Exhibit 99.1
EXECUTION COPY
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REVOLVING CREDIT, TERM LOAN AND GUARANTY AGREEMENT
Among
XXXXXXX & XXXXXX PRODUCTS CO.,
a Debtor and a Debtor-in-Possession under Chapter 11 of the Bankruptcy Code
as Borrower,
XXXXXXX & XXXXXX CORPORATION,
and
THE SUBSIDIARIES OF THE BORROWER NAMED HEREIN,
Each a Debtor and a Debtor-in-Possession under
Chapter 11 of the Bankruptcy Code
as Guarantors
and
THE LENDERS PARTY HERETO,
and
JPMORGAN CHASE BANK, N.A.
as Administrative Agent
X.X. XXXXXX SECURITIES INC.,
as Sole Bookrunner
and
Sole Lead Arranger
Dated as of May 17, 2005
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS......................................................2
SECTION 1.01 Defined Terms........................................2
SECTION 1.02 Terms Generally.....................................22
SECTION 1.03 Accounting Terms; GAAP..............................22
SECTION 1.04 Certain Post Closing Matters........................23
SECTION 2. AMOUNT AND TERMS OF CREDIT......................................24
SECTION 2.01 Commitments of the Lenders..........................24
SECTION 2.02 Reserved............................................25
SECTION 2.03 Letters of Credit...................................25
SECTION 2.04 Requests for Borrowings.............................30
SECTION 2.05 Funding of Borrowings...............................31
SECTION 2.06 Interest Elections..................................32
SECTION 2.07 [Reserved]..........................................33
SECTION 2.08 Interest on Loans...................................33
SECTION 2.09 Default Interest....................................33
SECTION 2.10 Alternate Rate of Interest..........................34
SECTION 2.11 Repayment of Loans; Evidence of Debt................34
SECTION 2.12 Optional Termination or Reduction of Commitment.....35
SECTION 2.13 Mandatory Prepayment; Commitment Termination........35
SECTION 2.14 Optional Prepayment of Loans........................36
SECTION 2.15 Reserved............................................36
SECTION 2.16 Increased Costs.....................................36
SECTION 2.17 Break Funding Payments..............................37
SECTION 2.18 Taxes...............................................38
SECTION 2.19 Payments Generally; Pro Rata Treatment..............39
SECTION 2.20 Mitigation Obligations; Replacement of Lenders......40
SECTION 2.21 Certain Fees........................................41
SECTION 2.22 Commitment Fees.....................................41
SECTION 2.23 Letter of Credit Fees...............................41
SECTION 2.24 Nature of Fees......................................42
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SECTION 2.25 Priority and Liens..................................42
SECTION 2.26 Right of Set-Off....................................43
SECTION 2.27 Security Interest in Letter of Credit Account.......44
SECTION 2.28 Payment of Obligations..............................44
SECTION 2.29 No Discharge; Survival of Claims....................44
SECTION 2.30 Use of Cash Collateral..............................44
SECTION 3. REPRESENTATIONS AND WARRANTIES..................................44
SECTION 3.01 Organization and Authority..........................44
SECTION 3.02 Due Execution.......................................45
SECTION 3.03 Statements Made.....................................45
SECTION 3.04 Financial Statements................................46
SECTION 3.05 Ownership...........................................46
SECTION 3.06 Liens...............................................46
SECTION 3.07 Compliance with Law.................................46
SECTION 3.08 Insurance...........................................46
SECTION 3.09 Use of Proceeds.....................................46
SECTION 3.10 Litigation..........................................47
SECTION 3.11 Labor Relations.....................................47
SECTION 3.12 ERISA...............................................47
SECTION 3.13 The Orders..........................................48
SECTION 3.14 Properties..........................................48
SECTION 4. CONDITIONS OF LENDING...........................................48
SECTION 4.01 Conditions Precedent to Initial Loans and Initial
Letters of Credit.................................48
SECTION 4.02 Conditions Precedent to Each Loan and Each Letter
of Credit.........................................51
SECTION 4.03 Conditions Precedent to the Tranche B Loan..........52
SECTION 5. AFFIRMATIVE COVENANTS...........................................52
SECTION 5.01 Financial Statements, Reports, etc..................53
SECTION 5.02 Existence...........................................56
SECTION 5.03 Insurance...........................................56
SECTION 5.04 Obligations and Taxes...............................56
SECTION 5.05 Notice of Event of Default, etc.....................56
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SECTION 5.06 Access to Books and Records.........................57
SECTION 5.07 Maintenance of Concentration Account................57
SECTION 5.08 Borrowing Base Certificate..........................57
SECTION 5.09 Collateral Monitoring and Review....................58
SECTION 5.10 Public Rating.......................................58
SECTION 5.11 Receivables.........................................58
SECTION 6. NEGATIVE COVENANTS..............................................58
SECTION 6.01 Liens...............................................58
SECTION 6.02 Merger, etc.........................................59
SECTION 6.03 Indebtedness........................................59
SECTION 6.04 Capital Expenditures................................60
SECTION 6.05 EBITDA..............................................60
SECTION 6.06 Guarantees and Other Liabilities....................61
SECTION 6.07 Chapter 11 Claims...................................61
SECTION 6.08 Dividends; Capital Stock............................62
SECTION 6.09 Transactions with Affiliates........................62
SECTION 6.10 Investments, Loans and Advances.....................62
SECTION 6.11 Disposition of Assets...............................62
SECTION 6.12 Nature of Business..................................63
SECTION 7. EVENTS OF DEFAULT...............................................63
SECTION 7.01 Events of Default...................................63
SECTION 8. THE AGENT.......................................................67
SECTION 8.01 Administration by Agent.............................67
SECTION 8.02 Rights of Agent.....................................67
SECTION 8.03 Liability of Agent..................................67
SECTION 8.04 Reimbursement and Indemnification...................68
SECTION 8.05 Successor Agent.....................................68
SECTION 8.06 Independent Lenders.................................68
SECTION 8.07 Advances and Payments...............................69
SECTION 8.08 Sharing of Setoffs..................................69
SECTION 9. GUARANTY........................................................70
SECTION 9.01 Guaranty............................................70
SECTION 9.02 No Impairment of Guaranty...........................71
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SECTION 9.03 Subrogation.........................................71
SECTION 10. MISCELLANEOUS..................................................71
SECTION 10.01 Notices.............................................71
SECTION 10.02 Survival of Agreement, Representations and
Warranties, etc...................................72
SECTION 10.03 Successors and Assigns..............................72
SECTION 10.04 Confidentiality.....................................75
SECTION 10.05 Expenses; Indemnity; Damage Waiver..................76
SECTION 10.06 CHOICE OF LAW.......................................77
SECTION 10.07 No Waiver...........................................77
SECTION 10.08 Extension of Maturity...............................77
SECTION 10.09 Amendments, etc.....................................77
SECTION 10.10 Severability........................................79
SECTION 10.11 Headings............................................79
SECTION 10.12 Survival............................................79
SECTION 10.13 Execution in Counterparts; Integration;
Effectiveness.....................................79
SECTION 10.14 Prior Agreements....................................80
SECTION 10.15 USA Patriot Act.....................................80
SECTION 10.16 WAIVER OF JURY TRIAL................................80
ANNEX A Commitment Amounts
EXHIBIT A - Form of Interim Order
EXHIBIT B - Form of Security and Pledge Agreement
EXHIBIT C-1 - Form of Opinion of Xxxxxxxx & Xxxxx LLP
EXHIBIT C-2 - Form of Opinion of General Counsel
EXHIBIT D - Form of Assignment and Acceptance
SCHEDULE 1.01 - Existing Agreement
SCHEDULE 3.04 - Material Adverse Effect
SCHEDULE 3.05 - Subsidiaries
SCHEDULE 3.10 - Litigation
SCHEDULE 3.11 - Labor Relations
SCHEDULE 6.01 - Liens
SCHEDULE 6.09 - Transactions with Affiliates
SCHEDULE 6.10 - Existing Investments
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REVOLVING CREDIT, TERM LOAN AND GUARANTY AGREEMENT
Dated as of May 17, 2005
REVOLVING CREDIT, TERM LOAN AND GUARANTY AGREEMENT, dated as of May 17,
2005, among XXXXXXX & XXXXXX PRODUCTS CO., a Delaware corporation (the
"Borrower"), a debtor and debtor-in-possession in a case pending under Chapter
11 of the Bankruptcy Code, XXXXXXX & XXXXXX CORPORATION, a Delaware corporation
(the "Parent") and the subsidiaries of the Borrower signatory hereto (each a
"Guarantor" and collectively the "Guarantors"), each of which Guarantors is a
debtor and debtor-in-possession in a case pending under Chapter 11 of the
Bankruptcy Code (the cases of the Borrower and the Guarantors, each a "Case" and
collectively, the "Cases"), JPMORGAN CHASE BANK, N.A., a national banking
association ("JPMCB"), each of the other financial institutions from time to
time party hereto (together with JPMCB, the "Lenders") and JPMORGAN CHASE BANK,
N.A., as administrative agent (in such capacity, the "Agent") for the Lenders.
INTRODUCTORY STATEMENT
On May 17, 2005, the Borrower and the Guarantors filed voluntary petitions
with the Bankruptcy Court initiating the Cases and have continued in the
possession of their assets and in the management of their businesses pursuant to
Sections 1107 and 1108 of the Bankruptcy Code.
The Borrower has applied to the Lenders for loan facilities of up to
$300,000,000, comprised of (i) a revolving credit and letter of credit facility
in an aggregate principal amount of up to $200,000,000 as set forth herein and
(ii) a term loan in an aggregate principal amount of up to $100,000,000 as set
forth herein, all of the Borrower's obligations under each of which are to be
guaranteed by the Guarantors.
The proceeds of the loan facilities will be used (i) in the case of
revolving credit loans and letters of credit, for general working capital and
corporate purposes of the Borrower and the Guarantors, and (ii) in the case of
the term loan, for general working capital and corporate purposes of the
Borrower and the Guarantors and to repay amounts owed under the revolving credit
and letter of credit facility (with no commitment reduction).
To provide guarantees and security for the repayment of the Loans, the
reimbursement of any draft drawn under a Letter of Credit and the payment of all
other Secured Obligations (including, without limitation, the obligations of the
Borrower and the Guarantors to JPMCB, any other Lender or any of their
respective banking Affiliates permitted by Section 6.03), the Borrower and the
Guarantors will provide to the Agent and the Lenders the claims and liens
described in Section 2.25 of this Agreement.
Accordingly, the parties hereto hereby agree as follows:
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SECTION 1. DEFINITIONS
SECTION 1.01 Defined Terms."ABR", when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing,
are bearing interest at a rate determined by reference to the Alternate Base
Rate.
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"Additional Credit" shall have the meaning given such term in Section
4.02(d).
"Adjusted LIBO Rate" shall mean, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"Affiliate" shall mean, as to any Person, any other Person which, directly
or indirectly, is in control of, is controlled by, or is under common control
with, such Person. For purposes of this definition, a Person (a "Controlled
Person") shall be deemed to be "controlled by" another Person (a "Controlling
Person") if the Controlling Person possesses, directly or indirectly, power to
direct or cause the direction of the management and policies of the Controlled
Person whether by contract or otherwise.
"Agent" shall have the meaning given such term in the Introduction.
"Agreement" shall mean this Revolving Credit, Term Loan and Guaranty
Agreement, as the same may from time to time be amended, modified or
supplemented.
"Alternate Base Rate" shall mean, for any day, a rate per annum equal to
the greatest of (a) the Prime Rate in effect on such day, (b) the Base CD Rate
in effect on such day plus 1% and (c) the Federal Funds Effective Rate in effect
on such day plus 1/2 of 1%. Any change in the Alternate Base Rate due to a
change in the Prime Rate, the Base CD Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such change in the
Prime Rate, the Base CD Rate or the Federal Funds Effective Rate, respectively.
"Approved Fund" shall have the meaning given such term in Section 10.03(b).
"Assessment Rate" shall mean, for any day, the annual assessment rate in
effect on such day that is payable by a member of the Bank Insurance Fund
classified as "well-capitalized" and within supervisory subgroup "B" (or a
comparable successor risk classification) within the meaning of 12 C.F.R. Part
327 (or any successor provision) to the Federal Deposit Insurance Corporation
for insurance by such Corporation of time deposits made in dollars at the
offices of such member in the United States; provided that if, as a result of
any change in any law, rule or regulation, it is no longer possible to determine
the Assessment Rate as aforesaid, then the Assessment Rate shall be such annual
rate as shall be determined by the Agent to be representative of the cost of
such insurance to the Lenders.
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"Assignment and Acceptance" shall mean an assignment and acceptance entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 10.03), and accepted by the Agent, substantially in the form
of Exhibit D.
"Audit Committee Report Date" shall mean the date on which the audit
committee of the Parent delivers to the Parent's Board of Directors its final
report with respect to the rebate investigation and any related or concurrent
financial reporting investigation of the Parent and/or any of its direct or
indirect Subsidiaries.
"Availability Period" shall mean the period from and including the Closing
Date to but excluding the Termination Date.
"Available Inventory" shall have the meaning given such term in the
Borrowing Base Amendment.
"Available Receivables" shall have the meaning given such term in the
Borrowing Base Amendment.
"Bankruptcy Code" shall mean The Bankruptcy Reform Act of 1978, as
heretofore and hereafter amended, and codified as 11 U.S.C. Section 101 et seq.
"Bankruptcy Court" shall mean the United States Bankruptcy Court for the
Eastern District of Michigan or any other court having jurisdiction over the
Cases from time to time.
"Base CD Rate" shall mean the sum of (a) the Three-Month Secondary CD Rate
multiplied by the Statutory Reserve Rate plus (b) the Assessment Rate.
"Board" shall mean the Board of Governors of the Federal Reserve System of
the United States.
"Borrower" shall have the meaning given such term in the Introduction.
"Borrowing" shall mean (a) the incurrence, conversion or continuation of
Tranche A Loans of a single Type made from all the Tranche A Lenders on a single
date and having, in the case of Eurodollar Loans, a single Interest Period and
(b) the incurrence of the Tranche B Loan.
"Borrowing Base" shall be defined in a manner reasonably satisfactory to
the Agent to be set forth in the Borrowing Base Amendment and shall limit the
Total Commitment Usage to an amount equal to the sum, without duplication, of
(A) Available Receivables, plus (B) Available Inventory, plus (C) the PP&E
Component, minus (D) the Borrowing Base Carve-Out Amount, provided, that the
amount derived from clause (C) shall not exceed the lesser of (i) $50,000,000 or
(ii) an amount equal to a percentage satisfactory to the Agent of the sum of
clauses (A), (B) and (C). The Borrowing Base at any time shall be determined by
reference to the most recent Borrowing Base Certificate delivered to Agent
pursuant to the Borrowing Base Amendment or Section 5.08. Standards of
eligibility and reserves and advance rates of the Borrowing Base may be revised
and adjusted from time to time by the Agent in its reasonable
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discretion, and the Borrowing Base shall be subject to reserves from time to
time established by the Agent in its reasonable discretion, with any changes in
such standards and reserves to be effective upon the later of the date of the
next succeeding weekly Borrowing Base Certificate and to be effective five
Business Days after delivery of notice thereof to the Borrower.
"Borrowing Base Amendment" shall mean an amendment to this Agreement
reasonably satisfactory to the Agent to be executed and delivered prior to the
entry of the Final Order.
"Borrowing Base Carve-Out Amount" shall mean at any time an amount equal to
$7,000,000 plus the Carve-Out Reserve.
"Borrowing Base Certificate" shall mean a certificate substantially in the
form of an exhibit to be annexed to the Borrowing Base Amendment (with such
changes therein as may be required by the Agent to reflect the components of and
reserves against the Borrowing Base as provided for hereunder from time to
time), executed and certified as accurate and complete in all material respects
by a Financial Officer which shall include appropriate exhibits, schedules,
supporting documentation, and additional reports (i) as referred to in such
exhibit to the Borrowing Base Amendment, (ii) as reasonably requested by the
Agent, and (iii) as provided for in Section 5.08.
"Borrowing Request" shall mean a request by the Borrower for a Borrowing in
accordance with Section 2.04.
"Budgets" shall have the meaning given such term in Section 5.01(m).
"Business Day" shall mean any day other than a Saturday, Sunday or other
day on which commercial banks in New York City are required or authorized to
remain closed (and, for a Letter of Credit, other than a day on which the
Issuing Lender issuing such Letter of Credit is closed); provided, however, that
when used in connection with a Eurodollar Loan, the term "Business Day" shall
also exclude any day on which banks are not open for dealings in dollar deposits
on the London interbank market.
"Capital Expenditures" shall mean, for any period, for any Person, the
aggregate of all expenditures (whether (i) paid in cash and not theretofore
accrued or (ii) accrued as liabilities during such period, and including that
portion of any post-petition Capitalized Lease which is capitalized on the
consolidated balance sheet of the Borrower and the Guarantors) net of cash
amounts received by the Borrower and the Guarantors from other Persons during
such period in reimbursement of Capital Expenditures made by such Person,
excluding interest capitalized during construction, made by the Borrower and the
Guarantors during such period that, in conformity with GAAP, are required to be
included in or reflected by the property, plant, equipment or similar fixed
asset accounts reflected in the consolidated balance sheet of the Borrower and
the Guarantors (including equipment which is purchased simultaneously with the
trade-in of existing equipment owned by the Borrower or any Guarantor to the
extent of the gross amount of such purchase price less the "trade-in" value or
credit granted by the purchaser of the equipment being traded in at such time),
but excluding expenditures made in connection with the replacement or
restoration of assets to the extent reimbursed or financed from (x) insurance
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proceeds paid on account of the loss of or the damage to the assets being
replaced or restored or (y) awards of compensation arising from the taking by
condemnation or eminent domain of such assets being replaced.
"Capitalized Lease" shall mean, as applied to any Person, any lease of
property by such Person as lessee which would be capitalized on a balance sheet
of such Person prepared in accordance with GAAP. The amount of obligations of
such Person under a Capitalized Lease shall be the capitalized amount thereof
determined in accordance with GAAP.
"Carve-Out" shall mean (i) all fees required to be paid to the Clerk of the
Bankruptcy Court and to the Office of the United States Trustee under section
1930(a) of title 28 of the United States Code and (ii) after the occurrence and
during the continuance of an Event of Default an amount not exceeding $7,000,000
in the aggregate (plus the amount of the unpaid professional fees and expenses
incurred by the Debtors prior to the occurrence of an Event of Default; provided
that the amounts in respect thereof shall have been provided on a monthly basis
in writing by Debtors' counsel to the Agent (at any time, the most recently
reported amounts being the "Carve-Out Reserve") prior to the occurrence of any
such Event of Default and reserved against availability under the Borrowing
Base), which amount may be used subject to the terms of the Orders, to pay any
fees or expenses incurred by the Borrower and the Guarantors and any statutory
committees appointed in the Cases (each, a "Committee") in respect of (A)
allowances of compensation for services rendered or reimbursement of expenses
awarded by the Bankruptcy Court to the Borrower's or any Guarantor's or any
Committee's professionals and (B) the reimbursement of expenses allowed by the
Bankruptcy Court incurred by Committee members in the performance of their
duties (but excluding fees and expenses of third party professionals employed by
such members); provided that (w) the dollar limitation in clause (ii) of this
definition on fees and disbursements shall neither be reduced nor increased by
the amount of any compensation or reimbursement of expenses incurred, awarded or
paid prior to the occurrence of an Event of Default in respect of which the
Carve Out is invoked or by any fees, expenses, indemnities or other amounts paid
to any Agent, Lender or their respective attorneys and agents under the DIP
Credit Agreement or otherwise, (x) to the extent the dollar limitation in clause
(ii) of this definition on fees and disbursement is reduced by any amount as a
result of payment of such fees and disbursements during the continuance of an
Event of Default, and such Event of Default is subsequently cured or waived,
then effective as of the effectiveness of such cure or waiver, such dollar
limitation shall be increased by an amount equal to the amount by which it has
been so reduced, (y) nothing herein shall be construed to impair the ability of
any party to object to any of the fees, expenses, reimbursement or compensation
described in clauses (A) and (B) above, and (z) cash or other amounts on deposit
in the Letter of Credit Account shall not be subject to the Carve Out.
"Cases" shall have the meaning given such term in the Introduction.
"Cash Collateralization" shall have the meaning given such term in Section
2.03(j).
"Change in Law" shall mean (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c)
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compliance by any Lender or Issuing Lender (or, for purposes of Section 2.16(b),
by any lending office of such Lender or Issuing Lender or by such Lender's or
Issuing Lender's holding company, if any) with any request, guideline or
directive (whether or not having the force of law) of any Governmental Authority
made or issued after the date of this Agreement.
"Change of Control" shall mean (i) the acquisition of ownership, directly
or indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof), other than
Heartland Industrial Partners, L.P. and its Affiliates, of Equity Interests
representing more than 50% of the aggregate ordinary voting power represented by
the issued and outstanding Equity Interests of the Borrower; or (ii) the
occupation of a majority of the seats (other than vacant seats) on the Board of
Directors of the Borrower by Persons who were neither (A) nominated by the Board
of Directors of the Borrower nor (B) appointed by directors so nominated.
"Closing Date Budget" shall have the meaning given such term in Section
4.01(l).
"Closing Date" shall mean the date on which this Agreement has been
executed and the conditions precedent to the making of the initial Loans or the
issuance of the initial Letter of Credit (whichever may occur first) set forth
in Section 4 have been satisfied or waived, which date shall occur promptly upon
entry of the Interim Order, but in any event not later than 10 days following
the entry of the Interim Order.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time, and the regulations promulgated and rulings issued thereunder.
"Collateral" shall mean the "Collateral" as defined in the Security and
Pledge Agreement.
"Commitment" shall mean either a Tranche A Commitment or a Tranche B
Commitment.
"Commitment Fee" shall mean, collectively, the Tranche A Commitment Fee and
the Tranche B Commitment Fee.
"Consummation Date" shall mean the date of the substantial consummation (as
defined in Section 1101 of the Bankruptcy Code and which for purposes of this
Agreement shall be no later than the effective date) of a Reorganization Plan
that is confirmed pursuant to an order of the Bankruptcy Court.
"Delivery Date" shall mean the earlier of (i) the date which is twenty (20)
Business Days after the Closing Date and (ii) the date the Final Order is
entered.
"Dollars" and "$" shall mean lawful money of the United States of America.
"Domestic EBITDA" shall mean, for any period, all as determined in
accordance with GAAP, the consolidated net income (or net loss) of the Domestic
Entities for such period, plus (a) to the extent deducted in the calculation of
consolidated net income, without duplication,
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the sum of (i) depreciation expense, (ii) amortization expense, (iii) other
non-cash charges, (iv) consolidated foreign, federal, state and local income tax
expense, (v) gross interest expense for such period less gross interest income
for such period, (vi) extraordinary losses, (vii) any charges for Restructuring
Costs, (viii) professional fees and other "Chapter 11 expenses" (or
"administrative costs reflecting Chapter 11 expenses") attributable to the
Domestic Entities for such period, and (ix) plus or minus the cumulative effect
of any change in accounting principles less (b) to the extent included in the
calculation of consolidated net income, extraordinary gains, minus (c) the
amount of cash received or expended in such period in respect of any amount
which, under clauses (iii) and (vii) above, was added back in determining
Domestic EBITDA for such or any prior period.
"Domestic Entities" shall mean the Borrower and its direct and indirect
domestic Subsidiaries on a consolidated basis.
"Eligible Assignee" shall mean (i) a commercial bank having total assets in
excess of $1,000,000,000, (ii) a finance company, insurance company or other
financial institution or fund, in each case reasonably acceptable to the Agent,
which in the ordinary course of business extends credit of the type contemplated
herein and has total assets in excess of $200,000,000 and whose becoming an
assignee would not constitute a prohibited transaction under Section 4975 of
ERISA, (iii) an Affiliate of the assignor Lender, (iv) an Approved Fund and (v)
any other financial institution satisfactory to the Agent.
"Environmental Laws" shall mean all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating to the protection of the environment, preservation or reclamation of
natural resources, the management, release or threatened release of any
Hazardous Material or to health and safety matters.
"Environmental Liability" shall mean any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Environmental Lien" shall mean a Lien in favor of any Governmental
Authority for (i) any liability under federal or state environmental laws or
regulations, or (ii) damages arising from or costs incurred by such Governmental
Authority in response to a release or threatened release of a hazardous or toxic
waste, substance or constituent, or other substance into the environment.
"Equity Interests" shall mean shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person, and any
warrants, options or other rights entitling the holder thereof to purchase or
acquire any such equity interest. "ERISA" shall mean the Employee Retirement
Income Security Act of 1974, as amended from time to time.
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"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"Eurocurrency Liabilities" shall have the meaning assigned thereto in
Regulation D issued by the Board, as in effect from time to time.
"Eurodollar", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Adjusted LIBO Rate.
"Eurodollar Borrowing" shall mean a Borrowing comprised of Eurodollar
Loans.
"Event of Default" shall have the meaning given such term in Section 7.
"Excluded Taxes" shall mean, with respect to the Agent, any Lender, any
Issuing Lender or any other recipient of any payment to be made by or on account
of any obligation of the Borrower hereunder, (a) income or franchise taxes
imposed on (or measured by) its net income by the United States of America, or
by the jurisdiction under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which
its applicable lending office is located, (b) any branch profits taxes imposed
by the United States of America or any similar tax imposed by any other
jurisdiction in which the Borrower is located and (c) in the case of a Foreign
Lender, any withholding tax that is imposed on amounts payable to such Foreign
Lender at the time such Foreign Lender becomes a party to this Agreement (or
designates a new lending office) or is attributable to such Foreign Lender's
failure to comply with Section 2.18(e), except to the extent that such Foreign
Lender (or its assignor, if
9
any) was entitled, at the time of designation of a new lending office (or
assignment), to receive additional amounts from the Borrower with respect to
such withholding tax pursuant to Section 2.18.
"Existing First Lien Agent" shall mean JPMorgan Chase Bank, N.A., in its
capacity as Administrative Agent and Collateral Agent under the Existing First
Lien Agreement, and its successors in such capacity.
"Existing First Lien Agreement" shall mean the Credit Agreement dated as of
December 20, 2001, as amended and restated as of September 1, 2004, as amended,
by and among the Borrower, the lenders party thereto, JPMorgan Chase Bank, N.A.,
as Administrative Agent and Collateral Agent and Credit Suisse First Boston, as
Syndication Agent, as amended, restated, modified or waived from time to time,
and shall include all of the agreements granting security interests and Liens in
property and assets of the Borrower and the Guarantors to the Existing First
Lien Agent or the Existing First Lien Lenders, including without limitation, the
security agreements, mortgages and leasehold mortgages listed on Schedule 1.01
hereto, each of which documents was executed and delivered (to the extent party
thereto) by the Borrower and the Guarantors prior to the Filing Date, as each
may have been amended or modified from time to time.
