such Bank as it may from
time to time designate as the Eurodollar Lending Office by notice to the
Administrative Agent.
"Eurodollar Loan" means any Loan made pursuant to Section 2.1 which the
Company (on behalf of itself or an Affiliate) or the Special Purpose Borrower
specifies pursuant to Section 2.6 or Section 2.7 as a Eurodollar Loan.
"Eurodollar Margin" means 4.5%.
"Exchange Rate" means on any day, with respect to any currency, the rate
at which such currency may be exchanged into any other currency, as set forth at
approximately 11:00 a.m., London time, on such date on the Reuters World
Currency Page for such currency. In the event that such rate does not appear on
any Reuters World Currency Page, the Exchange Rate shall be determined by
reference to such other publicly available service for displaying exchange rates
as may be selected by the Administrative Agent, or, in the event no such service
is selected, such Exchange Rate shall instead be the arithmetic average of the
spot rates of exchange of the Administrative Agent in the market where its
foreign currency exchange operations in respect of such currency are then being
conducted, at or about 10:00 a.m., local time, on such date for the purchase of
the relevant currency for delivery two Foreign Currency Business Days later;
provided that if at the time of any such determination, for any reason, no such
spot rate is being quoted, the Administrative Agent, after consultation with the
Company, may use any reasonable
9
method it deems appropriate to determine such rate, and such determination shall
be presumed correct absent manifest error.
"Existing Receivables Purchase and Sale Agreements" means (a) the
Receivables Purchase Agreement among Visteon Receivables LLC, as Seller, Visteon
Corporation, as Servicer, Jupiter Securitization Corporation, the financial
institutions from time to time parties thereto and JPMorgan Chase Bank, N.A., as
Agent and (b) the Receivables Sale Agreement among Visteon Corporation and
Visteon Systems, LLC, as Originators and Visteon Receivables LLC, as Buyer, in
each case, as amended prior to the date hereof.
"Existing Securitization Facility" means the existing receivables
securitization facility under the Existing Receivables Purchase and Sale
Agreements.
"Event of Default" means any of the events specified in Section 8.1,
provided that any requirement for the giving of notice, the lapse of time, or
both, has been satisfied.
"Event of Default - Bankruptcy" means any of the events specified in
Section 8.2, provided that any requirement for the giving of notice, the lapse
of time, or both, has been satisfied.
"Excepted Secured Debt Amount" means, 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 Company available to the Collateral
Agent.
"Excluded Entities" means Atlantic Automotive Components, LLC,
Lextron-Visteon Automotive Systems, LLC, Lextron-Visteon Leasing, LLC, Toledo
Mold & Die, Inc., AutoNeural Systems, LLC and MIG-Visteon Automotive Systems,
LLC and any other Subsidiary created after the Effective 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.
"Existing Five-Year Term Loan Agreement" has the meaning set forth in the
recitals to this Agreement.
"Existing Indenture" means the Amended and Restated Indenture between the
Company and X.X. Xxxxxx Trust Company, National Association, dated as of March
10, 2004, as in effect as of the date hereof.
"Federal Funds Effective Rate" means 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 Domestic Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a Domestic Business Day, the
average of the quotations for the day of such transactions received by JPMorgan
Chase Bank from three federal funds brokers of recognized standing selected by
it.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System of the United States, or any successor thereto.
10
"Fee Payment Date" means each of (a) the tenth Domestic Business Day
following the last day of each Commitment Quarter and (b) the Commitment
Termination Date.
"Ford" means Ford Motor Company.
"Ford Loan" means the loan by Ford to the Company in an amount of up to
$250,000,000 as contemplated by Section 14 of the MOU.
"Ford Loan Documentation" means the definitive documentation governing the
Ford Loan executed pursuant to the MOU.
"Foreign Currency Business Day" means any day, except a Saturday, Sunday
or other day on which the commercial banks in London, England are authorized or
obligated by law or regulation to close, on which the commercial banks in
London, England are open for international business (including dealings in
deposits in the relevant currency in the interbank eurocurrency market),
provided that when used in connection with Foreign Currency Loans denominated in
euros, the term "Foreign Currency Business Day" shall also exclude any day on
which the Trans-European Automated Real-Time Gross Settlement Express Transfer
System (TARGET) (or, if such clearing system ceases to be operative, such other
clearing system (if any) determined by the Administrative Agent to be a suitable
replacement) is not open for settlement of payment in euros.
"Foreign Subsidiary" means any Subsidiary of the Company that is not a
Domestic Subsidiary.
"GAAP" means generally accepted accounting principles in the United States
as applied to the Company.
"Governmental Authority" means 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" means the collective reference to the Company and its
Subsidiaries and the Special Purpose Borrower.
"Guarantee" means the guarantee and other obligations of the Company set
forth in Section 3.
"Guarantee and Collateral Agreement" means the Guarantee and Collateral
Agreement to be executed and delivered by the Company and each Subsidiary
Guarantor, substantially in the form of Exhibit E.
"Guarantee Obligation" means, 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)
11
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 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 Company in good
faith.
"Guaranteed Affiliate Obligations" has the meaning set forth in Section
3(a).
"Immaterial Subsidiary" means a Subsidiary other than a Material
Subsidiary.
"Indebtedness" means, 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 incurred in the ordinary course of
such Person's business), (c) all obligations of such Person evidenced by notes,
bonds, debentures or other similar instruments, (d) all indebtedness 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 bank 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, standby 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 8.1(e) only, all
obligations of such Person in respect of Swap Agreements. 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
12
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.
"Indemnified Liabilities" has the meaning set forth in Section 12.6(d).
"Indemnitee" has the meaning set forth in Section 12.6(d).
"Insolvency" means with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent" means pertaining to a condition of Insolvency.
"Intellectual Property" means 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.
"Intercreditor Agreement" means the Intercreditor Agreement dated the date
hereof among the Collateral Agent, the Company, each Subsidiary Guarantor, the
Administrative Agent and the administrative agents under each of the Short-Term
Credit Agreement and the Amended and Restated Five-Year Revolving Credit
Agreement, as the same may amended from time to time.
"Interest Period" means with respect to each Eurodollar Loan:
(a) initially, the period commencing on the date of Borrowing with
respect to such Loan (or in the case of a Loan which has been
converted into a Eurodollar Loan, on the date specified in Section
2.7) and ending one, two, three or six months (or, to the extent
available to all Banks, one or two weeks), thereafter, as the
Company (on behalf of itself or an Affiliate) or the Special Purpose
Borrower may elect pursuant to Section 2.6 or Section 2.7; and
(b) thereafter, each period commencing on the last day of the next
preceding Interest Period for such Borrowing and ending one, two,
three or six months (or, to the extent available to all Banks, one
or two weeks) thereafter, as the Company (on behalf of itself or an
Affiliate) or the Special Purpose Borrower may elect pursuant to
Section 2.7;
provided, however, that:
(i) any such Interest Period which would otherwise end on a
day which is not a Eurodollar Business Day shall be extended to the
next succeeding Eurodollar Business Day unless such Eurodollar
Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Eurodollar Business
Day;
13
(ii) any such Interest Period which begins on the last
Eurodollar 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 a day which is the
last Eurodollar Business Day of the applicable calendar month; and
(iii) neither the Company (on behalf of itself or an
Affiliate) nor the Special Purpose Borrower may elect an Interest
Period that would end later than the Maturity Date.
"Investment Basket" has the meaning set forth in Section 7.8(j).
"LIBO Rate" means with respect to any Eurodollar Loan for any Interest
Period, the London interbank offered rate for deposits in United States dollars
appearing on Telerate Page 3750 as of 11:00 a.m. (London, England time) two
Eurodollar Business Days prior to the beginning of such Interest Period for the
period commencing on the date of such Eurodollar Loan and ending on a maturity
date comparable to that of the applicable Interest Period. In the event that
such rate does not appear on Page 3750 of the Telerate screen, the "LIBO 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 deposits in identical currencies at or about
11:00 a.m., New York City time, two Eurodollar 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.
"Lien" means any mortgage, pledge, lien, security interest, conditional
sale or other title retention agreement or other similar encumbrance.
"Loan" means any Domestic Loan or Eurodollar Loan.
"Loan Documents" means this Agreement, each Accession Memorandum, the
Security Documents, the Intercreditor Agreement, the Notes and any amendment,
waiver, supplement or other modification to any of the foregoing.
"Loan Party" means any Group Member party to a Loan Document; provided
that any Affiliate borrower hereunder shall not be a Loan Party for the purposes
of Section 6.9 and Section 7.
"Mandatory Cost Rate" has the meaning set forth in Section 10.3(a).
"Material Acquisition" means any one or more 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 Company in accordance with GAAP and
that involve the payment of consideration (including, without limitation, the
assumption of debt) by the Company and its Subsidiaries in excess of $25,000,000
in the aggregate during any fiscal quarter of the Company.
14
"Material Adverse Effect" means a material adverse effect on (a) the
business, operations, property or financial condition of the Company and its
Subsidiaries taken as a whole, or (b) the validity or enforceability of this
Agreement or any other Loan Document or the rights and remedies of the
Administrative Agent or the Banks hereunder or thereunder; provided that events,
developments and circumstances disclosed in the Company's most recent public
filings on forms 10-K and 10-Q or on any subsequent filing on Form 8-K as of the
date which is five Business Days prior to the Effective Date (it being
understood that the Company shall notify the Banks of all public filings through
such date) and in the Confidential Information Memorandum (and any shareholders'
litigation arising out of such disclosed matters) shall not be considered to
have such a material adverse effect (although subsequent events, developments
and circumstances relating to such disclosed matters which reveal material
adverse changes in such disclosed matters may be considered in determining
whether such subsequent events, developments and circumstances have had or could
reasonably be expected to have a Material Adverse Effect); and provided further
that any non-cash impairment charges with respect to the valuation of the assets
of the Company and its Subsidiaries previously disclosed to the Banks shall not,
in and of themselves, constitute a Material Adverse Effect.
"Material Disposition" means any one or more dispositions by the Company
or a Subsidiary of any business entity or entities, or of any operating unit or
units of the Company or a Subsidiary, that become unconsolidated with the
Company in accordance with GAAP and that involve the receipt of consideration by
the Company and its Subsidiaries in excess of $25,000,000 in the aggregate
during any fiscal quarter of the Company; provided that the dispositions made in
connection with the MOU Transactions shall not be considered Material
Dispositions.
"Material Group Members" means all Group Members other than Immaterial
Subsidiaries (it being understood that "Material Group Members" shall include
all Affiliate borrowers hereunder and the Special Purpose Borrower).
"Material Subsidiary" any Subsidiary of the Company with revenues of more
than 10% of the consolidated revenues of the Company and its Subsidiaries and
Consolidated EBIT of more than 0% as of the last fiscal year for which financial
statements have been delivered.
"Materials of Environmental Concern" means 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, or that could result in the imposition of liability under, any
Environmental Law, including asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation.
"Maturity Date" means June 25, 2007.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Mortgaged Properties" means the real properties listed on Schedule 1.1B
and any other real properties with respect to which the Collateral Agent for the
benefit of the Bank Facilities Secured Parties shall be granted a Lien pursuant
to a Mortgage in accordance with Section 6.9, as
15
to which the Collateral Agent for the benefit of the Bank Facilities Secured
Parties shall be granted a Lien pursuant to the Mortgages.
"Mortgages" means each of the mortgages and deeds of trust made by any
Loan Party in favor of, or for the benefit of, the Collateral Agent for the
benefit of the Bank Facilities Secured Parties, substantially in the form of
Exhibit F (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).
"MOU" means the Memorandum of Understanding dated as of May 24, 2005
between Ford and the Company.
"MOU Documentation" means the definitive documentation executed in
connection with the MOU as contemplated by Section 1 of the MOU.
"MOU Properties" means the real properties to be transferred to Ford
pursuant to the MOU as set forth on Schedule 1.1C.
"MOU Transactions" means the collective reference to (i) the transfer of
the MOU Properties and certain associated assets from the Company to a separate
entity that will be acquired by Ford, (ii) the termination of the current
leasing arrangements for approximately 17,400 Ford-UAW employees, (iii) the
relief by Ford of the Company's remaining 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 Company 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 Company, (vi) the payment by Ford of
certain transferred inventory based on net book value at the time of the closing
of the MOU Transactions, (vii) the Ford Loan and (viii) the issuance by the
Company to Ford of warrants to purchase 25,000,000 shares of the Company's
common stock at an exercise price of $6.90 per share and (ix) any other
transactions described in the MOU.
"Multiemployer Plan" means a Plan that is a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds" means (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) 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 (b) in
connection with any incurrence of Indebtedness, the cash proceeds received from
such
16
issuance or 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.
"New Corporate Offices" has the meaning set forth in Section 5.16.
"Non-Excluded Taxes" has the meaning set forth in Section 10.4(a).
"Non-Loan Party Intercompany Debt Basket" has the meaning set forth in
Section 7.8(h).
"Non-Recourse Debt" means all Indebtedness which, in accordance with GAAP,
is not required to be recognized on a consolidated balance sheet of the Company
as a liability.
"Non-U.S. Lender": has the meaning set forth in Section 10.4(d).
"Normal Banking Hours" with respect to the Notice Office of the
Administrative Agent means the period from 9:00 a.m. to 5:00 p.m. in the time
zone in which the Notice Office is located on a Domestic Business Day.
"Note" means any promissory note evidencing Loans.
"Notice Office" means the office of the Administrative Agent in the
continental United States specified as such in Exhibit D hereto or such other
office of the Administrative Agent in the continental United States as it may
hereafter designate as the Notice Office by notice to the Company, the
Affiliates and the Special Purpose Borrower.
"Obligations" means 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 Company, any Affiliate or the
Special Purpose 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 Company, each Affiliate and the Special Purpose Borrower to
the Administrative Agent or to any Bank (or, in the case of Specified Swap
Agreements, any affiliate of any Bank), 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, any other Loan
Document, any Specified Swap Agreement, any cash management arrangements with
any Bank, or any other document made, delivered or given in connection herewith
or therewith, 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 Bank that are
required to be paid by the Company pursuant hereto) or otherwise.
"Other Securitization Assets" means, 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
17
Company or any Subsidiary in, to and under the related purchase and sale
agreements, and all other rights and payments relating to such Receivable.
"Other Taxes" means 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.
"Operative Agreement" has the meaning set forth in the definition of
Special Purpose Borrower.
"Participant" has the meaning set forth in Section 9.1.
"PBGC" means the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA (or any successor).
"Pending Reimbursement" means reimbursements for restructuring charges
taken by the Company as described in Section 13 of the Summary of Terms attached
to the MOU ("Section 13") which will be eligible for reimbursement by Ford
pursuant to Section 13 upon the initial closing of the MOU Transactions (with
eligibility determined as of the date of delivery of the Compliance Certificate
for the relevant period pursuant to Section 6.2(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 Encumbrances" means the liens permitted under Sections 7.3(a)
through (e) of this Agreement.
"Permitted Non-Recurring Expenses or Losses" means (i) non-recurring
non-cash expenses or losses, (ii) non-recurring cash expenses or losses reported
on or prior to June 30, 2005, and (iii) non-recurring cash expenses or losses in
an amount not to exceed $350,000,000 in the aggregate reported after June 30,
2005; provided that such non-recurring cash expenses or losses shall not exceed
$100,000,000 during the period from July 1, 2005 through December 31, 2005.
"Permitted Receivables Financing" means at any date of determination, the
aggregate amount of any Non-Recourse Debt outstanding on such date relating to
the sale or financing of Receivables and any Related Security or other similar
off balance sheet financings of Receivables and any Related Security of the
Company or any of its Subsidiaries (it being understood that Standard
Securitization Undertakings shall be permitted in connection with such
financings).
"Permitted Restructuring Financing" has the meaning set forth in the
definition of Permitted Restructuring Transaction.
"Permitted Restructuring Transaction" means the sale, transfer or
contribution by the Company or any Subsidiary (the "Assignor") of its ownership
interest in a Foreign Subsidiary to
18
another Foreign Subsidiary of the Company (the "Acquiring Subsidiary") for cash
consideration to be paid by the Acquiring Subsidiary from (i) a loan from a
Person (other than a Group Member) to the Acquiring Subsidiary (a "Permitted
Restructuring Financing") permitted under Section 7.2, (ii) an intercompany loan
from the Company or another Subsidiary to the Acquiring Subsidiary otherwise
permitted hereunder or (iii) cash or Cash Equivalents of the Acquiring
Subsidiary (not representing proceeds described in clauses (i) and (ii) above).
"Person" means 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" means at a particular time, any employee benefit plan that is
covered by ERISA and in respect of which the Company 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.
"Projections" has the meaning set forth in Section 4.2(d).
"Properties" has the meaning set forth in Section 5.17(a).
"Receivable" means any indebtedness and other obligations owed to the
Company or the relevant Subsidiary, or in which such party has a security
interest or other interest, or any right of the Company 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 Company or such
Subsidiary, including, without limitation, the obligation to pay any finance
charges, fees and other charges with respect thereto.
"Receivables Intercreditor Agreement" means the Intercreditor Agreement
dated as of the date hereof between JPMorgan Chase Bank, N.A., as Collateral
Agent and JPMorgan Chase Bank, N.A. (successor by merger to Bank One, NA (Main
Office Chicago)) as Receivables Agent.
"Recovery Event" means 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" has the meaning set forth in Section 2.8.
"Regulation D" has the meaning set forth in Section 10.3(a).
"Regulation U" means Regulation U of the Federal Reserve Board as in
effect from time to time.
"Regulatory Change" has the meaning set forth in Section 10.3(a).
19
"Reinvestment Deferred Amount" means with respect to any Reinvestment
Event, the aggregate Net Cash Proceeds received by any Group Member in
connection therewith that are not applied to prepay the Loans pursuant to
Section 2.13(c) as a result of the delivery of a Reinvestment Notice.
"Reinvestment Event" means any Asset Sale or Recovery Event in respect of
which the Company has delivered a Reinvestment Notice.
"Reinvestment Notice" means a written notice executed by a Responsible
Officer stating that no Event of Default or Event of Default - Bankruptcy has
occurred and is continuing and that the Company (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 (other than an Asset Sale permitted under Section
7.5(f)) or Recovery Event to acquire or repair fixed or capital assets useful in
its business.
"Reinvestment Prepayment Amount" means with respect to any Reinvestment
Event, the Reinvestment Deferred Amount relating thereto less any amount
expended prior to the relevant Reinvestment Prepayment Date to acquire or repair
fixed or capital assets useful in the Company's business.
"Reinvestment Prepayment Date" means with respect to any Reinvestment
Event, the earlier of (a) the date occurring twelve months after such
Reinvestment Event and (b) the date on which the Company shall have determined
not to, or shall have otherwise ceased to, acquire or repair fixed or capital
assets useful in the Company's business with all or any portion of the relevant
Reinvestment Deferred Amount.
"Related Security" means with respect to any Receivable, (a) all of the
Company'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 Company'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" means, 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.
20
"Reorganization" means, with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.
"Reportable Event" means 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 Banks" means, at any time, holders of more than 50% of the
Aggregate Exposures of all Banks then in effect.
"Requirement of Law" means 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.
"Reserves" has the meaning set forth in Section 10.3(b).
"Responsible Officer" means the chief executive officer, president, chief
financial officer or treasurer of the Company, but in any event, with respect to
financial matters, the chief financial officer or the treasurer of the Company.
"S&P" means Standard & Poor's Ratings Group.
"Sale-Leaseback Transaction" has the meaning set forth in Section 7.11.
"Security Documents" means the collective reference to the Guarantee and
Collateral Agreement, the Mortgages and all other security documents hereafter
delivered to the Collateral Agent granting a Lien on any property of any Person
to secure the obligations and liabilities of any Loan Party under any Loan
Document.
"Short-Term Credit Agreement" the Credit Agreement dated as of the date
hereof among the Company, the several Banks from time to time party thereto,
JPMorgan Chase Bank, N.A., as administrative agent, Citicorp USA, Inc., as
syndication agent and Credit Suisse, Cayman Islands Branch, Deutsche Bank
Securities Inc. and Sumitomo Mitsui Banking Corporation, as documentation
agents, as amended from time to time.
"Single Employer Plan" means any Plan that is covered by Title IV of
ERISA, but that is not a Multiemployer Plan.
"Special Purpose Borrower" means any domestic special purpose entity which
(i) owns the New Corporate Offices and the real estate incidental thereto and
(ii) leases or otherwise conveys to the Company or any of its Subsidiaries the
right to own, occupy or use the New Corporate Offices pursuant to the terms and
conditions of an agreement (the "Operative Agreement") in form and substance
reasonably acceptable to the Administrative Agent; provided, that the Company
may not designate more than one Special Purpose Borrower hereunder during the
term of this Agreement. The provisions of this Agreement applicable to a Special
Purpose Borrower and any special
21
purpose entity pursuant to the last paragraph of Section 8.2 shall only apply to
any Special Purpose Borrower or any such special purpose entity from and after
the date on which the Company designates a Special Purpose Borrower hereunder.
"Specified Swap Agreement" means any Swap Agreement entered into by the
Company and any Bank or affiliate thereof in respect of interest rates, currency
exchange rates or commodity prices.
"Standard Securitization Undertakings" means representations, warranties,
covenants and indemnities entered into by the Company or any Subsidiary which
are reasonably customary in a securitization or other similar off balance sheet
financings of Receivables and any Related Security, including, without
limitation, those relating to the servicing of assets of such securitization or
financing; provided that in no event shall Standard Securitization Undertakings
include any guarantee of indebtedness incurred in connection with the such
securitization or such financing.
"Subsidiary" means a corporation, partnership, limited liability company
or other entity which would be consolidated on the balance sheets of the Company
and its Subsidiaries in accordance with GAAP. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer
to a Subsidiary or Subsidiaries of the Company. For purposes of the definition
of "Consolidated Total Debt", "Subsidiary" shall be deemed to include the
Special Purpose Borrower, if any.
"Subsidiary Guarantor" means each domestic Subsidiary of the Company other
than the Excluded Entities, Visteon Receivables LLC and Oasis Holdings Statutory
Trust.
"Swap Agreement" means 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 Company or any of its Subsidiaries shall be a "Swap Agreement".
"United States dollars" and "$" mean the lawful currency of the United
States.
"Unused Commitments" has the meaning set forth in Section 2.1(c).
"Utilized Secured Debt Amount" means, on any date, the aggregate amount of
(i) Debt (as defined in the Existing Indenture) of the Company 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 Company 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
22
Company and its Manufacturing Subsidiaries in respect of sale and leaseback
transactions as of such date.
"Visteon Village Lease" means the Master Lease dated as of October 31,
2002 between Oasis Holdings Statutory Trust, as Lessor, and the Company, as
Lessee, as amended.
"Wholly Owned Subsidiary" means as to any Person, any other Person all of
the Capital Stock of which (other than directors' qualifying shares required by
law) is owned by such Person directly and/or through other Wholly Owned
Subsidiaries.
SECTION 2. THE LOANS
2.1 THE COMMITMENT; COMMITMENT TERMINATION DATE
(a) Subject to the terms and conditions set forth in this Agreement,
each Bank agrees to make up to an aggregate of twenty (20) Loans to the Company,
the Affiliates and the Special Purpose Borrower from time to time during the
Availability Period in an aggregate principal amount not exceeding the amount of
such Bank's Commitment. The Loans may from time to time be Eurodollar Loans or
Base Rate Loans, as determined by the Company (on behalf of itself or an
Affiliate) or the Special Purpose Borrower and notified to the Administrative
Agent in accordance with Sections 2.6 and 2.7. The Commitments shall
automatically be reduced on the date of any Borrowing (after giving effect to
such Borrowing) by the amount of any such Borrowing.
(b) The "Commitment Termination Date" shall be December 31, 2005.
The unused portion of the Commitment of each Bank, if any, shall automatically
terminate on the Commitment Termination Date.
(c) The Loans outstanding on the Effective Date under the Existing
Credit Five-Year Term Loan Agreement shall continue outstanding hereunder on the
terms set forth herein. The parties hereto hereby agree that, as of the
Effective Date, the aggregate of the Available Commitments is equal to
$13,840,000 (the "Unused Commitments").
2.2 PROCEEDS OF LOANS
The principal amount of each Loan shall be disbursed to the Company, an
Affiliate or the Special Purpose Borrower, as applicable, on the date of
Borrowing of such Loan in United States dollars in immediately available funds
to the account of the Company, the Affiliate or the Special Purpose Borrower, as
applicable, specified by the Company (on behalf of itself or an Affiliate) or
the Special Purpose Borrower to the Administrative Agent from time to time.
2.3 COMMITMENT FEE
The Company shall pay to the Administrative Agent for the account of each
Bank a commitment fee (the "Commitment Fee") during the Availability Period at a
rate per annum of 0.50% on the daily average undrawn amount of the Commitment of
such Bank during the Commitment Quarter for which the Commitment Fee is being
paid. The Commitment Fee with
23
respect to each Commitment Quarter shall be payable in arrears on each Fee
Payment Date and shall be computed on the basis of a year of 365 (or 366) days
for the actual number of days for which due. The Commitment Fee shall be payable
to the Administrative Agent and shall be transmitted via the National Automated
Clearing House Association electronic payments network in the United States to
an account in the continental United States specified by the Administrative
Agent from time to time by notice to the Company.
2.4 EXCHANGE RATES
On each Calculation Date with respect to a foreign currency, the Company
shall determine the Exchange Rate as of such Calculation Date with respect to
such foreign currency.
2.5 OPTIONAL TERMINATION OR REDUCTION OF COMMITMENTS
The Company may at any time or from time to time during the Availability
Period, upon three Domestic Business Days' written notice to the Administrative
Agent at the Notice Office, (a) terminate the Commitments or (b) permanently
reduce the unused portion of the Commitments. From the effective date of any
such termination or reduction, the Commitment Fee specified in Section 2.3 shall
cease to accrue or shall be correspondingly reduced, provided that no such
termination or reduction shall affect the Company's obligation to pay the
Commitment Fee to the extent theretofore accrued. If the Company terminates the
Commitments in their entirety, such accrued Commitment Fee shall be payable
within 30 days after the effective date of such termination in the manner
provided in Section 2.3. Any termination or permanent reduction of the unused
portion of the Commitments by the Company pursuant to this Section 2.5 shall be
in an amount equal to $1,000,000, or a whole multiple thereof, and shall be
irrevocable.
2.6 NOTICE OF BORROWING; PROCEDURE
With respect to each Domestic Borrowing, the Company (on behalf of itself
or an Affiliate) or the Special Purpose Borrower, as applicable, shall give
notice of the Borrowing to the Administrative Agent at the Notice Office no
later than the date of such Borrowing, but not later than 11:00 a.m. (New York
City time) on such date. With respect to each Eurodollar Borrowing, the Company
(on behalf of itself or an Affiliate) or the Special Purpose Borrower shall give
notice of the Borrowing to the Administrative Agent at the Notice Office no
later than three Eurodollar Business Days prior to the date of such Borrowing,
but not later than 11:00 a.m. (New York City time) on such date. In each case,
the notice shall be given by telephone (and shall be promptly confirmed in a
writing substantially in the form of Exhibit G-1, in the case of a Loan to the
Company or an Affiliate, or Exhibit G-2 hereto, in the case of a Loan to the
Special Purpose Borrower) and shall specify:
(a) the borrower;
(b) the date of such Borrowing, which shall be a Domestic Business
Day in the case of a Domestic Borrowing or a Eurodollar Business Day in
the case of a Eurodollar Borrowing;
(c) the amount of such Borrowing, which shall be not less than
$1,000,000;
24
(d) whether the Loan comprising such Borrowing is to be a Base Rate
Loan or a Eurodollar Loan;
(e) if such Loan is to be a Eurodollar Loan, the duration of the
initial Interest Period; and
(f) the then applicable Excepted Secured Debt Amount and the
Utilized Secured Debt Amount, both before and after giving effect to the
requested Loans.
Upon receipt of any such notice of Borrowing from the Company or the Special
Purpose Borrower, the Administrative Agent shall promptly notify each Bank
thereof. Each Bank (through its Domestic Lending Office or Eurodollar Lending
Office, as applicable) will make the amount of its pro rata share of each
Borrowing available to the Administrative Agent for the account of the Company,
an Affiliate or the Special Purpose Borrower at the Domestic Funding Office in
the case of Domestic Loans or the Eurodollar Funding Office in the case of
Eurodollar Loans in each case prior to 12:00 Noon, local time, on the date of
Borrowing requested by the Company or Special Purpose Borrower in funds
immediately available to the Administrative Agent. Such Borrowing will then be
made available to the Company, the Affiliate or the Special Purpose Borrower,
whichever is the borrower, by the Administrative Agent crediting the account of
the Company, the Affiliate or the Special Purpose Borrower on the books of such
office with the aggregate of the amounts made available to the Administrative
Agent by the Banks and in like funds as received by the Administrative Agent. A
notice to extend or convert any Loan, once given to the Administrative Agent,
shall not be revocable by the Company or the Special Purpose Borrower.
2.7 EXTENSION OF TERM OF LOANS; CONVERSION OF LOANS
(a) The Company (on behalf of itself or any Affiliate which has
borrowed hereunder) or Special Purpose Borrower may, at its option, elect (i) to
extend any outstanding Eurodollar Loan or (ii) to convert any outstanding Base
Rate Loan into a Eurodollar Loan or any outstanding Eurodollar Loan into a Base
Rate Loan, in each case, by giving notice to the Administrative Agent at the
Notice Office.
(b) An outstanding Loan may be converted pursuant to Section 2.7(a)
only on a day which meets both of the following requirements:
(i) an outstanding Loan may only be converted on a day which is (A)
if such outstanding Loan is a Domestic Loan, a Domestic Business Day or
(B) if such outstanding Loan is a Eurodollar Loan, a Eurodollar Business
Day; and
(ii) an outstanding Loan may only be converted into (A) a Domestic
Loan on a Domestic Business Day or (B) a Eurodollar Loan on a Eurodollar
Business Day.
Subject to the requirements of this Section 2.7(b), an outstanding Loan may be
converted on the last day of the then-existing Interest Period for such Loan (if
such Loan has an Interest Period) or at any time (if such Loan does not have an
Interest Period), as provided in Section 2.7(b), or, in
25
the case of a Loan having an Interest Period, at times other than the last day
of an Interest Period, as provided in Section 2.7(f).
(c) The notice by the Company or Special Purpose Borrower to the
Administrative Agent of an election pursuant to Section 2.7(a) to extend any
outstanding Loan, to convert any outstanding Loan on the last day of the
then-existing Interest Period (if the outstanding Loan has an Interest Period)
or to convert any outstanding Loan which does not have an Interest Period shall
be given by telephone (and shall be promptly confirmed in a writing
substantially in the form of Exhibit G hereto) as follows:
(i) if such outstanding Loan is a Eurodollar Loan to be extended as
such, by giving notice no later than three Eurodollar Business Days prior
to the last day of the then-existing Interest Period with respect to such
Loan, but not later than 11:00 a.m. (New York City time) on such day;
(ii) if such outstanding Loan is a Eurodollar Loan which is to be
converted into a Domestic Loan, by giving notice not later than 11:00 a.m.
(New York City time) on the last day of the then-existing Interest Period
with respect to such outstanding Loan; and
(iii) if such outstanding Loan is a Domestic Loan which is to be
converted into a Eurodollar Loan, by giving notice no later than three
Eurodollar Business Days, but not later than 11:00 a.m. (New York City
time) on such date, prior to the day on which the Company, Affiliate or
Special Purpose Borrower, as applicable, desires the conversion of such
outstanding Loan to be made effective.
(d) Each notice given by the Company or Special Purpose Borrower
pursuant to this Section 2.7 shall specify:
(i) whether such outstanding Loan is to be extended or converted;
(ii) if such outstanding Loan is to be converted, the date such
conversion should be effective;
(iii) if such outstanding Loan is to be extended and is a Eurodollar
Loan, the Interest Period for the Loan as so extended;
(iv) if such outstanding Loan is to be converted, whether such Loan
is to be converted into a Base Rate Loan or Eurodollar Loan; and
(v) if such outstanding Loan is to be converted into a Eurodollar
Loan, the Interest Period therefor.
(e) With respect to each outstanding Loan which shall be extended or
converted pursuant to this Section 2.7:
26
(i) the Company, the Affiliate or Special Purpose Borrower,
whichever is the borrower, shall pay to the Administrative Agent for the
account of each Bank all accrued and unpaid interest with respect to such
outstanding Loan,
(A) if such Loan is a Eurodollar Loan, on the last day of the
then-existing Interest Period with respect to such outstanding Loan;
or
(B) if such Loan is a Base Rate Loan, or if pursuant to
Section 2.7(f) the Loan is being converted on a day other than the
last day of the then-existing Interest Period, on the day such
outstanding Loan is converted;
(ii) no repayment of the principal amount of such outstanding Loan
shall be required; and
(iii) the Loan to be outstanding upon the extension or conversion of
an outstanding Loan shall not be deemed to be a new Loan under Section 4.
of this Agreement.
(f) Subject to the requirements of Sections 2.7(a) and 2.7(b), any
outstanding, Eurodollar Loan may be converted pursuant to this Section 2.7 at
times other than the last day of an Interest Period; provided, however, that
(i) the Company's or Special Purpose Borrower's notice with respect
to any such conversion shall be given no later than in the case of a
conversion of an outstanding Eurodollar Loan into a Domestic Loan, the
date of such conversion, but not later than 11:00 a.m. (New York City
time) on such date; and
(ii) the Company, the Affiliate or the Special Purpose Borrower,
whichever is the borrower, shall reimburse the Bank on demand for any loss
incurred by it as a result of the timing of any such conversion in an
amount determined as provided in Section 2.13 with respect to prepayments.
2.8 REGISTER
The Administrative Agent shall, on behalf of the Company, the Affiliates
and the Special Purpose Borrower, maintain at one of its offices a register for
the recordation of the names and addresses of the Banks and the Commitment of,
and the principal amount of the Loans owing to each Bank from time to time (the
"Register"). The entries in the Register shall be conclusive, in the absence of
manifest error, and the Company, the Affiliates, the Special Purpose Borrower,
the Administrative Agent and the Banks shall treat each Person whose name is
recorded in the Register as the owner of the Loans (and any Notes evidencing the
Loans) recorded therein for all purposes of this Agreement. Any assignment of
any Loan pursuant to Section 9.1, whether or not evidenced by a Note, shall be
effective only upon appropriate entries with respect thereto being made in the
Register (and any Note evidencing such Loan shall expressly so provide). Any
assignment or transfer of all or part of a Loan shall be registered on the
Register only upon presentation of a duly executed Assignment and Acceptance
and, if such Loan is evidenced by a Note, surrender of such Note for
registration of assignment or transfer.
27
2.9 INTEREST RATES
(a) Each Loan shall bear interest on the outstanding principal
amount thereof, as follows:
(i) with respect to each Base Rate Loan, at a fluctuating rate per
annum equal to the sum of (x) the Base Rate in effect from time to time
while such Base Rate Loan is outstanding and (y) the Base Rate Margin; and
(ii) with respect to each Eurodollar Loan, during each Interest
Period applicable thereto at a rate per annum equal to the sum of (x) the
LIBO Rate applicable to such Interest Period and (y) the Eurodollar
Margin.
(b) Interest on Base Rate Loans shall be computed on the basis of a
year of 365 (or 366) days and paid for the actual number of days for which due.
Interest on Eurodollar Loans shall be computed on the basis of a year of 360
days and paid for the actual number of days for which due. Interest for each
Interest Period with respect to a Eurodollar Loan shall be calculated from and
including the first day thereof to but excluding the last day thereof.
2.10 INTEREST PAYMENT DATES
Interest on each Loan shall be payable as follows:
(a) with respect to each Base Rate Loan, on each March 31, June 30,
September 30 and December 31 that such Loan is outstanding, and upon payment in
full of such Loan; and
(b) with respect to each Eurodollar Loan, (i) if the current
Interest Period for such Eurodollar Loan is one month, two months or three
months, on the last day of such Interest Period or (ii) if the current Interest
Period for such Eurodollar Loan is six months, on the last day of the third
month and on the last day of the sixth month of such Interest Period, and upon
payment in full of such Loan.
2.11 OVERDUE PRINCIPAL AND INTEREST
Any overdue principal of the Loans and, to the extent permitted by law,
overdue interest thereon, shall bear interest payable on demand for each day
from the date payment thereof was due to the date of actual payment, as follows:
(a) with respect to each Base Rate Loan, at a rate per annum equal
to 2% plus the sum of (x) the Base Rate in effect from time to time while such
Loan is overdue and (y) the Base Rate Margin; and
(b) (i) with respect to overdue principal on each Eurodollar Loan,
at a daily rate, which shall be calculated by the Administrative Agent (whose
determination shall be conclusive in the absence of manifest error) and shall be
a rate per annum equal to the sum of (A) 2% plus (B) the Eurodollar
28
Margin plus (C) the LIBO Rate, and (ii) with respect to overdue interest on each
Eurodollar Loan, at the rate per annum equal to the sum of (X) 2% plus (Y) the
Eurodollar Margin plus (Z) the interest rate per annum at which deposits in the
amount of such overdue interest are offered to the Administrative Agent by other
leading banks, as determined by the Administrative Agent, in the London
interbank market for a period of one day, or if no such rate is available, one
month (or, if such amount remains unpaid more than three Eurodollar Business
Days, then for such other period of time not longer than six months as the
Administrative Agent may elect).