"Existing First Lien Indebtedness" shall mean Indebtedness and other
obligations incurred by the Borrower and the Guarantors under the Existing First
Lien Agreement.
"Existing First Lien Lenders" shall mean the lenders from time to time
holding Existing First Lien Indebtedness.
"Federal Funds Effective Rate" shall mean, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"Fees" shall collectively mean the Commitment Fees, Letter of Credit Fees
and other fees referred to in Sections 2.21, 2.22 and 2.23.
"Filing Date" shall mean May 17, 2005.
"Final Order" shall have the meaning given such term in Section 4.02(d).
"Financial Officer" shall mean the chief financial officer, Senior Vice
President - Finance and Accounting, Vice President - Finance, principal
accounting officer, controller, corporate controller, treasurer, treasury
manager or corporate treasurer of the Borrower.
"Finished Goods" shall mean completed goods which require no additional
processing or manufacturing, to be sold to non-Affiliate/third party customers
by the Borrower or any Guarantor in the ordinary course of business.
10
"Foreign Lender" shall mean any Lender that is organized under the laws of
a jurisdiction other than that in which the Borrower is located. For purposes of
this definition and Section 2.18(e), the United States of America, each State
thereof and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"Foreign Subsidiary" shall mean any direct or indirect non-U.S. Subsidiary
of the Borrower.
"GAAP" shall mean generally accepted accounting principles applied in
accordance with Section 1.03.
"Global EBITDA" shall mean, for any period, all as determined in accordance
with GAAP, the consolidated net income (or net loss) of the Global Entities for
such period, plus (a) to the extent deducted in the calculation of consolidated
net income, without duplication, the sum of (i) depreciation expense, (ii)
amortization expense, (iii) other non-cash charges, (iv) consolidated foreign,
federal, state and local income tax expense, (v) gross interest expense for such
period less gross interest income for such period, (vi) extraordinary losses,
(vii) any charges for Restructuring Costs, (viii) professional fees and other
"Chapter 11 expenses" (or "administrative costs reflecting Chapter 11 expenses")
attributable to the Domestic Entities for such period, and (ix) plus or minus
the cumulative effect of any change in accounting principles less (b) to the
extent included in the calculation of consolidated net income, extraordinary
gains, minus (c) the amount of cash received or expended in such period in
respect of any amount which, under clauses (iii) and (vii) above, was added back
in determining Global EBITDA for such or any prior period.
"Global Entities" shall mean the Borrower and all of its direct and
indirect Subsidiaries, on a consolidated basis.
"Governmental Authority" shall mean the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantor" shall have the meaning set forth in the Introduction.
"Hazardous Materials" shall mean all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Indebtedness" shall mean, at any time and with respect to any Person, (i)
all indebtedness of such Person for borrowed money, (ii) all indebtedness of
such Person for the deferred purchase price of property or services (other than
property, including inventory, and services purchased, trade payables that are
not more than 90 days past due (or that are more than 90 days past due, if the
validity or amount thereof is being contested in good faith and by appropriate
proceedings and if such Person shall have set aside on its books adequate
reserves
11
therefor in accordance with GAAP) and expense accruals and deferred compensation
items arising, in the ordinary course of business), (iii) all obligations of
such Person evidenced by notes, bonds, debentures or other similar instruments
(other than performance, surety and appeal bonds and completion guarantees
arising in the ordinary course of business), (iv) all indebtedness of such
Person created or arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person (even though the
rights and remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property, in which case such
Indebtedness shall be limited to the value of the property), (v) all obligations
of such Person under Capitalized Leases, (vi) (A) all reimbursement, payment or
similar obligations of such Person, contingent or otherwise, under acceptance,
letter of credit or similar facilities and (B) all obligations of such Person in
respect of (x) currency swap agreements, currency future or option contracts and
other similar agreements designed to hedge against fluctuations in foreign
interest or exchange rates, (y) interest rate swap, cap or collar agreements and
interest rate future or option contracts, in each case on a marked-to-market
basis and (z) commodity price protection agreements or other commodity price
hedging arrangements; (vii) all Indebtedness referred to in clauses (i) through
(vi) above guaranteed directly or indirectly by such Person, or in effect
guaranteed directly or indirectly by such Person through an agreement (A) to pay
or purchase such Indebtedness or to advance or supply funds for the payment or
purchase of such Indebtedness, (B) to purchase, sell or lease (as lessee or
lessor) property, or to purchase or sell services, primarily for the purpose of
enabling the debtor to make payment of such Indebtedness or to assure the holder
of such Indebtedness against loss in respect of such Indebtedness, (C) to supply
funds to or in any other manner invest in the debtor (including any agreement to
pay for property or services irrespective of whether such property is received
or such services are rendered) or (D) otherwise to assure a creditor against
loss in respect of such Indebtedness, and (viii) all Indebtedness referred to in
clauses (i) through (vii) above secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien upon or in property (including, without limitation, accounts and
contract rights) owned by such Person, even though such Person has not assumed
or become liable for the payment of such Indebtedness; provided, however, such
Indebtedness referred to in this clause (viii) shall be the lesser of the value
of such property on which a Lien is attached or the amount of such Indebtedness.
"Indemnified Taxes" shall mean Taxes other than Excluded Taxes.
"Indemnitee" shall have the meaning given such term in Section 10.05(b).
"Insufficiency" shall mean, with respect to any Plan, its "amount of
unfunded benefit liabilities" within the meaning of Section 4001(a)(18) of
ERISA, if any.
"Interest Election Request" shall mean a request by the Borrower to convert
or continue a Borrowing in accordance with Section 2.06.
"Interest Payment Date" shall mean (i) as to any Eurodollar Loan included
in any Eurodollar Borrowing, the last day of each consecutive 30 day period
running from the commencement of the applicable Interest Period, and (ii) as to
all ABR Loans, the last calendar day of each month and the date on which any ABR
Loans are converted to Eurodollar Loans pursuant to Section 2.06.
12
"Interest Period" shall mean, as to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing (including as a result of a conversion
from ABR Loans) or on the last day of the preceding Interest Period applicable
to such Eurodollar Borrowing and ending on the numerically corresponding day (or
if there is no corresponding day, the last day) in the calendar month that is
one, three, six or nine months thereafter, as the Borrower may elect in the
related notice delivered pursuant to Sections 2.04 or 2.06; provided, however,
that (i) if any Interest Period would end on a day which shall not be a Business
Day, such Interest Period shall be extended to the next succeeding Business Day
unless such next succeeding Business Day would fall in the next calendar month,
in which case such Interest Period shall end on the next preceding Business Day,
and (ii) no Interest Period shall end later than the Termination Date.
"Interim Order" shall have the meaning given such term in Section 4.01(b).
"Inventory" has the meaning set forth in Article 9 of the Uniform
Commercial Code as in effect from time to time in the State of New York (and
includes Finished Goods, Raw Materials and Work in Process).
"Investments" shall have the meaning given such term in Section 6.10.
"Issuing Lender" shall mean JPMCB, in its capacity as the issuer of Letters
of Credit hereunder, and its successors in such capacity as provided in Section
2.03(i) and up to three other Lenders, which other Lenders shall be reasonably
satisfactory to the Borrower and the Agent. The Issuing Lender may, in its
discretion, arrange for one or more Letters of Credit to be issued by Affiliates
of the Issuing Lender, in which case the term "Issuing Lender" shall include any
such Affiliate with respect to Letters of Credit issued by such Affiliate.
"JPMorgan" shall have the meaning given such term in Section 10.05.
"JPMCB" shall have the meaning given such term in the Introduction.
"Joint Venture" shall mean any joint venture that is jointly owned by the
Borrower or a Guarantor with a Person which is not a Global Entity.
"Joint Venture Interests" shall mean any interest of the Borrower or a
Guarantor in a Joint Venture.
"LC Disbursement" shall mean a payment made by the Issuing Lender pursuant
to a Letter of Credit.
"LC Exposure" shall mean, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the Borrower at such time. The LC Exposure of any Tranche A Lender at any
time shall be its Tranche A Commitment Percentage of the LC Exposure at such
time.
"Lenders" shall have the meaning set forth in the Introduction.
13
"Letter of Credit" shall mean any irrevocable letter of credit issued
pursuant to Section 2.03, which letter of credit shall be (i) an import
documentary or a standby letter of credit, (ii) issued for purposes that are
consistent with the provisions of this Agreement (including, without limitation,
Section 3.09), (iii) denominated in Dollars and (iv) otherwise in such form as
may be reasonably approved from time to time by the Agent and the applicable
Issuing Lender.
"Letter of Credit Account" shall mean the account established by the
Borrower under the sole and exclusive control of the Agent maintained at the
office of the Agent at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 designated as
the "Xxxxxxx & Xxxxxx Letter of Credit Account" that shall be used solely for
the purposes set forth herein.
"Letter of Credit Fees" shall mean the fees payable in respect of Letters
of Credit pursuant to Section 2.23.
"LIBO Rate" shall mean, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Dow Xxxxx Market Service
(or on any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the Agent from
time to time for purposes of providing quotations of interest rates applicable
to dollar deposits in the London interbank market) at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest
Period, as the rate for dollar deposits with a maturity comparable to such
Interest Period. In the event that such rate is not available at such time for
any reason, then the "LIBO Rate" with respect to such Eurodollar Borrowing for
such Interest Period shall be the rate at which dollar deposits of $5,000,000
and for a maturity comparable to such Interest Period are offered by the
principal London office of the Agent in immediately available funds in the
London interbank market at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period.
"Lien" shall mean (a) any mortgage, deed of trust, pledge, hypothecation,
security interest, encumbrance, lien or charge of any kind whatsoever, (b) the
interest of a vendor or a lessor under any conditional sale, capital lease or
other title retention agreement (or any financing lease having substantially the
same economic effect as any of the foregoing) and (c) in the case of securities,
any purchase option, call or similar right of a third party with respect to such
securities.
"Loan" shall mean, collectively, the Tranche A Loans and the Tranche B
Loan.
"Loan Documents" shall mean this Agreement, the Letters of Credit, the
Security and Pledge Agreement, and any other instrument or agreement executed
and delivered to the Agent or any Lender in connection herewith.
"Maturity Date" shall mean May 17, 2007.
"Minority Lenders" shall have the meaning given such term in Section 10.05.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
14
"Multiemployer Plan" shall mean a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Net Proceeds" shall mean, in respect of any sale of assets, the cash
proceeds of such sale after the payment of or reservation for (i) expenses that
are directly related to (or the need for which arises as a result of) the
transaction of sale, including, but not limited to, related severance costs,
taxes payable, brokerage commissions, professional expenses, other similar costs
that are directly related to the sale (all of which expenses shall be reasonably
satisfactory to the Agent in its reasonable judgment) and (ii) the amount
secured by valid and perfected Liens, if any, that are senior to the Liens on
such assets held by the Agent on behalf of the Lenders.
"Obligations" shall mean (a) the due and punctual payment of principal of
and interest on the Loans and the reimbursement of all amounts drawn under
Letters of Credit, and (b) the due and punctual payment of the Fees and all
other present and future, fixed or contingent, monetary obligations of the
Borrower and the Guarantors to the Lenders and the Agent under the Loan
Documents.
"Orders" shall mean the Interim Order and the Final Order of the Bankruptcy
Court referred to in Sections 4.01(b) and 4.02(d).
"Other Taxes" shall mean any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
"Participant" shall have the meaning given such term in Section 10.03(d).
"Patriot Act" shall mean the USA Patriot Act, Title III of Pub. L. 107-56,
signed into law on October 26, 2001.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or any
successor agency or entity performing substantially the same functions.
"Permitted Investments" shall mean:
(a) direct obligations of, or obligations the principal of and interest on
which are unconditionally guaranteed by, the United States of America (or by any
agency thereof to the extent such obligations are backed by the full faith and
credit of the United States of America), in each case maturing within twelve
months from the date of acquisition thereof;
(b) investments in commercial paper maturing within one year from the date
of acquisition thereof and having, at such date of acquisition, a credit rating
of at least `A' from S&P or `A2' from Moody's;
(c) investments in certificates of deposit, banker's acceptances and time
deposits (including Eurodollar time deposits) maturing within one year from the
date of acquisition thereof issued or guaranteed by or placed with, or any money
market deposit accounts issued or offered by, (i) any domestic office of the
Agent or (ii) any domestic office of
15
any other commercial bank of recognized standing organized under the laws of the
United States of America or any State thereof that has a combined capital and
surplus and undivided profits of not less than $500,000,000;
(d) investments in repurchase obligations with a term of not more than
thirty (30) days for underlying securities of the types described in clause (a)
above entered into with any office of a bank or trust company meeting the
qualifications specified in clause (c) above;
(e) investments in money market funds substantially all the assets of which
are comprised of securities of the types described in clauses (a) through (d)
above; and
(f) in the case of a Foreign Subsidiary, investments similar to those
described in clauses (a) through (e) in obligations of Persons located in a
jurisdiction in which such Foreign Subsidiary is organized or has operations.
"Permitted Liens" shall mean: (i) Liens imposed by law (other than
Environmental Liens and any Lien imposed under ERISA) for taxes, assessments or
charges of any Governmental Authority for claims not yet due or which are being
contested in good faith by appropriate proceedings and with respect to which
adequate reserves or other appropriate provisions are being maintained in
accordance with GAAP; (ii) Liens of landlords and Liens of carriers,
warehousemen, suppliers, mechanics, materialmen and other Liens (other than
Environmental Liens and any Lien imposed under ERISA) in existence on the Filing
Date or thereafter imposed by law and created in the ordinary course of
business; (iii) Liens (other than any Lien imposed under ERISA) incurred or
deposits made in the ordinary course of business (including, without limitation,
surety bonds and appeal bonds) in connection with workers' compensation,
unemployment insurance and other types of social security benefits or to secure
the performance of tenders, bids, leases, contracts (other than for the
repayment of Indebtedness), statutory obligations and other similar obligations
or arising as a result of progress payments under government contracts; (iv)
easements (including, without limitation, reciprocal easement agreements and
utility agreements), rights-of-way, covenants, consents, reservations,
encroachments, variations and zoning and other restrictions, charges or
encumbrances (whether or not recorded) and interest of ground lessors, which do
not interfere materially with the ordinary conduct of the business of the
Borrower or any Guarantor, as the case may be, and which do not materially
detract from the value of the property to which they attach or materially impair
the use thereof to the Borrower or any Guarantor, as the case may be; (v) Liens
in favor of customs and revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation of goods in the
ordinary course of business; (vi) banker's liens, rights of set-off or similar
rights, in each case arising by operation of law; (vii) Liens on intellectual
property arising from the granting of non-exclusive licenses in the ordinary
course of business to any Person to use such intellectual property; (viii) Liens
in favor of a landlord on leasehold improvements in leased premises; (ix)
letters of credit or deposits in the ordinary course of business to secure
leases; (x) extensions, renewals or replacements of any Lien referred to in
paragraphs (i) through (ix) above, provided that the principal amount of the
obligation secured thereby is not increased and that any such extension, renewal
or replacement is limited to the property originally encumbered thereby; and
(xi) Liens in respect of judgments that would not result in an Event of Default
under Section 7.01(k).
16
"Permitted Receivable Purchase Facility" shall mean the Amended and
Restated Receivables Purchase Agreement dated as of December 20, 2001 by and
among Borrower, its wholly-owned Subsidiaries named therein and Carcorp, Inc.,
as purchaser, and the Receivables Purchase and Transfer Agreement dated as
December 20, 2001 by and among the Borrower, individually and as collection
agent, Carcorp, Inc., as transferee and the financial institutions party thereto
and the agreements related thereto.
"Person" shall mean any natural person, corporation, division of a
corporation, partnership, limited liability company, trust, joint venture,
association, company, estate, unincorporated organization or Governmental
Authority or any agency or political subdivision thereof.
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Post Closing Date Budgets" shall have the meaning given such term in
Section 5.01(m).
"PP&E Component" shall have the meaning given such term in the Borrowing
Base Amendment.
"Prepayment Date" shall mean the date that is forty-five (45) days after
the entry of the Interim Order by the Bankruptcy Court if the Final Order has
not been entered by the Bankruptcy Court prior to the expiration of such
forty-five (45) day period, or if the Final Order as entered by the Bankruptcy
Court does not authorize (i) credit extensions under this Agreement of up to
$300,000,000 and (ii) such changes to the Loan Documents as the Agent and
JPMorgan shall have reasonably determined are advisable in order to ensure a
successful syndication of the loan facilities hereunder or as are permitted by
the Interim Order.
"Pre-Petition Payment" shall mean a payment (by way of adequate protection
or otherwise) of principal or interest or otherwise on account of any
pre-petition Indebtedness or trade payables or other pre-petition claims against
the Borrower or any Guarantor.
"Prime Rate" shall mean the rate of interest per annum publicly announced
from time to time by JPMCB as its prime rate in effect at its principal office
in New York City; each change in the Prime Rate shall be effective from and
including the date such change is publicly announced as being effective.
"Qualified Receivables Transaction" shall mean any transaction or series of
transactions that may be entered into by one or more Foreign Subsidiaries
pursuant to which one or more Foreign Subsidiaries may sell, convey or otherwise
transfer to (1) a Receivables Subsidiary (in the case of a transfer by any
Foreign Subsidiary) and (2) any other Person (in the case of a transfer by a
Receivables Subsidiary), or may grant a security interest in, Receivables
(whether now existing or arising in the future) of any Foreign Subsidiary, and
any assets of a Foreign Subsidiary related thereto, including, without
limitation, all contracts and all guarantees
17
or other obligations in respect of such Receivables, the proceeds of such
Receivables and other assets which are customarily transferred, or in respect of
which security interests are customarily granted, in connection with asset
securitizations involving Receivables.
"Raw Materials" shall mean items/materials used or consumed in the
manufacturing of goods to be sold by the Borrower or a Guarantor in the ordinary
course of business.
"Receivable" shall mean a right to receive payment arising from a sale or
lease of goods or the performance of services by a Person pursuant to an
arrangement with another Person pursuant to which such other Person is obligated
to pay for good or services under terms that permit the purchase of such goods
and services on credit and shall include, in any event, any items of property
that would be classified as an "account," "chattel paper," "payment intangible"
or "instrument" under the Uniform Commercial Code as in effect in the State of
New York and any supporting obligations.
"Receivables Subsidiary" shall mean any wholly-owned Foreign Subsidiary of
any Foreign Subsidiary (or another Person organized outside the United States in
which any Foreign Subsidiary makes an Investment and to which one or more
Foreign Subsidiaries transfer Receivables and related assets) which engages in
no activities other than in connection with the financing of Receivables and
which is designated by the Board of Directors of the applicable Foreign
Subsidiary (as provided below) as a Receivables Subsidiary:
1. no portion of the Indebtedness or any other obligations (contingent or
otherwise) of which:
(i) is guaranteed by the Borrower or any Guarantor;
(ii) is recourse to or obligates the Borrower or any Guarantor; or
(iii) subjects any property or assets of the Borrower or any
Guarantor, directly or indirectly, contingently or otherwise, to
the satisfaction thereof;
2. with which neither the Borrower nor any Guarantor has any material
contract, agreement, arrangement or understanding; and
3. to which neither the Borrower nor any Guarantor has any obligation to
maintain or preserve such entity's financial condition or cause such
entity to achieve certain levels of operating results.
Any such designation by the Board of Directors of the applicable Foreign
Subsidiary shall be evidenced by a certified copy of the resolution of the Board
of Directors of such Foreign Subsidiary giving effect to such designation and an
officer's certificate certifying, to the best of such officer's knowledge and
belief, that such designation complies with the foregoing conditions.
18
"Register" shall have the meaning given such term in Section l0.03(b)(iv).
"Related Parties" shall mean, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Reorganization Plan" shall mean a plan of reorganization in any of the
Cases.
"Required Lenders" shall mean, at any time, Lenders having Tranche A
Commitments at such time (or, if the Total Tranche A Commitment has been
terminated, Lenders holding Tranche A Loans and LC Exposure at such time) and
Lenders holding a portion of the Tranche B Loan at such time (or, if the Tranche
B Loan is not outstanding, Lenders holding Tranche B Commitments at such time)
representing in excess of 50% of the sum of the Total Tranche A Commitment at
such time (or, if the Total Tranche A Commitment has been terminated, the
Tranche A Total Commitment Usage at such time) plus the Total Tranche B
Commitment at such time.
"Restructuring Costs" shall mean any and all of the fees, costs and
expenses of restructuring, consolidating or closing of any of the business
divisions, plants, facilities or offices of the Borrower or any of its
Subsidiaries together with the costs of severance or other similar payments
relating to the termination of employees, and machine transfer costs or any
similar such costs, at such plants, facilities or offices.
"S&P" shall mean Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc.
"Secured Obligations" shall have the meaning set forth in the Security and
Pledge Agreement.
"Security and Pledge Agreement" shall have the meaning set forth in Section
4(c).
"Single Employer Plan" shall mean a single employer plan, as defined in
Section 4001(a)(l5) of ERISA, that (i) is maintained for employees of the
Borrower or an ERISA Affiliate or (ii) was so maintained and in respect of which
the Borrower could reasonably be expected to have liability under Title IV of
ERISA in the event such Plan has been or were to be terminated.
"Standard Securitization Undertakings" shall mean representations,
warranties, covenants and indemnities entered into by any Foreign Subsidiary
which are reasonably customary in securitization of Receivables transactions.
"Statutory Reserve Rate" shall mean a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Agent is subject (a) with respect to the
Base CD Rate, for new negotiable nonpersonal time deposits in dollars of over
$100,000 with maturities approximately equal to three months and (b) with
respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred
to as
19
"Eurocurrency Liabilities" in Regulation D of the Board). Such reserve
percentages shall include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under such Regulation D or any comparable regulation. The Statutory Reserve Rate
shall be adjusted automatically on and as of the effective date of any change in
any reserve percentage.
"STB" shall have the meaning given such term in Section.
"Subsidiary" shall mean, with respect to any Person (in this definition
referred to as the "parent"), any corporation, association or other business
entity (whether now existing or hereafter organized) of which at least a
majority of the securities or other ownership or membership interests having
ordinary voting power for the election of directors is, at the time as of which
any determination is being made, owned or controlled by the parent or one or
more subsidiaries of the parent or by the parent and one or more subsidiaries of
the parent.
"Super-majority Lenders" shall have the meaning given such term in Section
10.090.
"Superpriority Claim" shall mean a claim against the Borrower and any
Guarantor in any of the Cases which is an administrative expense claim having
priority over any or all administrative expenses of the kind specified in
Sections 503(b) or 507(b) of the Bankruptcy Code.
"Taxes" shall mean any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Termination Date" shall mean the earliest to occur of (i) the Prepayment
Date, (ii) the Maturity Date, (iii) the Consummation Date and (iv) the
acceleration of the Loans and the termination of the Total Commitment in
accordance with the terms hereof.
"Termination Event" shall mean (i) a "reportable event", as such term is
described in Section 4043(c) of ERISA (other than a "reportable event" as to
which the 30-day notice is waived under subsection .22, .23, .25, .27 or .28 of
PBGC Regulation Section 4043) or an event described in Section 4068 of ERISA and
excluding events which would not be reasonably likely (as reasonably determined
by the Agent) to have a material adverse effect on the operations, business,
properties, assets or condition (financial or otherwise) of the Borrower and the
Guarantors taken as a whole, or (ii) the withdrawal of the Borrower or any ERISA
Affiliate from a Multiple Employer Plan during a plan year in which it was a
"substantial employer," as such term is defined in Section 400l(a)(2) of ERISA,
the incurrence of liability by the Borrower or any ERISA Affiliate under Section
4064 of ERISA upon the termination of a Multiple Employer Plan, the imposition
of Withdrawal Liability, or (iii) providing notice of intent to terminate a Plan
pursuant to Section 4041(c) of ERISA or the treatment of a Plan amendment as a
termination under Section 4041 of ERISA, if such amendment requires the
provision of security, or (iv) the institution of proceedings to terminate a
Plan by the PBGC under Section 4042 of ERISA, or (v) any other event or
condition (other than the commencement of the Cases and the failure to have made
any contribution accrued as of the Filing Date but not paid) which would
20
reasonably be expected to constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Plan, or the
imposition of any liability under Title IV of ERISA (other than for the payment
of premiums to the PBGC in the ordinary course).
"Three-Month Secondary CD Rate" shall mean, for any day, the secondary
market rate for three-month certificates of deposit reported as being in effect
on such day (or, if such day is not a Business Day, the next preceding Business
Day) by the Board through the public information telephone line of the Federal
Reserve Bank of New York (which rate will, under the current practices of the
Board, be published in Federal Reserve Statistical Release H. 15(519) during the
week following such day) or, if such rate is not so reported on such day or such
next preceding Business Day, the average of the secondary market quotations for
three-month certificates of deposit of major money center banks in New York City
received at approximately 10:00 a.m., New York City time, on such day (or, if
such day is not a Business Day, on the next preceding Business Day) by the Agent
from three negotiable certificate of deposit dealers of recognized standing
selected by it.
"Total Commitment" shall mean, at any time, the sum of the Total Tranche A
Commitment and the Total Tranche B Commitment at such time.
"Total Commitment Percentage" shall mean at any time, with respect to each
Tranche A Lender or Tranche B Lender, the percentage obtained by dividing such
Lender's Tranche A Commitment and/or Tranche B Commitment, as the case may be,
by the Total Commitment at such time.
"Total Commitment Usage" shall mean, at any time, the sum of the Tranche A
Total Commitment Usage and the outstanding principal amount of the Tranche B
Loan.
"Total Tranche A Commitment" shall mean, any time, the sum of the Tranche A
Commitments at such time.
"Total Tranche B Commitment" shall mean, at any time, (i) prior to the
funding of the Tranche B Loan pursuant to Section 2.01(b), the sum of the
Tranche B Commitments at such time and (ii) on and after funding of the Tranche
B Loan pursuant to 2.01(b), the outstanding principal amount of the Tranche B
Loan at such time.
"Tranche A Commitment" shall mean the commitment of each Tranche A Lender
to make Tranche A Loans hereunder in the amount set forth opposite its name in
Annex A hereto or as may be subsequently set forth in the Register from time to
time, as the case may be, and as may be reduced from time to time pursuant to
Sections 2.12. The initial aggregate amount of the Tranche A Commitment is
$200,000,000.
"Tranche A Commitment Fee" shall have the meaning given such term in
Section 2.22(a).
"Tranche A Commitment Percentage" shall mean, at any time, with respect to
each Tranche A Lender, the percentage obtained by dividing its Tranche A
Commitment at such time by the Total Tranche A Commitment or, if the Tranche A
Commitments have been
21
terminated, the Tranche A Commitment Percentage of each Tranche A Lender that
existed immediately prior to such termination.
"Tranche A Lender" shall mean each Lender having a Tranche A Commitment.
"Tranche A Loan" shall have the meaning set forth in Section 2.01(a).
"Tranche A Total Commitment Usage" shall mean, at any time, the sum of (i)
the aggregate outstanding principal amount of all Tranche A Loans and (ii) the
aggregate LC Exposure at such time.
"Tranche B Commitment" shall mean the commitment of each Tranche B Lender
to make such amount of the Tranche B Loan hereunder in the amount set forth
opposite its name on Annex A hereto or as may be subsequently set forth in the
Register from time to time, as the case may be and as the same may be reduced
from time to time pursuant to the last sentence of Section 2.01(b) and Sections
2.12 and 2.13. The initial aggregate amount of the Tranche B Commitment is
$100,000,000.
"Tranche B Commitment Fee" shall have the meaning given such term in
Section 2.22(b).
"Tranche B Commitment Percentage" shall mean, at any time, with respect to
each Tranche B Lender, the percentage obtained by dividing its Tranche B
Commitment at such time by the Total Tranche B Commitment.
"Tranche B Lender" shall mean each Lender having a Tranche B Commitment.
"Tranche B Loan" shall have the meaning set forth in Section 2.01(b).
"Transactions" shall mean the execution, delivery and performance by the
Borrower and Guarantors of this Agreement, the borrowing of Loans, the use of
the proceeds thereof and the request for and issuance of Letters of Credit
hereunder.
"Type", when used in reference to any Loan or Borrowing, refers to whether
the rate of interest on such Loan, or on the Loans comprising such Borrowing, is
determined by reference to the Adjusted LIBO Rate or the Alternate Base Rate.
"UCC" shall mean the Uniform Commercial Code as in effect from time to time
in the State of New York; provided, however, that if by reason of any provisions
of law, the perfection or the effect of perfection or non-perfection of the
security interests granted to the Agent pursuant to the applicable Loan Document
is governed by the Uniform Commercial Code as in effect in a jurisdiction of the
United States other than New York, then "UCC" shall mean the Uniform Commercial
Code as in effect from time to time in such other jurisdiction for purposes of
the provisions of each Loan Document.
"Uncollateralized LC Exposure" shall mean, at any time, (i) the aggregate
LC Exposure at such time less (ii) the aggregate LC Exposure for which Cash
Collateralization has
22
been made in accordance with Section 2.03(j) prior to such time and which Cash
Collateralization is in effect at such time.
"Unused Total Tranche A Commitment" shall mean, at any time, (i) the Total
Tranche A Commitment less (ii) the Tranche A Total Commitment Usage.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
"Work-in-Process" shall mean Inventory which consists of work-in-process
including without limitation materials other than Raw Materials, Finished Goods
or saleable products, title to which and sole ownership of which is vested in
the Borrower or a Guarantor.
SECTION 1.02 Terms Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof' and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Section of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall construed to have the same meaning and effect and
to refer to any and all tangible and intangible assets and properties, including
cash, securities, accounts and contract rights.
SECTION 1.03 Accounting Terms; GAAP. Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time; provided that, if the
Borrower notifies the Agent that the Borrower requests an amendment to any
provision hereof to eliminate the effect of any change occurring after the date
hereof in GAAP or in the application thereof on the operation of such provision
(or if the Agent notifies the Borrower that the Required Lenders request an
amendment to any provision hereof for such purpose), regardless of whether any
such notice is given before or after such change in GAAP or in the application
thereof, then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become effective
until such notice shall been withdrawn or such provision amended in accordance
herewith.
23
SECTION 1.04 Certain Post Closing Matters.
(a) Notwithstanding anything to the contrary contained in this Agreement,
within the time periods set forth below or such later date(s) to which the Agent
shall, in its exclusive discretion, agree in writing, the Borrower shall deliver
to the Agent:
(i) on or prior to the Delivery Date, all UCC searches, if any, which
the Borrower was required to deliver pursuant to Section 4.01(j) of this
Agreement and delivery of which was temporarily waived by the Lenders for
the purposes of effecting the closing on the Closing Date;
(ii) on or prior to the Delivery Date, all good standing certificates,
articles or certificate of incorporation or formation and by-laws which the
Borrower was required to deliver pursuant to Section 4.01(a)(i), (ii) and
(iii) of this Agreement and delivery of which was temporarily waived by the
Lenders for the purposes of effecting the closing on the Closing Date;
provided that the Borrower may identify to the Agent certain of the
jurisdictions from which it shall not have obtained good standing
certificates as of the Closing Date as jurisdictions in which the Borrower
and Guarantors do not conduct a material amount of business and the
Administrative Agent may thereafter (but shall not be obligated to) waive
delivery of a good standing certificate for such jurisdiction(s);
(iii) Schedules 6.01 and 6.10 which the Borrower was required to
deliver pursuant to Sections 6.01 and 6.10 of this Agreement, respectively,
and delivery of which was temporarily waived by the Lenders for the
purposes of effecting the closing on the Closing Date. The Agent agrees
that the Borrower shall be permitted to redeliver, supplement, modify and
replace the Schedules to this Agreement on or before the Delivery Date.
(b) Notwithstanding anything to the contrary contained in this Agreement or
the Security and Pledge Agreement, on or prior to the Delivery Date, the
Borrower shall deliver to the Collateral Agent:
(i) Schedules 3, 5 and 6, which the Borrower and the Guarantors were
required to deliver Sections 4(d), 4(g) and 1(e) of the Security and Pledge
Agreement, respectively, and delivery of which was temporarily waived by
the Lenders for the purposes of effecting the closing on the Closing Date.
The Agent agrees that the Borrower shall be permitted to redeliver,
supplement, modify and replace the Schedules to the Security and Pledge
Agreement on or before the Delivery Date.
(c) All conditions precedent and representations contained in the Loan
Documents shall be deemed modified to the extent necessary to effect the
foregoing (and to permit the taking of the actions described above within the
time periods required above); provided, that to the extent any representation
and warranty would not be true in all material respects because the foregoing
actions were not taken on the Closing Date, the respective representation and
warranty shall be required to be true and correct in all material respects at
the time the respective action is taken in accordance with the foregoing
provisions of this
24
Section 1.04. The acceptance of the benefits of the making of each Loan and the
issuance of each Letter of Credit shall constitute a representation, warranty
and covenant by the Borrower to each of the Lenders that the actions required
pursuant to this Section 1.04 will be taken within the relevant time periods
referred to in this Section 1.04 and that, at such time, all representations and
warranties contained in this Agreement shall then be true and correct in all
material respects without any modification pursuant to this Section 1.04.
(d) No later than 60 days after the Closing Date, the Borrower and the
Guarantors shall have executed and delivered an amendment to this Agreement
setting forth the financial covenant levels for Sections 6.4 and 6.5, which
levels will be determined by the Agent based on the Post Closing Date Budgets
and which amendments shall be satisfactory to Agent.
SECTION 2. AMOUNT AND TERMS OF CREDIT
SECTION 2.01 Commitments of the Lenders.
(a) Tranche A Revolving Commitment. (i)Each Tranche A Lender severally and
not jointly with the other Tranche A Lenders agrees, upon the terms and subject
to the conditions herein set forth, to make revolving credit loans (each a
"Tranche A Loan" and collectively, the "Tranche A Loans") to the Borrower at any
time and from time to time during the Availability Period in an aggregate
principal amount not to exceed, when added to its LC Exposure, the Tranche A
Commitment of such Lender, which Tranche A Loans may be repaid and reborrowed in
accordance with the provisions of this Agreement; provided that at no time shall
the sum of the then outstanding aggregate principal amount of the Tranche A
Loans plus the then LC Exposure exceed the lesser of (i) the Total Tranche A
Commitment at such time and (ii) prior to the entry of the Final Order, the
amount permitted by the Interim Order.
(ii) Each Borrowing of a Tranche A Loan shall be made by the Tranche A
Lenders pro rata in accordance with their respective Tranche A Commitments;
provided, however, that the failure of any Tranche A Lender to make any
Tranche A Loan shall not in itself relieve the other Tranche A Lenders of
their obligations to lend.
(b) Tranche B Term Loan Commitment. (i) Each Tranche B Lender, severally
and not jointly with the other Tranche B Lenders agrees, upon the terms and
subject to the conditions herein set forth, to make available to the Borrower
term loans in an aggregate principal amount equal to such Tranche B Lender's
Tranche B Commitment (all such loans, collectively, the "Tranche B Loan"). Upon
the satisfaction (or waiver) of the conditions set forth in Section 4.03, each
Tranche B Lender shall make its portion of the Tranche B Loan to the Borrower in
the amount equal to its Tranche B Commitment. Once repaid, the Tranche B Loan
may not be reborrowed and the Total Tranche B Commitment shall be automatically
and permanently reduced by an amount equal to the amount so repaid.
(ii) The Tranche B Loan shall be made by the Tranche B Lenders pro
rata in accordance with their respective Tranche B Commitment; provided,
however, that the failure of any Tranche B Lender to make its Tranche B
Loan shall not in itself relieve the other Tranche B Lenders of their
obligations to lend.
25
(c) (i) Notwithstanding any provision of this Agreement to the contrary, at
no time from and after the entry of the Final Order shall the Total Commitment
Usage exceed the Borrowing Base. The Lenders shall have no obligation to extend
credit hereunder if, after giving effect thereto, Total Commitment Usage would
exceed the Borrowing Base.
(ii) Notwithstanding any provision of this Agreement to the contrary,
at no time prior to the entry of the Final Order shall the Total Commitment
Usage exceed $150,000,000 unless (A) the Agent, prior to the entry of the
Final Order, shall have been satisfied with the results of its due
diligence investigation of the assets, liabilities, businesses, prospects
and financial affairs of the Borrower and its Subsidiaries, (B) the Agent
shall have determined the current levels for Sections 6.4 and 6.5 in
accordance with Section 1.04(d) and (c) the Final Order shall have been
entered. In addition, during each week prior to the entry of the Final
Order the Total Commitment Usage shall be substantially in compliance with
the projected Total Commitment Usage set forth for such week in the Closing
Date Budget, as determined by the Agent in its sole discretion.
(d) Other than as otherwise provided in Section 2.04(b), each Borrowing
shall be comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may
request in accordance herewith. Each Lender at its option may make any
Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Eurodollar Loan; provided that any exercise of such option
shall not affect the obligation of the Borrower to repay such Loan in accordance
with the terms of this Agreement.
(e) At the commencement of each Interest Period for any Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount that is in an integral
multiple of $1,000,000 and not less than $5,000,000. At the time that each ABR
Borrowing is made, such Borrowing shall be in an aggregate amount that is an
integral multiple of $500,000 and not less than $1,000,000 provided, that an ABR
Borrowing may be in an aggregate amount that is equal to the entire Unused Total
Tranche A Commitment or that is required to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.03(e). Borrowings of more than one
Type may be outstanding at the same time.
(f) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request, or to elect to convert or continue, any
Borrowing if the Interest Period requested with respect thereto would end after
the Maturity Date.
SECTION 2.02 Reserved.
SECTION 2.03 Letters of Credit. (a) General. Subject to the terms and
conditions set forth herein, the Borrower may request the issuance of Letters of
Credit for its own account or the account of any Subsidiary, in a form
reasonably acceptable to the Agent and the Issuing Lender, and the Issuing
Lender hereby agrees to issue such requested Letters of Credit, at any time and
from time to time during the Availability Period. In the event of any
inconsistency between the terms and conditions of this Agreement and the terms
and conditions of any form of letter of credit application or other agreement
submitted by the Borrower to, or entered into by the Borrower with, the Issuing
Lender relating to any Letter of Credit, the terms and conditions of this
Agreement shall control. At no time shall a Letter of Credit be issued if the
26
sum of the then outstanding aggregate principal amount of the Tranche A Loans
plus the LC Exposure (inclusive of the amount of such proposed Letter of Credit)
would exceed the lesser of (i) the Total Tranche A Commitment at such time and
(ii) prior to the entry of the Final Order, the amount permitted by the Interim
Order.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions.
To request the issuance of a Letter of Credit (or the amendment, renewal or
extension of an outstanding Letter of Credit), the Borrower shall hand deliver
or telecopy (or transmit by electronic communication, if arrangements for doing
so have been approved by the Issuing Lender) to the Issuing Lender and the Agent
(reasonably in advance of the requested date of issuance, amendment, renewal or
extension) a notice requesting the issuance of a Letter of Credit, or
identifying the Letter of Credit to be amended, renewed or extended, and
specifying the date of issuance, amendment, renewal or extension (which shall be
a Business Day), the date on which such Letter of Credit is to expire (which
shall comply with paragraph (c) of this Section), the amount of such Letter of
Credit, the Person for whose account such Letter of Credit shall be issued, the
name and address of the beneficiary thereof and such other information as shall
be necessary to prepare, amend, renew or extend such Letter of Credit. If
requested by the Issuing Lender, the Borrower also shall submit a letter of
credit application on the Issuing Lender's standard form in connection with any
request for a Letter of Credit. A Letter of Credit shall be issued, amended,
renewed or extended only if (and upon issuance, amendment, renewal or extension
of each Letter of Credit the Borrower shall be deemed to represent and warrant
that), after giving effect to such issuance, amendment, renewal or extension the
LC Exposure shall not exceed $25,000,000 prior to the entry of the Final Order
and $50,000,000 thereafter. No Issuing Lender (other than the Agent or an
Affiliate thereof) shall permit any such issuance, renewal, extension or
amendment resulting in an increase in the amount of any Letter of Credit to
occur without first obtaining written confirmation from the Agent that it is
then permitted under this Agreement.
(c) Expiration Date. Each Letter of Credit shall expire at or prior to the
close of business on the earlier of (i) the date one year after the date of the
issuance of such Letter of Credit (or, in the case of any renewal or extension
thereof, one year after such renewal or extension) and (ii) the date that is 180
days after the Maturity Date; provided that any Letter of Credit with a one-year
term may provide for the renewal thereof for additional one-year periods (which
shall in no event extend beyond the date referred to in clause (ii) above).
(d) Participations. By the issuance of a Letter of Credit (or an amendment
to a Letter of Credit including any amendment increasing the amount thereof) and
without any further action on the part of the Issuing Lender or the Tranche A
Lenders, the Issuing Lender hereby grants to each Tranche A Lender, and each
Tranche A Lender hereby acquires from the Issuing Lender, a participation in
such Letter of Credit equal to such Tranche A Lender's Tranche A Commitment
Percentage of the aggregate amount available to be drawn under such Letter of
Credit. In consideration and in furtherance of the foregoing, each Tranche A
Lender hereby absolutely and unconditionally agrees to pay to the Agent, for the
account of the Issuing Lender, such Tranche A Lender's Tranche A Commitment
Percentage of each LC Disbursement made by the Issuing Lender and not reimbursed
by the Borrower on the date due as provided in paragraph (e) of this Section, or
of any reimbursement payment required to be refunded to the Borrower for any
reason. Each Tranche A Lender acknowledges and agrees that
27
its obligation to acquire participations pursuant to this paragraph in respect
of Letters of Credit is absolute and unconditional and shall not be affected by
any circumstance whatsoever, including any amendment, renewal or extension of
any Letter of Credit or the occurrence of an Event of Default or reduction or
termination of the Tranche A Commitments, and that each such payment shall be
made without any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Lender shall make any LC Disbursement in
respect of a Letter of Credit (including any Letter of Credit issued for the
account of any Subsidiary), the Borrower shall reimburse such LC Disbursement by
paying to the Agent an amount equal to such LC Disbursement not later than 12:00
noon, New York City time, on the date that such LC Disbursement is made, if the
Borrower shall have received notice of such LC Disbursement prior to 10:00 a.m.,
New York City time, on such date, or, if such notice has not been received by
the Borrower prior to such time on such date, then not later than 12:00 noon,
New York City time, on (i) the Business Day that the Borrower receives such
notice, if such notice is received prior to 10:00 a.m., New York City time, on
the day of receipt, or (ii) the Business Day immediately following the day that
the Borrower receives such notice, if such notice is not received prior to such
time on the day of receipt; provided, that, the Borrower may, subject to the
conditions to borrowing set forth herein, request in accordance with Section
2.04(a) that such payment be financed with an ABR Borrowing in an equivalent
amount and, to the extent so financed, the Borrower's obligation to make such
payment shall be discharged and replaced by the resulting ABR Borrowing. If the
Borrower fails to make such payment when due, the Agent shall notify each
Tranche A Lender of the applicable LC Disbursement, the payment then due from
the Borrower in respect thereof and such Tranche A Lender's Tranche A Commitment
Percentage thereof. Promptly following receipt of such notice, each Tranche A
Lender shall pay to the Agent its Tranche A Commitment Percentage of the payment
then due to the Issuing Lender from the Borrower, in the same manner as provided
in Section 2.05 with respect to Tranche A Loans made by such Tranche A Lender
(and Section 2.05 shall apply, mutatis mutandis, to the payment obligations of
the Tranche A Lenders), and the Agent shall promptly pay to the Issuing Lender
the amounts so received by it from the Tranche A Lenders. Promptly following
receipt by the Agent of any payment from the Borrower pursuant to this
paragraph, the Agent shall distribute such payment to the Issuing Lender or, to
the extent that Tranche A Lenders have made payments pursuant to this paragraph
to reimburse the Issuing Lender, then to such Tranche A Lenders and the Issuing
Lender as their interests may appear. Any payment made by a Tranche A Lender
pursuant to this paragraph to reimburse the Issuing Lender for any LC
Disbursement (other than the funding of ABR Loans as contemplated above) shall
not constitute a Tranche A Loan and shall not relieve the Borrower of its
obligation to reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrower's obligation to reimburse LC
Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the Issuing Lender under a Letter of
Credit against presentation of a draft or other
28
document that does not comply with the terms of such Letter of Credit, or (iv)
any other event or circumstance whatsoever, whether or not similar to any of the
foregoing, that might, but for the provisions of this Section, constitute a
legal or equitable discharge of, or provide a right of setoff against, the
Borrower's obligations hereunder. Neither the Agent, the Tranche A Lenders nor
the Issuing Lender, nor any of their Related Parties, shall have any liability
or responsibility by reason of or in connection with the issuance or transfer of
any Letter of Credit or any payment or failure to make any payment thereunder
(irrespective of any of the circumstances referred to in the preceding
sentence), or any error, omission, interruption, loss or delay in transmission
or delivery of any draft, notice or other communication under or relating to any
Letter of Credit (including any document required to make a drawing thereunder),
any error in interpretation of technical terms or any consequence arising from
causes beyond the control of the Issuing Lender; provided, that the foregoing
shall not be construed to excuse the Issuing Lender from liability to the
Borrower to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by the Borrower to the
extent permitted by applicable law) suffered by the Borrower that are caused by
the Issuing Lender's failure to exercise care when determining whether drafts
and other documents presented under a Letter of Credit comply with the terms
thereof. The parties hereto expressly agree that, in the absence of gross
negligence, bad faith or willful misconduct on the part of the Issuing Lender
(as finally determined by a court of competent jurisdiction), the Issuing Lender
shall be deemed to have exercised care in each such determination. In
furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented which appear on their
face to be in substantial compliance with the terms of a Letter of Credit, the
Issuing Lender may, in its sole discretion, either accept and make payment upon
such documents without responsibility for further investigation, regardless of
any notice or information to the contrary, or refuse to accept and make payment
upon such documents if such documents are not in strict compliance with the
terms of such Letter of Credit.
(g) Disbursement Procedures. The Issuing Lender shall, promptly following
its receipt thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit. The Issuing Lender shall promptly notify the
Agent and the Borrower by telephone (confirmed by telecopy) of such demand for
payment and whether the Issuing Lender has made or will make an LC Disbursement
thereunder; provided, that any failure to give or delay in giving such notice
shall not relieve the Borrower of its obligation to reimburse the Issuing Lender
and the Tranche A Lenders with respect to any such LC Disbursement.
(h) Interim Interest. If the Issuing Lender shall make any LC Disbursement,
then, unless the Borrower shall reimburse such LC Disbursement in full on the
date such LC Disbursement is made, the unpaid amount thereof shall bear
interest, for each day from and including the date such LC Disbursement is made
to but excluding the date that the Borrower reimburses such LC Disbursement, at
the rate per annum then applicable to ABR Loans; provided, that, if the Borrower
fails to reimburse such LC Disbursement when due pursuant to paragraph (e) of
this Section, then Section 2.09 shall apply. Interest accrued pursuant to this
paragraph shall be for the account of the Issuing Lender, except that interest
accrued on and after the date of payment by any Tranche A Lender pursuant to
paragraph (e) of this Section to reimburse the Issuing Lender shall be for the
account of such Tranche A Lender to the extent of such payment.
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(i) Replacement of the Issuing Lender. The Issuing Lender may be replaced
at any time by written agreement among the Borrower, the Agent, the replaced
Issuing Lender and the successor Issuing Lender. The Agent shall notify the
Tranche A Lenders of any such replacement of the Issuing Lender. At the time any
such replacement shall become effective, the Borrower shall pay all unpaid fees
accrued for the account of the replaced Issuing Lender pursuant to Section 2.22.
From and after the effective date of any such replacement, (i) the successor
Issuing Lender shall have all the rights and obligations of the Issuing Lender
under this Agreement with respect to Letters of Credit to be issued thereafter
and (ii) references herein to the term "Issuing Lender" shall be deemed to refer
to such successor or to any previous Issuing Lender, or to such successor and
all previous Issuing Lenders, as the context shall require. After the
replacement of a Issuing Lender hereunder, the replaced Issuing Lender shall
remain a party hereto and shall continue to have all the rights and obligations
of a Issuing Lender under this Agreement with respect to Letters of Credit
issued by it prior to such replacement, but shall not be required to issue
additional Letters of Credit.
(j) Replacement of Letters of Credit; Cash Collateralization. Upon or prior
to the occurrence of the Termination Date the Borrower shall at its option
either (i) cause all Letters of Credit which expire after the Termination Date
to be returned to the Issuing Lender undrawn and marked "cancelled" or (iii)
either (x) provide one or more "back-to-back" letters of credit to one or more
Issuing Lenders in a form reasonably satisfactory to each such Issuing Lender
that is a beneficiary of such "back-to-back" letter of credit and the Agent,
issued by a bank reasonably satisfactory to each such Issuing Lender and the
Agent, and/or (y) deposit cash in the Letter of Credit Account, the sum of (x)
and (y) of the foregoing sentence to be in an aggregate amount equal to 105% of
Uncollateralized LC Exposure as collateral security for the Borrower's
reimbursement obligations in connection therewith, such cash to be remitted to
the Borrower upon and to the extent of the expiration, cancellation or other
termination or satisfaction of such reimbursement obligations ("Cash
Collateralization"). The Agent shall have exclusive dominion and control,
including the exclusive right of withdrawal, over such account. Other than any
interest earned on the investment of such deposits, which investments shall be
made at the option and sole discretion of the Agent (in accordance with its
usual and customary practices for investments of this type) and at the
Borrower's risk and reasonable expense, such deposits shall not bear interest.
Interest or profits, if any, on such investments shall accumulate in such
account. Moneys in such account shall be applied by the Agent to reimburse the
Issuing Lender for LC Disbursements for which it has not been reimbursed and, to
the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the Borrower for the LC Exposure at such time.
(k) Issuing Lender Agreements. Unless otherwise requested by the Agent,
each Issuing Lender shall report in writing to the Agent (i) on the first
Business Day of each week, the daily activity (set forth by day) in respect of
Letters of Credit during the immediately preceding week, including all
issuances, extensions, amendments and renewals, all expirations and
cancellations and all disbursements and reimbursements, (ii) on or prior to each
Business Day on which such Issuing Lender expects to issue, amend, renew or
extend any Letter of Credit, the date of such issuance, amendment, renewal or
extension, and the aggregate face amount of the Letters of Credit to be issued,
amended, renewed, or extended by it and outstanding after giving effect to such
issuance, amendment, renewal or extension occurred (and whether the amount
thereof changed), it being understood that such Issuing Lender shall
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not permit any issuance, renewal, extension or amendment resulting in an
increase in the amount of any Letter of Credit to occur without first obtaining
written confirmation from the Agent that it is then permitted under this
Agreement, (iii) on each Business Day on which such Issuing Lender makes any LC
Disbursement, the date of such LC Disbursement and the amount of such LC
Disbursement, (iv) on any Business Day on which the Borrower fails to reimburse
an LC Disbursement required to be reimbursed to such Issuing Lender on such day,
the date of such failure, the Borrower and the amount of such LC Disbursement
and (v) on any other Business Day, such other information as the Agent shall
reasonably request.
SECTION 2.04 Requests for Borrowings.
(a) Tranche A Loans. Unless otherwise agreed to by the Agent in connection
with making the initial Loans, to request a Borrowing of Tranche A Loans, the
Borrower shall notify the Agent of such request by telephone (a) in the case of
a Eurodollar Borrowing, not later than 1:00 p.m., New York City time, three (3)
Business Days before the date of the proposed Borrowing and (b) in the case of
an ABR Borrowing, not later than 12:00 p.m., New York City time, on the date of
the proposed Borrowing; provided, that any such notice of an ABR Borrowing to
finance the reimbursement of an LC Disbursement as contemplated by Section
2.03(e) may be given not later than 11:00 a.m., New York City time, on the date
of the proposed Borrowing. Each such telephonic Borrowing Request shall be
irrevocable and shall be confirmed promptly by hand delivery, courier or
telecopy to the Agent of a written Borrowing Request in a form reasonably
acceptable to the Agent and signed by the Borrower. Each such telephonic and
written Borrowing Request shall specify the following information in compliance
with Section 2.01(a):
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing; and
(iv) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period".
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Borrowing, then the Borrower shall be deemed
to have selected an Interest Period of one month's duration. Promptly following
receipt of a Borrowing Request in accordance with this Section 2.04(a), the
Agent shall advise each Tranche A Lender of the details thereof and of the
amount of such Tranche A Lender's Tranche A Loan to be made as part of the
requested Borrowing.
(b) Tranche B Loan. To request the Borrowing of the Tranche B Loan, the
Borrower shall notify the Agent of such request by telephone (a) in the case of
a Eurodollar Borrowing, not later than 1:00 p.m., New York City time, three (3)
Business Days before the date of the proposed Borrowing and (a) in the case of
an ABR Borrowing, not later than 12:00
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noon, New York City time on the date of the proposed Borrowing. Such telephonic
notice shall be irrevocable and shall be confirmed promptly by hand delivery,
courier or telecopy to the Agent of a written Borrowing Request in a form
reasonably acceptable to the Agent and signed by the Borrower. Such telephone
and written Borrowing Request shall specify the following information in
compliance with Section 2.01:
(i) the aggregate amount of the requested Borrowing (which shall be
the amount of the Total Tranche B Commitment);
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) the portion of the Tranche B Loan that is to initially be an ABR
Borrowing and that is to initially be a Eurodollar Borrowing; and
(iv) in the case of such portion of the Tranche B Loan that is a
Eurodollar Borrowing, the initial Interest Period applicable thereto, which
shall be a period contemplated by the definition of the term "Interest
Period".