2.12 DATES FOR PAYMENT OR OPTIONAL PREPAYMENT OF PRINCIPAL
Each of the Company, each Affiliate and the Special Purpose Borrower
unconditionally promises to repay the unpaid principal amount of each Loan made
to it on the Maturity Date. Each of the Company, each Affiliate and the Special
Purpose Borrower may, at its option, prepay the principal amount of any Loan
made to it, in whole or in part, without penalty or premium, as follows:
(a) with respect to any Base Rate Loan, on any Domestic Business
Day, provided that the Company (on behalf of itself or an Affiliate) or the
Special Purpose Borrower, as applicable, deliver an irrevocable notice of
prepayment to the Administrative Agent no later than 11:00 a.m., New York City
time, on such date, which notice shall specify the date and amount of
prepayment; and
(b) with respect to any Eurodollar Loan on the last day of any
Interest Period therefor, provided that the Company (on behalf of itself or an
Affiliate) or the Special Purpose Borrower, as applicable, deliver an
irrevocable notice of prepayment to the Administrative Agent no later than 11:00
a.m., New York City time, three Eurodollar Business Days prior to such date,
which notice shall specify the date and amount of prepayment;
in each case together with accrued interest on the amount prepaid to the date of
prepayment. Amounts prepaid on account of the Loans may not be reborrowed.
Partial prepayments of any Loans shall be in an aggregate principal amount of
$1,000,000 or a whole multiple thereof
2.13 OPTIONAL AND MANDATORY PREPAYMENTS; REIMBURSEMENT FOR CERTAIN COSTS
(a) The Company, an Affiliate or the Special Purpose Borrower, may, at its
option, prepay the principal amount of any Eurodollar Loan made to it, in whole
or in part, at times other than those provided for in Section 2.12(b), in each
case together with accrued interest on the amount prepaid to the date of
prepayment; provided, however, that with respect to any such Loan the Company,
the Affiliate or the Special Purpose Borrower, whichever is the borrower, shall
reimburse each Bank on demand for any loss incurred by such Bank in accordance
with Section 2.16.
(b) If any Indebtedness shall be incurred by any Group Member (excluding
any Indebtedness incurred in accordance with Section 7.2 (other than Section
7.2(l)), 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 loans and
the reduction of the commitments as set forth in Section 2.13(h).
29
(c) Subject to Section 2.13(d) and 2.13(e), if on any date any Group
Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event
then, unless a Reinvestment Notice shall be delivered in respect thereof, an
amount equal to 100% Net Cash Proceeds shall be applied on such date toward the
prepayment of the Loans as set forth in Section 2.13(h); provided, that,
notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount
equal to the Reinvestment Prepayment Amount with respect to the relevant
Reinvestment Event shall be applied toward the prepayment of the loans and the
reduction of the commitments as set forth in Section 2.13(h).
(d) If on any date any Group Member shall receive Net Cash Proceeds from
any Asset Sale permitted under Section 7.5(f), 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 loans and the reduction of the commitments as set forth in
Section 2.13(h).
(e) If on any date any Group Member shall receive Net Cash Proceeds from
any Sale-Leaseback Transaction with respect to property located in the United
States (including any sale and lease back of Visteon Village), an amount equal
to 75% of such Net Cash Proceeds shall be applied on the date of such sale and
leaseback toward the prepayment of the loans and reduction of the commitments as
set forth in Section 2.13(h). If on any date any Group Member shall receive Net
Cash Proceeds from any Sale- Leaseback Transaction with respect to property
located outside the United States, an amount equal to 50% of such Net Cash
Proceeds shall be applied on the date of such sale and leaseback toward the
prepayment of the loans and reduction of the commitments as set forth in Section
2.13(h).
(f) Intentionally Omitted.
(g) If any Group Member shall receive any Net Cash Proceeds from a
Permitted Restructuring Transaction financed with the proceeds of a Permitted
Restructuring Financing or if any Loan Party shall receive any Net Cash Proceeds
from a Group Member (other than a Loan Party) in respect of a Permitted
Restructuring Transaction and, in each case, such Net Cash Proceeds are not
reinvested in the applicable Acquiring Subsidiary (with such reinvestment to be
in the form of equity contributions and intercompany loans, which loans shall
not be subordinated and shall be at least equal to 75% of the amount of such
reinvestment) within 120 days of such receipt (and, in the case of any Permitted
Refinancing Transaction financed with the proceeds of a Permitted Restructuring
Transaction, used to repay such Permitted Restructuring Financing), an amount
equal to 50% of such Net Cash Proceeds shall be applied on the last day of such
period toward the prepayment of the loans and the reduction of the commitments
as set forth in Section 2.13(h).
(h) Any such reduction or prepayment shall be made pro rata to the
commitments and loans outstanding under this Agreement and under the Short-Term
Credit Agreement and the Amended and Restated Five-Year Revolving Credit
Agreement. Amounts to be applied in connection with clauses (b) through (e) of
this Section 2.13 shall be applied to permanently reduce the Unused Commitments
and thereafter to prepay the Loans outstanding hereunder. Any such prepayments
shall be made first, to ABR Loans and, second, to Eurodollar Loans. Each
30
prepayment of the Loans under this Section 2.13 shall be accompanied by accrued
interest to the date of such prepayment on the amount prepaid.
2.14 METHOD OF PAYMENT
All payments required to be made pursuant to this Agreement shall be made
in immediately available funds (i) with respect to the Commitment Fee, in United
States dollars to the account in the continental United States designated by the
Administrative Agent pursuant to Section 2.3, (ii) with respect to payments
relating to Loans (including, without limitation, principal, interest, any
gross-up or any payments pursuant to Section 2.13 or 10.3), in United States
dollars to the Administrative Agent for the account of the Banks at (A) the
Domestic Funding Office, with respect to each Domestic Loan, (B) the Eurodollar
Funding Office, with respect to each Eurodollar Loan or (C) at such other
location as may be agreed upon by the Administrative Agent and the Company, the
Affiliate or the Special Purpose Borrower, as applicable, and (iii) with respect
to any other payment due hereunder, in such currency and in such place or office
as may be required hereunder or as may be agreed upon by the Administrative
Agent and the Company, an Affiliate or the Special Purpose Borrower, as
applicable. The Administrative Agent shall distribute such payments to the Banks
promptly upon receipt in like funds as received. Whenever any payment of
principal of, or interest on, any Domestic Loan or of the Commitment Fee shall
be due on a day which is not a Domestic Business Day, the date for payment
thereof shall be extended to the next succeeding Domestic Business Day and, in
the case of a payment of principal, interest thereon shall be payable for such
extended time. Whenever any payment of principal of, or interest on, any
Eurodollar Loan shall be due on a day which is not a Eurodollar Business Day,
the date for payment thereof shall be extended to the next succeeding Eurodollar
Business Day, unless as a result thereof such date would fall in the next
calendar month, in which case, such date shall be advanced to the next preceding
Eurodollar Business Day, and, in the case of a payment of principal, interest
thereon shall be payable to the date of payment as extended or advanced as the
case may be.
2.15 PRO RATA TREATMENT AND PAYMENTS
(a) Each Borrowing by the Company, any Affiliate or the Special
Purpose Borrower from the Banks hereunder, each payment by the Company, an
Affiliate or the Special Purpose Borrower on account of the Commitment Fee and
any reduction of the Commitments of the Banks shall be made pro rata according
to the respective undrawn Commitments of the Banks.
(b) Each payment (including each prepayment) by the Company on
account of principal of and interest on the Loans shall be made pro rata
according to the respective outstanding amounts of principal and interest then
due and owing to the Banks.
(c) Unless the Administrative Agent shall have been notified in
writing by any Bank prior to a Borrowing that such Bank 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 Bank is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Company a
corresponding amount. If such amount is not made available to the Administrative
Agent by the
31
required time on the Borrowing date, such Bank 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 Bank makes such amount immediately
available to the Administrative Agent. A certificate of the Administrative Agent
submitted to any Bank with respect to any amounts owing under this paragraph
shall be conclusive in the absence of manifest error. If such Bank's share of
such Borrowing is not made available to the Administrative Agent by such Bank
within three Domestic 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 Base Rate Loans, on demand, from the
Company, the Affiliate or the Special Purpose Borrower, as applicable.
(d) Unless the Administrative Agent shall have been notified in
writing by the Company, the Affiliate or the Special Purpose Borrower, as
applicable, prior to the date of any payment due to be made by it hereunder that
the Company, the Affiliate or the Special Purpose Borrower, as applicable, will
not make such payment to the Administrative Agent, such Administrative Agent may
assume that the Company, the Affiliate or the Special Purpose Borrower, as
applicable, is making such payment, and the Administrative Agent may, but shall
not be required to, in reliance upon such assumption, make available to the
Banks their respective pro rata shares of a corresponding amount. If such
payment is not made to the Administrative Agent by the Company, the Affiliate or
the Special Purpose Borrower within three Domestic Business Days after such due
date, the Administrative Agent shall be entitled to recover, on demand, from
each Bank 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 Bank against the Company,
any Affiliate or the Special Purpose Borrower, as applicable.
2.16 INDEMNITY
The Company, or if an Affiliate or the Special Purpose Borrower is the
borrower, such Affiliate or the Special Purpose Borrower agrees to indemnify
each Bank for, and to hold each Bank harmless from, any loss or expense that
such Bank may sustain or incur as a consequence of (a) default by the Company,
such Affiliate or the Special Purpose Borrower in making a borrowing of,
conversion into or continuation of Eurodollar Loans after the Company, such
Affiliate or the Special Purpose Borrower has given a notice requesting the same
in accordance with the provisions of this Agreement, (b) default by the Company,
such Affiliate or the Special Purpose Borrower in making any prepayment of or
conversion from Eurodollar Loans after the Company, such Affiliate or the
Special Purpose Borrower has given a notice thereof in 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
32
applicable rate of interest for such Loans provided for herein (excluding,
however, the Eurodollar Margin included therein, if any) over (ii) the amount of
interest (as reasonably determined by such Bank) that would have accrued to such
Bank 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 Company or such
Affiliate by any Bank 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.
SECTION 3. GUARANTEE OF LOANS TO AFFILIATES AND THE SPECIAL PURPOSE BORROWER
(a) The Company hereby guarantees to the Administrative Agent, for
the ratable benefit of the Banks and their affiliates, the due and punctual
payment of the principal of and interest on any Loans made to any Affiliate or
Special Purpose Borrower under this Agreement and any other Obligations of any
Affiliate or Special Purpose Borrower to the Administrative Agent or any Bank
under this Agreement or its Accession Memorandum (the "Guaranteed Affiliate
Obligations") when and as the same shall become due and payable, whether at
maturity, upon declaration or otherwise, according to the terms thereof. Upon
the occurrence of an Event of Default or Event of Default-Bankruptcy with
respect to an Affiliate or Special Purpose Borrower hereunder, the Company shall
on behalf of the Affiliate or Special Purpose Borrower, as applicable, upon
demand by the Administrative Agent punctually make any payment due and payable
by the Affiliate or Special Purpose Borrower under this Agreement or its
Accession Memorandum, whether at maturity, upon declaration or otherwise; and
any such payment shall be treated for the purposes of such Accession Memorandum
and this Agreement (other than Section 10.4) as if such payment were made by the
Affiliate or Special Purpose Borrower, as applicable.
(b) The Company hereby agrees that its obligations under this
Section 3 shall be irrevocable and unconditional and that the Company shall not
have the right to assert any defenses based upon (i) the validity, regularity or
enforceability of any Accession Memorandum or this Agreement or any Note, (ii)
the absence of any attempt to collect from the defaulting Affiliate or Special
Purpose Borrower, as applicable, or other action to enforce the same, (iii) any
dispute between the Company and the Affiliate or Special Purpose Borrower or any
Person holding an ownership interest in the Special Purpose Borrower, including
any claim by the Company against the Special Purpose Borrower or Person holding
an ownership interest in the Special Purpose Borrower in connection with the
Special Purpose Borrower's conduct in respect to the New Corporate Offices, (iv)
the waiver or consent by the Administrative Agent or any Bank with respect to
any provisions thereof or hereof (other than with respect to this Section 3), or
(v) any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of the Company or of a guarantor.
(c) With respect to its obligations under this Section 3, the
Company waives filing of claims with a court, trustee or receiver in the event
of receivership or bankruptcy of the defaulting Affiliate or Special Purpose
Borrower, diligence, presentment, demand of payment, protest or notice with
respect to Guaranteed Affiliate Obligations and all demands whatsoever (other
than that provided for in subsection (a) above), and covenants that this
Guarantee is a
33
continuing guarantee and will not be discharged except by complete performance
of the Guaranteed Affiliate Obligations of the defaulting Affiliate or the
Special Purpose Borrower and the obligations of the Company under this
Guarantee.
(d) To the extent of any payment by the Company to the
Administrative Agent or any Bank under this Section 3, the Company shall succeed
to all corresponding claims that the Administrative Agent or such Bank may have
and otherwise be subrogated to the rights of the Administrative Agent or such
Bank against the defaulting Affiliate or Special Purpose Borrower or any other
person or security in connection with the Loans to the defaulting Affiliate or
Special Purpose Borrower, and the Administrative Agent and any such Bank shall
use reasonable efforts to cooperate with the Company in seeking recovery under
such claims.
(e) The Company's obligations under this Section 3 constitute a
guarantee of payment and not of collection merely and shall remain in full force
and effect with respect to each Affiliate and Special Purpose Borrower until the
Guaranteed Affiliate Obligations of such Affiliates and Special Purpose Borrower
shall have been paid in full in accordance with the terms of the relevant
Accession Memorandum and of this Agreement. If at any time any payment of any of
the Guaranteed Affiliate Obligations of an Affiliate or the Special Purpose
Borrower is rescinded or must be otherwise restored or returned upon the
insolvency, bankruptcy or reorganization of the Affiliate or Special Purpose
Borrower or otherwise, the Company's obligations hereunder with respect to such
payment shall be reinstated at such time as though such payment had not been
made.
(f) If demand for, or acceleration of the time for, payment by the
Affiliate or Special Purpose Borrower to the Administrative Agent or any Bank of
any Guaranteed Obligations of the Affiliate or Special Purpose Borrower is
stayed upon the insolvency, bankruptcy, reorganization or proposed compromise or
arrangement with creditors of the Affiliate or Special Purpose Borrower, all
such Guaranteed Affiliate Obligations of which payment or performance is stayed
that would otherwise be subject to demand for payment or acceleration shall
nonetheless be payable by the Company under this Section 3 immediately on demand
by the Administrative Agent or such Bank.
SECTION 4. CONDITIONS TO LOANS
The effectiveness of this Agreement and the obligation of each Bank to
make each Loan hereunder is subject to the performance by the Company, the
Affiliate or the Special Purpose Borrower, whichever is the borrower, of all its
obligations under this Agreement and to the satisfaction of the following
further conditions:
4.1 EACH LOAN TO THE COMPANY, AN AFFILIATE OR THE SPECIAL PURPOSE BORROWER
(a) In the case of each Loan proposed to be made hereunder to the
Company, an Affiliate or the Special Purpose Borrower:
(i) the Administrative Agent shall have received the notice from the
Company (on behalf of itself or an Affiliate) or the Special Purpose
Borrower required by Section 2.6;
34
(ii) the principal amount of such Loan, when added to the aggregate
principal amount of all Loans then outstanding hereunder, shall not exceed
the aggregate undrawn amount of the Commitments;
(iii) on such date and after giving effect to the making of such
Loan no Default, Event of Default or Event of Default - Bankruptcy shall
have occurred and be continuing; and
(iv) the representations and warranties of the Company contained in
this Agreement shall be true and correct in all material respects on and
as of the date of such Loan, as the case may be, except to the extent such
representations and warranties expressly relate to an earlier date.
Each Borrowing by the Company, an Affiliate or the Special Purpose Borrower
shall be deemed to be a representation and warranty by the Company that the
conditions specified in clauses (ii), (iii) and (iv) above are satisfied on and
as of the date of such Borrowing.
(b) In addition to the conditions stated in Section 4.1(a) above, in
the case of each Loan proposed to be made to any Affiliate or the Special
Purpose Borrower:
(i) on such date and after giving effect to the making of such Loan,
no Default, Event of Default or Event of Default - Bankruptcy with respect
to such Affiliate or Special Purpose Borrower shall have occurred and be
continuing;
(ii) the representations and warranties of the Affiliate or Special
Purpose Borrower, as applicable, contained in its Accession Memorandum
shall be true and correct in all material respects on and as of the date
of such Loan, except to the extent such representations and warranties
expressly relate to an earlier date;
(iii) in the case of Loans to the Special Purpose Borrower, the
Company and the Special Purpose Borrower shall have delivered certificates
of an authorized officer of the Company and Special Purpose Borrower
representing:
(A) in the case of the Company, that the Guarantee contained
in Section 3 constitutes the valid and legally binding agreement of
the Company enforceable against the Company in accordance with its
terms;
(B) in the case of the Special Purpose Borrower, that such
entity (i) owns the New Corporate Offices and the real estate
incidental thereto, (ii) leases or otherwise conveys to the Company
or any of the Company's Subsidiaries the right to occupy and use the
New Corporate Offices pursuant to an agreement under which no
default (or event which with the passage of time could constitute a
default) exists and is continuing, (iii) conducts no business or
operations and owns no assets other than those operations and assets
incidental to the development and ownership of the New Corporate
Offices and (iv) has no Indebtedness other than obligations imposed
by operation of law, obligations with respect to its capital
35
stock, Loans outstanding hereunder and Indebtedness to the Company
or any Subsidiary thereof;
(C) the matters contained in clauses (i) and (ii) above; and
(iv) upon request of the Administrative Agent or any Bank, the
Administrative Agent or such Bank, as the case may be, shall have received
the latest available annual and interim financial statements for the
Affiliate or Special Purpose Borrower (certified, if available).
Each Borrowing by any Affiliate or the Special Purpose Borrower shall be deemed
to be a representation and warranty by such Affiliate or Special Purpose
Borrower that the conditions specified in clauses (i) and (ii) above are
satisfied on and as of the date of such Borrowing.
4.2 EFFECTIVENESS OF THIS AGREEMENT; LOANS TO THE COMPANY, AN AFFILIATE OR
THE SPECIAL PURPOSE BORROWER
The effectiveness of this Agreement and the agreement of each Bank to make
the Loans requested to be made by it hereunder is subject to the satisfaction on
the Effective 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 Company, and the
Required Banks (as defined in the Existing Five-Year Term Loan Agreement), (ii)
the Guarantee and Collateral Agreement, executed and delivered by the Company
and each Subsidiary 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 Collateral Agent, the
Administrative Agent, the administrative agents under the Short-Term Credit
Agreement and the Amended and Restated Five-Year Revolving Credit Agreement, the
Company and each Subsidiary Guarantor.