If no election as to the Type of Borrowing is specified, then the Tranche B Loan
shall initially be an ABR Borrowing. If no Interest Period is specified with
respect to any portion of the Tranche B Loan that is to initially be a
Eurodollar Borrowing, then the Borrower shall be deemed to have selected an
Interest Period of one month's duration. Promptly following receipt of the
Borrowing Request in accordance with this Section 2.04(b), the Agent shall
advise each Tranche B Lender of the details thereof and of the amount of such
Tranche B Lender's Loan to be made as part of the requested Borrowing (which
shall be equal to such Tranche B Lender's Tranche B Commitment). Notwithstanding
that the initial Borrowing of the Tranche B Loan may be requested as a
Eurodollar Borrowing, in the event the Agent, in its reasonable discretion,
determines that such Eurodollar Borrowing is not practicable, such initial
Borrowing shall be an ABR Borrowing.
SECTION 2.05 Funding of Borrowings. (a) Each Lender shall make each Loan to
be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 2:00 p.m., New York City time, to the account of
the Agent most recently designated by it for such purpose by notice to the
Lenders. The Agent will make such Loans available to the Borrower by promptly
crediting the amounts so received, in like funds, to an account of the Borrower
maintained with the Agent and designated by the Borrower in the applicable
Borrowing Request; provided that ABR Loans made to finance the reimbursement of
an LC Disbursement as provided in Section 2.03(e) shall be remitted by the Agent
to the Issuing Lender.
(b) Unless the Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the
Agent such Lender's share of such Borrowing, the Agent may assume that such
Lender has made such share available on such date in accordance with paragraph
(a) of this Section and may, in reliance upon such assumption, make available to
the Borrower a corresponding amount. In such event, if a Lender has not in fact
made its share of the applicable Borrowing available to the Agent, then the
applicable Lender and the Borrower severally agree to pay to the Agent
32
forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to the Borrower to
but excluding the date of payment to the Agent, at (i) in the case of such
Lender, the greater of the Federal Funds Effective Rate and a rate determined by
the Agent in accordance with banking industry rules on interbank compensation or
(ii) in the case of the Borrower, the interest rate applicable to ABR Loans. If
such Lender pays such amount to the Agent, then such amount shall constitute
such Lender's Loan included in such Borrowing.
SECTION 2.06 Interest Elections. (a) Each Borrowing of Tranche A Loans and
the Borrowing of the Tranche B Loan initially shall be of the Type or, in the
case of the Tranche B Loan, Types specified in the applicable Borrowing Request
and, in the case of a Eurodollar Borrowing, shall have an initial Interest
Period as specified in such Borrowing Request. Thereafter, the Borrower may
elect to convert such Borrowings to a different Type or to continue such
Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest Periods
therefor, all as provided in this Section. The Borrower may elect different
options with respect to different portions of the affected Borrowing, in which
case each such portion shall be allocated ratably among the Lenders holding the
Tranche A Loans or Tranche B Loan, as the case may be, comprising such
Borrowing, and the Tranche A Loans and Tranche B Loan, as the case may be,
comprising each such Type shall be considered a separate Borrowing.
(b) To make an Interest Election Request pursuant to this Section, the
Borrower shall notify the Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.04(a) or Section 2.04(b) if
the Borrower were requesting a Borrowing of the Type resulting from such
election to be made on the effective date of such election. Each such telephonic
Interest Election Request shall be irrevocable and shall be confirmed promptly
by hand delivery, courier or telecopy to the Agent of a written Interest
Election Request in a form approved by the Agent and signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall specify the
following information in compliance with Section 2.01:
(i) the Borrowing to which such Interest Election Request applies and,
if different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing
(in which case the information to be specified pursuant to clauses (iii)
and (iv) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
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If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the Agent
shall advise each Lender of the details thereof and of such Lender's portion of
each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election Request
with respect to a Eurodollar Borrowing prior to the end of the Interest Period
applicable thereto, then, unless such Borrowing is repaid as provided herein, at
the end of such Interest Period such Borrowing shall be converted to an ABR
Borrowing. Notwithstanding any contrary provision hereof, if an Event of Default
has occurred and is continuing, then, so long as an Event of Default is
continuing (i) no outstanding Borrowing may be converted to or continued as a
Eurodollar Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be
converted to an ABR Borrowing at the end of the Interest Period applicable
thereto.
SECTION 2.07 [Reserved]
SECTION 2.08 Interest on Loans.
(a) Subject to the provisions of Section 2.09, each ABR Loan shall bear
interest (computed on the basis of the actual number of days elapsed over a year
of 360 days or, when the Alternate Base Rate is based on the Prime Rate, a year
with 365 days or 366 days in a leap year) at a rate per annum equal to the
Alternate Base Rate plus (i) 1.50% in the case of Tranche A Loans and (ii) 2.50%
in the case of the Tranche B Loan.
(b) Subject to the provisions of Section 2.09, each Eurodollar Loan shall
bear interest (computed on the basis of the actual number of days elapsed over a
year of 360 days) at a rate per annum equal, during each Interest Period
applicable thereto, to the Adjusted LIBO Rate for such Interest Period in effect
for such Borrowing plus (i) 2.50% in the case of Tranche A Loans and (ii) 2.50%
in the case of the Tranche B Loan.
(c) Accrued interest on all Loans shall be payable in arrears on each
Interest Payment Date applicable thereto, on the Maturity Date, the Termination
Date and after the Termination Date on demand and (with respect to Eurodollar
Loans) upon any repayment or prepayment thereof (on the amount prepaid).
SECTION 2.09 Default Interest. If the Borrower or any Guarantor, as the
case may be, shall default in the payment of the principal of or interest on any
Loan or in the payment of any other amount becoming due hereunder (including,
without limitation, the reimbursement pursuant to Section 2.03(e) of any LC
Disbursements), whether at stated maturity, by acceleration or otherwise, or any
other Event of Default shall have occurred and be continuing, the Borrower or
such Guarantor, as the case may be, shall on demand from time to time pay
interest, to the extent permitted by law, on such defaulted amount up to (but
not including) the date of actual payment (after as well as before judgment) at
a rate per annum (computed on the basis of the actual number of days elapsed
over a year of 360 days or when the Alternate Base Rate is applicable and is
based on the Prime Rate, a year with 365 days or 366 days in a leap
34
year) equal to (x) the rate then applicable for such Borrowings plus 2.0% and
(y) in the case of all other amounts, the rate applicable for Alternate Base
Rate plus 2.0%.
SECTION 2.10 Alternate Rate of Interest. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurodollar Loan, the Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower absent manifest
error) that reasonable means do not exist for ascertaining the applicable
Adjusted LIBO Rate, the Agent shall, as soon as practicable thereafter, give
written, facsimile or telegraphic notice of such determination to the Borrower
and the Lenders, and any request by the Borrower for a Borrowing of Eurodollar
Loans (including pursuant to a refinancing with Eurodollar Loans) pursuant to
Section 2.04 shall be deemed a request for a Borrowing of ABR Loans. After such
notice shall have been given and until the circumstances giving rise to such
notice no longer exist, each request for a Borrowing of Eurodollar Loans shall
be deemed to be a request for a Borrowing of ABR Loans.
SECTION 2.11 Repayment of Loans; Evidence of Debt.
(a) The Borrower hereby unconditionally promises to pay to the Agent for
the account of each Lender the then unpaid principal amount of each Loan on the
Termination Date.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder.
(c) The Agent shall maintain accounts in which it shall record (i) the
amount of each Loan made hereunder, the Type thereof and the Interest Period
applicable thereto, (ii) the amount of any principal or interest due and payable
or to become due and payable from the Borrower to each Lender hereunder and
(iii) the amount of any sum received by the Agent hereunder for the account of
the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph (b)
or (c) of this Section shall be prima facie evidence of the existence and
amounts of the obligations recorded therein; provided that the failure of any
Lender or the Agent to maintain such accounts or any error therein shall not in
any manner affect the obligation of the Borrower to repay the Loans in
accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a
promissory note. In such event, the Borrower shall execute and deliver to such
Lender a promissory note payable to the order of such Lender (or, if requested
by such Lender, to such Lender and its registered assigns) in a form furnished
by the Agent and reasonably acceptable to the Borrower. Thereafter, the Loans
evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 10.03) be represented by one or
more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).
35
SECTION 2.12 Optional Termination or Reduction of Commitment. Upon at least
one Business Day's prior written notice to the Agent, the Borrower may at any
time in whole permanently terminate, or from time to time in part permanently
reduce, the Unused Total Tranche A Commitment or the Total Tranche B Commitment.
Each such reduction of the Commitments shall be in the principal amount of
$1,000,000 or any integral multiple thereof. Simultaneously with each reduction
or termination of the Tranche A Commitment, the Borrower shall pay to the Agent
for the account of each Tranche A Lender the Tranche A Commitment Fee accrued
and unpaid on the amount of the Tranche A Commitment of such Tranche A Lender so
terminated or reduced through the date thereof. Simultaneously with each
reduction or termination of the Tranche B Commitment prior to the date of
funding of the Tranche B Loan, the Borrower shall pay to the Agent for the
account of each Tranche B Lender the Tranche B Commitment Fee accrued and unpaid
on the amount of the Tranche B Commitment of such Tranche B Lender so terminated
or reduced through the date thereof. Any reduction of any Commitment pursuant to
this Section shall be applied pro rata to reduce the applicable Commitment of
each Tranche A Lender or Tranche B Lender, as the case may be.
SECTION 2.13 Mandatory Prepayment; Commitment Termination.
(a) If at any time the aggregate principal amount of the outstanding Total
Commitment Usage exceeds the lesser of (x) the Total Commitment at such time and
(y) (A) prior to the entry of the Final Order, the amount permitted by the
Interim Order and (B) from and after the entry of the Final Order, the Borrowing
Base (the "Lesser Amount"), the Borrower will within one Business Day (i) prepay
the Loans in an amount necessary to cause the aggregate principal amount of the
outstanding Total Commitment Usage to be equal to or less than the Lesser
Amount, and (ii) if, after giving effect to the prepayment in full of the Loans,
the Uncollateralized LC Exposure exceeds the Lesser Amount, deposit into the
Letter of Credit Account an amount equal to 105% of the amount by which the
Uncollateralized LC Exposure so exceeds the Lesser Amount.
(b) Upon the sale of any property or assets of the Borrower or any
Guarantor described in clause (v) of Section 6.11, to the extent Net Proceeds of
such sales shall exceed $2,500,000 in the aggregate since the Closing Date, the
Borrower shall apply 100% of the Net Proceeds thereof received to the prepayment
and collateralization of the Loans and other credit exposure in accordance with
paragraph (c) of this Section.
(c) Any Net Proceeds described in paragraph (b) of this Section shall be
applied as follows: first, to the prepayment of the Tranche A Loans of the
Tranche A Lenders (without any reduction in the Total Tranche A Commitment)
until such Tranche A Loans have been repaid in full (plus any accrued but unpaid
interest and fees thereon, including without limitation any interest payable
pursuant to Section 2.09) and to the prepayment of the Tranche B Loans of the
Tranche B Lenders until such Tranche B Loans have been repaid in full (plus any
accrued but unpaid interest and fees thereon, including without limitation any
interest payable pursuant to Section 2.09, ratably among the parties thereto in
accordance with the amounts of principal, interest and fees then due to such
parties, second, to pay any unreimbursed LC Disbursements (plus any accrued but
unpaid interest thereon, including without limitation any interest payable
pursuant to Section 2.09), and third, to the Cash Collateralization of the
Letters of Credit (if any) in an aggregate amount equal to 105% of the
36
Uncollateralized LC Exposure, after giving effect to the application of Net
Proceeds described in clauses first, second and third of this Section 2.13(c),
there shall remain any Net Proceeds available, such Net Proceeds shall not be
subject to the prepayment, reimbursement and collateralization provisions of
this Section 2.13(c), but remain subject to the Liens securing the Secured
Obligations in accordance with the Loan Documents and the Orders.
(d) Upon the Termination Date, the Total Commitment shall be terminated in
full and the Borrower shall repay the Loans in full.
SECTION 2.14 Optional Prepayment of Loans.
(a) The Borrower shall have the right at any time and from time to time to
prepay any Loans, in whole or in part, (x) with respect to Eurodollar Loans,
upon written or facsimile notice received by 1:00 p.m. New York City time three
Business Days' prior to the proposed date of prepayment and (y) with respect to
ABR Loans on the same Business Day upon written or facsimile notice by 12:00
noon New York City time on the proposed date of prepayment; provided, however,
that (i) each such partial prepayment shall be in multiples of $1,000,000, and
(ii) no prepayment of Eurodollar Loans shall be permitted pursuant to this
Section 2.14(a) other than on the last day of an Interest Period applicable
thereto unless such prepayment is accompanied by the payment of the amounts
described in clause (i) of the first sentence of Section 2.17.
(b) Each notice of prepayment shall specify the prepayment date, the
principal amount of the Loans to be prepaid and in the case of Eurodollar Loans,
the Borrowing or Borrowings pursuant to which made, shall be irrevocable and
shall commit the Borrower to prepay such Loan by the amount and on the date
stated therein. The Agent shall, promptly after receiving notice from the
Borrower hereunder, notify each Lender of the principal amount of the Loans held
by such Lender which are to be prepaid, the prepayment date and the manner of
application of the prepayment.
SECTION 2.15 Reserved.
SECTION 2.16 Increased Costs. (a) If any Change in Law shall:(i) impose,
modify or deem applicable any reserve, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended by,
any Lender (except any such reserve requirement reflected in the Adjusted LIBO
Rate) or the Issuing Lender; or
(ii) impose on any Lender or the Issuing Lender or the London interbank
market any other condition affecting this Agreement or Eurodollar Loans made by
such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or the
Issuing Lender of participating in, issuing or maintaining any Letter of Credit
or to reduce the amount of any sum received or receivable by such Lender or the
Issuing Lender hereunder (whether of principal, interest or otherwise), then the
Borrower will pay to such Lender or the Issuing Lender, as the case may be, such
additional amount or amounts
37
as will compensate such Lender or the Issuing Lender, as the case may be, for
such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Lender reasonably determines that any
Change in Law regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's or the Issuing Lender's capital or
on the capital of such Lender's or the Issuing Lender's holding company, if any,
as a consequence of this Agreement or the Loans made by, or participations in
Letters of Credit held by, such Lender, or the Letters of Credit issued by the
Issuing Lender, to a level below that which such Lender or the Issuing Lender or
such Lender's or the Issuing Lender's holding company could have achieved but
for such Change in Law (taking into consideration such Lender's or the Issuing
Lender's policies and the policies of such Lender's or the Issuing Lender's
holding company with respect to capital adequacy), then from time to time the
Borrower will pay to such Lender or the Issuing Lender, as the case may be, such
additional amount or amounts as will compensate such Lender or the Issuing
Lender or such Lender's or the Issuing Lender's holding company for any such
reduction suffered.
(c) A certificate of a Lender or the Issuing Lender setting forth the
amount or amounts necessary to compensate such Lender or the Issuing Lender or
its holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender or the Issuing Lender, as the
case may be, the amount shown as due on any such certificate within 10 days
after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing Lender to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or the Issuing Lender's right to demand such compensation;
provided, that the Borrower shall not be required to compensate a Lender or the
Issuing Lender pursuant to this Section for any increased costs or reductions
incurred more than 270 days prior to the date that such Lender or the Issuing
Lender, as the case may be, notifies the Borrower of the Change in Law giving
rise to such increased costs or reductions and of such Lender's or the Issuing
Lender's intention to claim compensation therefor; provided further that, if the
Change in Law giving rise to such increased costs or reductions is retroactive,
then the 270-day period referred to above shall be extended to include the
period of retroactive effect thereof
SECTION 2.17 Break Funding Payments. In the event of (a) the payment of any
principal of any Eurodollar Loan other than on the last day of an Interest
Period applicable thereto (including as a result of an Event of Default), (b)
the conversion of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto (including as a result of an Event of Default), (c)
the failure to borrow, convert, continue or prepay any Eurodollar Loan on the
date specified in any notice delivered pursuant hereto, or (d) the assignment of
any Eurodollar Loan other than on the last day of the Interest Period applicable
thereto as a result of a request by the Borrower pursuant to Section 2.20, then,
in any such event, the Borrower shall compensate each Lender for the loss, cost
and expense attributable to such event. In the case of a Eurodollar Loan, such
loss, cost or expense to any Lender shall be deemed to include an amount
determined by such Lender to be the excess, if any, of (i) the amount of
interest which would have accrued on the principal amount of such Loan had such
event not occurred, at the Adjusted
38
LIBO Rate that would have been applicable to such Loan, for the period from the
date of such event to the last day of the then current Interest Period therefor
(or, in the case of a failure to borrow, convert or continue, for the period
that would have been the Interest Period for such Loan), over (ii) the amount of
interest which would accrue on such principal amount for such period at the
interest rate which such Lender would bid were it to bid, at the commencement of
such period, for dollar deposits of a comparable amount and period from other
banks in the eurodollar market. A certificate of any Lender setting forth any
amount or amounts that such Lender is entitled to receive pursuant to this
Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.
SECTION 2.18 Taxes. (a) Any and all payments by or on account of any
obligation of the Borrower hereunder shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided, that if the
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Agent, Lender or Issuing Lender
(as the case may be) receives an amount equal to the sum it would have received
had no such deductions been made, (ii) the Borrower shall make such deductions
and (iii) the Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Agent, each Lender and the Issuing
Lender, within 10 days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes paid by the Agent, such Lender or the Issuing
Lender, as the case may be, on or with respect to any payment by or on account
of any obligation of the Borrower hereunder (including Indemnified Taxes or
Other Taxes imposed or asserted on or attributable to amounts payable under this
Section) and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability delivered
to the Borrower by a Lender or the Issuing Lender, or by the Agent on its own
behalf or on behalf of a Lender or the Issuing Lender, shall be conclusive
absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or Other
Taxes by the Borrower to a Governmental Authority, the Borrower shall deliver to
the Agent the original or a certified copy of a receipt issued by such
Governmental Authority evidencing such payment, a copy of the return reporting
such payment or other evidence of such payment reasonably satisfactory to the
Agent.
(e) Any Foreign Lender that is entitled to an exemption from or reduction
of withholding tax under the law of the jurisdiction in which the Borrower is
located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall deliver to the Borrower (with a copy to the
Agent), at the time or times prescribed by applicable
39
law, such properly completed and executed documentation prescribed by applicable
law or reasonably requested by the Borrower as will permit such payments to be
made without withholding or at a reduced rate.
(f) If the Agent or a Lender determines, in its sole discretion, that it
has received a refund of any Taxes or Other Taxes as to which it has been
indemnified by the Borrower or with respect to which the Borrower has paid
additional amounts pursuant to this Section 2.18, it shall pay over such refund
to the Borrower (but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrower under this Section 2.18 with respect to
the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket
expenses of the Agent or such Lender and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such
refund); provided, that the Borrower, upon the request of the Agent or such
Lender, agrees to repay the amount paid over to the Borrower (plus any
penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Agent or such Lender in the event the Agent or such Lender is
required to repay such refund to such Governmental Authority. This Section shall
not be construed to require the Agent or any Lender to make available its tax
returns (or any other information relating to its taxes which it deems
confidential) to the Borrower or any other Person.
SECTION 2.19 Payments Generally; Pro Rata Treatment.
(a) The Borrower shall make each payment or prepayment required to be made
by it hereunder (whether of principal, interest, fees or reimbursement of LC
Disbursements, or of amounts payable under Section 2.16, 2.17 or 2.18, or
otherwise) prior to 12:00 noon, New York City time, on the date when due, in
immediately available funds, without set-off or counterclaim. Any amounts
received after such time on any date may, in the discretion of the Agent, be
deemed to have been received on the next succeeding Business Day for purposes of
calculating interest thereon. All such payments shall be made to the Agent at
its offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, except payments to be made
directly to the Issuing Lender as expressly provided herein and except that
payments pursuant to Sections 2.16, 2.17, 2.18 and 10.05 shall be made directly
to the Persons entitled thereto. The Agent shall distribute any such payments
received by it for the account of any other Person to the appropriate recipient
promptly following receipt thereof. If any payment hereunder shall be due on a
day that is not a Business Day, the date for payment shall be extended to the
next succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. All payments
hereunder shall be made in Dollars.
(b) If at any time insufficient funds are received by and available to the
Agent to pay fully all amounts of principal, unreimbursed LC Disbursements,
interest, fees and expenses then due hereunder, such funds shall be applied (i)
first, towards payment of fees and expenses then due under Sections 2.21 and
10.05, ratably among the parties entitled thereto in accordance with the amounts
of fees and expenses then due to such parties, (ii) second, towards payment of
interest, Tranche A Commitment Fee and Letter of Credit Fees then due on account
of Tranche A Loans, unreimbursed LC Disbursements and Letters of Credit
(including without limitation any interest payable pursuant to Section 2.09) and
Tranche B Commitment Fee then due on account of Tranche B Loans, ratably among
the parties entitled thereto in accordance with the amounts of interest and Fees
then due to such parties, (iii) third, towards payment of principal
40
of the Tranche A Loans, the Tranche B Loan and unreimbursed LC Disbursements
then due hereunder, ratably among the parties entitled thereto in accordance
with the amounts of principal and unreimbursed LC Disbursements then due to such
parties, (iv) fourth, towards the Cash Collateralization of Letters of Credit
then outstanding in an aggregate amount equal to 105% of the Uncollateralized LC
Exposure, and provided, however, that the proceeds from the foreclosure of any
Collateral shall be applied as set forth in the Security and Pledge Agreement.
(c) Unless the Agent shall have received notice from the Borrower prior to
the date on which any payment is due to the Agent for the account of the Lenders
or the Issuing Lender hereunder that the Borrower will not make such payment,
the Agent may assume that the Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to the
Lenders or the Issuing Lender, as the case may be, the amount due. In such
event, if the Borrower has not in fact made such payment, then each of the
Lenders or the Issuing Lender, as the case may be, severally agrees to repay to
the Agent forthwith on demand the amount so distributed to such Lender or
Issuing Lender with interest thereon, for each day from and including the date
such amount is distributed to it to but excluding the date of payment to the
Agent, at the greater of the Federal Funds Effective Rate and a rate determined
by the Agent in accordance with banking industry rules on interbank
compensation.
(d) If any Lender shall fail to make any payment required to be made by it
pursuant to Sections 2.03(d) and (e), 2.05(b) and 2.19(c), then the Agent may,
in its discretion (notwithstanding any contrary provision hereof), apply any
amounts thereafter received by the Agent for the account of such Lender to
satisfy such Lender's obligations under such Sections until all such unsatisfied
obligations are fully paid.
SECTION 2.20 Mitigation Obligations; Replacement of Lenders. (a) If any
Lender requests compensation under Section 2.16, or if the Borrower is required
to pay any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 2.18, then such Lender shall use
reasonable efforts to designate a different lending office for funding or
booking its Loans hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the reasonable judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.16 or 2.18, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.16, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.18,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the
Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in Section 10.03), all
its interests, rights and obligations under this Agreement to an assignee that
shall assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment); provided, that (i) the Borrower shall have received
the prior written consent of the Agent (and if a Tranche A
41
Commitment is being assigned, the Issuing Lender), which consent shall not
unreasonably be withheld, (ii) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans and participations in LC
Disbursements, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder, from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Borrower (in the case of all
other amounts) and (iii) in the case of any such assignment resulting from a
claim for compensation under Section 2.16 or payments required to be made
pursuant to Section 2.18, such assignment will result in a reduction in such
compensation or payments. A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Borrower to require such
assignment and delegation cease to apply.
SECTION 2.21 Certain Fees. The Borrower shall pay to the Agent, for the
respective accounts of the Agent and the Lenders, the fees set forth in that
certain Fee Letter dated as of May 17, 2005 among the Agent, JPMorgan and the
Borrower, at the times set forth therein.
SECTION 2.22 Commitment Fees. (a) The Borrower shall pay to the Tranche A
Lenders a commitment fee (the "Tranche A Commitment Fee") for the period
commencing on the Filing Date to the Termination Date or the earlier date of
termination of the Tranche A Commitment, computed (on the basis of the actual
number of days elapsed over a year of 360 days) at the rate of one-half of one
percent (1/2%) per annum on the average daily Unused Total Tranche A Commitment.
Such Tranche A Commitment Fee, to the extent then accrued, shall be payable (x)
monthly, in arrears, on the last calendar day of each month, (y) on the
Termination Date and (z) as provided in Section 2.12 hereof, upon any reduction
or termination in whole or in part of the Total Tranche A Commitment.
(b) The Borrower shall pay to the Tranche B Lenders a commitment fee (the
"Tranche B Commitment Fee") for the period commencing on the Filing Date to the
earlier of (i) the Termination Date and (ii) the date on which the Tranche B
Loan is funded, computed (on the basis of the actual number of days elapsed over
a year of 360 days) at the rate of one-half of one percent (1/2%) per annum on
the Total Tranche B Commitment. Such Tranche B Commitment Fee, to the extent
then accrued, shall be payable (w) monthly, in arrears, on the last calendar day
of each month, (x) on the date on which the Tranche B Loan is funded, (y) on the
Termination Date and (z) as provided in Section 2.12 hereof, upon any reduction
or termination in whole or in part of the Total Tranche B Commitment.
SECTION 2.23 Letter of Credit Fees. The Borrower shall pay with respect to
each Letter of Credit (i) to the Agent on behalf of the Tranche A Lenders a fee
calculated (on the basis of the actual number of days elapsed over a year of 360
days) at the rate of (x) two and one-half percent (2.50%) per annum on the daily
average LC Exposure (excluding any portion thereof attributable to unreimbursed
LC Disbursements) and (ii) to the Issuing Lender such Issuing Lender's customary
fees for issuance, amendments and processing referred to in Section 2.03. In
addition, the Borrower agrees to pay each Issuing Lender for its account a
fronting fee of one quarter of one percent (1/4%) per annum in respect of each
Letter of Credit issued by such Issuing Lender, for the period from and
including the date of issuance of such Letter of Credit to and including the
date of termination of such Letter of Credit. Accrued fees described in this
42
paragraph in respect of each Letter of Credit shall be due and payable monthly
in arrears on the last calendar day of each month and on the Termination Date.
SECTION 2.24 Nature of Fees. All Fees shall be paid on the dates due, in
immediately available funds, to the Agent for the respective accounts of the
Agent and the Lenders, as provided herein and in the fee letter described in
Section 2.21. Once paid, none of the Fees shall be refundable under any
circumstances.
SECTION 2.25 Priority and Liens.