(b) OTHER CREDIT AGREEMENTS. The Administrative Agent, the Required Banks
(as defined in the Amended and Restated Five-Year Revolving Credit Agreement)
and each relevant Loan Party shall have executed and delivered the Amended and
Restated Revolving Loan Agreement in form and substance satisfactory to the
Arrangers. The Administrative Agent, the Banks (as defined in the Short-Term
Credit Agreement) and each relevant Loan Party shall have executed and delivered
the Short-Term Credit Agreement.
(c) FINANCIAL STATEMENTS. The Company shall have delivered satisfactory
audited consolidated financial statements of the Company for the three most
recent fiscal years ended prior to the Effective Date as to which such financial
statements are available (it being understood that such audited consolidated
financial statements shall be subject to the restatement issues disclosed to the
Banks prior to the Effective Date and that unaudited financial statements for
the periods ended March 31, 2005, June 30, 2005 and September 30, 2005 shall not
be required to be delivered prior to December 10, 2005).
36
(d) PROJECTIONS; BALANCE SHEET. The Company shall have delivered (i)
quarterly projections for the period beginning on the Effective Date through
December 31, 2005 and annual projections for fiscal years 2006 and 2007, in each
case giving effect to the consummation of the material transactions contemplated
by the MOU and in form and substance reasonably satisfactory to the Arrangers
(the "Projections") (it being understood that such Projections are based on
assumptions and estimates developed by the Company in good faith and management
believes such assumptions to be reasonable as of the date they were prepared)
and (ii) a balance sheet of the Company and its Subsidiaries (the "Adjusted
Balance Sheet") as of September 30, 2005, adjusted to give effect to the
consummation of the MOU Transactions as if such transactions had been
consummated on such date and such balance sheet shall not be inconsistent in any
material respect with the information delivered to the Banks prior to the
Effective Date.
(e) APPROVALS. All governmental and third party approvals necessary or, as
reasonably determined by the Administrative Agent and the Company, advisable in
connection with the financing contemplated hereby and the continuing operations
of the Company and its Subsidiaries shall have been obtained and be in full
force and effect.
(f) 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 7.3 or
discharged on or prior to the Effective Date pursuant to documentation
satisfactory to the Administrative Agent.
(g) ENVIRONMENTAL REVIEW. The Agents shall be satisfied with the condition
of the real properties owned or leased by the Company and its Subsidiaries.
(h) FEES. The Banks, the Administrative Agent and the Arrangers shall have
received all fees required to be paid, and all expenses for which invoices have
been presented prior to the Effective Date (including the reasonable fees and
expenses of legal counsel), on or before the Effective Date. All such amounts
will be paid with proceeds of Loans made on the Effective Date and will be
reflected in the funding instructions given by the Company to the Administrative
Agent on or before the Effective 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 Effective Date, substantially in the
form of Exhibit H, 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 good standing certificate for each Loan Party from its
jurisdiction of organization.
(j) LEGAL OPINIONS. The Administrative Agent shall have received the
following executed legal opinions:
(i) the legal opinion of Xxxxxxxxx Xxxxxx PLLC, counsel to the
Company and its Subsidiaries, substantially in the form of Exhibit I-1;
37
(ii) the legal opinion of Xxxxxxx Xxxx LLP, New York counsel to the
Company and its Subsidiaries, substantially in the form of Exhibit I-2;
and
(iii) the legal opinion of local counsel in each of Alabama,
Indiana, Ohio, Oklahoma and Tennessee 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 Collateral 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 (except for certificates and related
stock powers representing shares of Capital Stock of certain Foreign
Subsidiaries to the extent that such certificates do not yet exist which
certificates shall be delivered within 30 days after the Effective Date (or such
other date as agreed to by the Collateral Agent) and (ii) each promissory note
(if any) pledged to the Collateral 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) required by the Security Documents
or under law or reasonably requested by the Collateral Agent to be filed,
registered or recorded in order to create in favor of the Collateral Agent, for
the benefit of the Bank Facilities Secured Parties, 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 7.3), shall be
in proper form for filing, registration or recordation (it being understood that
filings with the U.S. Patent and Trademark Office and U.S. Copyright Office
shall not be required).
(m) MORTGAGES, ETC. (i) The Collateral 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) The Collateral Agent shall have received in respect of each
Mortgaged Property (other than the MOU Properties) a mortgagee's title
insurance policy (or policies) or marked up unconditional binder for such
insurance. Each such policy shall (A) be in an amount satisfactory to the
Collateral Agent; (B) be issued at ordinary rates; (C) insure that the
Mortgage insured thereby creates a valid first Lien on such Mortgaged
Property free and clear of all defects and encumbrances, except as
disclosed therein; (D) name the Collateral Agent for the benefit of the
Bank Facilities Secured Parties as the insured thereunder; (E) be in the
form of ALTA Loan Policy - 1970 (Amended 10/17/70 and 10/17/84) (or
equivalent policies); (F) contain such endorsements and affirmative
coverage as the Collateral Agent may reasonably request and (G) be issued
by title companies satisfactory to the Collateral Agent (including any
such title companies acting as co-insurers or reinsurers, at the option of
the Collateral Agent). The Collateral Agent
38
shall have received evidence 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.
(iii) The Collateral Agent shall have received in respect of each
MOU Property a recent title search in form and substance satisfactory to
the Collateral Agent and such title search shall reveal no liens on any of
such MOU Properties except for Liens permitted by Section 7.3 or
discharged on or prior to the Effective Date pursuant to documentation
satisfactory to the Collateral Agent.
(iv) If requested by the Collateral Agent, the Collateral 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 Company has received the notice required pursuant to Section
208(e)(3) of Regulation H of the Board.
(v) The Collateral 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 (ii) above and a copy of all
other material documents affecting the Mortgaged Properties.
(vi) The Collateral Agent shall have received a Consent and
Agreement relating to the Visteon Village Lease, among Oasis Holdings
Statutory Trust, as lessor, the Company, as lessee, and the Collateral
Agent, which shall be in form and substance reasonably satisfactory to the
Collateral Agent, and which shall (i) permit the Company to enter into the
Mortgage covering the Company's interest under the Visteon Village Lease
and the property of the Company located at the site leased thereunder,
(ii) which shall contain reasonable and customary lender protection
provisions in favor of the Collateral Agent, including, without
limitation, the right to notices of default and an opportunity to cure
such defaults, the rights to a new lease in the event of an insolvency or
bankruptcy of the Company, and a waiver of any lien on the Company's
personal property located at the leased premises, and (iii) which shall
provide that notwithstanding anything to the contrary in the Visteon
Village Lease, in the event the Collateral Agent, or its nominee or
designee succeeds to the rights of the Company as tenant under the Visteon
Village Lease (whether pursuant to a foreclosure action or otherwise),
then in such event the Purchase Option Price (as defined in the Visteon
Village Lease) shall be $1.00.
(vii) The Collateral Agent shall have received evidence reasonably
satisfactory to the Collateral Agent that the Memorandum of Lease dated
January 11, 2002 and the Memorandum of Lease dated January 31, 2002 (each
relating to the Prior Lease (as defined in the Visteon Village Lease))
have been terminated and released of record.
39
(n) MOU. The Administrative Agent shall have received a certified copy of
the MOU and the MOU shall not have been terminated or expired and there shall be
no amendment or waiver with respect to MOU that would have required the consent
required under Section 7.16 if such amendment or waiver had become effective on
or after the Effective Date.
In addition to the conditions stated in Section 4.2 above, in the case of
the first Loan proposed to be made to any Affiliate, the Administrative Agent
shall have received:
(i) a duly executed Accession Memorandum of such Affiliate no less
than five Domestic Business Days prior to the proposed borrowing date;
(ii) if the designation of such Affiliate obligates the
Administrative Agent or any Bank to comply with "know your customer" or
similar identification procedures in circumstances where the necessary
information is not already available to it, the Company shall, promptly
upon the request of the Administrative Agent or any Bank, supply such
documentation and other evidence as is reasonably requested by the
Administrative Agent or any Lender in order for the Administrative Agent
or such Bank to carry out and be satisfied it has complied with the
results of all necessary "know your customer" or other similar checks
under all applicable laws and regulations; and
(iii) such additional documents as it may reasonably request
relating to the existence and good standing of the Affiliate under the
laws of the jurisdiction of its incorporation or organization and to the
authorization, execution and delivery of the Accession Memorandum, all in
form and substance reasonably satisfactory to the Administrative Agent.
Subject to clauses (i) and (ii) above, the documents referred to in
this Section 4.2 with respect to the first Loan proposed to be made to any
Affiliate shall be delivered to the Administrative Agent no later than the date
of the first Loan to the Affiliate. Such documents, including executed
documents, may be sent to the Administrative Agent by facsimile on the required
date, with the originals to be sent by professional courier.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Administrative Agent and each
Bank that:
5.1 FINANCIAL CONDITION
(a) Except as set forth on Schedule 5.1, the audited consolidated balance
sheets of the Company as at December 31, 2002, December 31, 2003 and December
31, 2004, 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 the financial statements from
PricewaterhouseCoopers LLP, present fairly the consolidated financial condition
of the Company as at such dates, and the consolidated results of its operations
and its consolidated cash flows for the respective fiscal years then ended. 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
40
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 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 December 31, 2004 to and
including the date hereof there has been no Disposition by any Group Member of
any material part of its business or property.
(b) The Adjusted Balance Sheet, copies of which have heretofore been
furnished to the Banks, has been adjusted to give effect to the consummation of
the MOU Transactions (as if such transactions had been consummated on such date)
and has been prepared based on the best information available to the Company as
of the date of delivery thereof, and presents fairly the estimated financial
position of the Company and its consolidated Subsidiaries as at September 30,
2005.
5.2 NO CHANGE
Since December 31, 2004, there has been no development or event that has
had or could reasonably be expected to have a Material Adverse Effect.
5.3 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, (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, (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, have a Material
Adverse Effect and (d) is in compliance with all Requirements of Law, except to
the extent that the failure of any Foreign Subsidiary to be so organized,
validly existing or in good standing or the failure of any Group Member to
comply with the requirements of clauses (b), (c) or (d) above could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
5.4 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 Company (or any Affiliate 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 Company (or any Affiliate 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,
41
authorizations, filings and notices described in Schedule 5.4, which consents,
authorizations, filings and notices have been obtained or made and are in full
force and effect and the consents described in Section 6.10(a) and (ii) the
filings referred to in Section 5.19. 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).
5.5 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 by
each Loan Party (a) will not violate any of the organizational documents of such
Loan Party, (b) will not violate any other Requirement of Law or any other
Contractual Obligation of any Group Member, except to the extent that all such
violations could not, in the aggregate, have a Material Adverse Effect and (c)
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 other Contractual Obligation (other than the Liens created by the
Security Documents). No Requirement of Law or Contractual Obligation applicable
to any Group Member could reasonably be expected to have a Material Adverse
Effect.
5.6 LITIGATION
Except as described on Schedule 5.6, no litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Company, threatened by or against any Group Member or
against any of their respective properties or revenues (a) with respect to the
MOU or 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.
5.7 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 material default under the MOU or the MOU
Documentation has occurred and is continuing. No Default, Event of Default or
Event of Default - Bankruptcy has occurred and is continuing.
5.8 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 property material to the business of the Group Members,
taken as a whole, and none of such property is subject to any Lien except as
permitted by Section 7.3.
42
5.9 INTELLECTUAL PROPERTY
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 disclosed in the
first item on Schedule 5.6, no claim has been asserted and is pending by any
Person challenging or questioning the use of any Intellectual Property or the
validity or effectiveness of any Intellectual Property that could reasonably be
expected to have a Material Adverse Effect, nor does the Company know of any
valid basis for any such claim. Other than a potential adverse decision on the
issue described in the first item on Schedule 5.6, 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.
5.10 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 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 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 Company, no claim
is being asserted, with respect to any such tax, fee or other charge.
5.11 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 Federal Reserve Board or (b) for any
purpose that violates the provisions of the Regulations of the Federal Reserve
Board. If requested by any Bank or the Administrative Agent, the Company will
furnish to the Administrative Agent and each Bank 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.
5.12 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 Company,
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 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.
43
5.13 ERISA
Neither a Reportable Event nor an "accumulated funding deficiency" (within
the meaning of Section 412 of the Code or Section 302 of ERISA) has occurred
during the five year period prior to the date on which this representation is
made or deemed made with respect to any Plan, and each Plan has complied in all
material respects with the applicable provisions of ERISA and the Code that
could, in any of the foregoing cases, reasonably be expected to have a Material
Adverse Effect. No termination of a Single Employer Plan (other than a standard
termination within the meaning of Section 4041(b) of ERISA) 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 Company's Form 10-K for the year ended December 31,
2004, as of December 31, 2004, the present value of all accrued benefits under
each Single Employer Plan (based on those assumptions used to fund such Plans)
did not exceed the value of the assets of such Plan allocable to such accrued
benefits by a material amount. Neither the Company 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 a Material Adverse Effect, and
neither the Company nor any Commonly Controlled Entity would become subject to
any liability under ERISA if the Company 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 Effective Date, the Company has not been notified that
any such Multiemployer Plan is in Reorganization or Insolvent.
5.14 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 Federal Reserve Board) that limits its ability
to incur Indebtedness.
5.15 SUBSIDIARIES
Except as disclosed to the Administrative Agent by the Company in writing
from time to time after the Effective Date, (a) Schedule 5.15 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 any Loan Party, except as created by the Loan Documents.
5.16 USE OF PROCEEDS
The proceeds of the Loans to the Company, the Affiliates and the Special
Purpose Borrower will be used by such borrower primarily to finance the
construction of the Company's new corporate headquarters in southeastern
Michigan (the "New Corporate Offices") or, in the case of
44
Loans to the Company, for the purpose of making investments in or a loan to an
Affiliate or the Special Purpose Borrower for the purpose of financing
construction of the New Corporate Offices.
5.17 ENVIRONMENTAL MATTERS
Except as, in the aggregate, could not reasonably be expected to have a
Material Adverse Effect:
(a) the facilities and properties currently or formerly 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 give rise to 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 Member (the "Business"),
nor does the Company 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, arranged
to be disposed of or disposed of from the Properties in violation of, or in a
manner or to a location that could give rise to 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 reasonably be expected to 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
Company, 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 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 give rise to 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.
45
5.18 ACCURACY OF INFORMATION, ETC.
No statement or information contained in this Agreement, any other Loan
Document, the Confidential Information Memorandum or any other document,
certificate or statement furnished by or on behalf of any Loan Party to the
Administrative Agent or the Banks, or any of them, for use in connection with
the transactions contemplated by this Agreement or the other Loan Documents,
contains, taken as a whole and as supplemented from time to time, any untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements contained herein or therein not misleading. The Projections
contained in the materials referenced above are based upon good faith estimates
and assumptions believed by management of the Company to be reasonable at the
time made. 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
or in any other documents, certificates and statements furnished to the
Administrative Agent and the Banks for use in connection with the transactions
contemplated hereby and by the other Loan Documents.
5.19 SECURITY DOCUMENTS
(a) The Guarantee and Collateral Agreement is effective to create in favor
of the Collateral Agent, for the benefit of the Bank Facilities Secured Parties,
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 Collateral Agent, and in the case of the
other Collateral described in the Guarantee and Collateral Agreement in which a
security interest can be perfected by the filing of a financing statement under
the UCC, when financing statements and other filings specified on Schedule
5.19(a) in appropriate form are filed in the offices specified on Schedule
5.19(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, 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 7.3), subject to
the terms of the Intercreditor Agreement.
(b) Each of the Mortgages is effective to create in favor of the
Collateral Agent, for the benefit of the Bank Facilities Secured Parties, 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 5.19(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 the Permitted Encumbrances and
the Liens securing the Ford Loan as permitted under Section 7.3(i), subject to
the terms of the Intercreditor Agreement. Schedule 1.1B lists, as of the
Effective Date, each parcel of owned real property located in the United States
and held by the Company or any of its Subsidiaries that has a value, in the
reasonable opinion of the Company, in excess of $5,000,000.
46
5.20 COPYRIGHTS
As of the Effective Date, neither the Company nor any of its Subsidiaries
owns any material Copyrights which are registered with the U.S. Copyright
Office.
SECTION 6. AFFIRMATIVE COVENANTS
The Company hereby agrees that, so long as the Commitments remain in
effect or any Loan or other amount is owing to any Bank or the Administrative
Agent hereunder, the Company shall and shall cause each of its Subsidiaries to:
6.1 FINANCIAL STATEMENTS
Furnish to the Administrative Agent (for delivery to each Bank):
(a) as soon as available, but in any event within 90 days after the end of
each fiscal year of the Company (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 Company,
including 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" qualification or exception
pursuant to Statement on Auditing Standards No. 59 (or any replacement
statement), or qualification arising out of the scope of the audit of the
financial statements, by PricewaterhouseCoopers LLP or other independent
certified public accountants of nationally recognized standing;
(b) as soon as available, but in any event not later than 60 days after
the end of each of the first three quarterly periods of each fiscal year of the
Company (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 Company 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); provided that such unaudited financial statements for the
quarterly periods ended June 30, 2005 and September 30, 2005 shall be subject to
the resolution of any outstanding restatement issues which have not been
resolved as of the date of delivery thereof; and
(c) prior to December 10, 2005, (i) the unaudited consolidated balance
sheet of the Company and its consolidated Subsidiaries as at the end of March
31, 2005, June 30, 2005 and September 30, 2005 and the related unaudited
consolidated statements of income and of cash flows for such quarters and the
portion of the fiscal year through the end of such quarters, 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 but not subject to any unresolved restatement
issues); and (ii) any restatements of the Company's consolidated financial
statements required for periods prior to March 31, 2005.
47
All such financial statements shall be complete and correct in all
material respects (subject to the qualifications set forth in Section 6.1(c))
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.