(a) Subject to the Orders and the Security and Pledge Agreement, the
Borrower and each of the Guarantors hereby covenants, represents and warrants
that, upon entry of the Interim Order (and the Final Order, as applicable), the
Obligations and the other Secured Obligations (including without limitation the
obligations of the Borrower and the Guarantors in respect of Indebtedness owing
to JPMCB, any Lender and any of their banking Affiliates permitted by Section
6.03) and subject, in each of clauses (i) through (iv) below, to the Carve-Out:
(i) pursuant to Section 364(c)(l) of the Bankruptcy Code, shall at all times
constitute allowed claims in the Cases having priority over any and all
administrative expenses, diminution claims (including the Superpriority Claims
granted to the Existing Lenders) and all other claims against the Borrower and
the Guarantors, now existing or hereafter arising, of any kind whatsoever,
including without limitation, all administrative expenses of the kind specified
in Sections 503(b) or 507(b) of the Bankruptcy Code; (ii) pursuant to Section
364(c)(2) of the Bankruptcy Code, shall at all times be secured by a valid,
binding, continuing, enforceable and fully-perfected first priority senior
security interest in and Lien on all tangible and intangible property of the
Borrower's and the Guarantors' respective estates in the Cases that is not
subject to valid, perfected and non-avoidable Liens on the Filing Date,
including, without limitation, all present and future accounts receivable (other
than, prior to repurchase or reacquisition thereof by any of the Debtors, such
accounts receivable sold to the Receivables Subsidiary prior to the Filing Date
to the extent such accounts receivable shall not constitute property of the
estate of the Borrower or any Guarantors pursuant to the Permitted Receivables
Purchase Facility), inventory, general intangibles, chattel paper, real
property, leaseholds, fixtures, machinery and equipment, deposit accounts,
patents, copyrights, trademarks, tradenames, rights under license agreements and
other intellectual property, capital stock of any Subsidiaries of the Borrower
and Guarantors (but excluding the Borrower's and the Guarantors' rights in
respect of avoidance actions under the Bankruptcy Code, it being understood
that, notwithstanding such exclusion of avoidance actions, subject to entry of
the Final Order, the proceeds of such actions (including, without limitation,
assets as to which Liens are avoided) shall be subject to such liens under
Section 364(c)(2) of the Bankruptcy Code and available to satisfy the
Obligations and the other Secured Obligations) and on all cash and investments
maintained in the Letter of Credit Account; (iii) pursuant to Section 364(c)(3)
of the Bankruptcy Code, shall be secured by valid, binding, continuing,
enforceable and fully-perfected security interests in and Liens upon all
tangible and intangible property of the Borrower and the Guarantors that is
subject to valid, perfected and non-avoidable Liens in existence on the Filing
Date or that is subject to valid Liens in existence on the Filing Date that are
perfected subsequent to the Filing Date as permitted by Section 546(b) of the
Bankruptcy Code (other than the property referred to in clause (iv) below that
is subject to the existing Liens described in clause (iv)(x) below, as to which
the Lien in favor of the Agent and the
43
Lenders will be as described in clause (iv) below), junior to such valid,
perfected and non-avoidable Liens; and (iv) pursuant to Section 364(d)(1) of the
Bankruptcy Code, shall be secured by a valid, binding, continuing, enforceable
and fully-perfected first priority senior priming security interest in and
senior priming Lien on all of the tangible and intangible property of the
Borrower and the Guarantors that is subject to (x) existing Liens that presently
secure obligations under the Existing Agreement, but subject to any Liens in
existence on the Filing Date to which the Liens being primed hereby are subject
or become subject subsequent to the Filing Date as permitted by Section 546(b)
of the Bankruptcy Code and (y) any Liens granted after the Filing Date to
provide adequate protection in respect of any existing Lien described in clause
(iv)(x), senior to all of such Liens; provided, however, the Borrower and the
Guarantors shall not be required to pledge to the Agent (i) in excess of 65% of
the voting capital stock of their respective direct Foreign Subsidiaries or any
of the capital stock or interests of its indirect Foreign Subsidiaries (if
adverse tax consequences would result to the Borrower), (ii) Joint Venture
Interests if such pledge is prohibited by the organizational documents of the
applicable Joint Venture pursuant to provisions that are enforceable during the
bankruptcy cases of the Debtors or if as a result of such pledge the value of
such Joint Venture Interests would be materially and adversely compromised or
(iii) the Equity Interests of Carcorp Inc. or Waterstone Inc. to the extent a
pledge of such Equity Interests would violate any law; provided, however, that
no portion of the Carve-Out may be utilized to fund prosecution or assertion of
any claims against the Agent, the Lenders or the Issuing Lenders (it being
understood that, in the event of the liquidation of the Borrower's and the
Guarantors' estates, the amount of the Carve-Out shall be funded into a
segregated account prior to the making of distributions).
(b) Subject to the priorities set forth in subsection (a) above and to the
Carve-Out, as to all real property the title to which is held by the Borrower or
any of the Guarantors, or the possession of which is held by the Borrower or any
of the Guarantors pursuant to leasehold interests and which secures the Existing
Senior Secured Indebtedness, the Borrower and each Guarantor hereby assigns and
conveys as security, grants a security interest in, hypothecates, mortgages,
pledges and sets over unto the Agent on behalf of the Lenders all of the right,
title and interest of the Borrower and such Guarantor in all of such owned real
property and in all such leasehold interests, together in each case with all of
the right, title and interest of the Borrower and such Guarantor in and to all
buildings, improvements, and fixtures related thereto, any lease or sublease
thereof, all general intangibles relating thereto and all proceeds thereof. The
Borrower and each Guarantor acknowledges that, pursuant to the Orders, the Liens
in favor of the Agent on behalf of the Lenders in all of such real property and
leasehold instruments shall be perfected without the recordation of any
instruments of mortgage or assignment.
SECTION 2.26 Right of Set-Off. Subject to the provisions of Section 7.01,
upon the occurrence and during the continuance of any Event of Default, the
Agent and each Lender is hereby authorized at any time and from time to time, to
the fullest extent permitted by law and without further order of or application
to the Bankruptcy Court, to set off and apply any and all deposits (general or
special, time or demand, provisional or final but excluding deposits designated
as payroll accounts and any trust accounts) at any time held and other
indebtedness at any time owing by the Agent and each such Lender to or for the
credit or the account of the Borrower or any Guarantor against any and all of
the obligations of such Borrower or Guarantor
44
now or hereafter existing under the Loan Documents, irrespective of whether or
not such Lender shall have made any demand under any Loan Document and although
such obligations may not have been accelerated. Each Lender and the Agent agrees
to notify the Borrower and Guarantors in accordance with Section 7.01 prior to
any such set-off and application made by such Lender or by the Agent, as the
case may be. The rights of each Lender and the Agent under this Section are in
addition to other rights and remedies which such Lender and the Agent may have
upon the occurrence and during the continuance of any Event of Default.
SECTION 2.27 Security Interest in Letter of Credit Account. Pursuant to
Section 364(c)(2) of the Bankruptcy Code, the Borrower and the Guarantors hereby
assign and pledge to the Agent, for its benefit and for the ratable benefit of
the Lenders, and hereby grant to the Agent, for its benefit and for the ratable
benefit of the Lenders, a first priority security interest, senior to all other
Liens, if any, in all of the Borrower's and the Guarantors' right, title and
interest in and to the Letter of Credit Account and any direct investment of the
funds contained therein. Cash held in the Letter of Credit Account shall not be
available for use by the Borrower, whether pursuant to Section 363 of the
Bankruptcy Code or otherwise, and shall be released to the Borrower only as
described in clause (ii)(y) of Section 2.03(j).
SECTION 2.28 Payment of Obligations. Subject to the provisions of Section
7.01, upon the maturity (whether by acceleration or otherwise) of any of the
Obligations under this Agreement or any of the other Loan Documents of the
Borrower and the Guarantors, the Lenders shall be entitled to immediate payment
of such Obligations without further application to or order of the Bankruptcy
Court.
SECTION 2.29 No Discharge; Survival of Claims. Each of the Borrower and the
Guarantors agrees that (i) its obligations hereunder shall not be discharged by
the entry of an order confirming a Reorganization Plan (and each of the Borrower
and the Guarantors, pursuant to Section 1141(d)(4) of the Bankruptcy Code,
hereby waives any such discharge) and (ii) the Superpriority Claim granted to
the Agent and the Lenders pursuant to the Orders and described in Section 2.25
and the Liens granted to the Agent pursuant to the Orders and described in
Sections 2.25 and 2.27 shall not be affected in any manner by the entry of an
order confirming a Reorganization Plan.
SECTION 2.30 Use of Cash Collateral. Notwithstanding anything to the
contrary contained herein, the Borrower shall not be permitted to request a
Borrowing under Section 2.04 or request the issuance of a Letter of Credit under
2.03 unless the Bankruptcy Court shall have entered the Interim Order and shall
at that time have granted to the Borrower use of all cash collateral, subject to
the Orders, for the purposes described in Section 3.09.
SECTION 3. REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders to make Loans and issue and/or participate
in Letters of Credit hereunder, the Borrower and each of the Guarantors jointly
and severally represent and warrant as follows:
SECTION 3.01 Organization and Authority. Each of the Borrower and the
Guarantors (i) is duly organized, validly existing and in good standing under
the laws of the
45
jurisdiction of its organization and is duly qualified and in good standing in
each jurisdiction in which the failure to so qualify would have a material
adverse effect on the operations, business, properties, assets or condition
(financial or otherwise) of the Borrower and the Guarantors taken as a whole;
(ii) subject to the entry by the Bankruptcy Court of the Interim Order (or the
Final Order, when applicable) has the requisite power and authority to effect
the transactions contemplated hereby, and by the other Loan Documents to which
it is a party, and (iii) subject to the entry by the Bankruptcy Court of the
Interim Order (or the Final Order, when applicable) has all requisite power and
authority and the legal right to own, pledge, mortgage and operate its
properties, and to conduct its business as now or currently proposed to be
conducted.
SECTION 3.02 Due Execution. Upon the entry by the Bankruptcy Court of the
Interim Order (or the Final Order, when applicable), the execution, delivery and
performance by each of the Borrower and the Guarantors of each of the Loan
Documents to which it is a party (i) are within the respective powers of each of
the Borrower and the Guarantors, have been duly authorized by all necessary
action including the consent of shareholders where required, and do not (A)
contravene the charter or by-laws of any of the Borrower or the Guarantors, (B)
violate any law (including, without limitation, the Securities Exchange Act of
1934) or regulation (including, without limitation, Regulations T, U or X of the
Board), or any order or decree of any court or Governmental Authority, (C)
conflict with or result in a breach of, or constitute a default under, any
material indenture, mortgage or deed of trust entered into after the Filing Date
or any material lease, agreement or other instrument entered into after the
Filing Date binding on the Borrower or the Guarantors or any of their
properties, or (D) result in or require the creation or imposition of any Lien
upon any of the property of any of the Borrower or the Guarantors other than the
Liens granted pursuant to this Agreement, the other Loan Documents or the
Orders; and (ii) do not require the consent, authorization by or approval of or
notice to or filing or registration with any Governmental Authority other than
the entry of the Orders. Upon the entry by the Bankruptcy Court of the Interim
Order (or the Final Order, when applicable), this Agreement has been duly
executed and delivered by each of the Borrower and the Guarantors. This
Agreement is, and each of the other Loan Documents to which the Borrower and
each of the Guarantors is or will be a party, when delivered hereunder or
thereunder, will be, a legal, valid and binding obligation of the Borrower and
each Guarantor, as the case may be, enforceable against the Borrower and the
Guarantors, as the case may be, in accordance with its terms and the Orders.
SECTION 3.03 Statements Made. The information that has been prepared by or
at the request of the Borrower or any Guarantor and delivered in writing by the
Borrower or any of the Guarantors to the Agent or to the Bankruptcy Court in
connection with any Loan Document, any confidential information memorandum
relating to the syndication of the credit facilities provided for herein, and
any financial statement delivered pursuant hereto or thereto (other than to the
extent that any such statements constitute projections), taken as a whole and in
light of the circumstances in which made, contains no untrue statement of a
material fact and does not omit to state a material fact necessary to make such
statements not misleading; and, to the extent that any such information
constitutes projections, such projections were prepared in good faith on the
basis of assumptions, methods, data, tests and information believed by the
Borrower or such Guarantor to be reasonable at the time such projections were
furnished (it being understood that projections are inherently uncertain and
that actual results may differ from the projections and such difference may be
material).
46
SECTION 3.04 Financial Statements. The Borrower has furnished the Lenders
with copies of the unaudited consolidated financial statements of the Global
Entities for the fiscal year ended December 31, 2003.
SECTION 3.05 Ownership. Other than as set forth on Schedule 3.05, (i) each
of the Persons listed on Schedule 3.05 is a wholly-owned, direct or indirect
Subsidiary of the Borrower, and (ii) the Borrower owns no other Subsidiaries,
whether directly or indirectly.
SECTION 3.06 Liens. There are no Liens of any nature whatsoever on any
assets of the Domestic Entities or any of the Global Entities other than Liens
permitted pursuant to Section 6.01.
SECTION 3.07 Compliance with Law.
(a) Except for matters which could not reasonably be expected to have a
material adverse effect on the operations, business, properties, assets or
condition (financial or otherwise) of the Domestic Entities taken as a whole,
and the Global Entities taken as a whole (i) the operations of the Domestic
Entities and the Global Entities comply in all material respects with all
applicable environmental, health and safety statutes and regulations, including,
without limitation, regulations promulgated under the Resource Conservation and
Recovery Act (42 U.S.C. xx.xx. 6901 et seq.); (ii) to the Borrower's and each of
the Guarantor's knowledge, none of the operations of the Borrower or the
Guarantors is the subject of any Federal or state investigation evaluating
whether any remedial action involving a material expenditure by the Domestic
Entities is needed to respond to a release of any Hazardous Waste or Hazardous
Substance (as such terms are defined in any applicable state or Federal
environmental law or regulations) into the environment; and (iii) to the
Borrower's and each of the Guarantor's knowledge, the Domestic Entities do not
have any material contingent liability in connection with any release of any
Hazardous Waste or Hazardous Substance into the environment.
(b) To the Borrower's and each of the Guarantor's best knowledge, none of
the Domestic Entities and none of the Global Entities are in violation of any
law, rule or regulation, or in default with respect to any judgment, writ,
injunction or decree of any Governmental Authority the violation of which, or a
default with respect to which, would have a material adverse effect on the
operations, business, properties, assets or condition (financial or otherwise)
of the Domestic Entities taken as a whole or the Global Entities taken as a
whole.
SECTION 3.08 Insurance. All policies of insurance of any kind or nature
owned by or issued to the Borrower and the Guarantors, including, without
limitation, policies of life, fire, theft, product liability, public liability,
property damage, other casualty, employee fidelity, workers' compensation,
employee health and welfare, title, property and liability insurance, are in
full force and effect and are of a nature and provide such coverage as is
consistent with sound business practice and customarily carried by companies of
the size and character of the Borrower and the Guarantors.
SECTION 3.09 Use of Proceeds.
(a) The Letters of Credit and the proceeds of the Tranche A Loans shall be
used for working capital and for other general corporate purposes of the
Borrower and Guarantors.
47
(b) The proceeds of the Tranche B Loan shall be used for working capital
and for other general corporate purposes of the Borrower and the Guarantors
including payment of Tranche A Loans then outstanding (with no reduction in the
Total Tranche A Commitment) and interest thereon.
SECTION 3.10 Litigation. Other than as set forth on Schedule 3.10, there
are no unstayed actions, suits or proceedings pending or, to the knowledge of
the Borrower or the Guarantors, threatened against or affecting the Domestic
Entities or the Global Entities or any of their respective properties, before
any court or governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, which is reasonably likely to be
determined adversely to the Domestic Entities or the Global Entities and, if so
determined adversely to the Domestic Entities or the Global Entities would have
a material adverse effect on the operations, business, properties, assets or
condition (financial or otherwise) of the Domestic Entities taken as a whole or
the Global Entities taken as a whole.
SECTION 3.11 Labor Relations.
(a) Except as disclosed on Schedule 3.11 hereto, the Domestic Entities are
not presently a party to any collective bargaining or other similar contracts.
(b) Except for matters which, in the aggregate, could not reasonably be
expected to have a material adverse effect on the operations, business,
properties, assets or condition (financial or otherwise) of the Domestic
Entities, there is not presently pending and, to the Borrower's and each
Guarantor's best knowledge, there is not threatened any of the following:
(i) any strike, slowdown, picketing, work stoppage, or employee
grievance process;
(ii) any proceeding against or affecting the Domestic Entities
relating to the alleged violation of any applicable law pertaining to labor
relations or before the National Labor Relations Board, the Equal
Employment Opportunity Commission, or any comparable governmental body,
organizational activity, or other labor or employment dispute against or
affecting the Domestic Entities;
(iii) any lockout of any employees by the Domestic Entities;
(iv) any application for the certification of a collective bargaining
agreement;
(v) any work stoppage or other labor dispute; or
(vi) any failure by the Domestic Entities to comply with all
applicable law relating to employment, equal employment opportunity,
nondiscrimination, immigration, wages, hours, benefits collective
bargaining, the payment of social security and similar taxes, occupational
safety and health, and plant closing.
SECTION 3.12 ERISA. No ERISA Event has occurred or is reasonably expected
to occur for periods prior to the Filing Date that could reasonably be expected
to result in a
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material adverse effect. The current liability under each Plan as of January 1,
2004 (based on the actuarial report of the independent actuary dated January 1,
2004) does not exceed by more than $26.2 million the fair market value of the
assets of such Plan, and the current liability of all underfunded Plans as of
January 1, 2004 (based on the actuarial report of the independent actuary dated
January 1, 2004) does not exceed by more than $40.1 million the fair market
value of the assets of all such underfunded Plans.
SECTION 3.13 The Orders. On the date of the making of the initial Loans
hereunder or the issuance of the initial Letters of Credit hereunder, the
Interim Order will have been entered and will not have been reversed, stayed,
vacated or, without the Agent's consent, which consent shall be in its sole
discretion, amended, supplemented or modified. On the date of the making of any
Loan or the issuance of any Letter of Credit, the Interim Order or the Final
Order, as the case may be, shall have been entered and shall not have been
reversed, stayed, vacated or, without the Agent's consent, which consent shall
be in its sole discretion, amended, supplemented or modified. Upon the maturity
(whether by the acceleration or otherwise) of any of the Obligations of the
Borrower and the Guarantor hereunder and under the other Loan Documents, the
Lenders shall, subject to the provisions of Section 7.01, be entitled to
immediate payment of such obligations, and to enforce the remedies provided for
hereunder, without further application to or order by the Bankruptcy Court.
SECTION 3.14 Properties.
(a) Each of the Borrower and the Guarantors has good title to, or valid
leasehold interests in, all its real and personal property material to its
business, except for minor defects in title that do not interfere with its
ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes.
(b) Each of the Borrower and the Guarantors owns, or is licensed to use,
all trademarks, tradenames, copyrights, patents and other intellectual property
material to its business, and the use thereof by the Borrower and the Guarantors
does not infringe upon the rights of any other Person, except for any such
infringement that, individually or in the aggregate, could not reasonably be
expected to result in a material adverse effect.
SECTION 4. CONDITIONS OF LENDING
SECTION 4.01 Conditions Precedent to Initial Loans and Initial Letters of
Credit. The obligation of the Lenders to make the initial Loans or the Issuing
Lender to issue the initial Letter of Credit, whichever may occur first, is
subject to the satisfaction (or waiver in accordance with Section 10.09 or delay
or other treatment as provided in Section 1.04) of the following conditions
precedent:
(a) Supporting Documents. The Agent shall have received for each of the
Borrower and the Guarantors:
(i) a copy of such entity's articles or certificate of incorporation
or formation, as amended, certified as of a recent date by the Secretary of
State of the state of its incorporation or formation;
49
(ii) a certificate of such Secretary of State, dated as of a recent
date, as to the good standing of and payment of taxes by that entity and as
to the charter documents on file in the office of such Secretary of State;
and
(iii) a certificate of the Secretary or an Assistant Secretary of that
entity dated the date of the initial Loans or the initial Letter of Credit
hereunder, whichever first occurs, and certifying (A) that attached thereto
is a true and complete copy of the by-laws or limited liability company
agreement of that entity as in effect on the date of such certification,
(B) that attached thereto is a true and complete copy of resolutions
adopted by the Board of Directors or managers of that entity authorizing
the Borrowings and Letter of Credit extensions hereunder, the execution,
delivery and performance in accordance with their respective terms of this
Agreement, the Loan Documents and any other documents required or
contemplated hereunder or thereunder and the granting of the security
interest in the Letter of Credit Account and other Liens contemplated
hereby, (C) that the articles or certificate of incorporation or formation
of that entity has not been amended since the date of the last amendment
thereto indicated on the certificate of the Secretary of State furnished
pursuant to clause (i) above and (D) as to the incumbency and specimen
signature of each officer of that entity executing this Agreement and the
Loan Documents or any other document delivered by it in connection herewith
or therewith (such certificate to contain a certification by another
officer of that entity as to the incumbency and signature of the officer
signing the certificate referred to in this clause (iii)).
(b) Interim Order. At the time of the making of the initial Loans or at the
time of the issuance of the initial Letters of Credit, whichever first occurs,
the Agent and the Lenders shall have received satisfactory evidence of the entry
of an order of the Bankruptcy Court in substantially the form of Exhibit A (the
"Interim Order") approving the Loan Documents and granting the Superpriority
Claim status and senior priming and other Liens described in Section 2.25 which
Interim Order (i) shall have been entered with the consent or non-objection of a
preponderance (as reasonably determined by the Agent) of the Existing First Lien
Lenders (ii) shall be in form and substance satisfactory to the Agent in its
sole discretion, (iii) shall have been entered not later than fifteen (15) days
following the Filing Date and (iv) shall not have been vacated, stayed,
reversed, modified or amended in any respect; and, if the Interim Order is the
subject of a pending appeal in any respect, neither the making of such Loans nor
the issuance of such Letter of Credit nor the performance by the Borrower or any
of the Guarantors of any of their respective obligations hereunder or under the
Loan Documents or under any other instrument or agreement referred to herein
shall be the subject of a presently effective stay pending appeal.
(c) Security and Pledge Agreement. The Borrower and each of the Guarantors
shall have duly executed and delivered to the Agent a Security and Pledge
Agreement in substantially the form of Exhibit B (the "Security and Pledge
Agreement").
(d) First Day Orders. All of the "first day orders" entered by the
Bankruptcy Court at the time of the commencement of the Cases shall be
reasonably satisfactory in form and substance to the Agent.
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(e) Opinion of Counsel. The Agent and the Lenders shall have received the
(i) favorable written opinion of Xxxxxxxx & Xxxxx, LLP, counsel to the Borrower
and the Guarantors, dated the date of the initial Loans or the issuance of the
initial Letter of Credit, whichever first occurs, substantially in the form of
Exhibit C-1, and (ii) favorable written opinion of Xxx Xxxxx, General Counsel to
the Borrower and the Guarantors, dated the date of the initial Loans or the
issuance of the initial Letter of Credit, whichever first occurs, substantially
in the form of Exhibit C-2.
(f) Payment of Fees and Expenses. The Borrower shall have paid to the Agent
the then unpaid balance of all accrued and unpaid Fees due under and pursuant to
this Agreement and the letter referred to in Section 2.21 and fees and expenses
of counsel to the Agent as to which invoices have been issued.
(g) Corporate and Judicial Proceedings. All corporate and judicial
proceedings and all instruments and agreements in connection with the
transactions among the Borrower, the Guarantors, the Agent and the Lenders
contemplated by this Agreement shall be reasonably satisfactory in form and
substance to the Agent, and the Agent shall have received all information and
copies of all documents and papers, including records of corporate and judicial
proceedings, which the Agent may have reasonably requested in connection
therewith, such documents and papers where appropriate to be certified by proper
corporate, governmental or judicial authorities.
(h) Information. The Agent shall have received such information (financial
or otherwise) as may be reasonably requested by the Agent.
(i) Access; Compliance with Laws. The Borrower and its Subsidiaries shall
have granted the Agent access to and the right to inspect all reports, audits
and other internal information of the Borrower and its Subsidiaries relating to
environmental matters, and any third party verification of certain matters
relating to compliance with environmental laws and regulations reasonably
requested by the Agent, and the Agent shall be reasonably satisfied that the
Borrower and its Subsidiaries are in compliance in all material respects with
all applicable environmental laws and regulations and the Borrower and its
Subsidiaries have made adequate provision for the costs of maintaining such
compliance.
(j) UCC Searches. The Agent shall have received UCC searches (including tax
liens and judgments) conducted in the jurisdictions in which the Borrower and
the Guarantors conduct business (dated as of a date reasonably satisfactory to
the Agent), reflecting the absence of Liens and encumbrances on the assets of
the Borrower and the Guarantors other than Liens granted or permitted under the
Existing Agreements and such other Liens as may be reasonably satisfactory to
the Agent.
(k) Chief Restructuring Officer. The Borrower shall have retained a chief
restructuring officer reasonably satisfactory to the Agent, and the scope of
authority and work to be performed by such chief restructuring officer shall be
satisfactory to the Agent.
(l) Closing Date Budget. The Agent shall have received a weekly budget
("Closing Date Budget") for the Global Entities for the period from the Closing
Date through
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the sixth full week after the Closing Date. The Closing Date Budget shall be
satisfactory in form and substance to the Agent and shall set forth, among other
things, projected Total Commitment Usage for each week.
(m) Closing Documents. The Agent shall have received all documents required
by this Section 4 reasonably satisfactory in form and substance to the Agent.
SECTION 4.02 Conditions Precedent to Each Loan and Each Letter of Credit.
The obligation of the Lenders to make each Loan and of the Issuing Lender to
issue each Letter of Credit, including the initial Loan and the initial Letter
of Credit, is subject to the satisfaction (or waiver in accordance with Section
10.09) of the following conditions precedent:
(a) Notice. The Agent shall have received a notice with respect to such
borrowing or issuance, as the case may be, as required by Section 2.
(b) Representations and Warranties. All representations and warranties
contained in this Agreement and the other Loan Documents shall be true and
correct in all material respects on and as of the date of each Borrowing or the
issuance of each Letter of Credit hereunder with the same effect as if made on
and as of such date except to the extent such representations and warranties
expressly relate to an earlier date.
(c) No Default. On the date of each Borrowing hereunder or the issuance of
each Letter of Credit, no Event of Default or event which upon notice or lapse
of time or both would constitute an Event of Default shall have occurred and be
continuing.
(d) Orders. The Interim Order shall be in full force and effect and shall
not have been stayed, reversed, modified or amended in any respect without the
prior written consent of the Agent and the Required Lenders, provided, that at
the time of the making of any Loan or the issuance of any Letter of Credit the
aggregate amount of either of which, when added to the sum of the principal
amount of all Loans then outstanding and the LC Exposure, would exceed the
amount authorized by the Interim Order (collectively, the "Additional Credit"),
the Agent and each of the Lenders shall have received satisfactory evidence of
the entry of an order of the Bankruptcy Court in substantially the form of the
Interim Order (with only such modifications thereto as are reasonably
satisfactory in form and substance to the Agent) (the "Final Order"), which, in
any event, shall have been executed and delivered and entered by the Bankruptcy
Court no later than forty-five (45) days after the entry of the Interim Order
and at the time of the extension of any Additional Credit the Final Order shall
be in full force and effect, and shall not have been vacated, stayed, reversed,
modified or amended in any respect without the prior written consent of the
Agent and the Required Lenders; and if either the Interim Order or the Final
Order is the subject of a pending appeal in any respect, neither the making of
the Loans nor the issuance of any Letter of Credit nor the performance by the
Borrower or any Guarantor of any of their respective obligations under any of
the Loan Documents shall be the subject of a presently effective stay pending
appeal.
(e) Borrowing Base Amendment. At or prior to the time of the extension of
any Additional Credit, the Borrowing Base Amendment shall have been executed and
delivered.
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(f) Payment of Fees and Expenses. The Borrower shall have paid to the Agent
the then unpaid balance of all accrued and unpaid Fees due under and pursuant to
this Agreement, the Orders and the letter referred to in Section 2.21 and fees
and expenses of counsel to the Agent as to which invoices have been issued.
(g) Borrowing Base Certificate. From and after the execution and delivery
of the Borrowing Base Amendment, the Agent shall have received the most recent
Borrowing Base Certificate required to be delivered pursuant to the Borrowing
Base Amendment or Section 5.08, setting forth each component of the Borrowing
Base as of the dates specified in the Borrowing Base Amendment.
The request by the Borrower for, and the acceptance by the Borrower of, each
extension of credit hereunder shall be deemed to be a representation and
warranty by the Borrower that the conditions specified in this Section have been
satisfied or waived at that time.
SECTION 4.03 Conditions Precedent to the Tranche B Loan. The obligation of
the Tranche B Lenders to make the Tranche B Loan is subject to the satisfaction
(or waiver in accordance with Section 10.09) of the following conditions
precedent:
(a) Notice. The Agent shall have received a notice with respect to such
borrowing as required by Section 2.
(b) Final Order. The Final Order, as entered by the Bankruptcy Court, shall
authorize the funding of the Tranche B Loan.
(c) Insurance Designation. The Agent shall have been named as loss payee
with respect to the PP&E Component and additional insured (as its interests
appear), on such policies of insurance of the Borrower and Guarantors as the
Agent may have reasonably requested.
(d) Payment of Fees and Expenses. The Borrower shall have paid to the Agent
the then unpaid balance of all accrued and unpaid Fees then payable under and
pursuant to this Agreement, the Orders and the letter referred to in Section
2.21 and fees and expenses of counsel to the Agent as to which invoices have
been issued.
(e) Other Conditions. The conditions to each Loan set forth in Sections 4
and 4.02 shall have been satisfied or waived.
The request by the Borrower for, and the acceptance by the Borrower of, the
Tranche B Loan shall be deemed to be a representation and warranty by the
Borrower that the conditions specified in this Section have been satisfied or
waived at that time.
SECTION 5. AFFIRMATIVE COVENANTS
From the date hereof and for so long as any Commitment shall be in effect
or any Letter of Credit shall remain outstanding (for which Cash
Collateralization or back-to-back letter of credit support at the rate of 105%
has not been made in accordance with Section 2.03(j)), or
53
any amount shall remain outstanding or unpaid under this Agreement, the Borrower
and each of the Guarantors agree that they will, and will cause each of their
respective Subsidiaries to:
SECTION 5.01 Financial Statements, Reports, etc. In the case of the
Borrower and the Guarantors, deliver to the Agent and each of the Lenders
(except as otherwise specified below):
(a) from and after the Audit Committee Report Date (x) within 90 days after
the end of each fiscal year, consolidated and consolidating balance sheets and
related consolidated and consolidating statements of income and consolidated
cash flows for the Domestic Entities and the Global Entities, showing the
financial condition of such entities on a consolidated and consolidating (for
Domestic Entities) basis as of the close of such fiscal year and the results of
their respective operations during such year, the consolidated statements of the
Global Entities to be audited by KPMG LLP or other independent public
accountants of recognized national standing and accompanied by an opinion of
such accountants (which shall not be qualified in any material respect other
than a going concern qualification as a result of the Cases or as a result of
the Maturity Date falling less than one year from the date of such financial
statements), the consolidating financial statements to be subjected to the
internal auditing procedures applied to the preparation of consolidated
financial statements and all consolidated and consolidating financial statements
to be certified by a Financial Officer of the Borrower to the effect that such
financial statements fairly present in all material respects the financial
condition and results of operations of the Domestic Entities or the Global
Entities on a consolidated or consolidating basis, as the case may be, in
accordance with GAAP and (y) as soon as available consolidated balance sheet and
related statements of income and cash flows for the Global Entities for the
fiscal year ended December 31, 2004, showing the financial condition of such
entities on a consolidated basis as of the close of such fiscal year and the
results of their operations during such year, to be audited by KPMG LLP and
accompanied by an opinion of such accountants (which shall not be qualified in
any material respect other than a going concern qualification as a result of the
Cases), and to be certified by a Financial Officer of the Borrower to the effect
that such consolidated financial statements fairly present in all material
respects the financial condition and results of operations of the Global
Entities on a consolidated basis in accordance with GAAP;
(b) from and after the Audit Committee Report Date, within 45 days after
the end of each of the first three fiscal quarters, the consolidated and
consolidating balance sheets and related consolidated and consolidating
statements of income and consolidated cash flows of the Domestic Entities and
the Global Entities, showing the financial condition of such entities on a
consolidated and consolidating basis as of the close of such fiscal quarter and
the results of their operations during such fiscal quarter and the then elapsed
portion of the fiscal year, each certified by a Financial Officer of the
Borrower as fairly presenting in all material respects the financial condition
and results of operations of the Domestic Entities and the Global Entities on a
consolidated and consolidating basis in accordance with GAAP, subject to normal
year-end audit adjustments and the absence of footnotes;
(c) commencing with June 2005, as soon as practicable, but in no event
later than 30 days after the end of each fiscal month of the Borrower (unless
such monthly fiscal period ends at the end of a fiscal quarter, in which case
the financial statements required to be
54
delivered pursuant to this clause (c) may be delivered within 45 days after the
end of such fiscal month) (i) monthly unaudited consolidated and consolidating
balance sheets of the Domestic Entities and the Global Entities and related
consolidated and consolidating statements of income and consolidated cash flows
of such entities for the prior fiscal month, each certified by a Financial
Officer of the Borrower and (ii) a monthly report detailing professional fees
and expenses that have been billed and paid or billed but unpaid to date, the
accumulated "hold-back" of professional fees and expenses to date, material
adverse events or changes to the financial condition, operations, business,
properties or assets of the Domestic Entities or the Global Entities (if any)
and material litigation (if any), in each case certified by a Financial Officer
of the Borrower to the effect that such consolidated financial statements fairly
present in all material respects the financial condition and results of
operations of the Global Entities on a consolidated basis in accordance with
GAAP;
(d) commencing with the first fiscal month following the Closing Date, as
soon as practicable, but (i) in no event later than 30 days after the end of
each fiscal month of the Borrower, monthly financial projections of the Domestic
Entities and the Foreign Entities in a form reasonably satisfactory to the Agent
and the Borrower, and (ii) in no event later than 5 Business Days after the end
of each fiscal month of the Borrower, a statement of projected cash receipts and
cash disbursements for the Domestic Entities and the Global Entities for each
week in the period of thirteen continuous weeks commencing with the immediately
following week, in form and substance reasonably satisfactory to the Agent, and
in each case of clauses (i) and (ii) certified by a Financial Officer of the
Borrower;
(e) (i) concurrently with any delivery of financial statements under
clauses (a), (b) and (c) above, a certificate of the Financial Officer of the
Borrower certifying such statements (A) certifying that no Event of Default or
event which upon notice or lapse of time or both would constitute an Event of
Default has occurred, or, if such an Event of Default or event has occurred,
specifying the nature and extent thereof and any corrective action taken or
proposed to be taken with respect thereto and (B) setting forth computations in
reasonable detail satisfactory to the Agent demonstrating compliance with the
provisions of Sections 6.01, 6.03, 6.04, 6.05 and 6.10 and (ii) concurrently
with any delivery after the Audit Committee Report Date of financial statements
under (a) above, a certificate (which certificate may be limited to accounting
matters and disclaim responsibility for legal interpretations) of the
accountants auditing the consolidated financial statements delivered under (a)
above certifying that, in the course of the regular audit of the business of the
Borrower and its Subsidiaries, such accountants have obtained no knowledge that
an Event of Default has occurred and is continuing with respect to the financial
covenants set forth in Sections 6.04 and 6.05, or if, in the opinion of such
accountants, such an Event of Default has occurred and is continuing, specifying
the nature thereof and all relevant facts with respect thereto;
(f) as soon as possible, and in any event when the Borrower's and the
Guarantor's statement of financial affairs and schedules of asset and
liabilities are required to be filed with the Bankruptcy Court (but no later
than 45 days after the Closing Date or such later date to which the Bankruptcy
Court extends the filing thereof), a consolidated pro forma balance sheet of the
Borrower's and the Guarantors' financial condition as of the Filing Date;
55
(g) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by it
with the Securities and Exchange Commission, or any governmental authority
succeeding to any of or all the functions of said commission, or with any
national securities exchange, as the case may be;
(h) as soon as available and in any event (C) within 30 days after the
Borrower or any of its ERISA Affiliates knows or has reason to know that any
Termination Event described in clause (i) of the definition of Termination Event
with respect to any Single Employer Plan of the Borrower or such ERISA Affiliate
has occurred and (D) within 10 days after the Borrower or any of its ERISA
Affiliates knows or has reason to know that any other Termination Event with
respect to any such Plan has occurred, a statement of a Financial Officer of the
Borrower describing the full details of such Termination Event;
(i) promptly and in any event within 10 days after receipt thereof by the
Borrower or any of its ERISA Affiliates from the PBGC, copies of each notice
received by the Borrower or any such ERISA Affiliate of the PBGC's intention to
terminate any Single Employer Plan of the Borrower or such ERISA Affiliate or to
have a trustee appointed to administer any such Plan;
(j) if requested by the Agent, promptly and in any event within 30 days
after the filing thereof with the Internal Revenue Service, copies of each
Schedule B (Actuarial Information) to the annual report (Form 5500 Series) with
respect to each Single Employer Plan of the Borrower or any of its ERISA
Affiliates;
(k) within 10 days after notice is given or required to be given to the
PBGC under Section 302(f)(4)(A) of ERISA of the failure of the Borrower or any
of its ERISA Affiliates to make timely payments to a Plan, a copy of any such
notice filed;
(l) promptly and in any event within 10 days after receipt thereof by the
Borrower or any ERISA Affiliate from a Multiemployer Plan sponsor, a copy of
each notice received by the Borrower or any ERISA Affiliate concerning (A) the
imposition of Withdrawal Liability by a Multiemployer Plan, (B) the
determination that a Multiemployer Plan is, or is expected to be, in
reorganization within the meaning of Title IV of ERISA, (C) the termination of a
Multiemployer Plan within the meaning of Title IV of ERISA, or (D) the amount of
liability incurred, or which may be incurred, by the Borrower or any ERISA
Affiliate in connection with any event described in clause (A), (B) or (C)
above;
(m) no later than 60 days following the Closing Date, budgets ("Post
Closing Date Budgets") for the Domestic Entities and the Global Entities for the
period through the Maturity Date and reasonably satisfactory in form and
substance to the Agent and, from and after the entry of the Final Order,
Capstone Advisory Group, LLC, as advisor to the Existing First-Lien Lenders (it
being understood that the Agent in its sole discretion may use the information
in such Budgets to revise the financial covenant levels set forth in Sections
6.04 and 6.05);
(n) (i) prior to entry of the Final Order, a draft Annual Report on Form
10-K for the fiscal year of the Borrower ended on December 31, 2004 to the Agent
and (ii) promptly,
56
from time to time, such other information regarding the operations, business
affairs and financial condition of the Domestic Entities or the Global Entities,
or compliance with the terms of any material loan or financing agreements as the
Agent, at the request of any Lender, may reasonably request; and
(o) furnish to the Agent and its counsel promptly after the same is
available, copies of all pleadings, motions, applications, judicial information,
financial information and other documents filed by or on behalf of the Borrower
or any of the Guarantors with the Bankruptcy Court in the Cases, or distributed
by or on behalf of the Borrower or any of the Guarantors to any official
committee appointed in the Cases.
SECTION 5.02 Existence. Preserve and maintain in full force and effect all
governmental rights, privileges, qualifications, permits, licenses and
franchises necessary in the normal conduct of its business except (i)(A) if in
the reasonable business judgment of the Borrower it is no longer necessary for
the Borrower and the Guarantors to preserve and maintain such rights,
privileges, qualifications, permits, licenses and franchises, and (B) such
failure to preserve the same could not, in the aggregate, reasonably be expected
to have a material adverse effect on the operations, business, properties,
assets or condition (financial or otherwise) of the Borrower and the Guarantors,
taken as a whole, and (ii) as otherwise permitted in connection with sales of
assets permitted by Section 6.11.
SECTION 5.03 Insurance. (a) Keep its insurable properties insured at all
times, against such risks, including fire and other risks insured against by
extended coverage, as is consistent with sound business practice and customary
with companies of the same or similar size in the same or similar businesses;
and maintain in full force and effect public liability insurance against claims
for personal injury or death or property damage occurring upon, in, about or in
connection with the use of any properties owned, occupied or controlled by the
Borrower or any of its Subsidiaries, as the case may be, in such amounts (giving
effect to self-insurance) and with such deductibles as are customary with
companies of the same or similar size in the same or similar businesses; and (b)
maintain such other insurance or self insurance as may be required by law.
SECTION 5.04 Obligations and Taxes. Pay all material obligations arising
after the Filing Date promptly and in accordance with their terms and pay and
discharge promptly all material taxes, assessments and governmental charges or
levies imposed upon it or upon its income or profits or in respect of its
property arising after the Filing Date, as well as all material lawful claims
for labor, materials and supplies or otherwise arising after the Filing Date
which, if unpaid, would become a Lien or charge upon such properties or any part
thereof, before the same shall become in default; provided, however, that the
Borrower and each of the Guarantors shall not be required to pay and discharge
or to cause to be paid and discharged any such obligation, tax, assessment,
charge, levy or claim so long as the validity or amount thereof shall be
contested in good faith by appropriate proceedings (if the Borrower and the
Guarantors shall have set aside on their books adequate reserves therefor).
SECTION 5.05 Notice of Event of Default, etc. Promptly give to the Agent
notice in writing of any Event of Default or the occurrence of any event or
circumstance which with the passage of time or giving of notice or both would
constitute an Event of Default.
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SECTION 5.06 Access to Books and Records. (a) Maintain or cause to be
maintained at all times true and complete books and records in a manner
consistent with GAAP of the financial operations of the Borrower and its
Subsidiaries; and provide the Agent and its representatives access to all such
books and records during regular business hours, in order that the Agent may
upon reasonable prior notice examine and make abstracts from such books,
accounts, records and other papers for the purpose of verifying the accuracy of
the various reports, including the Borrowing Base computations and supporting
documentation, delivered by the Borrower or the Guarantors to the Agent or the
Lenders pursuant to this Agreement or for otherwise ascertaining compliance with
this Agreement; and at any reasonable time and from time to time during regular
business hours, upon reasonable notice, permit the Agent and any agents or
representatives (including, without limitation, appraisers) thereof to visit the
properties of the Borrower and its Subsidiaries, to conduct examinations of and
to monitor the Collateral held by the Agent and to confer with officers and
representatives of the Borrower and the Guarantors. To the extent reasonably
required by the Agent as a result of any such evaluation, appraisal or
monitoring, the Borrower also agrees to modify or adjust the computation of the
Borrowing Base (which may include maintaining additional reserves, modifying the
advance rates or modifying the eligibility criteria for the components of the
Borrowing Base to the extent reasonably required by the Agent).
(b) In the event that historical accounting practices, accounting systems
or accounting reserves relating to the components of the Borrowing Base are
modified in a manner that is adverse to the Lenders in any material respect,
maintain such additional reserves (for purposes of computing the Borrowing Base)
in respect to the components of the Borrowing Base and make such other
adjustments (which may include maintaining additional reserves, modifying the
advance rates or modifying the eligibility criteria for the components of the
Borrowing Base) to its parameters for including the components of the Borrowing
Base as the Agent shall reasonably require based upon such modifications.
(c) Grant access to and the right to inspect all final reports, final
audits and other similar internal information of the Borrower relating to
environmental matters upon reasonable notice, and obtain any third party
verification of matters relating to compliance with environmental laws and
regulations reasonably requested by the Agent at any time and from time to time.
SECTION 5.07 Maintenance of Concentration Account. Within 30 days from the
Closing Date, cause and continue to maintain with JPMCB or any of its
Affiliates, an account or accounts to be used by the Borrower and the Guarantors
as their principal concentration account for day-to-day operations conducted by
the Borrower and the Guarantors.
SECTION 5.08 Borrowing Base Certificate. Furnish to the Agent as soon as
available and in any event (a) on or before the third Business Day after the end
of each week, a weekly Borrowing Base Certificate, which weekly Borrowing Base
Certificate shall reflect (i) the updated accounts receivable as of the prior
Friday, (ii) Inventory as of the immediately preceding monthly Borrowing Base
Certificate and (iii) PP&E Component as of the immediately receding monthly
Borrowing Base Certificate; (b) on or before the fifteenth day of each month, a
monthly Borrowing Base Certificate, which monthly Borrowing Base Certificate
shall reflect (i) accounts receivable as of the immediately preceding weekly
Borrowing Base Certificate,
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(ii) the updated Inventory as of the end of the immediately preceding month and
(iii) PP&E Component as of the end of the immediately preceding month; and (c)
if requested by the Agent at any other time when the Agent reasonably believes
that the then existing Borrowing Base Certificate is materially inaccurate, as
soon as reasonably available but in no event later than five (5) Business Days
after such request, a completed Borrowing Base Certificate showing the Borrowing
Base as of the date so requested, in each case with supporting documentation and
additional reports with respect to the Borrowing Base as the Agent may
reasonably request.
SECTION 5.09 Collateral Monitoring and Review. Following the execution and
delivery of the Borrowing Base Amendment, at any time (but, if no Event of
Default has occurred and is continuing, not more often than three (3) times per
year) upon the reasonable request of the Agent, permit the Agent or
professionals (including, without limitation, internal and third party
consultants, accountants and appraisers) retained by the Agent or its
professionals to conduct evaluations and appraisals of (i) the Borrower's
practices in the computation of the Borrowing Base and (ii) the assets included
in the Borrowing Base, and pay the reasonable fees and expenses in connection
therewith (including, without limitation, the reasonable and customary fees and
expenses associated with Chase Business Credit, as forth in Section 10.05). In
connection with any collateral monitoring or review and appraisal relating to
the computation of the Borrowing Base, the Borrower shall make such adjustments
to the Borrowing Base as the Agent shall reasonably require based upon the terms
of this Agreement and results of such collateral monitoring, review or
appraisal.
SECTION 5.10 Public Rating. Obtain a rating from S&P and Xxxxx'x on the
Tranche A Loans and Tranche B Loan in advance of the entry of the Final Order.
SECTION 5.11 Receivables. Upon the payment and satisfaction in full of
obligations arising under the Permitted Receivables Purchase Facility, take any
action requested by the Agent as necessary, including without limitation
establishing new lockbox accounts and entering into a pledge agreement with the
Agent, to maintain the Agent's security interest in the proceeds of accounts
receivable.
SECTION 6. NEGATIVE COVENANTS
From the date hereof and for so long as any Commitment shall be in effect
or any Letter of Credit shall remain outstanding (for which Cash
Collateralization or back-to-back letter of credit support at the rate of 105%
has not been made in accordance with Section 2.03(j)) or any amount shall remain
outstanding or unpaid under this Agreement, the Borrower and each of the
Guarantors will not, and will not permit any of their respective Subsidiaries to
(and will not apply, unless in connection with an amendment to the Agreement
that is reasonably likely to be approved by the Lenders required to approve such
amendment, to the Bankruptcy Court for authority to):
SECTION 6.01 Liens. Incur, create, assume or suffer to exist any Lien on
any asset of the Borrower, any Guarantors or any of their Foreign Subsidiaries,
whether now owned or hereafter acquired, other than: (i) (x) Liens in existence
on the Filing Date as reflected on Schedule 6.01 and (y) Liens in existence on
the Filing Date securing the Existing First Lien Indebtedness; (ii) Liens
securing the Existing First Lien Indebtedness granted as adequate
59
protection pursuant to the Orders and subject to the terms of the Orders; (iii)
Permitted Liens; (iv) Liens created under the Loan Documents in favor of the
Agent and the Lenders and other holders of Secured Obligations; (v) Liens
securing purchase money Indebtedness and Capitalized Leases, in each case that
are permitted by Section 6.03; (vi) Liens arising from precautionary UCC
financing statements regarding operating leases permitted by this Agreement;
(vii) Liens consisting of deposits with derivatives traders as may be required
pursuant to the terms of the International Swaps and Derivatives Association,
Inc.'s Master Agreement(s) executed in the ordinary course of business and
securing Indebtedness permitted by Section 6.03, so long as the aggregate amount
of such deposits does not exceed at any time $3,000,000; (viii) Liens on the
assets of any Foreign Subsidiary securing Indebtedness of any Foreign Subsidiary
permitted by Section 6.03(x); (ix) other Liens (excluding Liens securing
Indebtedness) so long as the value of the property subject to such Liens, and
the obligations secured thereby, do not exceed $1,000,000 in the aggregate; and
(x) Liens on assets of Foreign Subsidiaries transferred to, or on the assets of,
a Receivables Subsidiary in connection with the Qualified Receivables
Transaction.
SECTION 6.02 Merger, etc. Consolidate or merge with or into another Person,
except that (i) any Guarantor may merge or consolidate with any other Guarantor,
(ii) any Guarantor may merge or consolidate with the Borrower if the Borrower is
the surviving entity, (iii) any Foreign Subsidiary may merge or consolidate with
any other Foreign Subsidiary and (iv) any Subsidiary which is not a Guarantor
may merge or consolidate with a Guarantor if such Guarantor is the surviving
entity.
SECTION 6.03 Indebtedness. Contract, create, incur, assume or suffer to
exist any Indebtedness, except for (i) Indebtedness under the Loan Documents;
(ii) Indebtedness incurred prior to the Filing Date (including existing
Capitalized Leases) and outstanding on the Filing Date; (iii) (A) intercompany
Indebtedness among the Borrower and the Guarantors, (B) guarantees by the
Borrower or any Guarantor of Indebtedness of the Borrower or any Guarantor
otherwise permitted by this Section 6.03 and (C) guarantees by the Borrower or
any Guarantor of Indebtedness of any Foreign Subsidiary so long as such
guarantees are permitted by Section 6.06(iii); (iv) (A) Indebtedness incurred
after the Filing Date by the Foreign Subsidiaries from the Borrower or any
Guarantor in an aggregate principal amount not to exceed $25,000,000 prior to
the entry of the Final Order and $50,000,000 thereafter, (B) intercompany
Indebtedness among the Foreign Subsidiaries and (C) guarantees by any Foreign
Subsidiary of Indebtedness of any other Foreign Subsidiary otherwise permitted
by this Section 6.03; (v) Capitalized Leases and Indebtedness secured by
purchase money Liens, in each case incurred after the Filing Date in an
aggregate amount not to exceed $5,000,000 at any time outstanding; (vi)
[intentionally omitted]; (vii) Indebtedness owed to JPMCB, any other Lender or
any of their respective banking Affiliates (or any Person that was a Lender or a
banking Affiliate of a Lender at the time such Indebtedness was incurred) in
respect of any overdrafts and related liabilities arising from treasury,
depository and cash management services or in connection with any automated
clearing house transfers of funds; (viii) Indebtedness (other than Indebtedness
described in clause (vii)) owed to any bank in respect of any overdrafts and
related liabilities arising from treasury, depository and cash management
services or in connection with any automated clearing house transfers of funds;
(ix) Indebtedness incurred after the Filing Date by the Borrower or any
Guarantor in connection with foreign exchange contracts, currency swap
agreements, currency future or option contracts and other similar agreements
designed to hedge against fluctuations in foreign exchange rates, commodity
price
60
protection agreements or other commodity price hedging arrangements and interest
rate swap, cap or collar agreements and interest rate future or option contracts
designed to hedge against fluctuations in interest rates, in each case to the
extent that such agreement or contract is entered into in the ordinary course of
business consistent with past practices; (x) the refinancing of Indebtedness of
Foreign Subsidiaries existing on the Filing Date provided that the Debtors and
their Domestic Subsidiaries do not provide credit support for such Indebtedness
or refinancing; (xi) Indebtedness of Receivables Subsidiaries owing to other
Foreign Subsidiaries in connection with Qualified Receivables Transactions; and
(xii) (A) other unsecured Indebtedness of the Borrower or any Guarantor and (B)
other Indebtedness of any Foreign Subsidiary, so long as the aggregate principal
amount of Indebtedness incurred pursuant to clauses (A) and (B) of this Section
6.03(xi) at any time outstanding shall not exceed $5,000,000.
SECTION 6.04 Capital Expenditures. Make Capital Expenditures of the
Borrower and the Guarantors for each fiscal quarter ending on the date listed
below in an aggregate amount in excess of the amount listed below opposite such
date, provided that if the amount of the actual Capital Expenditures that are
made during any fiscal quarter is less than such amount, the unused portion
thereof may be carried forward to and made during any of the following fiscal
quarters:
Fiscal Quarter Ending Capital Expenditures
September 30, 2005
December 31, 2005 PERMITTED
March 31, 2006 AMOUNTS TO BE
June 30, 2006 DETERMINED BY
September 30, 2006 AGENT IN ACCORDANCE
December 31, 2006 WITH SECTION 1.04(d)
March 31, 2007
SECTION 6.05 EBITDA.