6.2 CERTIFICATES; OTHER INFORMATION
Furnish to the Administrative Agent (for delivery to each Bank) (or, in
the case of clause (f), to the relevant Bank):
(a) concurrently with the delivery of any financial statements pursuant to
Section 6.1 (including with respect to the financial statements delivered
pursuant to Section 6.1(c)), (i) a certificate of a Responsible Officer stating
that, to the best of such Responsible Officer's knowledge, each Loan Party
during such period has observed or performed all of its covenants and other
agreements, and satisfied every condition contained in this Agreement and the
other Loan Documents to which it is a party to be observed, performed or
satisfied by it, and that such Responsible Officer has obtained no knowledge of
any Default or Event of Default or Event of Default - Bankruptcy except as
specified in such certificate and (ii) (x) a Compliance Certificate containing
all information and calculations necessary for determining compliance by each
Group Member with the provisions of this Agreement referred to therein as of the
last day of the fiscal quarter or fiscal year of the Company, as the case may be
(it being understood that such compliance with respect to the periods ended June
30, 2005 and September 30, 2005 shall initially be calculated on the basis of
the Compliance Certificate accompanying the financial statements delivered
pursuant to Section 6.1(b) with respect to such period and subsequently
recalculated on the basis of the Compliance Certificate accompanying the
financial statements for such period delivered pursuant to Section 6.1(c)), and
(y) 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 all Subsidiaries of the Company 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) as soon as available, and in any event no later than 45 days after the
end of each fiscal year of the Company, detailed consolidated projections for
the following fiscal year prepared on a quarterly basis (including a projected
consolidated balance sheet of the Company 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 case be accompanied by a certificate of a Responsible Officer
stating that such Projections are based on reasonable estimates, information and
assumptions and that such Responsible Officer has no reason to believe that such
Projections are incorrect or misleading in any material respect;
(c) (i) within five days after the same are sent, copies of all financial
statements and reports that the Company sends to the holders of any class of its
debt securities or public equity
48
securities and (ii) within five days after the same are filed, copies of all
financial statements and reports that the Company 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;
(d) within five Business days after the execution thereof, executed copies
of the MOU Documentation (including all Ford Loan Documentation);
(e) within five Business days after the execution thereof, executed copies
of any amendments or waivers to the MOU or the MOU Documentation (including all
Ford Loan Documentation); and
(f) promptly, such additional financial and other information as any Bank
may from time to time reasonably request.
If any notice or other communication delivered pursuant to this Section
6.2, or otherwise pursuant to this Agreement, contains any material non-public
information, the Company, or other Loan Party if applicable, shall, at the time
of such delivery, notify the Administrative Agent that such communication or
notice contains material non-public information. If a Bank has notified the
Administrative Agent that it does not want to receive material non-public
information, the Administrative Agent will not forward to such Bank any notice
or communication which is identified by the Company as including such
information until such Bank notifies the Administrative Agent otherwise.
6.3 PAYMENT OF OBLIGATIONS
Pay, discharge or otherwise satisfy at or before maturity or before they
become delinquent, as the case may be, all its material 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.
6.4 MAINTENANCE OF EXISTENCE; COMPLIANCE
(a) (i) Continue to engage in the climate control, electronics and
interiors lines of business as now conducted by it (except for the consummation
of the MOU Transactions), (ii) preserve, renew and keep in full force and effect
its organizational existence and (iii) take all reasonable action to maintain
all rights, privileges and franchises necessary or desirable in the normal
conduct of its business, except, in each case, as otherwise permitted by Section
7.4 or 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.
49
6.5 MAINTENANCE OF PROPERTY; INSURANCE
(a) Keep all property useful and necessary in the business of the Group
Members, taken as a whole, in good working order and condition, ordinary wear
and tear 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.
6.6 INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS
(a) Keep proper books of records and account in which full, true and
correct entries in conformity with GAAP and all Requirements of Law shall be
made of all dealings and transactions in relation to its business and activities
and (b) permit representatives of any Bank (coordinated through the Agents) to
visit and inspect any of its properties and examine and make abstracts from any
of its books and records at any reasonable time and as often as may reasonably
be desired and to discuss the business, operations, properties and financial and
other condition of the Group Members with officers and employees of the Group
Members and with their independent certified public accountants.
6.7 NOTICES
Promptly give notice to the Administrative Agent and each Bank of:
(a) the occurrence of any Default, Event of Default or Event of Default -
Bankruptcy;
(b) any (i) default or event of default under any Contractual Obligation
of any Group Member (including the MOU or the MOU Documentation (including the
Ford Loan Documentation)) or (ii) litigation, investigation or proceeding that
may exist at any time between any Group Member and any Governmental Authority,
that in the case of either clause (i) or clause (ii), 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 the MOU or any Loan Document;
(d) the following events, as soon as possible and in any event within 30
days after the Company knows or has reason to know thereof: (i) the occurrence
of any Reportable Event with respect to any Plan, a failure to make any required
contribution to a Plan, the creation of any Lien in favor of the PBGC or a Plan
or any withdrawal from, or the termination, Reorganization or Insolvency of, any
Multiemployer Plan or (ii) the institution of proceedings or the taking of any
other action by the PBGC or the Company 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
50
(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 6.7 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.
6.8 ENVIRONMENTAL LAWS
Except to the extent that failure to do so could not in the aggregate
reasonably be expected to result in a Material Adverse Effect:
(a) 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 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; and
(b) 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.
6.9 ADDITIONAL COLLATERAL, ETC.
(a) With respect to any property located in the United States of America
acquired after the Effective Date by any Loan Party (other than any property
described in paragraph (b), (c) or (d) below) as to which the Collateral Agent,
for the benefit of the Bank Facilities Secured Parties, does not have a
perfected Lien, promptly (i) execute and deliver to the Collateral Agent such
amendments to the Guarantee and Collateral Agreement or such other documents as
the Collateral Agent deems necessary or advisable to grant to the Collateral
Agent, for the benefit of the Bank Facilities Secured Parties, a security
interest in such property and (ii) take all actions necessary or advisable to
grant to the Collateral Agent, for the benefit of the Bank Facilities Secured
Parties, a perfected first priority security interest in such property,
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 Collateral Agent and including the delivery of
any notes evidencing intercompany loans (it being understood that filings with
the U.S. Patent and Trademark Office and U.S. Copyright Office shall not be
required except as provided in paragraph (e) below).
(b) With respect to any fee interest in any real property located in the
United States of America having a value (together with improvements thereof) of
at least $5,000,000 acquired after the Effective Date by any Loan Party,
promptly (i) execute and deliver a first priority Mortgage, in favor of the
Collateral Agent, for the benefit of the Bank Facilities Secured Parties,
covering such real property, (ii) if requested by the Collateral Agent, provide
the Banks 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
51
the Collateral Agent) as well any survey that such Loan Party has with respect
to such real property, together with a surveyor's certificate, if available and
(y) any consents or estoppels reasonably deemed necessary or advisable by the
Collateral Agent in connection with such Mortgage, each of the foregoing in form
and substance reasonably satisfactory to the Collateral Agent and (iii) if
requested by the Collateral Agent, deliver to the Collateral Agent legal
opinions relating to the matters described above, which opinions shall be in
form and substance, and from counsel, reasonably satisfactory to the Collateral
Agent. With respect to any MOU Property, to the extent the MOU is terminated,
deliver to the Collateral Agent a mortgagee's title insurance policy (or
policies) or marked up unconditional binder for such insurance. Each such policy
shall meet the requirements set forth in Section 4.2(m)(ii) hereof.
(c) With respect to any new Domestic Subsidiary created or acquired after
the Effective Date by any Group Member (other than an Excluded Entity) and with
respect to any Excluded Entity that becomes a Wholly Owned Subsidiary of any
other Group Member after the Effective Date, promptly (i) execute and deliver to
the Collateral Agent such amendments to the Guarantee and Collateral Agreement
as the Collateral Agent deems necessary or advisable to grant to the Collateral
Agent, for the benefit of the Bank Facilities Secured Parties, a perfected first
priority security interest in the Capital Stock of such new Subsidiary or such
Wholly Owned Subsidiary that is owned by any Group Member, (ii) deliver to the
Collateral 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, as the case may be, (A) to become a party to the
Guarantee and Collateral Agreement, (B) to take such actions necessary or
advisable to grant to the Collateral Agent for the benefit of the Bank
Facilities Secured Parties a perfected first priority security interest in the
Collateral described in the Guarantee and Collateral Agreement with respect to
such new Subsidiary or such Wholly Owned Subsidiary, 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 Collateral Agent (it being understood that filings with the
U.S. Patent and Trademark Office and U.S. Copyright Office shall not be required
except as provided in clause (e) below) and (C) to deliver to the Collateral
Agent a certificate of such Subsidiary, substantially in the form of Exhibit C,
with appropriate insertions and attachments, (iv) comply with the requirements
of Section 6.9(b) with respect to any fee interest in real property having a
value of at least $5,000,000 owned by such new Subsidiary and (v) if requested
by the Collateral Agent, deliver to the Collateral Agent legal opinions relating
to the matters described above, which opinions shall be in form and substance,
and from counsel, reasonably satisfactory to the Collateral Agent.
(d) With respect to any Foreign Subsidiary created or acquired after the
Effective Date by any Loan Party, promptly (i) execute and deliver to the
Collateral Agent such amendments to the Guarantee and Collateral Agreement as
the Collateral Agent deems necessary or advisable to grant to the Collateral
Agent, for the benefit of the Bank Facilities Secured Parties, a perfected first
priority security interest in the Capital Stock of such new Subsidiary that is
owned by any such Loan Party (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 Collateral 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 Loan Party,
52
and take such other action as may be necessary or, in the opinion of the
Collateral Agent, desirable to perfect the Collateral Agent's security interest
therein under the UCC as in effect in the applicable jurisdiction, and (iii) if
requested by the Collateral Agent, deliver to the Collateral Agent legal
opinions relating to the matters described above, which opinions shall be in
form and substance, and from counsel, reasonably satisfactory to the Collateral
Agent.
(e) With respect to any Intellectual Property registered with the U.S.
Copyright Office after the Effective Date or with respect to any existing
registration for a Copyright which becomes material subsequent to the Effective
Date, promptly (i) execute and deliver to the Collateral Agent such amendments
to the Guarantee and Collateral Agreement or such other documents as the
Collateral Agent deems necessary or advisable to grant to the Collateral Agent,
for the benefit of the Bank Facilities Secured Parties, a security interest in
such property and (ii) take all actions necessary or advisable to grant to the
Collateral Agent, for the benefit of the Bank Facilities Secured Parties, a
perfected first priority security interest in such property, including filings
with the U.S. Copyright Office and any other filings required by law or as may
be requested by the Collateral Agent. If the Collateral Agent reasonably
requests registrations with the U.S. Patent and Trademark Office as a result of
any change in the requirements for the perfection of security interests in
Patents and Trademarks, the relevant Loan Party shall take all actions necessary
or advisable to register with the U.S. Patent and Trademark Office the security
interest granted to the Collateral Agent in such property.
(f) To the extent not delivered on the Effective Date, within 30 days of
the Effective Date (or, to the extent necessary, such later date as agreed to by
the Collateral Agent), deliver to the Collateral Agent the certificates (if any)
representing the Capital Stock of Foreign Subsidiaries pledged to the Collateral
Agent, for the benefit of the Bank Facilities Secured Parties, pursuant to the
Guarantee and Collateral Agreement, together with undated stock powers, in
blank, executed and delivered by a duly authorized officer of the relevant Group
Member.
6.10 POST-CLOSING MATTERS.
(a) Use its commercially reasonable best efforts to (i) obtain any
third-party consents required to grant to the Collateral Agent, for the benefit
of the Bank Facilities Secured Parties, a perfected first priority interest in
the Capital Stock owned by any Loan Party in each of the Subsidiaries listed on
Schedule 6.10(a), (ii) immediately after each such consent is obtained, provide
an updated Schedule 2 to the Guarantee and Collateral Agreement, (iii) deliver
any certificates representing such Capital Stock, together with undated stock
powers, in blank, executed and delivered by a duly authorized officer of the
relevant Loan Party, and (iv) take such other action as may be necessary or, in
the opinion of the Collateral Agent, desirable to perfect the Collateral Agent's
security interest therein under the UCC as in effect in the applicable
jurisdiction.
(b) Within 30 days of the Effective Date (or such other date as agreed to
by the Administrative Agent), to the extent not completed on the date hereof,
obtain the deliverables and take all actions with respect to each of the
Mortgaged Properties that are required by, and in accordance with, Section
4.2(m) of this Agreement.
53
(c) Within 30 days of the Effective Date (or such other date as agreed to
by the Administrative Agent), provide an updated Schedule 7 to the Guarantee and
Collateral Agreement which shall list of all Intellectual Property owned by the
Company and each other Grantor (as such term is defined in the Guarantee and
Collateral Agreement) required to be scheduled pursuant to Section 4.8 of the
Guarantee and Collateral Agreement.
(d) Within 14 days of the Effective Date (or such other date as agreed to
by the Administrative Agent), deliver (i) evidence satisfactory to the
Administrative Agent that all Liens existing on the assets of ARS, Inc. set
forth on Schedule 7.3(n) shall have been discharged and released and (ii) an
updated Schedule 7.3(n) removing the references to such Liens.
(e) Within 14 days of the Effective Date (or such other date as agreed to
by the Administrative Agent), deliver to the Administrative Agent the results of
a recent lien search in each of the jurisdictions where assets of Toledo Molding
& Die, Inc. are located, and such search shall reveal no liens on any of the
assets of Toledo Molding & Die, Inc. except for liens permitted by Section 7.3
or discharged on or prior to such date pursuant to documentation satisfactory to
the Administrative Agent.
SECTION 7. NEGATIVE COVENANTS
The Company hereby agrees that, so long as the Commitments remain in
effect or any Loan or other amount is owing to any Bank or the Administrative
Agent hereunder, the Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly:
7.1 CONSOLIDATED LEVERAGE RATIO. Permit the Consolidated Leverage Ratio as
at the end of any fiscal quarter set forth below to exceed the ratio set forth
opposite such fiscal quarter:
FISCAL QUARTER(s) CONSOLIDATED LEVERAGE RATIO
----------------- ---------------------------
6/30/05 3.75 to 1.00
9/30/05 4.20 to 1.00
12/31/05 4.20 to 1.00
3/31/06 3.50 to 1.00
6/30/06 3.25 to 1.00
9/30/06 3.00 to 1.00
12/31/06 and thereafter 2.50 to 1.00
; provided that, notwithstanding anything to the contrary above, if the MOU
Transactions (other than ongoing performance obligations contemplated by the
MOU) have not been consummated prior to September 30, 2005, the Consolidated
Leverage Ratio as at the end of the fiscal quarter ended September 30, 2005
shall not exceed 5.00 to 1.00.
54
7.2 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 or the
Short-Term Credit Agreement or the Amended and Restated Five-Year Revolving
Credit Agreement;
(b) Indebtedness of any Loan Party to any other Loan Party and to any
non-Loan Party; provided that any such Indebtedness to any non-Loan Party shall
be subordinated to the Bank Facilities Obligations on terms and conditions
satisfactory to the Administrative Agent (it being understood that, with respect
to such Indebtedness existing on the Effective Date, the Company shall have a
reasonable period of time after the Effective Date to effect any such
subordination provisions);
(c) Indebtedness of any Foreign Subsidiary to any other Foreign
Subsidiary;
(d) Guarantee Obligations of the Company existing on the date hereof and
listed on Schedule 7.2(d) and additional Guarantee Obligations in an aggregate
amount not to exceed $80,000,000 at any one time outstanding issued by the
Company or any of its Subsidiaries in the ordinary course of business;
(e) Indebtedness of Foreign Subsidiaries outstanding under any of the
credit facilities listed on Schedule 7.2(e) up to the aggregate amount available
under all such credit facilities as set forth on Schedule 7.2(e) (the "Schedule
7.2(e) Aggregate Amount") and any refinancings, refundings, renewals,
reallocations or extensions thereof; provided that any new credit facility ("New
Debt") refinancing or replacing such Indebtedness does not cause the aggregate
amount available under all such credit facilities to exceed the Schedule 7.2(e)
Aggregate Amount;
(f) Indebtedness outstanding under the Ford Loan in an aggregate principal
amount not to exceed $250,000,000; provided that (i) concurrent with or prior to
the incurrence of such Indebtedness, Ford executes the Intercreditor Agreement
in accordance with the terms thereof, and (ii) such Indebtedness shall be on
terms consistent with the MOU or as otherwise reasonably satisfactory to the
Arrangers;
(g) unsecured Indebtedness of the Company in an aggregate principal amount
not to exceed $50,000,000 at any time outstanding;
(h) Indebtedness of the Company and its Subsidiaries under factoring
programs and Permitted Receivables Financings (including the Existing
Securitization Facility), in each case, existing as of the date hereof and
listed on Schedule 7.2(h), and Indebtedness of Foreign Subsidiaries under
additional factoring programs and Permitted Receivables Financings in an
aggregate amount not to exceed $50,000,000 at any time outstanding;
(i) Indebtedness under letters of credit issued on behalf of Foreign
Subsidiaries in an aggregate amount not to exceed $40,000,000 at any time
outstanding;
(j) Indebtedness of Domestic Subsidiaries that are not Loan Parties in an
aggregate amount not to exceed $35,000,000 at any time outstanding;
55
(k) additional Indebtedness of Foreign Subsidiaries secured by Liens
permitted by Section 7.3(h) in an aggregate outstanding principal amount not to
exceed, when combined with the additional factoring programs under clause (h)
and the outstanding Indebtedness under clauses (i) through (j) of this Section
7.2, $150,000,000 (it being understood that the Commitments with respect to such
Indebtedness may be equal to an aggregate amount of $200,000,000 at any time);
(l) senior unsecured or senior subordinated debt securities of the Company
in an aggregate amount not to exceed $250,000,000; provided that (i) any
indenture governing such securities shall contain standard high yield terms
satisfactory to the Agents, (ii) the maturity of such securities shall not be
earlier than the sixth anniversary of the Effective Date and (iii) 100% of the
Net Cash Proceeds of such Indebtedness shall be used to reduce the commitments
and prepay the loans as set forth in Section 2.13(h);
(m) Indebtedness of Halla Climate Control Corporation and its
Subsidiaries;
(n) Permitted Restructuring Financings not exceeding the cash
consideration for the related Permitted Restructuring Transaction; provided that
any Permitted Restructuring Financings shall only be permitted to be outstanding
based on this clause for 120 days after the incurrence thereof;
(o) Indebtedness described on Schedule 7.2(o); and
(p) Indebtedness of the Company in respect of the securities issued under
the Existing Indenture prior to the Effective Date.
7.3 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 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 Company or its Subsidiaries, as the case may
be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen'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, restrictions and other similar encumbrances
incurred in the ordinary course of business that, in the aggregate, are not
substantial in amount and that do not in any case materially detract from the
value of the property subject thereto or materially interfere with the ordinary
conduct of the business of the Company or any of its Subsidiaries;
56
(f) any interest or title of a lessor under any lease entered into by the
Company or any Subsidiary in the ordinary course of its business and covering
only the assets so leased;
(g) Liens on assets of Foreign Subsidiaries securing Indebtedness of such
Foreign Subsidiaries permitted by Section 7.2(e); provided that the aggregate
outstanding principal amount of such Indebtedness incurred after the Effective
Date secured by such Liens does not exceed $200,000,000 at any one time
outstanding;
(h) Liens securing Indebtedness of the Company or any Subsidiary incurred
pursuant to Sections 7.2(i), 7.2(j) and 7.2(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 does not exceed 100% of the
amount of any such Indebtedness so secured;
(i) Liens on the Collateral securing the Ford Loan; provided that (i)
concurrent with or prior to the incurrence of such Indebtedness, Ford executes
the Intercreditor Agreement in accordance with the terms thereof and (ii) such
Lien shall be on terms consistent with the MOU or as otherwise reasonably
satisfactory to the Arrangers;
(j) Liens on Receivables and any Related Security and Other Securitization
Assets of the Company or any Subsidiary to the extent that such Receivables,
such Related Security or such Other Securitization Assets are subject to the
relevant factoring programs and any Permitted Receivables Financing permitted
under Section 7.2(h) and in any event Liens on the receivables, any related
security and other securitization assets set forth in the Receivables
Intercreditor Agreement which are subject to Liens pursuant to the Existing
Receivables Purchase and Sale Agreements;
(k) Reserved;
(l) Liens on assets of Halla Climate Control Corporation and its
Subsidiaries;
(m) Liens created pursuant to the Security Documents; and
(n) Liens described on Schedule 7.3(n).
7.4 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 Company may be merged or consolidated with or
into the Company (provided that the Company 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 Company that is not a Subsidiary Guarantor may
be merged or consolidated with or into any other Subsidiary of the Company 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;
57
(c) any Subsidiary of the Company may Dispose of any or all of its assets
(i) to the Company or any Subsidiary Guarantor (upon voluntary liquidation or
otherwise); provided that any such Disposition by a Subsidiary Guarantor must be
to another Subsidiary Guarantor or the Company, (ii) to a Subsidiary that is not
a Subsidiary Guarantor if the Subsidiary making the Disposition is not a
Subsidiary Guarantor (and 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 7.5; and the Company may Dispose of certain of
its assets to a Subsidiary Guarantor in order to effect the transfers
contemplated by the MOU and the MOU Documentation; and
(d) any Investment expressly permitted by Section 7.8 may be structured as
a merger, consolidation or amalgamation.
7.5 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 of obsolete 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 clauses (i) and (ii) of Section 7.4(c);
(d) the sale or other Disposition of assets pursuant to the MOU
Transactions;
(e) the sale or issuance of any Subsidiary's Capital Stock to the Company
or any Subsidiary Guarantor;
(f) the sale by the Company or its Subsidiaries to Halla Climate Control
Corporation of their ownership interests in Halla Climate Control (Dalian) Co.
Ltd., Halla Climate Control (Portugal) Ar Condicionado, LDA, Halla Climate
Control (Thailand) Company Limited, Halla Climate Control Canada Inc. and
Visteon Automotive Systems India Private Limited;
(g) Permitted Restructuring Transactions; provided that the aggregate
consideration for all such Permitted Restructuring Transactions (other than the
planned Permitted Restructuring Transaction disclosed to the Banks prior to the
Effective Date) shall not exceed $100,000,000 after the Effective Date;
(h) the Disposition of other property not otherwise expressly permitted by
this Section having a fair market value not to exceed, together with the fair
market value of any other Dispositions made concurrently with or prior to such
Disposition, 10% of Consolidated Net Tangible Assets in the aggregate as of the
last day of the then most recent fiscal year for which financial statements have
been delivered; provided that any Dispositions of Core Assets shall not exceed
$200,000,000 in the aggregate; and
(i) the sale of Receivables, any Related Security and Other Securitization
Assets pursuant to Permitted Receivables Financings and in any event the sale of
receivables, any related security
58
and other securitization assets set forth in the Receivables Intercreditor
Agreement which are subject to the Existing Receivables Purchase and Sale
Agreements.
7.6 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 pro rata to the holders of
the equity of such Subsidiaries entitled to receive the same;
(b) the Company may make Restricted Payments in an aggregate amount not to
exceed $10,000,000 in the aggregate during the term of this Agreement;
(c) the Company may repurchase for cash the warrants issued to Ford
pursuant to the MOU with (i) the net cash proceeds of a substantially concurrent
issuance of common stock by the Company and (ii) at any time after the date
which is the twelve month anniversary of the closing of the MOU Transactions
(other than the ongoing performance obligations contemplated by the MOU), cash
held by the Company in an amount not to exceed $50,000,000 in the aggregate; and
(d) the Company may make Restricted Payments in connection with share
repurchases required by employee programs as described on Schedule 7.6(d); and
(e) Restricted Payments necessary to effect changes in the ownership of
assets to be transferred to Ford pursuant to the MOU Transactions and to
facilitate the transfer of such assets to Ford pursuant to the MOU Documentation
7.7 CAPITAL EXPENDITURES. Make or commit to make any Capital Expenditure,
except Capital Expenditures of the Company and its Subsidiaries in the ordinary
course of business not exceeding (a) $400,000,000 during the period from the
Effective Date through December 31, 2005, $500,000,000 during fiscal year 2006
and $250,000,000 thereafter; provided, that (x) 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, (y) any such
amount shall exclude Capital Expenditures of the Company and its Subsidiaries
funded with any Reinvestment Deferred Amount and (z) 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
(x) above.
7.8 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
59
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 of trade credit in the ordinary course of business;
(b) investments in Cash Equivalents;
(c) Guarantee Obligations permitted by Section 7.2;
(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 $1,000,000 at any one
time outstanding;
(e) intercompany Investments among the Loan Parties;
(f) intercompany Investments by non-Loan Parties in Loan Parties;
(g) intercompany Investments among Foreign Subsidiaries;
(h) intercompany loans from Loan Parties to non-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 non-Loan Parties received by Loan Parties after the
Effective 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 7.5(f)
and (iv) to the extent the Net Cash Proceeds of a Permitted Restructuring
Transaction are required to be, and are, used to prepay loans and reduce
commitments pursuant to Section 2.13(h), an amount equal to the Net Cash
Proceeds so used; 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 resulting from the forgiveness of intercompany loans
existing as of the Effective Date made by the Loan Parties to the UK and other
European Subsidiaries in an aggregate amount not to exceed $340,000,000;
(j) Investments in an aggregate outstanding amount not to exceed the sum
(such sum, the "Investment Basket") of (i) $275,000,000 in the aggregate;
provided that such amount shall not exceed $150,000,000 in the aggregate during
the period from the Effective Date through December 31, 2005, (ii) intercompany
loans or cash dividends from non-Loan Parties received by Loan Parties after the
Effective 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 7.5(f)
and (iv) to the extent the Net Cash Proceeds of a Permitted Restructuring
Transaction are required to be, and are, used to prepay loans and reduce
60
commitments pursuant to Section 2.13(h), an amount equal to the Net Cash
Proceeds so used; 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; and
(k) acquisitions in friendly transactions of at least a majority of the
Capital Stock of other Persons or of the assets or a line of business or
business unit of another Person made after the consummation of the MOU
Transactions (other than ongoing performance obligations contemplated by the
MOU) for aggregate consideration not to exceed $75,000,000;
(l) Investments existing as of the date hereof as set forth on Schedule
7.8(l); and
(m) Investments necessary to effect changes in the ownership of assets to
be transferred to Ford pursuant to the MOU Transactions to facilitate the
transfer of such assets to Ford pursuant to the MOU Documentation; and
(n) the acquisition by the Company 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.
Notwithstanding anything to the contrary in this Section 7.8, no
acquisitions by the Company or any of its Subsidiaries (other than the
acquisition permitted pursuant to subsection (n) above) shall be permitted prior
to the consummation of the MOU Transactions (other than ongoing performance
obligations contemplated by the MOU).
7.9 OPTIONAL PAYMENTS AND MODIFICATIONS OF CERTAIN DEBT INSTRUMENTS. (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 other
Indebtedness of the Loan Parties (other than in connection with (i) the
prepayment of any revolving credit facility (except in connection with a
termination or permanent reduction of the commitments under any revolving credit
facility), (ii) prepayment of Indebtedness under this Agreement, the Amended and
Restated Five-Year Revolving Credit Agreement or the Short-Term Credit
Agreement, and (iii) prepayments of Indebtedness (other than the securities
issued under the Existing Indenture) in an aggregate amount not to exceed
$25,000,000, (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 other Indebtedness of the Loan Parties (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) or (c) incur any Indebtedness (other than obligations
of the Loan Parties pursuant to the Loan Documents and Indebtedness permitted
under Sections 7.2(f)) which constitutes "Debt" as defined in the Existing
Indenture or incur obligations under Sale-Leaseback Transactions (other than
Sale-Leaseback Transactions permitted pursuant to Section
61
7.11) which constitute "Attributable Debt" as defined in the Existing Indenture,
that, in either case, qualifies for the CNTA Exception.
7.10 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 Company 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.
7.11 SALES AND LEASEBACKS. Enter into any arrangement (a "Sale-Leaseback
Transaction") with any Person providing for the leasing by any Group Member of
real or personal property that has been or is to be sold or transferred by such
Group Member to such Person or to any other Person to whom funds have been or
are to be advanced by such Person on the security of such property or rental
obligations of such Group Member, except for any Sale-Leaseback Transaction in
which the lease entered into in connection therewith has a Remaining Present
Value at the time it is entered into, together with the Remaining Present Value
of other leases previously entered into in connection with Sale-Leaseback
Transactions, not exceeding $100,000,000 in the aggregate; provided that such
aggregate Remaining Present Value shall not exceed $65,000,000 in the aggregate
during the period from the Effective Date through December 31, 2005.
Notwithstanding anything to the contrary in this Section 7.11, a Sale-Leaseback
Transaction with respect to Visteon Village shall be permitted so long as the
Net Cash Proceeds of such Sale-Leaseback Transaction are applied in accordance
with Section 2.13(h).
7.12 SWAP AGREEMENTS. Enter into any Swap Agreement, except (a) Swap
Agreements entered into to hedge or mitigate risks to which the Company or any
Subsidiary has actual exposure (other than those in respect of Capital Stock)
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 Company or any Subsidiary.
7.13 CHANGES IN FISCAL PERIODS. Permit the fiscal year of the Company to
end on a day other than December 31 or change the Company's method of
determining fiscal quarters.
7.14 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) this Agreement
and the other Loan Documents, (b) 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), (c) 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, (d) the
Amended and Restated Five-Year Revolving Credit Agreement or the Short-Term
Credit Agreement, (e) the Existing Indenture, (f) restrictions in the MOU
62
Documentation (for so long as the MOU Documentation shall be in effect)
restricting the ability of the Group Members to create Liens on assets of the
Group Members to be transferred to Ford pursuant to the MOU Transactions (it
being understood that such restrictions shall permit the Liens pursuant to the
Security Documents), and (g) the Receivables Purchase and Sale Agreements.
7.15 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 Company to (a) make Restricted Payments in
respect of any Capital Stock of such Subsidiary held by, or pay any Indebtedness
owed to, the Company or any other Subsidiary of the Company, (b) make loans or
advances to, or other Investments in, the Company or any other Subsidiary of the
Company or (c) transfer any of its assets to the Company or any other Subsidiary
of the Company, 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
governing leasehold interests to the extent such provisions restrict the
transfer of the lease or the property leased 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 7.15 and which shall only apply to such Foreign Subsidiary
subject thereto and such Foreign Subsidiary's Wholly Owned Subsidiaries, (vi)
any restrictions existing under the Amended and Restated Five-Year Revolving
Credit Agreement or the Short-Term Credit Agreement, (vii) any restrictions
existing under the Receivables Purchase and Sale Agreement and (viii) any
restrictions existing under the agreements listed on Schedule 7.15.
7.16 MODIFICATIONS TO THE MOU; FORD LOAN. Amend, modify, waive or
otherwise change, or consent or agree to any amendment, modification, waiver or
other change to (a) any of the terms of the provisions of the MOU describing the
Ford Loan or to the Ford Loan Documentation, in each case, without the consent
of the Arrangers or (b) any of the terms of the MOU or the MOU Documentation
(other than with respect to the Ford Loan) to the extent that such amendment,
modification, waiver or change (i) would have a Material Adverse Effect or (ii)
would result in a material adverse change in the Projections or a pro forma
default under the financial covenant set forth in Section 7.1 at any time during
the term of this Agreement.
7.17 BUSINESS OF VISTEON INTERNATIONAL HOLDINGS, INC. Permit Visteon
International Holdings, Inc. 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 other than intercompany Indebtedness to the Company so long as
such Indebtedness is subordinated on terms and conditions satisfactory to the
Arrangers; or (c) sell, dispose of, xxxxx x Xxxx on or otherwise transfer the
Capital Stock of Halla Climate Control Corporation except as permitted by
Section 7.5.
63
7.18 CASH MANAGEMENT
No Loan Party shall maintain any bank account with a positive cash balance
other than bank accounts held with one or more of the Bank Facilities Secured
Parties or with other financial institutions subject to a lien in favor of the
Collateral Agent; provided that this Section 7.18 shall not apply to any bank
accounts with a cash balance of $1,000,000 or less so long as the aggregate
amount on deposit in all such accounts does not exceed $5,000,000.
SECTION 8. DEFAULT
8.1 DEFAULTS RELATING TO THE GROUP MEMBERS
If one or more of the following events shall have occurred and be
continuing:
(a) default in any payment of principal of any Loan as and when the
same shall become due and payable, whether at maturity or upon required
repayment or upon declaration or otherwise; or
(b) default in the payment of any installment of interest upon any
Loan, or any other amount payable hereunder or under any other Loan
Document, as and when the same shall become due and payable, and
continuance of such default for a period of five Domestic Business Days in
the case of a Domestic Loan or five Eurodollar Business Days in the case
of a Eurodollar Loan; or
(c) (i) failure on the part of any Loan Party duly to observe or
perform any covenant contained in clause (i) or (ii) of Section 6.4(a),
Section 6.7(a) or Section 7 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 7 (other than Section 7.1) 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 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; and provided further that, any failure to
observe or perform any covenant contained in Sections 7.4, 7.5, 7.8, 7.10,
7.11, 7.12, 7.14 and 7.15 with respect to Halla Climate Control
Corporation and its Subsidiaries shall not constitute an Event of Default
unless such failure shall continue for a period of thirty days; failure on
the part of any Loan Party duly to observe or perform any other of the
covenants or agreements of this Agreement or any other Loan Document
(other than as provided in paragraphs (a) through (c) of this Section) for
a period of 30 days after the date on which written notice of such
failure, requiring the Company to remedy the same, shall have been given
to the Company by the Administrative Agent or the Required Banks; or
64
(d) any representation or warranty by any Loan Party in this
Agreement or in any other Loan Document or in any certificate delivered
pursuant hereto shall have proven to have been materially false or
misleading when made or deemed made; 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; or
(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
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; 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; or
(f) (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 Banks, 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 Banks 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 Banks,
reasonably be expected to have a Material Adverse Effect; or
(g) 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
65
more, and all such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 60 days from the entry
thereof; or
(h) 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 Affiliate of any Loan Party, or, in the case of the
Intercreditor Agreement, Ford, 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; or
(i) either of the guarantees contained in Section 3 of this
Agreement or 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 Affiliate of any Loan Party shall so assert; or
(j) a Change of Control shall have occurred; or
(k) with respect to the Special Purpose Borrower, the Special
Purpose Borrower shall (i) conduct, transact or otherwise engage in, or commit
to conduct, transact or otherwise engage in, any business or operations other
than those incidental to its development and ownership of the New Corporate
Offices, (ii) incur, create, assume or suffer to exist any Indebtedness or other
liabilities or financial obligations, except nonconsensual obligations imposed
by operation of law, Loans outstanding hereunder, obligations with respect to
its capital stock and Indebtedness to the Company or any Subsidiary thereof,
(iii) own, lease, manage or otherwise operate any properties or assets other
than the ownership, leasing, management and operation of the New Corporate
Offices and the land related thereto, or (iv) fail to own the New Corporate
Offices and the real estate incidental thereto; or
(l) with respect to the Special Purpose Borrower, a default shall
exist in respect to the Operative Agreement, such default continues for a period
of 30 days or more and either the Special Purpose Borrower, the Company or any
Affiliate party thereto shall take any action to exercise any right or remedy
available to it due to such default;
then, and in each and every such case, with the consent of the Required Banks,
the Administrative Agent may, or upon the request of the Required Banks, the
Administrative Agent shall, by notice in writing to the Company, terminate the
Commitments and/or declare the principal of all Loans to the Company and its
Affiliates and all other amounts owing under this Agreement to be due and
payable immediately, and upon any such declaration the same shall become and
shall be immediately due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby expressly waived.
8.2 DEFAULTS RELATING TO BANKRUPTCY OF THE GROUP MEMBERS
If one or more of the following events shall have occurred and be
continuing with respect to any Material Group Member:
(a) any Material Group Member shall commence any case, proceeding or
other action (i) 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
66
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 (ii) 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 (b)
there shall be commenced against any Material Group Member any case,
proceeding or other action of a nature referred to in clause (a) above
that (i) results in the entry of an order for relief or any such
adjudication or appointment or (ii) remains undismissed or undischarged
for a period of 60 days; or (c) 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 60 days
from the entry thereof; or (d) 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 (a), (b), or (c)
above; or (e) the Company shall generally not, or shall generally be
unable to, pay its debts as they become due;
then if such event is an Event of Default - Bankruptcy specified in this Section
8.2, automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement shall immediately become due and payable.
Notwithstanding anything to the contrary in this Agreement or in any Accession
Memorandum, the parties hereto acknowledge and agree that a special purpose
entity (other than the Special Purpose Borrower) may own either the New
Corporate Offices or the real estate upon which the New Corporate Offices are
constructed and that such ownership shall be permitted under this Agreement and
any Accession Memoranda subject to the following conditions: (a) such special
purpose entity shall be subject to the same restrictions and requirements
contained herein which are applicable to the Special Purpose Borrower (other
than provisions relating solely to its role as a borrower under this Agreement)
and shall confirm the same by executing and delivering to the Administrative
Agent an agreement in form and substance reasonably satisfactory to the
Administrative Agent (it being understood that, (i) such agreement shall be
deemed to be an Accession Memorandum for purposes of Section 8.2, (ii) such
special purpose entity shall be deemed to be a Special Purpose Borrower for
purposes of Sections 3, 4.1, 4.2, 8 (other than 8.1(a), 8.1(b) and 8.1(m)) and
11 (other than 11.1, 11.5, 11.7, 11.8. 11.9 and 11.10) and (iii) notwithstanding
clause (ii) or anything else contained herein, such special purpose entity shall
be permitted to incur up to $40,000,000 in Indebtedness to purchase the land on
which the New Corporate Offices are built or to refinance existing Indebtedness
with respect to such land), and (b) the arrangements and agreements between such
special purpose entity and the Special Purpose Borrower, the Company and the
Company's Affiliates shall be reasonably satisfactory in all material respects
to the Administrative Agent.