(a) Permit cumulative Global EBITDA for the Global Entities and cumulative
Domestic EBITDA for the Domestic Entities for each period beginning on June 1,
2005 and ending on the last day of each fiscal month set forth below to be less
than the amount appearing opposite such month for such entity:
Global Entities Domestic Entities
Period Ending Global EBITDA Domestic EBITDA
July 31, 2005
August 31, 2005 PERMITTED
September 30, 2005 AMOUNTS TO BE
October 31, 2005 DETERMINED
November 30, 2005 BY AGENT
December 31, 2005 IN ACCORDANCE
January 31, 2006 WITH SECTION 1.04(d)
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February 28, 2006
March 31, 2006
April 30, 2006
May 31, 2006
(b) Permit cumulative Global EBITDA for the Global Entities and cumulative
Domestic EBITDA for the Domestic Entities for each rolling twelve (12) fiscal
month period ending on the last day of each fiscal month set forth below to be
less than the amount appearing opposite such month for such entity:
Global Entities Domestic Entities
Period Ending Global EBITDA Domestic EBITDA
June 30, 2006 PERMITTED AMOUNTS TO BE
July 31, 2006 DETERMINED BY AGENT
August 31, 2006 IN ACCORDANCE
September 30, 2006 WITH SECTION 1.04(d)
October 31, 2006
SECTION 6.06 Guarantees and Other Liabilities. Purchase or repurchase (or
agree, contingently or otherwise, so to do) the Indebtedness of, or assume,
guarantee (directly or indirectly or by an instrument having the effect of
assuring another's payment or performance of any obligation or capability of so
doing, or otherwise), endorse or otherwise become liable, directly or
indirectly, in connection with the obligations, stock or dividends of any
Person, except: (i) for any guaranty permitted by Section 6.03(iii)(B) or
Section 6.03(iv)(C), (ii) for any guaranty by the Borrower or any Guarantor of
obligations (other than Indebtedness) of the Borrower or any Guarantor if
incurrence of the underlying obligations is permitted under this Agreement;
(iii) for any guaranty by the Borrower or any Guarantor (including without
limitation any guaranty consisting of a Letter of Credit issued for the account
of a Foreign Subsidiary pursuant to Section 2.03(a)) of the Indebtedness or
other obligations of any Foreign Subsidiary, provided that (A) if such guaranty
is of Indebtedness of a Foreign Subsidiary, such Indebtedness is permitted under
Section 6.03 and if such guaranty is of other obligations of a Foreign
Subsidiary, the incurrence of such other obligations is permitted under this
Agreement and (B) the aggregate principal amount of Indebtedness and other
obligations outstanding at any time that are guaranteed pursuant to guarantees
permitted by this Section 6.06(iii) shall not exceed $5,000,000, (iv) for any
guaranty by any Foreign Subsidiary of obligations of any other Foreign
Subsidiary if incurrence of the underlying obligations is permitted under this
Agreement; (v) by endorsement of negotiable instruments for deposit or
collection in the ordinary course of business; (vi) to the extent in existence
on the Filing Date and (vii) Standard Securitization Undertakings in connection
with a Qualified Receivables Transaction.
SECTION 6.07 Chapter 11 Claims. Incur, create, assume, suffer to exist or
permit any other Superpriority Claim which is pari passu with or senior to the
claims of the Agent and the Lenders against the Borrower and the Guarantors
hereunder, except for the Carve-Out.
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SECTION 6.08 Dividends; Capital Stock. Declare or pay, directly or
indirectly, any dividends or make any other distribution or payment, whether in
cash, property, securities or a combination thereof, with respect to (whether by
reduction of capital or otherwise) any shares of capital stock (or any options,
warrants, rights or other equity securities or agreements relating to any
capital stock), or set apart any sum for the aforesaid purposes other than
dividends and distributions (a) from the Guarantors or the Foreign Subsidiaries
directly or indirectly to the Borrower or any Guarantor or from any Foreign
Subsidiary to any other Foreign Subsidiary and (b) from the Borrower to the
Parent for the payment of taxes, salaries, customary expenses and similar items.
SECTION 6.09 Transactions with Affiliates. Sell or transfer any property or
assets to, or otherwise engage in any other material transactions with, any of
its Affiliates (other than the Borrower and the Guarantors) or its shareholders,
except for (i) transactions that are entered into in the ordinary course of the
Borrower's, a Guarantor's or a Foreign Subsidiary's business in good faith, and
at prices and on terms and conditions not less favorable to such Person than
would be obtained on an arm's-length basis from unrelated third parties, (ii)
other transactions among the Global Entities to the extent otherwise expressly
permitted under this Agreement, and (iii) transactions described on Schedule
6.09 (iv) transactions among Foreign Subsidiaries effected as part of a
Qualified Receivables Transaction.
SECTION 6.10 Investments, Loans and Advances. Purchase, hold or acquire any
capital stock, evidences of indebtedness or other securities of, make or permit
to exist any loans or advances to, or make or permit to exist any investment in,
any other Person (all of the foregoing, "Investments"), except for: (i)
ownership by the Borrower or such Subsidiary, as the case may be, of the capital
stock of each of the Subsidiaries listed on Schedule 3.05; (ii) Permitted
Investments; (iii) advances and loans among the Borrower and the Guarantors;
(iv) (x) advances and loans made by the Borrower or any Guarantor to any Foreign
Subsidiary, to the extent they constitute Indebtedness permitted by Section
6.03(iv)(A) or Section 6.03(ii) and (y) advances and loans made by any Foreign
Subsidiary to any other Foreign Subsidiary; (v) existing Investments described
on Schedule 6.10; (vi) investments by wholly-owned Foreign Subsidiaries in other
wholly-owned Foreign Subsidiaries; (vii) Investments received in connection with
the bankruptcy or reorganization of, or settlement of delinquent accounts and
disputes with, customers and suppliers, in each case in the ordinary course of
business; (viii) investments in the form of Indebtedness permitted by Section
6.03; (ix) investments constituting guarantees permitted by Section 6.06; (x)
loans to employees in the ordinary course of business consistent with past
practices for travel and entertainment expenses, relocation costs and similar
purposes in an aggregate amount not exceeding $500,000 at any time; (xi)
investments not permitted by the foregoing clauses in an aggregate amount not
exceeding $1,000,000 at any time outstanding; and (xii) any Investment by a
Foreign Subsidiary in a Receivables Subsidiary or by a Receivables Subsidiary in
any other Person in connection with a Qualified Receivables Transaction.
SECTION 6.11 Disposition of Assets. Sell or otherwise dispose of any assets
(including, without limitation, the capital stock of any Subsidiary) except for
(i) sales of inventory, fixtures and equipment in the ordinary course of
business, (ii) dispositions of surplus, obsolete, negligible or uneconomical
assets, (iii) intercompany sales among the Borrower and the Guarantors hereto,
(iv) the abandonment of intellectual property that is in the reasonable judgment
of the Borrower no longer useful in the conduct of the business of the Borrower
and its
63
Subsidiaries, (v) sales in arm's length transactions, at fair market value and
for cash payable at closing in an amount not to exceed $5,000,000 in the
aggregate since the Closing Date; provided that upon receipt of Net Proceeds of
any sales described in clause (v) hereof, the Borrower will comply with the
provisions of Section 2.13(b), (vi) sales of receivables and related assets
(including contact rights) of a Foreign Subsidiary of the type specified in the
definition of "Qualified Receivables Transaction" to a Receivables Subsidiary
for the fair market value thereof including consideration in the form of
purchase money notes in connection therewith; and (vii) sales of receivables and
related assets (including contract rights) of the type specified in the
definition of "Qualified Receivables Transactions" by Receivables Subsidiaries
to third parties (other than Debtors and their Domestic Subsidiaries) for the
fair market value thereof; provided that either (x) such sales shall be
conducted in connection with refinancing of Indebtedness of a Foreign Subsidiary
but only to the extent permitted under Section 6.03(ii) and only with respect to
such Indebtedness that was secured by receivables of such Foreign Subsidiary or
(y) net investment outstanding (or similar concept) by third parties in such
transactions shall be applied against and subject to the limitation set forth in
such Section 6.03(x).
SECTION 6.12 Nature of Business. Modify or alter, or permit any Foreign
Subsidiary to so modify or alter, in any material manner the nature and type of
its business as conducted at or prior to the Filing Date or the manner in which
such business is conducted (except, in the case of the Domestic Entities, as
required by the Bankruptcy Code), it being understood that asset sales permitted
by Section 6.11 shall not constitute such a material modification or alteration.
SECTION 7. EVENTS OF DEFAULT
SECTION 7.01 Events of Default. In the case of the happening of any of the
following events and the continuance thereof beyond the applicable grace period,
if any (each, an "Event of Default"):
(a) any material representation or warranty made by the Borrower or any
Guarantor in this Agreement or in any Loan Document or in connection with this
Agreement or the credit extensions hereunder or any material statement or
representation made in any report, financial statement, certificate or other
document furnished by the Borrower or any Guarantor to the Lenders under or in
connection with this Agreement, shall prove to have been false or misleading in
any material respect when made or delivered; or
(b) default shall be made in the payment of any (i) Fees, interest on the
Loans or other amounts payable hereunder when due (other than amounts set forth
in clause (ii) hereof), and such default shall continue unremedied for more than
two (2) Business Days or (ii) principal of the Loans or reimbursement
obligations or cash collateralization in respect of Letters of Credit, when and
as the same shall become due and payable, whether at the due date thereof
(including the Prepayment Date) or at a date fixed for prepayment thereof or by
acceleration thereof or otherwise; or
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(c) default shall be made by the Borrower or any Guarantor in the due
observance or performance of any covenant, condition or agreement contained in
Section 5.01(n)(i), Section 5.11 or Section 6 hereof, or
(d) default shall be made by the Borrower or any Guarantor in the due
observance or performance of any other covenant, condition or agreement to be
observed or performed pursuant to the terms of this Agreement, any of the Orders
or any of the other Loan Documents and such default shall continue unremedied
for more than ten (10) days; or
(e) any of the Cases shall be dismissed or converted to a case under
Chapter 7 of the Bankruptcy Code or the Borrower or any Guarantor shall file a
motion or other pleading seeking the dismissal of any of the Cases under Section
1112 of the Bankruptcy Code or otherwise; a trustee under Chapter 7 or Chapter
11 of the Bankruptcy Code, a responsible officer or an examiner with enlarged
powers relating to the operation of the business (powers beyond those set forth
in Section 1l06(a)(3) and (4) of the Bankruptcy Code) under Section 1106(b) of
the Bankruptcy Code shall be appointed in any of the Cases and the order
appointing such trustee, responsible officer or examiner shall not be reversed
or vacated within 30 days after the entry thereof, or an application shall be
filed by the Borrower or any Guarantor for the approval of any other
Superpriority Claim (other than the Carve-Out) in any of the Cases which is pari
passu with or senior to the claims of the Agent and the Lenders against the
Borrower or any Guarantor hereunder, or there shall arise or be granted any such
pari passu or senior Super Priority Claim or the Bankruptcy Court shall enter an
order terminating the use of cash collateral under the Existing Agreements; or
(f) the Bankruptcy Court shall enter an order or orders granting relief
from the automatic stay applicable under Section 362 of the Bankruptcy Code to
the holder or holders of any security interest to permit foreclosure (or the
granting of a deed in lieu of foreclosure or the like) on any assets of the
Borrower or any of the Guarantors which have a value in excess of $3,000,000 in
the aggregate; or
(g) a Change of Control shall occur; or
(h) the Borrower shall fail to deliver a certified Borrowing Base
Certificate when due and such default shall continue unremedied for more than
three (3) Business Days; or
(i) any material provision of any Loan Document shall, for any reason,
cease to be valid and binding on the Borrower or any of the Guarantors, or the
Borrower or any of the Guarantors shall so assert in any pleading filed in any
court; or
(j) an order shall be entered (i) reversing, staying for a period in excess
of 10 days, or vacating any of the Orders or (ii) without the written consent of
the Agent (which consent shall be in its sole discretion), otherwise amending,
supplementing or modifying any of the Orders, or (iii) terminating the use of
cash collateral by the Borrower or the Guarantors pursuant to the Orders; or
(k) any judgment or order in excess of $3,000,000 as to any post-petition
obligation shall be rendered against the Borrower or any of the Guarantors and
the enforcement thereof shall not have been stayed; or
65
(l) any non-monetary judgment or order with respect to a post-petition
event shall be rendered against the Borrower or any of the Guarantors which does
or would reasonably be expected to (i) cause a material adverse change in the
operations, business, properties, assets or condition (financial or otherwise)
of the Borrower and the Guarantors taken as a whole, (ii) have a material
adverse effect on the ability of the Borrower or any of the Guarantors to
perform their respective obligations under any Loan Document, or (iii) have a
material adverse effect on the rights and remedies of the Agent or any Lender
under any Loan Document; or
(m) except as permitted by the Orders, the Borrower or the Guarantors shall
make any Pre-Petition Payment other than Pre-Petition Payments authorized by the
Bankruptcy Court (x) in accordance with "first day" orders reasonably
satisfactory to the Agent (including not in excess of amounts reasonably
satisfactory to the Agent in respect of certain critical service providers), (y)
in connection with the assumption of executory contracts and unexpired leases
and (z) in respect of accrued payroll and related expenses and employee benefits
as of the Filing Date;
(n) any Termination Event described in clauses (iii) or (iv) of the
definition of such term shall have occurred and any Lien arising as a result of
such Termination Event shall have been perfected or any Person shall have
obtained relief from the automatic stay to enforce such Lien or any
Insufficiency; or
(o) (i) the Borrower or any ERISA Affiliate thereof shall have been
notified by the sponsor or trustee of a Multiemployer Plan that it has incurred
Withdrawal Liability to such Multiemployer Plan, (ii) the Borrower or such ERISA
Affiliate does not have reasonable grounds, in the opinion of the Agent, to
contest such Withdrawal Liability and is not in fact contesting such Withdrawal
Liability in a timely and appropriate manner, and (iii) the amount of such
Withdrawal Liability specified in such notice, when aggregated with all other
amounts required to be paid to Multiemployer Plans in connection with Withdrawal
Liabilities (determined as of the date of such notification), exceeds $3,000,000
allocable to post-petition obligations or requires payments exceeding $3,000,000
per annum in excess of the annual payments made with respect to such
Multiemployer Plans by the Borrower or such ERISA Affiliate for the plan year
immediately preceding the plan year in which such notification is received; or
(p) the Borrower or any ERISA Affiliate thereof shall have been notified by
the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of ERISA,
if as a result of such reorganization or termination the aggregate annual
contributions of the Borrower and its ERISA Affiliates to all Multiemployer
Plans that are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the plan
years that include the date hereof by an amount exceeding $3,000,000; or
(q) the Borrower or any ERISA Affiliate shall have committed a failure
described in Section 302(f)(l) of ERISA (other than the failure to make any
contribution accrued and unpaid as of the Filing Date or for which a funding
waiver has been applied for and
66
not denied), the amount determined under Section 302(f)(3) of ERISA is equal to
or greater than $3,000,000; or
(r) it shall be determined (whether by the Bankruptcy Court or by any other
judicial or administrative forum) that the Borrower or any Guarantor is liable
for the payment of claims arising out of any failure to comply (or to have
complied) with applicable environmental laws or regulations the payment of which
will have a material adverse effect on the operations, business, properties,
assets or condition (financial or otherwise) of the Borrower and the Guarantors,
taken as a whole, and the enforcement thereof shall not have been stayed; or
(s) the Borrower shall fail to retain a chief restructuring officer
reasonably satisfactory to the Agent having a scope of authority satisfactory to
the Agent;
then, and in every such event and at any time thereafter during the continuance
of such event, and without further order of or application to the Bankruptcy
Court, the Agent may, and at the request of the Required Lenders, shall, by
notice to the Borrower (with a copy to counsel for the Official Creditors'
Committee appointed in the Cases, to counsel for the Existing First Lien Agent
and to the United States Trustee for the Eastern District of Michigan), take one
or more of the following actions, at the same or different times (provided, that
with respect to clause (iv) below and the enforcement of Liens or other remedies
with respect to the Collateral under clause (v) below, the Agent shall provide
the Borrower (with a copy to counsel for the Official Creditors' Committee in
the Cases, to counsel for the Existing First Lien Agent and to the United States
Trustee for the Eastern District of Michigan) with five (5) Business Days'
written notice prior to taking the action contemplated thereby and provided,
further, that upon receipt of notice referred to in the immediately preceding
clause with respect to the accounts referred to in clause (iv) below, the
Borrower may continue to make ordinary course disbursements from such accounts
(other than the Letter of Credit Account) but may not withdraw or disburse any
other amounts from such accounts): (i) terminate or suspend forthwith the Total
Commitment; (ii) declare the Loans or any portion thereof then outstanding to be
forthwith due and payable, whereupon the principal of such Loans together with
accrued interest thereon and any unpaid accrued Fees and all other liabilities
of the Borrower accrued hereunder and under any other Loan Document, shall
become forthwith due and payable, without presentment, demand, protest or any
other notice of any kind, all of which are hereby expressly waived by the
Borrower and the Guarantors, anything contained herein or in any other Loan
Document to the contrary notwithstanding; (iii) require the Borrower and the
Guarantors upon demand to forthwith deposit in the Letter of Credit Account cash
in an amount which, together with any amounts then held in the Letter of Credit
Account, is equal to the sum of 105% of the then Uncollateralized LC Exposure
(and to the extent the Borrower and the Guarantors shall fail to furnish such
funds as demanded by the Agent, the Agent shall be authorized to debit the
accounts of the Borrower and the Guarantors maintained with the Agent in such
amount five (5) Business Days after the giving of the notice referred to above);
(iv) set-off amounts in the Letter of Credit Account or any other accounts
maintained with the Agent and apply such amounts to the obligations of the
Borrower and the Guarantors hereunder and in the other Loan Documents; and (v)
exercise any and all remedies under the Loan Documents and under applicable law
available to the Agent and the Lenders. Any payment received as a result of the
exercise of remedies hereunder shall be applied in accordance with Section
2.19(b).
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SECTION 8. THE AGENT
SECTION 8.01 Administration by Agent. Each of the Lenders and the Issuing
Lender hereby irrevocably appoints the Agent as its agent and authorizes the
Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Agent by the terms hereof, together with such actions and
powers as are reasonably incidental thereto.
SECTION 8.02 Rights of Agent. The institution serving as the Agent
hereunder shall have the same rights and powers in its capacity as a Lender as
any other Lender and may exercise the same as though it were not the Agent, and
such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any Subsidiary or
other Affiliate thereof as if it were not the Agent hereunder.
SECTION 8.03 Liability of Agent.
(a) The Agent shall not have any duties or obligations except those
expressly set forth herein. Without limiting the generality of the foregoing,
(i) the Agent shall not be subject to any fiduciary or other implied duties,
regardless of whether an Event of Default has occurred and is continuing, (ii)
the Agent shall not have any duty to take any discretionary action or exercise
any discretionary powers, except discretionary rights and powers expressly
contemplated hereby that the Agent is required to exercise in writing as
directed by the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
10.09), and (iii) except as expressly set forth herein, the Agent shall not have
any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to the Borrower or any of its Subsidiaries that is
communicated to or obtained by the bank serving as Agent or any of its
Affiliates in any capacity. The Agent shall not be liable for any action taken
or not taken by it with the consent or at the request of the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary under
the circumstances as provided in Section 10.09) or in the absence of its own
gross negligence or willful misconduct. The Agent shall be deemed not to have
knowledge of any Event of Default unless and until written notice thereof is
given to the Agent by the Borrower or a Lender, and the Agent shall not be
responsible for or have any duty to ascertain or inquire into (A) any statement,
warranty or representation made in or in connection with this Agreement, (B) the
contents of any certificate, report or other document delivered hereunder or in
connection herewith, (C) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein, (D) the validity,
enforceability, effectiveness or genuineness of this Agreement or any other
agreement, instrument or document, or (E) the satisfaction of any condition set
forth in Section 4 or elsewhere herein, other than to confirm receipt of items
expressly required to be delivered to the Agent.
(b) The Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Agent also may rely
upon any statement made to it orally or by telephone and believed by it to be
made by the proper Person, and shall not incur any liability for relying
thereon. The Agent may consult with legal counsel (who may be counsel for the
Borrower), independent
68
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
(c) The Agent may perform any and all its duties and exercise its rights
and powers by or through any one or more sub-agents appointed by the Agent. The
Agent and any such sub-agent may perform any and all of its duties and exercise
its rights and powers through their respective Related Parties. The exculpatory
provisions of the preceding paragraphs shall apply to any such sub-agent and to
the Related Parties of the Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Agent.
SECTION 8.04 Reimbursement and Indemnification. Each Lender agrees (i) to
reimburse the Agent for such Lender's Tranche A Commitment Percentage or Tranche
B Commitment Percentage of any expenses and fees incurred for the benefit of the
Lenders under this Agreement and any of the Loan Documents, including, without
limitation, counsel fees and compensation of agents and employees paid for
services rendered on behalf of the Lenders, and any other expense incurred in
connection with the operations or enforcement thereof, not reimbursed by the
Borrower or the Guarantors and (ii) to indemnify and hold harmless the Agent,
each Issuing Lender and any of their directors, officers, employees, agents or
Affiliates, on demand, in the amount of its proportionate share, from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses, or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by, or asserted against it
or any of them in any way relating to or arising out of this Agreement or any of
the Loan Documents or any action taken or omitted by it or any of them under
this Agreement or any of the Loan Documents to the extent not reimbursed by the
Borrower or the Guarantors (except such as shall result from their respective
gross negligence or willful misconduct).
SECTION 8.05 Successor Agent. Subject to the appointment and acceptance of
a successor Agent as provided in this paragraph, the Agent may resign at any
time by notifying the Lenders, the Issuing Lender and the Borrower. Upon any
such resignation, the Required Lenders shall have the right, in consultation
with the Borrower, to appoint a successor. If no successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Agent gives notice of its resignation, then
the retiring Agent may, on behalf of the Lenders and the Issuing Lender, appoint
a successor Agent which shall be a bank with an office in New York, New York, or
an Affiliate of any such bank. Upon the acceptance of its appointment as Agent
hereunder by a successor, such successor shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations hereunder.
The fees payable by the Borrower to a successor Agent shall be the same as those
payable to its predecessor unless otherwise agreed between the Borrower and such
successor. After the Agent's resignation hereunder, the provisions of this
Article and Section 10.05 shall continue in effect for the benefit of such
retiring Agent, its sub-agents and their respective Related Parties in respect
of any actions taken or omitted to be taken by any of them while it was acting
as Agent.
SECTION 8.06 Independent Lenders. Each Lender acknowledges that it has,
independently and without reliance upon the Agent or any other Lender and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and
69
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agent or any other Lender and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any related agreement or any document
furnished hereunder or thereunder.
SECTION 8.07 Advances and Payments.
(a) On the date of each Loan, the Agent shall be authorized (but not
obligated) to advance, for the account of each of the Lenders, the amount of the
Loan to be made by it in accordance with its Tranche A Commitment or Tranche B
Commitment, as the case may be, hereunder. Should the Agent do so, each of the
Lenders agrees forthwith to reimburse the Agent in immediately available funds
for the amount so advanced on its behalf by the Agent, together with interest at
the Federal Funds Effective Rate if not so reimbursed on the date due from and
including such date but not including the date of reimbursement.
(b) Any amounts received by the Agent in connection with this Agreement
(other than amounts to which the Agent is entitled pursuant to Sections 2.20,
8.04 and 10.05), the application of which is not otherwise provided for in this
Agreement shall be applied in accordance with Section 2.19(b). All amounts to be
paid to a Lender by the Agent shall be credited to that Lender, after collection
by the Agent, in immediately available funds either by wire transfer or deposit
in that Lender's correspondent account with the Agent, as such Lender and the
Agent shall from time to time agree.
SECTION 8.08 Sharing of Setoffs. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
the Borrower or a Guarantor, including, but not limited to, a secured claim
under Section 506 of the Bankruptcy Code or other security or interest arising
from, or in lieu of, such secured claim and received by such Lender under any
applicable bankruptcy, insolvency or other similar law, or otherwise, obtain
payment in respect of its Loans or unreimbursed drafts drawn under Letters of
Credit as a result of which the unpaid portion of its Loans or unreimbursed
drafts drawn under Letters of Credit is proportionately less than the unpaid
portion of the Loans or unreimbursed drafts drawn under Letters of Credit of any
other Lender (a) it shall promptly purchase at par (and shall be deemed to have
thereupon purchased) from such other Lender a participation in the Loans or
unreimbursed drafts drawn under Letters of Credit of such other Lender, so that
the aggregate unpaid principal amount of each Lender's Loans and unreimbursed
drafts drawn under Letters of Credit and its participation in Loans and
unreimbursed drafts drawn under Letters of Credit of the other Lenders shall be
in the same proportion to the aggregate unpaid principal amount of all Loans
then outstanding and unreimbursed drafts drawn under Letters of Credit as the
principal amount of its Loans and unreimbursed drafts drawn under Letters of
Credit prior to the obtaining of such payment was to the principal amount of all
Loans outstanding and unreimbursed drafts drawn under Letters of Credit prior to
the obtaining of such payment and (b) such other adjustments shall be made from
time to time as shall be equitable to ensure that the Lenders share such payment
pro-rata, provided, that if any such non-pro-rata payment is thereafter
recovered or otherwise set aside such purchase of participations shall be
rescinded (without interest). The Borrower expressly consents to the foregoing
arrangements and agrees that any Lender holding (or deemed to be holding) a
participation in a Loan or unreimbursed drafts drawn
70
under Letters of Credit may exercise any and all rights of banker's lien, setoff
(in each case, subject to the same notice requirements as pertain to clause (iv)
of the remedial provisions of Section 7.01) or counterclaim with respect to any
and all moneys owing by the Borrower to such Lender as fully as if such Lender
was the original obligee thereon, in the amount of such participation.
SECTION 9. GUARANTY
SECTION 9.01 Guaranty.
(a) Each of the Guarantors unconditionally and irrevocably guarantees the
due and punctual payment by the Borrower of the Obligations. Each of the
Guarantors further agrees that the Obligations may be extended or renewed, in
whole or in part, without notice to or further assent from it, and it will
remain bound upon this guaranty notwithstanding any extension or renewal of any
of the Obligations. The Obligations of the Guarantors shall be joint and
several.
(b) Each of the Guarantors waives presentation to, demand for payment from
and protest to the Borrower or any other Guarantor, and also waives notice of
protest for nonpayment. The Obligations of the Guarantors hereunder shall not be
affected by (i) the failure of the Agent or a Lender to assert any claim or
demand or to enforce any right or remedy against the Borrower or any other
Guarantor under the provisions of this Agreement or any other Loan Document or
otherwise; (ii) any extension or renewal of any provision hereof or thereof,
(iii) any rescission, waiver, compromise, acceleration, amendment or
modification of any of the terms or provisions of any of the Loan Documents;
(iv) the release, exchange, waiver or foreclosure of any security held by the
Agent for the Obligations or any of them; (v) the failure of the Agent or a
Lender to exercise any right or remedy against any other Guarantor; or (vi) the
release or substitution of any Guarantor or any other Guarantor.
(c) Each of the Guarantors further agrees that this guaranty constitutes a
guaranty of payment when due and not just of collection, and waives any right to
require that any resort be had by the Agent or a Lender to any security held for
payment of the Obligations or to any balance of any deposit, account or credit
on the books of the Agent or a Lender in favor of the Borrower or any other
Guarantor, or to any other Person.
(d) Each of the Guarantors hereby waives any defense that it might have
based on a failure to remain informed of the financial condition of the Borrower
and of any other Guarantor and any circumstances affecting the ability of the
Borrower to perform under this Agreement.