67
SECTION 9. ASSIGNMENT; PARTICIPATIONS
9.1 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) except as set forth in Section 9.2, neither
the Company, any Affiliate nor the Special Purpose Borrower may assign or
otherwise transfer any of its rights or obligations hereunder without the prior
written consent of each Bank (and any attempted assignment or transfer by the
Company without such consent shall be null and void) and (ii) no Bank 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 Bank 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 Company (such consent not to be unreasonably withheld),
provided that no consent of the Company shall be required for an
assignment to a Bank, an affiliate of a Bank, an Approved Fund (as defined
below) or, if an Event of Default or Event of Default - Bankruptcy under
Section 8 has occurred and is continuing, any other Person; and
(B) the Administrative Agent; provided that no consent of the
Administrative Agent shall be required for an assignment to a Bank, an
affiliate of a Bank, an Approved Fund (as defined below).
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Bank, an affiliate of a
Bank or an Approved Fund or an assignment of the entire remaining amount
of the assigning Bank's Commitments or Loans hereunder, the amount of the
Commitments or Loans of the assigning Bank subject to each such assignment
(determined as of the date the Assignment and Assumption with respect to
such assignment is delivered to the Administrative Agent) shall not be
less than $5,000,000 unless each of the Company and the Administrative
Agent otherwise consent, provided that (1) no such consent of the Company
shall be required if an Event of Default or an Event of Default -
Bankruptcy has occurred under Section 8 has occurred and is continuing and
(2) such amounts shall be aggregated in respect of each Bank 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
(C) the Assignee, if it shall not be a Bank, shall deliver to the
Administrative Agent an administrative questionnaire.
68
For the purposes of this Section 9.1, "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
Bank, (b) an affiliate of a Bank or (c) an entity or an affiliate of an entity
that administers or manages a Bank.
(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 Bank under this Agreement, and the assigning
Bank 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 Bank's
rights and obligations under this Agreement, such Bank shall cease to be a party
hereto but shall continue to be entitled to the benefits of Sections 2.13(a),
10.2, 10.4 and 12.6). Any assignment or transfer by a Bank of rights or
obligations under this Agreement that does not comply with this Section 9.1
shall be treated for purposes of this Agreement as a sale by such Bank 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 Company, 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 Banks, and the Commitments of, and principal amount of the
Loans owing to, each Bank pursuant to the terms hereof from time to time (the
"Register"). The entries in the Register shall be conclusive, and the Company,
the Administrative Agent and the Banks may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Bank hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Company and any Bank, at any
reasonable time and from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Assumption
executed by an assigning Bank and an Assignee, the Assignee's completed
administrative questionnaire (unless the Assignee shall already be a Bank
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 Bank may, without the consent of the Company or the
Administrative Agent, sell participations to one or more banks or other entities
(a "Participant") in all or a portion of such Bank'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 Bank's obligations under this
Agreement shall remain unchanged, (B) such Bank shall remain solely responsible
to the
69
other parties hereto for the performance of such obligations and (C) the
Company, the Administrative Agent and the other Banks shall continue to deal
solely and directly with such Bank in connection with such Bank's rights and
obligations under this Agreement. Any agreement pursuant to which a Bank sells
such a participation shall provide that such Bank 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 Bank will not, without the consent of the Participant, agree to any
amendment, modification or waiver that (1) requires the consent of each Bank
directly affected thereby pursuant to Section 12.8 and (2) directly affects such
Participant. Subject to paragraph (c)(ii) of this Section, the Company agrees
that each Participant shall be entitled to the benefits of Sections 2.13(a),
10.2, 10.4 and 12.6 to the same extent as if it were a Bank 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 12.8(c) as though it were a Bank, provided such Participant shall be
subject to Section 12.8(b) as though it were a Bank.
(ii) A Participant shall not be entitled to receive any greater
payment under Section 10.4 or 12.6 than the applicable Bank 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
Company's prior written consent. Any Participant that is a Non-U.S. Bank shall
not be entitled to the benefits of Section 10.4 unless such Participant complies
with Section 10.4(d).
(d) Any Bank 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 Bank, 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 Bank from any of its obligations hereunder or
substitute any such pledgee or Assignee for such Bank as a party hereto.
(e) The Company, upon receipt of written notice from the relevant
Bank, agrees to issue Notes to any Bank requiring Notes to facilitate
transactions of the type described in paragraph (d) above.
(f) Notwithstanding the foregoing, any Conduit Bank may assign any
or all of the Loans it may have funded hereunder to its designating Bank without
the consent of the Company or the Administrative Agent and without regard to the
limitations set forth in Section 9.1(b). Each of the Company, each Bank and the
Administrative Agent hereby confirms that it will not institute against a
Conduit Bank or join any other Person in instituting against a Conduit Bank 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 Bank; provided, however, that each Bank designating any Conduit Bank
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 Bank during such period of forbearance.
70
9.2 ASSIGNMENT BY THE COMPANY, AFFILIATES OR SPECIAL PURPOSE BORROWER
None of the Company, the Affiliates or the Special Purpose Borrower may
assign or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of each Bank, provided that (a) the Company and any
Affiliate may transfer existing Loans and obligations with respect thereto to
the Special Purpose Borrower by written notice to the Administrative Agent at
the time the Special Purpose Borrower delivers its Accession Memorandum to the
Administrative Agent and complies with the other conditions set forth in Section
4.2 and (b) the Special Purpose Borrower may assign any Loans made or assigned
to it to the Company or any Affiliate at any time upon written notice to the
Administrative Agent. In the event of any assignment of Loans pursuant to this
Section, the Administrative Agent make appropriate entries in the Register to
reflect such transfer and the assignee shall be treated as the borrower of the
assigned Loans for all purposes of this Agreement. In no event shall any
assignment of Loans from the Company or an Affiliate to the Special Purpose
Borrower, or from the Special Purpose Borrower to an Affiliate, pursuant to the
terms of this Section 9.2 release the Company or the Affiliates from its other
obligations under this Agreement including, in the case of the Company, its
guarantee obligations under Section 3 with respect to the assigned Loans.
SECTION 10. CHANGE IN CIRCUMSTANCES
10.1 BASIS FOR DETERMINING INTEREST RATE INADEQUATE OR UNFAIR
The Banks shall have no obligation to make a new Eurodollar Loan, to
extend an outstanding Eurodollar Loan or to convert an outstanding Loan into a
Eurodollar Loan if the Administrative Agent determines that:
(a) by reason of circumstances generally affecting all interbank
markets for deposits in United States dollars (in the applicable amounts), LIBO
Rates for such deposits are not being offered to the Banks for a term equal to
any Interest Period for which such new Loan, extended Loan or converted Loan
shall be requested by the Company, an Affiliate or the Special Purpose Borrower;
or
(b) based on notice received from the Required Banks, the LIBO Rate
will not adequately and fairly reflect the cost to the Banks of maintaining or
funding such new Loan, extended Loan or converted Loan as shall be requested by
the Company, an Affiliate or the Special Purpose Borrower.
Upon any such determination, the Administrative Agent shall give telecopy or
telephonic notice thereof to the Company, the Affiliate or the Special Purpose
Borrower and the Banks as soon as practicable. If such notice is given pursuant
to this Section 10.1, then (i) any Eurodollar Loans requested to be made on the
first day of such Interest Period shall be made as Base Rate Loans, (ii) any
Base Rate Loans that were to have been converted on the first day of such
Interest Period to Eurodollar Loans shall be continued as Base Rate Loans and
(iii) any outstanding Eurodollar Loans shall be converted, on the last day of
the then-current Interest Period, to Base Rate Loans. Until such relevant notice
has been withdrawn by the Administrative Agent, no further
71
Eurodollar Loans shall be made or continued as such, nor shall the Company, the
Affiliates or the Special Purpose Borrower have the right to convert Base Rate
Loans to Eurodollar Loans.
10.2 ILLEGALITY
(a) If, after the date of this Agreement, the introduction of, or
any change in, any applicable law or regulation or in the interpretation or
administration thereof by any governmental, monetary, or regulatory authority
charged with the interpretation or administration thereof or compliance by any
Bank with any request or directive of any such authority shall make it unlawful
for such Bank to make, maintain or fund any Loan, such Bank shall give notice
thereof to the Company and, if the Loan is to an Affiliate of the Special
Purpose Borrower, to such Affiliate or Special Purpose Borrower (in each case
with a copy to the Administrative Agent). Before giving any notice pursuant to
this Section 10.2, the relevant Bank shall designate a different lending office
if such designation would avoid the need for giving such notice and it would not
otherwise be disadvantageous to such Bank in its reasonable judgment. Upon
receipt of such notice the Company shall or, if the Loan is to an Affiliate or
the Special Purpose Borrower, such Affiliate or Special Purpose Borrower shall
on either (A) the last day of the then-current Interest Period applicable to
such Loan if such Bank may lawfully continue to maintain and fund such Loan to
such day or (B) not later than the last date such Bank may lawfully continue to
fund and maintain such Loan, either (i) prepay in full, without premium or
penalty, the then outstanding principal amount of each affected Loan, together
with accrued interest thereon or (ii) convert such Loan into another category of
Loan (which would not be unlawful for the relevant Banks to make) as provided in
Section 2.7.
(b) Upon any prepayment or conversion of a Loan made pursuant to
Section 10.2(a) other than at the end of an Interest Period, the Company or the
Affiliate or Special Purpose Borrower, as applicable, shall reimburse the Bank
upon demand for any loss incurred by it as a result of the timing of such
prepayment or conversion, in the manner provided in Section 2.16.
10.3 INCREASED COST
(a) If (i) Regulation D of the Federal Reserve Board as in effect on
the Effective Date ("Regulation D"), (ii) minimum reserve requirements of the
Bank of England and/or the Financial Services Authority as in effect on the
Effective Date ("Mandatory Cost Rate"), or (iii) after the date hereof, the
adoption of any applicable law or regulation, or any change therein, or any
change in the interpretation or administration thereof by any Governmental
Authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank with any request or directive
of any such authority, central bank or comparable agency (a "Regulatory
Change"):
(A) shall subject any Bank to any tax, duty or other charge with
respect to Eurodollar Loans or its obligation to make Eurodollar Loans, or
shall change the basis of taxation of payments to such Bank of the
principal of or interest on Eurodollar Loans or any other amounts due
under this Agreement in respect of Eurodollar Loans or its obligation to
make Eurodollar Loans (except for changes in the rate of tax on the
overall net income of such Bank or the Eurodollar Lending Office imposed
by the jurisdictions in
72
which such Bank's principal executive office or Eurodollar Lending Office
are located); or
(B) shall impose, modify or cause to be applicable any reserve
(including, without limitation, any imposed by the Federal Reserve Board),
special deposit or similar requirement against assets of, deposits with or
for the account of, or credit extended by, such Bank or the Eurodollar
Lending Office or shall impose on such Bank (or the Eurodollar Lending
Office) or all interbank markets applicable to such Eurodollar Loans any
other condition affecting the Eurodollar Loans or its obligation to make
Eurodollar Loans;
and the result of any of the foregoing is to increase the cost to such Bank (or
the Eurodollar Lending Office) of making or maintaining any Eurodollar Loans, or
to reduce the amount of any sum received or receivable by such Bank (or the
Eurodollar Lending Office) under this Agreement, by an amount deemed by such
Bank to be material, the Company, the Affiliate or the Special Purpose Borrower,
as applicable, shall pay to such Bank such additional amount or amounts as will
compensate such Bank for any such increased cost or reduction incurred or
suffered by such Bank from and after the later of (i) the date that is 15 days
prior to receipt of notice from such Bank of such costs and (ii) the last date
preceding receipt of such notice from such Bank on which interest was due and
payable pursuant to Section 2.10 on any such Eurodollar Loan. Any Bank which
provides notice to the Company, an Affiliate or the Special Purpose Borrower of
increased costs pursuant to this Section 10.3(a) shall also provide a copy of
such notice to the Administrative Agent.
(b) Without limiting the effect of the foregoing, so long as any
Bank shall be required to maintain reserves against "Eurodollar liabilities"
under Regulation D (or, so long as such Bank may be required, by any Mandatory
Cost Rate or by reason of any Regulatory Change, to maintain reserves against
any other category of liabilities which includes deposits by reference to which
the interest rate on Eurodollar Loans is determined as provided in this
Agreement or against any category of extensions of credit or other assets of
such Bank which includes any Eurodollar Loans) (such reserves are collectively
called "Reserves") the Company, an Affiliate or the Special Purpose Borrower, as
applicable, shall pay to such Bank an amount (reasonably estimated by such Bank)
for each day during each Interest Period for such Eurodollar Loans equal to the
product of the following:
(i) the principal amount of each Eurodollar Loan to which such
Interest Period relates; multiplied by
(ii) the difference between (A) a fraction, the numerator of which
is the LIBO Rate (expressed as a decimal) applicable to such Eurodollar
Loan and the denominator of which is one (1) minus such Bank's Actual
Reserve Cost (defined below) (expressed as a decimal) and (B) the LIBO
Rate; multiplied by
(iii) 1/360.
73
For the purposes of this Section 10.3(b), the "Bank's Actual Reserve Cost"
(which shall be reasonably estimated by the relevant Bank) shall be equal to the
cost actually incurred by such Bank from time to time during such Interest
Period as a result of the requirement that such Bank maintain Reserves with
respect to such Eurodollar Loan.
(c) Each Bank shall take reasonable steps, including without
limitation, the designation of a different Eurodollar Lending Office (unless it
would otherwise be disadvantageous to the Bank in its reasonable judgment) if
such steps would avoid the need for or reduce the amount of any payment that
otherwise would be due under Section 10.3(a) or 10.3(b). Any amounts payable by
the Company, an Affiliate or the Special Purpose Borrower under Sections 10.3(a)
or 10.3(b) shall be remitted after the end of each Interest Period, within 30
days after submission by the Bank to the Company, the Affiliate or the Special
Purpose Borrower, as applicable (with a copy to the Administrative Agent) of a
written statement setting forth the amount thereof.
(d) From time to time during the term of this Agreement, upon the
request of the Company, each Bank shall provide to the Company (with a copy to
the Administrative Agent) its best estimate of such Bank's Actual Reserve Cost
incurred or to be incurred with respect to Eurodollar Loans in the principal
amounts specified in the Company's request.
10.4 TAXES
(a) All payments made by the Company, the Affiliates or the Special
Purpose 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 Bank as a result of a present or former connection between the
Administrative Agent or such Bank 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 Bank having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement or any
other Loan Document). 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 Bank hereunder, the amounts so payable to the Administrative Agent or
such Bank shall be increased to the extent necessary to yield to the
Administrative Agent or such Bank (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 neither
the Company, any Affiliate nor the Special Purpose Borrower shall be required to
increase any such amounts payable to any Bank with respect to any Non-Excluded
Taxes (i) that are attributable to such Bank'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 Bank at the time
such Bank becomes a party to this Agreement, except to the extent that such
Bank's assignor (if any) was entitled, at the time of assignment, to receive
74
additional amounts from the Company, such Affiliate or the Special Purpose
Borrower with respect to such Non-Excluded Taxes pursuant to this paragraph.
(b) In addition, the Company, the Affiliates and the Special Purpose
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
Company, the Affiliates or the Special Purpose Borrower, as promptly as possible
thereafter the Company, such Affiliate or the Special Purpose Borrower, as
applicable, shall send to the Administrative Agent for its own account or for
the account of the relevant Bank, as the case may be, a certified copy of an
original official receipt received by the Company, such Affiliate or the Special
Purpose Borrower showing payment thereof. If the Company 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 Company, such Affiliate or the Special
Purpose Borrower, as applicable, shall indemnify the Administrative Agent and
the Banks for any incremental taxes, interest or penalties that may become
payable by the Administrative Agent or any Bank as a result of any such failure.
(d) Each Bank (or Transferee) that is not a "U.S. Person" as defined in
Section 7701(a)(30) of the Code (a "Non-U.S. Bank") shall deliver to the Company
and the Administrative Agent (or, in the case of a Participant, to the Bank 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. Bank 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. Bank claiming complete exemption from, or a reduced
rate of, U.S. federal withholding tax on all payments by the Company, the
Affiliates and the Special Purpose Borrower under this Agreement and the other
Loan Documents. Such forms shall be delivered by each Non-U.S. Bank 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. Bank shall deliver such forms
promptly upon the obsolescence or invalidity of any form previously delivered by
such Non-U.S. Bank. Each Non-U.S. Bank shall promptly notify the Company at any
time it determines that it is no longer in a position to provide any previously
delivered certificate to the Company (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. Bank shall not be required to deliver
any form pursuant to this paragraph that such Non-U.S. Bank is not legally able
to deliver.
(e) A Bank that is entitled to an exemption from or reduction of non-U.S.
withholding tax under the law of the jurisdiction in which the Company is
located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall deliver to the Company (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or
reasonably requested by the Company, 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 Bank is
legally entitled to complete, execute
75
and deliver such documentation and in such Bank's judgment such completion,
execution or submission would not materially prejudice the legal position of
such Bank.
(f) If the Administrative Agent or any Bank 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 Company, any Affiliate or the
Special Purpose Borrower or with respect to which the Company, any Affiliate or
the Special Purpose Borrower has paid additional amounts pursuant to this
Section 10.4, it shall pay over such refund to the Company, such Affiliate or
the Special Purpose Borrower, as applicable, (but only to the extent of
indemnity payments made, or additional amounts paid, by the Company under this
Section 10.4 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 Bank and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund); provided, that the Company,
such Affiliate and the Special Purpose Borrower, upon the request of the
Administrative Agent or such Bank, agrees to repay the amount paid over to the
Company, such Affiliate or the Special Purpose Borrower, as applicable, (plus
any penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent or such Bank in the event the
Administrative Agent or such Bank is required to repay such refund to such
Governmental Authority. This paragraph shall not be construed to require the
Administrative Agent or any Bank to make available its tax returns (or any other
information relating to its taxes which it deems confidential) to the Company 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.
10.5 REPLACEMENT OF BANKS.
The Company shall be permitted to replace any Bank that (a) requests
reimbursement from it for amounts owing pursuant to Section 10.3 or 10.4, (b)
fails to consent to any amendment to this Agreement requested by the Company
which requires the consent of all of the Banks and which is consented to by the
Required Banks, or (c) defaults in its obligation to make Loans to it hereunder,
with a replacement financial institution; provided that (i) such replacement
does not conflict with any Requirement of Law, (ii) no Event of Default or Event
of Default-Bankruptcy shall have occurred and be continuing at the time of such
replacement, (iii) prior to any such replacement, such Bank shall have taken no
action under Section 10.3(e) or 10.4 so as to eliminate the continued need for
payment of amounts owing pursuant to Section 10.3 or 10.4(b), (iv) the
replacement financial institution shall purchase, at par, all Loans and other
amounts owing to such replaced Bank on or prior to the date of replacement, (v)
to the extent the Company is making a replacement pursuant to clause (b) above,
the replacement financial institution shall consent to the requested amendment,
(vi) the Company shall be liable to such replaced Bank under Section 2.13 if any
Eurodollar Loan owing to such replaced Bank shall be purchased other than on the
last day of the Interest Period relating thereto, (vii) the replacement
financial institution, if not already a Bank, shall be reasonably satisfactory
to the Administrative Agent, (viii) the replaced Bank shall be obligated to make
such replacement in accordance with the provisions of Section 9.1 (provided that
the Company shall be obligated to pay the registration and processing fee
referred to therein), (ix) until such time as such
76
replacement shall be consummated, the Company shall pay all additional amounts
(if any) required pursuant to Section 10.3 or 10.4, as the case may be, and (x)
any such replacement shall not be deemed to be a waiver of any rights that the
Company, the Administrative Agent or any other Bank shall have against the
replaced Bank.
SECTION 11. THE AGENTS
11.1 APPOINTMENT
Each Bank hereby irrevocably designates and appoints the Administrative
Agent as the agent of such Bank under this Agreement, and each such Bank
irrevocably authorizes the Administrative Agent, in such capacity, to take such
action on its behalf under the provisions of this Agreement and to exercise such
powers and perform such duties as are expressly delegated to the Administrative
Agent by the terms of this Agreement, 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 Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Administrative Agent.
11.2 DELEGATION OF DUTIES
The Administrative Agent may execute any of its duties under this
Agreement 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 in
consultation with the Company.
11.3 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 (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 Banks for
any recitals, statements, representations or warranties made by the Company, any
Affiliate or the Special Purpose Borrower or any officer thereof contained in
this Agreement 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 for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or for any failure of the
Company, any Affiliate or the Special Purpose Borrower to perform its
obligations hereunder. The Agents shall not be under any obligation to any Bank
to ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement, or to inspect the
properties, books or records of the Company, any Affiliate or the Special
Purpose Borrower.
77
11.4 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 Company, any
Affiliate or the Special Purpose 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 unless
it shall first receive such advice or concurrence of the Required Banks (or, if
so specified by this Agreement, all Banks) as it deems appropriate or it shall
first be indemnified to its satisfaction by the Banks 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
in accordance with a request of the Required Banks (or, if so specified by this
Agreement, all Banks), and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Banks and all future holders of
the Loans.
11.5 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 or Event of
Default-Bankruptcy unless the Administrative Agent has received notice from a
Bank, the Company, an Affiliate or the Special Purpose Borrower referring to
this Agreement, describing such default or Event of Default or Event of
Default-Bankruptcy 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 Banks. The Administrative Agent shall
take such action with respect to such default or Event of Default or Event of
Default-Bankruptcy as shall be reasonably directed by the Required Banks (or, if
so specified by this Agreement, all Banks); 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 or Event of
Default-Bankruptcy as it shall deem advisable in the best interests of the
Banks.
11.6 NON-RELIANCE ON AGENTS AND OTHER BANKS
Each Bank 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 the Company,
any Affiliate or the Special Purpose Borrower shall be deemed to constitute any
representation or warranty by any Agent to any Bank. Each Bank represents to the
Agents that it has, independently and without reliance upon any Agent or any
other Bank, and based on such documents and information as it has deemed
appropriate, made its
78
own appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Company, the
Affiliates and the Special Purpose Borrower and made its own decision to make
its Loans hereunder and enter into this Agreement. Each Bank also represents
that it will, independently and without reliance upon any Agent or any other
Bank, 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 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
Company, its Affiliates and the Special Purpose Borrower. Except for notices,
reports and other documents expressly required to be furnished to the Banks by
the Administrative Agent hereunder, the Administrative Agent shall not have any
duty or responsibility to provide any Bank with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of the Company and its Affiliates or
the Special Purpose Borrower that may come into the possession of the
Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates.
11.7 INDEMNIFICATION
The Banks agree to indemnify each Agent in its capacity as such (to the
extent not reimbursed by the Company, the Affiliates or the Special Purpose
Borrower and without limiting the obligation of the Company, the Affiliates and
the Special Purpose 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 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, the Loans, this Agreement, any documents contemplated
by or referred to herein 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 Bank 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 misconduct. The agreements in this
Section shall survive the payment of the Loans and all other amounts payable
hereunder.
11.8 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 the Company or an Affiliate as
though such Agent were not an Agent. With respect to Loans made or renewed by
it, each Agent shall have the same rights and powers under this Agreement as any
Bank and may exercise the same as though it were not an Agent, and the terms
"Bank" and "Banks" shall include each Agent in its individual capacity.
79
11.9 SUCCESSOR ADMINISTRATIVE AGENT
The Administrative Agent may resign as Administrative Agent upon 45 days'
notice to the Banks and the Company. If the Administrative Agent shall resign as
Administrative Agent under this Agreement, then the Required Banks shall appoint
from among the Banks a successor administrative agent for the Banks, which
successor administrative agent shall (unless an Event of Default or Event of
Default - Bankruptcy shall have occurred and be continuing) be subject to
approval by the Company (which approval shall not be unreasonably withheld or
delayed), whereupon such successor administrative agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor administrative 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 administrative agent has accepted appointment as Administrative Agent
by the date that is 45 days following a retiring Administrative Agent's notice
of resignation, the retiring Administrative Agent's resignation shall
nevertheless thereupon become effective, and the Banks shall assume and perform
all of the duties of the Administrative Agent hereunder until such time, if any,
as the Required Banks appoint a successor administrative agent as provided for
above. After any retiring Administrative Agent's resignation as Administrative
Agent, the provisions of this Section 11 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.
11.10 SYNDICATION AGENT
The Syndication Agent shall not have any duties or responsibilities
hereunder in its capacity as such.
SECTION 12. MISCELLANEOUS
12.1 NOTICES
Unless otherwise specified herein all notices, requests, demands or other
communications to or from the parties hereto shall be in writing and shall be
deemed to have been duly given and made, in the case of a letter, upon delivery
or three days after deposit in the mail registered first class mail, postage
prepaid; and in the case of a facsimile, when a facsimile is sent and receipt is
telephonically confirmed; provided, however, that notices pursuant to Section
2.6 or 2.7 or any other notices herein which are given by telephone shall not be
effective until received by the party to whom notice is given. Unless otherwise
specified herein, any such notice, request, demand, or communication shall be
delivered or addressed as follows:
(a) if to the Company, to it at Xxx Xxxxxxx Xxxxxx, Xxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000 U.S.A., Attention: Treasurer (or facsimile number
000-000-0000, Attention: Treasurer);
(b) if to an Affiliate or the Special Purpose Borrower, to it at the
address or facsimile number designated in its Accession Memorandum;
80
(c) if to the Administrative Agent, to it at the Notice Office; and
(d) if to the Banks, to each Bank at the address set forth in the
administrative questionnaire delivered to the Administrative Agent;
or at such other address or facsimile number as either party hereto may
designate by written notice to the other party hereto.
12.2 TERM OF AGREEMENT
The term of this Agreement shall be until the payment in full of the
Loans, provided that the obligations of the Company, the Affiliates and the
Special Purpose Borrower with respect to any payment required to be made by it
under this Agreement shall survive the term of this Agreement.
12.3 NO WAIVERS
No failure or delay by the Administrative Agent or any Bank in exercising
any right, power or privilege hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege.
12.4 NEW YORK LAW AND JURISDICTION
(a) THIS AGREEMENT AND EACH ACCESSION MEMORANDUM SHALL BE CONSTRUED
IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK.
(b) THE COMPANY, THE AFFILIATES, THE SPECIAL PURPOSE BORROWER, THE
ADMINISTRATIVE AGENT AND THE BANKS EACH HEREBY IRREVOCABLY AND UNCONDITIONALLY
SUBMITS TO THE NON-EXCLUSIVE GENERAL JURISDICTION AND VENUE OF THE COURTS OF THE
XXXXX XX XXX XXXX XXX XX XXX XXXXXX XXXXXX FOR THE SOUTHERN DISTRICT OF NEW
YORK, AND THE APPELLATE COURTS FROM ANY THEREOF, FOR PURPOSES OF ANY ACTION
ARISING UNDER THIS AGREEMENT OR ANY ACCESSION MEMORANDUM, OR REGARDING ANY LOANS
MADE HEREUNDER, AND EACH HEREBY AGREES THAT ANY DISPUTES RELATING TO THIS
AGREEMENT OR ANY ACCESSION MEMORANDUM OR ANY LOANS MADE HEREUNDER MAY BE
RESOLVED IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK. EACH OF THE FOREGOING PARTIES HEREBY STIPULATES
THAT THE VENUES REFERENCED IN THIS SECTION 12.4(b) ARE CONVENIENT AND EACH
WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE RELATING TO THE VENUE OR
CONVENIENCE OF SUCH COURTS.
(c) The Secretary of the Company shall be the agent for service of
process with regard to all claims hereunder by the Administrative Agent or Banks
against the Special Purpose Borrower or any Affiliate.
81
(d) The Company, the Affiliates and the Special Purpose Borrower
each hereby 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.
12.5 ENTIRE AGREEMENT
This Agreement, together with any Accession Memoranda, constitutes the
entire understanding between the parties with respect to the subject matter of
this Agreement and supersedes any prior discussions, negotiations, agreements
and understandings. The parties hereto acknowledge that the general banking or
business conditions or any similar bank lending rules or requirements of any
organization not having the force of law, now or hereafter in effect shall not
be applicable to this Agreement, the Accession Memoranda or any Loans made
hereunder to the Company, an Affiliate or the Special Purpose Borrower by the
Banks.
12.6 PAYMENT OF CERTAIN EXPENSES
The Company agrees (a) to pay or reimburse the Agents for all their
reasonable 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 fees and disbursements of counsel to the Agents and filing and
recording fees and expenses, with statements with respect to the foregoing to be
submitted to the Company prior to the Effective Date (in the case of amounts to
be paid on the Effective Date) and from time to time thereafter on a quarterly
basis or such other periodic basis as the Agents shall deem appropriate, (b) to
pay or reimburse each Bank and each Agent for all its 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
but not limited to the fees and disbursements of counsel (including the
allocated fees and expenses of in-house counsel) to each Bank and of counsel to
the Agents, (c) to pay, indemnify, and hold each Bank and the Agents 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 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 Bank and each 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 expenses of legal counsel in
connection with claims, actions or proceedings by any
82
Indemnitee against any Loan Party under any Loan Document (all the foregoing in
this clause (d), collectively, the "Indemnified Liabilities"), provided, that
the Company shall have no obligation hereunder to any Indemnitee with respect to
Indemnified Liabilities to the extent such Indemnified Liabilities are found by
a final and nonappealable decision of a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of such Indemnitee.
Without limiting the foregoing, and to the extent permitted by applicable law,
the Company 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. All amounts due
under this Section 12.6 shall be payable not later than 10 days after written
demand therefor. Statements payable by the Company pursuant to this Section 12.6
shall be sent to the Company at the address of the Company set forth in Section
12.1, or to such other Person or address as may be hereafter designated by the
Company in a written notice to the Administrative Agent. The agreements in this
Section 12.6 shall survive repayment of the Loans and all other amounts payable
hereunder.
12.7 [RESERVED]
12.8 CHANGES, WAIVERS, ETC.; ADJUSTMENTS
(a) Neither this Agreement nor any provision hereof may be amended,
supplemented, changed, waived, discharged or terminated orally, but only by a
statement in writing signed by the Company and the Required Banks or, with the
consent of the Required Banks, the Company and the Administrative Agent, it
being agreed by the Company that in no event shall the Company enter into an
agreement with the Special Purpose Borrower which subjects the Company's
approval to an amendment of any part of this Agreement to the consent of the
Special Purpose Borrower; 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, reduce the stated rate
of any interest or fee payable hereunder or extend the scheduled date of any
payment thereof, or increase the amount or extend the termination date of any
Bank's Commitment, or require a Bank to make Loans in any additional currencies
(other than those contemplated by this Agreement) in each case without the
written consent of each Bank directly affected thereby; (ii) eliminate or reduce
the voting rights of any Bank under this Section 12.8 without the written
consent of such Bank; (iii) reduce any percentage specified in the definition of
Required Banks, consent to the assignment or transfer by the Company of any of
its rights and obligations under this Agreement (other than in accordance with
and to the extent permitted by Section 9.2), or release the Company from its
guarantee obligations under Section 3, subject to the Intercreditor Agreement,
release all or substantially all of the Collateral (other than pursuant to the
MOU Transactions or as otherwise permitted hereunder and under the Guarantee and
Collateral Agreement) or release any significant Subsidiary Guarantor from its
obligations under the Guarantee and Collateral Agreement (other than in
connection with the consummation of the MOU Transactions and except as otherwise
permitted hereunder and under the Guarantee and Collateral Agreement) in each
case without the written consent of all Banks; (iv) amend, modify or waive any
provision of Section 11 without the written consent of each Agent or (v) amend
or modify the interest rate, maturity, amortization
83
or principal amount outstanding on any Loan made or assigned to the Special
Purpose Borrower without the Special Purpose Borrower's consent. Any such waiver
and any such amendment, supplement or modification shall apply equally to each
of the Banks and shall be binding upon the Company, the Affiliates, the Special
Purpose Borrower, the Banks, the Agents and all future holders of the Loans. In
the case of any waiver, the Company, the Affiliates, the Special Purpose
Borrower, the Banks and the Administrative Agent shall be restored to their
former position and rights hereunder, and any Default, Event of Default or Event
of Default - Bankruptcy waived shall be deemed to be cured and not continuing;
but no such waiver shall extend to any subsequent or other Default, Event of
Default or Event of Default - Bankruptcy, or impair any right consequent
thereon.
(b) Subject to the Intercreditor Agreement, except to the extent
that this Agreement expressly provides for payments to be allocated to a
particular Bank, if any Bank (a "Benefitted Bank") shall receive any payment of
all or part of the Obligations owing to it in a greater proportion than any such
payment to any other Bank, if any, in respect of the Obligations owing to such
other Bank, such Benefitted Bank shall purchase for cash from the other Banks a
participating interest in such portion of the Obligations owing to each such
other Bank as shall be necessary to cause such Benefitted Bank to share the
excess payment ratably with each of the Banks; provided, however, that if all or
any portion of such excess payment is thereafter recovered from such Benefitted
Bank, such purchase shall be rescinded and the purchase price returned, to the
extent of such recovery, but without interest.
(c) In addition to any rights and remedies of the Banks provided by
law, each Bank shall have the right, without prior notice to the Company or any
Loan Party, any such notice being expressly waived by any Loan Party to the
extent permitted by applicable law, upon any amount becoming due and payable by
the Company or any Loan Party 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 Bank or any Affiliate or
any branch or agency thereof to or for the credit or the account of such Loan
Party. Each Bank agrees promptly to notify the Company or the applicable Loan
Party and the Administrative Agent after any such setoff and application made by
such Bank, provided that the failure to give such notice shall not affect the
validity of such setoff and application.
12.9 SEVERABILITY
If any provision of this Agreement or the application thereof to any
person or circumstance shall be invalid or unenforceable to any extent, the
remainder of this Agreement, or the application of such provision to persons or
circumstances other than those as to which it is invalid or unenforceable, shall
not be affected thereby, and each provision of this Agreement shall be valid and
enforceable to the extent permitted by law.
84
12.10 SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns.
12.11 COUNTERPARTS
This Agreement may be signed in any number of counterparts with the same
effect as if the signatures thereto and hereto were upon the same instrument.
Complete sets of counterparts shall be delivered to the Company, the
Administrative Agent and the Banks.
12.12 THIRD PARTY BENEFICIARIES
Any Special Purpose Borrower, each of the Affiliates of the Company and
any office, branch or affiliate of the Administrative Agent and the Banks which
make Loans hereunder shall be a third party beneficiary of this Agreement.
12.13 ELECTRONIC RECORDING
The parties to this Agreement may electronically record any telephone
communications with one another relating to any preliminary or final notices of
any Borrowing or any extension and conversion of Loans pursuant to Section 2.6
or 2.7. In the event that any electronically recorded final notice of Borrowing
or extension or conversion differs from the terms of the corresponding written
notice of Borrowing or extension or conversion, the terms of the electronically
recorded notice shall control.
12.14 USA PATRIOT ACT
Each Bank hereby notifies the Company that pursuant to the requirements of
the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the "Act"), it is required to obtain, verify and record information that
identifies the Company, which information includes the name and address of the
Company and other information that will allow such Bank to identify the Company
in accordance with the Act.
12.15 INTERCREDITOR AGREEMENT
Each Bank acknowledges that it has received and reviewed a copy of the
Intercreditor Agreement and has agreed to the terms thereof. Each Bank 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
Banks.
12.16 RESERVED
12.17 WAIVER OF JURY TRIAL
THE COMPANY, THE AFFILIATES, THE SPECIAL PURPOSE BORROWER, THE
ADMINISTRATIVE AGENT AND THE BANKS HEREBY IRREVOCABLY AND
85
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.
12.18 EFFECT OF AMENDMENT AND RESTATEMENT OF THE EXISTING FIVE-YEAR TERM
LOAN AGREEMENT.
On the Effective Date, the Existing Five-Year Term Loan Agreement shall be
amended, restated and superseded in its entirety. The parties hereto acknowledge
and agree that (a) this Agreement and the other Loan Documents, whether executed
and delivered in connection herewith or otherwise, do not constitute a novation,
payment and reborrowing, or termination of the "Obligations" (as defined in the
Existing Five-Year Term Loan Agreement) under the Existing Five-Year Term Loan
Agreement as in effect prior to the Effective Date and (b) such "Obligations"
are in all respects continuing (as amended and restated hereby) with only the
terms thereof being modified as provided in this Agreement.
12.19 RELEASE 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 Collateral
Agent is hereby irrevocably authorized by each Bank (without requirement of
notice to or consent of any Bank except as expressly required by Section 12.8)
to take any action requested by the Company 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 12.8 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 Collateral 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.
12.20 NATURE OF SPECIAL PURPOSE BORROWER'S OBLIGATIONS; LIMITATION ON
LIABILITY; SURVIVAL
Section 3 of the Accession Memorandum dated October 31, 2002 pursuant to
which the Special Purpose Borrower became party to this Agreement is hereby
incorporated in its entirety.
[THIS SPACE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
VISTEON CORPORATION
By: /s/ Xxxxx Look
----------------------------------
Name: Xxxxx Look
Title: Treasurer
OASIS HOLDINGS STATUTORY TRUST
By: U.S. BANK NATIONAL ASSOCIATION,
successor to State Street Bank and Trust
Company of Connecticut, National
Association, not in its individual
capacity but solely as trustee
By: /s/ Xxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Officer
JPMORGAN CHASE BANK, as Administrative
Agent and Bank
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
CITICORP USA, INC., as Syndication Agent
By: /s/ Xxxx X. Xxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Director
SIGNATURE PAGE - VISTEON AMENDED AND RESTATED FIVE-YEAR TERM LOAN AGREEMENT