(e) Each Guarantor's guaranty shall not be affected by the genuineness,
validity, regularity or enforceability of the Obligations or any other
instrument evidencing any Obligations, or by the existence, validity,
enforceability, perfection, or extent of any collateral therefor or by any other
circumstance relating to the Obligations which might otherwise constitute a
defense to this Guaranty. Neither of the Agent, nor any of the Lenders makes any
representation or warranty in respect to any such circumstances or shall have
any duty or
71
responsibility whatsoever to any Guarantor in respect of the management and
maintenance of the Obligations.
(f) Subject to the provisions of Section 7.01, upon the Obligations
becoming due and payable (by acceleration or otherwise), the Lenders shall be
entitled to immediate payment of such Obligations by the Guarantors upon written
demand by the Agent, without further application to or order of the Bankruptcy
Court.
SECTION 9.02 No Impairment of Guaranty . The obligations of the Guarantors
hereunder shall not be subject to any reduction, limitation, impairment or
termination for any reason, including, without limitation, any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject to any
defense or set-off, counterclaim, recoupment or termination whatsoever by reason
of the invalidity, illegality or unenforceability of the Obligations. Without
limiting the generality of the foregoing, the obligations of the Guarantors
hereunder shall not be discharged or impaired or otherwise affected by the
failure of the Agent or a Lender to assert any claim or demand or to enforce any
remedy under this Agreement or any other agreement, by any waiver or
modification of any provision thereof, by any default, failure or delay, willful
or otherwise, in the performance of the Obligations, or by any other act or
thing or omission or delay to do any other act or thing which may or might in
any manner or to any extent vary the risk of the Guarantors or would otherwise
operate as a discharge of the Guarantors as a matter of law, unless and until
the Obligations are paid in full.
SECTION 9.03 Subrogation. Upon payment by any Guarantor of any sums to the
Agent or a Lender hereunder, all rights of such Guarantor against the Borrower
arising as a result thereof by way of right of subrogation or otherwise, shall
in all respects be subordinate and junior in right of payment to the prior final
and indefeasible payment in full of all the Obligations. If any amount shall be
paid to such Guarantor for the account of the Borrower, such amount shall be
held in trust for the benefit of the Agent and the Lenders and shall forthwith
be paid to the Agent and the Lenders to be credited and applied to the
Obligations, whether matured or unmatured.
SECTION 10. MISCELLANEOUS
SECTION 10.01 Notices. (a) Except in the case of notices and other
communications expressly permitted to be given by telephone (and subject to
paragraph (b) below), all notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by telecopy, as follows:
(i) if to the Borrower, to it at Xxxxxxx & Xxxxxx Products Co., 000
Xxxxxxxxxx Xxxxxxx, Xxxx, Xxxxxxxx 00000, Attention of: Xxx Xxxxx, Vice
President and General Counsel (Telecopy No.: 248-824-1882);
(ii) if to the Agent, to JPMorgan Chase Bank, N.A., Loan and Agency
Services Group, 0000 Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxx 00000, Attention
of: Xxxxxxx Xxxx, (Telecopy No.: 713-750-2892) with a copy to JPMorgan
Chase Bank, N.A., 270
00
Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx 00000, Attention of: Xxx Xxxxxxxxx,
(Telecopy No.: 212-270-0453);
(iii) if to the Issuing Lender, to it at the address most recently
specified by it in notice delivered by it to the Agent and the Borrower,
with a copy to the Agent as provided in clause (ii) above; and
(iv) if to any other Lender, to it at its address (or telecopy number)
set forth in Annex A hereto or, if subsequently delivered, its
Administrative Questionnaire.
(b) Notices and other communications to the Lenders hereunder may be
delivered or furnished by electronic communications pursuant to procedures
approved by the Agent; provided, that the foregoing shall not apply to notices
pursuant to Section 2 unless otherwise agreed by the Agent and the applicable
Lender. The Agent or the Borrower may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications
pursuant to procedures approved by it; provided, that approval of such
procedures may be limited to particular notices or communications.
(c) Any party hereto may change its address or telecopy number for notices
and other communications hereunder by notice to the other parties hereto. All
notices and other communications given to any party hereto in accordance with
the provisions of this Agreement shall be deemed to have been given on the date
of receipt.
SECTION 10.02 Survival of Agreement, Representations and Warranties, etc.
All warranties, representations and covenants made by the Borrower or any
Guarantor herein or in any certificate or other instrument delivered by it or on
its behalf in connection with this Agreement shall be considered to have been
relied upon by the Lenders and shall survive the making of the Loans herein
contemplated regardless of any investigation made by any Lender or on its behalf
and shall continue in full force and effect so long as any amount due or to
become due hereunder is outstanding and unpaid and so long as the Total
Commitment has not been terminated. All statements in any such certificate or
other instrument shall constitute representations and warranties by the Borrower
and the Guarantors hereunder with respect to the Borrower.
SECTION 10.03 Successors and Assigns. (a) The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby (including any Affiliate of
the Issuing Lender that issues any Letter of Credit), except that (i) the
Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and
void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section. Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby (including any Affiliate of the Issuing Lender that issues any
Letter of Credit), Participants (to the extent provided in paragraph (d) of this
Section) and, to the extent expressly contemplated hereby, the Related Parties
of each of the Agent, the Issuing Lender and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
73
(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any
Lender may assign to one or more assignees all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Total
Commitment and the Loans at the time owing to it) with the prior written consent
(such consent not to be unreasonably withheld) of:
(A) the Agent; and
(B) the Issuing Lender, provided that no consent of the Issuing Lender
shall be required for an assignment of all or any portion of a Tranche
B Loan.
(ii) Assignments shall be subject to the following additional conditions:
(A) any assignment of any portion of the Total Tranche A Commitment and
Tranche A Loans and LC Exposure shall be made to an Eligible Assignee;
(B) except in the case of an assignment to a Lender or an Affiliate of a
Lender or an Approved Fund or an assignment of the entire remaining
amount of the assigning Lender's Tranche A Commitment, Tranche B
Commitment or Loans, the amount of the such commitment or Loans of the
assigning Lender subject to each such assignment (determined as of the
date the Assignment and Acceptance with respect to such assignment is
delivered to the Agent) shall not be less than $1,000,000 unless the
Agent otherwise consents;
(C) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and
obligations under this Agreement, provided that if such assigning
Lender is both a Tranche A Lender and a Tranche B Lender, this clause
shall not be construed to prohibit the assignment of a proportionate
part of all the assigning Lender's rights and obligations in respect
of either (1) the Tranche A Commitment, Tranche A Loans and LC
Exposure or (2) the Tranche B Commitment and Tranche B Loans, as the
case may be;
(D) the parties to each assignment shall execute and deliver to the Agent
an Assignment and Acceptance, together with a processing and
recordation fee of $3,500; and
(E) the assignee, if it was not a Lender immediately prior to such
assignment, shall deliver to the Agent an Administrative
Questionnaire.
For the purposes of this Section 10.03(b), the term "Approved Fund" means
any Person (other than a natural person) that is engaged in making, purchasing,
holding or investing in bank loans and similar extensions of credit in the
ordinary course of its business and that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
74
(iii) Subject to acceptance and recording thereof pursuant to paragraph
(b)(iv) of this Section, from and after the effective date specified in each
Assignment and Acceptance the assignee thereunder shall be a party hereto and,
to the extent of the interest assigned by such Assignment and Acceptance, have
the rights and obligations of a Tranche A Lender or Tranche B Lender (or both),
as the case may be, under this Agreement, and the assigning Lender thereunder
shall, to the extent of the interest assigned by such Assignment and Acceptance,
be released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all of the assigning Lender's rights and
obligations under this Agreement, such Lender shall cease to be a party hereto
but shall continue to be entitled to the benefits of Sections 2.16, 2.17, 2.18
and 10.05). Any assignment or transfer by a Lender of rights or obligations
under this Agreement that does not comply with this Section 10.03 shall be
treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (d) of
this Section.
(iv) The Agent, acting for this purpose as an agent of the Borrower, shall
maintain at one of its offices a copy of each Assignment and Assumption
delivered to it and a register for the recordation of the names and addresses of
the Lenders, and the Commitment of, and principal amount of the Loans and LC
Disbursements owing to, each Lender pursuant to the terms hereof from time to
time (the "Register"). The entries in the Register shall be conclusive, and the
Borrower, the Agent, the Issuing Lender and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Borrower, the
Issuing Lender and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(c) Upon its receipt of a duly completed Assignment and Assumption executed
by an assigning Lender and an assignee, the assignee's completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) of this Section and
any written consent to such assignment required by paragraph (b) of this
Section, the Agent shall accept such Assignment and Assumption and record the
information contained therein in the Register; provided, that if either the
assigning Lender or the assignee shall have failed to make any payment required
to be made by it pursuant to Section 2.03(d) or (e), 2.05(b), 2.19(d) or 8.04,
the Agent shall have no obligation to accept such Assignment and Assumption and
record the information therein in the Register unless and until such payment
shall have been made in full, together with all accrued interest thereon. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(d) (i) Any Lender may, without the consent of the Borrower, the Agent or
the Issuing Lender, sell participations to one or more banks or other entities
(a "Participant") in all or a portion of such Lender's rights and obligations
under this Agreement (including all or a portion of its Commitment and the Loans
owing to it); provided, that (A) such Lender's obligations under this Agreement
shall remain unchanged, (B) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (C) the
Borrower, the Agent, the Issuing Lender and the other Lenders shall continue to
deal solely and
75
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided, that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 10.09(a) that affects such
Participant. Subject to paragraph (d)(ii) of this Section, the Borrower agrees
that each Participant shall be entitled to the benefits of Sections 2.16, 2.17
and 2.18 to the same extent as if it were a Lender and had acquired its interest
by assignment pursuant to paragraph (b) of this Section. To the extent permitted
by law, each Participant also shall be entitled to the benefits of Section 2.26
as though it were a Lender, provided such Participant agrees to be subject to
Section 8.08 as though it were a Lender.
(ii) A Participant shall not be entitled to receive any greater payment
under Section 2.16 or 2.18 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower's
prior written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 2.18 unless the Borrower
is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 2.18(e) as
though it were a Lender.
(e) Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement to secure obligations of such
Lender, including without limitation any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided, that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
(f) Any Lender may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section 10.03, disclose to
the assignee or participant or proposed assignee or participant, any information
relating to the Borrower or any of the Guarantors furnished to such Lender by or
on behalf of the Borrower or any of the Guarantors; provided, that prior to any
such disclosure, each such assignee or participant or proposed assignee or
participant shall agree in writing to be bound by the provisions of Section
10.04.
(g) The Borrower hereby agrees, to the extent set forth in the Commitment
Letter, to actively assist and cooperate with the Agent in the Agent's best
efforts to sell participations herein (as described in Section 10.03(d)) and
assign to one or more Lenders or assignees meeting the requirements set forth in
10.03(b) a portion of its interests, rights and obligations under this Agreement
(as set forth in Section 10.03(b)).
SECTION 10.04 Confidentiality. Each Lender agrees to keep any information
delivered or made available by the Borrower or any of the Guarantors to it
confidential from anyone other than persons employed or retained by such Lender
who are or are expected to
76
become engaged in evaluating, approving, structuring or administering the Loans;
provided, that nothing herein shall prevent any Lender from disclosing such
information (i) to any of its Affiliates or to any other Lender, provided such
Affiliate agrees to keep such information confidential to the same extent
required by the Lenders hereunder, (ii) upon the order of any court or
administrative agency, (iii) upon the request or demand of any regulatory agency
or authority, (iv) which has been publicly disclosed other than as a result of a
disclosure by the Agent or any Lender which is not permitted by this Agreement,
(v) in connection with any litigation to which the Agent, any Lender, or their
respective Affiliates may be a party to the extent reasonably required, (vi) to
the extent reasonably required in connection with the exercise of any remedy
hereunder, (vii) to such Lender's legal counsel and independent auditors, and
(viii) to any actual or proposed participant or assignee of all or part of its
rights hereunder subject to the proviso in Section 10.03(f). Each Lender shall
use reasonable efforts to notify the Borrower of any required disclosure under
clauses (ii) and (v) of this Section.
SECTION 10.05 Expenses; Indemnity; Damage Waiver. (a) (i) The Borrower
shall pay or reimburse: (A) all reasonable fees and reasonable out-of-pocket
expenses of the Agent and X.X. Xxxxxx Securities Inc. ("JPMorgan") (including
the reasonable fees, disbursements and other charges of Xxxxxxx Xxxxxxx &
Xxxxxxxx, LLP ("STB"), special counsel to the Agent, and any other counsel
retained by STB or the Agent or JPMorgan) associated with the syndication of the
credit facilities provided for herein, and the preparation, execution, delivery
and administration of the Loan Documents and any amendments, modifications or
waivers of the provisions hereof (whether or not the transactions contemplated
hereby or thereby shall be consummated); and (B) all reasonable fees and
reasonable out-of-pocket expenses of the Agent and JPMorgan (including the
reasonable fees, disbursements and other charges of STB, special counsel to the
Agent, and any other counsel retained by STB or the Agent or JPMorgan) and the
lenders in connection with the enforcement of the Loan Documents.
(ii) The Borrower shall pay or reimburse (D) all reasonable fees and
reasonable expenses of the Agent and JPMorgan and their internal and third-party
auditors, appraisers and consultants incurred in connection with the Agent's (1)
initial and ongoing Borrowing Base examinations, (2) analyses of the systems and
processes of the Borrower and analyses and valuations of the Borrowing Base
assets, (3) periodic field examinations and appraisals and (4) monthly and other
monitoring of assets; and (E) all reasonable fees and reasonable expenses of the
Issuing Lenders in connection with the issuance, amendment, renewal or extension
of any Letter of Credit or any demand or any payment thereunder.
(iii) The Borrower shall pay or reimburse all unpaid obligations of Foreign
Subsidiaries to pay, reimburse or indemnify any Lender for providing cash
management, pooling and overdraft services to such Foreign Subsidiaries.
All payments or reimbursements pursuant to the foregoing clauses (i), (ii)
and (iii) shall be payable promptly upon written demand together with back-up
documentation supplying such reimbursement request.
(b) The Borrower shall indemnify the Agent, JPMorgan, the Issuing Lenders
and each Lender, and each Related Party of any of the foregoing Persons (each
such Person being
77
called an "Indemnitee") against, and hold each Indemnitee harmless from, any and
all losses, claims, damages, liabilities and related expenses, including the
reasonable fees, charges and disbursements of any counsel for any Indemnitee,
incurred by or asserted against any Indemnitee arising out of, in connection
with, or as a result of (i) the execution or delivery of this Agreement or any
agreement or instrument contemplated hereby, the performance by the parties
hereto of their respective obligations hereunder or the consummation of the
Transactions or any other transactions contemplated hereby, (ii) any Loan or
Letter of Credit or the use of the proceeds therefrom (including any refusal by
the Issuing Lender to honor a demand for payment under a Letter of Credit if the
documents presented in connection with such demand do not strictly comply with
the terms of such Letter of Credit), (iii) any actual or alleged presence or
release of Hazardous Materials on or from any property owned or operated by the
Borrower or any of its Subsidiaries, or any Environmental Liability related in
any way to the Borrower or any of its Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided, that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses are determined by a
court of competent jurisdiction by final and nonappealable judgment to have
resulted from the bad faith, gross negligence or willful misconduct of such
Indemnitee.
(c) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
Transactions, any Loan or Letter of Credit or the use of the proceeds thereof
SECTION 10.06 CHOICE OF LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
SHALL IN ALL RESPECTS BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS
OF THE STATE OF NEW YORK AND (TO THE EXTENT APPLICABLE) THE BANKRUPTCY CODE.
SECTION 10.07 No Waiver. No failure on the part of the Agent or any of the
Lenders to exercise, and no delay in exercising, any right, power or remedy
hereunder or any of the other Loan Documents shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right, power or remedy
preclude any other or further exercise thereof or the exercise of any other
right, power or remedy. All remedies hereunder are cumulative and are not
exclusive of any other remedies provided by law.
SECTION 10.08 Extension of Maturity. Should any payment of principal of or
interest or any other amount due hereunder become due and payable on a day other
than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day and, in the case of principal, interest shall be payable
thereon at the rate herein specified during such extension.
SECTION 10.09 Amendments, etc.
78
(a) No modification, amendment or waiver of any provision of this Agreement
or the Security and Pledge Agreement, and no consent to any departure by the
Borrower or any Guarantor therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Required Lenders, and then such
waiver or consent shall be effective only in the specific instance and for the
purpose for which given; provided, however, that no such modification or
amendment shall without the written consent of (i) the Super-majority Lenders
release any of the Liens granted to the Agent hereunder, under the Orders or
under any other Loan Document, or release any of the Guarantors, (ii) the
Super-Majority Lenders, increase the advance rates above the rates in effect on
the effective date of the Borrowing Base Amendment or to add new asset
categories to the Borrowing Base, (iii) the Lender affected thereby (F) increase
the Commitment of a Lender (it being understood that a waiver of an Event of
Default shall not constitute an increase in the Commitment of a Lender), or (G)
reduce the principal amount of any Loan or the rate of interest payable thereon,
or extend any date for the scheduled payment of interest hereunder or reduce any
Fees payable hereunder or extend the final maturity of the Borrower's
obligations hereunder or (iv) all of the Lenders (A) amend or modify any
provision of this Agreement which provides for the unanimous consent or approval
of the Lenders, (B) amend this Section 10.09 or the definition of Required
Lenders, (C) amend or modify the Superpriority Claim status of the Lenders
contemplated by Section 2.25, (D) release all or substantially all of the Liens
granted to the Agent hereunder, under the Orders or under any other Loan
Document, or release all or substantially all of the Guarantors or (E) amend any
provision that sets forth the priority of payment as between the Tranche A
Lenders and the Tranche B Lenders. No such amendment or modification may
adversely affect the rights and obligations of the Agent or any Issuing Lender
hereunder or JPMCB in the capacity referred to in Section 6.03 without its prior
written consent. No notice to or demand on the Borrower or any Guarantor shall
entitle the Borrower or any Guarantor to any other or further notice or demand
in the same, similar or other circumstances. Each assignee under Section
10.03(b) shall be bound by any amendment, modification, waiver, or consent
authorized as provided herein, and any consent by a Lender shall bind any Person
subsequently acquiring an interest on the Loans held by such Lender. No
amendment to this Agreement shall be effective against the Borrower or any
Guarantor unless signed by the Borrower or such Guarantor, as the case may be.
Notwithstanding anything to the contrary contained in Section 10.09(a), in the
event that the Borrower requests that this Agreement be modified or amended in a
manner which would require the unanimous consent of all of the Lenders and such
modification or amendment is agreed to by the Super-majority Lenders (as
hereinafter defined), then with the consent of the Borrower and the
Super-majority Lenders, the Borrower and the Super-majority Lenders shall be
permitted to amend the Agreement without the consent of the Lender or Lenders
which did not agree to the modification or amendment requested by the Borrower
(such Lender or Lenders, collectively the "Minority Lenders") to provide for (i)
the termination of the Commitment of each of the Minority Lenders, (ii) the
addition to this Agreement of one or more other financial institutions (each of
which shall meet the requirements of Section 10.03(b)), or an increase in the
Commitment of one or more of the Super-majority Lenders, so that the Total
Commitment after giving effect to such amendment shall be in the same amount as
the Total Commitment immediately before giving effect to such amendment, (iii)
if any Loans are outstanding at the time of such amendment, the making of such
additional Loans by such new financial institutions or Super-majority Lender or
Lenders, as the case may be, as may be necessary to repay in full the
79
outstanding Loans of the Minority Lenders immediately before giving effect to
such amendment and (iv) such other modifications to this Agreement as may be
appropriate. As used herein, the term "Super-majority Lenders" shall mean, at
any time, Lenders having Tranche A Commitments at such time (or, if the Total
Tranche A Commitment has been terminated, Lenders holding Tranche A Loans and LC
Exposure at such time) and Lenders holding Tranche B Loans at such time (or, if
the Tranche B Loan is not outstanding, Lenders holding Tranche B Commitments at
such time) representing in excess of 66-2/3% of the sum of the Total Tranche A
Commitment at such time (or, if the Total Tranche A Commitment has been
terminated, the Tranche A Total Commitment Usage at such time) plus the Total
Tranche B Commitment at such time.
SECTION 10.10 Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof, and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 10.11 Headings. Section headings used herein are for convenience
only and are not to affect the construction of or be taken into consideration in
interpreting this Agreement.
SECTION 10.12 Survival. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any Loans
and issuance of any Letters of Credit, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that the Agent, the
Issuing Lender or any Lender may have had notice or knowledge of any Event of
Default or incorrect representation or warranty at the time any credit is
extended hereunder, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any fee or any other amount
payable under this Agreement is outstanding and unpaid or any Letter of Credit
is outstanding and so long as the Commitments have not expired or terminated.
The provisions of Sections 2.16, 2.17, 2.18 and 10.05 and Section 8 shall
survive and remain in full force and effect regardless of the consummation of
the transactions contemplated hereby, the repayment of the Loans, the expiration
or termination of the Letters of Credit and the Commitments or the termination
of this Agreement or any provision hereof
SECTION 10.13 Execution in Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement and
any separate letter agreements with respect to fees payable to the Agent
constitute the entire contract among the parties relating to the subject matter
hereof and supersede any and all previous agreements and understandings, oral or
written, relating to the subject matter hereof Except as provided in Section 4,
this Agreement shall become effective when it shall have been executed by the
Agent and when the Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties
80
hereto and their respective successors and assigns. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be effective
as delivery of a manually executed counterpart of this Agreement.
SECTION 10.14 Prior Agreements. This Agreement represents the entire
agreement of the parties with regard to the subject matter hereof and the terms
of any letters and other documentation entered into between the Borrower or a
Guarantor and any Lender or the Agent prior to the execution of this Agreement
which relate to Loans to be made hereunder shall be replaced by the terms of
this Agreement (except as otherwise expressly provided herein with respect to
the Commitment Letter and the fee letter referred to therein, including without
limitation the Borrower's agreements to actively assist the Agent in syndication
efforts and with respect to interest rates, Commitment Fees and the fees
referenced in Section 2.21).
SECTION 1.01 Further Assurances. Whenever and so often as reasonably
requested by the Agent, the Borrower and the Guarantors will promptly execute
and deliver or cause to be executed and delivered all such other and further
instruments, documents or assurances, and promptly do or cause to be done all
such other and further things as may be necessary and reasonably required in
order to further and more fully vest in the Agent all rights, interests, powers,
benefits, privileges and advantages conferred or intended to be conferred by
this Agreement and the other Loan Documents.
SECTION 10.15 USA Patriot Act. Each Lender that is subject to the
requirements of the Patriot Act hereby notifies the Borrower that pursuant to
the requirements of the Act, it is required to obtain, verify and record
information that identifies the Borrower, which information includes the name
and address of the Borrower and other information that will allow such Lender to
identify the Borrower in accordance with the Patriot Act.
SECTION 10.16 WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE GUARANTORS,
THE AGENT AND EACH LENDER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY OF
THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and the year first written.
BORROWER:
XXXXXXX & XXXXXX PRODUCTS CO.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President & Treasurer
GUARANTORS:
XXXXXXX & XXXXXX CORPORATION
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President & Treasurer
AMCO CONVERTIBLE FABRICS, INC.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President & Treasurer
XXXXXX GROUP, LLC
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President & Treasurer
BRUT PLASTICS, INC.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President & Treasurer
XXXXXXX & XXXXXX (GIBRALTAR) LIMITED
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President & Treasurer
XXXXXXX & XXXXXX ACCESSORY MATS, INC.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President & Treasurer
XXXXXXX & XXXXXX ASSET SERVICES, INC.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President & Treasurer
XXXXXXX & XXXXXX AUTOMOTIVE (ARGENTINA),
INC. (f/k/a Textron Automotive (Argentina),
Inc.)
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President & Treasurer
XXXXXXX & XXXXXX AUTOMOTIVE (ASIA), INC.
(f/k/a Textron Automotive (Asia), Inc.)
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President & Treasurer
XXXXXXX & XXXXXX AUTOMOTIVE EXTERIORS, INC.
(f/k/a Textron Automotive Exterior, Inc.)
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President & Treasurer
XXXXXXX & XXXXXX AUTOMOTIVE INTERIORS, INC.
(f/k/a Textron Automotive Interiors, Inc.)
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President & Treasurer
XXXXXXX & XXXXXX AUTOMOTIVE INTERNATIONAL, INC.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President & Treasurer
XXXXXXX & XXXXXX AUTOMOTIVE INTERNATIONAL
SERVICES, INC. (f/k/a Textron Automotive
International Services, Inc.)
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President & Treasurer
XXXXXXX & XXXXXX AUTOMOTIVE MATS, LLC
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President & Treasurer
XXXXXXX & XXXXXX AUTOMOTIVE OVERSEAS
INVESTMENT, INC. (f/k/a Textron
Automotive Overseas Investment, Inc.)
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President & Treasurer
XXXXXXX & XXXXXX AUTOMOTIVE SERVICES, LLC
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President & Treasurer
XXXXXXX & XXXXXX CANADA DOMESTIC HOLDING
COMPANY
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President & Treasurer
XXXXXXX & XXXXXX CARPET & ACOUSTICS (MI), INC.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President & Treasurer
XXXXXXX & XXXXXX CARPET & ACOUSTICS (TN), INC.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President & Treasurer
XXXXXXX & XXXXXX DEVELOPMENT COMPANY
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President & Treasurer
XXXXXXX & XXXXXX EUROPE, INC.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President & Treasurer
XXXXXXX & XXXXXX FABRICS, INC. (f/k/a Xxxx
Automotive Industries, Inc.)
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President & Treasurer
XXXXXXX & XXXXXX INTELLIMOLD, INC. (f/k/a
M&C Advanced Processes, Inc.)
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President & Treasurer
XXXXXXX & XXXXXX INTERIORS, INC.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President & Treasurer
XXXXXXX & XXXXXX INTERNATIONAL CORPORATION
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President & Treasurer
XXXXXXX & XXXXXX PLASTICS, INC.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President & Treasurer
XXXXXXX & XXXXXX PROPERTIES, INC.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President & Treasurer
COMET ACOUSTICS, INC.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President & Treasurer
CW MANAGEMENT CORPORATION
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President & Treasurer
DURA CONVERTIBLE SYSTEMS, INC.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President & Treasurer
XXXXXX DEVELOPMENT COMPANY
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President & Treasurer
JPS AUTOMOTIVE, INC.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President & Treasurer
NEW BALTIMORE HOLDINGS, LLC
By: Xxxxxxx & Xxxxxx Products Co.,
its sole member
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President & Treasurer
OWOSSO THERMAL FORMING, LLC
By: Xxxxxxx & Xxxxxx Products Co.,
its sole member
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President & Treasurer
SOUTHWEST LAMINATES, INC.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President & Treasurer
WICKES ASSET MANAGEMENT, INC.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President & Treasurer
WICKES MANUFACTURING COMPANY
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President & Treasurer
AGENT AND LENDERS:
JPMORGAN CHASE BANK, N.A.
Individually and as Agent
By: /s/ Xxxxx Xxxxxx
------------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
